Capacity of Tamil Eelam in International Law
to Conclude a Peace Treaty

 Law Working Group of International Federation of Tamils

The developments relating to the principle of self-determination have been so rapid that the principle has now evolved in such a manner as to confer international personality upon ethnic entities which are entitled to claim statehood.

The outgoing Secretary General of the United Nations has called for greater competence on the part of the United Nations so that it could concern itself with the plight of persecuted ethnic minorities. The Soviet Union has permitted states forming the union to break away on this basis of the principle of self- determination. The events in Yugoslavia have demonstrated the need for new methods of addressing the question of minority claims to self- determination.

Today, the claims of minorities to self-determination straddle the whole globe and these claims have to be fashioned through the recognition of new rules. These new developments indicate that there is in formation new principles within the international community which accept that the old ideas of statehood must yield place to the newer concern with human rights and the protection of persecuted minorities.

It is on the basis of these developments that the case is made out that the Tamil nation in Sri Lanka has sufficient personality to enter into a treaty that will settle the dispute between it and the Sinhalese who constitute the other nation that lives in the island of Sri Lanka. First, it states the developments in the international law of self- determination which entitle the Tamil nation to such a status. It then indicates how the Tamil nation satisfies the indicia that have been developed and qualifies the Tamil nation for such a status.

Status of Ethnic Nations Claiming Secession

It is well-known that the principle of self-determination was the doctrine on basis on which the nations of Asia and Africa were freed from colonial bondage. the view that the principle was exhausted once colonialism was dismantled has however proved false. For states have been established and claims to statehood made on the basis of ethnic solidarity and claims to historical rights to territory. Bangladesh is an instance of a state coming into existence after colonialism on the basis of the right to secession based on self-determination. the recent acceptance of the statehood of Latvia and Estonia are other instances of such statehood recognised on the basis of identity between land and the ethnic cohesiveness of the people who live on it. The willingness to recognise Ukraine by leading states is also an indication that attitudes towards ethnic self-determination are changing.

Claims to statehood are made on the basis of such cohesiveness not only by Tamils in the island of Sri Lanka but by other people subject to domination and denial of human rights by the majority that controls them. Among such claimants are the Quebecois in Canada, the Eritreans of Ethiopia, the Kurds of Iran and Turkey, the Kashmiris and Punjabis of India, the Basques in Spain, and the Irish in Northern Ireland.

It is inevitable that norms be developed in international law to deal with this universal problem and the first step towards such development is the recognition of the personality of such peoples and the fact that they enjoy certain rights in international law. There is every indication that norms have now developed which recognise the personality of ethnic groups which are struggling against the racial domination of the majority groups or governments formed by majority groups.

This is particularly so in situations where the ethnic groups have all or the most of the indicia of statehood.

The indicia of statehood in international law are a definite territory, a definite population, an effective administration and the capacity to enter into international relations. When these indicia exist, a new state is born.

In the case of an ethnic minority, when their struggle for self-determination advances to such an extent that they begin to possess these indicia , they become entitled to international personality so that they could carry on their legitimate struggle for self-determination . Unless this is recognised, the force of the principle of self-determination as a principle jus cogens in international law will diminish in strength and its capacity as a principle which protects minority nations will dwindle.

There are strong policy objectives for ensuring that the principle grows with vigour. It is for this reason that international law has now come to recognise that every ethnic minority which has continued its struggle to such an extent as to acquire, in some measure, the indicia of statehood, has personality in international law which includes the capacity to make treaties with other states.

The policy objectives favouring such position are great. The struggle of a minority group can reach such a position only if the persecution of the majority group has been severe and intense. The continuation of the struggle for a consistent period so as to secure and hold the indicia of statehood indicates the extent of the group solidarity of the people and their desire to live as a separate state.

On the basis of the propositions made so far the Tamil people who live in the island of Sri Lanka now have the indicia of statehood and have the capacity to form treaties. It is on this basis that a treaty is advanced as a solution to the present situation in the island. The basis of the claims for such a capacity in the Tamils must be examined. Such an examination is now undertaken. It is relevant to keep in mind the principle that in the case of a state in statu nascendi, there could be retroactive validation of all legal acts that it took upon itself prior to its creation. On the basis of this principle, it can be argued that Eelam can undertake treaty obligations prior to its complete creation.

