“There can be no question of a single group being the "sole representatives" of a people, even though they claim to be their liberators and the repositories of ultimate wisdom. That is naked hegemonism which is the very anti-thesis of self determination.”______________________
by H. L. de Silva
(March 02, Colombo, Sri Lanka Guardian) May I commence by thanking the members of the Citizens Movement for Good Governance for inviting me to be the patron of this association. It is indeed a great honour and an esteemed privilege, considering the valuable contribution your movement has made in the recent past in generating public interest on the need to make radical reforms in our political system and political culture if we are to remain a vibrant democracy.
by H. L. de Silva
(March 02, Colombo, Sri Lanka Guardian) May I commence by thanking the members of the Citizens Movement for Good Governance for inviting me to be the patron of this association. It is indeed a great honour and an esteemed privilege, considering the valuable contribution your movement has made in the recent past in generating public interest on the need to make radical reforms in our political system and political culture if we are to remain a vibrant democracy.
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"In conclusion may I say that while the concept of self-determination is a valuable principle in the sphere of good governance with which your association is immediately concerned, its adoption as a solvent in tacking the ethnic problem in the Peace Process would turn out to be a fatal attraction - as tantalizing in its beauty as the Niyangala blossom, which conceals a poisonous root beneath."
*******************************
The newly elected government of April this year has announced its intention of promulgating a new constitution having regard to many anomalies in the 1978 constitution and also resuming negotiations with the LTTE with a view to restoring peace and a settlement of the ethnic conflict that has raged for nearly a quarter of a century. In the light of these new developments, it seems to me, that CIMOGG may have to somewhat adjust and expand its original focus of attention of addressing problems of public administration with a view to encompassing these questions as well, being national questions at a macro level, having regard to the integral connection which good governance has with constitutional change and ethnic peace.
It may be recalled that it was announced (in the joint statement made by the Negotiators in Oslo in December 2002) that "the parties (meaning the government of Sri Lanka and the LTTE) agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil speaking peoples, based on a federal structure within a united Sri Lanka." I want to share some thoughts with you, in regard to what may appear as the less controversial of the four basic elements involved in this statement, namely that of internal self-determination, even though that subject also has aspects which are hotly debated and strongly contested. I have done so to draw your attention to the close linkage which self-determination has with the question of good governance under a system of democratic government which is your particular concern.
In fact some scholars have advanced the view that in the post colonial context (i.e. after the massive wave of decoloniztion which arose at the end of World War II) the concept of self-determination may be subsumed under the rubric of the general entitlement to effective democratic government by all groups of people living within the territory of a single state (especially Rupert Emerson and Thomas Franck). If this indeed be a valid conclusion and accepted by all concerned, it will save many heartaches for those who agonize over the threatened break-up of our motherland — Sri Lanka.
What is Self-Determination?
Initially, it may be necessary to admit that there is no agreed comprehensive definition of the right of self-determination. But the substantive content of the concept is I think well-summarized in the very first Article of both the international Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This Article states that by virtue of the right, all peoples entitled to it have the right freely to determine their political status and freely pursue their economic, social and cultural development. It is extensive in scope. The several spheres of activity mentioned in this Article cover all significant areas in which those who govern as well as the governed, are closely concerned. If such matters are decided by general agreement (consensus) and are not imposed by an alien authority but freely and voluntarily accepted, despite the subjection to the State’s jurisdiction, this state of affairs may properly be described as "self rule". It contemplates an ethos where there is an effective opportunity to make one’s voice hear, even if it be a lone vice crying in the wilderness.
Since it is a right afforded to all peoples without exception in the international sphere, as well as within the territory of a state, it is essentially democratic in nature and therefore negates the imposition of a dictatorship or a totalitarian regime or an oligarchy of any sort. There can be no question of a single group being the "sole representatives" of a people, even though they claim to be their liberators and the repositories of ultimate wisdom. That is naked hegemonism which is the very anti-thesis of self determination.
