DHARSHAN WEERASEKERA, 19^TH March 2017 

[Author’s note:  The present paper is part of a much longer paper being reviewed for publication in an international journal.  I am posting it here because of the urgency of the hour, given that the Government is planning on co-sponsoring yet another resolution at the UNHRC, a resolution that will reaffirm Sri Lanka’s commitment to resolution 30/1 of October 2015.  Very briefly, l think the co-sponsorship is a mistake, because it binds Sri Lanka to fulfilling the remaining provisions of resolution 30/1, the most dangerous of which is the recommendation to enact constitutional measures to facilitate a ‘political settlement’ for the problems of the minorities, especially the Tamils (Paragraph 16).  The recommendation in the way it is phrased in resolution 30/1 seems innocuous on the face of it, but can be exploited at a future date by Sri Lanka’s enemies to get the international community to endorse a referendum on secession for the Tamils.  Such a thing would be very useful if a pro-nationalist Government were to take over in Sri Lanka, say, starting in January 2020, and the international community needs a tool with which to destabilize the country and topple such Government.  So, it is crucial that the Sinhalayo prepare for the ‘worst-case’ scenario, namely, the moment a new Government is installed in Sri Lanka, the international community including the Tamil Diaspora starting the drumbeat for an international endorsement for a referendum on secession for the Tamils, claiming that the Government has failed to live up to its ‘commitments’ under the co-sponsored resolution.  If the ‘worse-case’ scenario does not materialize, that’s fine, because then the Sinhalayo will have won.  However, if it does, the Sinhalayo need a plan with which to fight it, and the sooner they start devising one the better.]

One of the key goals of the Constitutional Reformists in Sri Lanka has been to provide a political settlement” to the purported problems of the minorities, especially the Tamils.[1]  The international community especially the UNHRC has also been keen that such a ‘settlement’ be reached.[2]  Paragraph 16 of resolution 30/1 not only calls for a ‘political settlement’ in Sri Lanka, but sets out the Council’s view on what the settlement should be, that is, the form and substance of the settlement.   

In this section, I shall discuss how Paragraph 16 might be exploited by interested parties to do mischief to Sri Lanka, for instance, to encourage, incite or foment separatism or secessionism in the country in order to destabilize the country and thereby make it more amenable to control by outsiders, reminiscent of events in Kosovo and South Sudan. For now, I shall not discuss who might want to do this or why, and the probability or likelihood of it happening. (I shall turn to those issues in the next two sections.)

At the outset, it is necessary to address two crucial legal questions, the answers to which help highlight the advantage that Paragraph 16 gives to interested parties that for whatever reason might wish to destabilize Sri Lanka.  The two questions are:

1. Does a resolution constitute interference for purposes of Article 2(7) of the U.N. Charter?

• How is the term matters that fall within the domestic jurisdiction of states,” defined or understood for purposes of Article 2(7)?

I rely on the authoritative book, The Charter of the United Nations:  Commentary and Documents, by Leland M. Goodrich and Edward Hamro (1949) for the answers to these two questions.  The answer to the first question is that, a resolution could constitute interference for purposes of Article 2(7).  For instance, Leland and Goodrich state:

The practice of the United Nations makes it clear, as indeed does the phraseology of Article 2(7), that the word intervention” as used in the paragraph is not to be given a narrow technical interpretation.  While discussion does not amount to intervention, the creation of a commission of inquiry, the making of a recommendation of a procedural or substantive nature, or the taking of a binding decision constitutes intervention under the terms of the paragraph.[3]

A resolution of the U.N. or one of its subsidiary organs contains various recommendations of a procedural or substantive nature—for instance as Paragraph 16 does—that the target of that resolution is expected to carry out.  Therefore, in my view, a resolution would constitute an ‘intervention’ under Article 2(7).

The answer to the second question is that, a matter that falls within the domestic jurisdiction of a state,” is understood as any matter that has not been internationalized in some way or other.  The relevant passage from Goodrich and Hamro is as follows:

The rule of international law that a matter ceases to be within the domestic jurisdiction of a state if its substance is controlled by the provisions of international law, including international agreements, has been accepted [vide Advisory Opinion of the PCIJ in the case of the Nationality Decrees in Tunis and Morocco, PCIJ Publications, Series B.  No. 4][4]

There are two important points in the above that are relevant to Sri Lanka.  First, the form and substance of a political settlement in a country, which under normal circumstances would be up to the citizens of that country to decide and therefore essentially a matter within the domestic jurisdiction of that country, would cease to be so if it is internationalized in some way or the other by being brought under the purview of an international instrument or agreement. 

Second, by necessary inference, if a country were to co-sponsor a resolution, or a impose a resolution on itself, such a resolution would for all practical purposes constitute an agreement” between the country in question and the U.N. organ that ultimately adopts the resolution.  This because, by co-sponsoring, the country is question is voluntarily agreeing to carry out the conditions set out in the resolution.    The picture as to what exactly has happened to Sri Lanka by virtue of Paragraph 16 now becomes clear. 

