Legitimacy of territory based on a history dating to pre-colonial times is a concept that has received little international support, because such a concept would establish a precedent that would lead to chaos in Africa and Latin America. This principle is illustrated by Mr. Isaias Afwerki, President of the State of Eritrea, who in an article to the Harvard International Review (Summer, 1995) states: "Eritrea's right to self-determination should not have been controversial in view of the accepted norms of international law. The OAU's (Organization of African Unity) sacrosant principle on the inviolability of colonial boundaries applied squarely to Eritrea's case. Eritrea did not represent an instance of a minority national or ethnic group seeking to secede from a unitary state...". South Sudan, on the other hand according to him "falls within a category different from that of Eritrea in that the South did not have a history of a separate existence from the North during British colonization. The whole of Sudan, including the South, was a British colony until 1956 when the country formally obtained its independence". Furthermore, the International Court of Justice also declared that the concept of the inviolability of colonial boundaries "to be universally applicable" (Lapidoth, 1992, "Sovereignty in Transition"). These internationally accepted guidelines on their own, recognize, accept, and validate the integrity and the sovereignty of a unitary Sri Lanka. Additional justifications based on history become superfluous.

In regard to the question of self-determination, the problem for the international community has been the inability to establish the criteria as to what defines a group that would qualify for self-determination. The distinction between "peoples" and an ethnic group is vital to the issue because it is only "peoples" and not ethnic groups that have the right to self-determination. These ambiguities coupled with the accepted norm that the right to self-determination applies only to colonial situations as stated and repeated in several United Nation Charters, makes the case for the Sri Lankan Tamils weak. In practical terms this planet would not be able to entertain the prospect of granting a sovereign piece of territory to every ethnic group who decided to exercise their right to self-determination. This concept is further strengthened by The United Nations General Assembly Declaration of 1970 Concerning Friendly Relations that the right to self-determination "shall (not) 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...".

The international media never fails to mention that the current conflict is because of a Tamil claim of discrimination by the majority Sinhalese. Signatories to an article titled "Peace, Lies and Ethnic Conflict" who concur with this claim of discrimination, are of the view that the "inalienable right of self-determination" and the exclusive claims to "traditional homelands" are "archaic and redundant notions" (Island International, 19 July, 1995). Some in Jaffna find such views "myopic and masochistic" (Fr. Emmanuel, The Sunday Observer, August 13, 1995), while others are of the opinion that the conflict reflects a social revolution against traditional forms of "domination and oppression" within the Tamil community itself in addition to other stated grievances (Bose, 1994, "States, Nations, Sovereignty"). Despite the Tamil language being given due recognition in 1978, the past language policies continue to be cited as an act of discrimination that justify the current conflict. If discrimination in regard to education, employment, or any other field of activity is cited as sufficient grounds for a separate state, or an autonomous region, by peaceful means or otherwise, every nation-state on this planet will be experiencing conflict, because discrimination exists everywhere. Discrimination is too simplistic an explanation for the current conflict.

If the international perspective does not warrant a separate state based on any of the considerations reviewed, what political arrangement will suit the particular circumstances in Sri Lanka?

The composition of the nation-states as currently formed can be classified into three broad groups. At one end of the spectrum are the nation-states that are homogeneous, and at the other are the nation-states where ethnic groups are diffused throughout the territory without pockets of ethnic concentration. The majority of the nation-states, however, are a mix of the two. They have pockets of ethnic concentration in defined regions, with the rest of the ethnic group diffused throughout the territory. The current instability in the world is due to the resurgence of ethnic groups who live in these defined regions exercising rights that involve territory. If the aspirations of every ethnic group to have their own territory is a prospect that cannot be entertained, what mechanism is available to resolve the problem?

In order to balance the influences between the desire to fulfill aspirations and the integrity and sovereignty of territorial units, two basic approaches are practiced. One approach is based on territory and involves regional power sharing, while the second approach is non-territorial and involves improved governance.

The territorial approach where power is shared between the center and the regions is in the strictest sense represented by the federal arrangements in the United States because federal boundaries are not based on ethnic groupings. Canada on the other hand, was created by the federation of two ethnic groups, namely, the Catholic French and the Protestant English. A territorial approach to resolve the problem in Sri Lanka would be similar to the fragile federation of Canada, and therefore, a certainty that Sri Lanka too would have to face secessionist tendencies as in Canada, hence the dangers of the proposed devolution package. On the other hand, one safeguard against such secessionist tendencies is to retain sufficient power at the center, similar to the provisions in the present Sri Lankan constitution, or as in the Indian constitution, and the veto powers retained by the center as in Finland vis-a-vis the province of Aland.

