By Frances Bulathsinghala/Sunday Observer
Colombo, November 22: “Foreign Policy Perspectives; Sri Lanka First,” is the latest (4th) book published as part of a series, by the Ambassadors’ Forum of Sri Lanka and launched at the Organisation of Professional Associations of Sri Lanka (OPASL). It is an initiative to discuss post-Covid-19 policy in Sri Lanka as related to the international sphere. The latest publication consists of 30 chapters as in the previous volumes.
This edition has many diverse topics, including a summary of Sri Lanka – Myanmar historical relations, an evaluation of the UN at 75 years, an analysis of the foreign policy of the Sri Lankan Government, a reminder of the urgent need for a national policy on bilateral and multilateral agreements, an assessment of US-China differences on intellectual property matters and their implication as well as an appraisal of NGOs rapid response to Covid-19 and post-
Covid-19 development role in Sri Lanka. What is cited here are a few of the themes featured in the publication. This review will be segmented in two more sections due to space limitation.
The book “Foreign Policy Perspectives; Sri Lanka First,” primarily looks at challenges within the Covid-19 context within the political framework in Sri Lanka. The purpose of it being published (especially as a continuing series) is for those, such as policymakers, to become more aware of the vicissitudes of foreign policy and related matters so that they could be better informed when they make decisions.
The publication series is initiated and edited by Sarath Wijesinghe, a renowned Sri Lankan legal expert specialising in public and international law, President’s Counsel, who had served as the Ambassador to the UAE and Israel, and co-edited by Amila Wijesinghe, Barrister-at-Law.
The subject matter, although particularly focused on Sri Lanka, has universal value, as it discusses, through many viewpoints, the diverse roles of world powers, such as the US, China, Russia and the global relevance of institutions, such as the UN after 75 years of existence.
Sri Lanka-Myanmar relations
The book commences by tracing Sri Lanka-Myanmar historical relations by Dr. Hema Goonatilake, the past President of the Royal Asiatic Society of Sri Lanka, who has made a comparative analysis on religion and culture in Southeast Asia and the connections to Sri Lanka.
Writing on Sri Lanka – Myanmar Historical relations, she states that one of the earliest references to Buddhism in Myanmar is in the Dipavamsa and the Mahavamsa where mention is made of the two emissaries Sona and Uttara being sent by Emperor Asoka to Suvannabumi, identified as lower Burma and direct religious and cultural ties commenced between Myanmar and Sri Lanka in the 11th century.
She states that writing down the Tripitaka in the 1st century BCE and its translation into Pali in the 5th century CE, the Sinhala commentaries on the Tripitaka from the time of Mahinda Thera gave Sri Lanka an unparalleled position in the propagation of the Buddha’s teaching in Pali, the lingua franca of the then Buddhist world.
Quoting Chulavamsa records, Dr. Goonatilake states that King of Bagan Anawrahta (Anuruddha 1044-1077) who had conquered lower Burma (Rammanadesa) in 1057 had during the time of King Vijayabahu I (1065 – 1120) sent four envoys to Sri Lanka to bring the Tripitaka followed by envoys carrying a personally written letter in Pali to king Anuruddha seeking his assistance to defeat the Chola invasion followed subsequently by a religious mission requesting for learned Bhikkus from Myanmar to restore the Sangha in Sri Lanka. The reason for this request was because by then the clergy representation had got weakened in Sri Lanka due to the Chola wars.
Mutual prosperity of nations
It is with the 20 senior Bhikkhus who arrived from Burma that the higher ordination of monks was re-established in Lanka, states Goonatilaka. She notes that Sri Lanka became an important centre of Buddhism under Parakramabahu I and that it attracted Bhikkhus from all over South East Asia and a delegation of Bhikkhus from Burma had visited the country, including a samanera by the name of Chapata who received higher ordination from Sri Lankan Bhikkhus, mastered the Tripitaka and remained in Sri Lanka for 10 years.
What is important in writings, such as Dr. Hema Goonatilaka is that they are relevant not only as reminiscences of history but also for current day strengthening of bilateral ties, especially through tourism. It is upto Sri Lankans, in their many roles (in the government and private sector) to take such information and use it beyond academic analysis into workable ideas that relate to the mutual prosperity of nations and the people.
The article, A modern Foreign Policy Post Covid-19 by Mohan Peiris, Permanent Representative of Sri Lanka to the United Nations in New York states that modern diplomacy is experiencing fundamental changes at an unprecedented rate which affect the character of diplomacy and foreign policy as we have known it.