Under normal circumstances, the UNHRC could not and should not have been able to make recommendations as to the form and substance of a ‘political settlement’ in Sri Lanka.  However, since Sri Lanka co-sponsored resolution 30/1, that bar has now been removed.  Furthermore, since the issue of the ‘political settlement’ is internationalized, the international community can continue to agitate the issue at the UNHRC and other U.N. venues, as long as the original co-sponsored resolution is legally valid. 

Therefore, the protection that Sri Lankans would normally be able to enjoy or claim under Article 2(7) of the U.N. Charter against attempts by the U.N. to intervene in the internal affairs of its members has arguably been removed, in respect of the very important issue of a political settlement” to solve the purported problems of the minorities.  

I shall now turn to the substance of Paragraph 16, and explain how an interested party can exploit it in order to destabilize Sri Lanka.  Admittedly, on the face of it, Paragraph 16 seems quite innocuous.  For instance, a skeptical reader might ask, All that Paragraph 16 seems to be saying is that Sri Lanka should go beyond the 13A  in devolving power to the Provinces, and furthermore, comply with the provisions of the 13A that have already been enacted.  So, what is wrong with that?”

(For those unfamiliar with the 13^th Amendment to the Sri Lanka Constitution, it was enacted in 1987 and established a system of Provincial Councils.  Successive governments have avoided implementing two of the 13A’s clauses, the first authorizing a separate police force for each Province, and second giving the Provincial Councils power over State lands.  Whenever one sees a reference to full implementation” of the 13A it is a call to implement the two aforesaid clauses as well.)  

There is nothing wrong with Paragraph 16 if one forgets the lessons of Sri Lanka’s ordeal at the UNHRC over the past few years.  However, if one considers those lessons there is plenty to worry.  Recall that, the key component of the tactic that the U.S. perfected by experimenting with Sri Lanka is to first level a series of allegations against a country, and then, without ever substantiating those allegations, keep passing resolution after resolution in order to get the targeted country to do what the U.S. wants.

The genius of the tactic is that, no matter what the targeted country does to satisfy the terms of a particular resolution, as long as the U.S. and its allies get a majority of UNHRC members to back a vote on a resolution, they decide whether or not to pass yet another resolution against the targeted country, and what extra conditions to impose.  

Therefore, the conditions have now been created for an interested party operating through the UNHRC to dictate the content as well as pace of a political settlement” in Sri Lanka without reference to or independent of the practical realities that either the Sinhalese on the one hand or the Tamils on the other may be facing at any given time in the course of negations to make various concessions, and the merits of their arguments as to those difficulties.

It is reasonable to suppose that, a problem that led to a thirty-year civil war probably involves complexities that are not susceptible of quick solutions.  The various parties to the conflict are sure to have deep-seated prejudices and fears that need to be genuinely and thoroughly addressed if negotiations are to move forward.

I shall digress a moment at this stage to address an important question.  A curious reader might ask, Is there any particular reason for either the Sinhalese or the Tamils, or both, to suspect that the other is negotiating in bad faith?”  I cannot speak for others, but, as a Sinhalese at least from my point of view there certainly is. 

The constraints of time do not permit to dwell on this matter at length, but, I draw the reader’s attention to the following two remarks by R. Sampanthan, the Leader” of the Tamil National Alliance, the Tamil group that is demanding the political settlement.”  He makes these observations in the course of a seminal speech in March 2012 at an Annual Conference of the Illangai Tamil Arasu Kadchchi (ITAK) the political party under which members of the TNA contest elections.  He says:  

The softening of our stance concerning certain issues, and the compromise we show in other issues, are diplomatic strategies to ensure that we do not alienate the international community.  They are not indications that we have abandoned our fundamental objectives….Our expectation for a solution to the ethnic problem of the sovereignty of the Tamil people is based on a political structure outside that of a unitary government, in a united Sri Lanka in which Tamil people have all the powers of government to live with self-respect and dignity….Our acceptance of this position does not mean that we consider the 13^th Amendment to be an acceptable solution, nor that, in the event of our right to internal self-determination is continuously denied, we will not claim our right under international law to external self-determination.  It only means that this is the only realistic solution today.’[5]

He also says:

The current practices of the international community may give us an opportunity to achieve, without the loss of life, the soaring aspirations we were unable to achieve by armed struggle.’[6]

To the best of my knowledge, no one from the TNA has publicly objected to or rejected Mr. Sampanthan’s sentiments above, which can be taken as evidence that he is expressing the general views of most members of the TNA.  Three things become clear from Mr. Sampanthan’s sentiments.  First, he is quite forthright in admitting that any concession the TNA is willing to make is only a ruse to placate the international community.  Naturally, a Sinhalese person would have a problem with this. 

