TITLE OF THESIS

TAMIL MINORITY PROBLEM IN IN THE LIGHT OF SELF-DETERMINATION AND SOVEREIGNTY OF STATES

NAME OF CANDIDATE R. P. Samarasinghe

TITLE OF DEGREE Master of Laws (Honours)

YEAR OF SUBMISSION 2005

UNIVERSITY University of Western Sydney Parramatta Campus School of Law SUMMARY

This thesis analyses the Tamil minority problem in Sri Lanka in the light of Self- Determination and Sovereignty.

The first Chapter gives an introduction.

The second Chapter discusses the location, composition and historical background, as it relates to the Tamil minority problem in the country.

The third Chapter focuses on the legal issues and principles involved in the exercise of the right of self-determination.

The fourth Chapter discusses the principle of self-determination.

The fifth Chapter discusses the principle of self-determination in the light of treaty law.

Chapter six focuses on State practise with respect to self-determination. The cases of Aaland Island, Katanga, Biafra and Bangladesh are discussed in detail.

Chapter seven deals with the specific issue of self-determination in the Sri Lankan context of secession. The chapter tries to ascertain the legal conditions, which would warrant secession.

Chapter eight will focuses on the inherent tensions between the two principles of self- determination and the State sovereignty.

Chapter nine focuses on the definition of statehood and factors undermining separatists claims to create separate States.

Chapter ten evaluates the discussion in the earlier chapters.

CERTIFICATION

I, Ruwan Prashantha Samarasinghe of 52 Robert Street, Telopea 2117 NSW do hereby certify that this work has not been submitted for a higher degree at any other institution.

R.P. Samarasinghe 28th of February 2005

ii PREFACE

Tamil separatists in Sri Lanka are waging a war for a separate State in the tiny island in the Indian Ocean. Their demand is based on the alleged discrimination in the areas of University education, employment in public sector and citizenship rights of Indian . The majority Sinhalese group believed that they had been the principle victims of the imposition of colonial rule and adopted policies that would hasten the redress of historical grievances. The minority Tamils lost their privileged position enjoyed for decades and trying to establish their own State within the of Sri Lanka.

This work tries to analyse the Tamil minority problem in the light of Self-Determination and State Sovereignty. There is huge amount of work published by academics claiming the right to secede from Sri Lanka based on right of self-determination. There is very little literature found on the subject of State Sovereignty in relation to the Tamil minority problem. My effort was to fill this gap and discuss the right of secession with the principles of Sovereignty of State and Statehood in a more balanced manner and propose a solution which can accommodate aspiration of both parties within accepted principles of international law and State Practice.

I am thankful to Professor Razeen Sappideen, my principle supervisor, for his valuable guidance and critical comments, which have benefited me immensely. I am also thankful to Professor Caroline Sappideen and Dr. Masudul Haque who helped me to develop my ideas in to this thesis in the initial stages.

I specifically acknowledge the use of materials written by Dr. Rafiqul in his book International Legal Implications: The Bangladesh Liberation and the article The Tamil Separatism in Sri Lanka: Some Factors Undermining The Claim and the use of materials written by Anthony Cassese, in his work Self Determination of Peoples: A Legal Reappraisal. I have acknowledged all the other work I used in this thesis by appropriate footnotes.

52 Robert Street Ruwan P. Samarasinghe Telopea NSW 2117 . February 2005

iii TAMIL MINORITY PROBLEM IN SRI LANKA IN THE LIGHT OF SELF-DETERMINATION & STATE SOVEREIGNTY

TABLE OF CONTENT

PAGE

Summary ii

Preface iii

Table of Contents iv

Chapter 1 Introduction 1

Chapter 2 Factors Shaping the Demand for the Right of Secession 6 2:1 Location 6 2:2 Composition 6 2:3 Colonial History 8 2:3:1 Pre-colonial History 8 2:3:2 Colonial History 10 2:4 Post-Independent era 12 2:5 Legislative & Executive activities, which fuelled Tamil 13 demand for a separate State 2:5:1 Disenfranchisement of Indian Tamils 13 2:5:2 Sinhala only policy 14 2:5:3 Ethnic quota system for university admission 14 2:5:4 The Government policy on Colonisation of the Dry Zone 14 2:5:5 Human Rights Violations 14

Chapter 3 Legal Issues and Principles involved in the Exercise of the Right of Self-Determination 16 3:1 Issue 1 - Entitlement of separatists for the right of self-determination 22 3:2 Issue 2 – Entitlement of the state to protect its Territorial Integrity and Sovereignty 24 3:3 Issue 3 - The degree of devolution of power 25

Chapter 4 Self Determination 32

Chapter 5 Self-Determination and Treaty Law 41 5:1 Treaty of Versailles 1919 42 5:2 Covenant of League of Nations 1920 43 5:3 Atlantic Charter 1941 46 5:4 United Nations Charter 1945 47 5:5 Declaration on granting of independence to colonial countries and people 1960 51 5:6 Civil and Political rights and Economic Social and Cultural covenants of 1966 52 5:7 Declaration on Principles of international law concerning friendly relations and Cooperation among states 1970 54 5:8 Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities 1992 57

iv Chapter 6 Self Determination and State practice 60 6:1 Aaland Island Case (1920) 60 6:2 Katanga (1960) 63 6:3 Biafra (1966) 64 6:4 Bangladesh Liberation Movement (1971) 66 6:5 Quebec 69

Chapter 7 Self-Determination in the Sri Lankan Context in the light of Right to Secession 7:1 General Introduction 72 7:2 Right of Secession - Constitutive Elements 74 7:2:1 Persistent Refusal to grant Participatory Rights 74 7:2:1:a Soulbury Constitution (1948-1972) 75 7:2:1:b First Republican Constitution (1972-1977) 77 7:2:1:c Second Republican Constitution (1978) 79 7:2:2 Gross and systematic Trampling upon the Fundamental Rights 81 7:2:2:a Disenfranchisement of Voting Rights of Indian Tamils 82 7:2:2:b Language Rights 85 7:2:2:c Educational Rights 87 7:2:2:d Employment Rights 91 7:2:3 Denial of Possibility of Reaching a Peaceful Settlement 92 7:2:3:a Bandaranayake-Chelvanayakam Pact 1957 93 7:2:3:b Senanayake-Chelvanayakam Pact 1965 94 7:2:3:c The Thimpu Negotiations 1985 96 7:2:3:d Indo Sri Lanka Peace Accord 1987 97 7:3 Concluding Remarks 99

Chapter 8 Sovereignty of States and the Right of Self-Determination 103

Chapter 9 Definition of Statehood and Factors Undermining Separatists 124 Claims to Create Separate States

Chapter 10 Final Conclusion 143

Bibliography

Table of Cases

Table of Statutes

Annexure I Map of Sri Lanka

Annexure II Fourteen Point Speech by Woodrow Wilson

Annexure III Bandaranaike-Chelvanayakam pact of 1957

Annexure IV -Chelvanayakam Pact of 1965

Annexure V The Indo-Sri Lanka Accord 1987

Annexure VI Agreement on a Ceasefire Between The Government of the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil Eelam 2002

v CHAPTER 1

INTRODUCTION

General introduction

This work analyses the Tamil minority problem in Sri Lanka in the light of, on one hand, the principle of self-determination and on the other hand, the principle of territorial integrity or State sovereignty. Once this analysis is completed, a possible solution would be discussed in the light of attempted solutions put forward by the Sri

Lankan government.

This thesis undertakes a detailed discussion of the underpinning principles of self- determination and the sovereignty of States with a view to carry out fruitful discussion on the Sri Lankan ethnic crisis.

The appeal of the principle of national self-determination is simple, for it is surely better that nations should determine their destinies than that someone else should do it for them.1 The concept of national self-determination appears to express the idea of democracy, according to which the people are presumed to be best qualified to govern themselves. International law also appears to recognise the right of national self- determination unreservedly.2 The actual scope is however controversial.

1 Freeman, Michael, National Self-Determination, Peace and Human Right”, Peace Review, Vol.10, No.2 (1 June 1998) 2 Article 1, Covenants of Civil and Political Rights and Economic and Social Rights The global political order is however primarily an association of States. International law seeks to regulate the relations among States by recognising their equal sovereignty.

The principal value of this order is peace. The United Nations Organization, UNO, is concerned primarily with the stability of the existing State system. However because it was established in response to the imperialistic aggression and atrocities of fascism, it includes the protection of human rights and national self-determination among its aims. There are however both theoretical and practical tensions between the values of peace, human rights and national self-determination.3

The UN charter included both the traditional principle of international law that States were the primary agents of international politics and the principle that world peace must be based on the self determination of nations. A shortcoming of the UN itself was that its leading States were imperialist powers. The global struggle against colonialism gave new meaning to and strengthened the right of self-determination.

The postcolonial world order also contained an important doctrine.4

This was the doctrine of uti possetidis juris, which stated that the territorial boundaries of postcolonial States should be the same as those of the colonial territories that they replaced. The rationale of this doctrine was that it would minimise territorial disputes among the postcolonial States and thereby maximise the prospects for peace among them. The State elites of postcolonial underdeveloped countries became strongly attached to the doctrine because it appeared to underpin the stability they believed to be necessary for their projects of development. If postcolonial societies were not yet in reality nations, nation building became part of the project of development.

3 Above note 1 4 Wooldridge, F., Uti possidetis Doctrine, in 10 Encyclopaedia, 1987 p.519 2 Whatever view is taken it is beyond dispute that at present uti possidetis constitutes a general rule of international law.5

The UN was therefore able to absorb the anti-colonial revolution and remain an exclusive club of States. It established a consensus that the right of self-determination of peoples belonged to those who struggled against European colonialism, but not to peoples who believed themselves to be unjustly treated in postcolonial States.6 It was, however, the very power of the principle of self-determination that rendered this postcolonial order unstable. Most States were multi national or polyethnic, and many subordinate ethno-nationalist groups perceived the doctrine of uti possidetis juris to be an ideology that justify the domination of weak peoples by groups that had managed to seize State power. Consequently, secessionist wars and anti secessionist repression became pervasive features of the postcolonial world order.7

Throughout the world, the crisis based on ethnicity has become the world order. Thus

Sri Lanka’s giant neighbour, , it has had her own problems in Kashmir, Punjab and Khalistan. Indonesia has already given independence to East Timor based on the initiatives of the United Nations and Australia. But still struggling for separation are

Irian Jaya and Acheh. In newly disintegrated USSR, Chechnians are waging a bloody war for separatism. is resisting a dragging ethnic conflict in Quebec.

Sri Lanka is among the other countries, which has an ethnic crisis dragging for years.

The Sri Lankan crisis is unique especially because of the geographical area and the population involved. As we will see, Sri Lanka is a tiny dot in the world map

5 Cassese A., Self-determination of peoples; A legal reappraisal p. 253, 1996 Cambridge University press 6 Above note 1 7Above note 1 3 compared to the huge countries that have ethnic conflicts such as India, Indonesia

Canada etc.

In order to undertake any research in to the ethnic crisis in Sri Lanka it is appropriate to analyse the background of the crisis. The second Chapter discusses the location, composition and historical background, as it relates to the Tamil minority problem in the country.

The third Chapter focuses on the legal issues and principles involved in the exercise of the right of self-determination. The three main issues discussed are:

1. Entitlement of separatists for the right of self-determination

2. Entitlement of the State to protect its territorial integrity and sovereignty.

3. The degree of devolution of power.

Each of these issues is dealt with in detail in Chapter three.

The distinction between chapters three and four are subtle. Chapter three deals with

the legal issues and principles involved in the exercise of the right of self-

determination and chapter four deals with the historical development of the

principle of self-determination.

The fifth Chapter discusses the principle of self-determination in the light of treaty

law. Starting from the Treaty of Versailles 1919, the discussion will develop until

the UN Declaration on the Rights of Persons Belonging to National or Ethnic,

Religious and Linguistic Minorities 1992.

4 Chapter six focuses on State practise with respect to self-determination. The cases of Aaland Island, Katanga, Biafra and Bangladesh are discussed in detail.

Chapter seven deals with the specific issue of self-determination in the Sri Lankan context of secession. The chapter tries to ascertain the legal conditions, which would warrant secession. The constituent elements of the legal conditions are dealt with in detail in the Sri Lankan context.

Chapter eight will focuses on the inherent tensions between the two principles of self-determination and the State sovereignty.

Chapter nine focuses on the Definition of Statehood and Factors Undermining

Separatists Claims to Create Separate States. This Chapter formulates a definition of “Statehood” within the framework of the Montevideo Convention and tries to reformulate the definition to satisfy the demands made by the European

Community in the ‘Declaration on the Guidelines on the Recognition of the New

States in Eastern Europe and in the ’. Finally, the Chapter considers the reality of power politics, which ultimately is decisive in the emergence of new

States.

Chapter ten evaluates the discussion in the earlier chapters.

5 CHAPTER 2

Factors shaping the demand for the right of secession

2:1 Location

Sri Lanka is a pear-shaped island 29 kilometres off the southeastern coast of India with a total area 65,610 square kilometres, with a land area of 64,740 square kilometres. The total land area is nearly the same as the State of Tasmania, (68,102 square kilometres).1

Sri Lanka was known as Ceylon until 1972. It was named Sri Lanka with the enactment of the first Republic Constitution in 1972.

2:2 Composition

To understand the ethnic problem in Sri Lanka, the composition of different ethnic groups in the country and the major events that led to the ethnic crisis will be deliberated upon here. According to the CIA World Fact Book 20022, the Sinhalese comprised 74 per cent, Tamils 18 per cent (Ceylon Tamils 12.6 per cent and Indian

Tamils 5.4 per cent), Moor 7 per cent, Burgher, Malay and Vedda (indigenous) together 1 per cent. The can be divided into two groups: the indigenous "Ceylon" Tamils and the "Indian" Tamils. The "Indian" Tamils are plantation workers descended from labourers indentured by the British colonial government during the 19th and 20th centuries. They are mainly Hindus but a

1 http://www.abs.gov.au/Ausstats/abs%40.nsf/94713ad445ff1425ca25682000192af2/d9d833a17c39a434ca256c320024151d!Ope nDocument 2 http://www.cia.gov/cia/publications/factbook/geos/ce.html 6 minority are Christian. Seventy per cent of the population are Buddhists, 15 per cent

Hindus, 8 per cent Christians and 8 per cent Muslims.3

The total population is estimated 19,742,439 by 2003 (according to the CIA World

Fact Book)4. The population is nearly as the population of Australia (19,731,984

Estimated 2003).5

Notwithstanding the controversies about who were the first migrants from India to

Ceylon-Sinhalese or Tamils-or whether Tamils were the original inhabitants of the island, it is generally accepted that both groups migrated from India around the 5th or

6th century B.C. The Sinhalese are traditionally believed to be the descendants of migratory Aryans from northern India. It is, however, controversial whether the founder of the Sinhala race came from Bengal or from Gujrat. Be that as it may, the

Sinhalese traditionally trace their ethnic origin to Vijaya Singha who was an Indian by birth. The Sinhalese settled in the North-Central, North-western, and Southern

Provinces of Ceylon.

The Tamils also migrated from India to Ceylon. They belong to the Dravidian stock of Southern India. They are divided into two categories "Ceylon Tamils" (also called indigenous Tamils) and "Indian" Tamils. While the Ceylon Tamils arrived in Ceylon in the pre-Christian period, the Indian Tamils migrated into Ceylon in the 19th and early 20th centuries in the wake of the introduction of the plantation economy into the island by the . The Ceylon Tamils settled in Jaffna, Mannar,

Vavuniya, Batticaloa and Mullaitivu in the northern and eastern coast of the country.

3 As above 4 As above 2 5 As above 2 7 The Indian Tamils settled in the traditional tea garden areas of , Kalutara,

Kandy, Matale, Nuwara Eliya, Badulla Ratnapura and Kegella.6

2:3 THE COLONIAL HISTORY

2:3:1 THE PRE-COLONIAL HISTORY

The history of ethnic conflict in Sri Lanka is the history of the emergence of consciousness among the majority community, the Sinhala, which defined Sri

Lankan society as Sinhala-Buddhist, thus denying its multi-ethnic character. This growth of Sinhalese consciousness impinged on the minorities in Sri Lanka to the extent that internal resolution of the problems became impossible,7 and escalated it into an international one.

The Sinhalese dominated the country from about 5th century BC and established a kingdom with its centre in the North Central Province of the island. The term

`Sinhala' was first used to indicate the royal family of the island, then extended to cover the royal retinue and then further extended to include the people; this social process dating to about the 6th century AD is simultaneously the process of the ethnic consolidation of the Sinhala people.8 The , which controlled the entire island most of the time, entered into relations both of alliance and hostility at various periods with the Chola, Pandiya and Chera Kingdoms of South India.

There were frequent invasions from these kingdoms, and also frequent alliances and intermarriage of the four royal families. There were thus strong links with India, especially South India. This long history of links with South India is still present in popular Sinhala consciousness, with perhaps the aggressive acts being best

6 See Annexure 1 7 Jayawardhana, Kumari, Ethnic Conflict in Sri Lanka and Regional Security, Colombo, Oct 1987 8 Gunawardena, R.A.L.H. - `The People of the Lion' Sinhala Consciousness in History and Histography in "Ethnicity and Social Change", Colombo, 1985. 8 remembered.9

Developments in Sri Lanka in the 12th and 13th centuries, determined its ethnic demography in a decisive way, which effects have continued to the present.10 The demographic distribution lays down a territorial basis for the major ethnic groups; in the case of the Tamils, the territorial concentration grew into a concept of a

`traditional Tamil Homeland'. This did not arise for Muslims since they were scattered over the whole island, with a majority presence in only a part of the Eastern province.

Religion also played a dominant ideological role in ethnic consolidation. , introduced from India in the third century BC, became the religion of the Sinhala as well as the State religion11. remained the religion of the Tamils. Apart from the conversion of a section of both Sinhalese and Tamils to during the colonial period, the congruence between Sinhala and Buddhist on the one hand, and Tamil and Hindu on the other, was total.12

2:3:2 THE COLONIAL HISTORY (1505-1948)

Three different colonial powers administered this colony. The Portuguese between

1505-1656, Dutch between 1656-1799 and the British between 1799-1948.

Social and economic developments during the early colonial period under the

Portuguese and then the Dutch - commercialisation of agriculture, the registration of

9 Above note 7 10Above note 7 11 1972 Constitution Section 6, 1978 Constitution Article 12 Above note 7 9 title to land, registration of births and deaths, contributed towards a freezing of ethnic boundaries.13

In the areas of legal institutions, formal statutory recognition of Thesawalami law as personal and territorial law of people living in the Jaffna province, and Kandyan law as the personal law of Kandyan people living in the Kandyan provinces by the

British administration resulted in even further freezing of ethnic boundaries.

This meant in effect the consolidation of the Sinhala community in the central and southwestern parts of the island and of the Tamil community in the north and on the eastern seaboard. Economic developments during the occupation of the island by the

British gave rise to two other phenomena, which made the ethnic picture in Sri Lanka even more complex.14

First, the coffee plantations established by the British in the 19th century brought to

Sri Lanka as plantation labour, a population of over 1 million Tamil workers from

South India. These were at first seasonal migrants but with the development of tea plantations the majority became permanently domiciled on the plantations. The question of their citizenship rights became an issue that subsequently soured relationship between India and Sri Lanka.

Second, economic developments during this period were mainly in the central and western areas of the island. This left the Tamil community in a disadvantaged position. They sought to overcome this by moving in large numbers to employment in the State services, in the private sector, and by entering the learned professions.

13 Above note 7 14 Above note 7 10 This process was helped by the growth of educational facilities in English in the

Tamil regions, particularly the Jaffna peninsula. This meant not only that large numbers of Tamils migrated to the southern and central regions for purposes of employment but also that Tamil traders established themselves in these regions.

The opening up of the plantations transformed the and created opportunities for indigenous entrepreneurs to make large fortunes; some of them converted to Christianity and sent their children to Britain for education. These filled the expanding needs of the State services as well as the need for doctors, engineers, lawyers etc. The local bourgeoisie thus created was multi-ethnic, but predominantly

Sinhala, with Burghers and Tamils also entering the various professions and the State services.

The Sinhala bourgeoisie found its expansion constrained in various areas. The main import and export trade was dominated by the British and Indians, and retail trade throughout the country by Muslim and Chettiar traders. Sinhala traders could not break into these areas because of a lack of access to finance, which was controlled by

British bankers or South Indian Chettiars. The Sinhala professionals and the educated

"petit-bourgeoisie" also felt this competition in so far as they had to vie with

Burghers and Tamils for State and private employment. Workers at their own level found themselves confronted with migrant workers from Kerala and Tamilnadu as well as with workers of indigenous minority groups.15

These barriers to their advancement were perceived by the Sinhala at all levels as being caused by the non-Sinhala elements.

15 Above note 7 11 2:4 POST-INDEPENDENT ERA

Towards the end of British administration, the political reformers agitated to expand the scope and powers of (which had remained unreformed from

1833 till 1911) by extending representative government based on a limited male franchise. The British governor nominated members to the Legislature on the basis of ethnicity (Sinhala, Tamil, Muslim and Burgher). In 1931, the British constituted a

State Council with territorial representation based on universal suffrage. These reforms of 1931 did not meet with the favour of minority ethnic groups who believed the constitution would ensure the dominance of the Sinhala majority: they argued for at the least, constitutional safeguards as a measure of protection for minority ethnic groups.

The Constitution was enacted in the middle of minority protests. Minority fears were realized in 1936 when a totally Sinhala board of ministers was chosen. However in

1947, in preparation for the first post-independent election, the

(UNP) was formed, which included members of all ethnic groups.

The United National Party took power after independence, a party dedicated to the ideal of a plural Sri-Lanka. It was also representative of those elite groups that had grown up and prospered under colonial rule. However, underneath the apparently smooth surface of Sri Lankan politics, turbulent currents were stirring.16 The Sinhala educated intelligentsia reiterated the Sinhala-Buddhist resurgence not only against minorities but also against the English-speaking members of the upper class who wielded economic and political power.

16 Above note 8 12 This trend continued throughout the post-independent era and resulted in the enactment of various legislation and in the policy making process of successive governments. The changes made by the successive governments are discussed next.

2:5 Legislative & Executive activities which fuelled Tamil demand for a separate State

2:5:1 The Citizenship act No.18 of 1948 and The Ceylon

(Parliamentary Elections) Act No.48 of 1949

The practical effect of the Citizenship Act which made provision for the status of citizen of Ceylon and the Ceylon (Parliamentary Elections) Amendment Act, which provided that only citizens of Ceylon would be entitled to vote was that the vast majority of the Indian Tamil plantation workers would not be qualified to have their names entered in the electoral register.17 The result was to disenfranchise plantation

Tamil workers who had enjoyed the vote since 1931.

2:5:2 The Official Language Act of 1956

This legislation reflected a ‘Sinhala only’ policy. This imposed a restriction on non-

Sinhala speaking groups in the State public service. Popular opinion saw the enactment of this language policy as a means not only of reducing the position of

Tamils in the public sector but also of increasing the access of Sinhala educated to prestigious jobs. Insistence on the knowledge of Sinhala as a necessary requirement quickly reduced the Tamil intake into the State services.18

17 Wickramaratne. J., ‘Fundamental Rights in Sri Lanka’ Lake House Book Shop 1996 P.15 18 Abeysekara C. and Gunasinghe N., ‘Facets of Ethnicity in Sri Lanka’, Social Scientist Association, Colombo, 1985 13 2:5:3 Ethnic Quota System for University Entrance

Access to higher education for Tamil students has been restricted since 1971 due to imposition of an ethnic quota system. Instituting a system of standardisation of marks by language media at the university entrance examination also effected a fundamental change in university admission policy. The effect of this was to place the Tamil students at a disadvantage in that they had to obtain a higher aggregate of marks to enter the university than the Sinhalese meaning that the minimum entry requirement for a Tamil student was higher than that for a Sinhala medium student.19

2:5:4 The government policy on colonisation of the dry zone

The establishment of the colonies in the dry zone, a key feature of Sri Lankan welfare State became controversial because of one far reaching political consequence. The ebbing of the jungle tide that had submerged this region for centuries, and the moving frontier of Sinhalese settlement represented or seem to represent, a potent threat to the majority status that the Tamils had enjoyed in the northern and some parts of the north east of the island.20 This fear and anxiety became more pronounced in recent years, and form the basis of the theory of the

‘Traditional Homelands of the Tamils’ to be preserved exclusively for the Tamils.

2:5:5 Human Rights Violations

The major human rights violations according to Tamil scholars are21;

1. Arrests, torture and detention without trial

2. Instant justice

3. Emergency laws and curfew

19 Bastian, S. ‘University Admission and the National Question’ in Ethnicity and Social Change Colombo, 1985 20 De Silva, K.M. ‘Sri Lanka: Ethnic Conflict, Management and Resolution, International Centre for Ethnic Studies, Kandy Sri Lanka, 1999 p.25 21 N. Seevaratnam, ‘The Tamil National Question’ Konark Publishers Pty Ltd, Delhi, 1989 14 2:5:5:1 Arrest, torture and detention without trial

The Sri Lankan armed forces arrest and detain Tamils throughout the country without trials. Under emergency regulations, the forces are empowered to detain them indefinitely. In the detention camps, the Tamils very often become victims of torture. Close analysis of Sri Lanka Human Rights Reports issued by the U.S.

Department of State22 in the period of 1997 and 2000, there are number of reported incidents of arrest, torture and detention without trial.

2:5:5:2 Instant Justice

The Tamil groups claim that in the North and East of Sri Lanka soldiers carry out

‘instant justice’. A person suspected of militant is immediately shot dead and any person as a supporter is arrested, severely beaten up, and detained without trial. Sri

Lanka Human Rights Reports issued by the U.S. State Department during the period

1997 and 2000 collaborates this position. The reports state that during the period, the security forces committed few extra judicial killings.

2:5:5:3 Emergency Laws and the Curfew

State of emergency is still enforced in the North and East of Sri Lanka and curfew is imposed on regular basis, inconveniencing mainly the sick and the wounded.

With these major issues in the forefront, the Tamil politicians demanded federal status immediately after independence. Later, this agitation became a struggle for a separate State called for not by the politicians but by Tamil separatists through violence.

22 http://www.state.gov/www/global/human_rights/ 15 CHAPTER 3

3:0 Legal Issues and Principles involved in the

Exercise of the Right of Self-Determination

Having analysed the historical developments of the Tamil minority problem in Sri

Lanka in the previous chapter, it is appropriate to analyse the legal principles and issues involved in the exercise of the right of self-determination by a minority group in a sovereign State. The three basic issues discussed in this chapter are not unique to the Sri Lankan problem, but common to any such claim throughout the world. The main objective of this chapter is to recognise the basic issues involved, with the chapters following developing on these issues. The analysis is structured around the following issues:

Issue 1 - Entitlement of separatists for the right of self-determination

Issue 2 – Entitlement of the State to protect its Territorial Integrity and Sovereignty

Issue 3 - The degree of devolution of power

The dilemma in the Tamil issue is the actual extent of devolution of power. The course in between has variations. It can either be with devolution of power, a form of federal State or a confederation.

16

In the unitary State with devolution of power, the central government grants some decision-making autonomy to regional governments as in France, Italy or Spain.1

This occurs when the centre grants decision-making autonomy to lower levels.

