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 

Home Whats New  Trans State Nation  One World Unfolding Consciousness Comments Search

Home > Tamils - a Trans State Nation > Struggle for Tamil Eelam > Right to Self Determination - Tamil Eelam > Eelam & the Right to Secession - Professor M.Sornarajah


Eelam & the Right to Secession

25 June 2000

M Sornarajah LL M (Yale) LL D (London)
Professor of Law, National University of Singapore and
The Centre for Petroleum and Energy Resources Law
University of Dundee, Scotland.
(Text of speech to the International Tamil Foundation, London)

"When the British gave independence to Ceylon in pursuance of the right of colonial self-determination, they should have ensured at the least, there was adequate protection of the rights of the Tamils if not a restoration of the status quo which existed before their conquest of Ceylon. At the time of their conquest, the Tamil homeland was administered separately and prior to European colonisation, there was a separate kingdom in the Tamil homelands. Self-determination imposed a duty to restore the status quo."



Eelam as a de facto state exists today. It is a territorial entity that is controlled by a definite group of people who have established a definite government within it. It satisfies all the criteria that the state of Sri Lanka satisfies. The state of Sri Lanka today does not have definite borders. The legitimacy of its government to being a democratic government is suspect because of widespread vote-rigging. That "government" routinely bombs a part of its population. In this context, Eelam as a de facto state already exists.

The issue is whether the right to secession has given it a legitimacy that demands that the state be recognised as a de jure state. This is a question that must be examined dispassionately, without the emotion that normally clouds the consideration of the issues involved. The extent to which the rapidly emerging international law on this and related areas may help in the assertion the rights of the people of Eelam as well as their protection from the violation of their rights also needs to be examined.


Evolution of the right to self-determination

Self-determination, as a political concept, was articulated at the end of the First World War in order to provide for the redrawing of the borders of European states to ensure that there was some coincidence between the ethnicity of the states and their boundaries. A system of minority treaties ensured that minority ethnic groups that remained within states after the redrawing of the boundaries had a measure of protection. But, the notion of self-determination was not extended by the then prevailing international law to the colonial states of Africa and Asia which remained subjugated to imperial rule.

Self determination was wrested for them through the peaceful struggles of Ghandi or through the violent struggles of Kenyatta and Sukarno. It was then that self-determination came to embrace the peoples of Africa and Asia and became a doctrine of liberation of colonial peoples from imperial bondage. So, the concept of self-determination had an evolutionary content that was extended to end the domination of one people by another. The triumphant legal assertion of that doctrine was when the United Nations General Assembly passed the resolution on the Granting of Independence to Colonial Peoples which asserted the ending of colonial domination of one people by another as a mandatory norm of modern international law.

Yet, the newly independent African and Asian states feared the very doctrine that led to their creation. These states were the creation of imperialist design which often brought together peoples of wide ethnic and religious diversity for the convenience of the imperial power. The straight boundary lines of African states has tales to tale of imperial intentions to carve up a continent as if it were a cake. Many Asian states, Ceylon included, brought together previously existing kingdoms under one rule, without regard to history, culture or religion. The largest states of Asia, India and Indonesia, brought together large kingdoms of the past and peoples with distinct cultures and histories.

The picture was repeated in Africa. These states then saw the doctrine of self-determination as inimical to their continued existence as states with the inherited imperialist boundaries and sought to undermine the force of the doctrine of self-determination. They quickly began to argue that the validity of self-determination was exhausted after decolonisation and that the doctrine had no continuing existence in modern international law. Yet, self-determination had nothing to do with states. It was the movement of peoples which gave it strength and it was an idea founded on justice. As such, it had the vigour to survive this onslaught of the states, which feared that they faced dissolution if the doctrine was kept alive.


