Sri Lankans have been experiencing unprecedented turmoil regarding the legislative, executive and judicial functions for a few weeks now. The immediate root-cause of this crisis is the removal of the former Prime Minister and appointment of a new one by the President in exercising his constitutional powers under the constitution. It is essentially an internal matter and the Sri Lankans possess the required stamina and institutions to resolve it.
However, it is cogently evident that a few countries self-styled as ‘international community’ attempt to interfere with this internal matter callously disregarding the peremptory principles of customary international laws and treaty laws. The objective of this article is to examine the universal principles of international law and to analyze whether the conduct of some countries amount to violation of those rules in the current Sri Lankan context.
The battles to protect sovereignty
Sri Lanka is an independent sovereign country. Three western powers denied the Sri Lankans their freedom and sovereignty for more than 500 years from 1505 to 1972. In 1972, Sri Lanka regained the freedom and became a Republic.
Sri Lankans fought fierce battles against those powers, i.e. battles against Portuguese at Mulleriyawa,Kotte,Danture, Malwana and Gannoruwa from 1521-1638 and in 1762 and 1765 against Dutch.
The great rebellions at Uwa-Wellassa and Matale in 1818 and 1848 against the British provide ample evidence of their bravery and patriotism with which they fought. It inspires the present generations to resist any such illegal interventions.
Sri Lankans won some of those battles while others were mercilessly crushed. For example, the British Governor Robert Brownrigg’s infamous order; “Slaughter every man, woman, and child, including babes suckling at the breast” given to Maj. Gen. Hay MacDowell in 1818, speaks in volumes the most barbarous manner of suppression of those legitimate uprisings.
These uprising arose as the British breached the Kandyan Convention of 1815. They dishonoured it in spirit and substance which led to Uwawellassa peoples’ uprising in 1818.
This is what the British GA in Badulla; Herbert White; reported to London after crushing it.
“It is a pity that there is no evidence left behind to show the exact situation in Uva in terms of population or agriculture development after the rebellion. The new rulers are unable to come up to any conclusion on the exact situation of Uva before the rebellion as there is no trace of evidence left behind to come to such conclusions. If thousands died in the battle they were all fearless and clever fighters. If one considers the remaining population of 4/5 after the battle to be children, women and the aged, the havoc caused is unlimited. In short the people have lost their lives and all other valuable belongings. It is doubtful whether Uva has at least now recovered from the catastrophe.”
It is clear from the above evidence the magnitude of the genocide that the British troops committed in Sri Lanka.
The foreign interventions have taken place during the periods where there were internal political instability and clashes among local leaders for power, e.g. Portuguese captured power in Kotte when the three sons of Vijayabahu IIwere fighting for power. That history repeats now.
The United Nations and peremptory principles of international law
UN Charter created in Articles 2(1)-(5) legal obligations - jus cogens - among individual states;
(a) The principle of sovereign equality
(b) Member- states should observe those obligations in good faith.
(c) Member-states should resolve international disputes peacefully without endangering international peace, security, and justice.
(d) The principle against the use of threat or force against member-states.
(e) Member-states should refrain from giving assistance to any state against which UN is taking preventive or enforcement action.
(f) Non-member States should act in accordance with these principles as may be necessary for the maintenance of international peace and security.
(g) The principle of non-intervention with the internal affairs of member-states.
Principles of sovereign equality and non-intervention
The principles in (a), (d) and (g) above have been further fortified through UN resolutions and international treaties, i.e. Two Vienna Conventions on Diplomatic Relations, 1961 and Consular Relations 1963, and Rome Statue of International Criminal Court etc.
General Assembly Resolution 2625 stipulates that “no state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of another state.”
Also Article 2(7) forbids the UN itself from interfering with domestic matters of any State.
Article 3(1) of the Vienna Convention, 1961 specifies functions of diplomatic officials as;
(a) Representing the sending state in the receiving State.
(b) Protecting the interests and citizens in the receiving state to any limits admitted and permitted by international law.
(c) Negotiating with the government of the receiving state.
(d) Ascertaining with all the legal methods, any circumstances and developments occurring in the receiving state and reporting them to the government of the Sending State.
