Appeal to Sri Lanka’s Judiciary: Respectful Submission on the Legal Status of SOGI-Related International Guidelines and Ratified Treaties in Gender-Based violence Law

Appeal to Sri Lanka’s Judiciary: Respectful Submission on the Legal Status of SOGI-Related International Guidelines and Ratified Treaties in Gender-Based violence Law

Your Ladyships / Lordships,

This submission seeks judicial guidance on distinguishing between legally binding treaty obligations and non-binding international policy frameworks operationalized in Sri Lanka’s gender-based violence programmes.

The purpose of this submission is not to oppose international engagement, but to seek constitutional and legal clarity on the limits of non-binding international instruments within Sri Lanka’s domestic legal framework.

This appeal is made in public interest, and with full deference to judicial independence, to respectfully request careful judicial distinction between binding legal obligations arising from Sri Lanka’s Constitution and ratified international treaties, and non-binding international policy frameworks, donor-driven guidelines, and UN agency interpretations, workshops and programs that are increasingly invoked in legal and administrative discourse.

Concepts relating to sexual orientation, gender identity, and gender-diverse classifications are being introduced through development assistance frameworks, international programme documents, and soft-law instruments, often under the broader headings of gender equality or gender-based violence. While such frameworks may reflect evolving policy positions of certain international actors, they do not arise from any treaty ratified by Sri Lanka, nor have they been enacted by Sri Lanka’s Parliament.

Sri Lanka is party to several core international human rights treaties, including the ICCPR, ICESCR, CEDAW, CRC and CAT. None of these treaties contain provisions recognising sexual orientation or gender identity as protected legal categories, nor do they redefine the term “woman” from its sex-based meaning as understood at the time of ratification.

Under principles of international law, including the Vienna Convention on the Law of Treaties, obligations cannot be expanded beyond the text and intent consented to by the State.

In short, under the Vienna Convention on the Law of Treaties, Sri Lanka cannot be legally bound by provisions or concepts that it has not expressly consented to through treaty ratification or parliamentary enactment.

As per the Vienna Convention on the Law of Treaties, treaties are binding only to the extent of State consent, as reflected in the treaty text and the original intent of the parties (Articles 26 and 31).

Soft law instruments—such as UN resolutions, UN committee guidelines, and recommendations—do not meet these criteria and therefore are not legally binding obligations.

The incorporation of non-binding interpretative materials — such as UN Human Rights Council resolutions, Special Rapporteur reports, or donor policy documents — into constitutional or statutory interpretation risks bypassing democratic consent and parliamentary authority. Such materials, while informative, do not carry the force of law and cannot impose obligations that are without domestic legislative adoption.

I respectfully submit that the judiciary’s role as guardian and interpreter of the Constitution requires particular caution where external policy frameworks seek to influence the interpretation of fundamental rights, sex-based protections, or statutory schemes such as quotas, safeguards, or affirmative measures enacted specifically under sex-based classification enshrined in Sri Lanka’s constitution & recognized in domestic law.

Policies, guidelines and recommendations issued by international agencies or donors are not laws. They do not have the force of law unless they are adopted into domestic legislation by Parliament. Thus, Sexual Orientation Gender Identity (SOGI) concepts through non-legislative entities cannot legally alter or expand the rights protected under Sri Lankan law to satisfy international concepts.

The distinction between law and policy, treaty obligation and advocacy, and binding norms and soft law is essential to maintaining constitutional coherence and public confidence in the legal system.

International frameworks and policies cannot override constitutional provisions, statutory protections, or the socio-legal context embedded within Sri Lanka’s constitutional order, including sex-based protections enacted by Parliament. Fundamental rights cannot be re-interpreted through non-binding international policy frameworks.

Sri Lanka’s Supreme Court has affirmed that non-binding international instruments do not possess the force of law unless explicitly passed as domestic legislation.

The judiciary must exercise particular caution in interpreting fundamental rights or statutory schemes when non-binding frameworks—such as UN recommendations or donor guidelines—seek to introduce concepts not adopted into law.

S. Cooray v. The Attorney General (1987), the Court emphasized that international treaties or resolutions that have not been domesticated through legislation do not alter the constitutional rights of citizens.

Accordingly, I humbly appeal to the Honourable Courts to clearly distinguish, in relevant proceedings, between:

• Ratified treaty obligations and domestic law which Sri Lanka is bound by on the one hand; and
• Non-binding international guidelines, UN Committee Level recommendations, donor conditionalities, and evolving policy interpretations on the other.

This appeal is made in good faith, in support of judicial clarity, constitutional supremacy, and the principle that legal obligations arise only through consent, law, and due process.

I respectfully, urge the Judicial pillar to re-affirm that only international treaties ratified and incorporated into domestic law can create binding obligations & that soft-law instruments remain non-binding of States.

I thank Your Ladyships and Lordships for your time and for your continued service in upholding the Constitution and the rule of law.

I am also attaching evidence of the manner non-binding recommendations are being presented as binding law via internationally funded programs and promoted via internationally funded programs in partnership with State & Private Sector across Sri Lanka, undermining Sri Lanka’s constitution, ratified treaty law and People’s consent given to its Government.

With highest respect,

Shenali Waduge

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