Continuing Validity of Self Determination

The Biafran war in Nigeria was one of the first test cases. Punjab in India was another. In both instances, the storm was ridden out. The international community was not ripe for the idea of involuntary secession. The Organisation of African Unity responded to the Biafran war by asserting the territorial integrity of African states and resolving that there was no case for break-up of African states. Punjab was a situation in which India steadfastly denied the right of secession to a minority. Its assertion was based on the fact that if secession was to be permitted it will start the break-up of India according to ethnic lines. Yet, Pakistan had earlier been born due to the partition of India.For the second time, another state, Bangladesh, was born out of a self-determination struggle of the Bengali people. There was a lingering view that had to be accommodated that ethnicity did matter, particularly if it was the basis of discrimination or destruction of culture and life. There was an obvious need for rethinking. Bangladesh and Eritrea, which seceded from Ethiopia, accelerated the idea that the old law on the subject had to be rethought.


Philosophical Impediments to Right of Secession

The rethinking was impeded not only by the newly independent states of Africa and Asia which resented a doctrine which may lead to their fragmentation, but by prevailing Western political theories relating to human rights. Western liberalism has always emphasised the promotion of individual liberties and not concentrated on group rights or the rights of peoples. That tradition held that if individual rights were protected, other values will flow in accordance with the choice of individuals. This theory concentrated on the protection of the civil and political rights of persons in the belief that if these were guarantees ethnic and racial groups which consisted of individuals in any case will not have any grounds of complaint. The state which guarantees these rights should not be subjected to claims of secession by ethnic groups living within it.

The Canadian Supreme Court's rejection of the right to secession of the French speakers in Quebec was firmly grounded on this reasoning. The Court's view was that there was no evidence of discrimination against the French in Canada and therefore, there was not basis for the claim of secession. It is interesting to note that successive Sinhalese governments in Ceylon have fed this Western system in various ways.

They have packed their administrations with sufficient Tamil stooges in order to show that there is no discrimination against the Tamils. They have had human rights commissions which have not remedied violations and commissions for missing persons which are shams. They have tried but never convicted soldiers who have killed and raped. These hoaxes unfortunately have kept the Western states in the delusion that the government is doing what it can to maintain human rights when the contrary has demonstrably been the case. Perhaps, the Western states found it convenient to believe these hoaxes so that they could claim to have cleans consciences, for it is unlikely that the sophisticated embassies they maintain in Colombo were unaware of the true picture. The Sinhalese government has played the system well. The tide however is turning. It is time now for the Tamils to exploit the rapid changes in the system to their advantage.

    The Western liberal tradition emphasizing individual human rights is on the wane, as it comes increasingly to be recognised, even in the West, that there is a case for the protection of the rights of linguistic and religious groups within societies. Thus, the 1991 Proposal for the European Convention on the Protection of Minorities clearly acknowledges the collective dimension of the rights of ethnic groups. As Western societies become multi-ethnic, the emphasis on individual rights continues to remain but there is also an increasing awareness that ethnic rights have to be protected. The Western tradition that has remained impervious to group rights may now be shifting. This may portend a greater acceptability of the right of secession by states accustomed to the liberal tradition and make them more aware of the need for the assertion of group rights.


International Law and Ethnic Discrimination

The modern dilemma of international law is to ensure that the international state system remains unaffected through the assertion of the principle of territorial integrity but at the same time ensure that the rights of ethnic groups within states are protected. This was done in the Resolution on the Friendly Relations between States which effectively preserves the territorial integrity of states but provides that this is subject to the proviso that all peoples within the state are treated equally.

Territorial integrity is premised on the equal treatment of the ethnic groups within the state. It is implicit that where an ethnic group is not provided equality, it has a right to assert its claims to equality and ultimately to secession. International law has thus reconciled notions of self determination, equality of peoples and territorial integrity. It has done so, firstly by giving the state the right to its integrity by ensuring that all people are treated equally and secondly by giving the right to secession to ethnic groups as a sanctioning right in situations where equal treatment is not forthcoming.

So a state like India, on this model, need never fear secession as it ensures through its federal structure as well as through meaningful equality guaranteed by a vigourous Supreme Court a system of individual and collective rights that are the envy of any state. The holding out the bogey that if Eelam were to be created, it will set off a domino effect of secessions in India is an inexactitude. The creation of Bangladesh did not result in such an effect and there is no reason why the creation of Eelam should as long as India preserves her democratic model of federalism.This enables all its diverse ethnic groups a share in her political and cultural life and revels proudly in the diversity of her religions, cultures and peoples.

