By Austin Fernando –

Before and after the Northern Provincial Council (NPC) election we heard political orchestrations of a “separation threat” by the NPC. It was what the Liberation Tigers of Tamil Eelam (LTTE) hoped, and echoed. Some totally believed it; some pooh-poohed it.

Here I am trying to understand what separation relating to Sri Lanka is, as an academic exercise, because of the comprehended threat the Tamil National Alliance (TNA) Election Manifesto’s reference to ‘self-determination’ made, followed also by statements of its leaders and consequential Southern dialogue.

Self-determination

Self-determination has a history. World leaders after World War I realized that national peoples groups, with a shared ethnicity, language, culture, and religion, should be allowed to determine their fate, giving birth to the concept of self-determination. Later it was applied to colonial peoples, and by the sixties it was accepted that oppressed colonized groups ought to possess similar rights to auto-regulate to choose their political and sovereign status.

Courts and scholars introduced two different self-determination formats: “internal” and “external”. The former signified that all people should enjoy and deserve respect by mother state for their above-mentioned rights. As long as this happened, the “people” were not oppressed and need not challenge the territorial integrity of its mother state. If this is what TNA expects, the allergy the majority has against self determination will become redundant. Has this message gone down to the Southern majority?

The external self-determination applies to oppressed peoples whose above-mentioned rights are generally disrespected by the mother state and often subjected to heinous human rights abuses. In socio-political theory, such oppressed peoples have a right to external self-determination which included a right to remedial secession and independence.

I think only an eccentric would consider that the Tamils or Muslims in Sri Lanka are faced with such atrocity to demand external self-determination. The NPC Chief Minister (CM) C V Wigneswaran and TNA Leader R Sampanthan have openly disassociated from separation. It is encouraging. Nevertheless, has this message, in its true sense, been received by the southern majority?

When self-determination is publicized by the TNA or Tamil Diaspora, the immediate reaction by the majority is to declare that these rights are enjoyed by Tamils. The ordinary Tamil would not understand the theoretical qualifications for self-determination. But they “feel” for them psychologically: They feel for freedom, dignity, safety, respect, language, religion, places of worship, land etc. But, many authorities then rush to conclude that they are dealing with V Prabhakaran or V Rudrakumaran, self-declared Prime Minister of Transnational Government of Tamil Eelam or unruly Diaspora. They do not juxtapose ordinary Tamils’ ‘feelings’ and ‘rights’.

The separatist campaigners aiming to stratify them in the Tamil public eye do not think proactively on how reconciliation could be achieved. They demand the most vulnerable for immediate solution. It is assumed and presumed that CM Wigneswaran has intelligently and strategically opted to approach problems differently.

Occasional behavior of certain Southern groups also causes flaring up of minority group thinking. Some Southerners suspiciously speak in terms of Tamils/Muslims as groups awaiting secession. What they do not plan is to equate the majority enjoyed rights with that of minorities’ which may force them to even demand separation.

Applicable criteria for self-determination

The accepted view is that self-determination seekers need to meet four criteria in order to have their quest validated. They include showing by the relevant people that (a) it is oppressed, (b) its central government is relatively weak, (c) it is administered by some international organization or group, and, (d) it has attracted the most powerful state’s support.

Let us apply these four criteria to the Sri Lankan situation regarding separation. The GOSL considers the ‘oppression factor’ pursued by Tamil groups as historical past, defeated ‘humanitarianly’ in 2009, by wiping out terrorism and re-clinching the lost freedoms for everyone in the country.

The strength of the GOSL is the next issue. It is not weak and cannot be quoted as reason for separation. Its strength was seen by UNHRC’s Navi Pillay as showing “authoritarian” tendencies, which one may cynically call a weakness. History proves that Vladimir Lenin wished self determination to succeed though violence and Woodrow Wilson advanced the philosophy of self-determination through democratic means. V Prabhakaran attempted to gain self-determination through violence and incumbent CM Wigneswaran seems to follow Woodrow Wilson’s footsteps.

