New Constitution Altering Territorial Boundaries
By Faizer Shaheid([email protected])
The possibility of dividing Sri Lanka has been thoroughly discussed in the recent past and the Steering Committee of the Constitutional Assembly has been accused of paving the way to reunite the North and East, as a single province, which may culminate in cessation.
While the North and East merger argument remains operative, another possibility of altering the territorial boundaries has emerged, following the announcement of Minister of Fisheries and Aquatic Resources, Mahinda Amaraweera, that Sri Lanka's territorial expanse is to be further expanded.
Very recently, Minister Mahinda Amaraweera had reportedly stated (in a Daily) that Sri Lanka's territorial boundaries was to be expanded up to 26 times the country's land mass in the sea. It was also reported that Sri Lanka was entitled to include within its boundaries this territorial expanse, according to United Nations Convention of the Law of the Sea (UNCLOS) and that the documents to officially recognize this was to be possibly finalized and effectuated by March 2018.
The UNCLOS recognizes that a State has the right to establish its territorial sea up to a maximum of 12 nautical miles measured from the baseline, or the lowest point absorbed by the sea. This area is considered a State's own territory and the laws of a State will extend as far as its territorial seas extend to. From the edge of the Territorial Seas, up until 200 nautical miles, the seas are considered as the Exclusive Economic Zone of a country. In this sea mass, a Coastal State can have control over economic matters, including drilling for petroleum or other exploration projects for natural resources.
When a conflict arises as to the ownership of a certain portion of the sea due to the proximity of a different State, the UNCLOS recognizes the midpoint between the seas as the border for each country. The UNCLOS interpretation would stand only if there was no prior understanding between the two countries as to the borders of its territorial waters. Thankfully, such a conflict in regard to territorial waters does not arise between Sri Lanka and India.
Therefore, the expansion of territorial waters must be embraced as a positive endeavor by the Government of Sri Lanka, although there is no change in the land mass.
Under the operative Constitution, the territorial waters is considered under Article 5 of the Constitution, where it is clear that the territory of Sri Lanka will comprise of 25 administrative districts, all of which are set out in the first schedule, and the territorial waters. 'Territorial waters' has neither been defined nor demarcated in the Constitution, and will therefore assume the definitions as stated in the UNCLOS and as adopted by the Carriage of Goods by Sea Act.
Although there will be a change in the territorial expanse, such a change will not and cannot change the land mass without first passing an amendment to the Constitution. This is because the land mass has been clearly marked in the Constitution. The provision is not directly considered an entrenched provision, but will ideally be considered as requiring a Referendum when read together with Article 3 of the Constitution on sovereignty.
Under the Proposed Constitution, the Interim Report of the Steering Committee seeks to completely reinterpret Article 5 of the Constitution. It gives out a fresh and detailed wording. Even at the outset, the wording appears ambiguous, but it creates a doubt in the aftermath of this new revelation that the territorial boundaries can be amended.
The Proposed Constitution considers the following formulation:
'The territory of Sri Lanka is constituted of its geographical territory as recognized under International Law, including the Provinces as set out in the XXX Schedule of the Constitution, and including its territorial waters and airspace, together with such additional territory as may be acquired in future. Sri Lanka shall have all rights recognized by law, custom and usage, pertaining to its territory.
No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.'
This formulation lays tremendous weight on the phrase 'geographical territory as recognized under International Law'. The weight of the words combined is mighty enough to make every other part of the paragraph secondary.
In the circumstances, whether or not the provinces have been listed in a particular schedule, it shall be considered whether the geographical territory is indeed recognized as Sri Lankan under international standards. The second paragraph of the provision states that no Provincial Council or other authority may declare any part of the territory of Sri Lanka as a separate State. One could argue that this is a reasonable amount of protection to ensure that cessation is impossible. However, the territory of Sri Lanka has already been interpreted as the geographical territory as recognized under international law. The problem lies in the definition of the 'territory of Sri Lanka' where there is much weight vested in international law.
Does International Law matter?
International Law matters to the extent of determining the characteristics of statehood. Sri Lanka has been a dualist state which means that International Law must be ratified and endorsed as domestic legislation for it to apply. This has been the position of Sri Lanka in the past and is likely to continue under the Proposed Constitution as has been suggested by the Sub-Committee Report on Fundamental Rights.
However, where the Constitution expressly recognizes the application of International Law in respect of a particular subject, International Law will have a monist effect. This means that on the matter of territorial boundaries, International Law can be directly applied in the event a separate state is declared if the Proposed Constitution is enacted in its current form.
