ERASING THE EELAM VICTORY Part 27 B4
Posted on November 30th, 2021

KAMALIKA PIERIS

The Tamil Separatist Movement says it is entitled to self determination and has the right to set up a separate state. The Tamil Separatist Movement cites the often repeated UN statement which says All peoples have the right to self-determination and by virtue of that right to freely determine their political status and freely pursue their economic, social and cultural development”.

Netherlands said in an opinion to the International Court of Justice, given in 2018 that self-determination was   a part of International law as a right.  Netherlands pointed out that in 1970 UN General Assembly said that the right of self-determination was a fundamental principle of contemporary international law binding on all States.

Unfortunately for the Tamil Separatist Movement, the UN decided that in the first instance only countries under colonial rule have this right to self determination.  UN said in 1952 that member states of the UN must recognize and promote the right of self-determination of peoples of Non-Self-Governing and Trust Territories who are under them.

This was followed by General Assembly Resolution 1514(XV) of December 1960, Declaration on the Granting of Independence to Colonial countries and Peoples.” The Resolution was adopted with eighty-nine Member States voting in favor, no vote against, and nine abstentions.

This Resolution said that it was necessary to bring colonialism to a speedy end. Countries under colonial occupation were entitled to obtain independence.  However, the    Resolution also said that there must be no attempt at partial or total disruption of the national unity and territorial integrity of a [sovereign state.] United Nations General Assembly Resolution 1654 of 27 November 1961 reaffirmed the 1960 resolution. Thus scuppering plans of the Tamil Separatist Movement to create a breakaway Eelam.

This was followed by Resolution 26/25 (XXV) of 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations . This Resolution also said that states must bring an end to colonialism. The establishment of a sovereign and independent State, [or any other state] freely determined by a people, constituted self determination.

But the 1970  Resolution  also declared Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dis­member or impair, totally or in part, the territorial in­tegrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and  possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color”. So no Eelam there either.

In 2018 it was suggested that once the inhabitants of a colonial territory got their independence or whatever, that territory was no longer a colony.  Eventually, once all the colonies got independence, self-determination of colonies will come to a natural end.

The Tamil Separatist Movement was also unable to get any relief from the UN Declaration on Minorities. Asbjorn Eide, Special Rapporteur,   stated in 1998 ‘Insofar as the UN Committee on Protection of Minority Rights is concerned, it would not recognize the right of Tamils in Sri Lanka for self determination

There is a strong body of legal opinion which rejects claims to self determination based on ethno nationalist grounds alone, said HL de Silva. Judge Rosalyn Higgins of ICJ observed that the word ‘Peoples’ means all the people in the territory. This means that minorities do not have the right of self-determination.

 In the Helsinki declaration of 1975, adopted by 35 states constituting the Conference on Security and Cooperation in Europe (CSCE) national minorities were excluded from the scope of self determination. Right was given only to entire populations of sovereign states, said HL de Silva.

But self determination did not disappear. It got a new lease of life. When World War II ended, the ruling powers created new states, where none had existed before. These new states contained groups which had no prior connection with each other. These groups started to kick. Breakaway disputes arose and a new call for self determination arose.

The International Court of Justice (ICJ) was asked to intervene. ICJ found that the right to self-determination was an unsettled issue in international law. There were many differing opinions. ICJ therefore sought opinions from UN Member countries on the matter. Netherlands (2018) said that decolonization was only one aspect of the right of self determination.  The right of self determination extended beyond decolonization and foreign occupation.

Netherlands pointed out that the right of self-determination has been included in several international instruments that did not deal with decolonization or foreign occupation. It  was included in Articles 1 of the 1966 Covenants, General Assembly Resolution
2625, the African Charter on Human and Peoples’ Rights, 1993 Vienna
Declaration and Programme of Action, and Part VIII of the Final Act of the Conference on Security and Co-operation in Europe.

A common feature of these instruments is that they speak of all peoples” and not merely to ‘colonial’ or ‘oppressed’ peoples as the holders of the right of self-determination. This shows the universal and continuous character of the right of self-determination, said Netherlands.

 But there is a reluctance to define ‘people’ observed analysts. States wanted it that way, so that interpretation could change as political priorities changed, replied  other analysts. But some criteria have evolved, otherwise, any group could self-identify as a “people” and demand to secede, replied Netherlands. One such criteria is recognition by a competent international organization, said Serbia.

Netherlands pointed out to the International Court of Justice that self-determination could be achieved through (a) the dissolution of a State, (b) the merger of one or more States, or (c) the secession from a State.   A people may decide to dissolve a State and create two or more States out of it, or allow a group to secede from that State.

International Court of Justice then looked at Secession. International law does not prohibit the secession of a territory from a sovereign State, ICJ observed and requested opinions on this.

Secession is a highly exceptional way of creating States, said Serbia. Consent from the sovereign State has been present in ail the states that arose through secession.International law does not authorize secession without the sovereign State’s consent, agreed Netherlands. Partition of the colonial territory was only permitted if that was the clear wish of the majority of all inhabitants of the territory.  

The Canadian Supreme Court  said that even if the people of Quebec vote Yes to separation at a referendum they still have to negotiate with the people they are going to separate from.

Analysts observed that once independent states are formed and recognized by the international community, it is very difficult to form breakaway – states. There has to be a very strong justification,  such as a long history of separate rule, proof  of  recognition as a separate country, and proof that it was yoked  to another country against  its wishes.  Continued)

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