“Should we expend energy on a counter resolution?” - Dr. Palitha Kohona | Sunday Observer

“Should we expend energy on a counter resolution?” - Dr. Palitha Kohona

22 December, 2019
pic: Shan Rambukwella
pic: Shan Rambukwella

Former Foreign Secretary Dr. Palitha Kohona, in an interview with Sunday Observer, spoke of the pros and cons of renegotiating UN Human Rights Council resolutions and how Sri Lanka’s foreign policy should take shape in order to meet emerging challenges. Dr. Kohona is a former Permanent Representative to the United Nation, former President of the United Nations General Assembly sixth committee (legal), former Head of the United Nations Treaty Section and has recently spoken extensively on proposed international agreements including the Millennium Challenge Corporation, Sri Lanka Compact.

Q. Do you think the Government has followed the proper procedure regarding the alleged abduction of the Swiss Embassy local staffer? Are we heading towards a diplomatic row with a friendly country over this incident, as some critics have warned?

A. The facts are still emerging from the incident. Once all the facts are with us, we can draw conclusions. But, at the moment, what is available suggests that there were certain things that could have been done differently and better by the government.

As soon as the necessary information was available to our authorities, they should have launched an investigation. Under our own law, abduction is a crime and, secondly, this was a matter that the Swiss Embassy was taking up at a high level, therefore it should have been given priority. If we started investigations without delay, that would have created a certain confidence in the public as well.

Looking at the other side of the coin, the said abduction apparently took place on November 25. I believe the proper thing for the Swiss Embassy to have done was to inform our authorities immediately. On November 26, it was already in the international media. The news spread around the world like wildfire. For the international media to have access to this information somebody had to have briefed them. At that time, we know the victim was in the Swiss Embassy in Colombo. It also suggests that the Swiss Embassy had no confidence in the local authorities and that is a very serious issue for both sides. After all, Switzerland is a friendly country with Sri Lanka.

Q. The Swiss authorities seem to be reluctant to accept the CID findings that imply that there has not been an incident as claimed?

A. According to the initial narrative, the staffer was abducted outside the Swiss Embassy. She was hustled into a Toyota Corolla in which there were five men. In it, she was threatened and harassed. This story

doesn’t gel. If someone was forcibly put into a car in that area, there would have been witnesses and CCTV cameras would have picked it up. But we don’t seem to have any witnesses or any CCTV recordings, so that part of the story becomes very difficult to accept.

If there were five huge men in it already, how was she put in the car? Again, a highly unlikely tale. On top of it, we were also told by a former minister, who is in the opposition now, that she had a gun thrust in her mouth. This would have been visible to passers by. Now it appears that there is evidence that she had been to other places during the time she was supposedly abducted. She also claimed to have suffered trauma, and injuries. We have seen her on TV, she did not look like a person who was suffering from trauma.

She was not produced before a local doctor, as far as we know. We don’t know of a local doctor treating her inside the embassy. Against all this background, either the Swiss Embassy made a terrible mistake when it got involved in this affair, or they were negligent in the way it was handled. And there are people who suggest a conspiracy theory.

The incident has whipped up a massive campaign in the international media, referring to the President as a strong man, a person against whom there are war crime allegations and also a person of whom the minorities are terrified. We are also reminded constantly of an era when white vans dominated our imagination.

One begins to wonder whether this whole incident was an excuse for those who wanted to emphasise these elements in the new administration, despite the fact that, right from the beginning, even before the election, the president had assured the world that his administration would be governed by laws and existing rules and not by arbitrary methods.

Despite all those assurances, many elements of the international media continued to repeat the same line over and over again. If you are a leader, there are allegations against you. If you are a popular leader, there are more allegations. But we need to have authenticated allegations so that they can be tested against rules of probity. I think the new administration has done what is right, although we could have done it quicker.