Nearly all-unitary States have developed at least one level of government, which stands between central and local authorities.2 A standard pattern now is to have three levels of sub national government; regional, provincial and local as in France and

Italy. Regional and provincial levels are ‘intermediate’ governments, which form the

‘expanded middle’ of modern State. The result of a multi-tier system is to reduce the contrast between unitary and federal arrangements. The reasons for the development of regional governments are a mix of cultural, economical and political factors.3 The

Cultural factor was regional ethnic nationalism, economic factors included unequal growth: as economies develop, peripheral regions tend to loose ground compared with core regions and politically, regional government is a natural cry of opposition parties which then feel committed to carry out their schemes when finally elected to office.4 In the ultimate analysis, regionalism helps in generating political participation in decision-making at a provincial or district level.

In Sri Lanka, Local Government, the lowest level of elected territorial organization, has been present from the British rule. But the agitation for a second tier of government was given very slow response. There were abortive attempts at establishing provincial and district level councils, in 1957 and 1968 respectively.

With the enactment of the District Development Councils Act of 1980, the Sri

1 Hague, R., Harrop, M., Breslin, S., Comparative Government and Politics an Introduction, Macmillan Press Ltd., Hampshire, London, 1998, p. 176 2 Above note p. 178 3 Sharpe, L., The Rise of Meso Government in Europe, Thousand Oaks, California and London, 1993 4 Above note 1 17 Lankan government looked to satisfy Tamil demands for greater political autonomy through an island-wide system of decentralisation. It soon became clear that the mechanism did not provide either administrative efficiency, or responsiveness to local needs anticipated when they were instituted.5 The next attempt to establish a second tier of government was by the Provincial Councils Act of 1987, which was enabled by the 13th Amendment to the 1978 Constitution of Sri Lanka. The essential feature of the system of Provincial Councils introduced in 1987 was that they had many of the powers of the States of the Indian Union, but with the difference that the

Sri Lankan Provincial Councils would operate within the framework of the country’s constitutionally entrenched unitary system.6 The reluctance of the government to concede legitimacy to regional loyalties and the reluctance of the Tamil politicians to be accommodated within a unitary State is the core issue of the current political crisis in Sri Lanka. It is the devolution of power in its true sense, which will help to resolve this problem. The devolution of power within a unitary State failing, the next step is to introduce a federal form of State.

In a federation, legal sovereignty is shared between the federal government and the constituent States. A federal government creates two layers of government, with specific functions allocated to each. The functions of the federal government and the

State governments vary from one federation to another. Significantly the existence and the functions of the States are entrenched; amending the constitution can only modify them. It is this protected position of the States, which distinguishes

5 De Silva, K.M., Sri Lanka: Ethnic Conflict, Management and Resolution, International Centre for Ethnic Studies, Kandy, Sri Lanka, 1999, p.37 6 Above note p. 28 18 federations from unitary States.7 The origin of federalism is a complex one. Usually it emerges from a voluntary pact between previously autonomous States. This was the case in the when the representatives of 13 States met in

Philadelphia in 1787 to create the world’s first and most influential federation.

Similar conventions, influenced by the American experience, took place in

Switzerland in 1848, Canada in 1867, and Australia in 1897/1898. But elsewhere, in

Latin America and British Colonies, federalism was imposed from without rather than created from within.8 Many of the federation imposed by Britain as it shed colonial responsibilities soon fell apart: for instance, the short-lived East-African federation comprising , Tanzania and . In India however federalism has provided a means for holding together a large and diverse country. The other important form of federation is the possibility for a unitary State to restructure itself as a federation. This is still a rare occurrence, with Belgium as the main example.9

So federalism can be achieved either by giving power to a new central authority, or by transferring them from an existing national government.

The emergence of federations raises an important question. Why should autonomous governments ever agree to cede some sovereignty to a new federal authority? One argument is that federations emerge when there is an external threat.10 The

American States, for instance joined together in 1789 partly because they felt themselves to be vulnerable in a predatory world. In Canada, the framers wanted to expand their political and economic influence to the northwest in response to

7 Above note 1, p. 168 8 Above note 1, p. 169 9 Fitzzmaurice, J., The Politics of Belgium: A Unique Federalism, Hurst, London, 1996 10 Riker, W., European Federalism: The Lessons of Past Experience in Federalizing Europe, Oxford University Press, Oxford and New York, 1996, pp. 9-24 19 American expansion up the Pacific coast. The other argument is that the motive for forming federations has been economic rather than military.11 For example

Australian and American federalists felt that a common market would promote economic expansion. The most useful argument is that the federations are useful for bridging ethnic diversity and a federation is a way of incorporating such differences within a wider political community. People who differ by descent, language and culture can nevertheless seek the advantages of common membership in a federation.12 For example, federalism in Switzerland integrates 23 cantons, three languages (German, French and Italian), and two religions (Catholic and Protestant).

Belgium is another instance of ethnic federalism. First established in 1830, Belgium has been beset by division between French and Dutch speaking regions.

Constitutional revisions in 1970 and 1980 devolved more power to these groups and in 1983 Belgium finally proclaimed itself a federation.

Suitability of a federal form of government in the Sri Lankan situation is questionable. The two most important factors among the other are the geographical factor and the sustainability factor.

Under the geographical factor, the size of the territory is important. The total area of the entire island is 65610 sq km. Under the present Provincial Council system, there are 9 Provincial Councils operating island wide. If these are going to be the units of demarcation for the establishment of a federal State, the average land area for one

Provincial Council is around 7290 sq km. This is worth comparing with the other federations in the world. The smallest federation in the world, Belgium has a total

11 Above note 1 p.170 12 Forsyth, M., Federalism and Nationalism, Leicester University Press, Leicester, 1989 20 area of 30,000 sq km and among its 3 States has an average of 10,000 sq km per

State. The second smallest federation, Switzerland has a total area of 41,000 sq km, and among its 26 States has an average of 1576 sq km per State. Compared to the two smallest federations of the world, if a federal system is introduced in Sri Lanka, it will have an acceptable average area of land per State. In terms of Gross Domestic

Product/per capita (GDP/per capita), Belgium, Switzerland and Sri Lanka in year

2000 had US$ 23,400, 26,400 and 2,500 respectively. This is the most important factor in terms of sustainability. The very fact that Sri Lanka has a comparatively meagre GDP/per capita poses the very question of sustainability.

The next degree of devolution is confederation. Confederation is a weaker link between the components parts. In a confederation, the central authority has little power. There is a political controversy as to the categorisation of European Union.

The more favoured view is that the EU is a confederation rather than a federation.

With the general introduction of the legal issues, it is now appropriate to turn to analyse the legal issues separately.

21 3:1 Issue 1

Entitlement of separatists for the right of self-determination

In order to exercise the right of self-determination in the form of separation, an entity needs to satisfy certain requirements laid down by international law. In this analysis it is important to ascertain the State practice in the world.

Eritrea, Bangladesh and East-Timor are successful stories of self-determination.

Katanga and Biafra are failures. Their effort to declare their territories as independent

States were not recognised by the international community and finally crushed by the parent States. Secessionists movements in Kashmir, Punjab, Assam and Naga land in

India; Ache and Irian Jaya in Indonesia; Quebec in Canada; Basque Country in

Spain; and Bougainville in are classic examples of separatist movements struggling for self-determination. The results of these struggles would possibly be known in the years, decades or centuries to come.

The Sri Lankan issue is also in the pending category. The essential results in all these struggles are either creation of a new sovereign State, devolution of powers within a unitary or a federal State, crushing the separatist movement and restore the sovereignty of the mother land or most probably the continuation of the struggle indefinitely at the cost of invaluable human lives and deterioration of the State economies concerned.

22 According to Professor Akehurst13:

“ There is a black letter law with respect to secessionary movements. There is

no rule of international law, which forbids secession from the existing State;

nor is there any rule which forbids the mother State to crush the secessionary

movement, if it can. Whatever the outcome of the struggle, it will be accepted

as legal in the eyes of international law. But, so long as the mother State is

still struggling to crush the secessionary movement, it cannot be said that the

secessionary authorities are strong enough to maintain control over their

territory with any certainty of permanence.”14

This is the traditional view. In the present world context, certain legal principles have been developed as to the limitations of the rights of secessionary movements. It is not only by treaty regime, but by State practice as well. The following chapters will discuss the rights of the secessionary movements and the restrictions imposed on them by the present world order. The notion of self-determination has developed to give the peoples in sovereign States to claim the right to secession under certain circumstances.

In exercising the right of self-determination, what secessionists claim is the right to create another sovereign State within the territories of the original sovereign State. In order to fulfil this, the new entity has to satisfy the requirements in international law to become a State. In other words the new entity needs to fulfil the requirements of

13 Akehurst, A Modern introduction to international Law, 5th ed., Allen, 1985, pp. 53-54 14 Above note 23 the Montevideo Convention.15 The ingredient elements of the Statehood test in relation to the Tamil issue are discussed in Chapter 9.

3:2 Issue 2

Entitlement of the State to protect its territorial integrity and sovereignty

The territorial integrity and political independence of the State are inviolable.16

Territorial sovereignty signifies that within its territorial domain jurisdiction is exercised by the State over persons and property to the exclusion of other States.17 In preserving the sovereignty of State, a State could rightfully exercise its powers within its territory. The report18 on the Aaland Island case stated that:

‘The grant or refusal of the right to a portion of its population of determining

its own political fate by plebiscite or by some other method is exclusively an

attribute of the sovereignty of every State which is definitively constituted.’

Within the principle of sovereignty of State, Sri Lanka is entitled to take appropriate action to resolve the crisis. The options Sri Lanka has are threefold. The first option is to crush the separatist movement. Secondly, it can concede the demands made.

Thirdly, Sri Lanka can come to a political solution by way of either a unitary or a federal structure.

15 Montevideo Convention on the Rights and Duties of States of 1933 16 UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States 1970 17 Shearer, I.A., Starke’s International Law, Butterworths, 1994, p.144 18 Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Island Question, Official Journal of the League of Nations, Special Supplement No.3, October 1920, p. 5 24

The main concern throughout the years of the crisis has been the political unwillingness of the parties to come to a concrete solution. The successive governments during post-colonial era have not concentrated on any single political or military solution. There has been no national policy on this major issue so that it resulted in experimenting with various solutions with the successive governments.

Immediately after the independence in 1948, the Tamil political parties being dissatisfied with the way the governments treated Tamils agitated for a federal system. At this time the government position was to find a solution within a unitary

State. The agitation for a federal system by the Tamil political parties has since developed to the agitation for a separate Tamil Elam State.

The principle of sovereignty of States and its conflicting principle of right of self- determination in the context of Sri Lankan issue is discussed in Chapter 8.

3:3 Issue 3

The Degree of Devolution of power

Tamil politicians since independence in 1948 agitated for a federal solution. In

August 1956 one month after passing of the Official Language Act, the Federal Party

(the main political party representing the Tamil electorate) presented four main demands to the government. These were for a federal constitution; equality of status for the Tamil and Sinhala languages; granting of citizenship to the Indian Tamils; and immediate halt to government sponsored Sinhalese resettlement in what were

25 seem as Tamil speaking areas. Then in May 1976, the Tamil United Liberation Front

(TULF) was established. No longer was there a call for decentralised government or a federal State. In the Vaddukoddai Resolution, adopted on 14 May 1976, the TULF declared that all attempts to co-operate with governments had failed and that only through a separate Tamil State could Tamil historical grievances be met. Since the beginning of the agitation for a separate Tamil sovereign State there has been many efforts to solve the problem. The government through out this period basically relied on military action while on the other hand inviting the separatists to negotiation table. Foreign governments at various stages interfered in this conflict both with and without invitation by the Sri Lankan government.

The Summit Meeting between The Indian Prime Minister Rajiv Gandhi and Sri

Lankan President J R Jayawardena in New Delhi in June 1985 paved the way for the peace talks that took place in Thimpu, the capital of Bhutan on 8th July 1985. At the talks, the Sri Lankan government presented a set of proposals; the TULF rejected these proposals. In response to government proposals at Thimpu, Tamil organizations unitedly put forward "four cardinal principles" and called for the Sri

Lankan government to come out with a set of proposals based on and in conformity with them. The "four cardinal principles", better known as Thimpu principles19 in

Tamil political discourse are:

1. Recognition of the Tamils of Sri Lanka as a distinct nationality; 2. Recognition of an identified Tamil homeland and the guarantee of its territorial integrity;

3. Based on the above, recognition of the inalienable right of self-determination of the Tamil nation; and

19 Joint Statement by the Tamil Delegation at Thimpu on 13th July 1985 26 4. Recognition of the right to full citizenship and other fundamental democratic rights of all Tamils, who look upon the island as their country.

They must be rejected for the reason that they constitute a negation of the sovereignty and territorial integrity of Sri Lanka, are detrimental to a united Sri

Lanka, and are inimical to the interests of the several communities, ethnic and religious in the country.20

The second major attempt was the Indo-Lanka Accord of July 1987. This Accord, signed by the governments of India and Sri Lanka, offered a new system of devolution, which gave Tamil the status of an official language. It also provided for the deployment in Sri Lanka of an Indian Peace Keeping Force (IPKF) to enforce the cessation of hostilities and the surrender of arms. While none of the militant groups were signatories to the accord, the Indian government clearly believed they would comply with its implementation. The IPKF arrived in northeast Sri Lanka on 30 July.

A united North-Eastern Province was created under its terms, elections to a provincial council were held in November 1988 and were won by the Indian- favoured Eelam People's Revolutionary Liberation Front (EPRLF). Meanwhile, the

Indo-Lanka Accord had stirred extensive protest in the Southern Sri Lanka from those who feared Indian expansionism, and fuelled a vicious insurrection within the

Sinhala community.

20 Loganathan, Ketheshwaran, Sri Lanka: Lost Opportunities, Colombo: CEPRA, 1996

27 The presidential elections of December 1988 brought a change in Sri Lankan policy towards Indian involvement. The new UNP president, Ranasinghe Premadasa, began negotiations with the LTTE in April 1989. Premadasa held common cause with the

LTTE in seeking to remove the IPKF from Sri Lanka, which he believed would address a major cause of the southern insurgency. Increasingly besieged, Indian troops began withdrawing in September 1989, the last leaving in March 1990. With the IPKF gone, negotiations between the government and the LTTE soon broke down. The Indo-Lanka Accord and the Indian government's efforts to resolve the conflict had both failed dismally.

Throughout the 1990’s, the People’s Alliance government continued with the drafting of a new constitution with devolution of greater powers to the Tamil regions.

The Tamil separatists were never in favour of these devolution proposals, wanting nothing short of a separate Tamil State.

However, following the September 11 attacks on the twin towers and the Pentagon, and their aftermath, secessionist movements around the world have been reconsidering their strategies. The Sri Lankan Tamil separatists too seem to have changed their strategy. This has resulted in an agreement between the Sri Lankan government and the LTTE on 21st February 2002, which formalises the cease-fire in place since December 2001.

In a radical move to clarify the policy orientation of his organisation, on 27

November 2002, Mr Velupillai Pirapaharan, the leader of the Liberation Tigers of

Tamil Eelam (LTTE) declared that he would favourably consider a political

28 framework that offers substantial regional autonomy and self-government to the

Tamil people on the basis of their right to internal self-determination. The text of Mr.

Pirapaharan’s annual Heroes’ Day address was released to the media in an official statement.21

This sudden change of attitudes has to be understood in terms of the present world context.

It is commonly believed now that the world has changed since September 11 attacks on U.S.A. The whole world raised their voices in condemnation of the brutal terrorist attacks.

The Security Council affirmed its unequivocal condemnation of the terrorist attacks which took place in New York, in Resolution 1373,22 which is designed to turn every domestic law enforcement agency, every department of the treasury, every telecommunication ministry and every transportation authority against terrorism’s money and movement anywhere and everywhere in the world.23

The North Atlantic Council of the North Atlantic Treaty Organisation (NATO) resolved that if it was determined that the attack was directed from abroad against the

U.S., it shall be regarded as an action covered by Article 5 of the Washington Treaty, which provides that an armed attack against one or more of the allies in Europe or

North America will be considered an attack against them all.24

21 http://www.tamilnet.com/art.html?catid=13&artid=7902 22 Security Council Resolution 1373 (2002) adopted by the Security Council at its 4385th meeting, on 28 September 2001 23 Negroponte, John D., U.S. Permanent Representative to the U.N. Oscar Iden Lecture delivered at the Institute for the Diplomacy of the Edmund A. Walsh School of Foreign Service, Georgetown University, on the ‘ U.N. agenda in the wake of September 11’, February 27, 2002 24 NATO press release (2001) 124, 12 September 2001 29 The European Council in Brussels, while condemning the attack reaffirmed the

European Union’s total solidarity with the U.S. to build a global coalition against terrorism and fight it’s root cause and committed itself to implement in full Security

Council Resolution 1373.25

All the world organisations representing the first world’s elite State identified the issue of global terrorism as being the new priority.26

The U.S.A. Secretary of State in October 2001 designated 26 foreign terrorist organizations (FTO).27 This includes among other terrorist organizations, the Sri

Lankan Tamil Separatist movement, Liberation Tigers of Tamils Eelam (LTTE).

That most of the developed world elite States had a neutral attitude towards the separatist movements in the third world countries even though these movements resort to terrorist activities to achieve their demands. They did not only turned a blind eye but they prevented the international world aid agencies from giving foreign aids to these poor countries based on bad human right records in the effort of their struggle to prevent these terrorist activities and to preserve territorial integrity.

However when these first world elite States experience the scourge of terrorism on their own soil, they seem to observe the problem of terrorism in a different perspective. The latest world order has come to a point where the global alliance against terrorism is in the forefront. The military actions in Afghanistan by the Allied

Forces sanctioned by the United Nations have proved to have no respect for any basic per emptive norms of international law. If the allied forces suspect any Al-

25 The Diplomatic Front, Brussels, 07 December 2001, Memo/01/424 26 Above note 31 27 2001 Report on Foreign Terrorist Organizations released by the Office of the Coordinator for Counter terrorism 30 Qa’ida presence in any region, they use their sophisticated weapons to eradicate them even though later the Pentagon officials confirm that they targeted a wrong destination based on relying on untrustworthy informants who tricked U.S. in to sending in lethal air strikes on the tribal enemies.28

The ‘September eleven factor’ has in fact changed the world. For the first time since the Tamil ethnic crisis started in Sri Lanka the international community has welcomed a solution respecting the rights of Sri Lankan Tamil community ‘within the context of an undivided Sri Lanka.’29 The U.S government has urged LTTE to honour the cease-fire agreement, and has emphasised the need for the LTTE to end its reliance on terrorism and accept that an independent ‘Eelam’ is both unattainable and unnecessary.30 The signing of the cease-fire agreement by the LTTE with the Sri

Lankan government is explainable in terms of this present world order.

It is now necessary for the Sri Lankan government to make substantive proposals to end the ethnic crisis in the country. All attempts to solve the problem by devolving power at the rural and district levels have failed. By observing the magnitude of the suffering of the Tamil population as a whole, and the number of generations that have suffered, the Tamil population in Sri Lanka undoubtedly deserve something substantial. It is undeniable that for whatever reasons, the Tamil population in Sri

Lanka have been subjected to several discriminatory policies and practices by the government. A federal solution would pave the way for the realisation of internal self-determination of the Tamil people in Sri Lanka, which on the other hand would also preserve the territorial sovereignty of Sri Lanka in it’s true sense.

28 Ware, Michael reporting from Kandahar in ‘Civilian Casualties: When bad information kills people’ Time Australia, March 11, 2002 p.30 29 Press Release by the American Embassy in Colombo on behalf of the United States Government 22 February 2002 30 Above note, 11 March 2002 31 Chapter 4

Self-Determination

The principle of self-determination is an established concept, has been controversial throughout and open to a wide range of interpretation. The ‘Oxford Dictionary

20001 defines self-determination as ‘the right of a country and its people to be independent and to choose their own government and political system’. The

Cambridge international Dictionary of English2 defines self-determination as ‘the ability or power to make decisions for yourself, esp. the power of a nation or people to decide how it will be governed’.

The origin of the principle of self-determination can be traced back to the American

Declaration of Independence (1776) and the French Revolution (1789)3. The core of the principle lies in the American and French insistence that government be responsible to the people.4

Since its conception, it has played a major role in the development of the international community. The concept first spread from France to Italy where in the

19th century Giuseppe Mazzini invoked5 it as a political postulate in his push for the unification of Italy. The principle demands that all nations be allowed to freely choose their status. With the advent of the First World War and the Bolshevik

Revolution, the principle emerged in the international scene. For U.S. President

1 http://www1.oup.co.uk/elt/oald/, 29 May 2002 2 http://dictionary.cambridge.org/define.asp?key=selfdetermination*1+0,29 May, 2002 3 Cassese A., ‘Self-Determination of peoples: a legal reappraisal’, Cambridge University Press 1996. p.11 4 Above note 5 Quoted by Beales, D.E.D. ‘Mazzini and the Revolutionary Nationalism’ in D.Thompson, Political Ideas, London 1969, - p.146 32 Woodrow Wilson, it was the key to lasting peace in Europe. For V.I.Lenin, it was a means of realizing the dream of worldwide socialism.

Lenin was the first to insist to the international community that the right to self- determination be established as a general criterion for the liberation of peoples.6 The principle of self-determination was the political extension of Lenin’s primarily economic analysis of imperialism.7 It was to lead to the liberation of oppressed peoples, which was, in turn, to contribute to the success of the socialist revolution.8

Looking at various Soviet Declarations from that era, Soviet political leaders envisioned self-determination as having three components.9 First, ethnic or national groups intent on deciding their own destiny freely could invoke it. Second, it was a principle to be applied during the aftermath of military conflict between sovereign

States, for the allocation of territories to one or another power. Third, it was an anti- colonial postulate designed to lead to the liberation of all colonial countries. The first component of the principle of self-determination, which granted ethnic or national groups the right to decide their destiny freely, all ethnic groups- not just those living under colonial rule- were to have the right to choose whether to secede from the power to which they were attached or alternatively, to demand autonomy while remaining part of the larger structure.

For Lenin the self-determination of people living in sovereign States was to be primarily realized through secession.10 Secession however was not necessarily to be

6 Lenin V.I., ‘The Socialist Revolution and the Right of Nations to self-determination’ in Selected works, London, 1969, p.159 7 Mayer A.J., Wilson vs. Lenin. Political origins of new diplomacy, 1917-1918, Cleaveland and New York,1964, p.298 8Above note 9Above note 3, p.11 10 Lenin V.I. ‘Theses’ in selected works, London, 1969, p.157 33 carried out by forcible means, but could result from the free expression of a popular vote. Attainment of independence by a nation or people was not to be regarded as the ultimate goal. Stressing the dangers of separation, fragmentation and the formation of small States and by the same token the indisputable advantages of big States, Lenin emphasised the advantages of federation as opposed to independent nations.11

At the same time, U.S. President Woodrow Wilson was reportedly developing his own thoughts on the principle of self-determination. For Wilson it was synonymous with the principle that government must be based on the consent of the governed, which meant that the principle of self-determination basically consists of the right of people to freely choose their government.12 This leads to the conclusion that

Wilsonian Consept included an important ingredient: that the principle of self- determination required that peoples of each State be granted the right to freely select

State authorities and political leaders.13 Self-determination meant self-government.

The principle of self-determination was thought to be essentially domestic in nature, which was incapable of application in the international level. The first attempt to make the principle international was by U.S.A. President Woodrow Wilson.

This is to be analysed in the light of the Treaty of Versailles 1919, which was concluded between the victorious allies and the defeated parties after the World War

I.

11 Above note p.160 12 Woolsey, T.S. ‘Self –determination’ American Journal of International Law 1919, pp.302-5 13 Above note 3 p.19 34 The allied governments in reallocating the territories to the victorious parties had no concern about the principle of self-determination. To them, there was self- determination if the demands of the peoples were consistent with the geopolitical and strategic interest of the Great Powers.14 Thus, on the whole, self-determination was deemed irrelevant where the peoples’ will was certain to run counter to the victors’ geopolitical, economic, and strategic interests.15

President Wilson’s offering of peace to the world after World War 1 was based on the principle of self-determination. This was embodied in his famous speech to the

Congress on January 8, 1918, popularly known as the 14 points.16 The Fourteen

Points embodied American foreign policy on the post-war settlement.17

President Wilson in his 14 points emphasises the importance of the equal rights of the several peoples concerned. On February 11, 1918, President Wilson supplemented the Fourteen Points with another Four Principles, which he held essential to a permanent peace:

Principle 1 - Each part of the final settlement must be based on the essential justice of that particular case.

Principle 2 - Peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited of the Balance of Power, but that

14 Hurst, H., Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, University of Pennsylvania Press, Philadelphia, 1996, p.28 15 Above note 3 p.25 16 Annexure 11 17 http://www.hungary.com/corvinus/lib/tria/tria18.htm, 29, May 2002 35 Principle 3 - Every territorial settlement involved in this war must be made in the interest and for the benefit of the population concerned, and not as a part of any mere adjustment or compromise of claims amongst rival States, and

Principle 4 - All well-defined national elements shall be accorded the utmost satisfaction that can be accorded them without introducing new or perpetuating old elements of discord and antagonism.”18

Three of his subsequently enunciated four principles concerned self-determination:

“Peoples and provinces must not be bartered about from sovereignty to sovereignty as if they were chattels or pawns in a game; territorial questions were to be settled in the interest of the populations concerned; and well defined national elements were to be given the utmost satisfaction that can be accorded them without introducing new or perpetuating old elements of discord and antagonism”19

It was President Wilson’s effort to introduce the principle of self-determination in to the peace effort after the destructive war when he proclaimed fourteen points, which was elaborated in the four principles. All attempts made by Wilson to include the principle of self-determination in the peace treaty after the First World War failed.

The only plan the Great Powers had in drafting the Treaty of Versailles in preserving world peace was to completely eliminate Germany’s territorial, imperial, military and economic power to such an extent, that the country would never wage war again.

The principle of self-determination was totally disregarded and the result was to create a world with so many Sovereign States with arbitrary demarcations.

18 Above note 19 Quoted in Mee, C.L., Jr., The End of Order (New York: E.P.Dutton, 1980) p.53-54 36

The next step in world history where the principle of self-determination found its way was in the Atlantic Charter 1941, which was proclaimed by the President of

U.S.A. and the Prime Minister of U.K. during the Second World War. The Charter proclaimed self-determination as a general standard governing territorial changes, as well as a principle concerning the free choice of rulers in sovereign State. However the principle proclaimed in the Charter did not apply to colonial peoples but only aimed at restoring the sovereignty, self-government and national life of the States and nations of Europe under the Nazi yoke.20 The Atlantic Charter was one of the grossest pieces of deceit in modern times because Churchill was prepared to apply it to countries over-run by Hitler while the independent government which it proposed to give them was denied the territories that had been over-run in the past by Britain herself.21

The next important stage of development of the principle is in the preparatory work to the present charter of the UN. Despite the fact that the principle appeared in the policy documents adopted by the allies during the second world period, at the end of the talks at Dumbarton Oaks, there was no mention of the principle in the draft

Charter. When the United Nations Conference on International Organisations met in

San Francisco, the four powers had reconsidered the issue of including the principle at the insistence of the former Soviet Union. It was through the initiative of the

U.S.S.R. and the developing countries that the inclusion of the principle was made possible. However having realized that the inclusion of the principle of self-

20 Grenville, J.A.S., The Major International Treaties: 1914-1973-A History and Guide with Texts, London, 1974, p.198 21 Chand, A., India and the Atlantic Charter, Lahore, Hero Publications, 1945 37 determination was unavoidable, the powerful countries such as U.K., U.S.A., shifted their position and bargained to include the principle in full force which again developing countries objected on the ground it would result in chaos.

The final text of the Charter mentions the principle of self-determination twice.22

First, in the context of developing friendly relations among nations and second, in conjunction with the principle of equal rights of peoples. It is generally accepted that the political postulate of self-determination only entered the realm of international law in 1945, when it was proclaimed in Article 1(2) of the UN Charter.23

There was no mention of principle of self-determination in the Universal Declaration of Human Rights of 1948.

