The present structure of the Sri Lankan government wherein the sovereignty of the population is divided between the Central Government and the Provincial Councils was imposed through the intervention of India. India's action caused the Sri Lankan population to forfeit its freedom to choose its preferred form of government. To deny a whole population the opportunity to freely choose its form of government and thereby assert its right of self-determination is considered by the international community to be a violation of its fundamental freedoms and human rights.

The Sri Lankan Tamils who are a sub-group of the Sri Lankan population presume that they have a legal claim to the right of self-determination. This presumption led them initially to demand the creation of a federal state for themselves, which was later expanded to a demand for a separate state. However, the international community, including India, does not consider that minorities and sub-groups of populations such as, for instance, the Sri Lankan Tamils, have a legal claim to the right of self-determination..

As a compromise solution, India intervened on behalf of the Sri Lankan Tamils and imposed a political formula in the form of the present structure of government in the hope that it would satisfy the Sri Lankan Tamil political expectations. However, not only were the Sri Lankan Tamils dissatisfied with these political arrangements, but also, the fundamental freedoms and human rights of the rest of the Sri Lankan nation were violated by India's aggressive intervention.

Ever since, the Sri Lankan nation has been governed by successive political regimes under a form of government that has not been of its choosing. This article advocates that the Sri Lankan nation must, therefore, claim its due right of self-determination by demanding that the opportunity be given to freely choose its preferred form of government, and in turn, it is the duty and obligation of any responsible government to grant the opportunity for the Sri Lankan nation to make its choices freely.

EXTERNAL AND INTERNAL SELF-DETERMINATION

The right of self-determination can be exercised only in an environment of freedom from external influence or domination. To be free to exercise the right of self-determination countries like Sri Lanka first had to decolonize. Antonio Cassese in his book that is based on Hersch Lauterpacht Memorial Lectures in Cambridge, titled "Self-Determination of Peoples - A Legal Reappraisal" (1995), refers to freedom from colonial rule or foreign domination as "external self-determination". According to him "Article 1(2) (of the UN Charter) was eventually perceived and relied upon as a legal entitlement to decolonization ... this was the first time that an international legal rule proclaimed self-determination qua the right of a whole population to democratic rule" (pp.65, 66).

Having secured freedom from external domination the whole population is free to choose the forms and structures of government that would best serve it. It is unlikely that there would be unanimity in regard to these choices. However, since the final choice would naturally be determined democratically, the choice of the majority would prevail. These internal arrangements are described by Mr. Cassese as "internal self-determination". Internal self-determination according to Mr. Cassese "... means the right to authentic self-government, that is, the right for a people really and freely to choose its own political and economic regime" (Ibid, p. 101).

The choice in respect of the nature and form of the political and economic regime, if made democratically, would be the decision of a majority. Any opposing minority would then have to abide by the decision of the majority and work out arrangements that address their concerns within the framework of the majority's decision. If the dissenting minority had the right of internal self-determination as well, and evolved a political and economic regime that would be separate to that determined by the majority, there would be several political and economic regimes within the same country. Since this would lead to the Balkanization of countries the international community does not accept that dissenting minorities have the right of internal self-determination.

These views were documented by a group of individuals with no official status made up of academics, politicians, trade-union leaders, and representatives of national liberation movements. They met in Algiers in 1976 and were responsible for the document known as "The Algiers Declaration on the Rights of Peoples".

The essence of this Declaration is that for internal self-determination to be satisfied the whole population must freely and democratically choose its preferred form and structure of government. They must democratically elect a government that is representative of the whole population, and it is the duty of the elected representatives to ensure that they reflect the will of the People at all times. Moreover, The Algiers Declaration maintains that if the freedom to make these choices freely are denied, the right of internal self-determination along with the fundamental freedoms and human rights are violated (Ibid, p. 298).

Therefore, the right of both external and internal self-determination is an entitlement that should be enjoyed ONLY by the whole population of a country, and not by segments within it.

MINORITIES AND INTERNAL SELF-DETERMINATION
The international community does not recognize that minorities are entitled to the right of self-determination. John Chipman in an article titled "Managing the Politics of Parochialism" states "... neither in the instruments of the United Nations, nor in customary international law as a whole, does there exist any legal right to independence, by means of the right of self-determination for any noncolonial people or for a minority within an existing state" ("Ethnic Conflict and International Security", ed. Michael E. Brown, 1995, p. 242).

Citing additional evidence to emphasize the limits of internal self-determination, Mr. Cassese states "The legal position ... summarized by the International Court of Justice in its Advisory opinion on Namibia ... (is that) if the population of a colonial territory is divided up into various ethnic groups or nations, they are not at liberty to choose by themselves their external status. This is because the principle of territorial integrity should here play an over-riding role" (Ibid, p. 72).

In 1975, 35 States constituting the Conference on Security and Cooperation in Europe (CSCE) adopted a declaration known as the Helsinki Declaration. This document affirmed that "... the peoples referred to in the Helsinki Final Act are the whole population of each signatory State..." and "... by contrast, no right to self-determination is granted to any minority or ethnic group... furthermore, no right to secession is recognized..." (Ibid, p. 287).

