Sri Lanka Precedent : UNHRC attempting to create a Global Court overriding UNGA/UNSC approval

 

In March 2021, the United Nations Human Rights Council (UNHRC) adopted Resolution 46/1, creating an unprecedented external accountability mechanism for Sri Lanka. This was a significant step beyond from the UNHRC’s original mandate, as outlined in General Assembly Resolution 60/251 in 2006, empowering the Council to only promote human rights through dialogue and cooperation. The 60/251 Resolution did not give the Human Rights Council any judicial functions. Thus, 46/1 Resolution to establish an external mechanism without the explicit approval of the UN General Assembly (UNGA) or the UN Security Council (UNSC) sets a serious precedent. If allowed, it could pave the way for the UNHRC to assume quasi-judicial powers outside of the UNGA/UNSC remit, undermining the principles of state sovereignty and the member ratified procedures for international accountability.

 

1. The UNHRC’s Original Mandate

https://docs.un.org/en/A/RES/60/251

 

General Assembly Resolution 60/251, adopted in 2006, created the UNHRC.

Its role was to promote & protect human rights globally.

 

The 60/251 Resolution was explicit & stated that the Council was not a judicial body & does not possess authority to establish accountability mechanisms akin to international tribunals.

• Para 5(f) of 60/251– The Council shall “promote the full implementation of human rights obligations undertaken by States” – meaning promotion, not prosecution.
• Para 12 of 60/251– The Council “shall not be a substitute for the responsibilities assigned to other bodies” – a clear safeguard against the UNHRC taking on UNSC or UNGA powers.
• Para 4 of 60/251– It “shall address situations of violations of human rights, including gross and systematic violations”– but this is limited to examination and recommendation, not judicial processes.

 

No clause in 60/251 empowers the Council to establish external investigative or judicial mechanisms.

That power lies only with the Security Council (under Chapter VII of the UN Charter) or the General Assembly (under special procedures, such as Uniting for Peace).

If this is so, how is it that the UNHRC & successive high commissioners have been undermining the mandate given & more importantly what has the UNGA & UNSC done about it?

 

Oversight Failure: UNGA & UNSC Silence

If the UNGA Resolution 60/251 (2006) made the Human Rights Council a subsidiary organ of the General Assembly, “The Council shall not be a substitute for the responsibilities assigned to other bodies by the Charter of the United Nations.”

Yet, successive High Commissioners have created extra-judicial mechanisms inside the UNHRC — investigative units and evidence-gathering offices — which function like international courts which were never authorized by the UNGA or UNSC.

The failure lies in oversight:

• TheUNGA has allowed its subsidiary to exceed its mandate.
• TheUNSC, the only body with enforcement power under the Charter, has remained silent.
• Even theFifth Committee has approved funding for unauthorized mechanisms.

The Sri Lanka case exposes this danger: the HRC has repeatedly acted as a parallel global court, without UNGA approval, UNSC mandate, or Charter basis.

 

It is not too late for the UNGA & UNSC to prevent the UNHRC creating this precedent using Sri Lanka as a guinea pig. If not this precedent will allow any country to be targeted through backdoor justice inside the HRC, undermining both sovereignty and the UN system itself.

 

2. Resolution 46/1 against Sri Lanka

 

Resolution 46/1 on Sri Lanka was adopted with only 22 votes in favour, while 11 voted against and 14 abstained. This means 25 members of the 47-member Council refused to support it—more than those who did. The so-called external mechanism was never backed by a true majority, but pushed through on a technicality that excludes abstentions.

22 in favour

11 against

14 abstained

That means 25 members (11 + 14) did NOT support it, which is more than the 22 who did.

 

In plain words: “More members opposed or withheld support than those who voted in favour. The resolution passed only because abstentions aren’t counted in the final tally.”

 

The Resolution gave the Office of the High Commissioner for Human Rights to collect, analyze, and preserve evidence of alleged human rights violations committed during Sri Lanka’s conflict. The resolution granted the UNHRC functions that resemble those of a judicial body. This move bypassed the UNGA and UNSC, raising concerns about the Council’s overreach and the lack of appropriate oversight.

