Archives

by Dr. Brendan O'Duffy, Queen Mary University of LondonVisiting Fellow, International Centre for Ethnic Studies, Colombo (Address given at the ICES Auditorium 8 May, 2003)

Those who assume the LTTE's concession on negotiating within the framework of a united Sri Lanka are, to paraphrase Richard Falk, pretending that the self-determination genie remains in the doctrinal box of a statist world. Instead, as Falk and others recognise, the post-Cold War era has presented real-political challenges to positivist attempts to define or restrict international legal rights of self-determination. The implications for the current Sri Lanka political process are significant.

On one had, the Cold War moratorium on self-determination has been replaced by a potentially more open system of recognition based on political expedience and new norms of sovereignty recognition which make the mistreatment of ethnic minorities (or ethnic majorities by a dominant minority) a potential grounds for external intervention and eventual state recognition.

On the other hand, the dominant principle of self-determination remains that of non-secessionist or internal self-determination, based on regional autonomy (devolution), federalism, power-sharing and individual and group rights protections. The ambiguity between the evolving norms of external and internal self-determination need to be addressed if a stable constitutional settlement is to be reached. I will argue below that such a stable regulatory framework must build in the seemingly destabilizing right of external self-determination, albeit with mutual veto rules which balance safeguards to territorial integrity with safeguards against unilateral assertions of executive power. Overview

This article aims first to provide an overview of the recent developments in International Law regarding national self-determination. Secondly, I will try to show from an 'outsider's' perspective, how these international legal developments impact on some contemporary academic and public debates regarding negotiation and design of a political settlement in Sri Lanka.

Thirdly, by way of comparison with the British-Irish led process over Northern Ireland, it will be shown that agreement on a novel mechanism for self-determination in 1993 was a pivotal aspect of the pre-negotiation phase leading to the Good Friday Agreement (1998). Finally, I hope to show how a modified version of the concurrent majority formula could be applied to balance the Sinhalese majority wish for the preservation of territorial integrity, with Tamil desires for national self-determination.

The overall aim is to show how creative mechanisms for self-determination and constitutional reform can contribute to the search for mutual exchanges between the protagonists in conflict.

National self-determination

The principle and practice of national self-determination has recently evolved with important implications for conflicts centred on ethno-nationalism. The dominant paradigm from the end of the Second World War to the end of the Cold War was based on the primacy of maintaining the integrity of states. Despite its name, 'International law' continued to recognize only states, not nations, as holders of rights of self-determination.

In the post-Cold War era, modifications to the international legal status of self-determination expanded the potential justification of national self-determination in states whose regimes denied representation to particular sections of the population and were discriminatory based on race, creed or colour. More recent developments with implications for diminishing the statist status quo include international treaties such as the Copenhagen Agreement (signed by 35 states, including the US), which justifies intervention to uphold democratic regimes.

It remains to be seen if the US attempt to assert this right in international law will be successful. Interventions in Yugoslavia (over Kosovo), Grenada, Haiti, Somalia, and most recently Iraq threaten to establish a new paradigm which elevates inter-state political practice (ostensibly based on democracy and human rights) above positive international law. As Richard Falk has emphasized, the legal justification of the recognition of new states following the break-up of the Soviet Union and Yugoslavia stretched the international legal interpretation of post-colonial exceptionalism to the point of breaking.

This recent practice is a significant confirmation of the extent to which the effective political outcomes that are consistent with geopolitical preferences ... produce legal results incompatible with earlier conceptions of legal doctrine. Community responses to such state-shattering practice are registered by way of diplomatic recognition and admission to international institutions.

Precisely because of the limits of positive international law within the statist paradigm to manage deep-seated ethno-national conflict, modifications have evolved which attempt to preserve the stability of the inter-state system while encouraging internal or 'non-secessionist' forms of national self-determination, including forms of federalism and devolution, power-sharing, individual and collective minority rights protections.

The Lechtentein Draft Convention on Self-Determination Through Self-Administration treats the latter (devolution and federalism) as necessary steps through which parties to a dispute should attempt to manage conflict, but also recognizes the need for mechanisms of self-determinations. Section I, Art. lb.defines 'rights of self-determination' as the free determination by those possessing that right of their political status and their free pursuit of their economic, social and cultural development, and may be implemented by establishment as a sovereign and independent State, free association or integration with an independent State, or emergence into any other political status freely determined by the people concerned.

Where persistent claims exist for national self-determination, the absence of guidance from international law makes it imperative for governments to confront and clarify the conditions under which self-determination could be exercised.

Arthur Watts emphasizes in his commentary on the Liechtenstein Draft Convention that: 'where even an adequate degree of self-determination has not been acknowledge, the absence of recognized rules and procedures to deal with the situation has often resulted in war or other forms of conflict leading to extensive human suffering.

For Sri Lanka, given the uncertainties inherent in delivering internal self-determination in the form of federalism, it would be naive to ignore the need to also regulate process of external self-determination. In fact, in the discussion of some cases below I will argue that regulating external and internal self-determination is a mutually re-enforcing strategy for state-craft.

National-self determination

Some may have been surprised by the apparent concession on Eelam announced by the LTTE and the UNP government at the Oslo round of talks in November 2002. The statement issued by the Norwegian facilitators announced that the two parties agreed to 'explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka. But close observers noted the conditionality attached to the world 'explore'. Internal self-determination is to be considered by both parties but neither has actually committed to accepting a purely internal form.