Territory

There is little doubt that as a historical proposition that the North and East of the island belonged to the Tamil people and were continuously peopled by them and ruled by them. The attempts of the Sinhalese government and Sinhalese chauvinists to establish the contrary is not taken seriously by even the Sinhalese people in the South. Liberal opinions among the Sinhalese has always recognised the obvious fact the North and East of the island have always belonged to the Tamils.

This territory has been held by the Tamil forces against numerous attacks by the Sinhalese troops. The Tamil forces have consistently demonstrated that they have control over the territory and the Sinhalese government has equally consistently demonstrated that it cannot establish control over the territory. The Tamils have asserted this right even against the Indian army which intervened in the problem , thus asserting not only the vigour of their cause but their capacity to resist the intervention of one of the most powerful armies of the world.

Definite Population

There is little doubt that there exists a definite people with solid ties formed by a shared history, religion and culture in the North and East of the island of Sri Lanka and that they have historical ties to the land.

Government

There is at present an effective government instituted by the Tamils in certain parts of the Northeast. Law and order is kept by this administration. There is a system of dispute settlement accepted by the people in the operation in this territory. The schools and hospitals are run by this administration.

Relations with other states.

The capacity of the Tamils to enter into relations with other states has been recognised on numerous occasions. At the Thimpu talks, the Tamil delegation sat as an equal delegation at the talks sponsored by the government of India. There have been occasions when direct aid has been given to the people of the North and East. Non-governmental organisations have maintained contacts with the administration of the North and East for various purposes.

These factors establish that the Northern and Eastern Provinces are entitled to personality on the basis of statehood or at least near- statehood. Given the fact that the Sinhalese government itself is in a situation of being a near-government due to its inability to control its own people except through a regime of terror, it would not be asking too much that the personality of the state of Eelam to conclude an accord with the Sinhalese government is recognised. The policy justification for such recognition is that such an accord affords the best chance for the settlement of the ethnic conflict in the island.

Federalism?

The assertion, for instance, that a so called ‘federal system’ can be attempted as a constitutional solution to the present crisis is often the basis of the proposals that have been made by the Sri Lankan government. This proposal must be rejected for the simple reason that the supreme Court of Sri Lanka has already indicated that cannot be any effective federation under the present Constitution of Sri Lanka. It has indicated that any alteration of the present constitution which is premised on the fundamental proposition that Sri Lanka is a unitary state, cannot be effected except through a two third majority in Parliament and a referendum.

Quite apart from the fact that the present government lacks such a majority, it is unlikely that such an alteration can get support at a referendum as Sinhalese chauvinists will scuttle any attempt at the making of concessions to the Tamils. Hence, the offer of the Sri Lankan government to bring about constitutional changes recognising the rights of the Tamils must be seen as a mere charade aimed at creating an image of reasonableness to placate the international community while carrying out its ruthless carnage of the Tamil population of the North and South.

To stress the point that the Sri Lankan government cannot constitutionally make the offer of federalism through amendments to the existing constitution, it is necessary to understand the judgment of the Supreme Court in its decision on whether the Thirteenth Amendment to the Constitution of Sri Lanka implementing the Indo- Sri Lanka Agreement needed to be submitted to a referendum.

The purpose of the Amendment was to create provincial councils in all the provinces of Sri Lanka and transfer limited powers of administration to them. In this manner, some form of limited rule was to be given to the Northern and Eastern Provinces, the traditional homelands of the Tamils. The government, of course, was not keen of submitting the Amendment to a referendum as it was unlikely to be passed at such a referendum for obvious reason that communal forces would be unleashed against the legislation. The decision of the government not to submit the Amendment to a referendum was challenged before the Supreme Court. The Court does not have the power under the Constitution to interfere with constitutional amendments. Its only function is to indicate whether the legislation affects certain fundamental provisions of the Constitution and indicate, if it did, that the amendment should be submitted to a referendum.