The attitudes of the international community reflected above have caused minorities at the periphery to portray themselves as being dominated by and under the influence of majorities at the center, resulting in claims of internal colonialism. These claims are made in order to justify the right of external self-determination. This argument was presented by the Sri Lankan Tamils at the International Conference on Tamil Nationhood and the Search for Peace in Sri Lanka held in Ottawa in May 1999.

Internal colonialism is based on the theory that the processes of economic development controlled by the center is the cause for the relative underdevelopment of the periphery. The overlapping of ethnic distinctions with regional disparities adds intensity to the issue. While these circumstances may exist in certain countries such as the Celtic fringe in UK, the reverse was true in the case of the Sri Lankan Tamils. The fact that they were a disproportionately privileged minority was first recorded by the Soulbury Commission in 1945, and later accepted by most international authorities.

The Soulbury Commission stated unequivocally that the processes at work in Sri Lanka were attempts to redress decades of neglect and injustice perpetrated on the larger Sri Lankan nation most of whom were Sinhalese, and that these processes were not in any way attempts to discriminate against the minority Tamils. The adjustments that had to be made by the privileged Sinhalese and Tamils must be seen as corrections for purposes of social justice that were long overdue. Therefore, the Sri Lankan Tamils have no justification to claim external self determination on the grounds of internal colonialism.

For one ethnic group to claim the right of self-determination in a heterogeneous society is also unjustified. For instance, the Basque nationalist parties are urging the Basque guerrillas (E.T.A.) to abandon violence and "begin a process of dialogue and negotiation... though still insisting on self-determination..." (The New York Times, August 15, 1999). Recognition of the right of self-determination only for the Basques would give them an exclusive right that other ethnic groups of Spain do not enjoy, and is therefore unacceptable. If such a right is recognized, other ethnic groups also should be granted similar rights. If every ethnic group in heterogeneous countries are granted the right of self-determination it would most certainly destroy the "territorial integrity and political unity" of all states. Therefore, the right of self-determination for minorities is an unacceptable proposition whether it is for the Basques or the Sri Lankan Tamils.


VIOLATION OF SRI LANKA'S RIGHT OF INTERNAL SELF-DETERMINATION
It was growing recognition given by the international community to the right of external self-determination that enabled Sri Lanka to emerge from a British colony to be a free and sovereign state in 1948. This freedom enabled Sri Lanka to choose a central form of government fashioned on the Westminster model, and to democratically elect a central Parliament that represented the whole population. By doing so, the Sri Lankan nation defined its internal political self-determination.

This form and structure of government prevailed until 1987 when the present form of
government was imposed through the intervention of India on behalf of the Sri Lankan Tamils. This action is a direct violation of The Algiers Declaration on the Rights of Peoples because the preamble to the declaration states: "... new forms of imperialism evolve to press and exploit the peoples of the world... through direct or indirect intervention, through multinational enterprises, through manipulation of corrupt local politicians...".

The new form of Indian imperialism in effect divided Sri Lanka on ethnic lines. The imposed political divisions were coterminous with ethnic boundaries, and would politicize communal divisions for perpetuity. Even the Donoughmore Commission recognized that communal representation introduced by the British as an " ... experiment has not given the desired results, but has had, if anything, the opposite effect. The representatives of the various communities do not trust one another, and communal representation has not helped to develop an uniting bond or link" (Donoughmore Commission Report, p. 91). In this background the Provincial Council
form of government would heighten ethnic tensions, and would inevitably lead to separation.

The elected representatives of Sri Lanka took upon themselves to approve the Indian
proposals. This approval caused the powers of the central government to be diluted without a mandate from the Sri Lankan nation. Since they drastically modified the mandate given by the Sri Lankan nation, these representatives became the instruments that violated the fundamental freedoms and human rights of the Sri Lankan nation. As long as the Sri Lankan nation is denied the opportunity to make its choices freely as to how they are to be governed, their right of internal self-determination would continue to be denied.

The current form of government was brokered by India in the hope that it would meet the political goals of the Sri Lankan Tamils. The Sri Lankan Tamils for their part claim that this form and structure of government do not go far enough to satisfy them. In addition, the LTTE has rejected the proposals in their entirety. Therefore, as matters stand, the Provincial Council form of government not only fails to meet the political expectations of the Sri Lankan Tamil minority, but also is an imposition on the majority of the Sri Lankan nation.

For the majority of Sri Lanka's population to be governed under a system of government that does not reflect their political self-determination is a serious violation of human rights. Therefore, it is the duty of the Sri Lankan nation to demand that they be given the opportunity to freely choose the system under which they are to governed, a right recognized by the international community. By not doing so, they continue to be governed under an imposed system of government.

