Shenali D Waduge

We notice an alarming pattern directed at sovereign nations who are being pressured both directly & indirectly to amend long-standing legal, moral & social frameworks to accommodate liberal ideologies & redefine gender, marriage, family that directly opposes & conflicts with their constitution, culture, religion & societal foundations. These demands are not grounded in any treaty language or ratified by member states but brought forward as obligations with no discussion. These are nothing but soft law instruments, non-binding resolutions, re-interpretations by advisory bodies & special mandate holders operating beyond the scope of their original mandate. This clearly undermines principles of sovereignty, and legality of treaty law. Ideologically driven norms cannot be imposed without consent or legal mandate especially when the aim is to dismantle time-tested social structures, weaken morality of communities & erode the identity & dignity of the individual that the UN was legally tasked to protect by member states. It is time to return to ratified treaty law. Respect for sovereign constitutions, culture & religions of States are non-negotiable while national jurisdiction is inviolable in matters concerning public morality, family & child protection.

It is clear that entities within Sri Lanka’s administrative system are being lobbied & subject to soft-law instruments that feverishly seek to amend or repeal existing law to accommodate non-binding, unratified ideological driven re-interpretations by UN bodies like OHCHR, UNHRC/UPR.

Therefore, the entities like the Justice Ministry, AG’s Dept, Legal Draftsman Dept & associated entities are kindly requested to peruse the following:

Treaty-Based Foundations of International Obligations

Multiple ratified treaties, to which Sri Lanka and many states remain parties, clearly outline fundamental principles:

• UN Charter – Article 2(7)
States retain full authority over domestic affairs, free from external interference.

• Universal Declaration of Human Rights (1948) – Article 16(1–3)
Birthright marriage between men and women; recognition of the family as a natural, fundamental social unit deserving protection.

• ICCPR (1966) – Article 23(1–3)
Explicit guarantee: men and women of marriageable age” may marry and found families, with free and full spousal consent.

• ICESCR (1966) – Article 10(1)
States must provide maximum support and protection for families, especially regarding child welfare.

• Convention on Consent to Marriage & Registration (1962/1964)
Marriage requires free and full consent, within the context of male–female unions.

• Convention on the Rights of the Child (1989) – Preamble & Article 18
Reaffirms the family as the natural environment essential to childhood development and care.

• Vienna Convention on the Law of Treaties (1969) – Article 28
Treaties cannot be applied retroactively, nor can they be reinterpreted beyond the expressed and ratified text.

Clearly, these legal instruments form the solid foundation upon which Member States have legally bound themselves—regarding marriage, family, rights interpretation, sovereignty, and cultural respect.

Nevertheless, since 2011 UN bodies have seen fit to re-interpret & introduce new norms & coerce countries to adopt them.

Recent actions by bodies such as OHCHR, UNHRC, UPR mechanisms, and UN Special Procedures are evident of drastic changes that conflict with the original ratified mandates:

• Sexual Orientation and Gender Identity (SOGI)

• HRC Resolutions 17/19 (2011)
• 27/32 (2014) and Independent Experts instituted via non-binding resolutions.
•  UPR Recommendations
  Pressuring governments to amend domestic laws involving gender identity, family structures, and sexuality—without treaty basis.

These are policy positions, not legally binding extensions of rights agreed upon by sovereign states. They risk usurping state prerogatives and compelling nations to act contrary to their constitutional, cultural, or democratic processes.

Sri Lanka’s Justice Ministry, AG’s Dept & associate entities must know that UN bodies like OHCHR, UNHRC Resolutions & UPR recommendations are only policy positions – they are not legally binding obligations. Their interpretations do not constitute treaty law. They cannot force sovereign nations to legal commitments or legal amendments of national laws. National laws need to be only amended if Sri Lanka or other UN Member states ratify through proper constitutional & parliamentary procedures.

No sovereign government is legally bound to amend its domestic legislation to accommodate interpretations that fall outside the scope of ratified treaty obligations. Such attempts constitute the usurping legitimate state prerogatives by compelling countries to adopt positions that conflict with their own cultural values, religious beliefs, public morality provisions & child protection frameworks. The Ministry of Justice, the Attorney General’s Department, and relevant policymakers must be clearly aware of this legal distinction.

What Sri Lanka’s legal pillar needs to understand is that in international law only State Parties can create binding obligations through ratifications – not entities like UNHRC/OHCHR. Non-binding resolutions & recommendations are at the discretion of sovereign states.

Domestic constitutional supremacy prevails & must prevail & Sri Lanka’s legal pillar is bound by that specially to protect public morality, family law, and legal definitions of sex and marriage. The SC determination on the Gender Equity Bill makes this clear.

This means the following demands directed at Sri Lanka calling to decriminalize homosexuality is non-binding.

April 2023 – UN Committee on the Rights of the Child

In reviewing Sri Lanka’s 5th & 6th periodic reports, the UN Committee on the Rights of the Child urged the government to:

• Repeal Sections 365/365Aof the Penal Code (that criminalized homosexual acts)
• Combat discrimination and harassment based on sexual orientation
• Ensure perpetrators of violence against LGBT individuals are brought to justice

Sri Lanka reportedly accepted these recommendations, pledging legal reform to align with international standards” (Sri Lanka should have known that it was legally not bound to accept the recommendations)

February 2023 – Universal Periodic Review (UPR)

At the 42nd UPR session, Norway and other states recommended Sri Lanka:

• Repeal Sections 365/365A
• Decriminalize consensual same-sex relations and amend the Vagrants Ordinance

January 2022 – OHCHR & Human Rights Watch

• OHCHRflagged Sri Lanka’s continued criminalization of homosexuality as inconsistent with its human rights obligations.
• Human Rights Watchechoed the call for decriminalization and removal of discriminatory policing practices.

Mid‑2010s – UPR and HRC Involvement

Earlier UPR cycles (2012, 2017), Sri Lanka received—and reportedly rejected—recommendations to:

• Decriminalize homosexuality under Sections 365/365A

However, in 2016, Sri Lanka voted in favor of creating the UN’s Independent Expert on SOGI, aligning with broader SOGI rights advocacy at the UNHRC
 

Date	UN Body / Mechanism	Demand to Sri Lanka
2012	UPR (first cycle)	Recommendation to decriminalize homosexual acts
2016	UPR (subsequent review)	Repeat decriminalization recommendation
2016	UNHRC vote	Support for establishing SOGI Independent Expert
Jan 2022	OHCHR & HRW Reports	Highlight law violations; call for reform
Feb 2023	UPR 42nd Session (Norway)	Strong call to repeal Sections 365/365A
Apr 2023	UN Child Rights Committee	Formal call to repeal, protect LGBT children

What Sri Lanka & in particular every arm of the Judicial pillar from Justice Ministry to AG’s dept need to first realize is that these recommendations to legalize LGBTQIA are NON-BINDING.

Sri Lanka’s Govt may accept, reject or note them.

The 2024 Gender Equity Bill ruling by Sri Lanka’s Supreme Court clearly states Sri Lanka’s legal, social, religious & moral position. This does not need to be reversed.

The Ministry of Justice, Attorney General’s Dept or even Sri Lanka’s Parliament are NOT LEGALLY OBLIGATED to legislate on issues based solely on UN recommendations unless they pass procedural formalities & are legally ratified.

There is NO INTERNATIONAL LEGAL COMMITMENT to legalize homosexuality.

Shenali D Waduge