Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
Tamil Poem in Purananuru, circa 500 B.C 

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International Conference on the Conflict in Sri Lanka:
Peace with Justice, Canberra, Australia, 1996

Human Rights & Tamils'  Right to Self Determination

The Hon. Justice Marcus Einfield

Judge of the Federal Court of Australia, AUSTCARE's Ambassador for Refugees, Special Representative, United Nations International Children's Emergency Fund (UNICEF), National Vice President, International Commission of Jurists (Australian Section), Foundation President,Australian Human Rights and Equal Opportunity Commission and Australian Paralympic Federation

Philosophers have long held an interest in the nature and theory of human rights. Grotius, Hobbes, Locke and Rousseau put the question of Natural or Human Rights on the moral and political agenda, with the result that philosophical debate on the foundation and nature of Human Rights has never ceased, much less resulted in the formulation of a general consensus.[1]

The Twentieth Century has seen the revitalisation and extension of doctrines of Natural Rights, originally set in religious and natural law contexts, into modern day doctrines of Human Rights derived from the inherent worth, dignity and potentialities of Human Rights and their essential kinship and responsibility for each other.

The absence of conceptual precision and consensus on the definition of Human Rights notwithstanding, few would argue with the promulgation and dissemination of lists of Human Rights. There is no significant philosophical trend which believes in or advocates the inequality of persons based on sex, religion or colour. There is widespread outrage at colonialism, imperialism, violence towards the defenseless, and the alleged superiority of one culture over another whether in the same or different country. It certainly cannot be doubted that some doctrine of Human Rights is the hallmark of almost all modern day states guided by produce of the United Nations.

The halcyon days of the post-World War II world saw the birth of a New World Order, the member nations of which the United Nations was to guide. The expectation that the UN might help to create, or even preside over, a world free of war, persecution and injustice has regrettably proved ill-founded. There can be no doubt, however, that since its inception the UN has played an enormous role in publicising and promoting Human Rights as a fundamental tenet of social life and political government, and in seeking to have Human Rights recognised in international agreement and concern, and in so doing is unquestionably giving them a new and independent force, allowing their content to reflect additional, less individualistic concerns.

The promotion of respect for Human Rights is proclaimed in the UN Charter as being one of the basic goals of the United Nations:

We, the people of the United Nations, determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women of nations large and small, and.....to promote social progress and better standards of life in larger freedom,[2]

Article 1.3 declares that one of the purposes of the United Nations is:

3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion;...

The Charter is an explicit statement of Human Rights principles. Taken by itself, however, it does not impose specific obligations on member states to protect expressly formulated rights. The position is similar with the Universal Declaration of Human Rights proclaimed by the unanimous vote of the General Assembly almost 48 years ago. 

Despite the fact the resolutions of the General Assembly do not have binding force in isolation, the general acceptance of the Declaration in Principle (though not it would seem, in practice) has made it possible to consider it part of customary International law.

 Moreover, the Declaration has generated other formally binding instruments the twin Covenants of Economic Social and Cultural Rights and on Civil and Political Rights.[3]

Exposing human rights abuses

The view is often put by people who should and do know better, that we should not speak out on the Human Rights breaches of other countries for fear of offending them. In my opinion this attitude makes creditable the old rhetoric of Cold War days, still espoused in China and other totalitarian countries, that Human Rights breaches and abuse are the internal affairs of the oppressors and are not subject or susceptible to international analysis and exposure. I see in this attitude only a recipe for entrenching and conniving in the violations.

The Nazi Holocaust and many other acts of genocide in this century, such as those in Armenia, Ukraine and Cambodia, have all been the results of this supremacy of so-called "diplomacy" over humanity.

These incidents, and many others this century should have, but apparently have not, made it unnecessary to remind ourselves that Human Rights are not the prerogative or in the discretion of any nation state or leader to grant or withhold as a mater of personal or national whim. They are, as the name given to the document which proclaimed them suggests, universal.

And those who suffer abuses must be entitled, indeed many have no option other than, to appeal to others to lobby on their behalf for the removal of their Human Rights violations, wherever they may occur. Those that will not listen, and confine dialogue to supposedly safe issues like trade and commerce, are nothing less than accomplices of the perpetrators. To hold back because it may be difficult or embarrassing, from criticism of Human Rights violations and gross affronts to the rule of law by countries affecting to be upholders of internationally accepted standards and seeking a voice in the councils of free peoples, is to me a wholly unsustainable attitude. It can, after all, neither be wrong to be right, nor right to be wrong.

