TAMIL EELAM:
RIGHT TO SELF DETERMINATION 

The Right to Self-Determination
of the People of Tamil Eelam

Visuvanathan Rudrakumaran, 1991

Introduction | Legal Right or a Political Principle? | Does Self-Determination Apply to Non-Colonial Contexts? | The Legitimate Recipient Unit of the Right to Self Determination | Does the Right to Self-Determination Include the Right to secession? | Sovereignty is the will of a nation | Reversion of Sovereignty

Introduction

As Judge Ammoun said in the Barcelena Tracton case, self-determination is a norm imbued with a sense of natural justice, morality and with human ideals. The international covenants on civil and political and economic and social rights proclaim that the right to self-determination is a prerequisite for the enjoyment of all other human rights thus honoring it as the mother of all other rights.

Not surprisingly, self-determination has become the battle cry of various nations that have been denied it's nurturnace such as the: Tamils of Sri Lanka, Eriterians of Ethiopia, Lithuanians of the Soviet Union, Slovenians of Yugoslavia, and others. The liberation movements that arise as a result are an e mbodiment of those nations' active hope that they shall be able to exercise that right. In order to find a just solution to the national problem on the basis of self-determination it is essential to demystify the very concept.

Is self-determination a legal right or merely a political principle? Is it applicable exclusively to colonial people or is it relevant to the non-colonial situation as well? Who is the bearer of self-determination? Does self-determination include secession? If so, under what specific circumstances can it be exercised in the form of secession? I will attempt to answer those questions by examining them against the context of the Tamils' struggle in Sri Lanka.

Legal Right or a Political Principle?

The concept of self-determination has been consistently incorporated into the international covenants on civil and political and economic and social rights. Therefore, it binds the states that are parties to these covenants without reservation, as conventional law. However, a number of states, even though parties to the covenants deny the legal validity of the right to self-determination by expressing reservations with regard to this right.

The concept of self determination is espoused by the United Nations' Security Council and General Assembly. The most important document to the effect is the Declaration on Friendly Relations Among Nations 2625, which was passed by acclamation. Unlike most of the other General' Assembly resolutions it had been worked upon for seven years-by a special committee which represented the entire range of opinions within the United Nations including all major powers.

It should be observed that although the General Assembly lacks the law-making capacity, its resolutions pertaining to the principles of international law if passed by consensus are generally viewed as part of Customary International Law. Declaration 2625, which explicitly recognizes the right to self-determination in non-colonial contexts has been characterized by the International Commission of Jurists as the most authoritative statement of the principles of international law relating to self-determination.

It is safe therefore to argue on the basis of Declaration 2625 that self-determination has matured into a full-blown legal right. The adoption on June 26, 1991 of a charter that recognizes the Eriterian people's right to self-determination by the provisional government of Ethiopia in London, reinforces the validity of this conclusion.

Does Self-Determination Apply to Non-Colonial Contexts?

It has been argued by some that the right to self determination is applicable exclusively to colonial situations and that once it has been exercised, any further recourse to it is forfeited; in other words the people of newly independent states do not retain this right. Nevertheless, Article I paragraph 2 and Article 55 of the UN charter stipulates that friendly relations among nations be based on respect for the equal rights and self determination of their peoples.

It should be noted that the use of the term "nation" in second the paragraph of Article I expresses the belief that friendly relations should be established not simply among independent states, but also among non-self-governing territories, such as colonial countries. If the right to self-determination had been meant to apply exclusively to sovereign states and colonial countries, the drafters would have in all probability used the term "nation" rather than the term "people" in referring to self-determination.

The international recognition of the universality of the right to self-determination is also manifested in General Assembly resolution 422 which requires all states, including those responsible for the administration of non-self governing territories, to promote the realization of that right. Also relevant are: resolution 1188, entitled "Recommendations concerning International respect for the Right of Peoples and Nations to self-determination; resolution 1803 which recognizes the right of Peoples and Nations to permanent sovereignty over their natural resources; Declaration 2625 and others.

The fallacy that the right to self-determination can be exercised only once is shattered with overwhelming clarity by the case of Puerto Rico, which first exercised its right to self-determination in the form of free association with the United States was permitted to modify its status if it so chooses. In other words, Puerto Rico remains entitled to the right to self-determination ever after exercising it once in the form of free association.

