By M.A.Sumanthiran M.P
The phrase ‘self-determination’ raises many alarms in Sri Lanka today. The reason for that is the myth that somehow if the right to self-determination is ceded to the Tamils of this country, it will automatically lead to secession.
Although various shades of this concept were expressed in different times before the twentieth century, particularly in the American Independence and the French Revolution, it was actually brought to the fore during World War I.
It is generally accepted that it was President Woodrow Wilson of the United States who mooted the concept of self-determination as the aim of the war for the Allies, which was later followed by the other leaders of the Allied states.
Purpose of the UN
When the United Nations (UN) was created after World War II, one of the purposes of the UN was spelt out in Article 1(2) of the UN Charter to say:
To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples.
Article 55 of the UN Charter provides inter alia,
…based on respect for the principles of equal rights and self-determination of peoples, the United Nations shall promote …
The Universal Declaration of Human Rights, in Article 2 declares that, …no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty in that person’s entitlement to the rights and freedoms set forth in the Declaration.
The right to self-determination of peoples as enshrined in the UN Charter was originally applied in respect of peoples and nations who were under colonial rule and their independence. This is seen very clearly in the UN General Assembly Declaration on the Granting of Independence to Colonial Territories and Peoples, 1960. Whilst Declaration No.2 lays down that,
All peoples have the right to self-determination; by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
And when the UN finally adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966, Article 1, which is common to both, read thus:
All peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
Right to self-determination
Once the process of decolonization was almost exhausted, the scope for the exercise of the right to self-determination started to expand. Although for the first two decades of the UN Charter, the right to self-determination was considered to be one that is limited to the colonial context, there was no real rationale for such a narrow approach. Several jurists have criticized this limited application of the right to self-determination as being without any justification.
Amankwah argues that “Freedom should not, in principle, be confined and that, therefore, the right to self-determination should be available even to peoples within the pre-existing state, that is, ‘minorities.’” He cites the Advisory Opinion of the International Court of Justice (ICJ) in the Western Sahara case as having enunciated the legal principle for the right to self-determination.
Gerry Simpson points out that the attempt to restrict this right to the colonial context was for pragmatic reasons, and that there are several incongruities as a result. The most recent examples are the former states belonging to Yugoslavia and the USSR, Kosovo being prominent among them. There is no question that the right to self-determination of peoples is a customary principle of International Law.
The only contentious issue is with regard to the application of that principle to all distinct minorities within pre-existing states, as that will tend to validate the claims of all secessionist groups. It is important to note that a people can, in the exercise of their right to self-determination decide to remain within in a pre-existing state, but choose the degree of autonomous self-government within the framework of a sovereign state.
This is known as internal self-determination, as opposed to external self-determination when a people are granted the right to establish their own separate sovereign state. Naturally, it is easier to find legitimacy in International Law for the claim of the right to internal self-determination.
The UNESCO meeting of Experts on further study of the Rights of Peoples
(Paris 1990) proposed that the following criteria be used to determine a people:)
(a) Cultural homogeneity;
(b) Linguistic unity;
(c) Religious ideological affinity;
(d) Common historical tradition;
(e) Racial and ethnic identity;
(f) Territorial connection;
(g) Common economic existence or life.
Tamils were a sovereign nation
The claim of the Tamils to self-determination is also based on the fact that prior to colonization they were a nation, exercising sovereignty over a defined and separate territory. Consequently, they claim that the right to independence from colonial rule was a separate right that vested with the Tamil People. However, it must be remembered that the Tamils in Sri Lanka did not demand a separate sovereign state at the time of independence from colonial rule. The demand at that stage was for parity of status. Within ten years of independence, the demand for a federal state intensified.
It was only after a series of repressive measures by successive governments, and broken agreements that the demand for a separate state as an expression of their right to self-determination emerged. Thirty-five years after the call for a separate state, still, the majority of the Tamils are ready to exercise their right to self-determination internally if only that right is recognized and meaningful autonomy is granted.