Q. The victim in question is a Sri Lankan without diplomatic privileges, but initially she was housed inside the Embassy premises and the investigation officers were not given access to record a statement.

A. It is unfortunate and a little condescending to demand that we follow the relevant international laws, rules and domestic rules when dealing with the case given that the Embassy has not acted accordingly. The Swiss Embassy doesn’t seem to have conducted itself in a way that is consistent with what is fair and just. There is a person who claims to have been subject to an abduction, a person who has been traumatized, apparently injured, sexually harassed but no doctor seems to have treated her, no proper complaint was made to the local authorities. Instead of letting the information leak to the international media, the proper method would have been to alert the local authorities.

Q. Will this incident irreparably damage bilateral relations. What could be done to save goodwill between the two countries?

A. Both sides have to do something about the bilateral relations. The Swiss have consistently enjoyed good relations with Sri Lanka. It is a country in which thousands of Sri Lankans live, over 50,000, as I understand. It has been said publicly that the Swiss hospitality industry is today dependent on Sri Lankan migrants. Sri Lankans also occupy senior positions in the Swiss private sector and certain areas of public service. In the circumstances, it is to our advantage as well as to their advantage to do everything possible to restore the relationship to a more positive level.

Sri Lanka has done a lot already. The investigation has to be done properly in accordance with our laws. As we are dealing with a Sri Lankan national, we must afford to her all the protections and privileges that our law provides, and then she has to face the law like any other citizen in a way that is acceptable both internationally and to Sri Lankans.

On the other hand, the Swiss must accept that they do not come out absolutely clean in this matter. Either a mistake was made or they jumped to a conclusion without realizing the implications. I think it is the proper thing for the Swiss to explain what happened and why they took certain actions. It is very important for them to recognize that Sri Lanka is not a banana republic. Average Sri Lankans resent being treated in a condescending manner. And I’m sure, given the historic nature of our relationship, the strength of the relationship, and the people to people contact, the Swiss government would take necessary measures to restore the confidence and warmth that is associated with that relationship.

Q. Do you think the new government should have a new foreign policy strategy to deal with the international community and not a continuation of the policy of President Mahinda Rajapaksa or the last government?

A. President Gotabaya Rajapaksa’s foreign policy statement emphasizes that we will return to a nonaligned status. It means we will not be part of any groups confronting each other.

This is very important. Increasingly, the Indian Ocean region has become an arena for competition among certain world powers. During the Obama regime, the Pivot to East Asia strategy shifted focus to Asia than to its traditional areas of interest. Then, under President Trump, we have an extended version of this - Indo Pacific strategic area for the US. The US has identified both China and Russia as strategic competitors and strategic threats. Against that background, I personally believe that it is best for Sri Lanka to stay nonaligned because we would not want to get dragged into other people’s wars.

We have a situation where three of the biggest powers in the world are looking at each other in a suspicious manner. That sort of background is not conducive for world peace. It is against that sort of situation in the past that we have had eruptions and massive confrontations and wars. We can survive without getting involved and we will have much to lose if we get dragged into such confrontations. Sri Lanka will become a staging ground for other people’s wars.

Then we must remember our next door neighbour India, our inspiration for thousands of years - the country from which we received much as we evolved our civilization. Given that India has legitimate security concerns, it’s very important to keep India reassured that Sri Lanka’s relationships and interests will not be a threat to India. We need to work at the political level as well as administrative, social and community level.

I believe President Rajapaksa has already done that in his first overseas visit, which happened to be to India. In his policy statement, President Rajapaksa said his interest will be in India, South East Asia and East Asia. This is important as we all know the economic pendulum has swung all the way from Europe and America to Asia.

China is the second biggest economy of the world with a GDP of 14 trillion dollars, Japan comes next followed by ASEAN and India. Sri Lanka can only benefit if it develops closer trade, investment and people to people relations with these booming economies. One could argue that many of these economies have slowed down. Of course they have. They reach a point of growth and after that it becomes slow. If you look at the US economy, it grows at 3.5 % a year. That does not mean the US economy is crashing.