The third issue of administering by international organization or group is not applicable to Sri Lanka. I believe that the fourth criterion is the most crucial: i.e. support of the “Great Powers”. There had been the Tamil Diaspora and some Great Powers claiming the Tamils’ basic rights had been violated. Some internationals disagree on it. The former pins weaknesses in power-sharing, resourcing, operationalizing existing constitutional provisions, international covenants and sharing other freedoms enjoyed by the majority. Nevertheless, they appreciate development in the Region, but demand heart and mind winning by soft means. Incumbent GOSL has prioritized development but has been slow in the uptake of soft approaches. However, the corrections are also within the realms of the GOSL which should be noted when other criteria are weak to demand separation.

Plus status for GOSL

One great advantage for GOSL against secession lies in the fact that the international community views secession suspiciously. “Secession” means separation of a portion of an existing state, “whereby the separating entity either seeks to become a new state or to join yet another state, and whereby the original state remains in existence without the seceded territory.” The greatest / dogmatic external supporter for secession is Tamil Nadu, but it is not a separate state. Separation will be anathema to India and hence it cannot support separation in Sri Lanka and separatists will not enjoy the benefit of another state in proximity hugging the North and East as a strong force. But this need not isolate a seceded state, as will be apparent from later discussion.

Southern politicians (like the Tamil Nadu brethren who play power games) and GOSL make use of Tamil Nadu grumblings to oppose concessions (e.g. land, movement, livelihoods) given to the North and East on the pretext of threats of secession. This is possible because the Sri Lankan general public is less knowledgeable (like the Tamil public) on secession. CM Wigneswaran’s attitude expressed during the campaign asking Tamil Nadu to ‘mind its business’ would have been even a ploy to sedate this Southern negativity and to immunize the TNA.

Successful secessions have been rare because secession seems inherently at odds with the valued principles of state sovereignty and territorial integrity. Even the UN has never accepted and does not accept secession as a mode of self-determination, unless applied to people under colonial domination or oppression. Since colonial domination is inapplicable in our case, if the so-called State oppression of any semblance is alleviated to a satisfying extent, there cannot be any legal and conventional difficulty to stand against threats of secession. This approach is one that should attract the mind of the President.

Academics say that modern-day international law has come to embrace the right of non-colonial people to secede from an existing state, “when the group is collectively denied civil and political rights and subject to egregious abuses.” Is not this an avoidable pitfall for Sri Lanka, especially when the conflict is over? I rely on the Lessons Learnt and Reconciliation Commission recommendations and selected UNHRC advice which could achieve this status.

International references

A frequent reference on internal and external self-determination evolves from a Canadian Supreme Court judgment. It says that when “the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated,” only then does the right to external self-determination accrue. This distinguishing status between the two rights, internal self-determination from external self-determination, must be told to those who suspect the intentions of the TNA Manifesto (which focuses on internal self-determination) endorsed by the CM’s recent speech at the opening session of the NPC.

It is important to note that external self determination will not happen if the originally mentioned criteria are enjoyed by the “people”. It is not a difficult task to achieve. Secondly, the support the TNA/NPC could muster from the Great Power States and the UN may be restrained if proper steps are taken by the GOSL to step-up implementing the above-mentioned rights components. As one academic put across “…the right to separate is conditioned on the non-respect of the right to some form of provincial autonomy.” Is CM Wigneswaran genuinely trying to avoid this impasse or pushing to ensure failure by the GOSL?

Of course, there are certain issues that have been pointed out by the centre affecting devolution of Police and Land powers. But, these are issues for which solutions can be found through negotiations and institution building, and not by rhetoric from both sides. Of course, it has to be done with a constructive mind which is yet to be developed by the centre and the NPC.

Though the Canadian judgment says “When a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession” one may, in the usual Sri Lankan fashion, argue that it is Canadian and ours is Sri Lankan. If one wishes to find solutions they must refuse thinking in narrow terms as these judgments contribute to decision making by the Great Powers.

