The Legal Basis for the Tamil Eelam Freedom Charter: By Professor Francis A. Boyle

The Legal Basis for the Tamil Eelam Freedom Charter

By Professor Francis A. Boyle

CHARTERING FREEDOM THROUGH THE ROUGH SEAS OF GEOPOLITICS

A Conference Organized by the Transnational Government of Tamil Eelam (TGTE)

Lancaster, Pennsylvania

May 18, 2013

            There are two basic points I want to make at this Conference:  First, the Tamils living on the Island of Sri Lanka have been the victims of genocide, which was the subject of my speech yesterday.  Second, the Tamils living on the Island have the right to self-determination under international law and practice, including the right to establish their own independent state if they so desire.  And the fact that the Tamils living on the Island have been victims of genocide only strengthens and reinforces their right to self-determination, including establishing their own independent State if that is their desire.

            Sri Lanka is a contracting party to the International Covenant on Civil and Political Rights (1966) as well as the International Covenant on Economic, Social and Cultural Rights (1966).  Common Article 1 found in both of these seminal human rights treaties provides:

Article 1. 1. All peoples have the right of self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligation arising out of international economic co-operation, based upon the principle of mutual benefit, and international law.  In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

                 This gets into the second point that I want to make at this Conference concerning the Tamils as a group of people living on the Island of Sri Lanka – their right to self-determination under international law and practice. And here I quoted from two international treaties to which the government of Sri Lanka is a party, thus explicitly recognizing that the Tamils living on the Island of Sri Lanka have a right of self-determination.  This is from the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, to which the government of Sri Lanka is a party. The GOSL is bound by their own treaties, which say quite clearly in Common Article One: “All peoples have the right of self-determination.”

And clearly, the Tamils living on the Island of Sri Lanka are a “people.”  The Tamils living on the Island have a separate language, race, ethnicity, and religions, from the GOSL.  The Tamils see themselves as a separate group of “people” and they are perceived to be such and are treated as such by the GOSL.  For that precise reason the GOSL has attempted to exterminate the Tamils and ethnically cleanse them from their Homeland in the North and the East of the Island.  So no better proof is needed than that.  Both the objective criteria and the subjective criteria required for establishing a “people” with a right of self-determination under international law and practice have been fulfilled by the Tamils living on the Island.

            Let me continue enumerating a few more of the most basic self-determination rights of the Tamils living on Sri Lanka under international law that are recognized by these two International Covenants that the GOSL is a party to:  “By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Those are rights that the Tamils living on Sri Lanka have today even as recognized by the government of Sri Lanka.  Those are group rights and not just individual rights. And those are group rights that must be protected because the government of Sri Lanka has attacked the Tamils as a group, not just as individuals.  So, since Tamils have been victims as a group, they must be protected as a group. And one of the most basic rights of all that the Tamils have to protect themselves is this right of self-determination including determining their political status and freely pursuing their own economic, social and cultural development, as well as the establishment of an independent state of their own if that is what the Tamils decide is required for them to accomplish these objectives.

            Another component of this right of self-determination for the Tamils living on the Island is set forth in paragraph (2) of Common Article One of these two International Covenants, to which the government of Sri Lanka is a party. Notice here I am only using the treaties the GOSL itself is a party to, including the Genocide Convention. I am not citing any principles of international law that the GOSL has not already recognized and indeed violated grievously with respect to the Tamils living on Sri Lanka:  “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may the people be deprived of its own means of subsistence.”