(e) Promoting friendly relations between the sending state and the receiving state and developing relationship in the fields of economy, culture and science.
Article 9 provides that diplomatic staff must not interfere with the domestic affairs of the receiving country. The receiving State has powers to declare such officer persona non grata (unwanted person) without assigning any reason.
The only exception to the non-intervention rule is acting in self-defence against an armed attack (Article 51).
Some countries hurriedly issued strong statements over the crisis. Are their concerns genuine? Do they make those statements in good faith? Are they our real diplomatic friends? Or do they all have a common objective with common agenda?
Judgements International Court of Justice (ICJ)
Let us now examine a few judgments of ICJ to understand the implications of non-intervention principle.
Nicaragua v United States of America;the Ambassador of Nicaragua filed this case in April 1984 against the USA. The allegations against the USAinter alia consist of the efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua and intervention into domestic affairs.
The US counter-argument was that the Nicaraguan Government had taken “significant steps towards establishing a totalitarian Communist dictatorship”.
The ICJ held that adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty on which …rests, freedom of choice of the political, social, economic and cultural system of a State.
ICJ further held that it cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.
Accordingly, the ICJ defined state sovereignty as the freedom of states to freely decide on choice of a political, economic, social and cultural system. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.
The interference into domestic affairs may take different forms. The common method is making damaging statements on domestic affairs. The following incidents illustrate this point.
- In 1952, US ambassador to the Soviet Union, George F. Kennan, was declared persona non grata on making statement linking them to Nazi Germany.
- In 1991, President R. Premadasa declared the British High Commissioner David Gladstone a ‘persona non grata’ because he was involved in the local elections.
- In 2007, the Sudanese government expelled the Canadian Chargé d’affaires to Sudan, Nuala Lawlor, due to her call for the release the opposition leaders.
- Serbia expelled ambassadors of Montenegro and the Republic of Macedonia after these countries recognized the independence of Kosovo in 2008,
- In 2010, President Hugo Chavez expelled US ambassador to Venezuela Larry Palmer due to his damaging comments on Venezuela’s military.
- US expelled Chargé d’Affaires at the Syrian embassy in Washington recently.
- Also, Malawi expelled UK ambassador after Wiki Leaks exposed his disparaging comments on the President of Malawi.
Intervention into SL’s Domestic Affairs
Some countries hurriedly issued strong statements over the Sri Lankan crisis. Are their concerns genuine? Do they make those statements in good faith? Are they our real diplomatic friends? Or do they all have a common objective with common agenda? Do those statements amount to threats?
The most appalling thing is that those states maintained pin-drop silence when the former regime-violated the constitution, robbed the central bank, postponed the local government and provincial council elections, interfered with the independence of judiciary, created ethnic tensions by deliberately adopting discriminatory state policies and conspired to assassinate the President with the help of national law enforcing authorities and foreign powers etc.
Statements by Foreign States
Let us now analyze relevant parts of the statements to understand their intention and to examine whether they amount to violation of non-interference, non-use of threats and sovereign equality principles.
(1) USA -”….We call on the President, in consultation with the Speaker, to immediately reconvene parliament….. “
(2) UK - …….Iurge President Sirisena, in consultation with the Speaker, to reconvene the parliament immediately ………”
(3) Australia - “Australia has expressed its ….disappointment with President Sirisena’s decisionto dissolve the Sri Lankan parliament on 9 November……”
(4) Canada - “Canada is gravely concerned by the president of Sri Lanka’s decision to dissolve Sri Lanka’s parliamet, the dismissal of the country’s prime minister and the proroguing and dissolution of parliament, run counter …..”.
Also, ambassadors of those countries participated in a meeting called by the ousted prime-minister and speaker.
Conclusion
Can those statements be construed as friendly and advisory? Or do they sound coercing and threatening? Do the demands made in those statements qualify to be interpreted as intervening into domestic affairs and violating the principles of sovereign equality by coercions when considered in the light of purposive principles of interpretation?
The obvious answer to all those quarries is in the affirmative.
The author is an Attorney-at-Law and Senior Lecturer - Head of the Department of Legal Studies, The Open University of Sri Lanka.
Email: rdarmasirie@gmail.com