Leaving aside the capacious differences between a confederal versus a federal model, or between a federal and a devolved model, two fundamental obstacles remain in bridging the gap between the Sri Lankan government and the LTTE. From the government's side, a clear obstacle to selling a federal solution is the lack of confidence among the Sinhalese public, civic society and opposition political establishment as to the permeance of a federal solution. Quite simply, there is widespread fear that federalism (or devolution) would be the first step on the slippery slope to the break-up of the country.

As a local government representative (from the PA opposition) declared: 'What this (UNP) government is negotiating is not federalism, it is simply the break-up of the country. They are giving the LTTE what they couldn't get through war'.

Such fears are long-standing, even foundational of conflict. In the post-independence period the mainly Tamil, Federal Party's advocacy of a federal solution created a Sinhalese nationalist backlash against what was perceived as the inevitable dismemberment of the country.

The claims to territorial statehood made in the Vaddukkottai resolution in 1976 were followed by the TULF manifesto for the 1977 General Election:

There is only one alternative and that is to proclaim with the stamp of finality and fortitude, that, 'we alone shall rule over our land that our forefathers ruled. Sinhalese imperialism shall quit our homeland. The Tamil United Liberation Front regards the general election of 1977 as a means of proclaiming to the Sinhalese government this resolve of the Tamil nation. And every vote that you cast for the Front would go to show that the Tamil nation is determined to liberate itself from the Sinhalese domination.

Further suspicions of ultimate Tamil motives were raised in 1984-85 when the Tamil United Liberation Front (TULF) first appeared to accept the Sri Lankan government's proposals for a devolution package, only to reject the proposals after coming under pressure from hard-liners in its base-in-exile, Tamil Nadu.

Many in the Sri Lankan political establishment became convinced that even ostensibly moderate Tamils were committed only to Eelam. Thus the Tamil consensus enunciated in the Thimpu principles in 1985, based on the recognition of Tamil nationhood, self-determination, traditional homelands and full citizenship rights were interpreted by governments and Sinhalese nationalists, in Jehan Perera's words, as meaning 'nothing short of independence'.

More recently, a prominent critic of the peace process. Dayan Jayatilleka, has argued that a federal system for Sri Lanka would be 'centrifugal' i.e. would lead to the dismemberment of the country. K. M. de Silva has argued that federal or quasi-federal devolution is not appropriate because the areas outside of the North and (parts of) the East do not desire devolution (though this is contradicted by the demands from Sinhalese-majority provinces for the full implementation of devolution following the establishment of Provincial Councils in 1987).

In my own research to date I have been struck by the near consensus across Sinhalese society of their belief or at least suspicion that the LTTE will use devolution or federalism as a staging post to independence. A former Army Officer's comments were typical: 'They (LTTE) are setting up their own government, courts, extracting taxes.

They have a navy and a merchant marine fleet. And their army fought the Sri Lanka Army to a truce. What does this add up to if not an independent state?'

Yet as significant as Sinhalese fears are of a federal settlement, they are matched by the Tamil fears of majority domination in a unitary constitution. (In fact, it is almost axiomatic that groups in conflict under-estimate the obstacles to moderation of maximal goals and over-estimate the unanimity of opinion of 'the other' when involved in negotiations).

Against those who assume that the LTTE leadership has a commanding grip on its local political branches and cadres, one should consider the likelihood that the LTTE concession on Eelam (if it is one) will present significant internal management problems, not least from those supporters and families of cadres who sacrificed their lives in pursuit of Eelam. Observers of the contemporary internal politics of the LTTE describe deep cleavages between the leadership's ostensible commitment to federalism and power-sharing and local rivalries with Tamil-speaking Muslims and Sinhalese, especially in the East.

Scepticism is warranted, but the fact that it is mutually felt is in some ways advantageous because it reveals symmetry and the need for mutualist mechanisms and approaches to conflict regulation. Most importantly, scepticism and distrust should not be allowed to cloud strategic approaches to constitutionalism. Hiding behind essentialist legal or cultural arguments will only perpetuate conflict because they re-enforce perceptions of unjust status hierarchies.

Can this gap in conceptual understanding be bridged? One possible approach could be adapted from the mechanism of self-determination that became the fulcrum for the peace process in Northern Ireland.

Northern Ireland

Unlike in Sri Lanka, the British 'solution' to their exit from colonial rule in Ireland was partition. The Government of Ireland Act (1920) proposed two 'Home Rule' parliaments for Ireland, one in Dublin, the capital of the Catholic-dominated south and a separate Parliament for the Protestant-dominated North.

However, this legislation was only partially implemented as southern insistence on full independence for the whole island clashed with British interests in a) maintaining Ireland's place within the Empire for geo-strategic and political reasons and b) protecting the interests of the nearly one million Protestants 'unionists' in Ireland. After two years of war, the Anglo-Irish Treaty (1921) granted dominion status (equivalent to Canada and Australia) to the 26 counties of the 'Irish Free State' and devolved home-rule government (within the United Kingdom) for the remaining 6 counties, which became Northern Ireland.

The opposing claims to sovereignty over the territory of Northern Ireland were central points of contention leading to and through the 'Troubles', which broke out in 1969 following the suppression of the primarily Catholic Northern Ireland Civil Rights Movement.

(Continued on Monday)

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries |

Produced by Lake House
Copyright 2001 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager