Opinion Article

Addressing ambiguity of Right to Self-Determination

[TamilNet, Sunday, 18 October 2009, 00:26 GMT]
The international system is erratic in justifying right to self-determination (RSD) of nations set against right to security of states. All areas of discretion were interpreted against, in the case of Eezham Tamils. As the militant-created de facto state that has been making a case for RSD all this time doesn’t exist in its territory today, democratic political move should create a new de facto situation. RSD can be invoked when peoples of more than one state are involved, but Mr Karunanidhi nullified the opportunity. The option now is not asking for RSD, but exercising it and mandating democratic de facto situation or situations. This is why spelling out the goal of independent and sovereign Tamil Eelam is paramount for transnational governance. Elected country councils enhance meeting the task by structurally involving ‘peoples of many states.’

Ambiguity and erratic application of the Right to Self-Determination:
Professionals in international law are of the opinion that the right to self-determination, as it is understood in the contemporary international system, is not applicable to national questions within a state.

The UN charter mentions it on two occasions: firstly as a right in relationships between independent states and secondly as a right of ‘all peoples’. When it says peoples, it is tend to be automatically interpreted as peoples of recognised states – collectively in every state – and their right of political participation. The mention of peoples in UN charter is thus not favoured for the interpretation to mean identities within a state and their right to self-determination.

Exceptional circumstances for the recognition of self-determination of identities outside of state identity are often discussed, but they are confined to colonial situations, de facto state situations, human rights involved situations such as genocide and situations involving more than one state.

Even though the Eezham Tamils are facing a colonial situation even after the 'independence', it is yet to be recognized as colonial under the given international system. The de facto state Eezham Tamils created has been militarily crushed in the name of fighting ‘terrorism’. UN and powers don’t want to acknowledge the genocidal situation of Eezham Tamils, even though such situations were readily recognised in cases elsewhere. The possibility of the involvement of people of more than one state making it a case for self-determination has been sabotaged by New Delhi, thanks to Mr. Karunanidhi.

In other circumstances there is no mechanism in the international system to invoke the right to self-determination against a state, especially in recent times when right to self-determination is conveniently linked to ‘terrorism’ by states.

In the last two decades the international community found itself ill equipped to counter intrastate conflict because there is no mechanism to pass judgement between a state’s right to security and a nation’s right to self-determination.

The rhetoric of UN member states after 1984 is a living testament to a failure to define self-determination and to determine when the right is applicable, points out experts like Mark Lehman. He advocates a new tribunal-based international mechanism to address the crisis, but concedes that the mechanism will take several years to evolve. 1984 marks the collapse of Soviet Union and along with that the Leninist perceptions of right to self-determination.

Therefore, it will be a high risk if any political organisation of Eezham Tamils harps only on the recognition of the right to self-determination. It will very likely be a legal ploy to imperceptibly nullify the national question of Eezham Tamils and to confine them to the state of Sri Lanka.

The authors of the Vaddukkoaddai Resolution were wise in putting the political foundation legally sound and specific, in which the goal is independent and sovereign Tamil Eelam in the north and east of the island – a restoration of what had been lost in colonial times, by invoking the right to self-determination.

Role of RSD in the negotiation history of Eezham Tamils:
Many Eezham Tamils may now wonder about the role of the right to self-determination (RSD) in the negotiations between militants and the state of Sri Lanka, for nearly 20 years from Thimphu to Oslo.

The induction of RSD as an issue for negotiation was first an initiative of India to facilitate solutions within the united state of Sri Lanka.

All militant groups participated but without abandoning the goal for independence just for negotiation.

At Thimphu in 1985, Mr. Nadesan Satyendra, who then represented the Tamil Eelam Liberation Organisation (TELO), said in a statement that it was not without knowing about the ambiguity of RSD versus Territorial Integrity of the states the Tamils were negotiating.

"The Tamil delegation here at Thimpu asserts a proposition founded on common sense and justice - and in the ultimate analysis all sound law is common sense and justice," Mr. Satyendra said.

“A people who are subjected to an alien people have the inherent right to free themselves from such alien subjugation,” he said bringing out evidences why Tamils are a subjugated people and they have “earned the right to self-determination” as an inherent right.

The Eezham Tamils have more justification in invoking RSD as an inherent right today.

But, despite interpreting and using RSD in favour of the state of Sri Lanka to uphold its unity, India and IC could not make Colombo to come out with viable solutions.

20 years of negotiations failed even after LTTE, at one point, agreeing to ‘explore’ solutions under ‘internal self-determination’, a specific reference to united Sri Lanka.

The space for RSD under de facto state:
A couple of weeks ago TamilNet editorial opinion said that a fresh democratic political organisation now need not consider RSD as the point to begin, but to take up the principles of Vaddukkoaddai, the last full-fledged democratic mandate of Eezham Tamils.

A question is asked in some Tamil circles whether TamilNet is denouncing nearly quarter a century of the history of the struggle and the principles of the negotiation exercises of the militancy from Thimphu to Oslo.

No. But, what has to be kept in mind is that the militants did all that when there was a de facto situation enacted by them. The negotiation history stemmed from the strength and justification of the de facto state situation and the militants were able to experiment negotiation with RSD formulas.

It was not without purpose, Colombo and the powers wanted the de facto situation to be ‘erased to the end.’ They wanted to zero the Tamil strength for negotiation.

