Canadian Government’s obligations to Sri Lanka consequent to Ontario’s Bill 104, viewed within concepts of “Diplomatic Protection”, “regionalism versus international law” as well as the “Vienna convention 1961”

By Chandre Dharma-wardana

The provincial government of Ontario passed a bill (Bill 104) implying that a genocide of Tamils occurred in Sri Lanka, and introduced a “Tamil genocide education week” (TGEW) into the school system [1]. This implicit “Genocidal Tag” on Sri Lanka will discourage many entrepreneurs from investing in Sri Lanka, at a time of its dire need.

The bill is part of a continuation of long-standing militancy of the Tamil Diaspora in Canada against Sri Lanka. This Diaspora massively supported the military struggle of the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka [2], even though the LTTE had been designated as ‘terrorist’ by many countries including Canada.

Other Sri Lankans resident in Canada, those outside the activism of the Tamil diaspora, those whose mother language is Sinhalese, and Sri Lankan-Muslims immigrants felt that the TGEW was injurious to them, diminished their dignity and rights as citizens of Canada, or dual citizens of Canada and Sri Lanka. Their children were becoming targets of name-calling and bulling even before the “Genocide education week”. They felt that a provincial government had stigmatised them as members of a “genocidal nation”. Consequently, they mounted a legal challenge to Bill 104, currently before the courts [3].

The Sri Lankans have changed their governments many times over during the separatist wars that took the toll of some three decades. The current government is not even the government that led the thrust against the LTTE. Unfortunately, the Tamil-speaking people under the LTTE had no voice; even minimal dissent was not possible until the elimination of the LTTE, in May 2009. Even after the demise of the LTTE, any dissent continues to be suppressed, as demonstrated by the forced resignation of a distinguished Tamil Anglican prelate who dared to criticise in 2015 the brutal past of the LTTE in Sri Lanka and oppose separatism [4]. The Bishop said that “he was constantly threatened by Tamil Diaspora groups living elsewhere in the world”.

So, while the LTTE killings of its own people [5, 6] and its continued push for separatism are ignored, the Canadian provincial legislature has implicitly condemned Sri Lanka for a “genocide” of Tamils, although no competent authority has recognised such a genocide. The UN Human-rights commissioner, Al-Zeid Hussein had ruled out a genocide in Sri Lanka, as stated in September 2014 [7].

The good name of the current Sri Lankan government, and its capacity to attract foreign investments have been compromised by the TGEW act. Its reputation as a country with very high social indices where democracy has been practiced since the 1930s has been injured by the enactment of the TGEW by the Ontario legislature. While politicians stand discredited for various reasons of corruption and mismanagement, as is the case even with Lanka’s south-Asian neighbours, even the private sector of the country is held to ransom by an injurious act of a Canadian province.

And yet, Sri Lanka and its diplomatic mission seem to consider that it cannot even “appear to intervene” in the politics of the host nation (Canada), especially at the provincial level. Such action is left to the host nation. For instance, if a Canadian group were to desecrate the Sri Lankan flag, the local Canadian Police and the RCMP are expected to act, even without a Sri Lankan complaint.

Given the grave injury to Sri Lanka’s reputation and its capacity to attract investors caused by the implicit “Genocide Tag” contained within the TGEW, with no mechanism for Sri Lanka to defend itself within Canadian soil, the Canadian Ministry of Justice is obliged to step in. The concepts of international obligations discussed here argue for it. Canada’s Attorney General should provide representation for the Sri Lankan government at its courts. Alternatively, Canada should formally inform the Lankan government that Sri Lanka could present itself at the courts as an interested party, although that would be openly avoiding its obligations.

If Canada fails to follow the pitch and substance of the Vienna convention, the concepts of diplomatic protection, and the need to protect international obligations in the face of regionalism, then Sri Lanka should present its plaint to the United Nations and other international legal bodies.

Canadian obligation to intervene, or at least allow Sri Lanka to protect itself.

We consider three concepts in international relations to clarify issues.

The concept of ‘diplomatic

protection’.

The expression ‘diplomatic protection’ if used in its formal sense, as defined by the International Law Commission in its draft articles [8,9,10] implies the following.

“The invocation by a State, through diplomatic action or other peaceful means, of the responsibility of another State for an injury caused by an internationally wrongful act to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility”.

A triter meaning, namely “the informal assistance given by diplomatic missions and consular posts to their nationals” should not be confused with the formal sense of the expression, that we wish to pursue here.

In the present case, Sri Lanka can invoke the responsibility of Canada in regard to the injury caused to its nationals, dual citizens as well as to itself by the enactment of TGEW.

The “Challenge of regionalism on international law and accepted international conventions”.