The recognition of this freedom in the several spheres — political, economic social and cultural, is conditioned by other facts and circumstances and is not an unbridled freedom. It is to be exercised in the context of certain moral values and ethical principles, embedded in the Covenants which are also recognized alongside the right of self-determination and which underpin the right of freedom to determine one’s destiny. The right of self-determination is derived from such values as the inherent dignity of the human person, justice, equality the observance of human rights and liberties and compliance with essential duties and obligations owed to other individuals (who it must be remembered are themselves entitled to the right of self-determination) and to the community in which they find themselves. It also obligates adherence to the Rule of Law.
So the concept of "self-determination" which prima facie appears to emphasize the element of the "self" may in a sense be misleading and liable to misinterpretation if certain negative aspects alone are considered. It is not conceived of as a wholly self regarding or self-serving activity to the exclusion of the rights of others or as being opposed to the interests of others who too are in a position to make a determination for themselves. From the foregoing description of the concept of self-determination it would be apparent that the ideals and objectives of this Association too have a close affinity with self-determination as envisaged in the two Human Rights Covenants, at least in regard to its operation in the political sphere.
If this interpretation of the concept of "self-determination" were to be accepted by all concerned, there would be no cause for apprehension and misgivings in regard to the continuance of peace and the stability of the state in terms of a settlement founded on the principle of self-determination. The reasons for disquiet, apprehension and forebodings of consequential instability followed by secession are to be found in the other elements of the Oslo Statement which envisage a very different scenario. They are,
(1) Specification of a single ethnic group viz. the Tamil — speaking people (of Sri Lanka) contemplated as the holders of the right or the group of persons entitled to the exercise of the right of self-determination. (It is not clear whether Muslims living in the same area who are Tamil speaking are included. Evidently in the eyes of the Negotiators they were not entitled to separate representation which implied that they had no rights independent of the group styled as "Tamil speaking people"). It assumes the right of a sub-national group to self-determination and the consideration of their rights and aspirations alone.
(2) Specification of certain areas of territory demarcated and identified as "areas of historical habitation of the Tamil speaking peoples". If the expression Tamil speaking peoples also contemplates Tamils of recent Indian origin (commonly referred to as Plantation Tamils) then the territory in question would extend to the Uva and central provinces as well or parts thereof. Since the territory in which the right of self-determination is to be exercised is a part of the territory of the Metropolitan State, it contemplates the exercise of the right of that portion of territory to secede and a remainder state.
(I leave out of consideration the "federal framework" mentioned in the Oslo Statement as it is not directly relevant to the subject).
The two elements mentioned above in the Oslo Statement of Proposals contemplate a concept of "self-determination" which is at variance with the universalist conception of self-determination and exemplifies ethno-nationalist self-determination which is a comparatively recent phenomenon.
For those who think of the right of "self-determination" as representing their dream of the promised land, it may be timely to suggest that they take a does of realism in regard to some of its negative aspects. The words of warning of Robert Lansing (President Wilson’s Secretary of State) in his Confidential Diaries are clear enough:
"The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle into force. What a calamity that the phrase was ever uttered! What misery it will cause! Think of the feelings of the author when he counts the dead who died because he coined a phrase! A man, who is a leader of public thought, should beware of intemperate or undigested declarations. He is responsible for the consequences.” (quoted in Pandaemoniam - U. S. Senator Daniel Patrick Moynihan - pg 83)
The Negotiators of the Government of Sri Lanka have at the Oslo meeting in December 2002 wrongly assumed and in consequence wrongly conceded that a sectional grouping within a State can, independently of the rights of other groups within that state (except in a case of denial of their right of representation in democratic government or in cases of oppression exceeding tolerable levels), exercise their rights of self determination and form an autonomous unit of government. The true position is that the right is one collectively available to the whole population of a territory and is not a right available to a sub-national group.
Rosalyn Higgins (now a Judge of the International Court of Justice) holds this view and has argued thus:
"The concept of the self-determination of peoples requires us to answer not only what self determination means, but the "peoples" to whom it applies. Minority rights are the rights held by minorities....But the right of self-determination is the right of peoples. The Political Covenant gives entirely discrete rights to minorities on the one hand (minority rights, as elaborated by Article 27) and to peoples (self-determination rights as provided in Article 1) One cannot - though many to-day try, lawyers as well as politicians - assert that minorities are peoples and that therefore minorities are entitled to the right of self-determination. This is simply to ignore the fact that the Political Covenant provides for two discrete rights. It also more insidiously, denies the right of self-determination to those to whom it is guaranteed - the people of a State in their entirety" (Quoted in International Human Rights in Context Henry J. Steiner and Philip Alston 1989-90.