    Events have moved rapidly on this front in the 1990s. Whereas one had to struggle to find instances of secessionist claims in the past, they had become frequent in the last decade of the twentieth century. The dissolution of the Soviet Union gave rise to many states largely based on the ethnicity of their people. The break-up of Yugoslavia led to harrowing miseries and to much rethinking on the issue of secession. Czechoslovakia broke in two. The idea that ethnicity remained a potent force in modern international relations was demonstrated. That the preservation of states is not a value in itself gained much momentum as a result of these events. The applauded destruction of East Germany by its unification with Germany demonstrated that states do not exist for themselves but to fulfil the desires of people within them. The notion of territorial integrity diminished in vigour in just a few short years. We have to just hang on until these trends really take hold. When these trends get stronger with time, the cause of Eelam will also be strengthened.

    It is in the context of these developments that the Tamil struggle for Eelam has to be analysed. These are trends that propagandists for Eelam must harness and utilise in order to further their objectives of ensuring the furtherance of the cause of Eelam. Arguments that favour Eelam in the context of modern tendencies emerging in the international law of self-determination must be prepared and advanced. Some of these arguments are set out below.

1.    The original self-determination in Ceylon in 1947 was flawed.

When the British gave independence to Ceylon in pursuance of the right of colonial self-determination, they should have ensured at the least, there was adequate protection of the rights of the Tamils if not a restoration of the status quo which existed before their conquest of Ceylon. At the time of their conquest, the Tamil homeland was administered separately and prior to European colonisation, there was a separate kingdom in the Tamil homelands. Self-determination imposed a duty to restore the status quo. The British did not satisfy the duty though they were conscious of it when they devised the unsuccessful technique of minority protection in the Soulbury constitution. The self-determination granted Ceylon was therefore flawed and should be set right. The responsibility for this is with Britain and is owed to the Tamil people. (The authority for this viewed is canvassed in a longer article on the subject). The way of setting it right is to recognise the right of the Tamil people in Ceylon to self-determination.

2.    The Persistent Discrimination of the Tamils gives rise to a Right to Secession.

It has already been pointed out that the right to self determination does not arise ordinarily in states which have minorities, except where such minorities have suffered heavy deprivation. Thus, in India, where constitutional safeguards of minority protection exist in a meaningful way, there can be no right of self determination in the minorities, simply because the Central government forestalls this possibility by providing every avenue for all minorities to secure their cultural identity and political aspirations. The situation is otherwise in Ceylon, which has been in the vicious grip of Sinhala-Buddhist chauvinism which has found it necessary to strike at the Tamils in order to ensure that there is a base for their own ethnicity, which is disparate and doubtful.

The Sinhalese, being a polyglot people many of whom came to the island successively as fisherman, cinnamon peelers and workers from other parts of Asia, need to badger the Tamils to establish an identity for themselves. Quite apart from resorting to contradictory fictions such as Aryan roots and the specially favoured people of the world renouncing Buddha, they have sought to forge their nationhood through the hatred of the Tamils.

This has manifested itself not only in discrimination of the Tamil people and other minorities, such as the Muslims and the Catholics, through the law but by the periodic unleashing of violence against the Tamils in the earlier years of independent Ceylon followed by the incessant bombings of the innocent civilians in later times. Tamil youths have been routinely rounded up, tortured and killed. Tamil women have been raped and murdered. These incidents have been well documented in the reports of Amnesty International, Human Rights Watch and other human rights organisations.

    The Tamil politicians have tried to assert their rights through peaceful and democratic means. Failure of such assertions led to non-violent protests in the Ghandian manner. The response of the Sinhalese government was to unleash terror and violence upon those who participated in these non-violent protests, indicating perhaps that the movements such as those of Ghandi and Martin Luther King can succeed only if they are directed at civilized governments.

All that the Tamils received for their efforts was an army of occupation sent to their homelands to repress, pillage and plunder. In these circumstances, there can be little doubt that after all peaceful methods of redressing inequalities had failed, a right to self-determination arose in the Tamils.

