Dharshan Weerasekera

The TNA Manifesto published on 26 July 2015 reiterates the demand for a Federal arrangement of Government in Sri Lanka.  This is not surprising.  The TNA’s main constituent, the Illangai Tamil Arasu Kadchi (ITAK) has been demanding a ‘Federal’ system since the late 1940’s.

The United States and India, meanwhile, have explicitly stated that a permanent solution to the ‘national problem’ in this country will have to involve, in one way or another, a ‘Federal’ arrangement.  This no doubt makes the Eelamists confident that, if they play their cards right, they may finally realize their dream of a separate State.

In this article, I do four things.  One, explain what I consider to be the Eelamists’ current game-plan; two, explain the significance of the ICJ’s (International Court of Justice) ruling on Kosovo independence to the aforesaid plan; three, briefly explain the facts and reasoning behind that ruling; and finally, suggest some counter-measures.

The Eelamists’ game-plan

In my view, the Eelamists game-plan is this: under the guise of a ‘Federal’ system, they want to set up the ground conditions for a Confederation, that is, a loose union of semi-independent States, with the distinguishing characteristic that each unit has the right to unilateral secession.  The following is how I think they will try to accomplish the above.

1. The Sinhalese majority will never consent to a ‘Federal’ arrangement of Government because they consider, quite rightly, that it will be a stepping-stone to a division of the country. Therefore, the Eelamists will increasingly refrain from using the word ‘Federal,’ and instead use phrases such as ‘maximum devolution,’ ‘self-rule,’ ‘internal self-determination,’ and so on, to describe what they want.

2. In conjunction with the demand for ‘maximum devolution,’ ‘self-rule,’ ‘internal self determination,’ etc. the Eelamists will give the Sinhalese a guarantee that, whatever arrangement of devolution is eventually reached, it will be within ‘a united and undivided Sri Lanka.’

It should be noted that the above guarantee, or assurance, is given in the TNA’s present manifesto.  In its section titled, Our Stand on a Political Solution,” after enumerating the various proposals, including on Federalism and a merger of the Northern and Eastern Provinces, one finds this:

‘All that has been stated above shall be enacted within the framework of a united and undivided Sri Lanka.’ (TNA Manifesto- Full Text, www.colombotelegraph.com, 26 July 2015)

3. Next, the Eelamists will get their local agents to sell the above plan to the Sinhalese masses. Of course, their target is not the hardcore Sinhala-Buddhists, who whey will never be able to persuade.  Instead, they will target the ‘floating voter,’ the intellectual classes and the so-called ‘Moderate’ Sinhalese, and certain segments of youth.

4. If successful in step ‘3’ above (given unstinting support that will no doubt pour in from the United States and India, there is no reason to suppose they will fail) the final step will be to obtain a formal agreement from the Government establishing a semi-independent or autonomous State encompassing the North and East or portions thereof.

Then—and this is where the Kosovo ruling comes into play—the Eelamists will move for the coup de grace:  the TNA, or whatever entity formally signed the agreement with the Government, will reconfigure itself into some other organization, claim that they are no longer bound by the pledge to honor the unity and territorial integrity of Sri Lanka, and demand independence.

I am not suggesting that the U.S. and India will immediately endorse the aforesaid declaration of independence.  But, as far as the U.S. and India are concerned, they will have accomplished all their aims:  they will have the capacity to perpetually blackmail Sri Lanka into doing everything they want, under threat that any reluctance or recalcitrance on Sri Lanka’s part will be rewarded with immediate support for Eelam independence.

As for the Eelamists, lack of a formal recognition of independence will not matter very much to them either.  They will have a de facto State, including secure borders, control over emigration and immigration, capacity to solicit and receive direct foreign investment, and so on, along with the right to unilateral secession, if and when they choose to exercise it.  In short, Sri Lanka will be a divided country in all but name.

I shall now turn the facts and reasoning behind the ICJ’s Kosovo ruling, to show how it helps the aforesaid plan.

The ICJ’s Kosovo Ruling

To the best of my knowledge, the facts and reasoning behind the ICJ’s Kosovo ruling are as follows.  After the NATO-led bombing campaign against Serbia in 1999, Serbia withdrew from Kosovo, and left it to the care of the United Nations.  The plan at that time was for the U.N. to administer Kosovo for a certain period, to develop provisional institutions of self-government, and, in the future, under a ‘final status agreement’ to relinquish control over Kosovo to the Kosovans.