Not only because of the requirement of legal consistency, but also of rationality and prudence, the right to self-determination should not be limited to colonial people. It is utterly illogical to grant the people of a colony who are ethnically and culturally distinct from the population of the metropolitan country and who are subjected to foreign domination and, rule are entitled self-determination merely because their territory happens to be geographically separate from that is the colonial power and those who wield political power happened to have white skin while denying it to a people who are no less distinct ethnically and culturally from the main bulk of the population of the country in which they live and who also suffer from domination and subjugation but who- happened to inhabit a compact territory within the manmade boundaries of a state (in most cases a legacy of the, former colonial power) and who exercise political power in such circumstances happen to have dark skin.

It should also be borne in mind that colonized peoples were not the first to speak of self-determination. This demand had been raised first by the French and American peoples, then by the Germans and later by subjugated nationalities and by colonies. The desire to throw off the yoke of an alien domination is in the nature of things and it has not changed in the course of the centuries. Today it is as pronounced as it was in mankind's earlier history.

The Legitimate Recipient Unit of the Right to Self Determination

In accordance with Articles 1 and 55 of the UN charter, and with the opening articles of both International Covenants, a "people" is the recipient unit, the legitimate bearers' of the right to self-determination. Nevertheless, the persistent question is what is a "people"'

When the Sixth Committee' of the General Assembly at the 20th session discussed the principles of international law in relation to Friendly Relations and Cooperation among states in accordance with-the UN charter, it was pointed out that "states" in the international jurisprudential sense were clearly "Peoples", but further study was necessary to determine what other social groups should be included in the definition of a "people."

What should be noted here is the fact that even states which are extremely reluctant to recognize the right to self-determination of certain groups within their territory due to fear that the exercising of this right would pose threat to their existing boundaries, recognize that there are certain, indigenous social groups within these states that constitute distinct "peoples" and should thereby be entitled to the right to self determination.

However, there is no consensus at this moment in the international community as to the precise definition of such groups or their constituent elements.

An analysis of the history of groups who have legitimately sought self-determination would enable us to define the legitimate bearer of that right. Of course, history is a dynamic process; since the right to self-determination in the period between the French Revolution and the fall of the colonial system was the goal of a variety of groups, it would be appropriate first to identify the common factors shaping those groups rather than engage in a search designed to identify any particular entity.

During the French and American Revolution, self-determination was a territorial right sought in each instance by a people subjected to a specific authority, namely, the monarchs of France and Great Britain respectively. The authority was an objective element. Each group was moved by a spirit of liberty and individuality, (a subjective element) which united its members into a "people". In the course of the unification of Germany, the claim to self determination was raised by a people living on the same continuous territory, speaking the same language and bearing the same distinct culture (objective elements). United by a sense of self preservation in the face of foreign domination, and by a feeling of spiritual superiority that was nourished by legends of a glorious past (subjective elements).

In the 19th century self-determination began to loom large in the international arena, thanks to subjected nationalities, each of which had a relationship to a territory and was endowed with a common language, a common culture (objective elements) and each of which was moved by a desire to form an independent states (subjective element) . During the period of decolonization it was the colonial peoples that raised their voices for self-determination. Again each was based on a common territory and distinct ethnicity or culture (objective elements) as well as a passionate yearning for independence (subjective element).

This "breakdown" allows us to bring out some of the broad objective factors: either a distinct "allegiance", or a distinct language, or territorial continuity and so on, while some of the subjective factors include a spirit of freedom, the sense of self-preservation, a will to form an independent state and others which created a sense of solidarity among the populations in question, uniting them in each instance into a people and thereby making them recipient units of that right.

Apart from these objective and subjective factors an unambiguous relationship of each such group to a specific territory is also existing. Expressing his separate opinion in the Western Sahara case, Judge Ammoun, identified some subjective elements such as "conscious action", "concerted effort", "lasting will", "real determination" as well as objective elements such as-. ethnic, social and cultural ties", "struggle carried on side by side" and the bond between the man and the land. These are the constituent elements of the concept of a "people". These factors were also named by the 1984 UN-sponsored seminar on the legal status of apartheid.

Therefore, a social group characterized by distinct objective elements such as a common language and a common struggle, acquire subjective elements such as a sense of solidarity, of sameness or oneness and has a relationship to a defined territory," such a group clearly constitutes a "people" and-is entitled to self-determination.

At this point it should be stated that the territorial factor characterized by Judge Ammoun as the basis of ownership or better of sovereignty distinguishes "people" from a "minority". As a New Zealand representative once observed, "the principle of self determination was ... related to the wishes of the majority occupying a given area or territory and it should not be confused with the rights of a minority scattered throughout the territory who might be seeking equality of treatment with the majority..."