The notion of self-determination so far has been considered as a principle, which would behave like a guideline. It did not have any direct positive effect on international law. The first instance the notion of self-determination was referred to as a ‘right’ was in the Declaration on the Granting of Independence to Colonial

Countries and Peoples of 1960. It proclaimed 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.”

The next mention of the notion of self-determination as a right is in the United

Nations Covenants of Civil and Political Rights and Economic, Social and Cultural

22 United Nations Charter A.1 (2) and 55 23 Above note 3, p.65 38 Rights. Both the Covenants had a common Article 1(1), which reiterated exact words as in the 1960 Declaration mentioned above.

The next mention of the principle was in the Declaration on Principles of

International Law Concerning Friendly Relations and Co-operation among States

1970. This wording of the provision in respect of self-determination is very much similar to the wording in the common Article 1(1) of the two Covenants of 1966 above mentioned. The important point of deviation is the addition of a saving clause.

It restricted the dismembering or impairing of the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples thus possessed a representative government.

This saving clause could be interpreted as giving rise to an implied right of secession as an ultimate achievement of the principle of self-determination. This implied right, if there is any, is granted with caution and in a very much restrictive manner. Apart from this implied right, there is no discoverable provision in the later development of the treaty law as to the right of secession. The only legislation in the international scene dealing with either principle of self-determination or the protection of minority rights after 1970 Declaration is the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and linguistic Minorities 1992. This does not recognise any right to secession as a mean of realising the rights of minority groups living in a sovereign State.

39 The foregoing discussion attempts to trace the evolution of the notion of self- determination. The political postulate of self-determination developed in to a principle of international law with the proclamation of the United Nations Charter, which further developed in to a legal right with the proclamation of 1960 Declaration of Colonial Peoples. This legal right however has so far been incapable of creating a separate right of secession as complete fulfilment of the right of self-determination especially in respect of minority groups living in a sovereign State.

The next chapter analyses the treaty provisions starting from the Treaty of Versailles to the latest Declaration of the Rights of Minorities 1992 in order to establish the dimensions of the principle of self-determination with the final objective of ascertaining the availability of any legal principles supporting the right of secession of minority groups living in a sovereign State.

40 Chapter 5

Treaty Law and Self-Determination

A “Treaty” is defined as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.1 Having discussed the principle of self-determination in general, it is the aim now to find out the principle as embodied in various treaties since the inception of treaty law regime. In the discussion here, the principle of self- determination will be analysed and its relationship to minority rights will be emphasised. The treaties that will be analysed in this chapter are:

1 Treaty of Versailles 1919

2 Covenant of League of Nations 1920

3 Atlantic Charter 1941

4 United Nations Charter 1945

5 Declaration on granting of independence to colonial countries

and people 1960

6 Civil and Political rights and Economic Social and Cultural

covenants of 1966

7 Declaration on Principles of international law concerning

friendly relations and Cooperation among s 1970

1 Vienna Convention on the Law of Treaties (1969) 41 8 Declaration on the rights of persons belonging to national or

ethnic, religious and linguistic minorities 1992

5:1 Treaty of Versailles 1919

The justification put forward by allies in the First World War against Austria-

Hungary, Germany, Bulgaria and the was self-determination. The allies’ claim was that the primary purpose of their war effort was the realization of the principle of nationality and of the right of peoples to decide their own destiny.

Austria and Germany strongly objected this argument on the ground that the allied governments had little title for such claims in view of the manner in which they treated minorities, nationalities and peoples in their own countries and colonies.2

The expressed objective of the peace conference of Versailles was to bring about peace. However the hidden agenda of the great powers was to exact vengeance.

President Wilson’s stand was to establish peace on the fourteen points, which in fact contained the principle of self-determination. Wilson’s proposals were completely disregarded and the peace Treaty of Versailles concluded, with the main objective of punishing Germany. The Treaty had two main issues on which it focused; Germany’s post war territory and the amount of reparations Germany must pay. According to

Wilson’s plan Germany should retain most of its pre-war territory with few exceptions and the country should pay little or no reparations. Conversely the Treaty gave power to the Allies to gain control of most of the territories held by Germany. It also charged Germany with the task of paying heavy penalties.

2 Scott, J.B., Official statements of War Aims and Peace Proposals, December 1916-November 1918, Washington, 1921, p.44 42

The ultimate result of the Peace Treaty was to reallocate the territories held by the axis powers to the allied powers. The will of the peoples living in those territories were not consulted and this resulted in arbitrary demarcation of boundaries of these territories, which planted the seed of discontent among various ethnic and religious groups living in the same territory. The whole world is still experiencing the major wrongful step taken by the allied powers in concluding the Treaty of Versailles in a manner, which was inconsistent with the principle of self-determination. Whether or not Woodrow Wilson’s peace would have fared better than the Treaty of Versailles is incapable of assessing, as there was no room for his ideology to be implemented at the conclusion of the First World War.

5:2 Covenant of the League of Nations 1920

The only attempt to incorporate the principle of self-determination in the covenant of

League of Nations is again by Woodrow Wilson. His draft proposal stated:

The contracting powers unite in guaranteeing to each other political

independence and territorial integrity but it is understood between them that

such territorial adjustments, if any, as may in future become necessary by

reason of changes in present racial and political relationships, pursuant to the

principle of self-determination, and also such territorial adjustments as may in

the judgement of three-fourth of the delegates be demanded by the welfare

and manifest interest of the people concerned, may be affected if agreeable to 43 those peoples; and the territorial changes may in equity involve material

compensation. The contracting powers accept without reservation the

principle that the peace of the world is superior in importance to every

question of political jurisdiction or boundary.3

Even this modest formulation of the principle was dropped before the adoption of the

Covenant.

Consequently, the Covenant of League of Nations failed to make any mention of the principle of self-determination. Nor did it address the right of minorities living in sovereign States. In other words the Covenant of the League did not explicitly provide for the protection of minorities.4 Notwithstanding this, the League was instrumental in setting up the international machinery for the protection of minorities.5 The protection of minorities was an imminent task following the redrawing of borders after World War 1 by the allied powers who disregarded the basic value of the will of the peoples. Many pockets of religious, ethnic and linguistic minorities resulted. This led the Allied Powers to insist on special protection for minorities, which was afforded either by treaty or unilateral declaration. Frequently, this would serve as the guarantor of these territories to assure the minorities were in fact protected. To monitor adherence to these treaties, the league evolved the international protection of minorities system.6

3 Lansing, R., The Peace Negotiations-A Personal Narrative, New York and Boston, 1921, p.283 4 Jensen, Erick J., Introduction to International Law in Sri Lanka, The Open University of Sri Lanka, Colombo, 1989, p.7 5 Above note 6Above note p.169 44 From the very early stages of development of international legal principles in the form of treaty law, the emphasis was on the protection of minorities but not on the principle of self-determination.

The Covenant in Article 10 provides that:

The Members of the League undertake to respect and preserve as against

external aggression the territorial integrity and existing political

independence of all Members of the League. In case of any such aggression

or in case of any threat or danger of such aggression the Council shall advise

upon the means by which this obligation shall be fulfilled.

This Article 10, read with the regime of international Protection of Minority System developed under the League of Nations provides that the Covenant was to protect the rights of minorities while respecting the territorial integrity of the existing system.

Despite the fact that the principle of self-determination was being shaped in the international political arena in the form of Leninist and Wilsonian concepts, the

Covenant had no express provisions to recognise the principle of self-determination in any form. This was mostly due to the fact that the majority of the members of the

League did not intend to give effect to a principle, which would result in demolishing their huge empires. Under any circumstances it is submitted that at the time of birth of the Covenant, the international world community was not in favour of the principle of self-determination as a legal norm.

45 5:3 Atlantic Charter 1941

Article 2 and 3 are considered to be the most important aspects of the Charter in terms of self-determination. Article 2 stated that:

They desire to see no territorial changes that do not accord with the freely

expressed wishes of the peoples concerned.

Article 3 stated that:

They respect the rights of all peoples to choose the forms of government

under which they will live; and they wish to see sovereignty and self-

government restored to those who have been forcibly deprived of them.

This is the first instance in which the principle of self-determination found its way to an international treaty. Article 2 was a reiteration of the principle of self- determination of nations brought over from the era of Woodrow Wilson.

The Lord Privy Seal in the Churchill government stated a few days after the release of the Charter:

The Declaration will be equally applicable to all races, including Asians and

Africans.

U.S. Secretary of States Cordell Hull said that:

It was the statement of basic ideas of policies that are universal in their

application.

46

The universal application of the principles laid down in the Atlantic Charter was restricted for the sole purpose of waging war against the axis powers. Once the war was won, the principle was applied only to the territories, which were overrun by

Hitler. The principle of self-determination again proved to be a victim of power politics.

5:4 United Nations Charter 1945

The final text of the United Nations Charter, unlike the League of Nations Covenant, included the principle of self-determination. Article 1(2) of the UN Charter provides that one of the purposes of the United Nations is:

To develop friendly relations among nations based on respect for the

principle of self-determination of peoples, and to take other appropriate

measures to strengthen universal peace.

The most controversial phrase has been ‘self-determination of peoples’. The daunting question has been if the word ‘peoples' is only applicable to people in a colonial situation or if it included the people living in a sovereign State. A literal interpretation would appear not to imply any restrictions to which the principle applied so that it includes minority groups living in a sovereign State. But this conclusion must be examined before it is accepted. It is therefore essential to focus

47 on the process of development of the charter provisions in the preparatory work to the present Charter.

In the San Francisco Conference, the four powers at the insistence of the U.S.S.R7, suggested amendments, among other aims of the organization to include the present provision in Article 1(2).8 This has resulted in giving various interpretations to the present provision of the Charter. There was not universal support for the inclusion of self-determination in the charter. Even the members who supported the inclusion of the principle did not want the principle to apply to all the situations.

A number of possible qualifications were raised.

First9, where a national minority in a given country claim the right to self- determination, would the organization be expected to step in and would other States feel duty-bound to interfere on the strength of the concept of ‘friendly relations’. One of the chief arguments was that it would be dangerous to put forth the peoples’ right of self-determination as a basis for the friendly relations between the nations, as it would open the door to inadmissible intervention if, as seems probable, one wishes to take inspiration from the peoples’ right of self-determination in the action of the organization and not in the relations between the peoples.10

Secondly, If self-determination meant self-government, the right of a country to provide its own government should be included: but if it were to be included, the

7 Russel, R.B., A History of the UN Charter, Washington, 1958, P.810 8 See UN Conference on International Organizations, Vol. VI, 1945,296 9 Above note Vol. VI p.300 Remarks by Belgium delegate 10 Above note 48 right of withdrawal or secession, this could give rise to international anarchy, and should not be included in the text of the Charter.11

A majority of countries forecast fears if the principle of self-determination is included in the Charter as proposed would lead to wide misapplication and abuse.

Subsequently, the Committee responsible for the drafting of the relevant provisions agreed on four points.12 First, this principle corresponded closely to the will and desires of people everywhere and should be clearly enunciated in the chapter of the

UN Charter. Second, the principle conformed to the purposes of the Charter only insofar as it implied the right of self-determination of peoples and not the right of secession. Third, it was agreed that the principle of self-determination as one whole extends as a general basic conception to a possible amalgamation of nationalities if they so freely chose. Fourth it was agreed that an essential element of the principle of self-determination is the free and genuine expression of the will of the people.

From the above discussion, it is obvious that there is a contradiction between the true wording of the Charter provisions and the true intentions of the drafters of the charter province in respect of the application of the principle of self-determination. Whether the principle apply only to colonial peoples or to all people living in a sovereign

State. In this situation, clearly question of interpretation arises. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.13 The

11 Minutes of the debates of the first committee of the first commission of the San Francisco Conference, 15 June 1945, Library of the Palais des Nations, Geneva p.20 Remarks of the Colombian delegate 12 Above note 7 p. 296 13 The Vienna Convention of the Law of Treaties 1969, A.31 49 result of the Charter provision interpreted in the way guided by the Vienna

Convention does not resolve the problem.

The concept of self-determination upheld in the Charter can only be negatively inferred from the debate preceding the adoption of Article 1(2).14 Self-determination did not mean the right of a minority or an ethnic or national group to secede from a sovereign country.15

In the ultimate analysis, even though the member States, including the colonial powers, have undertaken an international obligation to promote the realisation of self-determination of all peoples, no matter whether they are colonial or metropolitan territories, only the overseas colonial peoples and territories have thus been regarded as the beneficiaries of the right to self-determination.16

It is submitted therefore that the right of a minority group living in the territory of a sovereign State to exercise the right of self-determination has not been accepted with the UN Charter coming in to force in 1945.

If there exists such a right, then it is to be analysed in the light of subsequent State practice and the subsequent treaties dealing with the right of self-determination.

14 Cassese A., ‘Self-Determination of peoples: a legal reappraisal’, Cambridge University Press, 1996 p.42 15 Above note 16 Islam, Rafiqul M., International Legal implications; The Bangladesh Liberation Movement, University Press Limited, 1987 P.57 50

5:5 Declaration on granting of independence to colonial

countries and people 1960

The Declaration provides 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.17

This provision is identical to the Common Article 1 (1) of the Civil and Political

Rights and Economic, Social and Cultural rights Covenants of 1966, which would be analysed in the next paragraph. No distinction has been drawn between peoples who have attained independence and those who still have dependant status.18 It is true that the phrase -all peoples have the right to self-determination- does not draw any distinction between the people who have attained independence and those who still have dependant status. The full text in the Declaration suggests that the Declaration intended to include colonial people as the chief beneficiary of this document. The

1960 decolonisation declaration emphasised the application of self-determination to overseas colonial peoples and territories.19 It is submitted that the decolonisation declaration, main objective of which is decolonisation, cannot be used for the realisation of minority rights in a sovereign State.

17 Article 2, Declaration on the granting of independence to colonial countries and peoples 18 Above note 16, p. 58 19 Above note 51 The conclusion is that the decolonisation Declaration should be restricted to its intended scope of decolonisation.

5:6 Civil and Political rights and Economic Social and Cultural

Rights covenants of 1966

The Universal Declaration of Human Rights is the first step in converting the few provisions of the UN Charter into a set of legally binding treaty provisions specifying the general principle of Human Rights laid down in the Charter. In order to give legal effect to the provisions of Universal Declaration of Human Rights, the Human Right

Commission later decided to draft two separate covenants one dealing with political and civil rights, and the other dealing with Economic, social and cultural rights. The original intention of the two covenants was to lay down the fundamental rights and freedoms of individuals. The Soviet Union emphasised the need for both covenants to enshrine the rights of people to self-determination, which was a precondition for the respect of human rights.20 The effort of the western countries to exclude any mention of right of self-determination failed as the Soviet Union had strong support from the developing countries. Having lost the campaign by the western countries, they insisted that if the principle is included in the Covenant, it must not be limited to colonial situations. However, the overwhelming majority of countries had already explicitly stated that the provision was not intended to cover minorities living in sovereign States.21 It is against this background that the final provision was drafted.

20 Henkin, L., The international bill of rights-The Covenant on Civil and Political Rights, New York, 1981 pp. 418-9 21 See, for example, Greece (UN Doc., A/C.3/SR.572, para.32); Saudi Arabiaibid.A/C.3/SR.580, paras.21-3); Liberia (ibid. SR.644 para.33); Syria (ibid. SR.648. Paras. 7-9,SR.672, para.25) 52 Article 1(1) of both the UN Covenant on Economic, Social and Cultural Rights and the UN Covenant on Civil and Political rights provides as follows:

All peoples have the right of self-determination. By virtue of that right they

freely determine their political status and freely pursue their economic, social

and cultural development.

Again here as in the case of the UN Charter, the scope seems to be very wide. A literal interpretation of the provision leaves no doubt that there could be any restriction on the application of the principle. This is supported by the reservation22 made by India in ratifying the Covenant. India’s reservation was to the effect that the right of self-determination referred only to peoples under foreign domination, and was not relevant in regard to sovereign independent States or to a section of people or nation, which is the essence of national integrity.23 This reservation provides evidence of the fact that the consensus among the members was that the provision includes people living in a sovereign State as well. France, Federal Republic of

Germany, and the Netherlands objected to the reservation on the ground that the right of self-determination applies to all peoples.24

Despite India’s reservation to the Covenant, a close study of preparatory work very clearly suggest that the majority members had already explicitly stated that the provision was not intended to cover peoples living in sovereign States.

22 Vienna Convention on the Law of Treaties Article 2 (d) defines ‘Reservation’ as a ‘Unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the state’ 23 For the text of the reservation, see UN, Human Rights, Status of International Instruments, UN Doc. ST/HR/5 1987,9 24 Above note 53 On an analysis of the substantive rights recognised in the two covenants, it is submitted that each and every right has been considered to be an individual right and not a collective right. Furthermore, The Optional Protocol to the Civil and Political rights Covenant of 1976 enables private parties to file individual complaints with the

Human Rights Committee only in the cases where a contracting party has allegedly violated a right to which she or he is entitled under the Covenant25 since a right to self-determination is a collective right, individuals do not have standing to complain of its alleged breach.26 The cumulative effect of common Article 1(1) of the Civil and Political Rights and Social, Economic and Cultural Rights Covenants read with the rest of the Articles of the two Covenants and the Optional Protocol to the Civil and Political Rights Covenant is, it is submitted, that common Article 1(1) did not intend ‘peoples’ to encompass minorities living in sovereign States.

5:7 Declaration on principles of international law concerning friendly relations and cooperation among States 1970

The provision in respect of the principle of self-determination provides that:

By virtue of the principle of equal rights and self-determination of peoples

enshrined in the Charter of the United Nations, all the peoples have the right

freely to determine, without external interference, their political status and to

pursue their economic, social and cultural development, and every State has

the duty to respect this right in accordance with the provisions of the Charter.

25 Article 1 & 2 of the Optional Protocol to the Covenant of Civil and Political Rights 1976 26 See the Human Rights Committee’s decision of 27 July 1988 on communication no.197/1985 (Ivan Kitok v. Sweden) UN doc. CCPR/C33/D/197/1985, para.3.3. 54

This provision again reflected the western ideology of having a universal scope of the principle of self-determination.

During the drafting stage, there was a conflict between the western countries on the one hand and the socialist countries backed by the developing countries on the other hand.27 The socialist countries insisted that the right of internal self-determination must be restricted as much as possible.28 The Western countries were in favour of extending the right of internal self-determination to all peoples of independent sovereign States.29 Ultimately, the Western view failed and the result was to recognise that the main thrust of the section devoted to self-determination is the right of external self-determination.

However, unlike in the case of the three previous documents discussed above, there was a provision to prove this notion. There was a saving clause explicitly included in the declaration to this effect. It states:

Nothing in the foregoing paragraph shall be construed as authorising or

encouraging any action which would dismember or impair, totally or in part,

the territorial integrity or political unity of sovereign and independent States

conducting themselves in compliance with the principle of equal rights and

self-determination of peoples as described above thus possessed a

government representing the whole people belonging to the territory without

distinction as to race, creed or colour.

27 General Assembly Official Records, 24th session, suppl.no.19 (A/7619), 1969, at p. 63 28 Above note 25th session Suppl.. no. 18 (A/8018) 1970, p.41 29 Above note 55

Framed in positive terms the clause provides as follows:

If in a sovereign State the government is representative of the whole

population, in that it grants equal access to the political decision making

process and political institutions to any group and in particular does not deny

access to government groups on the ground of race, creed or colour, then that

government respects the principle of self-determination; consequently, groups

are entitled to claim a right to self-determination only where the government

of a sovereign State denies access on such grounds.30

On the ground of the above interpretation, the contention could be made that the

Declaration on Friendly Relations links external self-determination to internal self- determination in exceptional circumstances.31 A racial or religious group may attempt secession, a form of external self-determination, when it is apparent that internal self-determination is absolutely beyond reach.32 Extreme and unremitting persecution and the lack of any reasonable prospect for peaceful challenge may make secession legitimate. A racial or religious group may secede- thus exercising the most radical form of external self-determination- once it is clear that all attempts to achieve internal self-determination have failed or are destined to fail.33

From the above discussion it is clear that the Declaration on Principles of

International Law Concerning Friendly Relations and Cooperation among States has gone a step further, and excluded the right of self-determination of peoples living in

30 Above note 14 p. 112 31 Above note p.120 32 Above note 33 Above note 56 sovereign States, and recognised a limited right of self-determination if there is no other option. It is submitted therefore that any racial or religious group living in a sovereign State claiming secession on the basis of the right of self-determination has to demonstrate that all attempts to achieve internal self-determination have failed or destined to fail. In other words, as long as the governments comply with the principle of internal self-determination, the secessionist groups cannot succeed in their claims.

5:8 Declaration on the rights of persons belonging to national or ethnic, religious and Linguistic minorities 1992

This is the latest declaration by the United Nations in respect of protection of minorities. The Declaration provides that the States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.34 The document as a whole recognizes the rights of minorities as individuals35 and as groups36. The declaration provides that nothing in the present

Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States.37

Reading this provision with the rest of the Articles which deals with the rights of minority groups as individuals and as collectives leads to the conclusion that the

34 Article 1, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 35 Above note A.3 (1) & (2), 4 36 Above note A.3 (1), 2, 5, 6 37 Above note A. 8(4) 57 Declaration intended to protect the rights of minorities within the framework of the existing sovereign State system. Dealing with a very important aspect of self- determination, namely the rights of ethnic, religious and linguistic minorities, the

Declaration in Article 8 (4) enumerates the purposes and principles of the United

Nations to include only the principle of sovereign equality, territorial integrity and political independence of States. It very clearly omits the principle of self- determination.

It is therefore submitted that the declaration making special mention of Territorial integrity of States and omitting to make any reference to the principle of self- determination in A 8 (4) supports the view that the declaration as a whole did not recognise any right of self-determination for the people living in a sovereign State.

The analysis of all present international treaties resulted in the conclusion that the international legal regime had persistently rejected to recognise any right of self- determination to the peoples in sovereign independent States. Ever since the emergence of the political principle of self-determination in the international scene,

States have been adamant in rejecting even the possibility that nations, groups and minorities be granted a right to secede from the territory in which they live.38

Territorial integrity and sovereign rights have consistently been regarded as of paramount importance; indeed they have been considered as concluding the debate on the subject.39

38 Above note 14 p. 122 39 McGee, R.W., ‘The Theory of Secession and emerging Democracies: A Constitutional solution’ 28 Stanford Journal of International Law, 1992, pp.451-76 58 Having theoretically proved that the treaty provisions do not support the right of self- determination of peoples in sovereign States, it is necessary to analyse State practice on the subject. The next chapter focuses on this aspect.

59 Chapter 6

State Practise

Having analysed the principle of self-determination generally and specially in respect of minority peoples living in sovereign States in the light of Treaty law up to the present context, it is appropriate to focus attention on State practice on the subject so as to ascertain the status of the claim of the Tamil separatists in Sri Lanka. This study would not focus any attention on any matter related to the collapse of USSR or

Yugoslavia. Even though the body of international rules on self-determination has had a remarkable bearing on the whole process of secession, the birth of new States in the former Soviet Union and Yugoslavia has occurred outside the realm of both municipal and international law.1 The other reasons are the complexity of the issues involved and the inadequacy of the relationship to the main topic. The issues involved in that, although related to the principle of self-determination, do not have any direct relevance to the Sri Lankan situation. Instead the focus would be on the cases of Aaland Island, Katanga, Biafra, Bangladesh, East-Timor and Basque

Country. The Aaland Island case though only directly relevant, is examined because of the importance of the findings made by the commissioners.

6:1 Aaland Island Case (1920)

The inhabitants of Aaland Island in the second decade of 18th century claimed that they were free to secede from Finland and join the Kingdom of Sweden.2 In July

1 Cassese, A., ‘Self-Determination of peoples: a legal reappraisal’, Cambridge University Press, 1996, p.273 2 Brown, P.M., ‘The Aaland Islands Question’, 15 American Journal of International Law, 1921, 268-72 60 1920, The Council of the League appointed a Commission of three jurists to examine the issue. The Kingdom of Sweden claimed that the principle of self-determination guaranteed the Aaland Islanders the opportunity, by way of a plebiscite, to register their wish to unify with Sweden. According to Finland the case presented by

Sweden to the Council dealt with a question, which under international law ought to be left to Finnish domestic jurisdiction.

The Commission decided that the case was essentially a domestic one but however decided that on technical grounds the League was competent to decide the question.3

The Commission appointed a Commission of rapporteurs to recommend a program of action. Their report4 recommended that the Aaland Islands remain under the sovereignty of Finland but that this country be obliged to increase the guarantees granted to the Islands by the Autonomy Law of 1920. The first report stated that positive international law does not recognise the right of national groups as such to separate themselves from the State to which they form part by the simple expression of a wish, any more than it recognises the right of other States to claim such a separation.5 The International Commission of Jurists upheld the Finnish position that under international law it pertains exclusively to the sovereignty of any definitely constituted State to grant to or withhold from, a fraction of its population the right of deciding its own political destiny by means of a plebiscite or in any other way.6 The

Commission discussed the relationship between the self-determination and the protection of minorities. The Commission held that the principle of self- determination and the protection of minorities had both a common ground and a

3 Minutes of the Twelfth Meeting of the Council, 23 June 1920, Official Journal of the League of Nations, September 1921, p.692 4 Report presented to the Council of the League by the Commission of Rapporteurs, Council Doc. B7/21/68/106, 16 April 1921 5 Above note 6 Preliminary Observations by the Finnish Minister on the Report of the Committee of Jurists Official Journal of the League of Nations January/February 1921 p.66 61 common object (To assure to some national groups the maintenance and free development of its social, ethnical or religious characteristics). However, whenever geographical, economic or other similar considerations prevented resort to self- determination, a solution in the nature of compromise lay in the protection of minorities.7 The report further stated that while the protection of minorities was the only rational and sensible solution for providing safeguards to ethnic or religious groups without disrupting the territorial integrity of States, there might however be cases where minority protection could not be regarded as sufficient. It asserted that such cases arose when the State at issue manifestly abused its authority to the detriment of the Minority, by oppressing or persecuting its members, or else proved to be utterly powerless to implement the safeguards protecting the minority. The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees. The Commission then applied this concept to the question under discussion and stated that the Aalanders had no right to secession, for they had not been oppressed.8

From the above discussion, it can be concluded that from about the time of the end of

World War 1, the perception in the world community of the principle of self- determination in respect of the right of secession by a minority group is that they could claim a valid legal case only under exceptional circumstances. This means that the right of minority groups living in a sovereign State to secede is not the general

7 Above note 8 Above note 6 62 rule but the exception; the general rule is that the protection of the territorial integrity and the sovereignty of States.

6:2 Katanga (1960)

In 1960, Belgium granted independence to its former province of Congo. Leadership of the new nation fell to Moscow sponsored Patrice Lumumba. Immediately after independence, the Katanganese secessionist war from the Republic of Congo broke out. In order to avoid the nightmare that attended Communist rule in Congo, the province of Katanga declared its independence. Belgium sent its troops to Congo without the agreement of the Congolese government, for the declared purpose of restoring law and order and protecting Belgium nationals. On 12 July 1960, the

Congolese government asked for United Nations military assistance to protect the national territory of the Congo against external aggression. The General Assembly requested the Secretary General to assist the government of Congo in the restoration and maintenance of law and order throughout the territories of the Republic of Congo and to safeguard its unity, territorial integrity and political independence in the interest of international peace and security.9 The initial mandate of the United

Nations Operations in the Congo (ONUC) was to ensure the withdrawal of Belgian forces from the Republic of the Congo, to assist the Government in maintaining law and order, and to provide technical assistance. The function of ONUC was subsequently modified to include the maintaining of territorial integrity and political independence of the Congo, preventing the occurrence of civil war, and securing the removal from the Congo of all foreign military, paramilitary and advisory personnel

9 U.N. Resolution 143 (1960) of 14 July 1960 63 not under the United Nations Command, and all mercenaries.10 However with the active assistance of the UN the Congolese central government was reconstructed and the conflict was concluded.