Statehood and intervention

External self-determination can succeed with such support, with two other strengthened concepts: statehood and intervention.
According to the 1933 Montevideo Convention an entity can achieve statehood if it fulfills four criteria: a defined territory, permanent population, a government, and the capacity to enter into international relations.

Scholars have also elaborated additional criteria for statehood, including independence, sovereignty, permanence, willingness and ability to observe international law, and, in some cases, recognition. These are not easy criteria to satisfy. For example, Israel’s territory is disputed by its Arab neighbors; the two Koreas have battled over their border for decades. Take the criterion of population. Pacific island state of Nauru (10,000) and the city-state of San Marino (30,000) are states! For want of space, I do not discuss other criterion.

There are two theories of recognition: (a) the declaratory view (b) the constitutive view. The former is based on a purely political act; the latter depending on foreign recognition. The capacity to enter into international relations is closely linked to recognition. No state can exist in a vacuum. For example, when Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain in 1965, most countries refused to recognize it. If our North and East secede it will be difficult to gain sovereign acceptance and recognition; if GOSL has done its part to satisfy the Great Powers and UN. Of course, a Tamil separatist might ask why care about recognition of statehood. The reality of cooperative existence dissuades such. I am certain these issues are well known to the TNA and CM Wigneswaran.

Intermediary view

The third ‘intermediary view’ seeks to combine the declaratory and constitutive view. This believes that outside states have a duty to recognize a new state if that state objectively satisfies the Montevideo criteria.

To this the new international theory of recognition was added in early 1990s, following the break-up of Soviet Union and Yugoslavia. The EU Foreign Ministers developed guidelines on the recognition of new states in Europe based on respect for human rights, as well as the protection of minority rights. Under this, an entity applying for statehood within the EU had to prove that it treated minority groups fairly and that it respected minority rights in its territory. Brushing away these demands may convince acceptance of a seceded state. Who has the spoon to make sure things do not happen in the negative form? It is the Government.

The criterion is further evolving. For instance, there had been additional conditions laid, e.g. the Badinter Commission insisting that Macedonia undertake not to alter its frontiers by means of force (renouncing all territorial claims against neighbors). As one academic said “In other words, powerful decision-makers are telling new states that they will only be accepted as full players if they vow to respect the rule of law and to adhere to preserving regional stability and peace.”

Whether GOSL could find access to powerful nations to defend its cause will depend on its reconciliation actions and the failures of the minorities to harness support for secession and the failures of the TNA/NPC to win over the Great Powers.

Involuntary sovereign waiver

Some Great Powers have taken the liberty (e.g. US Presidents) to intervene even by attempting to stretch its contours by constructing a so-called “involuntary sovereignty waiver” justification. One such is the US “advancing the idea that countries constructively waive their traditional sovereignty shield and invite international intervention when they undertake to massacre their own people, harbor terrorists, or pursue weapons of mass destruction.” We may abhor this stance, but it has been practiced elsewhere.

Sane advice

As Milena Sterio says “The idea of self-determination, in the modern world, seems closely linked to state sovereignty and intervention. Because states are only “conditionally” sovereign, they may not suppress legitimate self-determination movements indefinitely. If states choose to oppress self-determination movements, then such movements may seek help from external actors, typically the Great Powers, which may intervene to help the struggling movement achieve some form of self-determination. As in the case of Kosovo, the Great Powers may intervene to assist the struggling movement in achieving the most drastic form of external self-determination, namely, remedial secession and independence.”

This is sane advice that can be remembered in dealing with challenges of internal self determination which, wrongly handled, would extend to external self-determination. The TNA Manifesto has taken secession off the clipboard. But, if they are pushed to the precipice, for life-saving they will do the most appropriate for them. This, and the fact that the influential Great Powers are watching us cannot be overlooked, though need not be over-rated. I believe that if internal self-determination is achieved successfully, the possibility of separation will become a hoax.

*The writer acknowledges an article on Right to External Self-Determination by Milena Sterio in writing this.