by
Professor
M.
Sornarajah,
Centre
for
Petroleum
&
Natural
Resources,
University
of
Dundee,
Scotland
The
Liberation
Tigers
of
Tamil
Eelam
(LTTE)
have
advanced
proposals
regarding
the
creation
of
an
Interim
Self-Governing
Authority
(ISGA)
for
the
NorthEast
of
the
island
of
Sri
Lanka,
so
that
an
effective
administration
could
be
set
up
in
that
area.
The
aim
is
to
ensure
that
the
ISGA
would
be
able
to
meet
the
urgent
humanitarian
needs
of
the
people
of
this
war-ravaged
area.
The
carefully-crafted
instrument
approaches
the
matter
without
any
rancour
and
in
a
professional
manner,
dealing
only
with
issues
necessary
for
the
restoration
of
normalcy
to
the
area.
The
basis
of
the
proposals
lies
in
the
fact
that
the
LTTE
presently
controls
over
75%
of
the
territory
of
the
NorthEast.
This
territory
has
been
described
as
constituting
the
"traditional
homelands
of
the
Tamils"
in
documents,
such
as
the
Indo-Sri
Lanka
Accord,
to
which
the
Government
of
Sri
Lanka
(GOSL)
is
party.
The
LTTE
has
already
set
up
an
effective
administration
in
this
area.
It
is
axiomatic
that
legal
consequences
flow
from
the
fact
that
a
territory
has
a
definite
population
within
a
well-defined
boundary
and
is
subject
to
the
control
of
an
administration
other
than
that
of
the
state
of
which
it
was
earlier
a
part.
The
LTTE
has,
in
fact,
claimed
less
than
what
it
could
claim
on
the
basis
of
this
factual
situation.
It
has
merely
focused
on
the
urgency
of
the
situation
that
calls
out
for
the
establishment
of
an
administration
that
is
seen
as
legitimate
by
the
international
community
so
that
the
much-needed
task
of
reconstruction
and
rehabilitation
can
take
place.
The
provisions
of
the
ISGA
make
this
abundantly
clear.
The
provisions
focus
on
the
tasks
of
reconstruction
and
rehabilitation,
dispensing
with
any
rhetoric
about
separation
or
secession.
The
legitimacy
of
the
ISGA,
though
quickly
secured
by
the
acceptance
of
the
proposals
through
negotiations
with
the
GOSL,
may
be
established
through
other
means.
If
the
GOSL,
consistent
with
past
patterns
of
Sinhalese
governments,
is
not
willing
to
negotiate
on
the
basis
of
the
ISGA
proposals,
other
avenues
of
legitimacy
to
establish
the
ISGA
have
to
be
explored.
It is evident that international law has now evolved to accept the fact that, in such situations as exist in the NorthEast, legitimacy attaches to the transactions that have to be made in the course of ordinary life. Thus, commercial transactions that are made in such territories have been considered legitimate and enforceable. Likewise, ordinary transactions such as marriages and the making of wills are recognized by foreign courts. As Lord Wilberforce put it in the Carl Zeiss Stiftung case, both in English and American law, "the courts may, in the interests of justice and common sense, give recognition to the actual facts or realities found to exist in the territory in question." (Carl Zeiss Stiftung v Rayner and Keeler Ltd [1967] 1 AC 853).
Likewise, an American court stated in Upright v Mercury Business Machines 213 NYS (2d) 417 (1961) that an unrecognised government could nevertheless have "an existence which is cognisable." There have been many cases decided by English and American courts approving such propositions.
The
theory
of
the
law
in
this
area
has
advanced
by
leaps
and
bounds,
giving
a
sufficient
status
to
the
entity
in
control
of
a
territory
to
set
up
an
administration
in
the
territory
on
the
basis
of
the
pure
necessity
to
do
so,
as
the
interests
of
the
people
in
the
territory
necessitates
such
a
course.
The
legitimacy
of
such
an
administration
does
not
depend
on
recognition
by
other
governments
or
states,
but
proceeds
from
the
actual
reality
of
an
existing
administration
and
its
effectiveness.
The
gap
between
reality
and
its
legal
position
is
quickly
filled
through
the
recognition
of
the
real
situation
as
legitimate.
The
proposal
for
the
establishment
of
an
ISGA
in
the
NorthEast
is
stronger
by
far
than
in
other,
similar
cases.
Its
strength
proceeds
from
the
fact
that
the
events
that
gave
rise
to
the
territory's
administration
are
propelled
by
the
doctrine
of
self-determination.
A
people
have
a
right
to
decide
their
future
for
themselves.
In
the
case
of
the
Tamils,
who
had
lived
in
a
separate
state
prior
to
conquest
by
the
British,
decolonisation
should
have
resulted
in
the
restoration
of
their
pre-colonial
status.
Instead,
they
were
left
in
a
united
state
in
which
they
were
a
suppressed
people,
subjected
to
discrimination
and
violence
by
the
government
of
the
united
country.
The
denial
of
equality
and
protracted
violence
gives
rise
to
a
right
to
secession.
The
Canadian
Supreme
Court,
in
the
Quebec
Reference,
clearly
stated
this
proposition,
when
it
recognised
that
in
situations
of
discrimination
and
oppression
and
the
refusal
to
address
the
situation
through
measures
of
internal
self-determination,
a
right
of
secession
could
mature.