The final result was the failure of the Katanganese secessionist to form a separate

State within the Republic of Congo. The UN involvement in the was because the majority members in the General Assembly did not accept the premise that the issue of Katanganese secession and independence was essentially a domestic affair.11

The failure was due to the lack of lack of direct involvement of the Katanganese, as the claim was engineered by Belgian Business vested interests and supported by

Belgian troops through direct-armed intervention.

6:3 Biafra (1966)

The Biafran breakaway struggle from the broke out in 1966.

The break away movement cited as the principle cause for this action the Nigerian government’s inability to protect the lives of easterners and suggested its culpability in genocide, depicting secession as a measure taken reluctantly after all efforts to safeguard the Igbo people in other regions had failed. The Eastern Region

Consultative Assembly voted on May 26, 1966 to secede from Nigeria and on 30

May 1966, the breakaway movement proclaimed the independence of the Republic of Biafra. Biafran propaganda, which stressed the threat of genocide to the Igbo

10 Web site- http://www.un.org/Depts/DPKO/Missions/onucM.htm 11 Islam, Rafiqul M., International Legal implications; The Bangladesh Liberation Movement, University Press Limited, 1987, p.124 64 people, was extremely effective abroad in winning sympathy for the secessionist movement. Biafra’s independence was recognised by Tanzania, Zambia, Gabon,

Haiti and the Ivory Coast. France called for a resolution of the conflict on the basis of rights of peoples to self-determination and noted that the suffering of the Biafran’s had shown their will to affirm themselves as people. The Organization of African

Union (OAU) adhered to the territorial integrity of Nigeria. The UN Secretary

General unequivocally contended that the UN would not support any breakaway attempt in its member States12. In brief, a majority of the members of the world community did not support the Biafran cause. The vast majority of States regarded

Biafra as being unqualified for recognition as a State. The Republic of Biafra survived for around two years before being once again absorbed into Nigeria.

The world community still considers the principle of self-determination as secondary to the principle of territorial integrity of sovereign States. Despite the fact that the

Nigerian government oppressed the people of the eastern region, the attempt proves a failure.

6:4 Bangladesh Liberation Movement (1971)

Bangladesh has achieved its independence through a national movement. Prior to its emergence, Bangladesh was called East Pakistan-the eastern component of the federation of Pakistan. In 1971, the people of East Pakistan launched a breakaway movement from the parent State and succeeded.

12 (1970) 7 (2) UN Monthly Chronicle p.36 65

In the formal proclamation of independence of Bangladesh on 10 April 1971, the

Bangladesh provisional government reaffirmed Mujib’s declaration of independence

‘in due fulfilment of the legitimate right of Bangladesh’.13 It is evident that the independence of Bangladesh was proclaimed on the basis of self-determination.14

With the decolonisation from British colonial rule, India was divided into two; India and Pakistan. Pakistan was created with two racially, culturally and linguistically diverse wings-West and East Pakistan- separated by 1600 kilometres of alien territory.15

The first constitution of Pakistan was enacted on 29 February 1956 after a fairly long period of eight years since independence. During this period, government was through the Constituent Assembly of Pakistan, which was set up under the provisions of the Mount Batten Plan of June 1947. This Assembly derived its legal authority from the 1947 Indian Independence Act. The principle task of this assembly was delayed for 7 long years. Until its constitution came into effect Pakistan adopted the

1935 Government of India Act, with some amendments, as the interim constitution.

This Act was strongly criticised for being undemocratic, reactionary and not conducive to the growth of democratic government and provincial autonomy.16 Since its birth the civil service, backed by the army, had virtually governed Pakistan.17

13 For the text of the proclamation, see (1972) 11 International Legal Materials p.119 14 Above note 11 p.37 15 Above note P.10 16 Above note P.12 17 Above note 66 East Bengal was not represented in the power structure either at the centre or in the province. The ruling elites increasingly ignored the political and economic aspirations of the East Bengalese.18

Under the first constitution of Pakistan, Pakistan became an Islamic Republic. It failed to introduce a genuine and federation.19The new constitution failed to provide their most important demand and pre-independence promise-the autonomy of East Bengal.20 The second constitution was enacted on 8

June 1962. It was based on the Presidential system, which has been described as constitutional autocracy.21 Overwhelming powers were given to the President. The

President could determine national and provincial policies. The constitution was thus indeed drafted for the president, by the President and of the President.22 Under this constitution too the Bengalese had no share. The regime became more and more intolerant and oppressive. It provided virtually nothing to the deprived people of East

Pakistan.23 On 10 April 1971, Bangladesh formally declared itself a Republic.

The Bangladesh event is the first ever-successful assertion of self-determination in the post-war period in a non-colonial setting.24 The Bangladesh experience indicates that the decolonisation of traditional colonies has not rendered the right of self- determination obsolete, and further that the premise that colonial people would be the only claimants to this right need not to be conclusive.25 Much depends on the

18 Above note 19 Above note p.18 20 Above note 21 Above note p.21 22 Above note p.22 23 Above note 24 Above note p. 2 25 Above note 67 particular claim for self-determination made by the people in question, and on the circumstances under which such claim is made.26

From the time Pakistan achieved independence till Bangladesh proclaimed itself an independent State, Pakistan never had a true democratic government. It was observed that the majority of the population was denied any access to the power structure. The

Bengalese of East Pakistan had always been the majority in the total population of

Pakistan; they comprised 65.7 percent at the time of independence in 1947, and 54 percent according to the 1961 census.27 It is remarkable to note that the majority of the population had not any representation in the actual government.

Success of the Bangladesh Liberation Movement is therefore well within the ambit of the saving clause in the provision of principle of equal rights and self- determination of peoples of the Declaration on Principles of international law concerning friendly relations and Cooperation among States 1970. The circumstances created in the Bangladesh situation attract the rigid interpretation of right of secession to people living in a sovereign State. Even though the members of the world community answered in the negative the question of Katanga and Biafra, they supported the cause of the East Pakistan people. The recognition of Bangladesh by the international community itself proves the fact that the world community supported the secessionist movement in East Pakistan.

It is submitted that the creation of this State did not result in the creation of any new legal principles as to the right of self-determination in the world order. It is merely an

26 Above note 27 Chowdhury, S.R., The Genesis of Bangladesh (1972) p.2 68 application of presently existing legal norms to a given set of circumstances. It created a precedent having its basis on existing legal principles. Having failed both

Katanga and Biafra, there was really a need for a set of circumstances in which the present world order would recognise a new State based on the principle of self- determination in a non-colonial setting. The conditions prevailed in East Pakistan realised this aspiration. The mere fact that Bangladesh successfully separated from its parent-Statehood would not result in any change in the notion that the right of secession of people in a sovereign State is not the general rule but the exception. The right of secession in the present world order still remains subservient to the principle of territorial integrity even after the successful story of Bangladesh and the principles applied to the subject has been unaffected. The people in this world are still living in a State centric world.

6:5 Quebec

In the case of Quebec province in Canada there is an agitation for a separate state.

The separatist group, which promised a separate sovereign state for Quebec, won control of the Quebec legislature in 1976. The separatist party Quebecois, which headed by Rene Levasque, promised a public referendum on the issue of the constitutional secession of Quebec from the Canadian federal system. Four years later, a referendum was held. The majority, 1,900,000 persons, voted to remain part of Canada; 1,300,000, voted in favour of independence. In 1991 a provincial law was passed in Quebec providing for holding a referendum. On 26 October 1992 the referendum was held but 54% of the voters cast a negative vote. 69

Again in 30 October 1995, another referendum was held and a marginal 50.5% of the population said no to separatism.

In the light of this referendum, On September 30, 1996, the Attorney General of

Canada referred three questions pertaining to Quebec secession to the Supreme Court of Canada28.

1. Under the Constitution of Canada, can the National Assembly, legislature, or

government of Quebec effect the secession of Quebec from Canada

unilaterally?

2. Does international law give the National Assembly, legislature, or

government of Quebec the right to effect the secession of Quebec from

Canada unilaterally? In this regard, is there a right to self-determination under

international law that would give the National Assembly, legislature or

government of Quebec the right to effect the secession of Quebec from

Canada unilaterally?

3. In the event of a conflict between domestic and international law on the right

of the National Assembly, legislature, or government of Quebec to effect the

secession of Quebec from Canada unilaterally, which would take precedence

in Canada?

On August 20, 1998, the Supreme Court answered these questions by issuing an opinion.

28 Re Reference by The Governor-in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada (1998) 1SCR 217 70 The Supreme Court of Canada concluded that the National Assembly, legislature or government of Quebec do not have, either under Canadian law or international law, the right to effect the secession of Quebec from Canada unilaterally.

However, the court also emphasized that the rest of Canada would have a political obligation to negotiate Quebec's separation if a clear majority of that province's population voted in favour of it.

Canadian parliament passed Clarity Act29to give legislative effect to the Supreme

Court judgement of 1998.

29 Clarity Act 2000 71 Chapter 7

Self-Determination in the Sri Lankan Context in the

Light of Right to Secession

7:1 General Introduction

The notion1 that a particular colonial people are entitled to exercise the right of self- determination within a specific geographic area to achieve independence only once against the metropolitan power has been proven to be incorrect. In other words, once a population within a country exercises the right of self-determination, they exhaust the right. This is the traditional view of the right 0f self-determination. If one accepts this traditional view, the question of right of self-determination for Tamil people in

Sri Lanka, does not exist. Sri Lanka, then Ceylon, exercised the right of self- determination in the colonial context in 1945 against the British administration.

Especially the precedent created by the Bangladesh Liberation Movement disproves the fact that it is a One-Time-Only Rule. The secession of East Pakistan in 1971 may well be regarded as a reassertion of the right to self-determination, which its people had already enjoyed once.2

The conclusion based on the above facts is that the right-to self-determination is not a One-Time-Only Rule but a continuing right. Based on this conclusion, it is logical to state that the Tamil people in Sri Lanka have not exhausted their right to self- determination. If the other requirements demanded by the international legal regime

1 Emerson, R., ‘Self-determination’ (1971) 65 American Journal of International Law p.463-4 2Islam, Rafiqul M., International Legal implications; The Bangladesh Liberation Movement, University Press Limited, 1987, p.55 72 created by the international law are met, the Tamil people could have a legitimate right to exercise their right of self-determination not only internally but also externally.

As discussed earlier, the requirement for a secessionist movement representing a racial group to separate from the original territory to which they belong is strictly limited by international law.

A racial group may attempt secession, a form of external self-determination, when it is apparent that internal self-determination is absolutely beyond reach. In other words a racial group may secede- thus exercising the most radical form of external self- determination- once it is clear that all attempts to achieve internal self-determination have failed or destined to fail.3

An analysis of whether the Tamils in Sri Lanka qualify within the strict requirements of secession imposed by international law need separate attention.

The strict condition that might warrant secession is that:

The central authorities of a sovereign state persistently refuse to grant participatory rights to a racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the state structure.4

3 Above note p.120 4 Cassese, A., ‘Self-Determination of peoples: a legal reappraisal’, Cambridge University Press, 1996, p.119 73 A close analysis of this statement shows that in order to qualify for the right of secession, a racial group within a territory need to fulfil three ingredient elements;

1. The central authorities of a sovereign state persistently refuse to grant

participatory rights

2. The central authorities of a sovereign state grossly and systematically trample

upon their fundamental rights

3. The central authorities of a sovereign state deny the possibility of reaching a

peaceful settlement within the framework of the state structure.

7:2 Right of Secession - Constitutive Elements

7:2:1 Persistent Refusal to Grant Participatory Rights

This requirement is a direct result of the saving clause to the 1970 Declaration. It provides that if in a sovereign state the government is representative of the whole population, in that it grants equal access to the political decision making process and political institutions to any group and in particular does not deny access to government groups on the ground of race, creed or colour, then that government respects the principle of self-determination.

Now it is appropriate to trace back the constitutional to ascertain if the Tamil people in Sri Lanka had been denied access to the political decision making process and political institutions.

74

7:2:1:a Soulbury Constitution (1948-1972)

Sri Lanka obtained independence from Britain on the fourth of February 1948. The

1947 (Soulbury) Constitution of Ceylon was contained in the Ceylon (Constitution)

Order in Council, 1946, the three Ceylon (Constitution) Orders in Council, all of

1947, and the Ceylon (Independence) Order in Council, 1947 and paved the way for the Colony to obtain independence. Its origin can be traced to a scheme commonly called the Ministers’ Draft5 prepared by the Board of Ministers under the

Donoughmore Constitution in 1943-44. In May 1943, the British Government authorised the Ministers to prepare a constitutional scheme, which provided for full self-government. But the Ministers wanted status immediately. The scheme they prepared provided for complete self-government. In late 1944, the scheme was accepted by the Soulbury Commission, which had been appointed for that very purpose, with some changes. The draft thus became the basis for the Ceylon

(Constitution) Order in Council. Sir , the Vice Chancellor of the

University of Ceylon was the chief unofficial constitutional advisor to the Ministers and contributed much to the Ministers’ Draft. He may thus be called the architect of the 1947 Constitution.

The Constitution provided for a very much as in Britain.

Parliament consisted of the British Sovereign and two Houses (the Senate and the

House of Representatives). The Sovereign was the nominal head of the Executive.

The executive power was vested in the Sovereign and exercised on its behalf by the

Governor-General according to law. The Cabinet of ministers appointed by the

5 Ceylon sessional Paper XIV of 1944 75 Governor-General, comprised of the two houses. The Cabinet was charged with the direction and control of government and was collectively responsible for Parliament.

The constitution was based on the Westminster model.

Jennings and Thambiah6 state that the Ministers’ Draft was based on the Australian

Constitution, but without the federal provisions. This was because the Ministers wished to have a cabinet system of government as in the and since it was an unwritten one, the Australian Constitution provided a convenient draft for this purpose.7

The provisions in respect of the protection of minorities in the Constitution are discussed later. For the present, it is sufficient to note that the Constitution was drafted under the supervision of the Soulbury Commissioners, and the basis of its provisions are based on the written Constitution of Australia without its federal aspects.

The elections for the legislature were held in the years of 1947, 1952, 1956, 1960,

1965 and 1970. In each and every election the election process went smoothly and the representative of the legislature were elected democratically. Even though a

Sinhalese party commanded the majority of the legislature, in forming the government the majority party sought the assistance of the Tamil minority parties.

The Tamil members of the legislature thus became ministers in each and every government of this period.

6 Jennings, Sir Ivor and Thambiah, H.W., The Dominion of Ceylon, The Development of its laws and Constitution, London, Stevens, 1952, pp.65-66 7 As above 76 The conclusion therefore based on the above discussion is that the country had a representative government during the entire period of 1947-1971, during the working of Soulbury Constitution. It is therefore submitted that during the period discussed, the Tamil people were never denied access to the government power structure. The government was truly democratic thus not being entitled to any right of secession by the Tamil separatists under the existing regime of legal principles of international law.

7:2:1:b First Republican Constitution (1972-1977)

At the General Election of 1970 under the Soulbury Constitution, the United Front, which was in opposition then, in its election manifesto8 sought a mandate from the electorate to permit the members of the legislature to function simultaneously as a

Constituent Assembly to draft, adopt and operate a new constitution which would declare Ceylon to be free, sovereign and an independent Republic pledged to realise the objectives of a socialist democracy and which will secure fundamental rights and freedoms to all citizens. The United Front won a majority in the legislature at the election. The First Speech of the Governor General at the opening of the new

Parliament called upon Members of Parliament to constitute themselves in to a

Constituent Assembly, pursuant to the mandate given by the people.9 On 19 July

1970, the Constituent Assembly was formed. Dr. Colvin R. De Silva, the Minister of

Constitutional Affairs, emphasised10 that the new constitution was not an attempt to create a new super-structure on an old foundation. Instead, the Constituent Assembly was setting out on the task of laying an entirely new foundation for which the people had given the mandate. It is important to note that all political parties including all

8 United Front Election Manifesto 1970 9 Government of Ceylon Hansard, 1970 10 Ceylon Daily News, 14 July 1970 77 the Tamil political parties participated in the formation of the Constituent Assembly.

The Assembly adopted the new Constitution on 22 with a majority of votes in the parliament.

The 1972 Constitution introduced significant changes relating to the power and authority of the legislature and of the executive. But Parliamentary democracy continued to be the essential foundation of the constitutional structure. There was no significant deviation from the Westminster model.11

The majority party, the United Front, continued to be in government and there were

Tamil members of the legislature appointed to Cabinet Ministries thus representing them in the government under the new Republican Constitution.

A general election was held in 1977 under the new constitution and the United

National Party was elected. The election process was peaceful and the U.N.P. formed a new government. The Tamil parties contested under the U.N.P. list, and they were in Cabinet when the government was formed.

The inevitable conclusion from the above facts is that the Tamil parties were represented in the legislature and the government under the first Republican

Constitution, and thus had access to the politics of the country. It would therefore appear that the Tamil people were not denied access to the participatory rights in the government, following the adoption of the first Republican Constitution in the period

1972-1977.

11 Cooray, M.J.A., Judicial Role Under the Constitutions of Ceylon/Sri Lanka, Colombo, Lake House, 1982 , pp. 222-238 78 7:2:1:c The Second Republican Constitution 1978

At the General Election of 1977, the United National Party sought a mandate to draft, adopt and operate a new Republican Constitution in order to achieve the goals of a democratic socialist society.12 The party promised to include in the Constitution the provision of an all-powerful elected Executive President. Having obtained an unprecedented victory at the election, the party amended the 1972 Constitution and established an Executive Presidency. The person holding the office of Prime Minister on the day on which the amendment came in to force was deemed to be the

President. Mr. J.R. Jayawardena thus became the first Executive President of Sri

Lanka.

In November 1977, a Select Committee of the was appointed to consider the revision of the Constitution. A Bill to enact a new constitution in place of the 1972 Constitution was presented on the basis of the Draft

Constitution, to the National State Assembly. The new Constitution of the

Democratic Socialist Republic of Sri Lanka was adopted by the National State

Assembly and became the supreme law of the country on 03 September, 1978.

The new Constitution was thus a creation of the existing legislature in the exercise of its powers conferred on it by the existing Constitution. The majority members of the legislature adopted the Constitution. Thus the new Constitution came in to existence through democratic means, representing the entire population of the country including the Tamil people.

12 A Programme of Action to Create a Just and Free Society, Colombo: United National Party, 1977. 79

General Elections under the 1978 Constitution were held in the years 1989, 1994,

1999 and 2001, and Presidential Elections for the executive President were held in

1982, 1988, 1994 and 1999. At each of these elections, the Tamil political parties contested the elections under their own identity or with a coalition of a major party.

The voters sent the representatives of the Tamil people as the members of a Tamil political party or as a member contesting under a major political party. They represented the Tamil people in Parliament, and in some cases they were appointed as Cabinet Ministers thus having access to the actual government structure.

In the recently concluded General Election of 2001, out of 225 seats in the present

Parliament, the Tamil political parties contesting under their own identity, won 17 seats (Tamil United Liberation Front 15 seats and Eelam Peoples Democratic Party 2 seats).13 This number does not reflect the Tamil representatives elected to Parliament under the patronage of other political parties. In the present Cabinet of Ministers, two portfolios are held by two Tamil Members of Parliament who contested the election under the name of two Tamil political parties: Arumugam Thondaman, Minister of

Housing and Plantation Infrastructure, and P. Chandrasekaran Minister of

Community Development.

The Tamil people in Sri Lanka have not only participatory rights in the State

Legislature but in the actual government structure as well.

13 http://www.electionworld.org/election/srilanka.htm 80 Sri Lanka has had a comparatively representative government ever since its inception as an independent state.14 In fact, Sri Lanka represents the oldest democracy other than India in the Indian sub-continent. A dictator, unrepresentative regime or a military oligarchy has never ruled it. The Country has always had majority rule, representing the whole population belonging to its territory. The present is also democratically elected through free and fair elections, affording majority rule.15

It would therefore appear that the Sri Lankan government has, since independence, not denied the Tamil people any participatory right in the power structure, negating thereby the first constitutive element needed for a minority racial group to claim secession from its original territory.

7:2:2 Gross and Systematic Trampling Upon the Fundamental

Rights

Amongst the main rights the Tamil separatists allege they have been discriminated on are voting rights, language rights, education and employment rights, and land rights. It is important therefore to look at each of these rights separately.

14 Above note 1 p.78 15 Above note 81

7:2:2:a Disenfranchisement of Voting Rights of Indian Tamils

The grievances of the Tamil people in Sri Lanka really begin with the enactment of the Ceylon Citizenship Act16 by the then Parliament immediately after independence.

The Citizenship Act made provision for the status of Citizen of Ceylon thereby excluding Indian Tamils who were brought to Sri Lanka to work in the tea plantations by the British administrators.

Many post-colonial regimes regarded their migrants as an illegitimate presence if the migrants did not belong to the dominant ethnic community.17 Uganda and Burma expelled their Indian and Pakistani settlers and in Indonesia large number of Chinese were massacred or expelled.18 Sri Lanka had a democratic government. It sought to remove the Indians as seen below, through legitimate means, in accordance with the law, and with due regard for its international obligations.19

Sri Lanka and India signed the Sirima-Shastri Pact20 on 30, October 1964 at New

Delhi. Under the agreement, out of a total Stateless population of Indian origin of

975,000 in Ceylon in 1964, 525,000 were to be repatriated to India and 300,000 were to be granted Ceylon citizenship with the balance of 150,000 to be dealt with at a later date. This process was to be completed in 15 years (by 1979). The balance

150,000 Stateless persons was the subject of a subsequent agreement between the

16 Citizenship Act No.18 of 1948 17 Weiner, Myron, ‘Rejected Peoples and Unwanted Migrants in South-Asia’, Economic and Political Weekly, 21,August 1993, p. 738 18 Above note 19 Above note 20 Agreement relating to the Status and Future of Persons of Indian Origin in Ceylon, 1964 82 two governments, the Sirima-Indira Pact of 1974. Under this agreement, India was to accept 50%, and the balance were to register as citizens of Si Lanka.21

Both agreements were not fully implemented and resulted in being time barred. The government of Sri Lanka sought to resolve this problem in 1986, when it decided to absorb as its citizens all persons of Indian origin who had not applied for Indian citizenship at the time the two pacts terminated.22 Finally, a residual category of

Stateless persons of Indian origin was also granted citizenship in Sri Lanka in 1988:23 those who were not citizens of either India or Sri Lanka, and had not applied for

Indian citizenship in Sri Lanka.

The Sri Lankan government purely under the international obligations imposed by international law had resolved the problem of citizenship rights of the Indian Tamil people.

The vast majority of the members of the Indian Tamil community were disenfranchised as a result of legislation enacted by Parliament in 1949.24 The

Citizenship Act made provisions to exclude the Indian Tamils from the scope of Sri

Lankan citizenship and the Act of 194925 provided that only citizens of Ceylon would be entitled to vote. These provisions were challenged in the Supreme Court,26 and on appeal, the Privy Council27 took the view that it was a perfectly natural and legitimate function of a legislature of a country to determine the composition of its

21 Kodikara, ‘Persons of Indian Origin In Sri Lanka: Problems and prospects’, 1 Sri Lanka Journal of International Law p.209 (1989) 22 Grant of Citizenship to Stateless persons Act No. 5 of 1986 23 The grant of Citizenship to Stateless Persons (Special Provisions) Act of 1988 24 The Ceylon (Parliamentary Elections) Amendment Act No.48 of 1949 25 Above note 26 Mudannayake v. Sivagnanasunderam (1951) 53 N.L.R. 73 27 Above note (1953) 54 N.L.R. 433 83 nationals, and that Citizenship Act could not be said to be legislation intended to discriminate against Tamil people.

Given this background of the citizenship rights of the Indian Tamils and their voting rights, it would appear that the Sri Lankan government has not discriminated against

Indian Tamils in Sri Lanka. The so-called disenfranchisement is an act of the Sri

Lankan government, done in the exercise of its powers as a Sovereign State, to determine the composition of its nationals. There is no international obligation at international law to compel a Sovereign State to admit all people as its citizens. It would be incorrect to conclude that this amounts at least to a violation of their political rights.

It is possible for someone to argue this as a violation of fundamental human rights.

The crucial point here is whether the victims of citizenship and disenfranchisement legislation are Tamil separatist group in the country or Indian Tamils who came here as plantation workers. The victims of that legislation are not the Separatist Tamils but the Indian Tamils who came to Sri Lanka as plantation workers. It is very important to differentiate the identities of these two groups. The Tamil separatists are making their demands based on Eastern and Northern Provinces whereas the Indian

Tamils are an ethnic group concentrated in the central province of the country supplying the labour requirements in major plantations. It is illogical for Tamil

Separatists to use past grievances of a separate ethnic group to strengthen their arguments for a separate State within a unitary State.

84 The Tamil separatists who never experienced the problems of voting rights or citizenship rights are not entitled to claim deprivation of citizenship rights or voting rights in their demand for separate State.

7:2:2:b Language Rights

During colonial times, English was the dominant language of administration, politics, education and business. Both Sinhalese and Tamil, the two indigenous languages of

Sri Lanka, were relegated to a distant second place. With the end of colonialism the question arose as to the national language of the land. In 1956, the Parliament passed an Act28 making Sinhala the official language. Under this legislation, Sinhala became the sole official language. The Tamils demanded parity of status between Sinhala and

Tamil, and in many ways this was the trigger to what came to be labelled the ethnic question, which in course of time became the separatist conflict, now being witnessed.29 The Tamil political party, the Federal Party, launched an intense campaign against the Act. The government, in response to Tamil allegations, enacted legislation in 195830 guaranteeing the use of Tamil as the medium of education and instruction up to the highest levels, and ensuring that it could be used in the courts,

Parliament, etc. and as a medium for entry in to employment, and for all economic and cultural purposes.

In the 1972 Constitution31, Tamil was declared a national language and this position remains in the 1978 Constitution32 as well. The 13th Amendment to the 1978

28 The Official Language Act, 1956 29 ‘The myth of Discrimination Against Tamils in Sri Lanka’ Report by Australian Centre for Sri Lankan Unity, Australia Feb 1996 30 Reasonable use of Tamil Language (Special Provisions) Act, 1958 31 A. 85 Constitution further enhanced the status of the Tamil language, making it an official language alongside Sinhala and English. In the 16th amendment to the Constitution,33 both Sinhala and Tamil were made the languages of administration, legislation and of the courts throughout the island.

In matters of this nature, the Sri Lankan practice has to be judged against the framework of international practice. In almost every nation more than one language is spoken.34 Yet almost all countries have used the language spoken by the majority as the official language. Exceptions to this rule are extremely rare.35

The language policy of Sri Lanka may be contrasted with that in India, which is the closet neighbour to Sri Lanka. The Indian Constitution provides36 that the official language of the Union shall be Hindi in the Devanagari script. While language agitation has continued in India there has never been a case made for separatism on the basis of the constitutional requirement that Hindi be the only official language.37

The accommodation reached on language policy in Sri Lanka is significant. Looking back on these controversies one feels that the price the country has paid in the breakdown of ethnic harmony outweigh the undeniable benefits the emphasis on indigenous languages brought to the people at large.38 Had the political leadership of the mid 1950s and early 1960s not forced the pace of language change, had they been more patient and eschewed the path of unilateral change, they may well have ensured

32 A. 33 16th Amendment to the Constitution, 1988, 17th December 34 Above note 38 35 In Switzerland Three languages are recognised and in Canada Two languages are recognised 36 Indian Constitution A. 343 (1) 37 Above note 38 38 De Silva, K.M., Sri Lanka: Ethnic Conflict, Management and Resolution, International Centre for Ethnic Studies, Kandy, Sri Lanka, 1999 p. 31 86 the primacy of their language on a much more solid basis, without the rancour and bitterness that was the price of the policy they adopted.39

The language right of Tamil people was challenged immediately after independence.