In Sri Lanka, the inhabitants in the Northern and Eastern provinces are united by a number of objective factors such as the Tamil language, a common past in which they shared a struggle against the assimilation by the Sinhala governments. They are also united by their shared aspirations to freedom and independence, which was manifested in the 1977 general election, and is also proven by the overwhelming support enjoyed by the Liberation Tigers of Tamil Eelam, who is committed to the realization of Tamils right to self-determination.

A great deal has been written about the relationship between the Tamil population and Northern and Eastern provinces. However, as the findings of the Aaland Dispute Commission of Inquiry show, nothing would be gained by the "inquiries to attempt to penetrate the darkness of prehistoric ages, in the endeavor to ascertain who were the first inhabitants... of the territory concerned." It is accepted by many historians, both Sinhalese and Tamil, that since the 13th century A.D. the Tamils have lived on an identifiable territory, namely the Northern and Eastern provinces.

When Sri Lanka found itself under Portuguese and Dutch Colonization, the Northern and Eastern provinces were administered as an entity separate from the rest of the country. Only with the British Colonization in 1833 were all parts of the country combined under a unitary form of government for administrative purposes. However, even under the British Unitary system, the Northern and Eastern provinces continued to be inhabited predominantly by the Tamil population.

This was acknowledged by the Bandaraniaike Chelvanayakan Pact (1957), which recognized "Tamil as a national language, and that the administrative work in the Northern and Eastern provinces should be done in Tamil"; and also by the Senanayake-Chelvanayakan Pact (1965), which pledged to make provisions for the use of Tamil in the Northern and Eastern provinces, and promised to give Tamils priority in the -allocation. of lands under colonization schemes in those two provinces.

To summarize, the Tamil population of the Northern and Eastern provinces, endowed with a distinct language, and united by their aspirations to exercise their right to self determination in the form of secession, occupy an identifiable territory namely the Northern and Eastern provinces of Sri Lanka, is a legitimate recipient unit and bearer of the right to self-determination.

Does the Right to Self-Determination Include the Right to secession?

The case of self-determination is the people's right to freely decide their political status and pursue their economic and social development without external interference. In other words, self-determination means the fulfillment of the legitimate political, economic and cultural aspirations. Depending on the constitutional and political situation in the country, such aspirations can be realized in the form of a unitary or federal state or confederation, or of an independent state.

The Commission of Jurists determined in connection with the Aaland dispute, that self-determination which recognizes the right of'a people to determine their political fate may be exercised in various ways, especially the formation of an independent state. This proposition was later reaffirmed by the United Nations in a Declaration which states that "the establishment of a sovereign and independent state, the free association or integration with an independent state or the emerging into another political status freely determined by a people constitute a mode of implementing the right to self-determination of a people."

According to the UN-sponsored study of the right to self-determination, no unlimited right to secession is recognized under international law. Unlimited right to secession would threaten international order and stability. However, order and stability are not synonymous with status quo.

Nevertheless, it does not follow that the right to secession is non-existent under any circumstances. For example, while guaranteeing the territorial integrity and political sovereignty of countries, it was understood between the allied powers after Word War I that territorial readjustments might someday become necessary in the future, owing to changing demographics, ethnic conditions, new aspirations, new social relations resulting from self-determination.

Thus, it was pointed out that Article 10 of the League of Nations Covenant only guaranteed the protection of the territorial integrity of member states against external aggression but not against internal 'rebellion. As emphasized by President Woodrow Wilson, the Article did not in any way interfere with the right of a population anywhere to change its government.

He further stated that there was absolutely no restraint on the population from exercising their right to self-determination and that they didn't guarantee any government against anything that might happen with its own borders. According to Lord Robert Cecil who played an important role as a member of the British delegation in the drafting of the covenant, Article 10 merely protected League members from external aggression directed against their territorial integrity. It did not mean the frontiers could not be changed. He further said the permanent freezing of state frontiers was the main cause of wars.

It also should be observed that by means of Article 18 of the Draft Declaration on Rights and Duties of States, the international law commission limited the non-recognition of territories acquired by another state, thereby refraining from outlawing secession.

Thus, the principle of territorial integrity pertains exclusively to relations between states and does not affect the population within a state. Clearly, the right to self determination and the principle of territorial integrity belong to different domains of international law and therefore are not mutually contradictory. We should then conclude, as did the UN sponsored study, that the right to secession unquestionably exists. Yet the international community, while recognizing the right,to secession, has so far failed to formulate the guidelines for the exercise of that right.

