Tamil self-determination and Sri Lanka’s sovereignty

The ethnic conflict in Sri Lanka has its origins in the claims of the right to self-determination by the Tamils. The Sinhalese, who see the grant of any autonomy as a serious violation of the sovereignty of the Sri Lankan state, have consistently refuted this claim. For years, peace negotiations were seriously hampered by the contradictory positions the government and the LTTE held on this issue. This article examines the nature of this claim by the Tamils and proposes that there will be no consequent erosion of state sovereignty if this concept is given expression in the form of a federal state.

History of the conflict

At the time of independence, although the Tamils clamoured for power sharing through parity of status, neither that nor a federal system was provided by the Constitution of 1948. A unitary constitution permitting majoritarian rule was enacted with prohibition on the passage of adverse legislation against any community.

In April 1957 that the main Tamil political party – the Federal Party – basing its claim that the Tamils of Ceylon were a distinct nation, articulated the right to self-determination in the form of a federal state. This was through the creation of regional councils by which governmental power was to be devolved. The Bandaranaike-Chelvanayakam Pact as it was known was not implemented, ostensibly for the reason that there was opposition to it from the majority community.

In 1965 another agreement for autonomy was mooted but that too was not implemented for the same reason. The Tamils also allege that systematic state-sponsored colonization was carried out with a view to changing the demographic pattern of the northern and eastern provinces, which territory they claim as their ‘traditional homeland’ and in which they have a right to exercise self-determination.

In 1972 Sri Lanka became a Republic. Both the first and second Republican constitutions affirmed Sinhala as the sole official language. This naturally resulted in opportunities being denied to the Tamils to join the administrative service hitherto dominated by them. It was during this time that Tamil youth began to resort to violence as a means of protest against oppression and discrimination. A policy of ‘standardization’ in the 1970s that effectively ended the hopes of higher education for the Tamils served to exacerbate their frustration.

In addition, organized violence was periodically unleashed against the Tamils living outside the north and the east, in 1958, 1977 and 1983. On every one of those occasions, affected Tamils from other parts of the country were transported to the north and the east for refuge. The Tamils cite this fact as a tacit recognition of their ‘traditional homeland’ in those two provinces.

Soon after the anti-Tamil violence in 1983, several attempts were made to solve this conflict by means of an alternate political arrangement in which greater autonomy would be granted to the Tamils. Alongside these efforts, the state also carried on a campaign to militarily defeat the LTTE. All efforts at a political solution thus far have been in the direction of a federal state.

Although the name of the main Tamil political party until the mid 1970s was ‘The Ceylon Federal Party’ in English, its Tamil rendition was Ilangai Thamil Arasu Katchi’ which literally means, ‘Ceylon Tamil State Party.’ Thus the word ‘federal’ became synonymous with the loss of unity, sovereignty and territorial integrity of the Sri Lankan state for the Sinhalese, who view any change that affects the unitary character of the state as a serious erosion of its sovereignty.

Therefore even when a near-federal arrangement was introduced in 1987, the nature of the state was still described as ‘unitary’. These reforms paved the way for the setting up of provincial councils with substantive devolution of power to the provinces. The Tamil people maintain that this does not meet the legitimate aspirations of those who are entitled to the right to self-determination in international law.

In August 1995 the government put forward a set of proposals for constitutional reforms that recognized Sri Lanka as ‘a plural society within a united and sovereign republic’ and the draft constitution that followed in January 1996 described the nature of the state as ‘an indissoluble union of regions.’ There have been significant objections to this formula from both communities. The Sinhalese see this as an erosion of the inviolable sovereignty of the state since the ‘unitary state’ is being abolished, while the Tamils say that their right to self-determination will be manifest only in a strictly defined federal or confederate arrangement.

Origin of the right to self-determination

An analysis of the different concepts contained in the term right to self-determination will perhaps help in understanding what the Tamils in Sri Lanka are demanding and its legitimacy in international law. Although various shades of these concepts were expressed in different times before the 20th century, particularly in the War of American Independence and the French Revolution, it was actually brought to the fore during World War I. It is generally accepted that it was President Woodrow Wilson of the United States who mooted the concept of self-determination as the objective of Allies in the war, which was followed by other Allied leaders.

