Terrorism and the ICCPR Optional Protocol

By Kalana Senaratne

The threat of terrorism poses a significant challenge to the promotion and protection of human rights. Many countries have faced problems, and many others continue to face problems, when trying to strike a balance which helps them fight terrorism effectively whilst also protecting the human rights of its citizens. Countries such as the US and the UK come to mind.

Their anti-terror laws, and the passage that led to the drafting of such laws, show very clearly the problems they have faced in this regard. Sri Lanka has not been an exception, even though the threat that Sri Lanka has faced from terrorism is much greater than that faced by other countries. 

Yet, Sri Lanka, today, has reached a unique stage. It has comprehensively defeated the LTTE, with its top leadership decimated. The LTTE lacks the capacity to initiate a sustained terrorist campaign within the country. Even the slightest attempt to resuscitate such a terror campaign would be clamped down with daring force. Within this broad, secure, context there emerges the need to re-think about our international obligations concerning the protection of human rights.

First Optional Protocol

One of the significant issues that seem to be somewhat unresolved in Sri Lanka is the status concerning Sri Lanka’s accession to the First Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR). Sri Lanka acceded to the OP in 1997 (having acceded to the ICCPR in 1980). It was in fact one of the most significant accomplishments of the late Foreign Minister Lakshman Kadirgamar. The decision to accede to the OP was therefore taken more than a decade before the LTTE was defeated.

What is the OP?

It is a simple international instrument, which consists of 14 provisions. The OP was adopted in order to facilitate the greater achievement of the purposes of the ICCPR and the implementation of its provisions. The OP enables individuals, who claim to be victims of human rights violations, send communications to the Human Rights Committee in Geneva (not to be confused with the UN Human Rights Council in Geneva). It should be remembered that this Committee is set up under the ICCPR. It is a body of independent experts. It is not a body of judges.   

The HR Committee has the competence ‘to receive and consider’ such communications (as per Article 1 of the OP). Only those ‘who have exhausted all available domestic remedies’ may submit a written communication to the Committee (Article 2). However, it should also be noted that the application of the domestic remedies should not be ‘unreasonably prolonged’ (Article 5(2)(b). The State concerned can also ‘submit written explanations or statements clarifying’ the matter in question (Article 4(2)).  

Committee’s ‘views’

What can this HR Committee do? It is stated clearly: the ‘Committee shall forward its views to the State Party concerned and to the individual’ (Article 5(4)). Note the word ‘views.’ This shows us many things.

Firstly, it shows that the HR Committee has no judicial power to issue binding ‘decisions’ on States which need to be implemented or adhered to. There is no power to ‘overrule’ decisions of domestic courts. The Committee is neither a Privy Council, nor an international court. The views of the Committee are only of persuasive authority.

Secondly, it also shows quite remarkably one of the fundamental problems relating to international human rights law: that of implementation, enforcement and sanction. Generally, international human rights law has little teeth, and has little biting effect. Much depends on the internal enforcement mechanisms and procedures, and how a state carries out its international treaty obligations domestically.

The problem

This being the case, Sri Lanka acceded to the OP in 1997. It thereby became a State Party to the OP. However, there is doubt as regards the exact status today — due to the decision of the Supreme Court (SC) in the famous Sinharasa case of 2006.

The problem arose when one Nallaratnam Singarasa petitioned the SC requesting it to review and re-examine his conviction, in light of the views expressed to that effect by the HR Committee in Geneva.

As a preliminary point, it should be noted here that the SC, in taking up the petition for consideration, seemed to have believed that Singarasa’s petition sought to ‘set aside’ the earlier decisions of the Sri Lankan courts of law, including a decision of the SC (in 2000). The SC thereafter proceeded to hold why such a setting-aside was not possible — a point which was not raised by Singarasa (as pointed out by R.K.W. Goonesekara, Senior Counsel, who appeared in the case). This is how the SC approached the matter. 

The SC took into consideration the Declaration made by Sri Lanka at the time it acceded to the OP in 1997. In this Declaration, the Government of Sri Lanka, inter alia, recognised the competence of the HR Committee to receive and consider communications from individuals. In other words, this was a simple reiteration of the position as laid out in Article 1 of the OP.

But it is significant that the SC did not examine/analyse/interpret a single provision or word contained in the OP, in particular the more crucial provision: viz. Article 5(4), as noted above. Rather, it considered only the Declaration.

‘Judicial power’

The SC identified three components of legal significance in the Declaration, the most crucial one being: the recognition by the government of the competence of the Committee to receive and consider communications (this was the third component). Now, the SC proceeded to state that this was a ‘purported conferment’ of a judicial power on the Human Rights Committee at Geneva ‘to vindicate a Public Law right of an individual within the Republic in respect of acts that take place within the Republic.’

What deeply troubles and distresses one is this conclusion to the effect that Sri Lanka’s recognition of the competence of the HR Committee to ‘receive and consider communications’ from individuals amounts to the conferment of ‘judicial powers’ on the Committee. This is somewhat alarming.

A number of questions arise. Could the competence to ‘receive and consider’ communications amount to a conferment of judicial powers? Judicial powers to a body of experts? But what of Article 5(4)? Why didn’t the SC think fit to interpret the word ‘views?’ If the SC had interpreted the word, could ‘views’ amount to something as serious as a judicial decision? These questions remained unanswered.

Thereafter, the SC proceeded to hold that Sri Lanka’s accession to the OP was inconsistent with the provisions of the Constitution (especially Articles 3, 4(c), 105(1), that the accession was in excess of the power of the then President as contained in Article 33(f) of the Constitution, and that the accession does not bind the Republic quo state and has no legal effect within the Republic. 

Addressing the problem

The Singarasa case was decided in 2006. It is 2009 now. One wonders whether a clear answer could be given to the question: what is Sri Lanka’s status concerning its accession to the OP? Any government could have faced problems in grappling with this issue. The Government needs to give much attention to this issue now. Not only because the next EU Ambassador might start shouting ‘OP’. Also because doubts concerning Sri Lanka’s accession to an international treaty is a serious issue.

It’s serious when one considers the fundamentals of treaty law. ‘Accession’ is one of the means by which a state becomes a party to an international treaty. In other words, it is a means by which a state gives its consent to be bound by the treaty.

By acceding to a treaty, a state becomes a ‘party’ to the treaty, and the treaty comes into force for that State Party. If, after having acceded to a treaty, a domestic court of that State Party is to hold that the treaty is not binding upon the State Party, then, something needs to be done; for it amounts to a breach of international obligations.

Enacting domestic legislation

One thing that could be done is to denounce the OP by a written notification addressed to the UN Secretary General, as per Article 12 of the OP. This would however pose problems, politically. Yet, it can be done. One other thing that can be done is to enact domestic legislation which states that the ‘views’ of the HR Committee in Geneva are mere views only and would not have any binding effect.

Such a course of action would be somewhat absurd, immature; because it would be a reiteration of the obvious. Also because the OP is not a treaty that requires the enactment of implementing legislation in order to have effect within the State. Minister Lakshman Kadirgamar didn’t think so, either. And Minister Lakshman Kadirgamar was a statesman ‘steeped in international law.’

So what can the government do? Is revisiting the Supreme Court an option? The President could, under Article 129 of the Constitution, get the SC’s opinion on the matter. The President did ask the question from the SC, in 2008, on a different matter which arose from the same Singarasa case. That was on whether the rights contained in the ICCPR were adequately recognised within the domestic legal framework. The SC answered in the affirmative (having in effect said ‘no’ in the 2006 case). However the President did not pose the OP problem then, and the SC did not get the chance to opine.