POLITICAL AUTONOMY NOT AN OPTION
Since the recognition of the right of self-determination for minorities is not an acceptable option, regional autonomy for minorities is being advocated by the international community as a universal solution that fits all circumstances. Any solution that ignores factors such as the historical, social, and cultural backgrounds of minorities, including the level of their advancement and their distribution within the state would not prove to be durable. Therefore, there is a need to evaluate the circumstances of each case before arriving at a solution.

Another significant drawback of regional autonomy is that territorial divisions isolate and "freeze" minorities both culturally and politically. Minorities such as indigenous peoples who do not wish to assimilate and who wish to retain their traditional way of life may wish to remain territorially exclusive but not separate. However, in the case of advanced minorities, while regional autonomy would maintain their cultural distinctiveness, their material well-being could be seriously affected by political arrangements that exclude them due to their territorial isolation thus causing them to seek the option of separation. Therefore, while minorities may wish to retain cultural distinctiveness through regional autonomy, their material well-being would best
be served by political integration. Regional autonomy would then be limited only to their
cultural needs.

Regional autonomy, or in the extreme, separation as a political alternative for advanced minorities arises from their inability to enrich their lives under existing political systems. The very nature of the form and structure of the government can limit opportunities for them to influence the outcomes that affect their well-being. For instance, the Westminster model of government that prevailed in Sri Lanka until 1987, prevented the Opposition, which often included Tamils, from participating in the governing processes, because of the peculiarities of that model. If, on the other hand, all members of Parliament were assigned to a system of Committees as in colonial Sri Lanka or in the US today, every member would be involved in the processes of governance.

Sri Lankan Tamils are not seeking autonomy or separation because of cultural vulnerability. It is their perception that autonomy or separation would give them greater opportunities to advance their material well-being. However, since no more half of them would benefit from the perceived advantages of autonomy, this solution does not address the well-being of the group as a whole. Alternatively, a political arrangement that enables them greater participation at the center would offer them more opportunities to influence the decision that affect them collectively. Regional autonomy would only be appropriate for dealing with cultural issues.

In Hurst Hannum's opinion: "....there will be no peace in Sri Lanka until the Tamil
community recognizes that it is, in fact, a minority - and a rather small one at that. No more than one-half of the Tamil population is included in the merged northern and eastern provinces, although Tamil influence has long been disproportionate to mere population size. Nevertheless, Sri Lanka will inevitably be dominated by the Sinhalese, Buddhist culture of 75% of its population; so long as this does not imply discrimination against or denigration of Tamil culture and traditions. That is a reality that cannot be reversed by law or constitutional innovation.' (Autonomy, Sovereignty, and Self-Determination, 1990, revised 1996, p307-308)

CONCLUSIONS
As far as the Sri Lankan Tamils are concerned the choices are between autonomy and independence. As far as successive governments have been concerned the debate has centered only on the degree of autonomy to the regions. The fundamental flaw in the debate is that the options considered assume that the Sri Lankan nation has accepted the present form of government. Moreover, this assumption fails to recognize that the imposition of a form of government without the free consent of the governed violates the fundamental freedoms and human rights of the Sri Lankan nation.

The Universal Declaration of Human Rights states that "The will of the people shall be the basis of the authority of government..." (Article 20 . 3). Since the present form of government has been endorsed by the elected representatives, and successive political regimes have governed Sri Lanka under this system without seeking an endorsement by the whole population, the entire process has violated this basic stipulation of the Universal Declaration of Human Rights.

Therefore, it is the duty of the Sri Lankan government to grant the Sri Lankan nation the opportunity to make fundamental choices as to the form under which they are to be governed. For instance, the Sri Lankan nation must by right, have the opportunity to choose between a central government and a government where some of the central government powers are devolved to regions. Any political arrangements that are negotiated thereafter would then be based on these fundamental choices expressed. Successive political regimes have acted and are acting on the assumption that the Sri Lankan nation has made the choice between these two very basic options. This assumption is incorrect.

The Sri Lankan nation must take the initiative to demand that the government provides them the opportunity to choose freely between these two basic forms of government. In addition, they should take the initiative to alert the Human Rights Agencies that their fundamental freedoms and human rights are being violated by their being denied the opportunity to freely define their internal political self-determination.

Concepts of self-determination and human rights may appear incongruous in the midst of terrorist assassinations. However irrelevant they may be, it cannot be overlooked that these very same concepts that were stated by the Sri Lankan Tamils at Thimpu have enabled them to change the form of government in Sri Lanka with the assistance of India. As a concept, self-determination is a right that can be claimed ONLY by the whole population. Not to seek the opportunity to enforce this right would be to forfeit this right.

The international community is often concerned with the rights of minorities and the
violations of their human rights. Seldom are such violations perpetrated on majorities. Sri Lanka is one of these rare instances. It is a grave injustice for the Sri Lankan nation to be governed under a system that was engineered for the benefit of the small Sri Lankan Tamil minority without any regard or "respect for the legitimate interests of the community as a whole" (The Algiers Declaration). Every norm and standard of justice calls for these injustices to be rectified. It is time that attention was paid to the violations of the fundamental freedoms and human rights of the larger Sri Lankan nation.

Neville Ladduwahetty

September 8, 1999