Features
International Law Implications of Canadian Parliament’s Motion on ‘Tamil Genocide’
By Dharshan Weerasekera
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)
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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