By:  Dharshan Weerasekera

 There has been renewed interest in a paper of mine published in Foreign Policy Journal in March 2013, titled, “The Illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka,”[1] (see Shenali Waduge, “Dharshan Weerasekera exposes Sri Lanka’s External Affairs Ministry’s deficient legal work,” Lankaweb, 29 Nov. 2013).  In that paper I argued that the Secretary General exceeded his authority in commissioning the Report of the Panel of Experts on Accountability in Sri Lanka, which report subsequently served as the basis for two resolutions passed against this country at the United Nations Human Rights Council.

I recommended that one of the principal remedies open to Sri Lanka was to petition the International Court of Justice for an Advisory Opinion on the legality of the aforementioned report.  If the court deemed the report illegal, it would make all subsequent measures based on that report, including the two resolutions, illegal, and of no effect in law.  A number of people have asked me to clarify certain matters with respect to the original recommendation.  In particular, they have asked three basic but practical questions:  Who can file the type of petition I’m suggesting?  What is the procedure involved?  What are some of the specific questions of law that can be asked in the instant case?

I believe it is important to answer the above questions, at least in a perfunctory way, because it is becoming clearer by the day that a legal challenge may be the only concrete option Sri Lanka has to save its neck at the upcoming March-2014 sessions.  Navi Pillay has all but promised that she will push for independent war crimes investigations against this country at the aforementioned sessions.  Mr. David Cameron (no doubt also speaking for his friends the Americans) has promised the same thing.[2]  Finally, in an ominous development, the European Parliament, by resolution, has indicated that it might be time for independent investigations.[3]

To repeat, Sri Lanka’s critics are gearing up to give this country the thrashing of a lifetime at the March-sessions.  It is vital that Sri Lanka have remedies that give it tangible leverage in the international arena, and a pending legal challenge at the ICJ will most definitely give Sri Lanka such leverage.  I shall therefore take each of the aforementioned questions in turn.              

i)  Who can file the petition?

The most important question with respect to my suggestion that Sri Lanka petition for an Advisory Opinion at the ICJ, is whether a country can file such a petition, without going through a UN organ.  Some people have said that there may be a problem with this matter, because both the ICJ Statute and the UN Charter, in the relevant provisions, do not explicitly say that a country, acting on its own, can file for an advisory opinion.

For instance, Article 65(1) of the ICJ statute says,

The court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.[4]

It appears that the provision above contemplates that the request for an advisory opinion must come from an organ of the UN, and there is no indication that a country, acting on its own, can file the petition.  When one looks at the UN Charter, meanwhile, Article 96 says this:

(a)    The General Assembly or the Security Council may request the International Court of Justice for an advisory opinion on any legal question.[5]

(b)   Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.[6]

So, the Charter specifically designates the General Assembly and the Security as the principal organs that can ask for advisory opinions, and says that the General Assembly may authorize any other UN organ to also ask for advisory opinions.  In practice, the General Assembly, the Security Council, the Economic and Social Council, UNESCO, International Fund for Agricultural Development, and others, have made requests for advisory opinions.  That still doesn’t solve our problem:  Can Sri Lanka, as a country, file the petition?  To my knowledge, it’s never been done before, but I believe it is possible.

The authority for a country to petition for an advisory opinion comes from a statute enacted subsequent to the Charter, namely, the “Convention on Privileges and Immunities of the United Nations,” adopted by the General Assembly on 13 February 1946.  Section 30 of this convention says:

If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion in accordance with Article 96 of the Charter and Article 65 of the Statute of the court.[7]

So, clearly, a Member can file the petition without having to go through a UN organ.  Sri Lanka can therefore file this petition on its own.

ii)  Procedure

I shall briefly discuss the procedure involved in obtaining an advisory opinion, and also tackle an important question, namely, whether it would be sufficient for the request to come purely from the President.  The basic procedure for advisory opinions is set out in the Statute of the Court, as well as the Rules of the Court.  In essence, there are three steps involved:  first, an official letter to the court requesting the advisory opinion; second, general notification by the court to all UN Members, and third, special notification by court to selected Members and Organizations, plus the setting of dates for return of written submissions, as well as oral arguments.