The Security Council by resolution 1244(1999) established the ‘United Nations Mission in Kosovo (UNMIK) to administer Kosovo during the aforesaid interim period, and UNMIK set up the ‘Assembly of Kosovo,’ as part of the ‘provisional institutions of self-government’ the UN had pledged to develop.  Serbia, meanwhile, as one of the prime stakeholders in the dispute, was assured of an opportunity to participate in, and provide input, during the negotiations that would lead to the ‘final status agreement.’

On 17 February 2008, a group of persons, including the President and other members of the ‘Assembly,’ issued a unilateral declaration of independence.  When they signed the declaration, however, they did not do so as members of the Assembly, but as the ‘democratically elected leaders of our people.’ (I shall explain the significance of this in a moment.)

The declaration was immediately endorsed by a number of nations, including the United States, and the nation of Kosovo came into existence.  Serbia, aggrieved by these developments—it had been assured of having a say in the ‘final status agreement’—complained to the U.N. and sought an Advisory Opinion of the ICJ on whether the aforesaid declaration of independence was in accordance with international law.

I shall now turn to the ruling itself.  The court ruled that, the unilateral declaration of independence was in accordance with international law, because, the authors of the declaration were not acting as members of the ‘Assembly’ when they signed the declaration, and international law does not prohibit people from issuing declarations of independence where local constitutional structures do not prohibit them either.

Here’s part of what the Court said:

‘The Court has already held…that the declaration of independence of 17 February 2008 was not issued by the Provisional Institution of Self-Government….It follows that the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institution of Self-Government.  Accordingly, the Court finds that the declaration did not violate the Constitutional Framework.’ (Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, www.icj-cij.org)

In short, if the declaration was an official act of the Assembly of Kosova, it would have violated international law:  since it wasn’t, since the signatories professed to act independently of the Assembly, their act did not conflict with international law.  For good or bad, that was the Court’s decision, and that is the position of the law at present.

As a lawyer, I am by inclination and by training averse to criticizing the work of judges, So, I shall not criticize the aforesaid judgment, but only point out its applications to Sri Lanka.  The advantage the ICJ ruling gives the Eelamists is as follows.

Suppose there is an agreement for ‘self-rule’ signed between the Government and the TNA, which sets up a temporary legislative body, such as a Provincial Council with enhanced powers, to oversee the Province, pending a final-status agreement.’  Suppose also that, in signing the temporary agreement, the Eelamists pledge to honor the unity and territorial integrity of Sri Lanka, and this clause is inserted into the agreement.

In my view, it would be possible for the Eelamists, including members of the said ‘Provincial Council,’ using the ICJ’s Kosovo ruling as precedent, to call themselves by a name like, Representatives of the Tamil people,” and, professing to act independently of the Council, issue a unilateral declaration of independence.  Once this is done, as I have indicated, it is the international community that will decide whether or not the proposed independent State will come into existence, and not the Government.

Counter-measures

I shall limit myself to three general suggestions.

1. Any agreement to grant ‘maximum devolution,’ ‘self rule,’ ‘internal self determination’ or any such thing, must explicitly stipulate that, not just the persons signing the agreement, but everyone else, under whatever guise or appellation they present themselves, are irrevocably bound by the pledge to honor the unity and territorial integrity of Sri Lanka.

(Of course, in an ideal world, it would be a pledge to honor the unitary status of Sri Lanka, but I am assuming that, under relentless pressure by the United States and India, a future Sri Lankan Government will waver on that word ‘unitary.’)

2. The Government must promptly and officially challenge all attempts, either by the international community or the Eelamists, to establish a parity of status between the Government, on the one hand, and an entity representing Eelamist interests—for instance a Provincial Council—on the other.

This would include formally objecting whenever an international body makes ‘mistakes’ such as, say, calling the Northern Provincial Council, the Provincial Government of Sri Lanka.

The purpose of the aforesaid type of challenge is to prevent an impression being created in the international community that, the Eelamists have some sought of Government-in-waiting—similar, say, to the ‘Assembly of Kosovo’—to which substantive powers can be transferred.

3. The Government must assign a team of lawyers to study the ICJ’s Kosovo ruling thoroughly and prepare a report setting out the ways that the Sri Lanka situation is quite different from Kosovo, and therefore the ruling cannot in any way be applied to Sri Lanka, particularly as support for a drive for independence by the Eelamists.

The aforesaid report must then be forwarded to the U.N. General Assembly, as well as the Human Rights Council.  This will put Sri Lanka’s ‘case’ officially on record at the U.N., and pre-empt any attempt by the Eelamists and their friends to invoke the Kosovo ruling for their benefit.

Dharshan Weerasekera is an Attorney-at-Law.  His latest book is, The UN’s Subversion of International Law:  The Sri Lanka Story (Iresma International Publishers, 2015)