The dilemma that would arise in a multi ethnic state such as Sri Lanka is plainly seen in the rival and conflicting claims by groups based on ethnicity in the Eastern Province. If each ethnic group - the Sinhala, Tamil and Muslim were to assert their claims to territory in the Eastern Province occupied by them. It is reasonably clear that the dispute may well end in the truncation and fragmentation of the territorial integrity of the State. If rights were to be determined on the principle of self-determination of a sub-national group and territory partitioned and apportioned to the three groups this would be the result. It would be even worse if the LTTE were to appropriate the whole Province by force farms as part of the claimed homeland of the Tamils without opposition by the government, for fear that the so-called peace would be disturbed. The adoption of the principle of self-determination as a basis for solution cannot solve the problem because the basic ambiguity as to how the ‘self’ is to be ascertained has not been resolved. The International Lawyer, Michia Pomerance has lucidly explained the dilemma thus:
"The necessity of defining the "self" which is to exercise "self-determination" lies at the heart of what is probably the most basic dilemma in the matter of self-determination: recognition of the rights of one "self-entails a denial of the rights of a competing "self". For, in essence, every demand for self determination involves some countervalling claim or claims. The problem many be formulated in several alternative ways. It may be said that the demand for secession or separate determination by one "self" clashes with the claim to territorial integrity and poetical independence put forward by the nit of which the first ‘self is felt to be a part. Or it may be that "self-determination" by the smaller unit conflicts with the "self-determination" to which the larger unit claims to be entitled. Or again it may be contended that there is an opposition between two claims to territorial integrity- that of the larger as against that of the smaller unit. There may also be competing claims by different ethnic groups to the same territorial area. On what objective basis are the claims of the rival "selves" to be weighed?" Self-Determination in Law and Practice (1982) pg 2
The question arises whether the government negotiators were even conscious of the fact that they were entering a legal labyrinth or had they in a cavalier manner conceded the ground in advance?
In conclusion may I say that while the concept of self-determination is a valuable principle in the sphere of good governance with which your association is immediately concerned, its adoption as a solvent in tacking the ethnic problem in the Peace Process would turn out to be a fatal attraction - as tantalizing in its beauty as the Niyangala blossom, which conceals a poisonous root beneath.
"In conclusion may I say that while the concept of self-determination is a valuable principle in the sphere of good governance with which your association is immediately concerned, its adoption as a solvent in tacking the ethnic problem in the Peace Process would turn out to be a fatal attraction - as tantalizing in its beauty as the Niyangala blossom, which conceals a poisonous root beneath."*******************************
The newly elected government of April this year has announced its intention of promulgating a new constitution having regard to many anomalies in the 1978 constitution and also resuming negotiations with the LTTE with a view to restoring peace and a settlement of the ethnic conflict that has raged for nearly a quarter of a century. In the light of these new developments, it seems to me, that CIMOGG may have to somewhat adjust and expand its original focus of attention of addressing problems of public administration with a view to encompassing these questions as well, being national questions at a macro level, having regard to the integral connection which good governance has with constitutional change and ethnic peace.
It may be recalled that it was announced (in the joint statement made by the Negotiators in Oslo in December 2002) that "the parties (meaning the government of Sri Lanka and the LTTE) agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil speaking peoples, based on a federal structure within a united Sri Lanka." I want to share some thoughts with you, in regard to what may appear as the less controversial of the four basic elements involved in this statement, namely that of internal self-determination, even though that subject also has aspects which are hotly debated and strongly contested. I have done so to draw your attention to the close linkage which self-determination has with the question of good governance under a system of democratic government which is your particular concern.
