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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2704

Disambiguation of Self-determination: What exactly does the TNA want? Do they have an ulterior motive?

By Raj Gonsalkorale

The direct and indirect motive of territoriality and challenges to the belief that territorial integrity is more important than self-determination has led to more conflicts within many states

The Tamil National Alliance (TNA) of Sri Lanka, the dominant Tamil political grouping in the North of Sri Lanka, and to a lesser extent in the East of Sri Lanka, has reiterated the premise that a solution to the ethnic issue that has dogged the country for decades has to be found within a framework that includes the Tamils right for self-determination and the re merger of the Northern and Eastern provinces.

This stance is bound to be a disappointment to most Sri Lankans, including many ordinary Tamils, as they will feel the TNA has further distanced a solution by this reiteration, and as it would cement and increase the suspicion that exists regarding the motives of the TNA.

Many have expressed the opinion that the TNA has not been able to present any new ideas and they are in a time warp by sticking to the stand taken by Tamil leaders in the 1950s, despite the strides made over time to advance equality amongst all ethnic groups in Sri Lanka.

Naturally and rightly, the question is now being asked as to what exactly the TNA want considering there are no constitutional barriers to equality amongst all citizens and since a degree of devolution of political and administrative power has been made possible by the 13th Amendment to the Constitution. When remnant issues are on account of implementation of provisions that already exist, and not for want of constitutional changes, there is a strong suspicion that the TNA has an agenda beyond advocating the welfare of Tamils in the North and the East.

This is why the TNA must disambiguate the phrase self-determination.

Disambiguation seems a complex word. It is not. Its meaning is very simple. It means the removal of ambiguity by making something clear.

All Sri Lankans, not just the Sinhalese, but Muslims as well as many Tamils who are constantly led to difficult situations on account of the TNA’s insistence on self-determination for the Tamils in the North and East of Sri Lanka, would like the TNA to disambiguate the word “self-determination” as this phrase could mean many things to many people, and it could (as it has) give rise to suspicion that there are ulterior motives behind this insistence, and that the welfare of the Tamil community is not the real reason for this insistence.

In order to allay any such suspicions, the TNA needs to make it clear to everyone, not in motherhood terms, but in practical implementable terms, exactly what they want, what would be the political and administrative structures in a self-determined entity in the North and East, what would its relationship be with the rest of political and administrative structures in the country, and what would be its relationship with the outside world.

Importantly, the TNA must also articulate the position of Tamils living outside the North and the East including Tamils in the plantation sector, the position of Muslims living in the East, the position of Muslims living outside the East, and very importantly, the nature of the sovereign status of Sri Lanka.

Most Sri Lankans are acutely concerned about the TNA stance that “there is no way out”, other than the right for self-determination and the merger of the North and East, as forthrightly expressed by its leader R Sambanthan. They are worried because the phrase self-determination has many meanings and connotations.

It could mean the freedom of the people of a given territory or national grouping to determine their own political status and how they will be governed without undue influence from any other country.

This explanation mentions “without undue influence from another country”. This is worrying to many Sri Lankans as they are not sure whether the TNA would refer to the area outside the North and the East “as another country”.

They are concerned that the sovereign status of what is known as Sri Lanka today is at stake, and there will be two countries within the island if self-determination is granted to the North and the East.

This is why the TNA has to explain to all Sri Lankans as to what they mean by self-determination, and provide answers to the questions raised earlier, and other questions that concerned persons may raise in regard to this issue.

It is well for the TNA to remember that territorial integrity is far more important for most Sri Lankans than the right to self-determination by a section of its citizens, and any challenge to this will lead to more conflict rather than a resolution of a conflict for which they are seeking a remedy.

In this article, the writer will also attempt to show that self- determination in most, if not all internal conflicts is a concept that has either led to the division of Nation States or led to serious instability within them. It is also evident that the concept of self- determination is very vague with no definition of its constructs, even at the United Nations itself, and it is a platform for division and the emergence of separate nations as the only way to achieve self-determination.

The Wikipedia explains self-determination as follows

The right of nations to self-determination (from German: Selbstbestimmungsrecht der Völker) is a cardinal principle in modern international law (commonly regarded as a jus cogens rule), binding, as such, on the United Nations as authoritative interpretation of the Charter’s norms. It states that nations based on respect for the principle of equal rights and fair equality of opportunity have the right to freely choose their sovereignty and international political status with no external compulsion or interference which can be traced back to the Atlantic Charter, signed on 14 August 1941, by Franklin D Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom who pledged The Eight Principal points of the Charter.