Article 65(2) of the ICJ Statute handles the first issue above and says that the questions upon which the advisory opinion is sought are to be laid before the court by way of a written request “containing an exact statement of the question upon which the opinion is requested,” and is to be accompanied by a dozier containing all documents “likely to throw light on the question.”[8]  Article 66(1) handles the second issue, and says that the moment the court receives a request for an advisory opinion the court is to inform all Members of the UN that such a request has been made.[9]

Article 66(2) of the ICJ Statute addresses the third issue above, and says that the moment the court receives a request for an advisory opinion, the court is to make a special and direct communication to select Member States and Organizations the court considers might be able to provide information on the question that the court has to answer.  The court is to set the deadline for the return of submissions by the aforementioned States and Organizations, and also set a date for oral arguments, if necessary.[10]

I’ll next turn to the important question I referred to earlier.  Since a country filing for an advisory opinion is unprecedented, who would actually sign the letter making the request?  In other words, would it be sufficient if the President were to make the request through Sri Lanka’s official UN representative in Geneva?

This is a thorny issue.  Article 104 of the Rules of the Court says:

All requests for advisory opinions shall be transmitted to the court by the Secretary General of the United Nations, or, as the case may be, the chief administrative officer of the body authorized to make the request.[11]

In my view, the President of a country can be considered its “chief administrative officer” for the purposes of the above Article, and should be able to make the request.  I feel, however, that it is wise to be a bit careful at this stage.  For instance, one of the initial concerns the court will have is that if it accepts a petition sent by a leader of a country acting in a personal or unilateral capacity, it will open the floodgates for leaders of countries to file for advisory opinions at the drop of a hat:  the court will be literally swamped with requests for advisory opinions, and will not be able to get any other work done.  No court in the world will be happy with such a predicament.

In my opinion, given the unprecedented nature of the case, Sri Lanka should play it safe.  If the Government is going to file this case, it should first obtain a Parliamentary Resolution.  That resolution would assert the need for an advisory opinion, and ask the President to forward the request to the ICJ.  The Parliament consists of the representatives of the People:  a resolution in Parliament asking for an advisory opinion is therefore the equivalent, in a very real sense, of the entire country asking for the advisory opinion.

Under the above circumstances, when the President makes his request to the court, he will be able to cite the resolution, and in effect say that he is conveying a request made by the people of Sri Lanka as a whole.  I do not think the court will decline such a request.  So much, then, for procedure.  Let’s now move to the most important issues:  the questions that ought to be submitted to the court.

iii)  What are the questions that ought to be asked in the instant case? 

To the best of my knowledge, there are no set criteria for the types of questions that can be submitted for advisory opinions.  A perusal of past questions reveals that they cover issues ranging from the broad and profound, to the mundane and technical.  Just to give some examples, two of the most famous recent cases have been, one, where the General Assembly requested the court to give an opinion on whether, one, the unilateral declaration of Independence by the provisional Government in Kosovo was in accordance with international law (2008)[12], and two, where the General Assembly requested an opinion on the legal consequences of the wall being built by Israel in the Occupied Palestinian Territories (2003)[13].

A petition filed in 1953, meanwhile, was for an opinion on whether the General Assembly could on any ground refuse to honor an award of compensation made by the United Nations Administrative Tribunal.[14]  In short, as I said, the legal issues considered run the gamut from the profound to the mundane and technical.  The only constant seems to be that the questions have to be pure questions of law, and not of fact.

With that background, I shall present my suggestions for the questions that ought to be asked, and then briefly discuss them.  (I emphasize that the following are merely suggestions and not definitive formulations.  The reader can suggest better and more refined questions.)  In any event, here is my choice for a set of questions:

1)  Having regard to the United Nations Charter, any other relevant document, and the record, did the Secretary General commit a fundamentally illegal act when he commissioned the Report of the Panel of Experts on Accountability in Sri Lanka?

2)  If the answer to question (1) above is in the affirmative, what is the legal status of resolutions A/HRC/19/L.2/Rev.1 and A/HRC/22/L.1/Rev.1 passed with respect to Sri Lanka at the Human Rights Council?

3)  If the answer to question (1) is in the negative, what is the scope of Article 2(7) of the United Nations Charter?  Article 2(7) says,

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter.

Who determines if an intervention has taken place, and if so, are there remedies available to the nation so interfered with?