The right to secession was first given considerable attention by the international community in the Aaland dispute. In their instance, the Aaland Islands, a part of Finland which was populated' predominantly by Swedish inhabitants wished to secede from Finland and be incorporated into Sweden. The dispute was brought before an international commission of jurists by the League of Nations.

The Commission of Jurists determined that in the absence of territorial sovereignty, the principle of self-determination may be brought into play. The Commission of Jurists established the link between the absence of territorial sovereignty and the right to secession in the context of a state which was not fully formed or was undergoing a transformation or dissolution and whose status remained obscure and uncertain from the legal point of view.

This link, described by the Commission of Jurists and confirmed by the league of Nations, provides a starting point for formulating the guidelines for the exercise of the right to self determination in the form of secession. In order to be able to arrive at such guidelines, it is essential to further explore the concept of sovereignty.

Sovereignty is the will of a nation, that is, the concurring will of individuals.

According to the writings of Locke and Jefferson, governmental power relies on the consent of the people. This theoretical basis of sovereignty is legitimated by the international community through Article 21 of the Universal Declaration of Human Rights, which requires that the will of the people shall be the basis of the authority of government and by Article 25 of the civil and political covenant, which confirms citizens' right to participate in the government.

Therefore, if a government's authority over the "people" is not based on their consensus, but relies on coercion which results in the suppression of the people's legitimate aspiration, the people concerned may exercise the right to self-determination in the form of secession.

This proposition has been sanctioned by the international community in General Assembly Declaration 2625. Paragraph 7 of the Declaration, which permits self-determination in the form of secession in the absence of a government representing the entire population inhabiting the territory, regardless of their race, creed, 'or color.

"No taxation without representation" -was the spark that ignited the flames of freedom throughout the United States. It should also be noted that during the debate on the secession of Bangladesh in the UN Security Council, the Indian representative stated that where a mother state had irrevocably lost the allegiance of such a large section of its people as represented by Bangladesh, and could not bring them under its sway, international law recognized that the situation was appropriate for that section to form a separate state.

Since the core of self-determination is the right of people to establish an entity capable of functioning to ensure a common future, representation should be effective rather than cosmetic.

In Sri Lanka, the numerical majority, the Sinhala people, also constitute a two-third political majority in parliament. Unlike in certain other countries, such as Australia, Belgium, or Brazil, where brakes have successfully been put on the application an unqualified majoritarian principle, in Sri Lanka the application of unbridled majoritarian principle has resulted in the tyranny of a numerical majority.

The enactment of the Official Language Act No. 33 of 1956 and the promulgation of the constitutions of 1972 and 1978, and of the Sixth Amendment to the constitution, in the teeth of vehement Tamil opposition, illustrate the truth that the Tamils are denied effective representation in Sri Lanka. Even with respect to the 13th Amendment, which creates an illusion of power sharing and which promotes Indian geopolitical interests at the expense of Tamils' legitimate interests, the possibility of unilateral abolition of provincial councils or an arbitrary curtailment of their powers -- if there are any -- by a combined Sinhala majority without the consent of the Tamils exist under the current Sri Lankan constitutional system.

Therefore, the Tamils of Sri Lanka, who are united on the basis of such objective factors as a distinct language etc., and by such subjective factors as a passionate yearning for freedom, and who have a long-established relationship to the Northern and Eastern provinces constitute a people, and are therefore entitled to self-determination in the form of secession, in the face of denial of effective representation in Sri Lanka's existing constitutional and political situation.

 Reversion of Sovereignty

I would also like to point out that apart from the right to self-determination, the formulation of Tamil Eelam is justified in terms of international law under the concept of reversion to sovereignty, which was expressed by Judge Quintain in the Right of Passage case and which was applied in the retroactive restoration of Belgium and Holland under the Treaty of Eighteen Articles, Adopted by the Vienna Congress in 1836.

Furthermore, the creation of Tamil Eelam can be justified under the international legal concept of selfhelp, which was sanctioned by the Commission of Inquiry in the Aaland Islands dispute, and which was claimed by India to justify the liberation of Bangladesh.

And in view of the inevitable and eventual success of the historic struggle, being conducted by our sisters and brothers with immense and untold sacrifices and dedication, under the able and authentic leadership of Liberation Tigers of Tamil Eelam, the establishment of Tamil Eelam also is legitimate under the international legal concept of effectiveness, recognized by the International Court of Justice in the Nottenboun case and provided the legal basis for the creation of many East European states, such as Serbia and Bulgaria, out of the Ottoman Empire.