There can be no doubt that the international community has been consistently ignoring the very serious state of affairs in Sri Lanka, despite the actions of many concerned citizens of Australia and other industrialised countries to try to bring to Australia and other industrialised countries to try to bring to the forefront of the human conscience the desperate plight of the citizens of that country.[4]

Former citizens of Sri Lanka who have made their homes in Australia, now numbering over 100,000 people have also endeavored to high light the situation.

The contribution of Sri Lankans to Australian society has been manifold. In particular, there are many highly-educated, quality professionals amongst their ranks who have retained not only their strong community bonds, but have also enhanced Australia's international standing and status as a multicultural society. This contribution should be applauded, and be reflected in, even rewarded by a deep concern for Sri Lankan crisis. It should be met with genuine steps to alleviate the crisis, and to return Sri Lanka to a state of normality. Our joint status as members of the Commonwealth, and common inhabitants of the Indian Ocean, even as leading cricket playing nations, are other reasons why we should be actively involved in finding solutions to tragic conflict in Sri Lanka.

Despite these undeniable obligations, however, the conflict and its accompanying human tragedy have received only scant coverage in the Western media and Parliaments, from which the consciousness of our citizens is invariably raised.

Background to the conflict

Sri Lanka has long claimed to be, and has long been regarded by the international community as being, a country in which the traditions of democracy are upheld, the rule of law prevails, and in which Human Rights are respected. This image can no longer be justly maintained.

The violence between the Sinhalese and the minority Tamils has escalated alarmingly in the recent times, and the democratic values and the authority of the rule of law have been subsumed and eroded. The Sri Lankan Government must bear a large portion of the responsibility for the erosion of the democratic system and the rule of law, if only because it is every Government's responsibility to uphold and secure them. Those who fail to do so must be fully accountable for their failures.

To understand the civil war which afflicts Sri Lanka today it is necessary to look at the background to the conflict. It is not possible to form a vision of or for the future without an appreciation of the past.

Sri Lanka is comprised of two main ethnic groups, the majority Sinhalese (approximately 74 percent of the population) who are mainly Buddhist and the minority Tamils (approximately 18 percent) who are mainly of the Hindu faith. This division has existed for many centuries. Prior to the arrival of the Portuguese in 1505, the Sinhalese and Tamils governed themselves with their own kingdoms, with the Tamil kingdom located in the north and east, and the two Sinhalese kingdoms in the central hills and the south.

The Portuguese and the Dutch who colonised the area administered the Tamil and the Sinhalese regions as separate areas, being conscious of the religious and cultural divide between the two. With British rule in 1833, however, came a centralised administration of the island for the sake of administrative convenience.

The grant of independence in Sri Lanka by Britain in 1948 preserved the unitary system of administration albeit with substantial guarantees for minority groups [5]. The Constitution provided that no law could confer on persons of any community or religion and privilege or advantage disability to which other communities or religions were not subject. A system of checks and balances, the hallmark of Westminister-style system of government, was also enshrined, including a right to appeal to the Privy Council. Despite the attempts on the part of the British of safeguard the rights of minorities, including Tamil population, it soon became apparent that these safeguards would be insufficient.

Since Independence the Tamil people have maintained that they have suffered discrimination at the hands of the Sinhalese-dominated Government. They claim that 40 years of Sinhalese rule has meant suppression and oppression of the Tamil language, culture, and tradition. In 1948 and 1949 large numbers of Tamils were denied citizenship of the newly independent Sri Lanka, and were thus disenfranchised [6] -- many remain without citizenship to this day. In 1956 legislation was enacted which provided that Sinhala would be the only `official' language in Sri Lanka [7], and changing  the resolution adopted 1944 by the State Council that Sinhalese and Tamil would be the official Languages of the country.  As the official administration was conducted in Sinhalese, this change meant that proficiency in that language became a requirement for public service. Furthermore, systems were adopted which favoured Sinhalese students in their application for admission to universities and favoured Sinhalese applicants for positions on the public sector.