United Nations

When the United Nations was created after World War II, one of its purposes was spelt out in Article 1(2) of the UN Charter as: “To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples.”And Article 55 of the UN Charter provides that, “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Article 73 imposes a duty on the members “to develop self-government, to take due account of the political aspirations of the peoples and to assist them in the progressive development of their free political institutions…” in reference to the peoples inhabiting non-self-governing territories.

Further, the Universal Declaration of Human Rights, in Article 2 declares that, “…no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty” in that person’s entitlement to the rights and freedoms set forth in the Declaration.

The right to self-determination of peoples as enshrined in the UN Charter was originally applied in respect of peoples and nations who were under colonial rule and their independence. This is seen very clearly in the UN General Assembly Declaration on the Granting of Independence to Colonial Territories and Peoples. Whilst Declaration No.2 lays down that, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development,” Declaration 6 provides as follows: “Any attempt aimed at the partial or total disruption of national unity and territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations.”

And when the UN finally adopted the International Covenant on Economic, Social and Cultural and Rights and the International Covenant on Civil and Political Rights in 1966, (both of which came into force in 1976) Article 1, which is common to both, reads thus: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The right to self-determination in international law today

As colonialism ended, the scope for the exercise of the right to self-determination began to expand. Although during the first two decades of the UN Charter, the right to self-determination was considered to be one that is limited to emancipation usually western colonial rule, there was no real rationale for such a narrow approach.

Several jurists have criticized this limited application of the right to self-determination as being without any justification. Amankwah argues that “freedom should not, in principle, be confined and that, therefore, the right to self-determination should be available even to peoples within the pre-existing state, that is (the) ‘minorities’.” He cites the Advisory Opinion of the International Court of Justice (ICJ) in the Western Sahara case as having enunciated the legal principle for the right to self-determination.

Gerry Simpson points out that the attempt to restrict this right to the colonial context was for pragmatic reasons and that there are several incongruities as a result. There is no question that the right to self-determination of peoples is a customary principle of international law. The only contentious issue is with regard to the application of that principle to all distinct minorities within pre-existing states, as that will tend to validate the claims of all secessionist groups.

It is important to note that a ‘people’ can, in the exercise of their right to self-determination decide to remain within in a pre-existing state, but choose the degree of autonomous self-government within the framework of a sovereign state. This is known as internal self-determination, as opposed to external self-determination, where people are granted the right to establish their own separate sovereign state. Naturally it is easier to find legitimacy in international law for the claim of the right to internal self-determination.

Are Sri Lankan Tamils a ‘People’?

The UNESCO meeting of Experts on further study of the Rights of Peoples (Paris 1990) proposed that the following criteria be used to determine a people:

  • cultural homogeneity;
  • linguistic unity;
  • religious ideological affinity;
  • common historical tradition;
  • racial and ethnic identity;
  • territorial connection;
  • common economic existence or life.

If this test is applied to the Tamils in Sri Lanka, even the most ardent objector to the granting of autonomy must admit that they would qualify as a ‘people’ in international law and thus be entitled to at least the right to internal self-determination. But the claim of the Tamils to self-determination is also based on the fact that prior to the arrival of the Portuguese in the 16th Century they were a distinct group of people, who had control of their political destinies, exercising sovereignty over a defined and separate territory. Consequently they claim that the right to independence from colonial rule was a separate right that vested with the Tamil people.

However, it must be remembered that the Tamils in Sri Lanka did not demand a separate sovereign state at the time of independence from colonial rule. The demand at that stage was for parity of status. Within 10 years of independence, the demand for a federal state intensified. It was only after a series of repressive measures by successive governments, and broken agreements that the demand for a separate state as an expression of their right to self-determination emerged.

At the general elections of August 1977, the Tamil United Liberation Front (TULF), asked the Tamils for a mandate for a separate state. The Tamil people voted overwhelmingly granting that mandate. But a quarter century later, the majority of the Tamils are still ready to exercise their right to self-determination internally if only that right is recognized, and meaningful autonomy is granted. It is at this point that a seemingly irreconcilable difference arises between the parties to the conflict. The reluctance of the Sinhalese to recognize the right to self-determination of the Tamils is based on the idea that it will seriously affect the sovereignty and territorial integrity of the state and that consequently it will grant the Tamils the right to secede unilaterally.

The right to self-determination and state sovereignty

Customary international law recognizes a sovereign state to possess

      (1) a territory

 

      (2) a people

 

      (3) an effective government and

 

    (4) the capacity to enter into foreign relations.