It is at this point that a seemingly irreconcilable difference arises between the parties to the conflict. The reluctance of the state to recognize the right to self-determination of the Tamils is based on the myth that it will automatically grant them the right to secede unilaterally, and state sovereignty will be blown apart and territorial integrity compromised.
Customary International Law recognizes a sovereign state to possess
(1) a territory,
(2) a people,
(3) an effective government and
(4) the capacity to enter into foreign relations.
Early jurists considered sovereignty as being the authority of the monarch or of one centralized government. This meant that federations were suspected to be weak forms of governments as far as state sovereignty was concerned. However, one could not reconcile such an idea with the form of government in the American federal system.
Today sovereignty is classified into universal sovereignty, popular sovereignty and state sovereignty. According to Elazar, “Popular Sovereignty…makes it possible for two or more governments to share the attributes of sovereignty without altering the indivisibility of sovereignty.” In fact, in a democratic system, sovereignty actually rests with the people and thus can be described as popular sovereignty.
In an extended sense, even a monarchy can be described as popular sovereignty if the people choose the king and he rules them with their consent. Therefore, although state sovereignty in the past meant an absolute right that vested in a central authority to do whatever it willed in relation to the people and territory, such a notion is a fallacy in the context of modern nation-states.
State sovereignty can also be divided into internal and external. Internal refers to the governmental authority and power over the people and territory governed, while external concerns its existence as a free entity in the world of nations.
The possible exercise of self-determination by various peoples within a sovereign state has demanded greater imagination over the last sixty years all over the world. Today, there are several models of shared sovereignty in Europe, America, Asia and even in Australia. Models of federation as seen in Australia, and the USA today are not necessarily linked to the right of self-determination of peoples, although the debate over the right to self-determination and to the sovereignty of indigenous peoples have gained momentum.
In Europe, the movement towards European Union has raised a whole host of issues with regard to the state sovereignty of participating states. The decision of the French Constitutional Court on the compatibility of the Maastricht and Amsterdam Treaties relating to the European Union with the constitutional provisions on sovereignty necessitated amendments to the French Constitution.
In the UK, devolution of power to Scotland and its effect on state sovereignty, among other issues, are constantly being debated. The decision of the Canadian Supreme Court holding that Quebec did not possess the right to unilaterally secede from Canada discusses the principles of International Law in relation to the right of ‘peoples’ to self-determination and sovereignty.
Right to unilateral secession
The opinions expressed by the International Court of Justice in Portugal v. Australia in the case concerning East Timor does not deal with the issue as to the right of the people of East Timor to self-determination since both contestant countries conceded that right.
Although subsequent discussions on Kosovo, South Sudan are available, the Canadian Supreme Court judgment on Quebec, albeit by a court exercising domestic jurisdiction, has the most relevant pronouncement on the International Law principles of the right to self-determination. The court lays down the exceptional circumstances in which a right to unilateral secession will be permitted in International law in the exercise of the right to self-determination.
(1) when ‘a people’ is governed as part of a colonial empire,
(2) where ‘a people’ is subject to alien subjugation, domination or exploitation and
(3) possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.
The court recognizes that in International Law even if ‘a people’ fall outside the category of colonial people, they are entitled to secession as an expression of their right to self-determination, if they are an oppressed people or if no meaningful access to government has been permitted to them in order to exercise their right to self-determination within the bounds of a sovereign state.
The Tamil People in Sri Lanka have been subjected to discrimination within the model of a unitary state where they have been denied the right to express their right to self-determination within an internal arrangement, such as a federal government. In such a situation the continued denial of the existence of the right to self-determination itself may give rise to the right to unilateral secession as an expression of that right.
Therefore, it is the recognition of the right to self-determination of the Tamil People, and not its denial, that will help preserve the territorial integrity of Sri Lanka from claims to the right of secession.
Thus it is a sine qua non that the right to self-determination of the Tamil People is recognized and the nature of the state is restructured to enable the meaningful exercise of internal self-determination if the right to external self-determination is to be avoided.