In 1972 Sri Lanka became a Republic and a new Constitution without the guarantees of minority rights contained in the 1948 was enacted. The new Constitution granted the status of `official language' to Sinhala [8] and elevated Buddhism to the `foremost place' among religions, [9] thus granting pre-eminence and priority status to the language and religion of the majority community. A second Constitution in 1978 redressed `this imbalance somewhat by according to Tamil language the status of a `national' language [10]. However, Sinhala remains the only 'official language' [11] and Buddhism retains its `foremost' position among religions [12]. Despite the fact that the Tamil language is recognised and afforded some constitutional protection, the protection has not been realised due to an inadequacy of implementation within the Sinhalese-dominated Government and public service.

Initially, the Tamil community sought to achieve a due measure of recognition within Sri Lankan society by peaceful means. In the mid 1970s, in an attempt to redress policies which made it impossible for Tamils to take a equal part of the life of Sri Lanka, the Tamil United Liberation Front (TULF) was formed. The TULF advocated separatism via negotiation and became the major opposition party in Parliament at the General Election in 1977. At the same time, however, a minority of Tamils began to resort to violence to achieve their political aims.

In 1983 the TULF was effectively removed from Parliament by the enactment of the sixth Constitutional Amendment which required the taking of an oath by members renouncing support for a separate state. Since the platform of the TULF included support for a separate state, the TULF members forfeited their right to retain their parliamentary seats. As a result, Tamil participation in Sri Lanka life was effectively removed as their elected representatives could no longer act on their behalf through the normal parliamentary process. This situation has hardly encouraged Tamil involvement in the political life of the nation which is undoubtedly crucial for a resolution to the current conflict.

Since the 1983 Constitutional Amendment, increasing numbers of Tamils have concluded that negotiations will not work, and that armed struggle is the only solution to their situation. For its part, the Government would appear to have chosen to pursue a military solution, on the grounds that the militants must be crushed before any attempts at negotiation can be made. However, the Government's attempts to control the problem by strong legislative, administrative and military measures have not worked - indeed, they appear to have hardened Tamil resistance. Not only has much more of this campaign resulted in overwhelming civilian casualties, the actions of Government, whether deliberately or anarchically, have resulted in the disappearances of large numbers of people including children. It is no answer to say that this has happened on both sides, if it has. The Government's action's certainly do not sit comfortably with the country's express commitment to democracy and the protection of Human Rights.

In 1983, after many years of frustrated attempts at obtaining equal treatment, the Liberation Tigers of Tamil Eelam (LTTE) -- the name of the ancient Tamil kingdom, in the north -- took control of the northern part of the island and called for a separate state. In 1987 this area of Sri Lanka was placed under blockade by the State with many essential items including medical supplies and fuel being prohibited from entering the region. Since then, Sri Lanka has continuously been under declared state of Emergency and certain areas in the north have been declared prohibited zones [13], with the result that many of them same essential items have been prohibited from entering the region.

In April 1995 peace talks between the parties broke down. In December of that year a major push into the northern part of the country around Jaffna by Sri Lankan army displaced more than 500,00 Tamils from the Jaffna Peninsula and caused grave humanitarian crisis of unprecedented magnitude. In November the UN Secretary General Boutros Boutros-Ghali called for urgent humanitarian aid for the thousands of Tamil refugees who fled from Sri Lankan Government troops invading the Tamil homeland. The Sri Lankan Government expressed its displeasure at these comments and to date has refused to allow international relief agencies free access to the refugee camps.

The result of these policies is human suffering and despair. Long-term bombing campaigns have destroyed much of the infrastructure of the north, and allegations and counter allegations of victimisation of innocent civilians on both sides of the conflict. If the parties cannot or will not do it, the rest of the civilised world must cut through the propaganda save the people from this madness.

Since the civil war commenced there have been many attempts at finding a peaceful solution to the crisis. Each attempt has been marred with frustration, anger and eventual breakdown in negotiations. Independent reports from reputable Non-Governmental agencies, including Amnesty International, the Overseas Service Bureau and World Vision have cautiously put the blame for the consistent breakdown in peace negotiations at the door of the Government which refused to abide by the preconditions to the peace talks, namely the withdrawal from the Tamil homelands of Sri Lankan troops.

The right of self-determination

The Tamils' call for "Self Determination" is at the heart of the war in Sri Lanka. Undoubtedly the principle of self-determination is one of the most vigorously disputed "group" rights in modern international law. It has generated vast quantities of literature, most of which has considered the issue in terms of decolonisation.[14] However, the principle of self-determination is not so confined and is increasingly regarded as being applicable to other instances including the rights of minority groups. The problem in each case is what the expression means to the group involved.

