Sri Lanka and sovereignty:
A SOVEREIGN STATE IS A SOVEREIGN STATE
Lakshman I.Keerthisinghe
LLB, LLM.MPhil, Attorney-at-Law
The people’s
government, made for the people, made by the people and answerable to
the people. - Daniel Webster – Speech
It was recently reported in the media that Sri Lanka’s High
Commissioner to the UK Dr. Chris Nonis told BBC’s World News that Sri
Lanka respects the sovereign rights of Britain, and of every other
country, and that Sri Lanka too as a sovereign and an independent state
naturally expects the same courtesy from Britain.
The Sri Lankan High Commissioner further said that 297,000 people
rescued from the clutches of the LTTE have been rehabilitated, in
perhaps the largest hostage rescue operation in global history. After a
28 year bitter and internecine conflict with the terrorists we finally
achieved peace in the country under the leadership of President Mahinda
Rajapaksa. On the question of an international independent process to
assess progress as called for by the UN, the High Commissioner said that
one needs to draw a distinction between an international process and an
independent process. “We do have an independent inquiry and many people
who initially criticised the LLRC process changed their views when they
actually saw the 388-paged document”.
Chris Nonis |
A sovereign state has been described as a political organization with
a centralized government that has supreme independent authority over a
geographic area. It has a permanent population, a government and the
capacity to enter into relations with other sovereign states. It is also
normally understood to be a state which is neither dependent on nor
subject to any other power or state. The existence or disappearance of a
state is a question of fact. While according to the declaratory theory
of state recognition a sovereign state can exist without being
recognized by other sovereign states, unrecognized states will often
find it hard to exercise full treaty-making powers and engage in
diplomatic relations with other sovereign states.(Wikepedia)
International law
Sovereignty has taken on a different meaning with the development of
the principle of self-determination and the prohibition against the
threat or use of force as recognized in jus cogens norms of modern
international law. The United Nations Charter, the Declaration on Rights
and Duties of State, and the charters of regional international
organizations express the view that all states are juridically equal and
enjoy the same rights and duties based upon the mere fact of their
existence as persons under international law. The right of nations to
determine their own political status and exercise permanent sovereignty
within the limits of their territorial jurisdictions is widely
recognized.
State recognition signifies the decision of a sovereign state to
treat another entity as also being a sovereign state. Recognition can be
either express or implied and is usually retroactive in its effects. It
doesn't necessarily signify a desire to establish or maintain diplomatic
relations.
There is no definition that is binding on all the members of the
community of nations on the criteria for statehood. In international
law, however, there are several theories of when a state should be
recognized as sovereign. The constitutive theory of statehood defines a
state as a person of international law if, and only if, it is recognized
as sovereign by other states. This theory of recognition was developed
in the 19th Century. Under it, a state was sovereign if another
sovereign state recognized it as such. Because of this, new states could
not immediately become part of the international community or be bound
by international law, and recognized nations did not have to respect
international law in their dealings with them.
Political authority
In 1815 at the Congress of Vienna the Final Act recognized only 39
sovereign states in the European diplomatic system, and as a result it
was firmly established that in future new states would have to be
recognized by other states, and that meant in practice recognition by
one or more of the great powers.
Northern civilians who were held as human shields by the
LTTE coming to safe areas. File photo |
One of the major criticisms of this law is the confusion caused when
some states recognize a new entity, but other states do not. Hersch
Lauterpacht, one of the theory's main proponents, suggested that it is a
state's duty to grant recognition as a possible solution. However, a
state may use any criteria when judging if they should give recognition
and they have no obligation to use such criteria. Many states may only
recognize another state if it is to their advantage.
In 1912, Oppenheim had the following to say on constitutive theory:
‘...International Law does not say that a State is not in existence as
long as it is not recognized, but it takes no notice of it before its
recognition. Through recognition only and exclusively a State becomes an
International Person and a subject of International Law.’
By contrast, the "declarative" theory defines a state as a person in
international law if it meets the following criteria: 1) a defined
territory; 2) a permanent population; 3) a government and 4) a capacity
to enter into relations with other states. According to declarative
theory, an entity's statehood is independent of its recognition by other
states. The declarative model was most famously expressed in the 1933,
Montevideo Convention.
Article 3 of the Montevideo Convention declares that statehood is
independent of recognition by other states. In contrast, recognition is
considered a requirement for statehood by the constitutive theory of
statehood. A similar opinion about "the conditions on which an entity
constitutes a state" is expressed by the European Economic Community
Opinions of the Badinter Arbtiration Committee, which found that a state
was defined by having a territory, a population, and a political
authority.
Legitimate government
The state practice relating to the recognition of states typically
falls somewhere between the declaratory and constitutive approaches.
International law does not require a state to recognize other states.
Recognition is often withheld when a new state is seen as
illegitimate or has come about in breach of international law. Almost
universal non-recognition by the international community of Rhodesia and
Northern Cyprus are good examples of this. In the former case,
recognition was widely withheld when the white minority seized power and
attempted to form a state along the lines of Apartheid South Adrica, a
move that the United Nations Security Council described as the creation
of an "illegal racist minority régime". In the latter case, recognition
was widely withheld from a state created in Northern Cyprus on land
illegally invaded by Turkey in 1974. Most sovereign states are states de
jure and de facto (i.e. they exist both in law and in reality).
However, sometimes states exist only as de jure states in that an
organization is recognized as having sovereignty over and being the
legitimate government of a territory over which they have no actual
control.
Internal affairs
It has to be noted that Sri Lanka is an independent sovereign state
ruled by a legitimately elected government. No other state has a right
to interfere in the internal affairs of a sovereign state under
international law subject to certain United Nations mechanisms.
The diaspora influenced by certain disgruntled elements of the LTTE
presently organized under the TGTE is hell-bent on destabilizing Sri
Lanka by inviting foreign intervention in our motherland in order to
establish a State of Eelam in the North and East of Sri Lanka which
endeavour is opposed even by the Sri Lankans living in the North and
East of our country.
When questioned on refugees and persecution by the BBC at the
interview referred to at the outset of this piece, Dr Nonis said, “I
would say there are many people who for various different reasons come
and seek asylum, and I think what we have to separate, is those who seek
asylum as economic refugees, from those who seek asylum as political
refugees – You must remember the demography of the country, the majority
of Tamil people actually live in the Centre and South of Sri Lanka, if
you look at Colombo, its roughly a 30-30-30 percent split between
Sinhalese, Tamil and Muslim. We have a huge dichotomy or disjuncture in
perception between what is portrayed here and the reality of
contemporary Sri Lanka”.
It is about time that the international community learnt the ground
realities existing in Sri Lanka at the present time without being
misguided by the adverse propaganda disseminated by the TGTE and its
allies.
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