DHARSHAN WEERASEKERA, ATTORNEY-AT-LAW

I read with interest an article in The Island of 1^st April 2017 titled, ‘Full Implementation of Geneva Resolution 2015 reaffirmed – GTF.’ The article quotes the GTF as saying inter alia:

‘The GTF cautiously welcomes the unanimous adoption of the resolution ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ (34/L.1) at the UN Human Rights Council (UNHRC).  This resolution in effect reaffirms the full implementation of the resolution 30/1 of 2015.  The fact that the resolution was sponsored by forty seven countries and twenty seven countries spoke at the Interactive Dialogue on Sri Lanka is reflective of the strong commitment of the international community to peace, accountability, justice and reconciliation for all peoples of Sri Lanka.  We are grateful to every one of these countries, in particular to the main sponsors United States, United Kingdom, Montenegro and the Former Yugoslav Republic of Macedonia and all the other countries that worked admirably and consistently in the background to make this outcome possible.’[1]

There are two facts that must always be kept in mind when considering resolution 34/1:  first, the resolution was co-sponsored by Sri Lanka; second, it was adopted without a vote, and this after every effort was made to pass it with a vote, including a formal report of the High Commissioner’s on the progress SL had made in implementing resolution 30/1, and also the ‘Interactive Dialogue’ to which GTF has referred.  (Resolution 30/1 was also adopted without a vote, but on that occasion there was no interactive dialogue.)

In my opinion, on account of the aforesaid two facts GTF’s claim that resolution 34/1 was adopted unanimously is incorrect.  What really happened is that the majority of UNHRC Members by refusing to be drawn into a vote on resolution 34/1 have in effect rejected that resolution in no uncertain terms.  What are the ramifications of this situation to GOSL officials who may be tasked with implementing various provisions of the resolution?  In this article, I shall briefly discuss three matters:

First, whether or not country-specific resolutions of the UN  or its subsidiary organs are legally binding on the targeted country; second, the significance of the fact that resolution 34/1 was adopted without a vote; and finally, given that resolution 30/1 contains provisions that are prima facie inimical to the sovereignty of Sri Lanka, any attempt to implement resolution 34/1 makes the officials concerned vulnerable to the gravest charges involving offences against the State, including treason.

THE GENERAL LEGAL POSITION WITH RESPECT TO COUNTRY-SPECIFIC RESOLUTIONS OF THE UN AND ITS SUBSIDIARY ORGANS

To fully appreciate the gravity of what the GOSL has done in co-sponsoring resolutions 30/1 and 34/1, it is necessary to begin by considering a broader issue, namely, the legal effect of a country-specific resolution of the UN and its subsidiary organs.  In recent days a number of Sri Lankan writers have argued that such resolutions are not legally binding, but only morally binding, because there is no enforcement mechanism for them.[2]

I respectfully disagree with these writers.  In my view, country-specific resolutions of the UN and its subsidiary organs if they are adopted after a vote are legally binding, because of five reasons.  (Three of these deal with statutory provisions, and two with the objection mentioned above about the lack of enforcement mechanisms.)

First, Article 2(1) of the UN Charter establishes the fundamental principle that the nations of the world are sovereign equals.  Among equals, a vote is the best and most reliable means of determining whose views are to be followed.  Therefore, if the members of the UN, either at the General Assembly or any of the UN’s subsidiary organs adopt a resolution against a particular country, it is a formal signal to that country that a majority of the members in the relevant Council wish that country to do such and such.

If the targeted nation is signatory to the Charter, it is legally obliged to comply with what is being asked of it, if it wants to enjoy the came prerogative with respect to other nations, i.e. if the targeted nation wants to join with the international community on some other occasion to request a different nation to comply with a set of requests.

Second, Articles 2(2) and 2(5) of the UN Charter say inter alia:

‘All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter,’[3]

And,

‘All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter.’[4]

Both the above provisions clearly enjoin UN Members to cooperate fully in advancing the wishes of the UNO, and a resolution duly voted on is a valid expression of the wishes of the majority of members of the UN at any given time.  Therefore, the above two provisions impose a legal obligation on a nation targeted by a country-specific resolution to comply with it.

Third, and this relates to the UNHRC specifically, Paragraph 9 of the UNHRC Charter ( UNGA resolution 60/251) says inter alia:

‘[Members] elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic mechanism during their term of membership.’[5]

The injunction that Members shall cooperate with the Council imposes an imperative obligation on Members – an obligation in addition to the one deriving directly from the UN Charter discussed earlier – to do everything in their power to facilitate the work of the Council.  Since resolutions are one of the means through which the Council carries out its work, the foresaid provision must be interpreted as imposing a legal obligation on Members targeted by country-specific resolutions to comply with them.