In the Vaddukoddai Resolution (1976), the elected representatives of the Tamils called for a separate state for the Tamil People and stated that the Tamil youth had the right to wrest such a state by any means whatever. Since a right to secession in international law had matured by now, this political declaration was in accord with international law which recognised that self determination may be claimed by a minority which had failed to redress its legitimate rights through democratic means. The ongoing violent assertion of the right of secession is fully in accord with international law.

    The war for secession has been going on for over seventeen years. The war, being conducted in pursuance of the right of secession is a war between two peoples and must be characterized as an international war. The Sri Lankan government is in error in regarding the war as a civil war. The Sinhalese government has not been able to end it militarily. The LTTE has fought the war along conventional lines and has followed the rules of warfare whereas the Sinhalese government has constantly bombed the civilians it claims as its citizens in contravention of all rules of international warfare and of humane considerations. The issue that now needs to be considered are the ways that can be employed to end this war.


Means of Settlement

It is necessary that as the war goes on the possible avenues of peace be explored. The war is with the Sinhalese chauvinists who have employed the rural Sinhalese youth to fight a war that they do not want to fight if not for economic need of the salaries promised. It is not a war with the Sinhalese people.


The first suggested solution is devolution. It is the favoured solution of the third states as it preserves the unitary state in Ceylon. It is also the solution advanced by the present Sinhalese government. But, it is not an acceptable solution to the type of situation that prevails in Ceylon at the moment. Devolution works as a solution where it takes place prior to violence between the contending communities. The devolution in the United Kingdom will work simply because it is in anticipation of any future problem that could arise between the different ethnic groups. In Ceylon, the situation is otherwise. Devolution may have worked when initially tried out in the Bandaranaike- Chelvanayagam and Senanayake-Chelvanayagam pacts. Both, were scuttled by Sinhalese racists. The Buddhist priests who are still active were leading antagonists of both pacts. Since then, the violence between the ethnic communities has escalated to war-like proportions. In that context, after the flowing of much blood, there can be little prospect of devolution being successful.

 History shows that devolution agreements have been reversed by the dominant group. It was tried out in Ethiopia and the Sudan and their examples show that unless internal power balances exist, they cannot succeed. Wars in both these states were recommenced after a short while. In the Ceylonese situation, Sinhalese chauvinism has shown itself to be thoroughly repressive and averse to any settlement that recognises the rights of the Tamils. The Tamils are unlikely, in turn, to settle for what was contemplated in the 1950s after having suffered such agony. Having taken up arms, the Tamils will never consent to devolution as the solution to this problem.

2.    Confederacy.

This solution was advocated by the Chief Minister of Tamil Nadu as well as by a former US ambassador to Ceylon. A confederacy must be seriously considered. It is an association between two equal people. The making of a confederacy recognises the distinctness of the Tamil people and their homelands. It also will lead to the demarcation of the boundaries of the Tamil homelands in a constitutive document. These are gains to be had. It will bring the war to an end and ensure that confederate arrangement works as there is the threat of the resumption of war.

The Tamils should never lay down arms so that this could be ensured. If war is to recommence, there is still the fact that the borders of the Tamil state would have been drawn up in a recognized manner. There will be a constitutional document which will draw up the manner in which power is to be shared. This would usually involve matters such as the conduct of foreign policy, the regulation of currency and other common factors being controlled by the joint government, leaving all else for decision by the two autonomous governments. It is unlikely that the Sinhalese government will accept this reasonable proposal.

    Strategically, confederation may be considered for the reason that it gives the Tamil homelands clearly defined borders and creates a breathing space for some time. Generally, confederations, as solutions, have not worked. It was suggested in the Vance-Owen Pact for Yugoslavia but never got off the ground. Confederations have generally not worked as solutions to ethnic crises.

3. Secession

The best solution is the creation of Eelam. This does not require any formal legal act. The mere fact that territory has been consistently held will create Eelam. As of now, Eelam, exists as a de facto state. The Sinhalese government has not been able to assert physical control over the areas claimed as the traditional homelands of the Tamils. Mr Pickering, the United States envoy, has said that the international community will not recognise Eelam. But, this is not a precondition. Many states exist without such recognition. China did quite alright without American recognition for a long time. Taiwan does flourishingly well without recognition. Eelam will similarly survive. But, recognition will come eventually.