There has been much discussion [11,12] of the challenges of regionalism to global obligations, universality of right to justice, etc. In contrast, the erosion of the powers of a sovereign state due to the actions of a province or state tend to be considered an internal matter to be dealt with by the sovereign state.

However, the conflict between the center and separatist tendencies in Quebec have generated a hesitancy in Canada to enforce its hand, and avoid engagement, leading to an accentuation of centrifugal forces, e.g., with Alberta moving against “harmful” federalist legislation like gun control. Within such a backdrop, stresses caused by the TGEW to the federal government are of little concern to the Feds. On the other hand, unlike federal-provincial concerns, its impact on Sri Lanka makes it an inter-nation injury similar to de Gaulle’s “vive Quebec Libre”. This is especially hurtful to Sri Lanka because the Genocide Tag also hit it just when its foreign debt became unbearable due to the pandemic, the Ukraine war, and misdirected agro-economic policies [13].

Canada’s obligations under the Vienna convention.

The article 3 (b) of the Vienna convention on diplomatic relations asserts the right of a diplomatic mission to “Protect in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law”. Nevertheless, diplomatic missions work with through the host government. So, it is the Canadian federal government, through its ministries, the Attorney General, etc., who has the obligation to uphold the tenets of the Vienna Agreement in dealing with the injury to Sri Lanka’s interests.

Conclusion.

The publicly available facts regarding the proceedings of the legal challenge to the TGEW act show that the Canadian government has ignored its obligations and taken the “easy way out” by ignoring the actions of the Ontario legislature.

Lord Naseby who concluded a study of the alleged Genocide using classified UK diplomatic dispatches came to the defence of Sri Lanka [15]. The Sri Lankan Government needs to increase its pressure on Canada and remind Canada of its obligations, not only by making representations to the Canadian High Commissioner in Colombo, but also by submissions to the UN, the International Courts of Justice and similar fora. Sri Lanka must act, not just to put the record right, but also to kick-start its collapsed economy. Foreign investors would hesitate to inject capital into the economy of a nation accused of genocide.

[1] The adoption of Bill 104 as the Tamil Genocide Education Week act: https://dh-web.org/place.names/posts/HansardReport-Bill104_05-MAY-2021_L258A.pdf

[2] Report of the MacKenzie Institute, Ottawa (1995); Funding Terror: The Liberation Tigers of Tamil Eelam and their Criminal Activities in Canada and the Western World – The Mackenzie Institute

[3] The legal challenge to the enacted Bill 104; Superior Court hears constitutional challenge to Ontario’s Bill 104 | Law Times (lawtimesnews.com)

[4] Forced resignation of the Anglican Bishop, Rt. Rev. Shanatha Francis, Daily Mirror report, (2015); https://www.dailymirror.lk/60411/gala-bishop-plans-to-resign

[5] Rasalingam, S, Sri Lanka Guardian, (2008); http://www.srilankaguardian.org/2008/10/how-first-class-tamils-promoted.html

[6] Anandasangaree, V., Statement of the General Secretary of the TULF at its annual general meeting regarding LTTE killings of its own cadre at the last stages of the war, Dec. (2008).

[7] Statement of the Secretary General of the UN Human Rights Commission, September (2015); https://www.youtube.com/watch?v=C7bhAkM8PaM

[8] UN Doc. A/CN.4/L 684; Report of the International Law Commission on the work of its Eighteenth Session, 4 … (http://www.un.org/law/ilc/index.htm).

[9] Amerasinghe C.F., Diplomatic protection. OUP, Oxford. (2008)

[10] Denza, E. Nationality and Diplomatic Protection. Neth Int Law Rev 65, 463–480 (2018). https://doi.org/10.1007/s40802-018-0119-4

[11] Starke, J. G., “Regionalism as a Problem o£ International Law”. Law and Politics in the World Community, edited by George A. Lipsky, Berkeley: University of California Press, (1953), pp. 114-126. https://doi.org/10.1525/9780520349568-00

[12] Van Staden, Alfred, and Hans Vollaard, ‘The Erosion of State Sovereignty: Towards a Post-territorial World ?’, in Gerard Kreijen and others (eds.), State, Sovereignty, and International Governance (Oxford, 2002; online edn, Oxford Academic, 22 Mar. (2012), https://doi.org/10.1093/acprof:oso/9780199245383.003.0006, accessed 26 Feb. 2023.

[13] Drama-wardana, Chandre, (2023); https://www.realclearmarkets.com/articles/2023/01/05/the_us_must_learn_from_sri_lankas_green_policy_mistakes_873852.html

[14] Vienna Convention on Diplomatic Relations, (1961): https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

[15] Debate on Sri Lanka in the UK House of Lords, (2019); https://hansard.parliament.uk/lords/2019-02-05/debates/2E1B15B0-E8D5-42AF-B53C-240E0473212C/SriLanka