I shall now turn to the objection that country-specific resolutions are not legally binding, because there is no enforcement mechanism for them.  In my view, the objection is untenable because of two reasons.  First, it is not technically correct to say that there is no enforcement mechanism.

For instance, Paragraph 8 of the UNHRC Charter says that the Council may suspend the membership of countries that habitually violate human rights.[6]  A persistent refusal to follow the wishes of the Council, where such wishes have been conveyed by way of resolutions, can be considered as a habitual violation of human rights, especially if the purported purpose of the resolutions is to protect human rights in the country in question.

Second, the fact that the UNHRC or some other subsidiary organ may not have a specific enforcement facility does not mean that they cannot generate one if circumstances so warrant.  For instance, nothing in the UNHRC Charter, or for that matter the UN Charter, prohibits UN Members from cooperating in devising punitive measures against any particular Member that persists in thwarting the collective will of Organization.

Thus, the UN and its subsidiary organs can take action against a recalcitrant Member that refuses to comply with a country-specific resolution.  For the aforesaid reasons, I reiterate that the general position with respect to country-specific resolutions, if they are adopted after a vote, is that they are legally binding on the targeted country.  Now let’s turn to resolution 34/1.

THE SIGNIFICANCE OF THE FACT THAT RESOLUTION 34/1 WAS ADOPTED WITHOUT A VOTE

Normally, if a UN Member abstains from a country-specific vote, it means that that Member neither supports nor rejects the resolution in question, in other words, remains neutral in the matter.  But, what happens when a Member is asked to vote on a country-specific resolution that has been co-sponsored by the target nation, which is to say, where the targeted nation has in effect accepted the charges against it?

In such a situation, in my view, constraints imposed by the UN Charter prevent UN Members that disagree with the resolution in question from rejecting it outright.  The most they can do is to abstain from voting.  This is because of the following reasons.

Article 2(7) of the UN Charter prohibits the UNO from interfering (unfairly) in matters that fall within the domestic jurisdiction of States.  Therefore, if a State willingly accedes to a resolution that contains provisions inimical to its sovereignty (which is prima facie a matters that falls under the domestic jurisdiction of that State) Article 2(7) would prevent the international community from meddling in the matter until the State concerned first decides to reject the resolution in question.

To digress a moment, to the best of my knowledge, in the private law there is no duty on an individual to prevent a person who is about to undertake some risky venture from pursuing such venture if they wish to do so:  the only duty is to act in such a manner that one’s own actions do not cause harm to others.  It seems to me that this idea applies just as well if not better in international law, to wit:

There is no obligation on the international community to prevent a country from going down a certain path that in all likelihood will cause it harm, if that country itself willingly chooses to take that path:  the only obligation on members of the international community is to order their affairs in such a way that they don’t contribute to the harm.  To do otherwise would be to impose their will on a country which for whatever reason has decided to take a path other than the one they think it ought to take.

For the aforesaid reasons, by letting resolution 34/1 be adopted without a vote, which is to say by abstaining from voting, the majority of UNHRC Members have unmistakably signaled that they in fact disagree with the resolution.  In short, they have rejected it. Unlike for resolutions adopted after a vote, resolution 34/1 cannot be considered as legally binding on Sri Lanka.

If the GOSL proceeds to implement the resolution, (and it is not in dispute that the resolution contains provisions inimical to Sri Lanka’s sovereignty) it will be doing so entirely at its discretion.

A critic might say that what I have presented above is only an opinion and that if ten lawyers are asked their views on this matter, that ten different opinions may be proffered.  That is quite true.  However, the GOSL, has the means to obtain a definitive legal opinion, in this case from the Supreme Court.  Article 129(1) of the Constitution permits the President to invoke the Consultative Jurisdiction of the Supreme Court.  Only the President, as head of the Government, has this capacity.

Therefore, if the GOSL chooses not to obtain a definitive opinion on the legal ramifications of resolution 34/1, it does so at its peril.  GOSL officials will not be able to say later that they did not know the true position of the law.  As the well known legal maxim says:

Ignorantia juris no excusat  (Ignorance of the law excuses no one)

TREASON

To the best of my knowledge, to commit treason is to wage war against one’s country or to aid and abet the enemies of one’s country to wage war against it.  For instance, the legal definition treason is usually given as:

‘Betrayal of one’s own country by waging war against it, or by consciously or purposely acting to aid its enemies.’[7]

Traditionally, it has been considered that treason is only possible when a country is at war, that is to say when active fighting is going on.  For instance, this is the sense in which if I’m not mistaken treason is defined in the Sri Lanka Penal Code.

