International Law Implications of Canadian Parliament’s Motion on ‘Tamil Genocide’
Posted on November 26th, 2022

By Dharshan Weerasekera Courtesy The Island

On 18 May 2022, the Canadian House of Commons adopted without opposition a motion introduced by Rep. Gary Anandasangaree recognising 18 May of each year as Tamil Genocide Remembrance Day” (www.parliament.ca). This follows a Bill adopted by the Ontario legislature in May 2021 calling for the week following May 18th of each year to be celebrated as Tamil Genocide education week.” However, the Ontario legislature is a provincial body and its actions do not carry the same weight as a national legislature.

The fact that purported ‘Tamil genocide’ in Sri Lanka has been recognised by the Canadian national legislature carries international implications. Most critics of the motion dismiss it as an attempt by the Canadian lawmakers to pander to a vocal minority. However, recognition by the national legislature of a foreign county that genocide is taking place in Sri Lanka has very serious consequences to this country. Unfortunately, there has been little or no discussion on this issue in local newspapers or academic journals and it is in the public interest to begin one.

In this article, I shall briefly discuss, i) the lack of evidence for Tamil genocide, ii) the gravity of what the Canadian legislature has done , iii) the illegality of the act, iv) address two objections and draw the relevant conclusions

The lack of evidence for Tamil genocide

I have discussed at some length the lack of evidence for Tamil genocide in Sri Lanka in an article titled, Ontario’s Bill 104: Tamil Genocide Education or Mis-education Week?” (The Island, 9 December 2021) and refer the reader to that for more details. However, here I shall focus on a report titled, Canada’s Inadequate Response to Terrorism: The Need for Policy Reform” (2006) by Martin Collacott, a former Canadian High Commissioner to Sri Lanka and also eminent academic. I wish to draw certain inferences from some of Collacot’s observations.

He says: According to the records of the consular section of the Sri Lankan High Commission in Ottawa, more than 8,600 Sri Lankans with refugee claims pending in Canada applied for travel documents to visit Sri Lanka in a single year.” (Martin Collacot, Canada’s Inadequate Response to Terrorism: The Need for Policy Reform,” Fraser Institute Digital Publication, February 2006, p. 34)

He continues: In comparison with Canada, other countries have accepted relatively few refugee claims from Sri Lankan Tamils as they do not consider them to have been persecuted. In 2003, Canada accepted 1,749 Sri Lankan claimants (UNHCR, 2003, table 8) while the rest of the world combined gave refugee status to only 1,160. Canada’s acceptance rate was 76.3 percent, while the average for other countries was 15.8 percent.” (p. 34)

It would be absurd to suppose that people would visit Sri Lanka if they or their relatives are being subjected to genocide here, or at any rate, it casts doubt as to whether such a thing is happening. Meanwhile, the drastic difference in the number of refugee applications of Sri Lankans being accepted in Canada as opposed to other countries, if true, indicates that there is a difference of opinion on the issue of persecution. It should prompt a reasonable person to review and reassess his or her views as to whether Tamil genocide is taking place here.

The point is that information such as that provided by Collacot is readily available in the public domain and it is reasonable to suppose that Canadian lawmakers are familiar with at least some of it. However, there is no evidence that such information has registered with Canadian legislators because there was not a single voice raised in opposition to the impugned motion. In these circumstances, the inference is irresistible that the Canadian House of Commons has adopted the motion with scant regard to the truth or falsity of the allegation of Tamil genocide.

The gravity of the act

The impugned motion is not just a local or domestic concern of Canadians but is pregnant with consequences for Sri Lankans, because of the following reasons. Genocide is the intentional destruction or attempt at destruction of an entire people. Among other things, it is one of the conditions that would permit an ethnic group within a particular country to invoke the right to external self-determination (i.e. secession) under international law.

