GSP Plus: Minding our business

The Final Report of the investigation initiated by the European Union under the terms of the GSP Plus concession entitled “The Implementation of certain Human Rights Conventions in Sri Lanka” has been handed over to the Government of Sri Lanka (GOSL).  The GOSL has time till the 6^th of November to respond to the report. Two months from that date- 6^th January 2010- the Council will take the final decision on the extension of GSP Plus to Sri Lanka, which will be effective six months from that date.

According to the statement released by Lutz Gullner, the spokesperson of the European Commission:

The Commission has completed a thorough investigation into the human rights situation in Sri Lanka and in particular whether Sri Lanka is living up to the commitments it made to respect international human rights standards when it became a beneficiary of the European Union’s GSP+ trade incentive scheme which provides for additional trade benefits.

The report comes to the conclusion that there are significant shortcomings in this area and the Sri Lanka is in breach of its GSP commitments.

The crucial significance of the concession has been underscored on numerous occasions by politicians, officials, diplomats and the media. Whilst some have on record downplayed the consequences of losing the concession – most recently the Central Bank is reported to have opined that “…..a potential withdrawal of the GSP plus facility is not expected to have an adverse impact on Sri Lanka’s exports”- the consensus of opinion and conventional wisdom is that it is of pivotal importance in terms of exports and employment.  What then needs to be done to ensure that the concession is retained?

Understandably, given the potential consequences of losing the concession and the euphoria over winning the war, there is a lot of emotion and heat and even anger and disappointment ventilated publicly over the issue.  Some have alleged that the EU intends to punish the GOSL for its conduct of the war; others even suggest that the EU intends to use the concession as a weapon to punish the GOSL for its victory in the war.  Wild accusations have abounded in the context of the patriot/traitor definition of public discourse about sovereignty, imperialism and colonialism.  Given the generation, wittingly or otherwise, of more heat than light on the issue and the crucial importance of ensuring that the concession is retained, it is prudent to remind that the terms of the concession including the possibility of an “investigation” were known and voluntarily entered into by the GOSL.  The issue of sovereignty should have been dealt with at the outset.  Failure to done so may well be attributable to a number of reasons, but we signed and these conditions were in place at the time when we signed.

Thereafter, the arguments of a similar nature were employed in respect of the investigation. The GOSL took the position that it would not cooperate with what was effectively termed an affront to national sovereignty and pride.  Notwithstanding this robust, macho position which no doubt must have made all patriots deliriously happy, the GOSL is now in a position of having to respond to the contents of the report to salvage the concession.  Matters, did not have to come to this sorry pass.

The  investigation was launched into the implementation of human rights conventions and the conventions identified in the Sri Lankan case were the International Convention on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and the Convention on the Rights of the Child (CRC). In the “Report on the findings of the investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka” released by the European Commission together with the Final Report of the investigation, under the subheading “scope and objectives of the investigation”, it is clearly stated that:

Human rights obligations only bind the State and its agents. The State is required to protect individuals within its jurisdiction from violations, including violations at the hands of third parties such as forces over which it exercises or could exercise effective or actual control. The State is under an obligation to respect, protect and fulfil the human rights obligations and to implement those obligations. Implementation includes legislative enactment. It also includes administrative policies and measures to give effect to the commitments. The State is required not only positively to deliver the rights but also to put in place measures to guard against the risk of abuse. This includes, but is not limited to, an effective system of investigation in the event of alleged violations. Only in such a case can implementation be called effective. (Emphasis added).

It goes on to say that whilst the human rights violations of the LTTE and groups not under government control are not dealt with:

The focus on the government’s actions must not be understood as disregarding or minimizing in any way the significance of human rights violations committed by the LTTE or any other group outside government control.

……..the State may also be held responsible or accountable for any other forces over which they exercise or could exercise effective or actual control. Accordingly the acts of the forces under “Colonel” Karuna ( the “Karuna group”), who defected to the government side in 2004, are in general attributable to the State from the start of the period under investigation.  This also applies to other armed groups operating in government controlled areas.

To return to the question of what needs to be done to retain the concession, it is clear that this deals directly with the human rights situation in Sri Lanka and that appeals on compassionate grounds alone may just not work, national hopes and prayers, notwithstanding. The EU spokesperson has been quoted as saying that the Commission, in respect of Sri Lanka’s human rights situation, will be looking for improvement that was:

…sufficiently serious, rapid and verifiable.

What will the regime do? What can it and what should it?  The responsibility for the retention of the concession has always been the responsibility of the regime.

The situation of the IDPs springs to mind immediately.  They are citizens of Sri Lanka who are being deprived of their fundamental rights. They are not being held under any law of the land and in violation of international human rights norms and standards.  Colonel Karuna, non-cabinet minister and vice president of the leading party of the regime and whose actions are also dealt with in the EU report, has been quoted as saying that the IDPs have been screened.  Does this mean they can exercise their right to freedom of movement?  Perhaps they could go and GSP Plus should stay.

And what of the Seventeenth Amendment? Can the constitution be implemented?

GSP Plus is too serious an issue for silence and no public debate on what needs to be done to retain it.   In place of shrill invective there need to be constructive suggestions by the armies of opinion makers and leaders and mature debate over them in respect of what the regime needs to do to retain it. It cannot be allowed to be botched further and it is our business.