We also need to ensure that Sri Lanka plays its role in ensuring that the sea lanes are kept secured. Sixty per cent of East Asia’s energy needs floats past within 20 miles of Sri Lanka. If this is not secured it could become a problem for East Asia. Sri Lanka owes it to the international community. In addition, terrorism is a major threat to the region, whether its india, Pakistan, Thailand, Bangladesh or Myanmar, we need to play a proactive role, along with our neighbors, to ensure international terrorism is controlled and eliminated at some point.

Q.The US has renewed its travel advisory on Sri Lanka. How should we view it?

A. I am not sure why the US has issued a travel advisory on Sri Lanka. I haven’t seen similar advisories on France, Britain or Australia, for that matter. There have been more incidents in those countries recently than in Sri Lanka. Sri Lanka experienced a very nasty incident on Easter Sunday. But, since then, there has been nothing untoward in this country. The tourism industry is just about recovering. When a travel advisory is issued, it affects not only the thinking of travelers but also the insurance industry perception. Thousands of people depend on this industry to earn a decent living. Since Easter Sunday, many of them, some 140,000, have lost their source of income. Sri Lanka must work hard and restore international confidence, not only by building more hotels, but through public awareness campaigns, especially in our major markets - India and China.

Q. Already Sri Lanka has many major Chinese development projects on the ground. How can the government continue with its nonaligned policy and balance the other countries in that sense?

A. We need to develop fast. The people expects it and the government wants it. To develop, we need investments. If any country is willing to bring in investments, I don’t think the Rajapaksa government will say no to it. Since 2009, it was China that was willing to bring in investments. We did not see the same enthusiasm from many of our other partners. I must also mention that Japan too has been one of our major partners. Of course we need to balance.

The question is who is willing to come up with the funds to balance. If they are willing to come in, we would accept them with open arms. When I was the foreign secretary, certain Western countries wanted to know why no contracts were being offered to their companies. The answer was simple, bring in the funding and the contracts will be yours. Asking for contracts without the funds, and when the Chinese were willing, I thought was a bit hilarious. When we wanted to develop Hambantota harbour, we offered it to the World Bank and India and we did not get a satisfactory response. It took two or three years to convince China.

China has placed on the international table the Belt and Road initiative, under which China is committed to spend US$ 4-8 trillion to develop economies in the Indo Pacific region. It has already spent a considerable amount in Africa, even the World Bank acknowledges that, after years of going backwards in their economies, African economies have turned the tide and begun to expand in the last few years, largely because of Chinese investment in infrastructure. China actually wrote off something like US$ 50 billion African debt recently. Instead of criticizing China, we would besiege the critics to come to the party with the funding.

Q. Sri Lanka is a key partner in China’s Belt and Road initiative. There are allegations that this project is a cover by the Chinese to flex their muscles in the region?

A. You could make those allegations about any number of western countries over the last 300 hundred years. And they still do it. Chinese have said they have got the reserves and they need to extend the reserves in the region. As far as I know, they have not asked for a SOFA with us. They have not asked to send their military assets to our waters on a permanent basis. I know some of them pass through our waters on the way to Somalia to counter the piracy threat. I think we need to understand the politics behind these allegations. The allegations are not leveled by African countries or Asian countries. They are levelled by a group of countries who have exploited the region for the past 300 years. But at the same time, as an independent and sovereign country, we need to deal with all countries including China, not as a supplicant but as an equal partner.

Q. Sri Lanka is planning to renegotiate the crucial resolutions on accountability that it co-sponsored at the UN Human Rights Council. Are there provisions to renegotiate a consensus resolution?

A. We don’t need to renegotiate resolutions. We can have a fresh resolution to modify resolution 30/1. I don’t think there is a question of renegotiating the old resolution. But we need to ensure that there is majority support from the member states. On the other hand, resolutions in the Human Rights Council are not legally binding, they cannot be enforced by the council or the High Commissioner.

