THE ISGA PROPOSALS:
THE COURSE TO TAKE IN THE FACE OF GOVERNMENT INTRANSIGENCE
by S. Muthu Cumaraswamy
The Liberation Tigers of Tamil Eelam (LTTE) have advanced the proposals regarding the creation of an Interim Self Governing Authority 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 like the Indo-Sri Lanka Accord to which the Government of Sri Lanka 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 could take place. The provisions of the ISGA make this abundantly clear. They focus on the tasks of reconstruction and rehabilitation, dispensing with any rhetoric about separation or secession. The legitimacy of the ISGA, though quickly secured through 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  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 the 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. 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 the 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 events that gave rise to it 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 the 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 taken that there is sufficient support for the ISGA on both sides. In any event, as the LTTE has control and effectiveness of the 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. 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 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 could 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 will widen further. It is best that, before this happens, the GOSL cooperates with the LTTE in setting up the ISGA.
Posted October 12, 2004