But by doing so, they have forced determined Eezham Tamils to seek new kinds of de facto situations for parity in negotiations and realisation of ambitions.

For democratically building a de facto situation, the strength and justification at their best are found in the Vaddukkoaddai Resolution. LTTE never surrendered those fundamentals despite showing willingness to experiment alternatives.

Exercising RSD for a democratic de facto situation:
As said in the Vaddukkoaddai Resolution and as re-insisted by Mr. N Satyendra at Thimphu Talks, right to self-determination is not something that is given by others. Self-determination is assumed by deserving people.

If the international system, as many professionals of international law point out, is defective and erratic in defining and applying right to self-determination, the Eezham Tamils should help the international system by creating a new, democratic de facto situation, for the system to set itself right through fresh considerations.

The international community also should grasp the opportunity provided by the democratic move of Eezham Tamils to attend to the inherent vacuum in the international system in systematically delivering justice in the cases of intrastate conflicts.

International system is evolved through situations. It is not fixed.

But, for this, Tamils have to first assume that they righteously have the right to self-determination and in a de facto way they have to exercise it in creating a de facto situation.

Tamils should not ask for RSD but take it and elect country councils internationally and a transnational de facto government in the diaspora. But such a government, in order to serve the purpose, should make it clear to participants and IC that an independent and sovereign nation-state for Tamils in the island is going to be its goal.

Why the diaspora to initiate democratic de facto situation:
Another question often asked is that in what way the diaspora has authority to act on behalf of the people in the home country. It is also said that the priority is the current plight of people in captivity, which goes without saying.

But as we witness, if the political process doesn’t go side by side, and if delayed, the subjugation of people is going to be confirmed and worse than now, especially under a state like that of Sri Lanka.

Only the diaspora has the free voice to express political aspirations right now.

Above all, an important condition that is applicable to Eezham Tamils, under which the international system could evoke the right to self-determination, is the possibility of making the case as one involving the people of more than one state.

But Mr Karunanidhi collaborated with New Delhi in pre-empting such a case by controlling the uprising of the people of Tamil Nadu and especially by declaring in the state assembly against the aspiration for Tamil Eelam.

“Secession cannot be a domestic matter if it involves peoples who live more than in one state,” says, Vita Gudeleviciute in an article of the International Journal of Baltic Law, observing further that secession happening within a single state can be analysed as a domestic matter, and therefore, outside of international law and the present international law does not recognise 'minorities' as separate peoples and hence precludes from invoking the principle of self-determination.

Had Mr. Karunanidhi either passed a resolution favouring Tamil Eelam in the Tamil Nadu state assembly or allowed the spontaneous feelings of the people of Tamil Nadu to make an effect, the question of right to self-determination of Eezham Tamils would have become a readily valid legal issue for the consideration of the international system.

The only option left for the Eezham Tamils now is to make an international de facto situation. This is why the call is repeatedly made that any move for transnational governance to strictly adhere itself to independence and sovereignty of Tamil Eelam, not sabotaging even the only option available other than another armed struggle.

At another level, a model to have an elected country council is already set in motion in Norway. Such elected councils in countries where Eezham Tamil diaspora live, will strengthen the case for RSD. Perhaps in certain ways they may serve the cause better than the transnational outfit, because elected country councils in a number of states are the official evidences for the involvement of ‘peoples of more than one state.’

The final stand taken by S J V Chelvanayakam:
As the question of Eezham Tamils, handled in an unprecedented way collectively by the international community, is a test case for the future evolution of international system, the world powers are expected to encourage free expression of the concerned people without putting them or the organizers of their polity into any constrains.

It is strange that Mr Karunanidhi recently chose to discredit the Eezham demand as Ekkaa’lam (trumpet), while at the same time upholding the policies of Mr. S J V Chelvanayakam.

Chelvanayakam, a conviction politician who never minced his words, approved the choice of words of the Vaddukkoaddai Resolution, writes A J Wilson:

    “That Chelvanayakam stood unflinchingly for a separate Tamil state was clearly enunciated in the last important statement he made in the National State Assembly, a few months before his death. Speaking on 19 November 1977 at the second reading debate of the Annual Appropriation Bill for 1977, he acknowledged to his listeners how his federal movement had failed to achieve the objective of obtaining the 'lost rights of the Tamil-speaking people'. 'Our ancient people were wise,' he said, and he seemed to fault himself by stressing that they 'had their own kingdom', as if to say that his own FP should at the very start have confronted the proposition of a separate state. He reminded his audience of parliamentarians that the Irish had won 'their freedom... but after centuries of struggle' against the British (he had also often told the Tamil public how a divided Poland had become unified on two different occasions). There was a finality and a finiteness in his conclusion:

    We have abandoned the demand for a federal constitution. Our movement will be all non-violent... We know that the Sinhalese people will one day grant our demand and that we will be able to establish a state separate from the rest of the island...

    Whatever the comfortable Tamil middle classes residing in Colombo said, Chelvanayakam's last testament was that only a Tamil state could protect the Tamil people from repression by the Sinhala state apparatus. When asked by a journalist [Walter Schwarz of the Guardian] how the TULF would achieve its goal, Chelvanayakam replied prophetically: 'We would make such a nuisance of ourselves that they [the Sinhalese] would throw us out.'


External Links:
TamilNation: Thimpu Talks, July / August 1985


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