New Constitution Altering Territorial Boundaries

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By 2017-12-11

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.

Territorial Expansion

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.

Constitution

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.

Proposed Constitution

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.

Conclusion

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)

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