            Yet we all know for a fact that the GOSL has done everything humanly possible to deprive the Tamil people of their own means of subsistence to a level that now constitutes genocide, in violation of that provision from the Genocide Convention Article II© prohibiting deliberately inflicting on a group conditions of life calculated to bring about their physical destruction in whole or in part. Notice these economic and political rights are related to each other. Both elements of the right to self-determination must protect the Tamils since they have been victims of genocide.  We must protect their political rights as well as their economic rights, to freely dispose of their natural wealth and resources.  The Tamil people, not the GOSL, must control their traditional Homeland in the North and the East of the Island, their farms, their mines, their plantations, their forests, their waters, their fish, their beaches, their markets, their factories, their schools, their libraries, their museums, etc.  This is critical!  Yet today we know that the GOSL is currently in the process of stealing, destroying and negating all these economic and political rights of the Tamils living in their traditional Homeland in the North and the East of the Island.  The GOSL is currently inflicting ethnic cleansing on the Tamils living there.   

            I have already established that the Tamil people living on the Island have a right of self-determination, even in accordance with the GOSL’s own treaties themselves.  What are some of the other political consequences of their right of self-determination? These are set forth in what is known as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (1971).  The government of Sri Lanka approved this Declaration in the United Nations General Assembly.  So I am not quoting here any provision of law that the GOSL has not already approved. And from the Declaration let me state what are the political alternatives that are open to the Tamil people, and they are set forth as follows: “[1] The establishment of a sovereign and independent State, [2] the free association or integration with an independent State, or [3] the emergence into any other political status freely determined by a people constitute the modes of implementing the right of self-determination by that people.”

            So again, it is not for the GOSL to determine what might be the ultimate political outcome here. It is for the Tamil people living on the Island to determine which of those three options they desire.  Moreover, it is not for India to tell the Tamils on Sri Lanka which of these three options they should choose.  This is for them to decide pursuant to their right of self-determination under international law and practice. 

However I do want to note that historically the only way a people that has been subjected to genocide like the Tamils on Sri Lanka have been able to protect themselves from further extermination has been the creation of an independent state of their own.  Indeed as the world saw for several months in 2009 the government of Sri Lanka wantonly, openly, shamelessly, and gratuitously exterminated about 150,000 Tamils in Vanni; yet not one state in the entire world rose to protect them or defend them or help them as required by the solemn obligations set forth in Article I of the 1948 Genocide Convention “to prevent and to punish” genocide.  Hence the need for the Tamils on Sri Lanka to have their own independent state in order to protect themselves from further annihilation by the GOSL.  International law and practice establish that an independent state of their own is the only effective remedy as well as the only appropriate reparation for a people who have been the victims of genocide.

            In this regard, let me return to the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States that was approved by Sri Lanka and sets forth rules of customary international law interpreting the terms of the United Nations Charter itself as determined by the International Court of Justice in the Nicaragua case (1986).  In particular let me draw to your attention the following language:  “Nothing in the foregoing paragraphs shall 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

            This paragraph of the Declaration sets forth the rules of customary international law when it comes to the right of a people to secede from another state by means of exercising their right of self-determination.  As you can see from the above language secession is permitted only when a government does not conduct itself “in compliance with the principle of equal rights and self-determination of peoples” and thus does not represent “the whole people belonging to the territory without distinction as to race, creed or colour.” 

            From its very foundation in 1948 the government of Ceylon/Sri Lanka has never conducted itself “in compliance with the principle of equal rights and self-determination of peoples” with respect to the Tamils.  Furthermore, the government of Ceylon/Sri Lanka has never represented “the whole people belonging to the territory without distinction as to race, creed or colour” with respect to the Tamils.  In fact the government of Ceylon/Sri Lanka has always discriminated against and persecuted the Tamils on grounds of race, creed, colour, and language.  This endemic pattern of criminal behavior by the Sinhala has now culminated in wholesale acts of outright genocide against the Tamils currently being inflicted by the government of Sri Lanka.  So of course the Tamils have the right to secede from Sri Lanka under international law and practice, especially under the terms of this Declaration, and thus establish their own Independent Nation State of Tamil Eelam if they so desire.  Towards obtaining these objectives, and pursuit to their right of self-determination as a people, the T.G.T.E. is here today promulgating the Tamil Eelam Freedom Charter.  Create the State of Tamil Eelam!

Edited May 22, 201312 yr by மல்லையூரான்