In fact some scholars have advanced the view that in the post colonial context (i.e. after the massive wave of decoloniztion which arose at the end of World War II) the concept of self-determination may be subsumed under the rubric of the general entitlement to effective democratic government by all groups of people living within the territory of a single state (especially Rupert Emerson and Thomas Franck). If this indeed be a valid conclusion and accepted by all concerned, it will save many heartaches for those who agonize over the threatened break-up of our motherland — Sri Lanka.
What is Self-Determination?
Initially, it may be necessary to admit that there is no agreed comprehensive definition of the right of self-determination. But the substantive content of the concept is I think well-summarized in the very first Article of both the international Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This Article states that by virtue of the right, all peoples entitled to it have the right freely to determine their political status and freely pursue their economic, social and cultural development. It is extensive in scope. The several spheres of activity mentioned in this Article cover all significant areas in which those who govern as well as the governed, are closely concerned. If such matters are decided by general agreement (consensus) and are not imposed by an alien authority but freely and voluntarily accepted, despite the subjection to the State’s jurisdiction, this state of affairs may properly be described as "self rule". It contemplates an ethos where there is an effective opportunity to make one’s voice hear, even if it be a lone vice crying in the wilderness.
Since it is a right afforded to all peoples without exception in the international sphere, as well as within the territory of a state, it is essentially democratic in nature and therefore negates the imposition of a dictatorship or a totalitarian regime or an oligarchy of any sort. There can be no question of a single group being the "sole representatives" of a people, even though they claim to be their liberators and the repositories of ultimate wisdom. That is naked hegemonism which is the very anti-thesis of self determination.
The recognition of this freedom in the several spheres — political, economic social and cultural, is conditioned by other facts and circumstances and is not an unbridled freedom. It is to be exercised in the context of certain moral values and ethical principles, embedded in the Covenants which are also recognized alongside the right of self-determination and which underpin the right of freedom to determine one’s destiny. The right of self-determination is derived from such values as the inherent dignity of the human person, justice, equality the observance of human rights and liberties and compliance with essential duties and obligations owed to other individuals (who it must be remembered are themselves entitled to the right of self-determination) and to the community in which they find themselves. It also obligates adherence to the Rule of Law.
So the concept of "self-determination" which prima facie appears to emphasize the element of the "self" may in a sense be misleading and liable to misinterpretation if certain negative aspects alone are considered. It is not conceived of as a wholly self regarding or self-serving activity to the exclusion of the rights of others or as being opposed to the interests of others who too are in a position to make a determination for themselves. From the foregoing description of the concept of self-determination it would be apparent that the ideals and objectives of this Association too have a close affinity with self-determination as envisaged in the two Human Rights Covenants, at least in regard to its operation in the political sphere.
If this interpretation of the concept of "self-determination" were to be accepted by all concerned, there would be no cause for apprehension and misgivings in regard to the continuance of peace and the stability of the state in terms of a settlement founded on the principle of self-determination. The reasons for disquiet, apprehension and forebodings of consequential instability followed by secession are to be found in the other elements of the Oslo Statement which envisage a very different scenario. They are,
(1) Specification of a single ethnic group viz. the Tamil — speaking people (of Sri Lanka) contemplated as the holders of the right or the group of persons entitled to the exercise of the right of self-determination. (It is not clear whether Muslims living in the same area who are Tamil speaking are included. Evidently in the eyes of the Negotiators they were not entitled to separate representation which implied that they had no rights independent of the group styled as "Tamil speaking people"). It assumes the right of a sub-national group to self-determination and the consideration of their rights and aspirations alone.
(2) Specification of certain areas of territory demarcated and identified as "areas of historical habitation of the Tamil speaking peoples". If the expression Tamil speaking peoples also contemplates Tamils of recent Indian origin (commonly referred to as Plantation Tamils) then the territory in question would extend to the Uva and central provinces as well or parts thereof. Since the territory in which the right of self-determination is to be exercised is a part of the territory of the Metropolitan State, it contemplates the exercise of the right of that portion of territory to secede and a remainder state.
(I leave out of consideration the "federal framework" mentioned in the Oslo Statement as it is not directly relevant to the subject).
The two elements mentioned above in the Oslo Statement of Proposals contemplate a concept of "self-determination" which is at variance with the universalist conception of self-determination and exemplifies ethno-nationalist self-determination which is a comparatively recent phenomenon.