 

3. Oversight and Accountability

 

The implementation of Resolution 46/1 seriously raises questions on existing oversight mechanisms & their lapses.

• Advisory Committee on Administrative and Budgetary Questions (ACABQ)– tasked with reviewing budget and administration – failed to question the legal, financial and structural legitimacy of the new mechanism.
• Fifth Committee of the General Assembly (Administrative and Budgetary Committee)– responsible for approving mandates and funding – did not challenge its extra-judicial nature.
• Office of Internal Oversight Services (OIOS)– mandated to audit legality, compliance and efficiency – has remained silent on the Human Rights Council’s mandate overreach.
• Committee for Programme and Coordination (CPC)– charged with ensuring programmes align with General Assembly resolutions – ignored that this mechanism violates Resolution 60/251.
• Office of Legal Affairs (OLA)– expected to provide authoritative legal advice – offered no opinion on the Council’s lack of judicial authority.
• Secretary-General of the United Nations– the chief guardian of the UN Charter – allowed this usurpation of General Assembly and Security Council powers without intervention.

Together, these failures have enabled the Human Rights Council to assume powers never granted to it, creating a dangerous precedent of unchecked authority within the UN system. If within the halls of the UN, accountability is vague, how can they preach to Member States.

 

4. The Sri Lanka Precedent & implications for other Nations

 

Thus, the external accountability mechanism for Sri Lanka is without UNGA or UNSC approval.

It is setting a dangerous precedent.

 

UNHRC has given itself judicial functions that allows it to target countries suffering internal conflicts weaponizing human rights.

 

• According to Uppsala Conflict Data Program there are 59 active state-based conflicts in 2023
• According to Peace Research Institute Oslo there are 36 countries in conflict in 2024
• According to the Stockholm International Peace Research Institute there are 52 active armed conflicts in 2023.

 

Given that nearly all UNHRC resolutions exceeding the mandate set by GA Resolution 60/251 have been driven by Western nations and their allies, the likelihood of similar extra-judicial mechanisms being imposed on other conflict-prone or anti-Western countries is high. Using the Sri Lanka precedent, over 40 countries could potentially face the same external mechanisms.

 

This would pose a serious blow to established legal & judicial mechanisms in place within the UN system.

 

The Sri Lanka precedent if allowed & imposed by the UNHRC would impact many nations:

 

• Erode State sovereignty – countries lose control over domestic affairs – Westphalia system of state sovereignty would be dismantled.
• Selective targeting – Just as 22 states are deciding on an external mechanism for Sri Lanka, a similar number or less can target other nations
• Undermine established processes: the international laws existing were ratified by States, however the present structure will undermine all such collective agreement.

 

5. How to prevent the UNHRC granting itself supra-powers

 

To prevent the UNHRC from overstepping its mandate & return to the clauses mandated under Resolution 60/251 the following steps should be considered:

 

• Reaffirming UNHRC’s Mandate:The UNGA should reaffirm the original mandate of the UNHRC, emphasizing its role in promoting human rights through dialogue and cooperation, not through judicial functions.
• Enhanced Oversight:Reviewing & strengthening the role of all oversight bodies to ensure that any actions taken by the UNHRC align with the established procedures and receive appropriate scrutiny.
• International Consensus:Ensuring that any significant actions, especially those involving accountability mechanisms, receive broad international consensus through the UNGA and UNSC, without allowing lower bodies like UNHRC to create its own laws.

 

The establishment of an external accountability mechanism for Sri Lanka by the UNHRC without the approval of the UNGA or UNSC should be taken seriously by all UN Member States. This is an ugly precedent created because internal oversight organs have failed to identify the lapses that have been systematically taking place under their very nose. UNHRC assuming judicial powers undermines the principle of state sovereignty and opens doors to using the UN as a punitive body by a handful of nations drafting & passing resolutions with their allies.

 

The UN Member States cannot ignore & allow the Sri Lanka precedent to go through.

 

What happens to Sri Lanka today could happen to any Member State tomorrow.

 

 

Shenali D Waduge