The Montevideo Convention on Statehood of 1933 specifies four criterions to declare Statehood. Firstly, there must be a permanent population. Secondly, there must be a defined territory. Thirdly, the State must have a Government. And lastly, it must have the capacity to enter into agreements with other States.
Therefore, if in fact a Provincial Council was to declare itself independent under the laws of self-determination, then the four characteristics will need to be satisfied if it must be considered an independent state.
Based on events that had transpired in 1990, there is an increased possibility of a merged North and East Province declaring itself to be an independent Eelam. If they do indeed choose to declare secession, if the law was to apply based on the Proposed Constitution in its current form, then the characteristics of statehood must be satisfied.
Will a merged North-Eastern Province have a permanent population? Yes. Will it have a defined territory? Yes. Will it have a Government? Yes. With these three conditions satisfied, the only remaining condition is that the newly formed state must have capacity to form agreements with other States. This is the most difficult characteristic to satisfy.
However, given the extreme federalist structure, it is likely that a Provincial Council will be granted the power to enter into contracts with other states. If a Province can establish cordial relations with a different state independent of its affiliation to a country, then it is likely to be recognized as an independent State when it declares to be one.
The North and East are very much capable of establishing itself as a separate state, and if it managed to enter into contracts with other nations on the cover of its presumed independence, then international law will presume it to be an independent state.
International Law will then recognize Sri Lanka as a country sans the North and East. This is exemplary in the conflict between Israel and Palestine, where the United Nations has recognized Israel as a country without recognized frontiers, while the status of Palestine's frontiers is still a matter of debate.
Article 5 of the present Constitution is well suited in its current form, and there is little to no need for amendment. Nonetheless, if the Government seeks to alter the provision, then let there be no dependence on International Law to determine the land mass of Sri Lanka. If the Constitution can be clear enough, let there not be a loophole to allow external forces to seep through.
If Sri Lanka is to maintain its dualist status, let it not be ambiguous in its application. If Article 5 is to be amended with a clause that cessation cannot be permitted, then let the phrase 'territory of Sri Lanka' not be defined so as to make the clause prohibiting cessation redundant.
(The writer is a political analyst and an independent researcher of laws. He holds a Postgraduate Degree in the field of Human Rights and Democratization from the University of Colombo and an Undergraduate Degree in Law from the University of Northumbria, United Kingdom)
- Using a dog as live bait to capture Panmure leopard Environmentalists cry foul
- PRESIDENT TO TAKE OVER ECONOMY AFTER LG POLLS
- Only fraction of requested funds sent to NPC last year Lack of funds derails development plans – CM
- US Govt in shutdown
- PCoI report on Bonds issue AG holds back 103 pages
- Alarming Police statistics reveal 3 underage girls raped every day!
- LANKAN LAWS SUFFICIENT ARJUNA MAHENDRAN CAN BE ARRESTED – AG
- Once Parliament convenes on 23rd JO to grill Govt on Bonds scam When will legal action be taken?
- Sunday Leader Editor murder case Intelligence men seen loitering near Lasantha’s office CID
- Ensure a free and fair election AAGGSL Urges public to elect honest candidates
- Elimination of bribery and corruption National Action Plan discussed
- Lankan jailed in UAE after FB post
- US helping SL to counter human trafficking
- 73-election law violations and 168 election related complaints 21 candidates among 197 arrested
- Seat belts and air bags compulsory from July
- Torture and Enforced Disappearances EU-SL JC insists on zero tolerance Wants PTA repealed and CCP amended
- If Ranil removed from Premiership UNPers threaten to impeach Prez
- Prez hints at being afflicted by Mahinda syndrome
- Rupee weakens 40 cents amidst uncertainty
- Udayanga has Rs 94M in 8 bank accounts FCID
- Malaka surrenders to Court Arrest warrant recalled