For those who think of the right of "self-determination" as representing their dream of the promised land, it may be timely to suggest that they take a does of realism in regard to some of its negative aspects. The words of warning of Robert Lansing (President Wilson’s Secretary of State) in his Confidential Diaries are clear enough:
"The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle into force. What a calamity that the phrase was ever uttered! What misery it will cause! Think of the feelings of the author when he counts the dead who died because he coined a phrase! A man, who is a leader of public thought, should beware of intemperate or undigested declarations. He is responsible for the consequences.” (quoted in Pandaemoniam - U. S. Senator Daniel Patrick Moynihan - pg 83)
The Negotiators of the Government of Sri Lanka have at the Oslo meeting in December 2002 wrongly assumed and in consequence wrongly conceded that a sectional grouping within a State can, independently of the rights of other groups within that state (except in a case of denial of their right of representation in democratic government or in cases of oppression exceeding tolerable levels), exercise their rights of self determination and form an autonomous unit of government. The true position is that the right is one collectively available to the whole population of a territory and is not a right available to a sub-national group.
Rosalyn Higgins (now a Judge of the International Court of Justice) holds this view and has argued thus:
"The concept of the self-determination of peoples requires us to answer not only what self determination means, but the "peoples" to whom it applies. Minority rights are the rights held by minorities....But the right of self-determination is the right of peoples. The Political Covenant gives entirely discrete rights to minorities on the one hand (minority rights, as elaborated by Article 27) and to peoples (self-determination rights as provided in Article 1) One cannot - though many to-day try, lawyers as well as politicians - assert that minorities are peoples and that therefore minorities are entitled to the right of self-determination. This is simply to ignore the fact that the Political Covenant provides for two discrete rights. It also more insidiously, denies the right of self-determination to those to whom it is guaranteed - the people of a State in their entirety" (Quoted in International Human Rights in Context Henry J. Steiner and Philip Alston 1989-90.
The dilemma that would arise in a multi ethnic state such as Sri Lanka is plainly seen in the rival and conflicting claims by groups based on ethnicity in the Eastern Province. If each ethnic group - the Sinhala, Tamil and Muslim were to assert their claims to territory in the Eastern Province occupied by them. It is reasonably clear that the dispute may well end in the truncation and fragmentation of the territorial integrity of the State. If rights were to be determined on the principle of self-determination of a sub-national group and territory partitioned and apportioned to the three groups this would be the result. It would be even worse if the LTTE were to appropriate the whole Province by force farms as part of the claimed homeland of the Tamils without opposition by the government, for fear that the so-called peace would be disturbed. The adoption of the principle of self-determination as a basis for solution cannot solve the problem because the basic ambiguity as to how the ‘self’ is to be ascertained has not been resolved. The International Lawyer, Michia Pomerance has lucidly explained the dilemma thus:
"The necessity of defining the "self" which is to exercise "self-determination" lies at the heart of what is probably the most basic dilemma in the matter of self-determination: recognition of the rights of one "self-entails a denial of the rights of a competing "self". For, in essence, every demand for self determination involves some countervalling claim or claims. The problem many be formulated in several alternative ways. It may be said that the demand for secession or separate determination by one "self" clashes with the claim to territorial integrity and poetical independence put forward by the nit of which the first ‘self is felt to be a part. Or it may be that "self-determination" by the smaller unit conflicts with the "self-determination" to which the larger unit claims to be entitled. Or again it may be contended that there is an opposition between two claims to territorial integrity- that of the larger as against that of the smaller unit. There may also be competing claims by different ethnic groups to the same territorial area. On what objective basis are the claims of the rival "selves" to be weighed?" Self-Determination in Law and Practice (1982) pg 2
The question arises whether the government negotiators were even conscious of the fact that they were entering a legal labyrinth or had they in a cavalier manner conceded the ground in advance?
In conclusion may I say that while the concept of self-determination is a valuable principle in the sphere of good governance with which your association is immediately concerned, its adoption as a solvent in tacking the ethnic problem in the Peace Process would turn out to be a fatal attraction - as tantalizing in its beauty as the Niyangala blossom, which conceals a poisonous root beneath.
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