In theory, regional autonomy appears reasonable, but in practice this approach has not proved to be a satisfactory mechanism to balance the countervailing demands between the center and the regions. The reason being that the process of power sharing within a territorial framework invariably gets clouded by significant distracting issues such as the demand to recognize the special status of an ethnic group as in Canada, and more recently sought by the Tamils in Sri Lanka. Regional autonomy in Sri Lanka would simply amount to separating the antagonists territorially. The sharing of power between the center and the region will be viewed through the myopic lens of ethnicity. The result will be to use the threat of secession as leverage to extract largesse as is currently taking place in Canada. Agreements reached and agreed upon today will prove to be wanting tomorrow as in Canada and Finland, the result being continual dissatisfaction. The territorial approach involves the sharing of sovereignty, and when contentious issues arise, even with one ethnic group regardless of their size, territory becomes the bargaining chip with which the territorial integrity of a whole nation is threatened, a phenomenon the world is witnessing today in Canada.

In human terms, the most disturbing aspect of a territorial approach is the distinction created among the same ethnic group between those who reside within and outside the territory. The territorial approach creates new majorities with a renewed awareness of identity within the region and the rest end up as minorities outside the region, as in Canada, and this is what would happen in Sri Lanka too under regional autonomy, unless the regional division results in ethnically clean and near-homogeneous regions as in the former Czechoslovakia. Such surgically clean ethnoterritories are not possible in Sri Lanka and most other countries. The result is that minorities outside the region experience isolation and a sense and of abandonment from a loss of solidarity. In addition they would be subjected to greater intolerance particularly because of their reduced numbers. This has been the plight of many who had to experience territorial division.

Furthermore, under the proposed territorial approach where Sri Lanka would consist of a union of regions, each region must be equipped with institutional frameworks that function to meet the political and economic expectations in each region. Even if all the regions start out with identical frameworks, the variations in their political and economic performance over a period of time would result in asymmetrical regional development due to the disparities in management skills combined with inherent variations in the natural resources of each region. The result is migration from the less developed to the more developed regions. Asymmetrical regional development is a natural outcome of the territorial approach, and unlike regions with in-built disparities federating by choice as in the United States, Canada, and Switzerland, in the case of Sri Lanka, asymmetrical regional development would be the consequence of an imposed political arrangement. Temporary consolation for the asymmetry may be found in past animosities, but in the long term the accumulation of frustrations are bound to find expression in more violent forms as already experienced in the North as well as the South of Sri Lanka.

These inherent shortcomings in the territorial approach should be recognized along with the fact that the territorial approach, similar to features such as a bipolar world and idealogies such as Communism that were presumed to have been durable, have all lost their relevance.

The opportunity to enjoy full citizenship equally by all, is vital to the stability of a country. Territory by itself does not ensure full citizenship to all. It is only viable institutional frameworks that facilitate the opportunities for full citizenship, even in countries that are territorially divided. At the core of these opportunities for full citizenship are political and economic issues that affect the lives of the citizenry, and in order to address these issues effectively, it is necessary to design appropriate institutional frameworks. In the Sri Lanka context, these institutional frameworks would function best if centralized, because of the inevitability of asymmetrical regional development that would result, if these frameworks were to operate separately in each of the proposed regions. These core issues do not have territorial jurisdictions, except for self-administration. Therefore, conceptually in the case of Sri Lanka, only self-administration should be territorially based and limited to the district. All all other issues, on the other hand, should be centralized.

For instance, all the issues that are of concern to the Tamil community, such as political representation, language, education, employment, and allocation of resources, are political and economic in nature, the jurisdictions of most of which are non-territorial, as in many other countries. Even arbitrary violence invariably reflects the frustrations of unresolved political and economic issues. Therefore, solutions to these issues must be contained in carefully designed institutional frameworks that are both functionally efficient and sufficiently flexible to meet subtle societal challenges. Each issue, whether it is political representation, or whether it relates to economics, must be protected by institutional frameworks to ensure social justice for all the citizens.