The term "self determination" occurs twice in the UN Charter, (15) albeit in the context that self-determination must be respected in principle. Subsequently, self-determination was elevated to the status of a Human Right in both the Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, both of which proclaim

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[16].

It is clear that self-determination is a collective rather than an individual right with a majority of a collection of individuals benefiting directly from its attainment. Furthermore, self-determination is regarded in various human rights instruments as a right of "peoples", not of nations or governments, so that self-determination must be seen as qualifying the right of governments to deal with "peoples" in ways which are inconsistent with their self-determination.

There appears to be an underlying assumption that "peoples", in the sense used in international instruments, is the same as "the minority", and that they have the same rights in international law. A group which may fit within the definition of "peoples" cannot cease to be such merely because a result of demographic or territorial change it become a minority of the population. This has been recognized to be the case for the Tamils by the widely respected International Commissions of Jurists, a representative of which is stated:

"The Tamils could be considered to be a "people". They have a distinct language, culture, a separate religious identity from the majority population, and to an extent, a defined territory.... The application of the principle of self determination in concrete cases is difficult. It seems nevertheless, that a credible argument can be made that the Tamil community in Sri Lanka is entitled to self determination... What is essential is that the political status of the "people" should be freely determined by the "people" themselves.[17]

Before there can be any meaningful attempt to resolve the conflict in Sri Lanka, the underlying cause of the conflict, namely the Tamil struggle for equity and eventually some form of self expression as a people, must be recognized as valid.  

This requirement also involves recognizing the armed struggle of the Tamil people arose as a response to decades of oppression by the Sinhalese majority within the confines of a unitary Sri Lankan state. 

This is not to say that the armed struggle is to be commended or encouraged, or that it is excusable - indeed it must be unconditionally condemned as a destroyer of innocents and ultimately futile to achieve the desired goal. I merely say that the struggle is understandable. After all, if the majority was not willing to embrace the minority and grant them due recognition, a dignified status and an equal opportunity to a fair chance, they must set them free. Oppressing and terrorising them are not options.

The plea by the Tamils for self determination should be respected by the community of states. It is true that self-determination does imply some erosion of sovereignty and in some places it may so liberate national minorities as to give them separate statehood, and membership of the United Nations. However, the existing list of UN members and non-member states is not inviolate, and there are, and there will be cases when the price of untrammeled sovereignty, calculated as it is inhuman misery and suffering, is too high. The undeniably tragic example of Bosnia Herzegovina aside, the consequences in most cases where the self government has been granted has not been disaster[18]

The enjoyment of human rights can be increased in many cases by recognizing the right of peoples to some form of autonomy, even independence -- this much is evident from the UN charter.

Moreover, attempts to forge mergers between peoples and cultures have mostly failed miserably. Northern Ireland, Cyprus, Bosnia, the Israel/Palestinian divide, even the French and English speaking parts of Canada, and North and South of United States, are some stark current examples. The status quo is not necessarily synonymous with stability. I am an unconditional "people" person. 

Forcibly maintaining the status quo when the people desire self-determination will inevitably lead to instability. The birth of a new nation, or the re-formulation of an existing nation, should not be seen as a threat to stability. If the Israelis and Palestinians can move towards peaceful co-existence and bridge deep and historic enmities, it should not be beyond the wit and the will of Sri Lankans to do likewise.

Proposals for assistance

The interests of democratically elected governments committed to the rule of law cannot be furthered by ignoring, much less supporting, the actions of the Sri Lankan Government in respect of the Tamil people. We must also unequivocally condemn the violence masterminded and executed by the LTTE. Our task is to bridge the ideological divide.

Australia has a generally good, though certainly not an unblemished, Human Rights record. Successive Australian governments have been committed to the promotion of Human Rights as shown by a growing body of legislation and the increased status and activity of the Human Rights and Equal Opportunity Commission of which I was foundation President. Our good fortune should be reflected in a commitment to those who are less fortunate than ourselves.