One argument against the validity of the amendment without a referendum was that it destroyed the unitary structure of the Constitution by transferring executive power vested in the President of the Republic of Sri Lanka by Article 4 to the Governors of the Provinces. This argument was rejected by the majority of the judges on the ground that the ultimate control over the executive powers remained with the President despite its immediate transfer to the President. Their reasoning is contained in the following passage:

" So long as the President retains the power to give directions to the Governor ( of the Province ) regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or the Provincial Council to comply with or give effect to any direction given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that the situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Art. 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinated to him"

Under this theory of the majority of the judges, the present Constitution provides for absolute control over the executive by the President. In this situation there can be no devolution of executive power from the President to any regional administration set up under the Thirteenth Amendment or under any amendment enacted without a referendum. The present Constitution of Sri Lanka as well as the present political situation prevents the government of Sri Lanka making any honest offer of a solution through constitutional means.

The fact that the Constitution precludes such a solution except through a referendum has already been explained. The fact that the political situation precludes such a constitutional solution is evident by the manner in which the forces opposed to the President use the communal issue to whip up Sinhalese feeling to muster support for themselves. This is a game that has been going on among Sinhalese politicians for a long time. Bankrupt of any ideas for the development of the lives of the Sinhalese people and with their hands soiled in the blood of both Sinhalese and Tamil people, the only means they see in holding on to or gaining power is by competing with each other in stirring up communal passions of the Sinhalese against the Tamils.

It is an interesting aside to note Mr. Athulathmuthali’s recent statement that President Premadasa has his hands soiled in the blood of his own people. The reference, no doubt, is to the suppression of the JVP by the Premadasa in which conservatively, over 60,000 Sinhalese youths were put to death. Mr. Aththulathmuthali was a member of the cabinet during this time and did not protest at these deaths.

This opportunist who went to Oxford must have acquired some knowledge of cabinet responsibility. Besides he conspires to bring Premadasa down with Mrs Bandaranayake under whose regime over 20,000 Sinhalese young men suspected of being JVP members were slaughtered. Athulathmuthali was the minister of defence responsible for much of the carpet bombing of Jaffna leading to high civilian casualties. Perhaps, he, like the Dutugemunu of the Mahavamsa, will plead that Tamil lives do not count.

His co-conspirator, Dissanayake, was credited, by the Manchester Guardian, with going round jeeps exhorting the Sinhalese mayhem against the Tamils in 1983. It is difficult to place trust in the solutions advanced by this coterie of blood soiled politicians, even if it were constitutionally possible to implement the solutions. They fail to realise that much carnage of the Sinhalese youth has taken place because of their inability to solve the problems of the Sinhalese poor and their efforts to stick to power solely by outdoing each other in getting a more effective grip on the Tamil Tiger’s tail.

Given the situation that the Tamils cannot place trust in an offer of any solution without any constitutional base or any offer made by such tainted and chauvinistic politicians, one must seek a more secure foundation on which such a solution could be advanced.

Accord & Confederation

The only way forward is an accord between the Tamil Nation and the Sinhalese Nation to bring about a confederation in the island.

There are many precedents for such a confederation between two or more sovereign entities. The bringing about of such a confederation will not be affected by any limitations on the internal constitutional powers of the government as it shall be accomplished through an accord between the two nation that live on the island. The idea of such an accord between two peoples or nations is not a novel one.

The Swiss Confederation was achieved on the basis of such an understanding between the cantons each of which contained different peoples. There are more recent examples. The Agreement on the Basic Law on Hon Kong creates Hon Kong as an autonomous region in China. Though here the people involved are the same, They belong to different political cultures. The most recent example is the Treaty of the Union of Sovereign States of Russia and its neighbours ( July 23rd 1991 ) which is based on the "nations’ right to self-determination, the closeness of the historical destinies of their peoples and a willingness to learn from the past, taking account of changes in the country and throughout the world".

In the contemporary world, the making of such accords between nations is an accepted way of settling a conflict between them. Constitutional pacts which have been made in the past in Sri Lanka, such as Bandaranaike-Chelvanayagam Pact and the Senanayake_Chelvanayagam Pact have been scuttled by Sinhalese chauvinism. Tamils, who have sacrificed much are in no mood to accept pacts such as these any more. An accord, based on the notion that they are a distinct people alone can provide a lasting solution to the conflict. Its working and its validity shall not depend on any internal constitutional changes that the Sinhalese government has to make. Neither will, inability to make such changes provide an excuse for its implementation.