- To iron out SLFP-UNP issues in Yahapalana Govt Forming of advisory council proposed SLFP and UNP Ministers to discuss this week
- Obtaining bribe to release dead body 2 fmr MoH janitors sentenced to 8 years
- CIABOC withdraws charges Aluthgamage released from Case
- Rejection of Maharagama UC nominations SC throws out SLPP petition CoA postpones 14 petitions to 24th
- NOCSL Members came out together against current regime Rohan Fernando announces candidacy for presidency
- North and South Korea to compete under one flag
- Financial irregularities of NOCSL exposed in Audit
- HNB Sponsors Millennium Trophy Golf Tournament Dr. Scarth and Niloo Jayathilake clinch top awards
- 12th ICC Under-19 Cricket World Cup Ireland beat Afghanistan
- Sharapova eliminated Halep survives
- Kandy SC stay unbeaten
- Premier League club cricket – Tier A Marians crush Ports Authority
- Premier League Cricket – Tier ‘B’ Naved scores his third ton
- Bruised Sri Lanka battle to stay alive
- Svitolina ends dream of teen
- Sainz stays on Dakar title course
- Federer says get on with it
- New Zealand beat Pakistan in clean sweep
- North Western Archery C’ship Wayamba Royal International School holds contest
- ‘Singer Cup’ U-13 Division 1 Cricket Three schools advance to semis
- National athletes petitioned to IOC over controversial athletes’ commission
- Homeboys Kandy tough to beat on own turf
- Army favoured to win
- India rout Zimbabwe
- PUCSL to sue CEB
- Emergency power costs SL Rs 40B
- Tourism earnings up 2.3% Jan-Nov
- India’s Marg ERP to expand in SL
- Hemas acquires 75.1% of Atlas for Rs 5.7 billion
- SLT launches SL’s first Tier III ‘National Data Centre’
- CIMA organizes Directors’ Tax Forum 2018
- Carpetright shares crash on profit warning
- Sri Lanka achieves record exports in 2017
- Investment and employment opportunities open up in Maldives
- CCC launches ‘Economic + Sector Review and Outlook Report 2018’
- Strengthening the labour force to face the Fourth Industrial Revolution
- 100PLUS isotonic brand now in Sri Lanka
- NDB Wealth marks 2018 with website re-launch
- ABANS donates school supplies to children of staff
- BMICH nominated for Platinum award
- ‘PIONEERING LANKA’S SOLAR POWER MY BENCHMARK’
- Vallibel Finance opens in Wennappuwa
- CMA Australia completes 20 years in Sri Lanka
- MullenLowe, Quantum to list 2018 consumer trends
- Concretes & Abstracts Pitipana Committee and Public Debt
- Achieving true lasting reconciliation
- Dying art of sending postcards
- The Pursuit of Peace Starting at SCOPP
- The Oddest President Ever!
- Gang rape shakes Tissamaharama
- Threat to fauna and flora in the Wilpattu National Park region Lid blown on Gangewadiya sand mining racket Dredging of sand on such big scale poses a grave threat to wildlife
- Who are the ‘Aava’ Group? Mohan’s story
- Local Government Elections on 10 February will be largest electoral exercise in history Many firsts in LG Polls this year
- Elbow pain Is it Tennis or Golfer’s Elbow?
- Participatory citizenship is important - Rosy
- I have a master plan - Salley
- All set for Free and Fair LG Polls – Mahinda Deshapriya
- If given power We’ll develop country in two years -Chandrasiri Mahagamage
- Upcoming LG Elections a referendum
- National Prosperity Turning the Tide
- Disposable coffee cups:British lawmakers call for “latte levy”
- If only we could crackdown on the root causes to effect sustainable solutions Herein lies a Nation’s progress
- Forecast your own destiny An astrological guide
- Kala Sarpa Yoga will test sustainability of government
- TIMING OF EVENTS –CHILD BIRTH
- Season for Marriage and Construction
- Cancer Causing Vastu Defects
- “Hail, Caesar!” Silliness as a virtue
- Notes on history: The thinkers and the doers
- Reflections on a nation of non-readers
- The Disaster Artist: The (un)making of a movie
- Our children and our cinema
- INTERPRETING ASIAN CINEMA: CHALLENGES AHEAD
- How Sanskrit journalism is slowly hogging headlines
- ice manufacturing in South Asia
- Kite Surfing Lanka Kalpitiya An experience of a lifetime
- Ella and mini Adam’s Peak
- A cave of history -Ravana Cave
- Indu & Sanwada We have so much in common
- The Writer’s Kitchenette Vietnamese Fusion Rice Wraps
- ‘Derana Champion’ Shines with OPPO
- A Possible Fallout as US freezes Funds for Palestinian refugees
- Jungle loving President Premadasa
- How Felix Dias became Bandaranaike
- IT IS MY CHOICE
- In your own skin be the barrel you want
- Dear Patriarchy,Dilshani Palugaswewa tells it like it is in this open letter