Knowledge of the facts has always and will no doubt continue to be a necessary pre-requisite to rational and effective action. It is difficult, if not impossible, to advocate action in the absence to the clear knowledge of the facts. At this point in time, however, accusations and counter accusations of atrocities and ethnic cleansing continue from both the LTTE and the Sri Lankan government. It is therefore difficult for foreigners to divine the truth of the matter given the entrenched polarization and hostility of the parties, and restricted access to independent observers and the international media - Truth is always the first causality of war.

Undeniably, the conflict is in the end one for the parties to resolve. However, Australia as a nation is in a very good position to encourage progress towards a negotiated solution. To date, we have provided substantial emergency assistance to the thousands of displaced persons in Sri Lanka, including shipments of wheat and $1million to UNICEF and other organizations to assist victims of the conflict. However, this assistance, whilst admirable, and certainly well intentioned, is insufficient to relieve us of our wider moral obligations.

The Sri Lankan Government has politely but firmly rejected offers of mediation of third parties, on the basis that the conflict is an internal matter [19]. But violation of Human Rights are never internal matters. 

Certainly the sovereignty of Sri Lanka must be respected, and one can wholly understand this attitude when viewed from the position of a former colony. The nation of Sri Lanka, like many newly evolved nations, must assuredly be suspicious of any offers which they perceive to be attempts at meddling in their affairs. This perception must be understood and addressed. Thus any offers to acts as an adjudicator in the dispute must be framed in terms of humanism -- not colonialism. It must be made clear to both parties that intercession by the International Community is for the purpose of facilitating genuine negotiation on substantive issues and to end the suffering of civilians who are the overwhelming victims of this dispute - not for the purpose of taking sides or interfering.

The resumption of hostilities following the abrogation of the peace process in April 1995 has resulted in an estimated 5000 deaths and decisively terminated contacts between the Government and the LTTE. Despite this, however, the Government has, at least on the surface, continued with the process of Constitutional reform intended to address the restoration of Human Rights, and to return to the Westminster-style parliamentary system. These proposals have been widely regarded by the international community as a genuine attempt by the Government to pursue a durable political solution to the conflict.

The proposals undeniably acknowledge that some of the grievances of the Tamils are legitimate, although they fail to address adequately the issue of self-determination [20]. The Constitutional proposals allow for a high degree of regional autonomy through the creation of Regional Councils, a proposal which has a potential to fulfill a long standing Tamil demand for regional administration.

It is unclear what the precise composition of the units in the devolution will be, which is the area of greatest difficulty. To give the Tamils full regional autonomy over the Northern and Eastern provinces would give them 32% land mass of the country and 60% of it's coastline. Furthermore, it would involve the excising of a number of specific districts with predominantly non-Tamil population - a formula which if we are to again look to history, has been quite unsuccessful in other places to say the least (as for example the Polish corridor, and other events leading up to the World war II). The proposals undoubtedly fall well short of the call of the LTTE for self-determination. However, as it seems to me, they are certainly a starting point for negotiations in a situation where violence has superseded negotiations and the parties are being increasingly polarized.

In the ultimate assessment of the issue, the willingness of both sides to undertake negotiations is a necessary pre-condition for a mutually acceptable, and binding, resolution to this dispute. In furtherance of that objective, the international community can play a vital role by encouraging the parties to lay down their arms and seriously negotiate the matters of contention between them. The mediation by a third unbiased party may well encourage the parties to reach agreement and to restore some element of trust where it has so long been absent.

But the Tamil people must first discuss and decide precisely what they want, even in the sense of their ambit claims. As in a private arbitration, there is no way that the International Community can assist a resolution of the dispute without knowing what the parties' desires are. This goal is an important function of the Conferences such as this. It is crucial to a beginning, let alone an end. And may I say that the term `self-determination' needs further definition in the case of the Tamils. There are several forms of self determination - home rule, regional autonomy, self government, title to land, federation, even independence. You must decide which one you want while having and conveying a willingness to encourage in talks without preconditions.

It is my view that the Australian Government should approach the Government of Sri Lanka as a matter of urgency to accept the delegation comprising Members of Parliament and representatives of concerned groups in Australia, including the churches and the International Commission of Jurists. The delegation should be free to travel anywhere and speak to anyone in the country. The purpose of the delegation should be to hear and examine evidence of atrocities committed by each side, to listen to and try to mediate proposals for a political solution to the situation, and to ascertain what kind of humanitarian and juridical aid Australia can supply to the victims of the conflict. If appropriate, governments of fellow Western Commonwealth countries like Canada and New Zealand could be asked to join in.