For instance, in the seminal Canadian case Reference re Secession of Quebec [1998] 2 SCR 217, widely cited in other countries, the Supreme Court of Canada identifies three conditions that would warrant an ethnic/religious/linguistic group within a country to invoke the right to external self-determination: colonialism, alien subjugation or domination and denial of meaningful access to government to pursue one’s political social and cultural development. (Reference, para 138)

Genocide could be brought under the second or third categories. The Canadian House of Commons represents the entire people of Canada, not different interest groups. So, such a body has now placed on record that conditions exist in Sri Lanka for the Tamils to arguably invoke a right to self-determination under international law. It sets a precedent for other countries to also adopt motions or even resolutions unilaterally alleging Tamil genocide in Sri Lanka with scant regard for the truth.

If a significant number of other countries endorse an invocation of the right to self-determination by an ethnic minority in Sri Lanka, this country will eventually have to capitulate to the demand for a separate State. Sri Lanka is a relatively poor country heavily dependent on foreign aid. It cannot afford to alienate the international community, especially its main donors. Therefore, the impugned motion potentially sets the stage for interested parties to advance their ambitions of creating a separate State within Sri Lanka, with the collusion or connivance of other countries.

The illegality of the act

The UN Charter is the basis of international law. Article 2(4) enshrines one of the principles of the UN It states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

The above provision has two parts: a) refraining from the threat or use of force against other States and b) acting in any other manner inconsistent with the purposes of the U.N. I wish to focus on the second limb. Articles 1(1) – (1 (4) of the Charter set out the purposes of the U.N. Article 1(2) states: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take appropriate measures to strengthen universal peace.”

The standard interpretation of the above is that the UN cannot intervene unduly in the internal affairs of nations. More importantly, on the concept of ‘self-determination,’ to the best of my knowledge the international Court of Justice (ICJ) has never yet extended the said concept to cover a right to secession. The court has only held that the concept applies in colonial contexts, non-self-governing territories and that it cannot be used in order to undermine existing state boundaries (See Western Sahara, Advisory Opinion, 1975; Namibia, Advisory Opinion, 1976; and Frontier Dispute case, 1986, ICJ Reports 554, respectively.)

There is a profound difficulty in interpreting the ‘right to self-determination’ to include a right to secession, namely, it could lead to a veritable explosion of demands for statehood by various ethnic minorities. The U.N. is well aware of this problem. A panel of U.N. legal experts point out, If every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace and security and well-being for all would become even more difficult to achieve.” (An agenda for Peace,’ UN doc. A/47/277)

In sum, the UN is not permitted to promote the secessionist ambitions of ethnic minorities. The impugned motion does just that, or at any rate sets a precedent that has the potential to lead to an international endorsement of a right to self-determination of a particular ethnic minority in Sri Lanka. It is inconsistent with the letter as well as spirit of Article 1(2) and hence illegal under international law.

Objections

A critic might object that i) the national legislature is not the government of a country and it is only the government that would come under the purview of international law and ii) the impugned act can be justified under the Responsibility to Protect (R2P) doctrine.

In regard to the first, to the best of my knowledge the Canadian government has not dissociated itself from the act of the legislature or issued a single statement critical of the said act. The well-known legal maxim states, He who is silent appears to consent (Qui tacit consentire videtur)”. Accordingly, one must presume that the Government is either complicit in the act or tacitly approves of it.

In regard to R2P, the doctrine contends that members of the international community have an obligation to intervene in the internal affairs of nations regardless of the U.N. Charter’s customary prohibitions against such action, if there are horrendous abuses taking place in a country and the citizens of such country have no other means of protecting themselves.

However, a prerequisite for the application of R2P is that the abuses in question must first be reported to the Security Council. No such thing as happened in the instant case. In fact, the Canadian legislature has failed to submit their allegations to any international forum whatsoever and give Sri Lanka a chance to respond. It should be noted that, Natural Justice, which includes the injunction, Hear the other side!” is an overriding principle (jus cogens) of international law. In these circumstances, R2P cannot justify the impugned motion.

Conclusion

The national legislature of a country should not get a free pass to flout international law at will. If the national legislatures of other countries also start adopting motions alleging ‘Tamil genocide’ with scant regard to the facts, it would pose a danger not just to Sri Lanka but to all countries facing the threat of separatism. It is in the interest of Sri Lankans as well as all friends of international law to vigorously challenge this act and prevent it from setting a precedent.

(The writer is an Attorney-at-Law)

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