He identifies seven trends (applicable universally) to watch out for during the pandemic which are; the need to monitor the vulnerability of conflict-affected populations, emphasis on international crises management and conflict resolution mechanisms, the priority to mitigate risks, the guarding against political exploitation of the crises (universally applicable), keeping in mind that this time could be a transition of major powers, look for the opportunities to be seized and realising many opportunities for crisis mitigation.
He concludes that the Covid-19 pandemic will make communication where diplomacy and foreign policy making is concerned difficult, but that a spirit of cooperation should be kept intact. Pertaining to Sri Lanka, he emphasises that the pandemic will compel the country to consider how it will posture itself globally in the long term. It is this point that this reviewer feels Sri Lanka should begin a discourse on, keeping in mind our underestimated ancient medical heritage.
It is a fact that we have not got anywhere near looking at how our rich medical heritage – Deshiya Chikitsa/Sri Lankan Ayurveda could pitch us our due place in the world, as during the times of our kings, if we move away from our colonised mentalities. A proper policy to allow the widespread use of Sri Lanka’s indigenous medical heritage when the country needs it most is a vacuum that is hopefully filled in the months to come. If done sensibly, systematically, confidently, such a policy will be a clear winner both in Sri Lanka’s local battle against Covid-19 and strategic international posturing as a country with a unique medical heritage and the first hospital in the world to serve, in true spirit of Buddhist compassion, a masked and vaccine obsessed world.
In the two articles – part 1 and part 2 – The UN at 75: A Glass Half Full or One Draining through the Cracks, Dr. Palitha Kohona, Sri Lankan Ambassador to China and who had served as the Permanent Representative of Sri Lanka to the United Nations in New York from 2009 to 2015 looks back at the 75 years in which the UN has been in existence and does so in a balanced manner.
The view of the UN in the world is varied – which includes extreme rejection/cynicism and extreme praise, (with one senior South Asian academic humorously describing the UN to this writer as a world elite-dominated chessboard like club divided into ‘pawns’ and ‘kings’ and where the ‘kings’ have ‘Unlimited Notions’ about non-Western nations).
It is possible that some may not agree with the overall conclusion of Dr. Kohona that the UN has performed ‘admirably.’ The word ‘admirably’ is an adjective he adopts from a quote in reference to the UN and its performance, by French politician Georges Bidault. Ambassador Kohona’s summing up of the UN’s 75 year legacy could be described as a level headed quest, as the idiomatic expression goes, to not throw the baby with bathwater and salvage whatever the good the international body has done to world peace and elimination of evils, such as extreme hunger.
He revisits the UN Charter of June 26, 1945 signed by 50 States and attributes to the institution the prevention of bloodier wars and more inhumane destruction than we have seen in the past decades. He refers to the prevention of armed conflict by the then two superpowers – the Soviet Union and the United States – and the limiting of their hostility to a ‘cold war’ as a feat accomplished more by the “efforts of sagacious diplomats working in foreign ministries and visionary leaders” rather than the outright efforts of the UN.
He explains the positive UN mechanisms that paved the way for negotiating disarmament and ushering in arms control initiatives, such as the nuclear non-proliferation treaty in 1968, the biological and toxin weapons convention in 1972 and the chemical weapons convention in 1993.
The success of the UN as described has to be taken in the contemporary pandemic framework keeping in mind that Bill Gates had declared to the Munich Security Conference three years ago that genetic engineering could be a ‘bio-terrorist weapon’ that could ‘kill tens of millions of people,’ warning that the next epidemic could be a ‘super contagious and deadly strain of the flu.’
In part 2 of his article under the same title – “The UN at 75: A Glass Half Full or One Draining through the Cracks, Ambassador Kohona asserts that although the UN’s constitution (The Charter) ensures a strict constraining of power, the rights and privileges of those who won the Second World War ‘are well and truly entrenched in a blatantly undemocratic manner in the Charter.’
Dr Kohona analyses the UN’s entry into the area of global ‘peacekeeping’ and concludes that their efforts may meet with more success if their mandates are formulated with better information originating at the ground level and following more structured consultations, including with host governments.
In Chapter 5 under the title ACSA, SOFA, MCC – Once concluded there is no walking away from Treaties, Dr. Kohona highlights the seriousness of rigorous thinking before inking anything related to the treaties, stating that Sri Lanka follows the dualist approach to international law where there is a difference between national and international law, requiring the translation of the latter into the former.