For instance, in the field of political representation, several institutional frameworks exist in other countries. On the issue of minority safeguards, Professor David J. Elkins in his book titled "Beyond Sovereignty"(1995) states: "There have been many suggestions about how to deal with this danger in majority rule. Several common alternatives include the following: (1) Requiring special majorities on key issues; that is, requiring more than 50 per cent plus one, such as a two-third majority or even higher; (2) Giving certain groups a veto over certain issues; (3) Letting groups opt-in to certain provisions only if they choose; (4) Letting groups opt-out of certain provisions under specified circumstances; (5) Entrenching defined rights and freedoms so that the minority (or individual) has an area of sanctuary which no majority can violate".

Institutional frameworks such as STABLE GOVERNING COALITIONS between the Malays and the Chinese in Malaysia and in Austria have served them well. Austria also practices the principle of the MUTUAL VETO. Others such as Lebanon rely on the PRINCIPLE OF PROPORTIONALITY not only to political representation but to subjects such as allocation of resources and to appointive government positions. The art of COMPROMISE helped the Belgians to resolve their problems, while others such as the Swiss Federation resorted to the granting of CONCESSIONS (Nordlinger, 1972, "Conflict Regulation in Divided Societies").

The President of the State of Eritrea, Mr. Isaias Afwerki, also finds non-territorial approaches having a unifying influence that can bind multiethnic societies. His approach to resolving issues is "Improved governance in terms of participatory politics that respect the rights of all citizens and constituent national groups, balanced regional development within the state to ensure that national resources are distributed fairly and equitably, tolerance and respect for the minority by the majority, magnanimity in terms of compromise, and the ability to forgive and forget past animosities may be some of the ingredients of a prudent and constructive policy that can unify multiethnic societies" (Harvard International Review, Summer 1995).

These suggested institutional safeguards deal with the collective political interests and concerns of the citizens. In addition, there must be institutional frameworks such as a Bill of Rights (which already exists in Sri Lanka) to protect each citizen in his or her capacity as an individual. These individual and collective safeguards do not have a territorial base.

Equal access to economic opportunity is also important for the enjoyment of full citizenship. But since opportunities are not available to all, institutional frameworks that are designed to provide access to the limited economic opportunities on a fair and just basis become critical if the citizens are to enjoy social justice. For instance, the present institutional framework that was designed to select candidates for higher education in Sri Lanka appears just because it addresses both merit and underprivilege. Affirmative action in the United States is a similar institutional framework that was introduced to provide equal opportunity to broader sections of the society. Neither of these frameworks have a territorial base, and therefore can function effectively on a centralized basis.

If an institutional formula is possible in the field of education, similar institutional frameworks should be possible in other fields of economic activity such as employment, health, and allocation of resources, the jurisdictions of all of which are non-territorial. Whatever the framework, it is absolutely essential that the formula and the principle on which the formula is based is worked out by a representative body (not necessarily by Parliament) and made public, thus reflecting the functioning of an open society.

This article attempts to portray the pitfalls inherent in a territorial approach to the resolution of the conflict in Sri Lanka. The intent is to draw attention to the fact that viable and flexible non-territorial alternatives exist that are well suited to serve not only the present, but also the future, with its challenges of an ever expanding interconnected world. What is needed at this time is to recognize and accept that a non-territorial alternative will serve all the communities better than a territorial approach.

Since independence, most political arrangements that were contemplated were motivated by a need to satisfy the Sri Lankan Tamil community's vision of what was "best" for them (e.g., District Development Councils, Provincial Councils, etc.). What started out as `responsive participation' without a territorial jurisdiction, later changed to one where territory became the keystone of their vision. It is morally indefensible to expect the interests of all the other communities to be sacrificed in order to satisfy the changing visions of one community. Furthermore, a vision that excludes others inevitably becomes unsustainable. The vision for all communities should be to develop institutional frameworks that ensure opportunities of full citizenship for all. Without devolving power to the regions, the strategy should be to draw on the regions to ensure fuller participation at the center.

The territorial approach lays unwarranted emphasis on the sovereignty of territory, when the emphasis really should be the sovereignty of the people. The goal should be to share the people's sovereignty within the framework of a common territory.

Neville S.Ladduwahetty, January 11, 1996