After a fairly long period of time the Tamil language has been recognised in the same status as the majority language notwithstanding the fact that the language is spoken by less than 1/5th of the entire population of the country. It is safe to conclude on the above facts that the language rights of the Tamil people are now protected by the

State. Even though one could have argued a decade ago that the language issue has been a problem, that argument has no substantial basis at the present context. It would therefore appear that the Tamil separatists could no more base this argument to support their right to a separate State.

7:2:2:c Educational Rights

One of the strong claims of the Tamil separatists is that they have been discriminated in the field of higher education. In 1970 the government introduced an ethnic quota system for the admission of universities. This system was in fact introduced to reverse the discrimination, which had been prevailing for a long time. The Tamils had been favoured with regard to education in colonial times. The British for a long time left education to religious bodies, and because a larger proportion of Tamils converted to Christianity the missionaries established more schools in the Northern province than elsewhere. The privileged position of Tamils continued even after independence.40 The government sought to provide educational facilities to those

39 Above note 40 Above note 38 p.6 87 who had been deprived of it hitherto whether they be Sinhalese, Muslims, or even

Tamils.

The Sri Lankan Tamils who constitute no more than an eighth of the island’s total population, had a dominant position in the science-based faculties of the then

University of Ceylon at Peradeniya and Colombo for years. In 1970, for instance, the

Tamils gained just over 35% of the admissions to the science-based faculties; in

Engineering and Medicine it was as high as 40%. The government in 1970 effected a fundamental change in University admissions policy by instituting a system of standardisation of marks by language media at the University entrance examination.41 The effect of this was to place the Tamil students at a disadvantage in that they had to obtain a higher aggregate of marks to enter the university- in the

Science, Medical and the Engineering faculties – than the Sinhalese.42 The Tamils’ share of places in the Engineering and medical faculties has varied from 35% to 25% since 1978-79, to very recent times when it has declined to 15% or so.43

In 1980 the government changed this policy and moved towards a more equitable admissions policy, a mixture of district quotas and merits, and affirmative action for rural areas- Sinhalese, Tamils and Muslims, which gave weightage to students in rural areas and from backward communities.44 The scheme of admission to Sri

Lankan Universities, which provided for fifty five percent of the places available to be distributed on the basis of the ratio of population among the twenty-four

Administrative Districts. Fifteen percent of the places were to be apportioned at the

41 Above note p.22 42 Above note 43 Above note 44 Above note 88 discretion of the University Grants Commission among fifteen Districts, which were considered under-privileged. Thirty percent were to be decided solely on merit.

All this represented a departure from the traditional practice of selecting students on the basis of actual marks obtained at an open competitive examination. This departure was challenged in a number of cases. In Seneviratne v. University Grants

Commission45 the petitioner challenged the scheme of admission to Sri Lankan universities, which provided for fifty five percent of the places available to be distributed on the basis of the ratio of population among the twenty-four

Administrative Districts.

The University Grants Commission submitted that by reason of the educational- socio-economic circumstances of Sri Lanka and the unequal secondary educational facilities provided mainly by the government, the determination of entry to the

Universities based solely on the aggregate of raw marks of a candidate could not be accepted as the only criterion for higher education, as less urbanised and rural sectors of Sri Lanka suffered from an inadequacy of educational facilities, a legacy of the colonial era. To fill all the places in the Universities on the basis of merit alone would be to negative the objects of State-sponsored higher education, and to put it out of gear with national requirements and policies and to confer an unfair advantage on students in cities and towns who by reason of their mere residence had the advantage of better facilities.

45 (1978, 1979,1980) 1S.L.R. 182 89 The Court upholding the classification stated that the increasing number of students pressing for admission and the woeful lack of teachers and facilities in most of the provinces had compelled the authorities to modify the merit principle to meet the ends of justice. The departure from the merit principle though unfortunate, was therefore inevitable.

The government in the early 1970s made an effort to balance the ethnic ratio in the

University admission by introducing a direct ethnic quota system. It is true that the pure intention of the government to remedy the imbalance prevailed for a long time in the University admission system. By doing so in an obviously discriminatory manner, the Government elected in 1970 caused enormous harm to ethnic relations.46

They converted a controversial education problem in to a complex emotion-charged political issue, the consequences of which still persist.47

However, with the changes effected in early 1980s, the University admission policy in Sri Lanka in fact effected a really justifiable system. The system still prevails and it allows all ethnic groups of the country to have access to higher education on an equal footing.

Even though the Tamil people consider the introduction of the ethnic quota system in the early 1970s as discriminatory towards them, it in fact was intended to adjust the discrimination directed towards the majority ethnic group, Sinhalese, of the country for decades. The notion behind this ethnic quota system is “Affirmative Action” which helps to rectify the past injustices. What they have lost were not their equal

46 Above note 136 p.23 47 Above note 90 share but the privileged position they enjoyed for a fairly long time. The discussion above very clearly reflects that the government since independence had a fair

University entrance system thus negating any allegation that the Tamil people have been discriminated in this area.

7:2:2:d Employment Rights

Because of the privileged position enjoyed by the Tamil people in the higher education sector till the country gained independence and till late 1960s, the Tamils share of positions in the public service were also substantially higher than that of the

Sinhalese.48 Indeed by the early years of the , the Tamils had come to be singularly dependent on Government employment, and for this reason had no deep roots in the plantation economy or trade for that matter. Consequently, they were moved to defend their positions in the Public Service all the more zealously. The struggle for places in the Public sector had become a major issue at the time of the transfer of power from the British. After independence, competition for State sector employment from the Sinhalese increased. The drop in the number of Tamils in the

State sector was very marked after 1956, and the Tamil people argued that this was the inevitable result of the change in language policy adopted in that year.49 The

Tamil people have already lost the relative position in Central Government employment that they had enjoyed in the past.50 The result is that the Tamils have

48 Above note 49 Above note 50 Samarasinghe, S.W.R.de A., Ethnic Representation in Central Government Employment and Sinhala-Tamil Relations in Sri Lanka: 1948-1981 in Robert B Goldman and A, J. Wilson (eds), From Independence to Statehood; Managing Ethnic Conflict in Five African and Asian States, London, Frances Pinter, 1984, pp.179-180 91 begun to feel they are discriminated against, and the Sinhalese feel recent changes have simply reversed the discrimination they had been subjected to in the past.51

It is true that the Tamil people have lost the opportunities they had enjoyed before, but the opportunities they had were obviously privileged ones. Like in the area of higher education, the Tamil people enjoyed a privileged position in discrimination against the majority Sinhalese. When they lost this privileged position, they considered it as discrimination. Even today Tamils enjoy key position in the State

Public Sector. The highest position a citizen could enjoy in his or her country’s public service is that of Attorney General, which in Sri Lanka was held by a Tamil until recently.

On the basis of above facts it can be strongly argued that the Tamils have not been discriminated in Sri Lanka on the ground of employment rights. They had ready access to the Public Service, which they still enjoy. It may not be possible for them to base a claim for a separate State on the ground that they have been discriminated against in the State Public Sector.

7:2:3 Denial of Possibility of Reaching a Peaceful Settlement

Having analysed the rights of Tamil people in Sri Lanka, it is essential to focus attention on the position if the Central Government had denied the possibility of reaching a peaceful settlement within the framework of the State structure. In order

51 Above note 92 to fulfil this tedious task it is important to discuss briefly the attempts made by the

Sri Lankan government to solve the ethnic crisis.

7:2:3:a The Bandaranaike-Chelvanayakam Pact 1957 52

The main political parties were not totally unresponsive to the grievances of the

Tamil people. S.W.R.D. Bandaranaike, Prime Minister and leader of the Sri Lanka

Freedom Party between 1956 and 1959, arrived at an understanding with the leader of the Federal party. This understanding referred to as the Bandaranaike-

Chelvanayakam Pact, gave Tamils a degree of regional autonomy, including control of the land settlement in Tamil areas.

It also recognised:

1. Tamil as the language of the national minority of Ceylon without infringing

on the position of the Official Language as such, and as the language of

administration of the Northern Provinces, with provision made for non-Tamil

speaking minorities in the Northern and Eastern Provinces;

2. The Northern Province was to form a Regional Area while the Eastern

Province was to be divided into two or more Regional Areas;

3. The Central Government was to provide block grants to the Regional

Councils.

52 Annexure 3 93 The principles on which the grants were to be computed were to be detailed. The

Regional Councils also had the powers of taxation and borrowing. Briefly, the Pact recognised limited autonomy to Tamil regions.

However the Government had to abandon the Pact in the face of strong opposition from articulate sections of the Buddhist clergy, combined with opposition from the political rivals of the governing party.

This was the very first attempt by the Sri Lankan government to provide a solution to the Tamil people in Sri Lanka. Whatever the reasons for the failure of the Pact, it is obvious that its failure denied the country the opportunity to have reached a peaceful resolution of the ethnic crisis. This frustration of the Tamils led to the signing of another Pact in 1965, referred to as the Senanayake-Chelvanayakam Pact.

7:2:3:b The Senanayake-Chelvanayakam Pact 1965 53

At a meeting on March 24, 1965 between Mr. Dudley Senanayake then Prime

Minister of Ceylon, and Mr. S. J. V. Chelvanayakam, leader of the Federal Party, it was agreed for action to be taken on the following lines to ensure a stable government:

(1) Action under the Tamil Language Special Provisions Act to make provision for the Tamil Language of Administration and of Record in the Northern and Eastern

53 Annexure 4 94 Provinces. Mr. Senanayake explained that it was the policy of his party that a Tamil- speaking person should be entitled to transact business in Tamil throughout the island.

(2) Amend the Languages of Courts Act to provide for legal proceedings in the

Northern and Eastern Provinces to be conducted and recorded in Tamil.

(3) Establish District Councils in Ceylon vested with powers over subjects to be mutually agreed upon between the two leaders. The Government reserved the power to give directions to such councils in the National interest.

(4) The Land Development Ordinance was to be amended to provide that citizens of

Ceylon be entitled to the allotment of land under the Ordinance. Mr. Senanayake further agreed that in the granting of land under colonization schemes, the following priorities were to be observed in the Northern and Eastern provinces;

Land in the Northern and Eastern provinces was in the first instance to be granted to landless persons in the District. Secondly, to Tamil-speaking persons resident in the northern and eastern provinces. Thirdly, to other citizens in Ceylon, preference being given to Tamil citizens in the rest of the island.

The attempt this time was to give the Tamils autonomy through District Councils.

This Pact too was abandoned in the face of Sinhalese agitation against it.

95 This again resulted in frustration amongst the Tamils. The Sri Lankan Government again had denied itself the possibility of reaching a peaceful settlement with the

Tamil people. Up to this time the Tamil people had not made any demand for a

Separate State. What they had been asking for was a federal solution. The majority

Sinhala people insisted that the Tamil problem would have to be solved within the existing constitutional framework. They did not truly appreciate the grievances of the

Tamil people. The Tamil people agitated for a federal system because their problems were not given proper solutions within the existing framework. The majority Sinhala population merely rejected this demand but did not provide any alternative solutions.

This very reason resulted in enhancing their demand for a separate state in the years following.

7:2:3:c The Thimpu Negotiations 1985

The Summit Meeting between Prime Minister Rajiv Gandhi and President J R

Jayawardena in New Delhi in June 1985 paved the way for peace talks that took place in Thimpu, the capital of Bhutan on 8th July 1985. At the talks, the Sri Lankan

Government presented a set of proposals that are almost similar to the proposals that had been placed before the All Party Conference of 1984. At the APC, the TULF had rejected these proposals. In response to government proposals at Thimpu, Tamil organizations unitedly put forward "four cardinal principles" and called for the Sri

Lankan Government to come out with a set of proposals based on and in conformity with them. These "four cardinal principles", better known as the Thimpu principles in Tamil political discourse were:

96 1. Recognition of the Tamils of Sri Lanka as a distinct nationality;

2. Recognition of an identified Tamil homeland and the guarantee of its

territorial integrity;

3. Based on the above, recognition of the inalienable right of self-determination

of the Tamil nation; and

4. Recognition of the right to full citizenship and other fundamental democratic

rights of all Tamils, who look upon the island as their country.54

They were rejected for the reason that they constitute a negation of the Sovereignty and territorial integrity of Sri Lanka, they are detrimental to a united Sri Lanka and are inimical to the interests of the several communities, ethnic and religious in our country.55

The Thimpu talks failed basically because the Tamil separatists did not want to negotiate on anything less than a Tamil State. At this juncture it could be observed that the Tamil separatists had rejected the possibility of reaching a negotiated settlement. On the two previous occasions both in 1957 and 1965, the Sri Lankan

Government failed the attempted settlements. Now in 1985, the Tamils rejected the

Government proposal of devolution.

54 Joint Statement by the Tamil Delegation at Thimpu on 13th July 1985 55 Loganathan, K, Sri Lanka: Lost Opportunities, Colombo: CEPRA, 1996 quoted Mr H W Jayawardena, the leader of the Sri Lankan delegation

97 7:2:3:d The Indo- Sri Lanka Peace Accord 1987 56

President J.R. Jayawardena and Prime Minister Rajiv Gandhi signed The Indo Lanka

Accord in July 1987. The devolution provisions of the Indo-Lanka Accord were given effect to by the 13th Amendment to the Sri Lankan constitution.

The 13th Amendment sought to devolve power to newly instituted Provincial

Councils throughout Sri Lanka. The Provincial Councils were elected in November

1988 and the Tamil political parties contested and established their authority in the

Northern and Eastern Provincial Councils. The Indian Peace Keeping Force, which entered the country following the signing of the Peace Accord so as to enforce the cease-fire agreement, departed in 1990 resulting in the elected members of the

Provincial Councils in the North and East fleeing the country. The Separatist movement took control of the Tamil regions and the democratic process initiated through the Peace Accord failed.

Since the failure of the 13th Amendment the successive governments have initiated a number of attempts to find a solution to the ethnic crisis in Sri Lanka. The Sri

Lankan Government has drafted a Constitution with substantial provision for the devolution of powers. All these attempts have proven to be futile for two basic reasons. Firstly, the Tamil Separatists do not want to accept anything short of a

Separate State and secondly the Sinhalese extreme groups’ reluctance to accept substantial devolution of powers on a Regional basis. However it is significant to note that the government has offered various solutions at various points of time,

56 Annexure 5 98 which is an indication that the Sri Lankan Government had never given up hope of a political solution to this problem.

From the above analysis the conclusion one can come to is that there has never been a denial of the possibility of peaceful settlement to the country’s ethnic crisis. The government has always been inviting the Tamil Separatists to the negotiation table while the Tamil Separatists have remained unmoved by their Separate State concept.

It is true that the country is seeking to protect the territorial integrity throughout the process of negotiation. As a Sovereign State Sri Lanka is entitled to protect its territorial sovereignty and to that end the Sri Lankan forces have been forced to fight against any Separatist movement, to maintain her territorial integrity and

Sovereignty.

7:3 Concluding remarks

According to the present legal regime established by the international law by way of treaty provisions and State practise, it is necessary for a racial group who claim secession from its original territory to prove that the central authorities of a

Sovereign State persistently refused to grant participatory rights to a racial group, grossly and systematically trampled upon their fundamental rights, and denied the possibility of reaching a peaceful settlement within the framework of the state structure.

99 Having analysed the requisite elements separately, the conclusion reached is that the

Tamil Separatists in Sri Lanka are not entitled to a claim for a Separate State within the sovereign territory of Sri Lanka.

The constitutive element of persistent refusal to grant participatory rights to a racial group by the central authority has been analysed in the light of all three Constitutions enacted in the country since independence in 1948. The Soulbury, 1972, and 1978

Constitutions were proclaimed in a legitimate manner. The Tamil political parties had their representatives in the legislatures under all three Constitutions, and as at today, continue to be in the present legislature.

The second constitutive element of gross and systematic trampling upon the fundamental rights of racial group was analysed with a focus on citizenship and voting rights of Indian Tamils in particular, and by reference to language rights, and higher education and employment rights of the Tamil people as a whole. It has been pointed out that in relation to all of these issues, successive governments had made adequate provisions for the realization of those rights of the Tamil people. The actual grievance of the representatives of the Tamil people was not that they were underrepresented in either in University education or State employment, but in their loosing their privileged position enjoyed for a long time to the disadvantage of the majority Sinhalese and minority Muslims in those sectors. When successive

Governments after independence made policy changes in order to accommodate the due share of the majority Sinhalese in these areas, it was claimed to be racial discrimination. However, it has been shown that the fundamental rights of Tamil

100 people have not been grossly and systematically trampled upon by the Sri Lankan

Government.

Focusing on the final element of the failure to reach a peaceful settlement within the framework of the State structure, it was observed that the successive governments have made tremendous efforts to solve the ethnic problem in the country. While admitting that the two initial attempts of 1957, and 1965, to solve the problem had been abrogated by the government with the agitation of majority Sinhalese elements, the later attempts since 1965 were not considered by the Tamil separatist as adequate especially because all those attempts were made within the unitary nature of the

State. The Thimpu talks of 1985 under the initiative of the Indian government failed due to the rigid stand taken by the Tamil groups. They insisted that the negotiation was possible only with the recognition of a separate Tamil State. The Provincial

Council system introduced in 1987 as a result of the Indo-Lanka Pact was left defunct in the Tamil regions with the leaving of Indian Peace Keeping Force (IPKF) in 1991. The representatives of Tamil political parties elected to the Provincial

Councils fled to India as the LTTE started exerting their control over the Tamil regions immediately after the IPKF withdrew from these regions.

The government of Sri Lanka had made several attempts to solve the ethnic problem in the country within the framework of the existing State structure, but that the Tamil separatists have not been willing to accept any of these solutions. Devolution of power to a highest level within a Sovereign State is not acceptable for Separatists and in the same way creation of a separate State is not acceptable with the Government.

101 The people of Sri Lanka, including the Tamils, are deemed to have been enjoying the benefits of internal self-determination.57 These people are prevented from embarking on any action that would undermine the territorial integrity of Sri Lanka as such an action would be tantamount to a breach of paragraph 7 of Declaration on Principles of international law concerning friendly relations and Cooperation among States

1970.58 Under these circumstances, many members of the world community may refrain from responding favourably to the Tamil cause on the pretext that the Tamils are desirous of contravening the territorial integrity and political unity of Sri Lanka without having adequate reasons for doing so.59

The crucial question is if there is a denial of possibility to reach a peaceful settlement. This issue is a much-complicated question to give a straightforward answer. The only way for an acceptable solution is by deliberate lowering of expectations by both parties. Just as a majority group who believe that they have been the principal victims of the imposition of colonial rule should resist the temptation to adopt policies that would hasten the redress of historical grievances, so too a minority group should desist from making exaggerated claims and demands.

Until this end is reached, it is hard to conclude if there is a denial for a peaceful settlement or not.

57 Islam, Rafiqul M.,’ The Separatism in Sri Lanka: Some factors undermining the claim’, Netherlands International Law Review, 1986, p.76 58 Above note 59 Above note 102 Chapter 8

Sovereignty of State and the Right of Self-

Determination

The notion of Self-determination has already been discussed as a political postulate, principle, legal principle and a legal right. In the exercise of the principle of self- determination, it affects other fundamental norms established in international law.

One fundamental norm, among other things, is the territorial sovereignty of States.

The main objective of this chapter is to analyse the tension between these two conflicting principles and finally analyse the behaviour of this tension in the matters relating to minority claims of self-determination in Sovereign States. In order to achieve this end, first, a discussion of the development of the principle of

Sovereignty of States is undertaken; second, the role of the principle in treaty law is examined; third, the provisions in treaty law to resolve the conflict are discussed; and finally the nature of the tension in the matters relating to minority claims of self- determination in sovereign States is discussed.

The doctrine of Sovereignty provided the theoretical foundation for the emerging

State. French philosopher Jean Bodin (1529-96) defined Sovereignty as the untrammelled and undivided power to make laws. His aim was to uphold the

103 privileges of the French monarchy. The British jurist William Blackstone1 observed that:

There is and must be in every state a supreme, irresistible, absolute and

uncontrollable authority, in which the right of sovereignty resides.

The concept of sovereignty was subsequently reformulated for the democratic era and encapsulated in the view that the State represented the collective will of the entire community.

The law making body within the State possesses internal sovereignty – the right to make laws applying within its territory.2 But Sovereignty also has an external dimension.3 . External sovereignty is the recognition in international law that a State has jurisdiction over a territory. Sovereignty and the accompanying corollary of the equality of States have been termed the basic constitutional doctrine of the law of nations.4 Sovereignty is the cornerstone of international rhetoric about state independence and freedom of action, and the most common response to initiatives, which seek to limit a State’s action in any way, is that such initiative constitutes an impermissible limitation of that State’s Sovereignty.5

The term ‘sovereignty’ is a difficult concept to define. It has not had a meaning universally agreed upon.6 Brierly7 clarifies its vague nature as:

1 Blackstone, W., Commentaries on the Laws of England (1765-70)

2 Hague, R., Harrop, M., Breslin, S., Comparative Government and Politics; An Introduction, 4th ed., 1998, Macmillan., London, p.6 3 Scrutton, R., A Dictionary of Political Thought, 2nd ed., Macmillan, London, 1996 4 Brownlie, Ian, Principles of Public International Law, 1979, Clarendon Press, Oxford, p. 287 5 James, A., Sovereign Statehood, 1986, Allen &Unwin, London, p.1 6 Oppenheim, L.F.E., International Law, 1906, Longman, London p.103 7 Brierly, J.L., The Law of Nations, 1949, Clarendon Press, Oxford, p.48-49 104

For the practical purposes of the international lawyer sovereignty is not a

metaphysical concept, nor is it part of the essence of statehood; it is merely a

term, which designates an aggregate of particular, and very extensive claims

that States habitually make for themselves in their relation with other States.

To the extent that sovereignty has come to imply that there is something

inherent in the nature of States that makes it impossible for them to be subject

to law, it is a false doctrine, which the facts of international relations do not

support.

International law has long imposed limitations on the permissible scope of the internal and external actions of independent sovereign States. The discussion here will focus on the limitation imposed by the principle of self-determination with particular reference in the exercise of rights of minorities in a sovereign State.

The Covenant of the League of Nations Article 10 states that:

The Members of the League undertake to respect and preserve as against

external aggression the territorial integrity and existing political

independence of all Members of the League. In case of any such aggression

or in case of any threat or danger of such aggression the Council shall advise

upon the means by which this obligation shall be fulfilled.

The emphasis of the victorious States of the First World War was to protect the new boundaries they demarcated at the expense of the defeated States. The covenant did

105 not contain any Article recognising the right of self-determination but ensured that the new political boundaries would be preserved.

Article 2(1) of the United Nations Charter states that:

The Organisation is based on the principle of the Sovereign equality of all its

Members.

Article 2(4) states that:

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.

Despite the fact that the Charter recognised the principle of self-determination in its

Article 1(2), the United Nations accorded priority to the territorial integrity and established boundaries of States. During the whole process of preparatory work to the Charter, the whole debate on principle of self-determination of the peoples focused on restricting its scope. The majority of States preferred the existing state centric status, which ensured their vested interests.

The next important treaty was the United Nations Declaration on the granting of independence to colonial countries and peoples of 1960. The preamble of the

106 Declaration proclaims the necessity of bringing to a speedy and unconditional end to colonialism in all its forms and manifestations. Article 2 provided that ‘all peoples have the right to self-determination.’ Article 6 provided that ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United

Nations.’

The preambular provision very clearly states that the objective of the treaty was to end colonialism. The rest of the Articles are there to achieve that end. When the treaty provides that all peoples have the right to self-determination, the peoples it refers to are the peoples in the colonial countries. They are the peoples the

Declaration targeted as its chief beneficiary. It is illogical to extend the meaning to cover other situations like minority groups living in Sovereign States. Inclusion of

Article 6 is again controversial. It imposes a restriction on total or partial disruption of the national unity and the territorial integrity of a country. It has been suggested that the incorporation of this provision has been targeted at protecting the national unity and the territorial integrity of the newly independent States once they are decolonised.8 The treaty is a first step in facilitating a very complicated process of decolonisation. The scope of Article 6 has more vision than merely addressing at its end products of States once they are decolonised. Once the colonies become States, they become equal entities with other States and there is no need to talk about the future States rights in this particular Declaration. Incorporation of Article 6 must therefore have other objectives. One possibility is to prevent arbitrary demarcation of boundaries of the new States in the process of decolonisation. When the process of decolonisation takes place, national unity and the territorial integrity of the country is

8 Islam, R.I., International Legal Implications; The Bangladesh Liberation Movement, p. 275 107 to be taken in to consideration. In any event, Article 6 cannot be interpreted to be applicable to the States once they are decolonised but during the process of decolonisation. It is apparent from the text of Article 69 of the Declaration and the preparatory work that the majority of the countries firmly believed that colonial boundaries should not be modified.10 The principle of uti possidetis was regarded as being paramount. This Article led States actually to deny the right of self- determination to individual ethnic groups within colonial territories. The true intention of incorporation of Article 6 was to prevent disruption of many colonial countries in the process of decolonisation. However there is a real difficulty in finding the true intention of incorporation of Article 6. This difficulty is not there in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States 1970. The Declaration while admitting the right of principle of self-determination of all peoples restricts its scope by providing a saving clause. The resultant effect of the Saving Clause is to preserve territorial integrity of

States ahead of self-determination. However, operation of the Saving Clause is again qualified by providing further exception. The preservation of territorial integrity is subject to the condition that the government has to be representative of the whole population in the territory. The 1970 Declaration, unlike the 1960 Declaration resolved the problem of conflicting principles in an acceptable manner. The 1960

Declaration incorporates the two conflicting principles in an unrelated manner.

Article 2 recognises the right of all peoples to self-determination while Article 6 recognises the territorial integrity of States. There is no co-relation between the two

Articles. The 1970 Declaration has a logical co-relation between the two concepts. It firstly recognises the peoples’ right of self-determination; secondly, that right is

9 Article 6-“ Any attempt aimed at partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” 10 Cassese, A., Self Determination of Peoples; A legal reappraisal, p.73 108 restricted to the extent it contravenes the principle of territorial integrity of Sovereign

States: and thirdly, the preservation of territorial integrity of Sovereign states is limited to the extent that the government is representative of the whole population.

The conclusion is that according to established international law arising out of treaty law, the exercise of any external right of self-determination is impossible where the

Government in the state is representative of the whole population. To simplify this, ethnic, racial or religious groups living in a Sovereign State, which has a democratic government, cannot claim right of self-determination to create a separate State.

The above discussion focused on the two conflicting principles as embodied in treaty law. Next, the two conflicting principles are to be analysed independent of treaty provisions in order to assess the true application of the principles in the present world order.

The plain meaning of self-determination is that the right of people to determine the form of Government they will have. The exercise of this right within the State is equivalent to democracy. The people in a country can decide who governs them.

Political parties normally do this. The political parties contest in a general election and the party with the majority votes becomes the dominating force in the legislature and forms the government. The country is governed by the majority wish. If the minorities are not happy with the majority rule, they have a right to claim internal self-determination. Within the existing State they can claim more powers in the form of Regional or Provincial powers. As long as the majority give consideration to these

109 demands, the minority groups are said to be realising the right to self-determination internally.