Second, on the 13^th Amendment, he is saying that his group does not consider the 13A an acceptable solution,” meaning that, even if the Sinhalese agree to implement the 13A completely (as for instance Paragraph 16 recommends) Mr. Sampanthan and his friends might still not be satisfied, and according to him, retain the right to move for external self-determination.”  In other words, no matter what the Sinhalese do to please the TNA, at the end of it they might still ask for a separate State. 

Finally, he is suggesting that his group should exploit the current practices of the international community”—by which he obviously means geopolitics—to gain what they could not gain through force of arms.  Again, a Sinhalese person might be forgiven for having a problem with such a sentiment. 

The following matters are also relevant.  The TNA is generally regarded as having been the political arm of the LTTE.[7]  The LTTE sought to create a separate State encompassing the Northern and Eastern Provinces.  This is exactly the area over which the TNA now wants full internal self-determination.”[8] 

Today, the Northern Province is completely denuded of the Sinhalese and Muslims. In October 1990, the LTTE gave 48 hours notice to the Muslims (the Sinhalese had by then been driven out) to vacate the province on pain of death.[9]  In the Jaffna Peninsula, they were given as little as two hours notice.[10]  But, in the Eastern Province, the three ethnic groups still live side by side in roughly equal proportions.[11]

I leave it to the reader to decide whether, given what happened in the Northern Province, a Sinhalese person would have a legitimate concern as to what might befall the Sinhalese and the Muslims in the East if a group that avowedly shares the soaring aspirations” of the LTTE were to take full control of the area.        

To return, Paragraph 16 permits an interested party, if they can muster enough votes at the UNHRC, to decide a priori what is the best political settlement” in Sri Lanka and the pace at which such settlement” should be pursued, and if at any given time they decide that it is not being pursued in the manner or at the pace they like, regardless of the reasons that the Sri Lankans may give as to why they are having difficulties with negotiations, impose further conditions.

Under the circumstances, just as the series of accountability” resolutions began with a two-paragraph resolution calling on the UNHRC to monitor” the situation in the country, an interested party could obtain a resolution calling on the Council to monitor” the progress of the political settlement,” and in subsequent resolutions ratchet-up the pressure until, claiming that the Government is shirking its responsibilities, adopt a resolution authorizing the Council to intervene in order to bring about the settlement.

In this situation, it is conceivable that an interested party might at some future date move a resolution calling on the Council to endorse a referendum on secession for the Tamils. And if this happens, in my view, it could potentially set up a repeat of the type of events that have transpired in Kosovo and South Sudan.  (I discuss the situations in those countries in Part Eight of this essay.)     

The important point is that, all of this could happen without a consideration of the merits of the arguments that the Government might present as to why the political settlement” has stalled if it has, or rather, in spite of them.   On the other hand, if Sri Lankans had been accorded the protection of Article 2(7) of the U.N. Charter, they would never have had to face this situation to begin with.  So, that is the danger in Paragraph 16.

I shall now turn to the question as to how probable or likely it would be that an interested party will exploit Paragraph 16.  For instance, a skeptical international reader might ask, Is there really an interested party with the means and the motive to do something like this?”  There are at least two:  The U.S. and the U.K.  I shall start with the latter.   

To be continued….

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[1] See for instance, Ranil promises radical constitutional reforms to solve ‘national problem,’” Saman Indrajith, The Island, 21^st January 2015

[2] See for instance, Report of the U.N. High Commissioner for Human Rights, A/HRC/32/CRP.4, 28^th July 2016, www.ohchr.org, paragraphs 8-9; also, Report of the U.N. High Commissioner, A/HRC/34/20, 10^th February 2017, www.ohchr.org,  paragraphs 24-26; also Report of the U.N. High Commissioner for Human Rights, A/HRC/37/23, 25^th January 2018, www.ohchr.org, paragraph 21    

[3] Leland M. Goodrich and Edward Hamro, Charter of the United Nations:  Commentary and Documents, Stevens and Sons, London, 1949, page 120

[4] Ibid, page 120

[5] ‘Text of Presidential Address of R. Sampanthan at the 14^th Annual National Convention of ITAK in Batticaloa,’ www.dbsjayaraj.com, 27 May 2012

[6] Ibid

[7] See for instance, TNA’s response disingenuous, selective and promotes polarization,” Arun Tambimuttu, The Island, 23^rd March 2012, www.island.lk

[8] See for instance, TNA-Parliamentary Election Manifesto, 2015, Full Text,” 26^th July 2015, www.colombotelegraph.com

[9] See for instance, The Quest for Redemption:  The Story of the Northern Muslims,”  The Final Report of the Citizens’ Commission on the Expulsion of the Muslims from the Northern Province by the LTTE in October 1990, Law and Society Trust, 2011 and 2012, www.lstlanka.org

[10] Ibid, Final Report

[11] The Sinhalese – 23%, Muslims – 37% and the Tamils – 34% (Eastern Province of Sri Lanka,” www.citypopulation.de)