I shall now briefly comment on the above questions, with special regard to possible tactics the UN’s lawyers might use to tackle them.  The first question is obviously the most important.  I believe this is also where Sri Lanka can make the strongest case.  The constraints of time don’t allow me to discuss in detail everything that is wrong with the Secretary General’s report, (I have sketched the main problems in my essay, “The Illegality of UN Secretary General Ban Ki Moon’s approach to Sri Lanka,” and refer the reader to that essay.)  My point here is simply that, I believe the UN’s lawyers will not try to defend the report either:  I think its easier for them to concede that the Secretary General exceeded his authority in commissioning the report, and then to try and defend his actions.

They have two choices:  one, they can argue that the Secretary General did what he did for a good cause, i.e. in the interests of justice, for the sake of human rights, out of compassion, and so on.  Or two, they can argue that whatever problems the report may have, including its possible illegality, it ought not to impact the two resolutions that have been passed against Sri Lanka, because the report was only an insignificant factor in the overall decision-making process at the UNHRC that led to the passage of the two resolutions.  Sri Lanka’s lawyers will therefore have to find ways to counter these to “defences.”

Let’s move to the second question.  I believe the real battle will be fought over this second question:  i.e.  “If the report is illegal, what happens to the resolutions?”  As I have said, the UN’s lawyers will say from the outset that the Secretary General’s report is “insignificant” a “redundancy,” and so forth, and that it in no way played any role in the decision-making at the UNHRC that led to the resolutions.  When they are shown the actual references and citations to the report in the record, they will say those references don’t mean anything because those references are only a minor part of a larger set of other sources of evidence which influenced the UNHRC in its deliberations over the resolutions.

Sri Lanka’s lawyers therefore have to make an air-tight case that the Secretary General’s report was not an incidental or insignificant factor, but in fact the sole basis for those resolutions, at least with respect to certain important matters contained in them, such as the demand for war crimes investigations.  I believe that, in addition to whatever argument Sri Lanka’s lawyers generate to establish the aforementioned case, they will have to be prepared to cite every single instant that the Secretary General’s report was cited anywhere in official UN discussions or documents up to the passage of the March-2013 resolution, so that the court can get a sense of the true influence of the report.

Let’s move to the third question.  Needless to say, if the court gets to the point of answering the third question, it means Sri Lanka would have “lost” the case, in the sense that the court would have already decided that the Secretary General’s report is legal.  In my view, however, morally speaking, Sri Lanka cannot really “lose” this case.  Even if the court rules that the SG’s report is legal, and hence the resolutions valid, Sri Lanka will be in no worse position than it is in now:  i.e. on the verge of having a resolution authorizing war crimes investigations from being passed against it.  At most, Sri Lanka would have been able to stall or postpone this result by a few months.  Sri Lanka, however, would have shown the world that it will not take abuse lying down, and that it is willing and able to take the fight to the critics.  That’s a moral victory.

On the other hand, if the court gets to the point of answering the third question, and answers it, that also is a tremendous moral victory, because it entails an advance for international law, particularly with respect to a long-overdue interpretation of Article 2(7).  One of the biggest problems one sees in international relations today is the tendency among certain powerful nations to intervene in the internal affairs of weaker nations, and to try to do it under the facade of international law, and often using facilities and mechanisms provided by the United National itself.

For instance, if we think about the run-up to the Iraq Invasion, the first thing that the Coalition led by the United States that was urging the invasion tried to do was to get a UN resolution authorizing the invasion.  (Of course, they did not get one, and invaded anyway, but to this day the only legal justification for the invasion, albeit tenuous, is that there was at least one resolution[15] in favour of some sort of meddling in Iraq.)

My point is this:  to the best of my knowledge, the International Court of Justice, the principal legal organ of the UN, has not had an opportunity to comment on the general practice of interventions such as the above, especially with respect to protections weak nations may have under Article 2(7) to resist such interventions, or at any rate to gain compensation in the event of such interventions.  If Sri Lanka files its case, it will be a marvelous opportunity for the court to give a definitive and extended legal assessment with respect to these issues, and this in turn will be of immense help to those nations that, now and in the future, face the prospect of such interventions.

For the above reasons, I believe the Government should waste no more time.  It should pick its team of lawyers and other experts and set them to work preparing the case, and, most important, set the machinery working with respect to getting the Parliamentary Resolution alluded to earlier, which will call on the President to request the Advisory Opinion in question.

Dharshan Weerasekera is an Attorney-at-Law practicing in Sri Lanka.  His book, The UN’s Relentless Pursuit of Sri Lanka, was published in July 2013.