The other major problem is the sustainability of the new States. Economic and political viability is the most important criteria for the creation of a new State. If the emerging State is not in a position to cope with the demands made by the complicated world, the result will be chaotic. In order to avoid all these unprecedented events, the importance of territorial integrity of the existing States cannot be undermined. This is why the succeeding treaties incorporate the notion of territorial integrity as a basic formula. The major task of the proponents of the principle of self-determination is to clarify the limits of the disintegration of the world. Do they sanction every religious group or every ethnic group in sovereign

States as the unit of disintegration? The number of States belonging to the United

Nations steadily increased since its inception. The initial membership of 51 in 1945 has increased to 189 at present.11 The steady increase of membership as a result of decolonisation is evident in the nineteen fifties, sixties and seventies. The further expansion of its membership is basically dependant upon the interaction of principle of self-determination and territorial integrity. The international community continues to disregard the principle of self-determination when it is confronted by territorial integrity of Sovereign States. Biafra and Katanga failed basically due to the reluctance of the international community to recognise disintegration of Sovereign

States. Bangladesh succeeded not because of the recognition of the principle of self- determination but the recognition of principle of rule by majority. This cannot be compared to Katanga or Biafra but to the white minority rule prevailed in South

11 "Basics facts about the UN", Department of Public Information, United Nations, 2000, Sales No. E.00.I.21.

110 Africa. Pakistan before disintegration, denied the majority Bengalese peoples’ right to govern the country, whereas South Africa denied the majority Black peoples’ right to govern the country. Both in Biafra and Katanga the struggle was essentially by a minority group claiming for secession of the territory. This undoubtedly affects the territorial integrity of Sovereign States. This very clearly reflects that when the question is between the self-determination and the territorial integrity of Sovereign

States the world community’s response is very cautious. However if the disintegration of the Sovereign State is imminent, and the process seems to be irreversible, the world community acquiesces in the first place, and then recognises.

That is how the world community looked at the recent disintegration of the former

Soviet Union and Yugoslavia. Once these huge territories come to the verge of dissolution, no international legal principle could stop that. Even though the majority of States succeeded in reversing the process of recognition of Biafra as a State, which in fact had existed for more than three years, it was unimaginable to make such a move in the former Soviet Russia and Yugoslavia. In the case of the former Soviet

Union, the forcible annexation of the three Baltic States of Estonia, Latvia and

Lithuania, in 1940 was always considered to be a violation of the right of self- determination of the peoples of those States by the international community. The declaration of independence by Baltic States based their theory to justify their disintegration on the illegality of annexation of the states in 1939 but not the right of self-determination. The Baltic Republics were recognised by many States as independent and sovereign by 1990 and reacquired their political independence.

Unlike the Baltic States, the remaining twelve Soviet Republics had no right of self- determination, under current international law.12 However such a right was explicitly laid down in the 1977 Soviet Constitution, which stated that:

12 Above note 10 p.264 111

Each Union Republic shall retain the right freely to secede from the U.S.S.R13

While the twelve Republics seceded from the USSR on the basis of Article 72, they sought a form of legitimation for their breaking away in the general principle of self- determination. They held referendums. The whole process of independence by the twelve Republics is said to have occurred outside the realm of law, both international and municipal. It was a de facto process precipitated by the political crisis at the centre of the Soviet Union and the correlative increase in the strength of centrifugal forces.14

In the case of former Yugoslavia, dissolution was very much similar to the twelve

Republics of former Soviet Union. However the Yugoslav Constitution of 1974 did not make specific provision for the right of any of the six constituent Republics to secede.15 The Yugoslav Republics, as in the case of Soviet Republics, decided to hold referendums before declaring independence. The achievement of independence by the Yugoslav Republics can be seen as a revolutionary process that has taken place beyond the regulation of the existing body of laws.16

The foregoing discussion proves that the international community without much hesitation has accepted the two recent huge challenges to the territorial integrity of

Sovereign States. The two cases had been identified as beyond the scope of the body of existing municipal and international legal regime. This is despite the fact that the

13 Article 72 of the 1977 Soviet Constitution 14 Above note 10 p. 266 15 Bagwell, B., ‘Yugoslavian Constitutional Question: Self-Determination and Secession of Member Republics’, 21 Georgia Journal International Comparative Law, 1991,pp.508-21 16 Above note 10 p.270 112 reluctance of the international community to recognise the secessionists’ claims based on some form of legal principles in Biafra and Katanga. The cases of the former Soviet Union and former Yugoslavia on the one hand, and Biafra and

Katanga on the other, are an indication that the recognition of States by the international community in the present world context is much more political than legal. The secessionist movements with legitimate objectives, which do not have enough support from the powerful nations, beg to be heard in the fora of the international community for their recognition, while the secessionist movements with strong international support from the powerful nations achieve their independence within a very short period even though they do not base their claims on legitimate grounds. In a State-centric world, the preliminary requirement for a territory to be recognised as a new Sovereign State is not the legitimacy of its claim, but sponsorship by the powerful nations. If the dissolution of a Sovereign State is in par with the agenda of the strong nations, and does not contravene with the interests of the powerful nations, realisation of such claim is much easier despite the fact it may contravene the principle of territorial integrity of Sovereign States or any other legal principles established in international law. Dissolution of huge regimes of communism had been a much-anticipated result in the eyes of the Western World.

The intelligence agencies of the Western World made every effort to give effect to this aspiration. The concepts of Perestroika and Glasnost were much more important to Americans than to Russians. The Western World did not want to delay the recognition of the newly created Sovereign States emerging from the former USSR for the reason it challenges the principle of territorial integrity of Sovereign States.

113 The secessionist claims throughout the world base their demands on the principle of self-determination. The recent history has not indicated any positive response for these claims. The counter-argument is the territorial integrity of Sovereign States.

The United Nations very strongly supports this stand. The contention that

‘Bangladesh event is the first ever successful assertion of self-determination in the post-war period in a non-colonial setting’17 is not without controversy. The Bangalee

Nationalist Movement’s struggle was to claim the right of majority rule in Pakistan.

The majority Bangalee people in then Pakistan were not given their right to govern the country. The parallel of this situation was both in Southern and South

Africa. In both States, the minority white regimes ruled the majority black people. In the two African States the majority black people won their right to rule. In Pakistan, the Bangalee National Movement could not win the right to rule the whole of

Pakistan, so they declared the independent sovereign status of East Pakistan thus creating the new State of Bangladesh. The only difference between South Africa and

Southern Rhodesia on the one hand, and Pakistan on the other, is that in the former

States the majority black people established their rule within the whole territory, and in the latter Bangalee people established their rule within a portion of the whole territory. The essential result was in the case of the two African states, the territorial integrity of the Sovereign States was preserved, and in the case of then Pakistan, the territorial integrity was challenged. The two African States realised the right of self- determination of black people internally while in the case of the then Pakistan, as the realisation of internal self-determination of Bangalee people was impossible, they achieved it externally. The Bangalee Liberation Movement is therefore not a secessionist movement. The Unilateral Declaration of Independence of Bangladesh

17 Above note 8 p.2 114 (UDI) had no discoverable provision stating that it proclaimed the Declaration in the exercise of right of self-determination. This situation is identical with the dissolution of the former Soviet Russia and former Yugoslavia. In both instances, seceding

Republics did not depend on the principle of self-determination. Instead they resorted to the widely acceptable referendum procedure to legitimise their disintegration. All the successful challenges to the territorial integrity of Sovereign States in non- colonial setting had not relied on the principle of self-determination. Except for the three Baltic Republics in the former Soviet Russia, the rest of the 12 Soviet

Republics and the Yugoslav Republics did not have an external right of self- determination therefore there was no way they could rely on this principle. The three

Baltic Republics and East Pakistan, even though they had a right of external self- determination, were reluctant to base their claim on that right. The three Baltic

Republics relied on illegal incorporation by the former Soviet Russia in 1949, and

East Pakistan relied on the principle of repressive government of Pakistan.

The only instance where a successful challenge to the territorial integrity of a

Sovereign State in the non-colonial setting based on the right of self-determination has been East-Timor. East-Timor had been under Portuguese domination since 1586.

In 1974, when the political regime in Portugal changed, this country recognised the right of the East–Timorese people to self-determination and decided that the future political status of East-Timor should be decided by an Assembly to be elected by universal, secret and direct ballot in 1976. Soon two opposing political movements,

The Revolutionary Front for the Independence of East-Timor (FRETILIN) and Anti-

Communist Movement (MAC) put conflicting claims, the former demanding the independence of East-Timor, the latter advocating its integration in to Indonesia. On

115 7 December 1975, Indonesian troops invaded East-Timor. Portugal immediately protested in the UN and both the General Assembly and the Security Council upheld

Portugal’s claims18, thus condemning the Indonesian invasion, although they did not state that it amounted to an act of aggression. Indonesia invited the UN to send a mission for the purpose of verifying on the spot the wishes of the population, but the

UN refused to comply because it did not wish to endorse the invasion of the territory by Indonesian troops. In spite of these solemn condemnations, on 31st May 1976 an unelected regional popular assembly set up by a provisional government established by pro-Indonesian political parties passed a Resolution in favour of East-Timor’s incorporation to Indonesia. On 17th July 1976, the Indonesian legislature enacted

Law 7/76 making East-Timor the 27th province of Indonesia. The FRETILIN continued their struggle for a separate State in East Timor.

For more than two decades the UN failed to enforce self-determination of East-

Timorese people. This failure is attributable to political considerations, in particular the strategic importance of Indonesia for the West.19 The U.S.A. for geopolitical reasons failed, either within or outside the UN, to take steps to ensure the withdrawal of Indonesian troops.20 The European Community and the other strong nations such as Australia accepted East-Timor as part of Indonesia. Australian Minister for

Foreign Affairs on 20 January 1976 stated that the Australian government had decided to accept East-Timor as part of Indonesia.21 The indication is that as long as third States do not see their own interests as being directly affected by such breaches, the powerful nations tend to lay greater emphasis on other considerations than those relating to respect for international law. In recognising the incorporation, the

18 UN General Assembly Resolution 3485(xxx) of 12 December 1975 19 Above note 9 p.227 20 Above note 21 Australian Year Book of International Law, 1983, p.279 116 majority of the States considered it as an accomplished fact therefore they did not want to change it. On the other hand Portugal, as the administering power of a non- self governing territory, claimed on behalf of East-Timor that it had a right to realise its right of self-determination. The hidden agenda behind Australia’s continuos recognition of the territorial integrity of Indonesia in respect of East-Timor was the benefits Australia was receiving under the regime of General Suharto. The most important, amongst others, was the Timor Gap Treaty of 1989, which provided

Australia with access to the lucrative oil and gas deposits in the Timor Sea, the stretch of Ocean straddling the 600km between Australia and East-Timor. Australia lost its special relationship with Indonesia with the ousting of General Suharto in

1998, after weeks of mass demonstrations demanding democratic reforms. With

Australia’s special relationship threatened and with Portugal and other European powers pressing for their demands at various international fora, and continuos agitation by the East-Timorese independent groups internally, the Australian government was forced to respond.

In December 1998, the Australian Prime Minister John Howard wrote to Indonesia’s

President, B.J.Habibie suggesting that it might be worth considering a means of addressing the East-Timorese desire for an act of self-determination in a manner which avoids an early and final decision on the future status of the province...We believe the best way forward on the issue is for the Indonesian government to agree to an act of self-determination at some stage in the future, after a substantial period of autonomy.22 Habibie was reportedly infuriated that Howard had backed away from Australia’s former position of uncritical support of Indonesian control of the territory. With pressure mounting from Portugal, the European Union and the United

22 The Bulletin, October 12, 1999, p.32 117 Nations, he announced that Indonesia would bring on the referendum immediately.

In 1999, Australia initiated an agreement23 with Indonesia and Portugal, which was signed on May 5 1999 before the Secretary General of the United Nations allowing the conducting of a referendum on the future of East-Timor. The referendum was held on August 30, 1999 and according to the official results, 21.5% of the voters had chosen to accept the special autonomy offered to the territory by Indonesia, while an overwhelming majority of 78.5% rejected it, thus laying the path for independence. With the announcement of the results, the Indonesian military backed militia in East-Timor initiated a well-planned ‘scorch East-Timor’ campaign. When the extent of carnage in East-Timor after the referendum was known, Howard rushed to rally the support of its long-time and more powerful ally for a military intervention. But the U.S. refused to commit its own troops because of its lack of interest in the Pacific region. The U.S. President eventually agreed to an Australian led force. He backed this up with verbal threats to Habibie that the Indonesian economy would be crushed if the forces were not invited in. After a week of mounting pressure, the Indonesian President addressed the country and the world on

September 12, 1999, recognising the failure of his regime to ensure security for the

East-Timorese and asking for the co-operation of the international community to restore peace in the massacred territory.24 The UN Security Council issued the

September 15, 1999 Resolution, where it urged an international peace enforcement force to enter the territory as soon as possible. The International Force for East-

Timor (INTERFET) led by Australian forces, entered the territory and commenced peacekeeping activities.

23 Above note 17 24 Web site, http;www.geocities.com/Tokyo/9293 118 On 25 October 1999, the United Nations Security Council by Resolution 1272 (1999) established the United Nations Transitional Administration in East Timor

(UNTAET) as an integrated, multinational peacekeeping operation fully responsible for the administration of East Timor during its transition to independence.

The Australian Prime Minister, having supported the East-Timorese cause successfully, declared a new foreign policy strategy. In an interview to the Bulletin

Magazine (28 September 1999) Mr. Howard advanced “The Howard Doctrine”, his vision of Australia acting as a regional “Deputy” to the global US policeman, intervening aggressively in the region to assert its economic and strategic interests, and to defend moral values.” Australia, he stated, “has a particular responsibility to do things above and beyond in this part of the world.” Why? “Because of the special characteristics we have; because we occupy that special place-we are a European,

Western civilisation with strong links to North America, but here we are in Asia.”

Even though the Howard Doctrine was denounced throughout Asia and condemnation at home, the indication was significant. When he said “...and to defend moral values”, he meant values in international law such as the principle of right of self-determination. But the important point is that his defending of “moral values” is subject to Australia’s assertion of its economic and strategic interests in the region.

That is the main reason behind Australia’s shifting of positions from the territorial integrity of Indonesia towards the self-determination of East-Timor. When Australia was gaining advantage from Suharto government in Indonesia, it supported the territorial integrity of that country and when it lost the support from the Indonesian

119 government with the downfall of Suharto regime, Mr. Howard shifted his emphasis towards the moral values of East-Timorese people.

East-Timor held its first Presidential election on 14 March, elected their first

President, and drafted and adopted their first Constitution. The United Nations handed over the reins to this newly established democratic Government on May 19 and 20, 2002.

That Australia seems to be shifting the moral values depicted in Howard’s doctrine in the assertion of economic and strategic interests of Australia for a second time. Now it is trying to protect the territorial integrity of Australia against the illegal immigrants coming in boats basically through Indonesia. The Australian Government realised that the people smuggling and illegal trafficking of persons into Australia could not stop without the co-operation of Indonesia. With the objective of improving relations with Indonesia, Prime Minister Howard met Indonesian

President Megawati in Jakarta on 7 February 2002. Howard’s main aim was to canvass Indonesia to incriminate illegal immigrants coming to Australia through

Indonesia. Some Indonesian politicians have accused Howard of his megaphone diplomacy. In order to fulfil his objective Howard told the president of Indonesia that

Australia strongly supports the territorial integrity and the unity of the

Indonesian nation and we understand the challenges of a vast country. We

respect very much the autonomy packages that have been developed to deal

with particular regional issues, but Australia supports the maintenance of the

120 unity of the Indonesian nation and it is a significant element of the bilateral

understanding between our two Governments.25

This statement has clarified the position of Australia in respect of other secessionist movements in Indonesia. Unlike East-Timor, Irian Jaya, Aceh, West Papua and

Maluku will have to find other strong nations to sponsor their causes if they are to realise their right to self-determination, or alternatively to wait until Australia changes its stand on their policy of defending moral values as enunciated in the

Howard’s Doctrine.

The aim of the foregoing discussion is to prove that the implementation of principles of international law such as principle of self-determination and the notion of territorial integrity in the present world context is mere illusion. The powerful nations throughout the world have made use of those principles to achieve their political aspirations. The conflict between the notion of territorial integrity of

Sovereign States and the principle of the right of self-determination, if there is any, is only a reflection of the struggle between power politics in the international scene.

The success of the Bangladesh liberation movement is a clear result of the military intervention of mighty Indian forces. The decisive factor was the powerful nation of

India in the region. In the dissolution of the former Soviet Union and the former

Yugoslavia, the decisive factor was the anti-communist sentiment throughout the world, which was led by the U.S.A. and Western Europe. In the creation of East-

Timor, Australia ignited the fire. This is the first instance in the post-colonial setting that a nation came in to existence under the expressed theme of the right of self-

25 Web site, http://www.pm.gov.au/news/2002/interview1503.htm, 30/04/02

121 determination. In all other instances the right of self-determination was mentioned for the purposes of post-mortem justifications.

It can be concluded by saying that in the modern world, the protection of territorial integrity of Sovereign States or the realisation of right of self-determination by a nation is all dependent on the sponsorship of the particular cause by a strong nation supported by the majority of nations in the World Community. What is most important is not if there is a valid cause for a claim to be asserted, but if the international politics allow that particular cause to be asserted. The international political environment prevailing in the world ultimately decides whether a particular nation has a right to exercise its right of self-determination or to exercise the protection of Sovereignty of State. The conflict between the two notions therefore is not a real conflict but a real result of international power politics.

122 Chapter 9

Definition of Statehood and Factors Undermining

Separatists Claims to Create Separate States

Article 1 of the Montevideo Convention on the Rights and Duties of States 1933 states:

The State as a person of international law should possess the following qualifications:

(a) Permanent population;

(b) Defined territory;

(c) Government; and

(d) Capacity to enter into relations with the other states.

Article 3 provides that the political existence of the State is independent of recognition by the other States.

Article 6 provides that the recognition of a State merely signifies that the State, which recognizes it, accepts the personality of the other with all the rights and duties determined by international law.

A close analysis of Article 1,2 and 3 of the Montevideo Convention reveals that the moment an entity satisfies the requirements mentioned in Article 1, there is no

123 question of political existence of an independent State. There is no need for other

States to recognise that State. The mere function of recognition by the other States is the acceptance of the personality of the other State, which has already come into being in international law.

Assuming that the Montevideo Convention provides the basic guideline for the definition of Statehood, it can be equated to domestic legislation, which generally provides as an illustration that in order to commit the offence of A, the constituent elements of x, y and z need to be fulfilled. In a given situation, a person subject to the jurisdiction of the offence A, committing the acts of x, y and Z together is deemed to have committed the offence A. Unfortunately, the Montevideo Convention which is applied in international law, does not behave in the same way as the committal of offence A in the domestic law. Even though the framers of the Convention expected it to behave in that manner, it does not behave in the manner they expected in the much more complicated world of international level.

Articles 3 and 6 of the Convention support the declaratory theorists version of recognition of States. Declaratory theorists assert that recognition by existing States merely acknowledges that a community possesses the empirical attributes of a State: territory, population, a government, and the capacity to engage in international relations. Statehood exists as such prior to and independent of recognition. The act of recognition is merely the formal acknowledgement of an already existing fact.

Constitutive theorists, by contrast, consider recognition necessary to the creation of new State. It is only through recognition, and recognition alone that a State becomes an international person and a subject of international law.

124

The majority of legal scholars support the Declaratory Theory.1 The Declaratory

Theory of recognition of States, it is submitted, is the traditional theory of recognition of states. The theory exactly fits into the creation of new States as a result of decolonisation. The theory is in agreement with the doctrine of uti possetidis juris, which states that the territorial boundaries of post-colonial States should be the same as those of the colonial territories that they replaced. The previously Sovereign

States lost their sovereignty by forcible colonisation, and by the time the decolonisation process commenced, the recognition of new States was relatively simple in the majority of cases, as there already was in existence well recognised territorial boundaries and identity of nationhood. The suitability of the Declaratory theory under those circumstances was hard to challenge. The real challenge to the theory was obvious once the process of decolonisation was almost finished and the new world set in motion the second round of disintegration process when the minority groups within the newly developed Sovereign States initiated agitation for secession. This time the process of recognition of States became much more complicated than the Montevideo Convention anticipated when it incorporated

Article 3 and 6 in to the Convention. The present world state practice supports that mere compliance to the requirements set out in Article 1 of the Montevideo

Convention is totally insufficient to claim Statehood. Recognition by other States has become the predominant character of the recognition of States, giving the

Constitutive theory the edge over Declaratory theory. The constitutive theory thus in a correct interpretation requires the basic elements in Article 1 of the Convention and

1 Shearer, I.A., Starke’s International Law, 11th Edition, Butterworths, London, 1994, p.121

125 the recognition of other States for an entity to claim Statehood. In a strict sense it is correct to say that:

Recognition of States is not a matter governed by law but a question of policy.2

The collapse of the former Soviet Russia and former Yugoslavia proved again that the already existing rules of Recognition of States would not provide the world community with a sufficient choice of diplomatic tools with which to work. The

European Community, the principal mediator in the Balkan crisis, issued a

Declaration on the Guidelines on the Recognition of the New States in Eastern

Europe and in the Soviet Union3 stated that:

The Community and its Member States ... affirm their readiness to recognize,

subject to the normal standards of international practice...those new

States...

The European Community adopted a common position on the process of recognition of these new States, which requires:

1. Respect for the provisions of the Charter of the United Nations and

the commitments subscribed to in the Final Act of Helsinki and in

the Charter of Paris, especially with regard to the rule of law,

democracy and human rights

2 Lauterpacht, H., Recognition in International Law, 1947, p.1 3 The European Commission Foreign Ministers Meeting in Brussels on 16, December 1991

126 2. Guarantees for the rights of ethnic and national groups and

minorities in accordance with the commitments subscribed to in the

framework of the CSCE

3. Respect for the inviolability of all frontiers, which can only be

changed by peaceful means and by common agreement

4. Acceptance of all relevant commitments with regard to disarmament

and nuclear non-proliferation as well as to security and regional

stability

5. Commitment to settle by agreement, including where appropriate by

recourse to arbitration, all questions concerning State succession and

regional disputes.

6. The Community and its Member States will not recognize entities,

which are the result of aggression. They would take account of the

effects of recognition on neighbouring States.

The guidelines enumerated in the Declaration are subject to the normal standards of international practice. This leads to the argument that the latest world trends have even further restricted the criteria of recognition of states. For a new entity to be recognised in the international community, it needs to fulfil the requirements provided in the Declaration on the Guidelines on the recognition of New States in

Eastern Europe and in the Soviet Union in addition to the requirements in Article 1 of the Montevideo Convention. While the applicability of the new guidelines for

Recognition of States in Europe cannot be challenged, its application in other parts of the world may create problems. The mere fact that the newly emerging States were recognised by the international community based on the guidelines provided by

127 the Declaration leads to the argument that the guidelines provided in the Declaration has already become customary international law. The theory of ‘Instant International

Law’ advocated by Professor Cheng4 can be resorted to support this argument.

‘Instant International Law’ refers to a spontaneous activity practised by a great number of States acting, as they want to act in areas, which do not lend themselves to classification as traditional custom.5 The spontaneous activity practiced in this instance was the recognition of new States in Eastern Europe and Soviet Union. This activity was practiced by all the member States of the World Community, in recognising more than 10% of the present State membership. It is therefore correct to come to the conclusion that the guidelines provided in the Declaration of 1991 have become universal.

Having defined the rules of recognition of States in the present world context, the next task is to find out the application of rules of Recognition of States in respect of secessionist movements. The ultimate motive of any secessionist movement struggling for a separate State is to claim statehood in the international community.

The rules applicable to them cannot be any different to any other entity. With the objective of understanding the Tamil separatists question in Sri Lanka, the State practice in respect of recognition of States in cases of secessionist movements is next examined.

Before entering the actual discussion of State practice, it is important to turn back to the four elements mention in the Montevideo Convention. They are: a permanent population, defined territory, government and capacity to enter in to relations with

4 Jensen, Eric J., Introduction to International Law in Sri Lanka, Open University of Sri Lanka, Colombo, 1989, p.14 5 Above note

128 the other States. While the scopes of the first three elements are not difficult to understand, the fourth element poses some problem. The first three elements are essentially matters within the entity, while the fourth element goes well beyond that.

One sound argument is that once the first three elements are fulfilled by a particular entity, such entity acquires the capacity to enter in to relationship with other States.6

Therefore once the first three requirements are met, the fourth element is ipso facto fulfilled. According to Professor Akehurst:

Some writers treat recognition as a fourth condition, which has to be satisfied

before a State exists for the purposes of international law. But...the better

view appears to be that recognition is usually no more than evidence that the

requirements of population, territory and government are satisfied.

This statement, while trying to adopt the declaratory theory, equates the fourth element in Article 1 with recognition. Equation of the requirement in Article 1 (d) with ‘Recognition’ could result in confusion. If the argument were that Article 1(d) has the meaning of recognition, Article 3 which provides that the political existence of the State is independent of recognition by the other States become superfluous. It is illogical to have two provisions in a Treaty to the same effect. It is therefore correct to argue that Article 1(d) does not deal with the recognition by the other

States, but merely deals with the resulting effect once Article 1 (a), (b) and (c) are fulfilled. The question of recognition by the other States comes in to play, if it has any significance, only once the entity claiming statehood satisfies the first three requirements and thereby acquires the capacity to enter in to relations with other

States. At this stage, the entity is a legal personality within the international

6 Above note 4

129 community according to the Declaratory Theory and is ready to be recognised by other states to become a State according to the Constitutive Theory.

One undisputable fact is that for any theory to operate the basic requirements set out in Article 1 of the Montevideo Convention is a prerequisite. There are instances in world history that the claim for Statehood had been successful even without fulfilling these basic requirements. Israel was admitted as a member state of the United

Nations in May 1949, notwithstanding that its boundaries were not then defined with precision, pending negotiations regarding demarcation.7

There are other instances of non-recognition of entities even though the basic requirements of the Montevideo Convention are fulfilled. Non –recognition of

Republic of China by some western countries for a long period is a very good example.

Recognition of States in respect of a secessionary movement can be explained in terms of the Biafra case. The Eastern Region Consultative Assembly of Nigeria seceded from Nigeria and proclaimed the independence Republic of Biafra on 30

May 1966. The Republic survived for more than two years thus satisfying the requirements for the claim of Statehood. It had its own Ibo population, its own permanent territory, an effective government, and even though no state initiated diplomatic relations it had the capacity to do so if the other States were willing.

Biafra was reabsorbed in to the Federation of Nigeria after more than two years of its existence as an independent state. The basic factor was that the reluctance of the international community to recognise the Republic of Biafra as a new State. The

7 Above note 1, p.85

130 main reason for non-recognition was the adherence to the principle of territorial integrity both by the Organization of African Union (OAU) and the United Nations.

The UN Secretary-General stated that the UN would not support any breakaway attempt in its member States.8 The failure of the Biafran attempt demonstrates that mere fulfilment of the requirements in Article 1 of the Montevideo Convention is insufficient to claim Statehood, but requires in addition, recognition by other States.

At the other extreme, if the World Community views a particular entity as being entitled to claim Statehood, it can create the environment by providing such entity with the requisite elements. In East-Timor, the entity had only the defined territory and its population. The United Nations established an interim administration and supported the establishment of an effective government by holding Presidential elections and electing a President to take over the Government. The entire World

Community was anxiously awaiting recognition of the new State when the UN handed over its Administration to the new Government.