The principle does not state how the decision is to be made, or what the outcome should be, whether it be independence, federation, protection, some form of autonomy or full assimilation. Neither does it state what the delimitation between nations should be—or what constitutes a nation. In fact, there are conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination.
If all this is not ambiguous, what would one call ambiguity?

In tracing the origin of the phrase self- determination, it appears that it had its roots in imperialism and empire building where a super power subjugated other people in order to expand their empires.

During, and after the Industrial Revolution, many groups of people recognized their shared history, geography, language, and customs. Nationalism emerged as a uniting ideology not only between competing powers, but also for groups that felt subordinated or disenfranchised inside larger states. In this situation, self-determination was seen as a reaction to imperialism. Such groups often pursued independence and sovereignty over territory, as territory was a construct of an Empire and not by the different groups of people living within that construct.

The UN Charter

In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six states signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy.

• Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

• Article 1 in both the International Covenant on Civil and Political Rights (ICCPR)] and the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”

• The United Nations Universal Declaration of Human Rights article 15 states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.

However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism.

Moreover, new states were recognized by the legal doctrine of uti possidetis juris, meaning that old administrative boundaries would become international boundaries upon independence if they had little relevance to linguistic, ethnic, and cultural boundaries.

In 2015, in the Sri Lanka of today, any claim for self-determination for Tamils in the North and East of the country cannot be justified on the basis of linguistic, ethnic and cultural boundaries. As an ethnic group, Tamils are spread in many parts of the country, as a linguistic group, they include virtually all or most Muslims who incidentally are bilingual with high levels of Sinhala literacy, and as a cultural group, considering their spread in many parts of the country, there is no exclusive homogeneity within a geographic area.

Justified by the language of self-determination relevant to the times, between 1946 and 1960, the peoples of thirty-seven new nations freed themselves from colonial status in Asia, Africa, and the Middle East.

The territoriality issue inevitably led to more conflicts and the rise of independence movements within many states, and challenges to the assumption that territorial integrity is as important as self-determination.

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state becoming violent.

Sri Lankans have a firsthand experience for over 30 years of this evolutionary process and the violence perpetrated on the Sri Lankan State by an armed terrorist group.

The international reaction to these new movements has been uneven and often dictated more by politics than principle. Again, Sri Lankans know this only too well. The selectivity applied to internal conflicts in some countries, a good example being the Palestinian claim for self-determination and the subjugation of Palestinians by the US and Western bloc backed Israel, demonstrated well that politics triumphed over principle.

The year 2000 United Nations Millennium Declaration failed to deal with these new demands, mentioning only "the right to self-determination of peoples which remain under colonial domination and foreign occupation.
In an issue of Macquarie University Law Journal Associate Professor Aleksandar Pavkovic and Senior Lecturer Peter Radan outlined current legal and political issues in self-determination. These include:

Defining "peoples" -The TNA has been an ardent advocate of Tamils being a separate “people”, and that leads them to the right for self-determination. The following view point appears to debunk this theory.

There is not yet a recognized legal definition of "peoples" in international law. Vita Gudeleviciute of Vytautas Magnus University Law School, reviewing international law and UN resolutions, finds in cases of non-self-governing peoples (colonized and/or indigenous) and foreign military occupation "a people" is the entire population of the occupied territorial unit, no matter their other differences. In cases where people lack representation by a state's government, the unrepresented become a separate people. It is interesting to note that present international law does not recognize ethnic and other minorities as separate peoples, with the notable exception of cases in which such groups are systematically disenfranchised by the government of the state they live in.

In the context of this point of view, it is difficult if not impossible to sustain an argument that the Tamil people of Sri Lanka are a separate people, that they are disenfranchised, or that they lack representation. They are all constitutionally equal and they have representation both at national and provincial level. They cannot have a claim for self-determination from this perspective.

Implementation issues cannot be addressed by further changes to constitutional provisions, they need to be implemented through political and administrative structures and through discussion and phased planning.

Looking further into what Vita Gudeleviciute has mentioned, it is clear that the TNA, supported by or directed by the Tamil Diaspora, has been on a deliberate course to first, establish the right of Tamils in the North and East for self- determination, to establish the much contested and doubted claim of a Tamil homeland in the North and the East, and then, proceed to argue for nationhood as the rightful consequence to self-determination.

Evolution of self-determination versus territorial integrity

National self-determination appears to challenge the principle of territorial integrity (or sovereignty) of states as it is the will of the people that makes a state legitimate. This implies a people should be free to choose their own state and its territorial boundaries.

There are theories espoused by academics about ascendency of self-determination over territorial integrity. In long past the time of Empires and imperialism, the realist theory of international relations seems the most practical of all as it espouses that territorial sovereignty is more important than national self-determination.