Early jurists considered sovereignty as being the authority of the monarch or of one centralized government. This meant that federations were suspected to be weak forms of governments as far as state sovereignty was concerned.

However, one could not reconcile such an idea with the form of government in the American federal system. Today sovereignty is classified into universal sovereignty, popular sovereignty and state sovereignty. According to Elazar, “popular sovereignty…makes it possible for two or more governments to share the attributes of sovereignty without altering the indivisibility of sovereignty.”

It is not easy to classify a particular system of government as falling exclusively into any one of these types. The form of government is really immaterial as far as sovereignty is concerned. In fact, in a democratic system, sovereignty actually rests with the people and thus can be described as popular sovereignty. In an extended sense, even a monarchy can be described as popular sovereignty if the people choose the king and he rules them with their consent.

Therefore, although state sovereignty in the past meant an absolute right that vested in a central authority to do whatever it willed in relation to the people and territory, such a notion is a fallacy in the context of modern nation-states. State sovereignty can also be divided into internal and external. Internal refers to the governmental authority and power over the people and territory governed, while external concerns its existence as a free entity in the world of nations.

Exercise of the right to self-determination

The possible exercise of self-determination by various peoples within a sovereign state has demanded great imagination over the last fifty years all over the world. If sovereignty is the direct result of the right to self-determination of peoples, then it naturally follows that sovereignty be left in the hands of the peoples. And since in democratic governments sovereignty anyway rests with the people, the puzzle has been easier to resolve. Today there are several models of shared sovereignty in Europe, America, Asia and Australia.

Models of federation as seen in Australia and the USA are not necessarily linked to the right of self-determination of peoples, although the debate over the right to self-determination and to the claims to the sovereignty of indigenous peoples have gained momentum. In Europe, the movement towards European Union has raised a whole host of issues with regard to the state sovereignty of participating states. The decision of the French Constitutional Court on the compatibility of the Maastricht and Amsterdam treaties relating to the European Union with the constitutional provisions on sovereignty, necessitated amendments to the French Constitution. In the UK, devolution of power to Scotland and its effect on state sovereignty, among other issues, are constantly being debated.

The decision of the Canadian Supreme Court holding that Quebec did not possess the right to unilaterally secede from Canada discusses the principles of international law in relation to the right of ‘peoples’ to self-determination and sovereignty.

The Canadian Supreme Court judgment

The opinions expressed by the International Court of Justice in Portugal v. Australia in the case concerning East Timor does not deal with the issue of the right of the people of East Timor to self-determination since both contestant countries conceded that right. This leaves the Canadian decision on Quebec, albeit by a court exercising domestic jurisdiction, as the most recent pronouncement on the principles of international law in the right to self-determination.

The court lays down the exceptional circumstances in which a right to unilateral secession will be permitted in International law in the exercise of the right to self-determination. These are,

      (1) when “a people” is governed as part of a colonial empire,

 

      (2) where “ a people” is subject to alien subjugation, domination or exploitation and

 

    (3) possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.

The court went on to hold, “in other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on the basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law… Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic cultural and social development.”

In other words, the court recognizes that in international law even if “a people” fall outside the category of colonial people, they are entitled to secession as an expression of their right to self-determination, if they are an oppressed people or if no meaningful access to government has been permitted to them in order to exercise their right to self-determination within the bounds of a sovereign state.

Conclusion

The Tamil people in Sri Lanka have been subjected to discrimination within the model of a unitary state where majoritarianism reigns. They have been denied the opportunity to express their right to self-determination through an internal political arrangement, such as a federal government. In such a situation, the denial of the existence of the right to self-determination itself will give rise to the right to unilateral secession as an expression of that right. It is not necessary to discuss here the other grounds advanced by the proponents of secession, since even at this stage all the Tamil parties including the LTTE are ready to discuss ways of satisfactorily expressing their right to self-determination within the territorial integrity of the Sri Lankan state.

Therefore the recognition of the right to self-determination of the Tamil people will in no way erode state sovereignty, which according to the Sri Lankan Constitution, vests anyway with the people. In point of fact, if the territorial integrity of Sri Lanka is to be preserved from claims to the right of secession, it is a sine qua non that the right to self-determination of the Tamils is recognized and the nature of the state is restructured to enable meaningful exercise of internal self-determination.