The foregoing discussion reveals that the creation of new States are highly political than legal. Under the circumstances it is impossible to ascertain the exact elements demand by the international community in order to claim Statehood by an entity.

Broadly speaking in the present world context, the creation of a new State is conditional upon two aspects:

1. Internal aspect, and

2. External aspect.

8 7 UN Monthly Chronicle, February 1970, p.36

131 The internal aspect can be identified as the requirements the entity needs to fulfil within the entity. They are the four elements required by the Montevideo Convention for an entity to claim Statehood and the guidelines recognised by the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet

Union. The elements of defined territory, permanent population and a government are essential while the capacity to enter in to relations with other States is conditional upon the fulfilment of the former 3 factors. The respect for the provisions of the UN

Charter especially with regard to the rule of law, democracy and human rights, guarantees for the rights of ethnic and national groups and minorities, respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement, acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability, commitment to settle by agreement (including where appropriate by recourse to arbitration), all questions concerning State succession and regional disputes, are the other requirements required to fulfil to claim statehood.

The external aspect is the recognition by the other states. This is the most crucial factor in determining the creation of a new state. The descriptive list described under the external aspect above does not have any significant meaning if the international community wish to give a particular entity the status of statehood. The minimum requirement is the existence of a territory and a population to take control of it. Even this salient requirement be challenged when one focuses on the creation of Israel in the middle of the Arab World. At the inception of the State of Israel, there were no

Jewish people demanding a State, and there was no special territory attaching to

132 those people in the Middle East. But the political will of the international community resulted in creation of the new State.

Coming back to the main point, does the Tamil Separatist movement in Sri Lanka satisfy the requirements demanded by the present international world order to create a separate State? As seen above, it is not only satisfying the Montevideo Convention but there are other elements, which needs to satisfy in order to claim Statehood in the international community. However it is undisputable that satisfying Montevideo

Declaration is a prerequisite.

The first question to answer is do the Tamil separatists have a defined population, secondly do they have a defined territory, thirdly do they have an effective government and fourthly, do they have the capacity to enter in to relationship with the other States.

The first two questions are intermingled. If they have a defined territory, yes it is possible to say that they have a defined population within that territory. The main issue in this regard is that they demand the Northern and Eastern Provinces. They consider those provinces as their traditional homeland.

The Tamil claim to a ‘homeland’ in the northeast of the Island is based on the claimed existence of a Tamil kingdom as a result of an invasion during the 13th

Century. Yet, since not only were there Sinhala kingdoms in the same area both before and after this Tamil kingdom, a Tamil claim based on an imperialist

133 occupation during a tiny slot in history cannot have more validity than the rights of the indigenous Sinhalese.9

If this Tamil claim on the basis of an imperialist invasion is valid, then the

Portuguese and the Dutch invaders would also be entitled to re-claim the colonial areas in Sri Lanka occupied by their own empires in the 16-18 centuries, and the

British would have a claim to the entire Island based on their conquest and occupation from 1815 - 1948. Indeed, the British would also be able to re-claim much of the world (also India, including the Tamil motherland Tamil Nadu) on the basis of their own imperialist conquests. On the same basis, the Italians too would have a claim to England (and all of Europe and beyond) on the basis of the Roman

Empire’s occupation for more than 450 years. And there would be similar ‘rights’ of the Mongolians, on the basis of the conquests by Genghis Khan.10

In fact, the implicit recognition during the Twentieth Century that a nation is entitled only to its own motherland (and that the occupation of any other nation’s land is colonialism and a violation of the human rights of the indigenous people of that land) led to all the imperial nations - Britain, France, Spain etc. – relinquishing their claims to the countries they invaded, and they are all now confined to their own motherlands.11

This theory proves that the separatists cannot legitimately make a claim for a Tamil homeland. Thus negating any claim for a defined territory.

9 http://www.spur.asn.au/FAQ-010_Do_Tamils_have_a-right_to_a_Homeland_in_Sri_Lanka.htm 10 Above note 11 Above note 9

134 The next question is that do the Tamil Separatists have a permanent population. The population in the claimed homeland is defined. However it is necessary to analyse the constituent population in the claimed homeland. In the last available census12 in the Northern and Eastern provinces the percentage of ethnic groups are; Sri Lankan

Tamils-49.8, Sinhalese-33.05, Moors-16.6 and Indian Tamils- 0.2. The statics very clearly demonstrates that even though they claim for a Tamil homeland in the

Northern and Eastern provinces, their overall percentage is 49.8.

Then the essential question is whether the claim by the separatists is a claim by a majority of the population living in the alleged territory. The political will of the people living in these two provinces had not been tested. Neither the Government of

Sri Lanka nor the separatist movement initiated any form of referendum to see the will of the people. It is submitted therefore that the claim of the Tamil separatists for a separate sovereign state has neither been endorsed nor rejected in a referendum so far by the people in these regions.

In the case of Quebec province in Canada there is an agitation for a separate state.

The separatist group, which promised a separate sovereign state for Quebec, won control of the Quebec legislature in 1976. The separatist party Quebecois, which headed by Rene Levasque, promised a public referendum on the issue of the constitutional secession of Quebec from the Canadian federal system. Four years later, a referendum was held. The majority, 1,900,000 persons, voted to remain part of Canada; 1,300,000, voted in favour of independence. In 1991 a provincial law was

12 Census of Population & Housing 1981, General Report Vol. 111, Colombo, Dept. of Census and Statistics

135 passed in Quebec providing for holding a referendum. On 26 October 1992 the referendum was held but 54% of the voters cast a negative vote.

Again in 30 October 1995, another referendum was held and a marginal 50.5% of the population said no to separatism.

Despite the fact the majority population rejected the idea of separation from the federal state not once but twice by referenda, the separatist party has vowed to make

Quebec sovereign.

The situation in Quebec is interesting, but not so much because of the fact that one is confronted here with a political claim to secession that is totally unsupported by law.13 This is not unique to Quebec as many other cases where minorities, ethnic groups, and nations demanding secession without having any legal entitlement to it.14

Even though their claim for a separate state is unsupported by law, they have been attempting to realise that right in a democratic way. The separatists are trying to get the consent of the people of the territory in a concentrated effort. Having realized that they have not got the majority support, they are heading their way to get the support of the people. It is submitted that this is the true democratic process of realisation of self-determination. If the majority of the population in a territory does not support the notion of separatism, it is illogical to consider the realisation of self- determination has any true meaning.

13A. Cassese, ‘Self-determination of peoples; A legal reappraisal’ p. 253, 1996 Cambridge University press 14 Above note

136 In the case of Eritrea, self-determination of this territory was finally resolved by a referendum.

Between the eleventh and the nineteenth centuries, with the development of the

Ethiopian Empire, Eritrea became a peripheral part of Ethiopia. It was occupied by

Italy in 1885-9. Following the Treaty of Uccialli of 1889,with Ethiopia, Eritrea became an Italian colony in 1890.When Italian colonial rule came to an end in 1941,

Eritrea was administered by Great Britain under a trusteeship, until 1952. By the

Peace Treaty of 1947 with the allies, Italy gave up all rights and titles to her colonial possessions in Africa. The final disposal of all these colonies was to be decided upon by the General Assembly. The General Assembly in Resolution 390-A (v) of 2

December 1950 decided that ‘Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown’. In 1952 the British administration was terminated and the same time the Federation was established. In

March 1952, an Eritrean Assembly was freely elected and in July of the same year this assembly adopted a constitution providing for Federation with Ethiopia. The federation was short lived and on 14 November 1962 the Eritrean assembly voted for the incorporation of Eritrea in to Ethiopia: Eritrea thus became a province of

Ethiopia.

In 1961 the Eritreans had set up an Eritrean Liberation Front (ELF); followed in the

1970s by the Eritrean People’s Liberation Front (EPLF); theses two liberation movements then engaged in an armed struggle with the Ethiopian authorities. The

Eritreans People’s Liberation Front set up a separate provincial government in 1991.

Recently, following the collapse of the Mengistu government, Eritreans acquired full

137 control over Eritrea and after a referendum in 1993, proclaimed their independence.

The referendum held in April 1993 was organized under international scrutiny, and resulted in the recognition of the free and genuine will of Eritrians to become independent.

This is another illustration in support of the argument that the genuine will of the people concerned is all-important in the realisation of self-determination.

In the case of East Timor, the fate of the new nation was finally decided by a referendum. The parties to the issue agreed to “put the constitutional framework providing for a special autonomy for East-Timor within the unitary Republic of

Indonesia to the East-Timorese people, both inside and outside East-Timor, for their consideration and acceptance or rejection through a popular consultation on the basis of a direct, secret and universal ballot”15

Timor has been politically divided in to two parts for centuries. The eastern part has been under Portuguese colonial domination since 1586. The western part of the island, after being under Dutch colonial rule became part of Indonesia in 1946, on

Indonesia’s accession to independence.

Since 1960 East-Timor has been regarded by the UN as a non-self-governing territory. In 1974, when the political regime in Portugal changed, this country recognized the right of the East-Timorese people to self-determination, and decided

15 Indonesia, Portugal Agreement at the UN.

138 in 1976 that the future political status of East-Timor should be decided by an assembly to be elected by universal, secret and direct ballot. Soon two opposing political movements, The Revolutionary Front for the Independence of East-Timor

(FRETILIN) and Anti-Communist Movement (MAC) put conflicting claims, the former demanding the independence of East-Timor, the latter advocating its integration in to Indonesia. On 7 December 1975, Indonesian troops invaded East-

Timor. Portugal immediately protested in the UN and both the General Assembly and the Security Council upheld Portugal claims16, thus condemning the Indonesian invasion, although they did not state that it amounted to an act of aggression. In spite of these solemn condemnations, on 31st May 1976 an unelected regional popular assembly set up by a provisional government established by pro-Indonesian political parties passed a Resolution in favour of East-Timor’s incorporation to Indonesia. On

17th July 1976, the Indonesian legislature enacted Law 7/76 making East-Timor the

27th province of Indonesia. The FRETILIN continued their struggle for a separate state in East Timor. In 1999, under the initiative of Australia, Indonesia and Portugal signed an agreement17 on May 5 1999 before the Secretary General of the United

Nations allowing conducting a referendum on the future of East-Timor. The referendum was held on August 30, 1999 and according to the official results, 21.5% of the voters had chosen to accept the special autonomy offered to the territory by

Indonesia, while an overwhelming majority of 78.5% refused it, thus laying the path for independence.

As a result of these developments, ultimately, East-Timor emerged as a new nation in the world community.

16 UN General Assembly Resolution 3485(xxx) of 12 December 1975 17 Above note 13

139

The common factor in all three cases of Quebec, Eritrea and East-Timor is that the fate of all three territories had decided on the will of the majority of the populations in the territory concerned. In a close analysis of the referendum conducted in Eritrea and East-Timor reveal that the majority consented for the independence of the territory. In Quebec despite the separatists claim for the separatism, majority population rejected. All three cases have decided their fate in a truly democratic manner. The last referendum in Quebec held on 26 October 1992 was initiated in

Quebec by a provincial law passed in Quebec (Bill 150) providing for the holding of a referendum. The referendum in East-Timor was initiated by Indonesia and Portugal by an agreement signed by the foreign ministers of two countries before the

Secretary General of the United Nations.18 The referendum for the independence of

Eritrea was initiated under the auspices of the United Nations in 1991.

Sri Lanka in contrast is yet to see the pulse of the electorate. So far the question of right of self-determination has not been tested in a referendum. At least the problem has not attracted enough attention of the world community to take initiative to organize a referendum.

Having explained the argument that the separatists do not have a valid claim for a separate State as they have not fulfilled the two prerequisites elements of

Montevideo Convention, it is necessary to analyse the remaining two ingredients of the Convention for academic purposes.

18Above note 13

140 The third element requires an effective government. It is well-known fact that the

Tamil Separatists are trying to impose their own administration in their claimed territory. They are in the process of imposing taxes in selected areas, and assumed the role of policing the area. The Sri Lankan Government has been reluctant to admit that it no longer exercises control in some areas. In order to claim the ingredient of effective governance, it is necessary exact the obedience of the people living in these areas. The precise level of governance to claim effective control is undoubtedly controversial. It finally depends on who exercises de facto governance.

The fourth element is the capacity to enter in to relationship with other States. This can be interpreted as recognition by other States. As of yet, no other State has recognised the separatist movement’s claim to Statehood. However the mere fact the

Norwegian Government is mediating in the conflict between the Sri Lankan

Government and the Tamil Separatist Movement does amount to some sort of elevation in their status. Since the signing of ceasefire agreement with the Sri Lankan

Government in February 2001, the Separatists have been dealing with the Norwegian

Government. In the long run, this may lead to recognition by another State.

However, it is too early to predict if the Tamil separatist movement is entitled to claim the Statehood in the world community because it appears not to have fulfilled the first two requirements of the Montevideo Convention, not to mention the additional guidelines imposed by the ‘Declaration on the Guidelines on the

Recognition of the New States in Eastern Europe and in the Soviet Union’.

141 Chapter 10

Conclusion

The preceding chapters analysed the Tamil minority problem in Sri Lanka in different perspectives.

The crux of the matter is that, demand for a separate State extending over one third of the total land mass, and one half of the total sea area, is being made by 12.6 percent of the population. To strengthen their demand, the secessionists add up the

5.4 percent of Indian Tamils living in the central Province of the country, which part is not included in their demand for a separate State, but included as part of the population of the separate State under contention.

Their demands are based on the alleged discrimination on grounds of language rights, education rights, citizenship rights, and employment rights in the public sector.

The major legal issues involved in the exercise of the right of self-determination were raised in Chapter Three. They are firstly; whether the Tamil separatists are entitled to a separate State, Secondly; whether the State is entitled to protect its territorial integrity and Sovereignty, and thirdly; the degree of devolution of power.

Leaving the first two issues for the moment, the third issue related to the degree of devolution of power.

142 Dissolution of power within a unitary State has been the favoured solution by various governments in power since independence. This solution was acceptable even for the

Tamil politicians until the two abortive attempts by Bandaranaike-Chelvanayakam

Pact 1957 and Senanayake-Chelvanayakam Pact 1965. These two Pacts, which basically tried to give regional autonomy to Tamil people in the Northern and

Eastern Provinces, could not be given legitimacy due to the strong opposition from the extremist groups within majority Sinhalese.

The Tamil politicians agitation for a federal system grew in to a demand for a separate State in the late 1970’s. Starting with Thimpu Talks in 1985, the Indo-Lanka

Peace Accord 1987 during Mr. J.R.Jayawardane regime, and the early 2000’s draft

Constitution proposals under the Chandrika Bandaranayake regime failed to cater to the demands put forward by the Tamil Separatists for a separate State. All the proposals during this period consisted of substantial amount of regional autonomy for Tamil people in Northern and Eastern Provinces.

The preceding chapter have discussed the various legal principles involved in their demand for a separate State. One of the major justifications for their demand has been the peoples’ right of self-determination. This principle has found its way into treaty law since inclusion in the provisions dealing with ‘peoples right of self- determination’ in the UN Charter, Civil and Political Rights Covenant, while its

Protocol raised the important issue as to the beneficiaries of this provisions. Despite the wording ‘peoples right’ suggests a wide application, its true application has not extended to individuals, or groups of individuals. The optional Protocol to the Civil and Political rights Covenant has enabled private parties to file individual

143 complaints with the Human Rights Committee, but not complaints of collective rights negating thereby any possibility of making complaints relating to self- determination.

The only instance when treaty law has made an indirect reference to a limited right of secession is in the Declaration of Principles of International Law concerning

Friendly Relations and Cooperation among States 1970. The Declaration in this saving clause provides that nothing in the foregoing paragraph shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self- determination of peoples as described above, thus possessed a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

In other words, the Declaration links external self-determination to internal self- determination in exceptional circumstances. A racial or religious group may attempt secession, a form of external self-determination, when it is apparent that internal self- determination is absolutely beyond reach.

There was a similar outcome in the findings of Commission of Jurists in Aaland

Island case 1920. The separation of a minority from a State of which it forms a part can only be considered as an altogether exceptional solution, a last resort when the

State lacks either the will or the power to enact and apply just and effective guarantees.

144

Both Katanga and Biafra failed in their attempt to secede respectively from Congo and Nigeria because they were unable to demonstrate that they had no other choice but to secede.

In the case of Bangladesh, it came within the purview of exception that East Pakistan had no other choice but to secede. At the time of the Proclamation of Independence of Bangladesh in 1971, the stage was set for them to secede.

In case of East Timor, external forces rather than internal politics accelerated the realisation of right of self-determination of East Timorese people.

The successful stories of secession based on self-determination throughout the world are results of intervention of powerful nations, whereas failures have been the product of intervention by world organisations.

In the Aaland Island case, the Committee appointed by the League of Nations recommended that the Aaland Islands remain under the sovereignty of Finland. The

International Commission of Jurists (ICJ) upheld the Finnish position that under international Law fell within the realm of the sovereign State to grant to or withhold from a fraction of its population, the right of deciding its own political destiny by means of a plebiscite or in any other way.

In the case of Katanga, the United Nations gave a mandate to the United Nations

Operations in the Congo to ensure withdrawal of Belgian forces from the Republic of

145 Congo, to assist the government in maintaining law and order and to maintain territorial integrity and political independence of the Congo.

In the case of Biafra, the failure was basically due to the stand taken by the

Organisation of African Union (OAU). It supported territorial integrity of Nigeria.

The United Nations supported this stand and the Secretary General unequivocally contended that the UN would not support any breakaway attempts in its member

States.

These three situations support the premise that the League of Nations and its successor the United Nations, upheld the principle of sovereignty of States to peoples right of Self-Determination.

In the cases of Bangladesh and East Timor, the powerful nations sponsored their claims for separate States.

The mighty Indian forces facilitated the realisation of right of self-determination of

East Pakistan people. Through the intervention of the Australian government, East

Timor realised its right of self-determination. The reason for intervention in both cases is the vested interest of the powerful nations. Refugee influx in India as a result of instability in the region, and Pakistan interference of Indian air space were the immediate causes. In case of East Timor, Australian vested interest in the oil in

Timor Gap was obvious.

146 In the Sri Lankan crisis, the giant neighbour, India, made a fruitless effort to be directly involved. India, violated Sri Lankan air space and dropped food items in the northern part of the country, in the guise of humanitarian aid. In an Indian brokered peace effort, Indian Peace Keeping Forces landed in Sri Lankan soil and started peacekeeping operations. Both the Sri Lankan government and the separatists rejected the presence of Indian forces in the country and they left the Sri Lankan soil.

Apart from the Norwegian intervention as a mediator, there is no direct interference in the Sri Lankan crisis by the world community since the Indian intervention.

The treaty law regime provides that in order to successfully claim the rights of self- determination, extenuating circumstances need to be present. In other words, when it is apparent that internal self-determination is absolutely beyond reach, a secessionist movement can breakaway from its territory. However the State practice suggests that for a secessionist claim to be successful, it is a prerequisite to have sponsorship by a powerful State.

The successive governments of Sri Lanka are making efforts to end the conflict by a political solution. The ceasefire agreement of 2002 is still in force, with both parties are on and off the negotiation table. According to the Treaty Law regime, as long as there is a possibility of a peaceful solution, a secessionist group cannot successfully claim a separate State. In terms of State practice, there is no strong sponsorship from a powerful State for the Tamil separatists to uphold their claim for a separate State.

147 The question of Statehood was discussed in Chapter Nine. The Montevideo

Convention provides the basic requirements for an entity to claim Statehood. The

State as a person at international law, should possess the qualifications of permanent population, defined territory, government, and capacity to enter into relations with other States. Despite the fact that these requirements are laid down in treaty law, there have been instances of substantial deviations from this basic principle. Israel was admitted as a member of State of the United Nations in May 1949, notwithstanding its boundaries were not then defined with precision. Whenever there is deviation from the normal rule, there is a “Powerful State Factor” in operation in the background. The United States of America was the “powerful State Factor” in the recognition of Israel. Similarly, India and Australia have been the “Powerful State

Factor” in recognising and creating the States of Bangladesh and East Timor respectively. In the case of Biafra, despite the fact that the State had been in existence for more than two years, the new entity could not survive basically due to the fact that there was no “Powerful State Factor” in operation. No mighty nation came forward to support the cause of Biafra and ultimately its fate was decided by the all-powerful State centric notion of State Sovereignty.

To summarise the legal principle to be derived through the treaty law regime and

State practice is as follows:

A secessionist group demanding a separate State within an existing State

based on the right of Self-Determination can only realise internal self-

determination. They are permitted to realise external Self-Determination in

the form of secession from the mother State only if there is no possibility of a

political solution and their cause is sponsored by a powerful nation. Even if

148 there is no possibility of political solution, the secessionist group cannot

secede from the mother State if there is no State sponsorship for their cause.

The principle of Sovereignty of State prevails over the Principle of Self-

Determination.

The Tamil separatists have been unable to satisfy the basic requirements of the test of

Statehood enunciated in the Montevideo Convention as discussed in Chapter 9 and unsupportive of any claim of allegiance within the territory. Even under the deviations to Statehood principle, there has not been even a shadow of “Powerful

State Factor” in operation. India abandoned its interference in Sri Lankan crisis not only because of its complexity but also because of the brutality with which the separatists reacted to the Indian involvement. The India paid a huge price in the form of the life of its Prime Minister Rajiv Gandhi for its involvement. The “September

Eleven Factor” completely eliminated any possibility of sponsorship of the Tamil cause, by a powerful nation.

As the discussion above has shown, according to the established principles of self- determination under international law and State practice, the Tamil separatists are unable to secede from the existing State as a matter of right. It is then necessary to investigate what other solutions may be available.

Alternatives are to either devolve power within a unitary State, or to have a federal system of government. History has shown over and again that a political solution within a Unitary State may be unworkable. As has been the Sri Lankan experience, all attempts to solve the minority problem within the existing system have resulted in

149 heavy burden to the economy. The Provincial Council system introduced in 1987 by adding the 13th Amendment to the 1978 Constitution, did not solve the Tamil problem but created another level of government in between the local and the central, multiplying the number of politicians with no tangible advances in the peace process.

A federal a solution within a unitary State, seems more promising. Given the nature of Sri Lanka as a plural society, the prevailing mistrust and non-confidence between the Tamils and the Sinhalese, and the emotional heritage of an ongoing civil war, the prospect of a federal solution in solving the present political impasse seems to be more promising and lasting.1

In a federation, legal sovereignty is shared between the federal government and the constituent States. A federal government creates two layers of government, with specific functions allocated to each. The functions of the Federal government and the

State governments vary from one Federation to another. In solving the Sri Lankan crisis it is important to demarcate the powers and functions of these two levels appropriately.

Different forms of federalism can be identified according to the degree of sharing of powers and functions between the centre and the periphery. At one end, the

Constitution only has a Reserve List. A very good example is the Australian

Constitution, which enumerates the powers of Commonwealth Government and all the other powers are with the States. In this federation, the Centre is normally weak.

1 M.Rafiqul Islam, The Tamil Separatism in Sri Lanka: Some Factors Undermining the Claim, XXXIII-NILR 1986 pp. 65-83 Martinus Nijhoff Publishers, Dordrecht

150 At the other end, the Constitution only has a Regional List, which enumerates the powers and functions of the periphery. In this type of federation, the Centre is normally strong. A third type of federation has a Reserve and Regional List, based on the theory of “Dual Federalism”. This was what was articulated by the founding fathers of the American Constitution, and later by American judges and jurists.

However, present day scholars have found this model to be deficient, as it does not accurately reflect the reality of American federalism any longer.2 Consequently, the notion of dual federalism- of separate central and provincial governments acting in distinct watertight compartments, each independent of others, has proved to be an inapplicable myth.3

In response to the weaknesses of dual federalism, a concept of interdependent federalism, the constitutions of which have concurrent lists, has emerged. Properly understood, the true nature of the relationship reflects a condition of mutual dependence and interdependence, rather than one of independence or subordination.

The functions and powers in the concurrent list can be exercised either by the centre or the periphery. However some have argued that this overlapping leads to huge problems, for example, the vesting of powers concurrently would lead to uncertainty and doubt as to which authority – the Centre or the Region – should appropriately exercise the power. The answer to this may depend on a variety of facts and circumstances e germane to the issue, and one for consultation and agreement. The successful working of variant forms of federalism providing for concurrent powers in our region, as exemplified by India, Pakistan, and Malaysia show that its presence

2 http:www.lanka.net/lakehouse/1998/10/04/fea01.htm 3 As above

151 has not proved to be an impediment, but as being necessary under conditions not dissimilar to that in Sri Lanka. However, there needs to be some mechanism if the two authorities are both trying to exercise a particular power provided in the

Concurrent List against the expectations of the other. The Centre would be quite justified in appropriate cases in legislating over matters, which would normally be within the purview of Regional jurisdictions if considered necessary to conform to a

National Plan, and to serve the national interest.

Having understood the various forms of federalism, it is necessary to propose a workable solution to the Tamil minority problem in Sri Lanka.

The crucial task of any government especially those of developing countries, and whether it be homogenous or not is the management and modernisation of its economy, and in this the development of unified policies to satisfy the needs and aspirations of its people as a whole.4 To achieve this end, and taking into consideration the past efforts of governments, a federal system with a powerful centre seems to be the most desirable. But the federalism needs to be interdependent, despite its powerful Centre. Mechanisms need to exist for the Centre to take control if the Regions try to exercise concurrent powers against the nations interest as a whole.

The ultimate question then is whether the parties in dispute would agree to such a proposal. For it to succeed, it requires a process of deliberate lowering of expectations by both parties.

4 Above 5

152

The majority Sinhalese and the power brokers need to realise the damage done so far in attempting to hastily redress perceived historical grievances, and offer to compromise. In the same manner the Tamil minority groups should desist from making exaggerated claims and demands and come to a compromise.

153 Bibliography

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iii TABLE OF CASES

PAGE

Aaland Islands Case (1960) 24 & 60

Re Reference by The Governor-in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada (1998) 1SCR 217 70

Mudannayake v. Sivagnanasunderam (1951) 53 N.L.R. 73 83

Seneviratne v. University Grants Commission (1978, 1979,1980)1S.L.R. 182 89

TABLE OF STATUTES

PAGE

1972 Republican Constitution of Sri Lanka 9

1978 Democratic Socialist republic of Sri Lanka 9

The Citizenship act No.18 of 1948 13

The Ceylon (Parliamentary Elections) Act No.48 of 1949 13

The Official Language Act of 1956 14

Montevideo Convention on the Rights and Duties of States of 1933 23

American Declaration of Independence (1776) 32

United Nations Charter 38

United Nations Covenant of Civil and Political Rights 1966 39

United Nations Covenant of Economic, Social and Cultural Rights 1966 39

Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States 1970 39

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and linguistic Minorities 1992 39

Declaration of the Rights of Minorities 1992 40

Treaty of Versailles 1919 42

Covenant of League of Nations 1920 43

Atlantic Charter 1941 46

United Nations Charter 1945 47

Declaration on granting of independence to colonial countries and people 1960 51

Declaration on Principles of international law concerning friendly relations and Cooperation among s 1970 54

1947 (Soulbury) Constitution of Ceylon 75

Ceylon (Constitution) Order in Council, 1946 75

Ceylon (Independence) Order in Council, 1947 75 Indian Constitution 84

The Bandaranaike-Chelvanayakam Pact 1957 93

The Senanayake-Chelvanayakam Pact 1965 94

The Indo- Sri Lanka Peace Accord 1987 97

Clarity Act 2000 71

Citizenship Act No.18 of 1948 82

ANNEXURE I

MAP OF SRI LANKA ANNEXURE II

Fourteen Points Speech by Woodrow Wilson

January 8, 1918

Gentlemen of the Congress,

It will be our wish and purpose that the processes of peace, when they are begun, shall be absolutely open and that they shall involve and permit henceforth no secret understandings of any kind. The day of conquest and aggrandizement is gone by; so is also the day of secret covenants entered into in the interest of particular governments and likely at some unlooked- for moment to upset the peace of the world. It is this happy fact, now clear to the view of every public man whose thoughts do not still linger in an age that is dead and gone, which makes it possible for every nation whose purposes are consistent with justice and the peace of the world to avow now or at any other time the objects it has in view. We entered this war because violations of right had occurred which touched us to the quick and made the life of our own people impossible unless they were corrected and the world secured once for all against their recurrence. What we demand in this war, therefore, is nothing peculiar to ourselves. It is that the world be made fit and safe to live in; and particularly that it be made safe for every peace-loving nation which, like our own, wishes to live its own life, determine its own institutions, be assured of justice and fair dealing by the other peoples of the world as against force and selfish aggression. All the peoples of the world are in effect partners in this interest, and for our own part we see very clearly that unless justice be done to others it will not be done to us. The program of the world's peace, therefore, is our program; and that program, the only possible program, as we see it, is this:

I. Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.

II. Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.

III. The removal, so far as possible, of all economic barriers and the establishment of an equality of trade conditions among all the nations consenting to the peace and associating themselves for its maintenance.

IV. Adequate guarantees given and taken that national armaments will be reduced to the lowest point consistent with domestic safety.

V. A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.

VI. The evacuation of all Russian territory and such a settlement of all questions affecting Russia as will secure the best and freest cooperation of the other nations of the world in obtaining for her an unhampered and unembarrassed opportunity for I the independent determination of her own political development and national policy and assure her of a sincere welcome into the society of free nations under institutions of her own choosing; and, more than a welcome, assistance also of every kind that she may need and may herself desire. The treatment accorded Russia by her sister nations in the months to come will be the acid test of their good will, of their comprehension of her needs as distinguished from their own interests, and of their intelligent and unselfish sympathy.

VII. Belgium, the whole world will agree, must be evacuated and restored, without any attempt to limit the sovereignty which she enjoys in common with all other free nations. No other single act will serve as this will serve to restore confidence among the nations in the laws which they have themselves set and determined for the government of their relations with one another. Without this healing act the whole structure and validity of international law is forever impaired.

VIII. All French territory should be freed and the invaded portions restored, and the wrong done to France by Prussia in 1871 in the matter of Alsace-Lorraine, which has unsettled the peace of the world for nearly fifty years, should be righted, in order that peace may once more be made secure in the interest of all.

IX. A readjustment of the frontiers of Italy should be effected along clearly recognizable lines of nationality.

X. The peoples of Austria-Hungary, whose place among the nations we wish to see safeguarded and assured, should be accorded the freest opportunity of autonomous development.

XI. Rumania, Serbia, and Montenegro should be evacuated; occupied territories restored; Serbia accorded free and secure access to the sea; and the relations of the several Balkan states to one another determined by friendly counsel along historically established lines of allegiance and nationality; and international guarantees of the political and economic independence and territorial integrity of the several Balkan states should be entered into.

XII. The Turkish portions of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of an autonomous development, and the Dardanelles should be permanently opened as a free passage to the ships and commerce of all nations under international guarantees.

XIII. An independent Polish state should be erected which should include the territories inhabited by indisputably Polish populations, which should be assured a free and secure access to the sea, and whose political and economic independence and territorial integrity should be guaranteed by international covenant.

XIV. A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.

In regard to these essential rectifications of wrong and assertions of right we feel ourselves to be intimate partners of all the governments and peoples associated together against the Imperialists. We cannot be separated in interest or divided in purpose. We stand together until the end.

II For such arrangements and covenants we are willing to fight and to continue to fight until they are achieved; but only because we wish the right to prevail and desire a just and stable peace such as can be secured only by removing the chief provocations to war, which this program does not remove. We have no jealousy of German greatness, and there is nothing in this program that impairs it. We grudge her no achievement or distinction of learning or of pacific enterprise such as have made her record very bright and very enviable. We do not wish to injure her or to block in any way her legitimate influence or power. We do not wish to fight her either with arms or with hostile arrangements of trade if she is willing to associate herself with us and the other peace-loving nations of the world in covenants of justice and law and fair dealing. We wish her only to accept a place of equality among the peoples of the world, --the new world, in which we now live, -- instead of a place of mastery.

Neither do we presume to suggest to her any alteration or modification of her institutions. But it is necessary, we must frankly say, and necessary as a preliminary to any intelligent dealings with her on our part, that we should know whom her spokesmen speak for when they speak to us, whether for the Reichstag majority or for the military party and the men whose creed is imperial domination. We have spoken now, surely, in terms too concrete to admit of any further doubt or question. An evident principle runs through the whole program I have outlined. It is the principle of justice to all peoples and nationalities, and their right to live on equal terms of liberty and safety with one another, whether they be strong or weak. Unless this principle be made its foundation no part of the structure of international justice can stand. The people of the United States could act upon no other principle; and to the vindication of this principle they are ready to devote their lives, their honor, and everything that they possess. The moral climax of this the culminating and final war for human liberty has come, and they are ready to put their own strength, their own highest purpose, their own integrity and devotion to the test.

III ANNEXURE III

Bandaranaike – Chelvanayakam Pact of 1957

Part A Representatives of the Federal Party had a series of discussions with the Prime Minister in an effort to resolve the differences of opinion that had been growing and creating tension.

At the early stages of these conversations it became evident that it was not possible for the Prime Minister to accede to some of the demands of the Federal Party.

The Prime Minister stated that, from the point of view of the Government, he was not in a position to discuss the setting up of a Federal Constitution, or regional autonomy or any step, which would abrogate the Official Language Act.

The question then arose whether it was possible to explore the possibility of an adjustment without the Federal Party abandoning or surrendering any of its fundamental principles or objectives.

At this stage the Prime Minister suggested an examination of the government's Draft Regional Council Bill to see whether provisions can be made under it to meet, reasonably, some of the matters in this regard, which the Federal Party had in view.

The agreements so reached are embodied in a separate document.

Regarding the language the Federal Party reiterated its stand for parity but in view of the position of the Prime Minister in this matter they came to an agreement by way of an adjustment. They pointed out that it was important for them that there would be recognition of Tamil as a national language and that the administrative work in of the Northern and the Eastern Provinces should be done in Tamil.

The Prime Minister stated that as mentioned by him earlier it was not possible for him to take any steps that would abrogate the Official Language Act.

Use of Tamil; After discussions it was agreed that the proposed legislation should contain recognition of Tamil as the language of a national minority of Ceylon and that the four points mentioned by Prime Minister should include provision that, without infringing on the position of the Official Language as such, the language of administration of the Northern And Eastern Provinces be Tamil, and any necessary provision be made for non-Tamil speaking minorities in the Northern and Eastern Provinces.

Regarding the question of Ceylon citizenship for the people of Indian descent and the Citizenship Act, the representatives of the Federal Party forwarded their views to the Prime Minister and pressed for an early settlement.

The Prime Minister indicated that this problem would receive early consideration.

In view of these conclusions the Federal Party stated that they were withdrawing their proposed satyagraha.

Part B

1. Regional areas to be defined in the Bill itself by embodying them in the Schedule thereto.

2. That the Northern Province is to form one regional area whilst the Eastern Province is to be divided into one or more regional areas.

3. Provision is to be made in the Bill to enable two or more regions to amalgamate even beyond provincial limit; and for one region to divide itself subject to ratification by Parliament. Further provision is to be made in the Bill for two or more regions to collaborate for specific purposes of common interests. I DIRECT ELECTIONS 4. Provision is to be made for the direct election of Regional councillors. Provision is to be made for a delimitation commission or commissions for carving out electorates. The question of MPs representing districts falling within regional areas to be eligible to function as chairman is to be considered. The question of Government Agents being Regional Commissioners is to be considered. The question of supervisory functions over larger towns, strategic towns and municipalities is to be looked into.

SPECIAL POWERS 5. Parliament is to delegate powers and specify them in the Act. It was agreed that regional councils should have powers over specified subjects including agriculture, cooperatives, lands and land developments, colonization, education, health, industries, fisheries, housing, social services, electricity, water schemes and roads. Requisite definition of powers be made in the Bill

COLONIZATION SCHEMES 6. It was agreed that in the matter of colonization schemes the powers of the regional councils shall include the powers to select allottees to whom land within their area of authority shall be alienated and also power to select personnel to be employed for work on such schemes. The position regarding the area at present administered by the Gal Oya Board in this matter requires consideration.

TAXATION AND BORROWING 7. The powers in regard to the Regional councils vested in the Minister of Local Government in the draft bill to be revised with a view to vesting control in Parliament wherever necessary.

8. The Central Government will provide block grants to the regional councils. The principles on which the grants will be computed will be gone into. The regional councils shall have powers of taxation and borrowing.

II ANNEXURE IV

Dudley Senanayake - Chelvanayakam Pact of 1965

Mr. Dudley Senanayake and Mr. S. J. V. Chelvanayakam met on the 24-3-1965 and discussed matters relating to some problems over which the Tamil-speaking people were concerned, and Mr. Senanayake agreed that action on the following lines would be taken by him to ensure a stable government:

(1) Action will be taken early under the Tamil Language Special Provisions Act to make provision of the Tamil Language to be the language of Administration and of Record in the Northern and Eastern Provinces.

Mr. Senanayake explained that it was the policy of his party that a Tamil-speaking person should be entitled to transact business in Tamil throughout the island.

(2) Mr. Senanayake stated that it was the policy of his party to amend the Language of Courts Act to provide for legal proceedings in the Northern and Eastern Provinces to be conducted and recorded in Tamil.

(3) Action will be taken to establish District Councils in Ceylon vested with powers over subjects to be mutually agreed upon between two leaders. It was agreed, however, that the government should have power under the law to give directions to such councils under the national interest.

(4) The Land Development Ordinance will be amended to provide that citizens of Ceylon be entitled to the allotment of land under the Ordinance.

Mr. Senanayake further agreed that in the granting of land under colonization schemes the following priorities be observed in the Northern and Eastern provinces.

(a) Land in the Northern and Eastern provinces should in the first instance be granted to landless persons in the district.

(b) Secondly, to Tamil-speaking persons resident in the Northern and Eastern provinces.

(c) Thirdly, to other citizens in Ceylon, preference being given to Tamil residents in the rest of the island.

Signed, Dudley Senanayake 24.3.65

Signed, S.J.V. Chelvanayakam 24.3.65 ANNEXURE V

THE INDO-SRI LANKA ACCORD Sri Lanka Agreement

To establish peace and normalcy in Sri Lanka

The president of the Democratic Socialist Republic of Sri Lanka, his excellency Mr. J.R. Jayawardene, and the Prime Minister of The Republic of India, His Excellency Mr. Rajiv Gandhi, having met at Colombo on July 29, 1987.

Attaching utmost importance to nurturing, intensifying and strengthening the traditional friendship of Sri Lanka and India, and acknowledging the imperative need of resolving the ethnic problem of Sri Lanka, and the consequent violence, and for the safety, wellbeing and prosperity of people belonging to all communities of Sri Lanka.

Have this day entered into the following agreement to fulfil this objective

1. In this context,

1.1 Desiring to preserve the unity, sovereignty and territorial integrity of Sri Lanka:

1.2 Acknowledging that Sri Lanka is a ``multi-ethnic and a multi-lingual plural society'' consisting, inter alia, of Sinhalese, Tamils, Muslims (Moors) and Burghers:

1.3 Recognising that each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured:

1.4 Also recognising that the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups:

1.5 Conscious of the necessity of strengthening the forces contributing to the unity, sovereignty and territorial integrity of Sri Lanka, and preserving its character as a multi-ethnic, multi-lingual and multi- religious plural society, in which all citizens can live in equality, safety and harmony, and prosper and fulfil their aspirations:

2. Resolve that:

2.1 Since the Government of Sri Lanka proposes to permit adjoining provinces to join to form one administrative unit and also by a Referendum to separate as may be permitted to the Northern and Eastern Provinces as outlined below:

2.2 During the period, which shall be considered an interim period (i.e. from the date of the elections to the Provincial Council, as specified in Para 2.8 to the date of the referendum as specified in Para 2.3), the Northern and Eastern Provinces as now constituted, will form one administrative unit, having one elected provincial council. Such a unit will have one Governor, one Chief Minister and one Board of Ministers.

2.3 There will be a Referendum on or before 31st december, 1988 to enable the people of the Eastern Province to decide whether: a) The Eastern Province should remain linked with the Northern Province as one administrative unit, and continue to be governed together with the Northern Province as specified in Para 2.2 or: b) The eastern province should constitute a separate administrative unit having its own distinct provincial council with a separate Governor, Chief Minister and Board of Ministers.

The president may, at his discretion, decide to postpone such a referendum.

2.4 All persons who have been displaced due to ethnic violence or other reasons will have the right to vote in such a referendum. Necessary conditions to enable them to return to areas from where they were

I displaced will be created.

2.5 The Referendum, when held, will be monitored by a committee headed by the Chief Justice, a member appointed by the President, nominated by the Government of Sri Lanka, and a member appointed by the president, nominated by the representatives of the Tamil speaking people of the Eastern Province.

2.6 A simple majority will be sufficient to determine the result of the Referendum.

2.7 Meetings and other forms of propaganda, permissible within the laws of the country, will be allowed before the Referendum.

2.8 Elections to Provincial Councils will be held within the next three months, in any event before 31st December 1987. Indian observers will be invited for elections to the Provincial Council of the north and east.

2.9 The emergency will be lifted in the Eastern and Northern Provinces by Aug. 15, 1987. A cessation of hostilities will come into effect all over the island within 48 hours of signing of this agreement. All arms presently held by militant groups will be surrendered in accordance with an agreed procedure to authorities to be designated by the Government of Sri Lanka.

Consequent to the cessation of hostilities and the surrender of arms by militant groups, the army and other security personnel will be confined to barracks in camps as on 25 May 1987. The process of surrendering arms and the confining of security personnel moving back to barracks shall be completed within 72 hours of the cessation of hostilities coming into effect.

2.10 The Government of Sri Lanka will utilise for the purpose of law enforcement and maintenance of security in the Northern and Eastern Provinces the same organisations and mechanisms of Government as are used in the rest of the country.

2.11 The will grant a general amnesty to political and other prisoners now held in custody under The Prevention of Terrorism Act and other emergency laws, and to combatants, as well as to those persons accused, charged and/or convicted under these laws. The Government of Sri Lanka will make special efforts to rehabilitate militant youth with a view to bringing them back into the mainstream of national life. India will co- operate in the process.

2.12 The Government of Sri Lanka will accept and abide by the above provisions and expect all others to do likewise.

2.13 If the framework for the resolutions is accepted, the Government of Sri Lanka will implement the relevant proposals forthwith.

2.14 The Government of India will underwrite and guarantee the resolutions, and co-operate in the implementation of these proposals.

2.15 These proposals are conditional to an acceptance of the proposals negotiated from 4.5.1986 to 19.12.1986. Residual matters not finalised during the above negotiations shall be resolved between India and Sri Lanka within a period of six weeks of signing this agreement. These proposals are also conditional to the Government of India co- operating directly with the Government of Sri Lanka in their implementation.

2.16 These proposals are also conditional to the Government of India taking the following actions if any militant groups operating in Sri Lanka do not accept this framework of proposals for a settlement, namely, a) India will take all necessary steps to ensure that Indian territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka b) the Indian navy/coast guard will cooperate with the Sri Lankan navy in preventing Tamil militant activities from affecting Sri Lanka. c) In the event that the Government of Sri Lanka requests the Government of India to afford military assistance to implement these proposals the Government of India will co-operate by giving to the Government of Sri Lanka such military assistance as and when requested. d) The Government of India will expedite repatriation from Sri Lanka of Indian citizens to India who is resident here, concurrently with the repatriation of Sri Lankan refugees from Tamil Nadu. e) The Governments of Sri Lanka and India will co-operate in ensuring the physical security and safety of all II communities inhabiting the Northern and Eastern Provinces.

2.17 The government of Sri Lanka shall ensure free, full and fair participation of voters from all communities in the Northern and Eastern Provinces in electoral processes envisaged in this agreement. The Government of India will extend full co-operation to the Government of Sri Lanka in this regard.

2.18 The official language of Sri Lanka shall be Sinhala. Tamil and English will also be official languages.

3. This agreement and the annexure thereto shall come into force upon signature.

In witness whereof we have set our hands and seals hereunto.

Done in Colombo, Sri Lanka, on this the twenty-ninth day of July of the year one thousand nine hundred and eighty seven, in duplicate, both texts being equally authentic.

Junius Richard Jayawardene Rajiv Gandhi President of the Democratic Prime Minister of the Socialist Republic of Sri Lanka Republic of India

ANNEXURE TO THE AGREEMENT

1. His Excellency the President of Sri Lanka and the Prime Minister of India agree that the Referendum mentioned in paragraph 2 and its subparagraphs of the agreement will be observed by a representative of the election Commission of India to be invited by His Excellency the President of Sri Lanka.

2. Similarly, both heads of Government agree that the elections to the provincial council mentioned in paragraph 2.8 of the agreement will be observed and all para-military personnel will be withdrawn from the eastern and northern provinces with a view to creating conditions conducive to fair elections to the council.

3. The President, in his discretion shall absorb such para-military forces, which came into being due to ethnic violence, into the regular security forces of Sri Lanka.

4. The President of Sri Lanka and the Prime Minister of India agree that the Tamil militants shall surrender their arms to authorities agreed upon to be designated by the President of Sri Lanka. The surrender shall take place in the presence of one senior representative each of the Sri Lanka Red Cross and the Indian Red Cross.

5. The President of Sri Lanka and the Prime Minister of India agree that a joint Indo-Sri Lankan observer group consisting of qualified representatives of the Government of Sri Lanka and the Government of India would monitor the cessation of hostilities from 31 July 1987.

6. The President of Sri Lanka and the Prime Minister of India also agree that in the terms of paragraph 2.14 and paragraph 2.16(c) of the agreement, an Indian peace keeping contingent may be invited by the President of Sri Lanka to guarantee and enforce the cessation of hostilities, if so required.

III ANNEXURE VI

AGREEMENT ON A CEASEFIRE BETWEEN THE GOVERNMENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA AND THE LIBERATION TIGERS OF TAMIL EELAM.

Preamble: The overall objective of the Government of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as the GOSL) and the Liberation Tigers of Tamil Eelam (hereinafter referred to as the LTTE) is to find a negotiated solution to the ongoing ethnic conflict in Sri Lanka.

The GOSL and the LTTE (hereinafter referred to as the Parties) recognize the importance of bringing an end to the hostilities and improving the living conditions for all inhabitants affected by the conflict. Bringing an end to the hostilities is also seen by the Parties as a means of establishing a positive atmosphere in which further steps towards a lasting solution can be taken.

The Parties further recognize that groups that are not directly party to the conflict are also suffering the consequences of it. This is particularly the case as regards the Muslim population. Therefore, the provisions of this Agreement regarding the security of civilians and their property apply to all inhabitants.

With reference to the above, the Parties have agreed to enter into a ceasefire, refrain from conduct that could undermine the good intentions or violate the spirit of this Agreement and implement confidence-building measures as indicated in the articles below.

Article 1: Modalities of a ceasefire The Parties have agreed to implement a ceasefire between their armed forces as follows:

1.1 A jointly agreed ceasefire between the GOSL and the LTTE shall enter into force on such date as is notified by the Norwegian Minister of Foreign Affairs in accordance with Article 4.2, hereinafter referred to as D-day.

Military operations 1.2 Neither Party shall engage in any offensive military operation. This requires the total cessation of all military action and includes, but is not limited to, such acts as:

a) The firing of direct and indirect weapons, armed raids, ambushes, assassinations, abductions, destruction of civilian or military property, sabotage, suicide missions and activities by deep penetration units; b) Aerial bombardment: c) Offensive naval operations.

1.3 The Sri Lankan armed forces shall continue to perform their legitimate task of safeguarding the sovereignty and territorial integrity of Sri Lanka without engaging in offensive operations against the LTTE.

Separation of forces 1.4 Where forward defence localities have been established, the GOSL's armed forces and the LTTE's fighting formations shall hold their ground positions, maintaining a zone of separation of a minimum of six hundred (600) metres. However, each Party reserves the right of movement within one hundred (100) metres of its own defence localities, keeping an absolute minimum distance of four hundred (400) metres between them. Where existing positions are closer than four hundred (400) metres, no such right of movement applies and the Parties agree to ensure the maximum possible distance between their personnel.

1.5 In areas where localities have not been clearly established, the status quo as regards the areas controlled by the GOSL and the LTTE, respectively, on 24 December 2001 shall continue to apply pending such demarcation as is provided in Article 1.6.

1.6 The Parties shall provide information to the Sri Lanka Monitoring Mission (SLMM) regarding defence localities in all areas of contention, cf. Article 3. The monitoring mission shall assist the Parties in drawing I up demarcation lines at the latest by D-day + 30.

1.7 The Parties shall not move munitions, explosives or military equipment into the area controlled by the other Party.

1.8 Tamil paramilitary groups shall be disarmed by the GOSL by D-day + 30 days at the latest. The GOSL shall offer to integrate individuals in these units under the command and disciplinary structure of the GOSL armed forces for service away from the Northern and Eastern Province.

Freedom of movement 1.9 The Parties' forces shall initially stay in the areas under their respective control, as provided in Article 1.4 and Article 1.5

1.10 Unarmed GOSL troops shall, as of D-day +60 days, be permitted unlimited passage between Jaffna and Vavuniya using the Jaffna - Kandy road (A9). The modalities are to be worked out by the Parties with the assistance of the SLMM.

1.11 The Parties agree that individual combatants shall, on the recommendation of their area commander, be permitted, unarmed and in plain clothes, to visit family and friends residing in areas under the control of the other Party. Such visits shall be limited to six days every second month, not including the time of travel by the shortest applicable route. The LTTE shall facilitate the use of the Jaffna - Kandy road for this purpose. The Parties reserve the right to deny entry to specified military areas.

1.12 The Parties agree that as of D-day individual combatants shall, notwithstanding the two-month restriction, be permitted, unarmed and in plain clothes, to visit immediate family (i.e. spouses, children, grandparents, parents and siblings) in connection with weddings or funerals. The right to deny entry to specified military areas applies.

1.13 Fifty (50) unarmed LTTE members shall, as of D-day + 30, for the purpose of political work, be permitted freedom of movement in the areas of the North and the East dominated by the GOSL. Additional 100 unarmed LTTE members shall be permitted freedom of movement as of D-day + 6-. As of D-day + 90, all unarmed LTTE members shall be permitted freedom of movement in the North and East. The LTTE members shall carry identity papers. The right of the GOSL to deny entry to specified military areas applies.

Article 2: Measures to restore normalcy

ArticleThe Parties 3: The shall Monitoring undertake Mission the following confidence-building measures with the aim of restoring II goods.

2.7 In order to facilitate the flow of goods and the movement of civilians, the Parties agree to establish checkpoints on their line of control at such locations as are specified in Annex B.

2.8 The Parties shall take steps to ensure that the Trincomalee - Habarana road remains open on a 24-hour basis for passenger traffic with effect form D-day + 10.

2.9 The Parties shall facilitate the extension of the rail service on the Batticaloa-line to Welikanda. Repairs and maintenance shall be carried out by the GOSL in order to extend the service up to Batticaloa.

2.10 The Parties shall open the Kandy - Jaffna road (A9) to non-military traffic of goods and passengers. Specific modalities shall be worked out by the Parties with the assistance of the Royal Norwegian Government by D-day + 30 at the latest.

2.11 A gradual easing of the fishing restrictions shall take place starting from D-day. As of D-day + 90, all restrictions on day and night fishing shall be removed, subject to the following exceptions: I) fishing will not be permitted within an area of 1 nautical mile on either side along the coast and 2 nautical miles seawards from all security forces camps on the coast; ii) fishing will not be permitted in harbours or approaches to harbours bays and estuaries along with coast.

2.12 The Parties agree that search operations and arrests under the Prevention of Terrorism Act shall not take place. Arrests shall be conducted under due process of law in accordance with the Criminal Procedure Code.

2.13 The Parties agree to provide family members of detainees access to the detainees within D-day + 30.

Article 3: The Monitoring Mission The Parties have agreed to set up an international monitoring mission to enquire into any instance of violation of the terms and conditions of this agreement. Both Parties shall fully cooperate to rectify any matter of conflict caused by their respective sides. The mission shall conduct international verification through on-site monitoring of the fulfilment of the commitments entered into in this Agreement as follows

3.1 The name of the monitoring mission shall be the Sri Lankan Monitoring Mission, hereinafter referred to as the SLMM.

3.2 Subject to acceptance by the Parties, the Royal Norwegian Government (hereinafter referred to as the RNG) shall appoint the Head of the SLMM (hereinafter referred to as the HOM), who shall be the final authority regarding interpretation of this Agreement.

3.3 The SLMM shall liaise with the Parties and report to the R N G.

3.4 The HoM shall decide the date for the commencement of the SLMM's operations

3.5 The SLMM shall be composed of representatives from the Nordic countries

3.6. The SLMM shall establish a headquarters in such places as the HoM finds appropriate. An office shall be established in Colombo and in Wanni in order to liaise with the GOSL and the LTTE, respectively. The SLMM will maintain a presence in the districts of Jaffna, Mannar, Vavuniyua, Trincomalee, Batticaloa and Amparai.

3.7 A local monitoring committee shall be established in Jaffna, Mannar, Vavuniya, Trincomalee, Batticaloa and Amparai. Each committee shall consist of 5 members, two appointed by the GOSL, two by the LTTE and one international monitor appointed by the HoM. The international monitor shall chair the committee. The GOSL and the LTTE appointees may be selected from among retired judges, public servants, religious leaders or similar leading citizens.

3.8 The committees shall serve the SLMM in an advisory capacity and discuss issues relating to the implementation of this Agreement in their respective districts, with a view to establishing a common understanding of such issues. In particular, they will seek to resolve any dispute concerning the implementation of this Agreement at the lowest possible level.

III 3.9 The parties shall be responsible for the appropriate protection of and security arrangements for all SLMM members.

3.10 The Parties agree to ensure the freedom of movement of the SLMM members in performing their task. The members of the SLMM shall be given immediate access to areas where violations of the Agreement are alleged to have taken place. The Parties also agree to facilitate the widest possible access to such areas for the local members of the six above-mentioned committees, cf Article 3.7.

3.11 It shall be the responsibility of the SLMM to take immediate action on any complaints made by either Party to the Agreement, and to enquire into and assist the Parties in the settlement of any dispute that might arise in connection with such complaints.

3.12 With the aim of resolving disputes at the lowest possible level, communication shall be established between Commanders of the GOSL armed forces and the LTTE area leaders to enable them to resolve problems in the conflict zones.

3.13 Guidelines for the operations of the SLMM shall be established in a separate document.

Article 4: Entry into force, amendments and termination of the Agreement

4.1 Each Party shall notify their consent to be bound by this Agreement through a letter to the Norwegian Minister of Foreign Affairs signed by Prime Minister Ranil Wickremasinghe on behalf of the GOSL and by leader on behalf of the LTTE, respectively. The agreement shall be initialled by each Party and enclosed in the abovementioned letter.

4.2 The Agreement shall enter into force on such date as is notified by the Norwegian Minister of Foreign Affairs.

4.3 This Agreement may be amended and modified by mutual agreement of both Parties. Such amendments shall be notified in writing to the RNG.

4.4 This Agreement shall remain in force until notice of termination is given by either Party to the RNG. Such notice shall be given fourteen (14) days in advance of the effective date of termination.

IV