Tamil separatism and some United Nations declarations
By Kamalika Pieris

The United Nations has passed several resolution and declaration that are relevant to Tamil separatism. A selection of these are given here:-

1. In its Resolution 1514 (XV) of 14. December 1960, the General Assembly of the United Nations stressed the need to bring colonialism to a speedy end. It adopted the 'Declaration on the granting of independence to colonial countries and peoples'. This declaration opposed the subjugation of people to alien domination, through colonialism. It declared that all peoples had a right to self determination. That immediate steps should be taken to transfer power to the people in non-self governing territories. But it ended with the proviso:

'Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the charter of the United Nations.'

2. In its Resolution 2625 (XXV) of 24 October 1970, the General Assembly adopted and proclaimed the 'Declaration of Principles of International Law concerning friendly relations and cooperation among the states.' It further declared that the principles embodied in the resolution 'constituted basic principles of international law.' These principles were already in the United Nations Charter. (United Nations action in the field of human rights,' 1994. p 248).

This resolution affirmed the principle of equal rights and the self-determination of peoples. It declared that states were to actively promote 'friendly relations and cooperation among states' and to assist in the disappearance of colonialism. It recognised the 'establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.'

However, it also declared:

'Nothing in the foregoing paragraphs shall be construed as authorising 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 possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.'

3. We now look at a resolution made by the United Nations Human Rights Committee at its 46th session, 1996. It's General Recommendation No. XXI states:

'The Committee notes that ethnic or religious groups or minorities frequently refer to the right to self-determination as a basis for an alleged right to secession. In this connection the committee wishes to express the following views.

'The right to self-determination of peoples is a fundamental principle of international law. It is enshrined in article 1 of the Charter of the United Nations, in article 1 of the International Covenant on Economic, Social and Cultural Rights and article 1 of the International Covenant on Civil and Political Rights, as well as in other international human rights instruments. The International Covenant on Civil and Political Rights provides for the rights of peoples to self-determination besides the right of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion or to use their own language.

'The Committee emphasizes that in accordance with the Declaration on Principle of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by the United Nations General Assembly in its resolution 2625 (XXV) of 24 October 1970, it is the duty of States to promote the right to self-determination of peoples'. But the implementation of the principle of self-determination requires every state to promote, through joint and separate action, universal respect for and observance of human rights and fundamental freedom in accordance with the charter of the United Nations. In this context the Committee draws the attention of Governments to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly in its resolution 47/135 of 18 December 1992.

'In respect of the self-determination of peoples two aspects have to be distinguished. The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.

'In order to respectfully the rights of all peoples within a State, Governments are again called upon to adhere to and implement fully the international human rights instruments and in particular the International Convention on the Elimination of All Forms of Racial Discrimination. Concern for the protection of individual rights without discrimination on racial, ethnic, tribal, religious or other grounds must guide the policies of Governments. In accordance with article 2 of the International Convention on the Elimination of all Forms of Racial Discrimination and other relevant international documents, Governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the Government of the country of which they are citizens. Also, Governments should consider, within their respective constitutional frameworks, vesting persons belonging to ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups.

'The Committee emphasizes that, in accordance with the Declaration on Friendly Relations, none of the Committee's actions 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 and possessing a Government representing the whole people belonging to the territory, without distinction as to race, creed or colour. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State. In this respect, the Committee follows the views expressed in an Agenda for Peace (paras. 17 and following), namely, that a fragmentation of States may be detrimental to the protection of human rights, as well as to the preservation of peace and security. This does not, however, exclude the possibility of arrangements reached by free agreements of all parties concerned.' (International Human Rights Reports Vol 5 (1) 1998 p 20).

4. At the same annual session, the UN Human Rights Committee also passed General Recommendation No XXII, 1996. This stated, among other things that the Resolution emphasised the following:

'All refugees and displaced persons have the right to freely return to their homes of origin and under conditions of safety.

'All such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated for property that cannot be restored.' (International Human Rights Reports. Vol 5 (1) 1998 p 21)

* This recommendation is useful for the rehabilitation of the Sinhalese and Muslims residents expelled from the North and East, in an attempt at ethnic cleansing.

5. These resolutions have repeatedly referred to two United Nations declarations. It is helpful for the Sri Lankan public to know the contents of these two declarations.

First here is the UN declaration on the rights of persons belonging to national or Ethnic, Religious and Linguistic minorities' (1992) This is given below in full:

Article 1
1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.

2. States shall adopt appropriate legislative and other measures to achieve those ends.

Article 2
1. Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

2. Persons belongs to minorities have the right to participate effectively in cultural, religious, social, economic and public life.

3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the region in which they live, in a manner not incompatible with national legislation.

4. Persons belonging to minorities have the right to establish and maintain their own associations.

5. Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.

Article 3
1. Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination.

2. No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration.

Article 4
1. States shall take measure where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.

2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and country to international standards.

3. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.

4. States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole.

States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.

Continued tomorrow