The
longer
the
GOSL
prevaricates
on
the
ISGA
proposal,
the
clearer
becomes
the
case
for
secession,
for
it
demonstrates
that
the
GOSL
is
not
even
prepared
to
discuss
the
possibility
of
a
settlement
that
is
based
on
the
existing
reality.
This
is
so,
particularly
in
view
of
the
fact
that
the
LTTE
has
already
announced
that
a
solution
in
the
context
of
a
united
Sri
Lanka
would
not
be
ruled
out
in
the
negotiations.
The ISGA, it must be reiterated, is not based on secession. The LTTE has announced that it is willing to consider solutions within the context of a united Sri Lanka. What the ISGA seeks is an interim solution that meets the humanitarian urgency of the situation in the NorthEast. Since the previous government had announced that it would negotiate on the basis of the ISGA and Mrs Kumaranatunge has off and on made similar announcements, it must be understood that there is sufficient support for the ISGA on both sides. In any event, as the LTTE has control and effectiveness over a large part of the NorthEast, it has the legitimate right to establish an administration in NorthEast.
Therefore,
where
the
GOSL
stalls
a
negotiated
settlement
of
the
ISGA,
pending
a
final
settlement,
it
would
be
proper
in
legal
terms
to
establish
an
administration
on
the
basis
of
the
ISGA
Proposals
without
the
GOSL's
involvement.
It
is
evident
that
Mrs
Kumaranatunge
has
engineered
a
situation
that
ensures
her
grip
on
power
and
prolongs
the
ethnic
crisis
-
on
the
basis
of
which
the
Banadaranaike
clan
and
other
ethnic
entrepreneurs
have
been
able
to
maintain
their
hold
on
power.
The
people
of
the
NorthEast
should
not
have
to
suffer
as
a
result
of
such
capricious
politics.
As
the
necessities
involved
in
the
situation
require
action,
the
LTTE
would
be
fully
justified
in
setting
up
an
administration
on
the
basis
of
the
ISGA
Proposals,
on
the
basis
either
that
it
would
be
approved
in
the
future
or
on
the
ground
that
its
control
of
the
territory
legitimizes
the
setting
up
of
such
an
administration.
As
much
as
it
has
set
up
an
administration
in
the
NorthEast
at
present,
it
can
alter
that
administrative
set-up
so
that
it
accords
with
the
ISGA
Proposal.
The
ISGA
does
not
seek
to
give
the
LTTE
anything
more
than
what
they
already
have
in
their
control.
Technically,
in
terms
of
the
law,
they
could
establish
any
administration
they
please
and
maintain
it
by
force
of
arms.
To
their
credit,
that
is
not
what
the
LTTE
seeks.
The
LTTE
has
demonstrated
that
it
has
the
necessary
wherewithal
to
deal
with
any
type
of
GOSL
government.
History
demonstrates
that
the
type
of
war
that
is
taking
place
in
Sri
Lanka
cannot
be
won
by
the
government.
Certainly,
not
against
such
a
formidable
entity
as
the
LTTE.
Yet,
the
LTTE
seeks
peace.
The
opportunity
must
be
taken.
Sinhalese
leaders
have
lost
other
opportunities
for
peace
so
that
their
own
careers
and
that
of
their
progeny
could
be
advanced.
For
once,
it
is
to
be
hoped
that
they
will
seize
this
opportunity
for
peace.
Otherwise,
for
generations
to
come,
an
unhappy
island
will
be
mired
in
strife
from
which
the
few
entrenched
families
and
military
big-wigs
will
profit.
As indicated, the LTTE has the right to set up the ISGA unilaterally. It is best for the island as a whole that the process should be negotiated for the two communities have to cooperate for peace to be established. One can only hope that the Sinhalese people are not continuously misled by their chauvinist leaders into a precipitous course towards war and that they ensure that the way to peace that the LTTE has shown is accepted. This will enable a lasting negotiated solution to be reached.
The international community, in turn, should accept the ISGA, even if it is not achieved through a negotiated process. If unilaterally created, the ISGA will still have legitimacy. The unilateral establishment of the ISGA would be unlike the unilaterally-created regime of the white supremacist government of the old Rhodesia which was decried by the whole of the international community. It is unlike it simply because it has the approval of the vast majority of the Tamil people in the NorthEast, who have voted time and time again for processes that seek to establish self-government. Its legitimising force is the principle of self-determination, which is a basis organizing principle of the international community. By denying a legitimate proposal of the LTTE, the GOSL has demonstrated that it continues to flout the right to self-determination of the Tamil people.
The international community is clearly beginning to accept this position. The existing administration in the NorthEast is already visited by ambassadors of different states who have explored a variety of situations with representatives of the LTTE. The changing norms of international law justify the making of such contacts and the extending of the hands of the international community to any existing structure of effective government in the area so that the people in the territory can be provided much-needed assistance.
The World Bank and other international institutions also proceed on this basis. The law has rapidly changed on these matters. If the GOSL wants to continue to have a meaningful role and prevent the exercise of the ultimate right of secession, it would be wise to participate in the process of setting up the ISGA. The longer it delays, the greater would the justification in terms of law for the LTTE to set up the ISGA on its own. The LTTE already has an administration. All that it has to do is to make that administration conform to the ISGA Proposals. If this were to happen, the schism between the two communities on the island would widen further. It is best that, before this happens, the GOSL cooperate with the LTTE in setting up the ISGA.
###
Posted July 1, 2005