If you look at the number of negative resolutions UNHRC has adopted on Israel, you will see what I’m trying to get at. Most of them serve the purpose of keeping the countries who table those resolutions happy. Other than that, their impact is zero. But there is a problem. We co-sponsored these resolutions, therefore, although the resolutions have no legal binding, it carries a moral weight. Some of the provisions in those resolutions are contrary to the provisions of our Constitution. It is a serious matter. The president has already pointed this out. I have serious doubts as to whether we could get the majority for a counter resolution in Geneva and, if so, should we expend energy and time in trying to get such a resolution through, given that the one already adopted through consensus is non-binding on us.

Q. What is the best way out then?

A. Do everything possible to work with the Human Rights Council. I am sure there are areas that we can improve. HRC was not created to name and shame countries. I was involved in the negotiations. It was created to assist countries to do better in their Human Rights performance. But naming and shaming has become the norm now. The member states must put the council back on track. We should work with the council, but trying to go along with this resolution will create huge political backlash within the country. And it is a fact that this resolution influenced the people to vote for President Gotabaya Rajapaksa thereby rejecting the former regime.

Q. The cabinet has approved a four member committee to review the Millenium Challenge compact.

A. I think we need to be very careful with this. We are getting US$ 480 million as a grant but spread over five years. Some of the provisions of the MCC covenant as presented to us are not, in my view, consistent with our interests, we have very little safeguards incorporated in it.

For example, it is governed by international law and it says so in one of its provisions. But it is a very comprehensive agreement that impacts land laws, rights to own and dispose of lands and state land policy. Sri Lanka is not a country that has much experience in international disputation on land matters. On the other hand, the US has an enormous experience in that area. I do not think we should be asked to pit ourselves against the US in an international forum in the case of a dispute.

Then there are other provisions such as the compact can be terminated by giving one month’s notice by both parties. And what happens if the US doesn’t like an administration in power or doesn’t like the face of our leader and choose to withdraw arbitrarily, it doesn’t have to give reasons. While on the other hand Sri Lanka can do the same thing but when you upset the world’s only remaining superpower, there will be consequences to pay. I think it’s a very shallow reciprocity in that provision.

Then there are provisions on enactment of current laws with regards to ownership and their occupation rights. Until such legal provisions are adopted by our parliament, the compact will not be given effect, although both parties have the right to bring the compact into effect provisionally.

Another provision says that any negative consequences suffered as a result of implementing the Compact will totally be the responsibility of the government of Sri Lanka. Hence, there are provisions we need to review and re-draft to at least marginally respond to our needs.

We need to look at the experience of other countries which have been given grants under the MCC. The Compact was designed by President George W. Bush to alleviate poverty and help in the development of developing countries with the assistance of the private sector.

It must be noted, the districts identified for development purposes are not the districts that need assistance drastically and areas like Monaragala and Vanni do not fall within the ambit of this program. We need to go into all that and make sure that MCC actually benefits us.

A speaker once on the MCC said that we should not count the teeth of a gift horse. But I think we should not only count the teeth but we should also ensure that it is not infected. We remember that the last time a gift horse was given, within days that independent state ceased to exist.

I am of course referring to the city of Troy.

Similarly, in 2006, we had the same offer. US$ 500 million to improve our transport sector and roads. Because Sri Lanka did not comply with the demands to seize the attacks on the LTTE, that offer was summarily withdrawn without any explanation. I tried to talk the US out of that position, but they were determined to pull the money out and at the time we needed the money desperately.

Again, in 2018, when Mahinda Rajapaksa became the Prime Minister for a short while, the MCC offer was suspended.

I am worried that, in future, too, this offer might be used as a political tool rather than purely for altruistic purposes. It has happened elsewhere in the world.