Allen Buchanan, author of seven books on self-determination and secession, supports territorial integrity as a moral and legal aspect of constitutional democracy. However, he also advances a "Remedial Rights Only Theory" where a group has "a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort”. He also would recognize secession if the state grants, or the constitution includes, a right to secede.

Vita Gudeleviciute holds that in cases of non-self-governing peoples and foreign military occupation the principle of self-determination trumps that of territorial integrity. In cases where people lack representation by a state's government, they also may be considered a separate people, but under current law cannot claim the right to self-determination. On the other hand, she finds that secession within a single state is a domestic matter not covered by international law. Thus there is no unanimity as to what groups may constitute a seceding people.

As stated earlier, it appears that this is the trajectory of the TNA and Tamil Diaspora groups, where they will argue stage by stage, that Tamils are a separate “people”, they are disfranchised from the point of view of majoritarianism, they have a legitimate claim for a Tamil homeland, they are unrepresented as the current devolution arrangements do not recognize their fundamental premise of self-determination, and therefore, they have a right to choose their own sovereignty and nationhood.

Methods of increasing minority rights

In order to accommodate demands for minority rights and avoid secession and the creation of a separate new state, many states have decentralized or devolved greater decision-making power to areas within States. Sri Lanka also did this in 1987 with the passage of the 13th Amendment and the creation of provincial councils. Although by no means perfect devolution or devolution units, the provincial council system provided opportunities for progressive advancement for people in different geographic locations to have a greater say in political and administrative issues.
The thirty year period of terrorism and war that continued till 2009 naturally made it impossible for devolution to progress, but since then, the people of the Northern and Eastern provinces have chosen their own Councils.

While the TNA argues that the 13th Amendment falls far short of their expectations, they have not helped in creating the conditions conducive to progressing devolution, and they have not shown any imagination in bringing new thinking as to how Tamil grievances maybe addressed within the context of a Unitary State considering the advancements made constitutionally, to address issues of inequality and opportunity.

Conclusion

No doubt challenges exist as to how best one could balance self-determination and majority rule and equal rights. If this was an easy task, very little would have been written on this subject.

Sri Lanka has addressed this issue through constitutional provisions that removes inequalities relating to language, educational and economic opportunity and other human rights provisions. It has begun the process of political devolution, which in reality is has been possible only during the last 5 years consequent to the end of the armed conflict that lasted 30 years.

An important ingredient for success of these in majority ruled States is the building of trust and confidence amongst the majority and minority groups, and the impact of policies and pronouncements on the social equilibrium in the State. Any policy or pronouncement that creates social inequilibrium cannot advance reconciliation between majority and minority groups.

In this context, several issues have dampened the building of trust and confidence between the majority and minority communities in Sri Lanka. The politicization of what should have been a national issue above politics has been a major contributor to this situation.

The failure of the central government to enter into a working partnership with the provincial administrations in the North and the East to engage and progress post war rehabilitation and reconstruction design and implementation plans has contributed to this situation.

The failure of political, religious and community leaders from majority and minority communities to reach out to each other more meaningfully has contributed to this situation.

Finally, the dogmatic policy position taken by the TNA and their inability to “think outside the box” and demonstrate they are attuned to the future and not wedded to the past has contributed to this situation.

The TNA’s reiteration of the Tamils right to self-determination and the remerger of the North and the East of Sri Lanka fails the tests as far as policy and pronouncements are concerned and their impact on the social equilibrium in the country making it even more difficult to find a solution that satisfies all communities.

Accepting the premise that the TNA is not stupid, a possible conclusion one can draw is that this policy pronouncement is a deliberate attempt not to find a solution at all, and that since it’s reiteration is a measure that will naturally be resisted by a majority of Sri Lankans, especially the Sinhala community, to deliberately drive wedges between the two communities, to show the world that it is the Sinhala community that is intransigent and does not wish to have a solution. The TNA would then take the position that since the Sinhala community has been intransigent, the only solution would be to achieve self-determination through the creation of a separate State.

The challenge for other political parties and the party in power is not just to expose the hidden agenda of the TNA, but to pursue the implementation of constitutional provisions that provide equality and basic human rights to all citizens, and address any remnant issues of discrimination on account of ethnicity, and provide meaningful devolution to the provinces. The TNA should be made irrelevant to Tamil citizens through positive action that will make them realize that their future and the future of generations to come rests with being an integral part of the Unitary Nation of Sri Lanka.

- Asian Tribune -

 Disambiguation of Self-determination: What exactly does the TNA want? Do they have an ulterior motive?
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