Already, foreign states regard Eelam as an entity for they meet with representatives of Eelam for peace talks and engage in other diplomatic initiatives. The de facto existence of Eelam is a present fact. The conversion of it into legal status will be furthered by evolution of the law. For, secessionist movements are on the rise. As Aceh and Irian Jaya in Indonesia, Chechnya in Russia and other movements accelerate, international law will have to move rapidly to recognise the real problems these movements present and move away from its stance that favoured existing states. Eelam will benefit from these international trends. In human affairs, the effluxion of time solves many things in a manner that promotes justice. The cause of Eelam is a just and change will come which assures its success.


What Expatriate Tamils Can Do on the Legal Front

The question must be raised as to what expatriate Tamils can do on the legal front. The extent of the relief and other work for their kin is indeed praiseworthy. But, the identification of the legal measures that could be taken will promote the struggle for Eelam further. Some thoughts are offered so that the struggle for Eelam could be enhanced through legal means as well.

1.    Promote the right to secession.

As the struggles of other oppressed people succeed, so will the struggle of the Eelam people. In the colonial age, it is the success of some states like in India and Kenya for their independence which resulted in the freedom of the other colonies through the uniform application of self-determination. Likewise, if the struggles of the Palestinians, the Chechnyans and others like them will succeed, the right to secession will come to be established more firmly than it is now. Though at present, there are precedents such as Bangladesh and Eritrea, these precedents should increase for the proposition relating to secession being a right becomes clearer. Linkages must be formed with all the people struggling for their homelands so that their causes could be advanced in solidarity.

2.    Address the liberal opinion among the Sinhalese.

If peace comes, it should last so that future generations of Tamils and Sinhalese could live amicably without bloodshed. It is necessary for this reason to start addressing the liberal opinion among the Sinhalese who may constitute the silent majority. They do not wish to send their young to this useless war and desire peace. It is necessary to address them and this could be done more effectively from abroad.

3.    Institute actions for war crimes against travelling politicians and military leaders.

The recent case against Pinochet in England demonstrates that courts in England are not averse to the trial of war criminals and torturers who operate in other states. More than the English courts, the courts in the United States have a well-settled course of litigation on similar lines and there is a better statutory basis for such actions provided in American law.

It is clear that there is an enormous amount of torture that has taken place against Tamil civilians and horrendous war crimes have been committed against the Tamil people. Incidents such as the bombing of the Navaly Church, the Chemmani massacres, the rape and killing of several Tamil girls are well-documented. It is necessary to ensure that more evidence is collected and the persons directly responsible as well as in command responsibility are identified. The President of course has command responsibility. It is necessary to select a victim or a kin of the victim whose case is well supported by evidence to bring the suit. Already, there are signs that legal action is beginning to hurt.

A former soldier was reportedly denied asylum in Australia by the Australian courts because of his involvement in the massacre of Tamil civilians. There was a recent case in Germany involving the rape of a Tamil girl. But, these are cases that indirectly have exposed the existence of torture and atrocities committed by the Sinahalese government. A more direct action before the courts of a Western state will ensure that documentary evidence is presented to a court.

This will result in a finding that could be used as a precedent to convict other army officers as well as political leaders. Such actions will have an immediate impact on the situation in Ceylon. There will be embarassment created for the government and deterrence created against the politicians and soldiers in their murderous campaign against the Tamils.Most of the Sinahlese leaders and top army men have the proceeds of their corruption stashed away in European banks. They will think twice before engaging in anti-Tamil campaigns.

The least that the lawyers of Eelam living abroad can do is to take up this challenge and provide a network around the world committed to the tracking down of the Sinhalese who committed atrocities against the Tamils. There were Jews who did this successfully. This is one way in which these lawyers can help in the protection of their bretheren in Eelam and further the cause of Eelam.


Mail Us Copyright 1998/2009 All Rights Reserved Home