On the EU Contribution to the Peace Process in Sri Lanka

Gajendrakumar Ponnambalam
at Brussels

7 March 2006
 

Article 1(2) of the UN Charter provides that one of the purposes of the UN is "To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples". Article 55, concerning Economic and Social Cooperation, instructs the UN to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights "with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples".

Subsequently the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples in Article 2 states, "All peoples have the right to self-determination; by virtue of that right they freely determine their political status freely pursue their economic, social and cultural development". The Declaration also adopts a functional definition of colonialism, speaking of colonialism in "all its forms and manifestations". Thus, it does not limit itself by its express terms, to the subjugation of non-European peoples by Europeans.

Rather, it undertakes a practical approach in which the emphasis is upon the fact of subjugation by a racially or ethnically distinct group, which need not be European. Clearly, as long as peoples living within independent states continue to suffer the same ills and consequences under their new rulers that they suffered under traditional colonialism then the principle of self-determination retains its applicability.

By 1966, the right of peoples to self-determination had made its appearance in the two International Covenants on Human Rights as a free standing maxim, beyond the confines of normative practices on decolonization. The provision in Article 1 of both Covenants was significant because for the first time, the right of self determination had been formulated within a universal document concerning human rights, which recognized the legal obligations of the state parties to it.

Of crucial importance to understanding of the present status of the right to self-determination outside of the decolonization era is the General Assembly's 1970 Declaration on Friendly Relations and Co-operation among States. Paragraph 7 which deals with the maintenance of territorial integrity, has been interpreted to recognize the legitimacy of secession under certain circumstances.

The first part of paragraph 7 warns that nothing in the foregoing text should be construed as authorizing or encouraging the dismemberment or impairment of the territorial integrity or political unity of sovereign and independent states. Paragraph 7, however, implies that not all states will enjoy this inviolability of their territorial integrity, but only those states "conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above". In a telling final clause, paragraph 7 offers a partial definition of the meaning of the compliance provision, by stating "and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color".

The notion embodied in this final clause is clearly, that the legitimacy of government derives from the consent of the governed and that consent cannot be forthcoming without the enfranchisement of all segments of the population. By placing the language at the end of the paragraph 7 in the form of a saving clause, the Declaration affirmed the concept of "consent of the governed". Therefore, if a government does not represent all of its peoples it is illegitimate and thus in violation of the principle of self-determination, and this illegitimate character serves in turn to legitimate "action which would dismember or impair, totally or in part, the territorial integrity or political unity" of the sovereign and independent state.

So clearly, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States clarified and reconciled the different approaches to the right to self-determination, as espoused over the preceding years in the various UN resolutions and international instruments. It instilled the primacy of seeking an improvement of the condition of individuals and minority nations within multi-national states, by subjecting those states to external international pressure. It clearly inverted the movement to establish self-determination as a human right along with others, such as the establishment of a representative government, to be observed when acting in compliance with the principle of self-determination. And finally, it reinforced the right to self-determination by brandishing a legitimization of secession where the coercive force of international opinion was insufficient to moderate a state's internal policies.

It is also relevant to recall the decision of the Supreme Court of Canada in the case relating to the secession of Quebec. The Court ruled, and I quote:

"The International Law right to self-determination only generates at best a right to external self-determination, in situations of:


former colonies,
where a people is oppressed as for example under foreign military occupation, or
where a definable group is denied meaningful access to Government to pursue their political, economic, social and cultural development.
In all three situations the people in question are entitle to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination".

The Court further ruled and I quote "that such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions".

In the island of Sri Lanka however, unlike in Quebec, a definable group, the Tamil Nation, is being consistently subjected to the hegemony of the Sinhala Nation. The areas of historic habitation of the Tamil speaking people is being oppressed by the occupation of the Sri Lankan State's armed forces which is 99% Sinhala in composition. The Tamil Nation is being consistently denied meaningful access to Governance to pursue political, economic, social and cultural development. All three Sri Lanka constitutions entrenched the unitary character of the Sri Lanka State in the face of demand for power sharing arrangement by Tamils asserting their right to self-determination.

The mandate obtained by the Tamil National Alliance (TNA) has been yet another demonstration of the consistent Will of the Tamil Nation to exercise its right to self-determination. The expression of this Will has been loud and unambiguous over the last fifty years, and remains today the bulwark of the legacy of the Tamil National liberation struggle.

Whilst the Tamil People have repeatedly stated that we are prepared to arrive at a negotiated solution that gives expression to this legacy, and at the same time not divide the country, the systematic undermining of this Will has accentuated and aggravated the Tamil National question into what it is today.

Sovereignty, vests with the Peoples of each state. By extension, it is only when the Sovereign Will of all the Peoples of a particular state finds expression in the structure of the state, can it be said that the state belongs to all its Peoples. The Sri Lankan state as it exists today, only gives expression to the Sovereign Will of the Sinhala People, and continues to undermine and reject the Sovereign Will of the Tamil People. And as such, the Sovereignty of the Tamil People does not vest in the Sri Lankan state, and accordingly the Tamil People show no loyalty to the Sri Lankan state. Loyalty is a sentiment, not a law. It rests on love, not on restraint. The governance of the Tamil Nation by the Sinhala Nation rests on restraint, and not on love; and since it demands no love, it can evoke no loyalty.

The contradictions between the Will of the Tamil People, and the actions of successive governments, have continued for quite long and surely cannot continue indefinitely. The concept of Sovereignty being vested in the people, has no meaning as far as the Tamil people are concerned, if their Will as expressed at successive elections, does not give them, an effective say in governance, in keeping with the Will expressed. The Will of the Tamil people is that their right to self-determination in their area of historical habitation - the Northeast, be accorded due recognition, so that they can pursue their political, economic, cultural and social development in keeping with their own wish. The right to self-determination has been consistently denied to the Tamil people. Despite the clear expression of their Will at successive elections they continue to be powerless in regard to the management of their own affairs. Nothing can be more humiliating to the Tamil psyche than the non-recognition of their collective Will. This situation if continued will have serious repercussions.

Whilst this be the sad reality faced by the Tamil People for over fifty years, which led to the cry for the establishment of a separate state in the area of historic habitation of the Tamil speaking people in the Northeast of the island of Sri Lanka. And despite this National Liberation struggle led by the Liberation Tigers of Tamil Eelam (LTTE) reaching the position of having won over physical control of nearly 70% of the Tamil Homeland, even in this late hour the Tamil Nation has demonstrated its desire to find a viable alternative to a separate state by entering into a Ceasefire Agreement with the Sri Lankan State just over four years ago. The reaction of the Sinhala Nation has been to elect a President as recently as November 2005 whose express policy for which an overwhelming majority of the Sinhala people have voted was to:

Uphold the Unitary structure of the state;
The rejection of concepts of power sharing, federalism and self-determination;
The refusal to recognize the areas of historical habitation of the Tamil speaking people.

There can be no doubt in anyone's mind that the cumulative effect of these policies will be to shut the door on any possibility of finding a negotiated solution to the Tamil National question.

Not only has the last four years of the peace process demonstrated a complete lack of will by the Sinhala Nation to accept the Tamil Nation's legitimate and just political aspirations as recognized by International Law, but rather has been systematically been undermining the collective will of the Tamil people not only politically but militarily as well.