It is perfectly clear force has achieved and is achieving, nothing accept agony - and that in a truly lovely country with an essentially peaceable and delightful people, neither side can win by violence. The important and underlying reality is that a stable peace in Sri Lanka must be established before the human rights of its citizens can be addressed in a long term effective way. Any so-called solution by violence will not only lead to further misery and suffering, and even greater resentment between the parties. Logically, a solution by violence will mean that one side has been subdued which can only lead to further resentment from at least one side.

The only possible long term solution is thus for a political negotiation to which both sides agree. International pressure on Sri Lankan Government to move towards a negotiated peace settlement with the Tamils is essential.

*The peace would recognize what the majority itself has been asserting for decades - with which the Tamils agree - that the Tamils are a separate people to the Sinhalese.

*It would presumably provide a territorial demarcation within historic traditional lands and provide for an acceptable form of self rule within those territories.

*It would expressly accord Tamils equal status and opportunity.

*It would recognize the Tamil language, religion and culture.

*It would underpin the fundamental rights and obligations of all members to the society.

This minimal list of topics does not seem to me to be out of reach.

Security and justice must be afforded to all citizens of Sri Lanka. As a long term friend to all Sri Lankan people, the Australian Government and people must become involved in finding a long-term solution to the problems, so that their Human Rights can be restored or protected.

*We must continue to press the Sri Lankan Government to cease its military actions and to seek a negotiated peace settlement with the LTTE.

*The Sri Lankan Government and the LTTE must be urged to declare immediate cease-fire so that essential relief supplies can reach the civilian population. The fighting must be stopped, the food embargo must be lifted, civilian lives must be protected, and mediated peace talks must be initiated.

*The parties must be urged to find a just and lasting solution to their differences so that all Sri Lankans might be afforded what we in Australia take for granted - a peaceful existence.

Whilst the Sri Lankan government action has substantially corrupted the principles of democracy and the rule of law, it must also be acknowledged that successive Governments of Sri Lanka have long ago taken steps which indicate a commitment in principle to the protection of Human Rights. Examples of this commitment include ratification of the International Covenant on Economic, Social and Cultural rights [21], the International Covenant on Civil and Political Rights [22], and the International Convention on the Elimination of all forms of Racial Discrimination [23]. This adherence to international standards in theory must be reflected in a practical commitment to achieve the Human Rights of all in Sri Lanka, irrespective of religion, ethnic identity or political allegiance. In particular there is a need to address the displacement of over 400, 000 persons in the north of Sri Lanka who are in urgent need of humanitarian assistance.

To date, the complete failure of the international community including successive Australian governments to recognize the Sri Lankan issue in a particular way and raise it in every available international level represents an extraordinary abdication of our responsibilities and reprehensible selectivity in the elements of true friendship which emphasize being around and available to help when there are problems. As in every other country, the Armed forces of Sri Lanka must be kept in check and only used for the protection of the citizens and the enforcement of their Human Rights. It is wicked that the military establishment of a country terrorize and oppress its own people who fund it.


The freedom of the peoples of the world will not be secured by police forces, armies or compulsion, nor will they be assured by constitutions, elections, politicians and parliaments. Only something far more fundamental will provide our children with the inheritance they deserve - a consensus amongst all peoples on freedom, justice and human dignity. There is no reward for failure.

Human Rights are not some narrow, theoretical or idealistic entitlements. They are not merely the avenue for asserting the claims for individuals against the state, or for proposing laws which operate unjustly against a few, or for protecting only ephemeral minorities. Taken together, Human Rights principles form a code of behavior between individuals, communities and states, designed to promote harmonious, just and peaceful conditions, essential to the peace and welfare of modern life.

Like Australia, if Sri Lanka is to maintain its integrity as a nation and to maintain true freedom in its society, it must always cherish liberty and its coperate morality. It must stand firm against attempts by the arrogant and the uncaring, by the irresponsible and the sensationalist, by the greedy and the avaricious, and by the selfish elements in society, to erode its commitment to the sanctity of the human condition. Above all, despite all the problems and difficulties, it must strive never to undercut decency and humanity in the name of fiscal frugality, human oppression or brutal political motives. The sanctity of the human condition should not be regarded as having a price.

