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Sri Lanka: strategic state manipulation of soft law

Gammeltoft-Hansen, Lagoutte, and Cerone question whether it can be ‘presumed that soft law necessarily fulfils a progressive role’ in interpreting and enacting international human rights law. The Copenhagen Process, for example, was framed by a restrictionist agenda from the outset. Experiences in Sri Lanka further underscore that it cannot be presumed that the effects of soft law are necessarily positive, by demonstrating how even soft law frameworks that have been hailed as progressive and are intended to assist states in effectively interpreting and upholding their responsibilities can be twisted by state authorities to limit rather than advance their citizens’ rights.

Sri Lanka has a long and complex history of internal displacement caused by natural disasters and, in particular, the conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE). More than 800,000 Sri Lankans were internally displaced over the course of the conflict, which ended in 2009 with the annihilation of the LTTE in a final government offensive. By late 2013, 760,000 of those who had been displaced in the conflict were registered as having returned to their areas of origin in northern and eastern Sri Lanka.65 However, many IDPs have not actually been able to reclaim their lost homes and lands, and do not enjoy the protections the IASC Framework identifies as critical components of the sustainable resolution of displacement. Nonetheless, by 2014 the Sri Lankan government recognized only 22,000 people as IDPs.[1] [1]

The government of Sri Lanka (particularly under the presidency of Mahinda Rajapaksa, 2005—15) has employed its own ‘take’ on durable solutions discourse, using the term ‘resettlement’ to refer both to the return of IDPs to their homes, and to their relocation in other areas. Actors such as the UN mandate-holders on internal displacement have challenged this discursive move, pointing to the conceptualizations of return, local integration, and resettlement mapped out in the Guiding Principles and IASC Framework, and encouraging the Sri Lankan government to adopt these concepts. However, the Sri Lankan government has resisted this recommendation, and has capitalized on the arguable ‘blurriness’ of soft law standards on some key issues, including what in particular constitutes ‘return’. On the face of it, Guiding Principle 28 gives a clear indication that return entails IDPs voluntarily going back ‘to their homes or places of habitual residence’ in ‘safety and with dignity’. Yet what does this mean when homes or ‘places of habitual residence’ have been destroyed? Is there a right to return to the razed land? What happens in cases in which the displaced were renters, or resided under informal or customary, communal arrangements? In the absence of clear and widely accepted answers to such questions, the government’s elision of return and resettlement has papered over the persistent concerns of those who have returned to their areas of origin but have not been able to repossess their property, and has facilitated the government’s assertion that it has upheld its citizens’ rights through the rapid resolution of the displacement situation.

At present, Sri Lanka does not have a national law or policy on IDPs, although over the course of 2013 the Ministry of Resettlement published and updated a draft resettlement policy; there is no clear timeline for the finalization of this policy. Similarly, at earlier stages the government has engaged in inconclusive policymaking processes ostensibly intended to domesticate soft law principles on IDPs. For example, in 2008, the Human Rights Commission of Sri Lanka drafted a comprehensive IDP protection bill, while the Ministry of Disaster Management and Human Rights convened a national consultation on IDPs, which resulted in the development of a draft durable solutions strategy based on the document that eventually became the IASC Framework. Both drafts were hailed as laudably comprehensive and in line with IDP soft law, and yet neither instrument was ever finalized, much less implemented. Indeed, by 2009, the government was engaged in a final offensive against the LTTE characterized by mass displacement and extreme human rights violations.

The development of IDP policies may in some instances ‘reflect the government having decided to make a strategic rhetorical commitment to the norms embodied within the Guiding Principles with no plan to follow through on implementation’.[3] Orchard identifies two possible reasons for states adopting policies they have no intention to implement.6® First, states may be motivated by reputational concerns; second, they may be persuaded by international organizations and NGOs to engage in the law or policy development process, but without sustained pressure from these organizations, implementation falls by the wayside. The government of Sri Lanka’s behaviour reflects both of these dynamics, but also points to a third, related possibility: states may strategically engage in the development of national policies, based on soft law standards, as a way of deflecting criticism and negative repercussions from donors and other powerbrokers. This goes beyond abstract concerns about reputation to cold calculation of how states under international pressure create the political space necessary to pursue their perceived interests—in this case, the annihilation of the LLTE and the assertion of Sinhalese dominance over the predominantly Tamil north. The reflections of national and international staff working on IDP issues in Sri Lanka bolster this conclusion. Looking back on the 2008 process, for example, some UN staff suggest the international community was ‘being led by the nose’ by the government, which engaged with the UN and international law simply to legitimize itself.69 As the leader of a prominent national NGO expressed it, the government ‘played the game beautifully’; the durable solutions strategy was a ‘masterpiece’ such that upon reading it, ‘You get convinced, wow, Sri Lanka is a model of resettlement^0 However, as the subsequent war demonstrated, the government did not intend to respect these domestic documents, or the international principles on which they were based. Rather, the process was undertaken with a view to ‘pacifying the international community’.71 IDP advocates in Sri Lanka stress that in spite of this experience, international norms on IDPs remain highly relevant, and it is important not to give up hope on the possibility of successfully incorporating them into domestic law. However, this troubled history emphasizes that in the hands of a manipulative government, soft law can play a very different, and much more nefarious, role than its proponents intend.[4] [5]

  • [1] Special Rapporteur on the Human Rights of Internally Displaced Persons, ‘Report of the SpecialRapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani: Mission to SriLanka’, Submitted to 26th Session of the UN Human Rights Council, Geneva, A/HRC/26/33/Add.4, 2014.
  • [2] Special Rapporteur on the Human Rights of Internally Displaced Persons, ‘Report of the SpecialRapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani: Mission to SriLanka’, Submitted to 26th Session of the UN Human Rights Council, Geneva, A/HRC/26/33/Add.4, 2014.
  • [3] Orchard (2014): 117. 2 3 Orchard (2014): 118.
  • [4] In its engagement with the international community, the government of Sri Lanka has oscillated between being completely dismissive and ‘car[ing] exceptionally’. Some suggest that the previousgovernment’s decision to engage with the IDP soft law standards promoted by the international community is attributable to the connections between IDP crises, war crimes, and the spectre of accountability for egregious human rights violations. (Interview, Colombo, 16 Jan. 2013; Interview, Colombo,22 Jan. 2013.)
  • [5] 105,000 houses were destroyed and 208,164 were badly damaged. See: Amnesty International,Nowhere to Go: Forced Evictions in Haiti's Displacement Camps (London: Amnesty, 2013).
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