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Tamil Minority Problem in Sri Lanka in the Light of Self-Determination and Sovereignty of States

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Tamil Minority Problem in Sri Lanka in the Light of Self-Determination and Sovereignty of States TITLE OF THESIS TAMIL MINORITY PROBLEM IN SRI LANKA 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 State 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 Tamils. 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 Sovereign State 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 Islam 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 Australia. 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 Dudley Senanayake-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.
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