Human Rights will continue to contribute to the prevention and peaceful settlements of conflicts in the world if, and only if, a global approach is developed. This means that Human Rights have to be truly universal and indivisible. This concept is not to be confused with a "Western" view of the world, and particularly not the promotion of capitalism or a market economy. Global Human Rights accommodate alike developing and industrialised countries, rich and poor people. There is no place for cultural exclusiveness, comparisons or judgment. A universal approach to human rights embraces absolute respect for cultural diversity and gender balance. It embraces equally black and white, male and female. It respects religion, ethnicity and heritage.

Moreover, we must accept, not only in words, but above all in deeds, that Human Rights are indivisible; that it means little to afford notional representation or recognition whilst denying peoples their culture, language and lands, the full panoply of economic and social rights, and a right to self determination. The growing number of problems and challenges confronting humanity calls for a global and universal response. Sri Lanka is high among the priorities.

The various international Human Rights instruments, by which member states of the United Nations profess their commitment to the establishment, presentation and promulgation of Human Rights can either be a worthless piece of paper or real standards. In settling on which of the choices any peoples wishes to make, it is not simply up to our elective representatives to make these rights a reality. It is up to each and every one of us to take them seriously, to implement them, and to make them real. There is much to be said about the old adage that "you don't know what you have until it is gone." If we take our Human Rights for granted, if we do not actively seek to protect others, and instead wait until conflicts assume catastrophic proportions, we act against ourselves, our own interests and ultimately against humanity, and we will be inevitably placed in the dock of the history paying a very high price indeed. It is incumbent upon the government of Sri Lanka to ensure that, in relation to all the people in its country, their human obligations are fulfilled.



1 There are many texts which give general introduction to and survey the historical development of human rights and contemporary discussion, including: FE Dorwick (ed), Human Rights: Problems, Perspectives and Texts, Saxon House, Farnborough, 1979; E Kamenka & ES Tay (eds), Human Rights, Edward Arnold, London and Melbourne, !978; W Laquer & B Rubin (eds, The Human Rights Reader, New American Library, New York, 1979.

2 Preamble, United Nations Charter

3 The Universal Declaration of Human Rights was adopted and proclaimed by General Assembly resolution 217 A(iii) if 10 December 1948 without dissent - although there were eight significant abstentions.

4 Among them an alliance of Queensland Churches, who issued a press release on 14 November 1995 calling upon the Australian government for action, and Mrs. Easson, Member for Lowe see Hansard 20 November 1995, Senator Spindler (Victoria ) Senate Hansrad 24 October 1995.

5 The Soulbury Constitution was the order in the council of the British Parliament by which the country came to independence in 1948: the Ceylon (Constitution) Order Council 1946.

6 Citizenship Act, No. 18, 1948; Pakistani Residents (Citizenship) Act, No. 3 1949; and Ceylon (Parliamentary Elections) Amendment Act, No. 48, 1949}

7 Official Language Act 1956.

8 Art. 7, 1972 Constitution.

9 Art. 6, 1972 Constitution.

10 Art. 19 1978, Constitution.

11 Art. 18 1978 Constitution.

12 Art. 9,1978 Constitution.

13 The Emergency (Establishment of a Security Zone) Regulations No.2, 1984

14 See for example Crawford J, the Creation of States in International Law (1979) 85-102 and the works cited therein.

15 See Article 1 para, 2 and Article 55 which are in similar terms and include the phrase "respect for the principle of equal rights and self-determination of peoples"

16 See Art. 1 para. 1 of the Economic, Social and Cultural Rights Covenant, and the Civil and Political Rights Covenant.

17 Larry, V: Ethnic Conflict and Violence in Sri Lanka Report of Mission to Sri Lanka on Behalf of the International Commission of Jurists, July/ August 1981.

18 See for example the claims by Bengalis and Lithuanians for self-determination, which are catalogued in Bailey P, Bringing Human Rights to Life, The Federation Press 1993.

19 Offers of Assistance have been made by Australia, Canada and the United States at various points over the duration of the conflict.

20 See the draft legal text of the proposals for the Constitutional reforms in Sri Lanka presented on the 3/8/96

21 Adopted 19 December 1966, General Assembly Resolution 2200.

22 Adopted 19 December 1966, General Assembly Resolution 2200

23 7 March 1966, entered into force 4 January 1969, 660 UNTS 195.




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