He states that if domestic legal constraints exist, it is for the benefit of the party concerned not to enter into the treaty or else to bring the domestic legal framework in line with the provisions of the intended treaty. He emphasises that once concluded, a party cannot walk away from a treaty as it remains binding and must be concluded according to the provisions agreed upon or amended.
In the article, Is Parliamentary Approval Necessary for Ratification of Treaties?, former UNDTCD legal expert, former Ambassador to Austria and former Permanent Representative to the United Nations in Vienna, Dayantha Laksiri Mendis states that it is a ‘vexed issue’ in Sri Lanka as to whether parliamentary approval is necessary prior to signature, ratification or accession to treaties. He reminds the reader that a Treaty is a legal document that is rooted back in time to around the 3rd century BC.
He states that in modern times, negotiation and conclusion of treaties is regulated by the 1969 Vienna convention on the Law of Treaties and the 1986 Vienna Convention of the Law of Treaties between States and International Organisations and between International Organisations. He states that it is a specialised branch of international law and that those who negotiate and conclude such treaties are diplomats and international civil servants.
Given Sri Lanka’s history of having a rather casual and haphazard approach to such bilateral agreements, Ambassador Kohona and Ambassador Mendis provide good reflection for all politicians and diplomatic appointees. This is especially so for diplomats who are political appointees who may not be too familiar with international conventions, agreements, protocols, letters of exchange and compacts.
The article by Ambassador Mendis is a wake-up call for all those who represent Sri Lanka internationally to take their task seriously to study the legal implications and use the advice and capacity of the country’s experts in this regard.
Ratification of treaties
On the key point of his article as to whether parliamentary approval is necessary for the ratification of treaties, he states that in Sri Lanka, parliamentary approval is not necessary prior to signature, ratification or ascension to a treaty as there are no constitutional or statutory provisions requiring such approval. However, he concludes by recommending that Sri Lanka enacts legislation to make parliamentary approval necessary for certain category of treaties prior to signature, ratification or accession to treaties.
In the article, Drafting Legislation relating to Treatise and Non-Treaty Instruments, Ambassador Mendis begins by reminding that drafting legislation relating to treaties and non-treaty instruments in Sri Lanka and elsewhere is a specialised branch of legislative drafting, known as ‘implementing legislation.’
He explains the meaning of the terms ‘Treaties,’ ‘Non-Treaty Instruments,’ and ‘Implementing Legislation. Treaties, he states, are defined as agreements between States or between States and Inter-Governmental Organisations (IGOs) and between IGOs. He states that the making of treaties is regulated by the 1969 Vienna Convention of the Law of Treaties (1969 VCLT) and that treaties can be bilateral, pluri-lateral or multilateral.
As examples, he notes that the 1987 Indo-Lanka Accord and the 1998 Indo- Sri Lanka Free Trade Agreement are bilateral treaties and that the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) as well as the Indian Ocean Rim Association (IORA), (earlier known as the Indian Ocean Rim Initiative and the Indian Ocean Rim Association for Regional Cooperation (IOR-ARC) are pluri-lateral treaties. He highlights that UN treaties are multilateral and universal in their application and cites the United Nations International Covenant of Civil and Political Rights (ICCPR) of 1966 and the UN Biodiversity Convention of 1992 among others, as being examples of multilateral and universally applicable treaties.
Non-Treaty instruments, he states, are documents which are Memoranda of Understanding (MOUs), guidelines/codes of conduct, resolutions of the UN Security Council, Human Rights Council, which unlike treaties, do not have the consent of the States, but some of them can be legally binding on Member States. He highlights the 2015 Geneva Resolution of the Human Rights Council as a Non-Treaty instrument which applies to Sri Lanka.
He explains the term ‘Implementing Legislation’ that consist of legislative agenda of parliaments around the world, with examples of important implementing legislation being the Human Rights Act 1998 (UK) and the Geneva Convention Act 2006 (Sri Lanka), the International Civil and Political Rights Convention Act of 2007 (Sri Lanka) and among others globally, the Terrorism Suppression Act 2002 of New Zealand.
Ambassador Mendis explains distinct legislative techniques pertaining to legislative implementation of treaties at the national level and concludes that a legislative drafter must clarify any constitutional issues at the preparatory stage, keeping in mind that style, form/language of treaties and non-treaty instruments are different from that of national legislation. He states that the final document is the result of intense negotiation among states where each country is represented by the diplomat concerned in the balancing of national interest with global interest.
(The picture at the top shows the Sri Lankan Ministry of Foreign Affairs)