However, when the Penal Code was first written, phenomena such as separatism, and terrorism, were not widespread realities in Sri Lanka or for that matter in the rest of the world.  In my opinion, given current realities (both in SL as well as in other countries) the notion of ‘war’ can be expanded with good reason to cover acts done by members of separatist groups in the course of a protracted separatist conflict, including during periods where there is no active fighting, to achieve their ultimate goal.[8]

In this regard, it is crucial to consider the following matter also.  Article 3 of the Sri Lanka Constitution which lays the legal foundation for the document says that the sovereignty of the country is in the People and inalienable.  Sovereignty and territorial integrity are inextricably linked, since to compromise the territorial integrity of a country is to diminish the territory over which the sovereignty of that country extended.

Therefore, to compromise the territorial integrity of a country is to compromise if not destroy its sovereignty.  To attempt to destroy the sovereignty of a country is to wage war against it.  Therefore, whether or not as a general matter a protracted separatist conflict can be considered a ‘war,’ acts committed by separatists even during periods where there is no active fighting, if such acts contribute to or facilitate the achieving of their ultimate goal, can be considered as acts of war against this country.

The Global Tamil Forum (GTF), as is clear from even the short quote given at the start of this article, is a group committed to creating a separate Tamil State within Sri Lanka.  (I would be happy to hear them deny it.)

To digress a moment, the GTF’s separatist credentials are evident in the fact that, even in the short paragraph quoted earlier, one finds them peddling the notion that there are ‘peoples’ of Sri Lanka – ‘The fact that the resolution was sponsored by forty seven countries…is reflective of the strong commitment of the international community to peace, accountability, justice and reconciliation for all the peoples of Sri Lanka.’

The idea that there are two ‘peoples’ in Sri Lanka, namely the Tamils and the Sinhala, rather than a single people, and the related notion that there are two ‘nations’ corresponding to two identifiable regions within this country which are the exclusive historical homelands of those two peoples, has been the classic refrain of Tamil separatists from the mid 1940’s.

To digress a moment, the basic premise of the Vaddukoddai Resolution of 1976, the founding document of the militant struggle for Tamil Eelam, is the notion that there are two peoples in this country and two nations, the Sinhala Nation and Tamil Eelam, and it is the duty of Tamils to reconstitute the latter.[9]

To the best of my knowledge, the above premise has been accepted by all Tamil separatists, both armed as well as unarmed, since then.  (Again, I would be happy to hear anyone, say, in the TNA, the Ilangai Tamil Arasu Kadchi (ITAK), GTF, or any of the other Tamil groups now in vogue officially renouncing the two peoples – two nations idea.)

The point is that, GTF, LTTE, TNA, ITAK, and their ‘allies’ have never given up the idea that there are two peoples and two nations within Sri Lanka, which is to say they are  all committed separatists.  They all want the same end:  Tamil Eelam.

As explained earlier, the GTF is clearly happy with resolution 34/1.  It is safe to presume that they are happy because the resolution helps them get closer to their goal.  Since the GOSL has co-sponsored resolution 34/1, if one follows the logic of Article 3 explained earlier, the conclusion is inescapable that the GOSL, or at any rate the officials directly responsible for the co-sponsorship, have aided and abetted the enemies of this country to get closer to their goal.

I explained earlier that, on account of resolution 34/1 being adopted without a vote, the GOSL is under no legal obligation to the UN or the UNHRC to implement the said resolution.  Under the circumstances, any step GOSL officials to implement any of the provisions of the resolution must be considered as a deliberate act on the part of each of those officials to aid and abet the enemies of this county to get closer to their ultimate goal.  That, as far as I’m aware, is treason.

[1] The Island, 1^st April 2017

[2] See for instance, ‘Western remedies for Sri Lanka’s ills:  Lessons from history,’ Dr. Palitha Kohona, The Island, 20^th March 2017

[3] Article 2(2)

[4] Article 2(5)

[5] UNGA resolution 60/251, 3 April 2006, para 9

[6] Ibid, para 8

[7] www.legal-dictionary.thefreedictionary.com

[8] See for instance, ‘Law Commission Report:  Offences against the National Security,’ Law Commission of India, 43^rd report, 31^st August 1971, www.indiakanoon.org, para 1.4, and also, ‘Another Meaning of Treason:  The legacy of the Red Fort trials in International Law,’ Kirsten Sellars, www.cuhk.edu.hk

[9] See for instance, Vaddukoddai Resolution of 1976 (full text), www.sangam.org