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Self Determination and Conflict Regulation 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. Thirdly, by way of comparison with the British-Irish led process over Northern Ireland, it will he 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 tile Sinhalese majority wish for the preservation of territorial integrity, with Tamil desires for national self-determination. 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. 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 permanence of a federal solution.
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:
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. dc 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:
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 arid 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. Skepticism is warranted, but the fact that it is mutually felt is in some ways advantageous because it reveals symmetry and the need for mutual mechanisms and approaches to conflict regulation. Most importantly, skepticism arid 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. 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 Protestant 'unionists' in Ireland, After two years of war, the Anglo-Irish Treaty (1921) granted dominion status (equivalent to Canada arid 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 arid through the 'Troubles', which broke out in 1969 following the suppression of the primarily Catholic Northern Ireland Civil Rights Movement. Since that time the (Protestant) unionist majority was adamant that their irredentist claim over Northern Ireland be removed from the Irish Constitution as the condition for any power-sharing deal with the (Catholic) nationalist minority (then 35% of the population) of Northern Ireland. Gradually, after repetitive cycles of failed negotiation among moderates, followed by intensive waves of paramilitary violence, the British and Irish governments, agreed to institutionalise their inter-governmental relationship, address (but not resolve) their opposing claims to sovereignty and encourage power-sharing, economic, political and judicial reform. The Anglo-Irish Agreement of 1985 and the Downing St. Declaration of 1993 represented mutual recognition of the need to modify sovereignty claims created the basis for a progressive set of reciprocal exchanges that reaffirmed the parameters of a settlement. More specifically, the hi-national, intergovernmental conflict regulation strategy shaped the strategic and tactical choices of the parties and movements in Northern Ireland, creating more stable negotiating blocs with the two governments taking a commanding lead. Thus, there was a clear relationship between the development of an inclusive process (bringing paramilitaries into constitutional negotiations) and the opening of sovereignty to negotiation in a more symmetrical, bargainable exchange relationship than existed hitherto. The Joint Declaration (Downing Street Declaration) signed in London on 15 December, 1993 was a significant advance in British-Irish conflict regulation because it established agreement between the two governments on the primary regulative aspect of sovereignty: a process of self-determination requiring the consent of both a majority of people in Northern Ireland and concurrently a majority of people in the Irish Republic for any change in the status of Northern Ireland. Paragraph's four amid five contained the heart of the exchange: Paragraph 4;... The British Government agree that it is for the people of the island of Ireland alone, by agreement between the two parts respectively, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish. Paragraph 5: (The Taoiseach) accepts, on behalf of the Irish Government, that the democratic right of self- In addition the Joint Declaration reiterated that the parameters of a settlement must be founded on consent and encompassing arrangements within Northern Ireland, for the whole island, and between these islands (Paragraph 2). By stating that the process of self-determination was for the Irish people alone, the citizens of the Irish Republic were also being given a veto on any unilateral exercise of self-determination by the current unionist majority. In other words, if the current unionist majority, fearing abandonment by their British patron, declared unilateral independence from the United Kingdom, they would be prevented by the current agreement from doing so without the consent of a majority in the Irish Republic. Henceforth, both Irish nationalist and British unionist preferences for self-determination were required for any change in the status of Northern Ireland. For the first time since 1918 the rights to self-determination were subject to all-Ireland consent, to be exercised concurrently in both parts of the island. The effects of the bi-national treaty in turn shaped the internal debates within republicanism and unionism over participation in negotiations. The negotiations leading to the Good Friday Agreement itself are beyond the scope of this article. Suffice to say that the mechanism for self-determination was necessary, but not sufficient, for transforming the conflict from violence to constitutionalism. The agreement on a mechanism for self-determination preceded the negotiation of the subsequent aspects of agreement, including creative power-sharing institutions, substantive devolved authority from the UK, confederal links between Northern Ireland and the Irish Republic, and reciprocal individual and collective rights protections in both jurisdictions. A vital element in Ulster Unionist leader David Trimble's ability to sell the Good Friday Agreement to a bare majority of his skeptical community was the success in converting the Irish claim to sovereignty to an aspiration for unity by consent. The mechanism for self-determination was the centre-piece of the separate British-Irish Treaty which is both constitutive and regulative of the Good Friday Agreement. The Irish government amended Articles 2 and 3 of its Constitution to convert its claim to sovereignty over Northern Ireland into an aspiration for unity by consent. In exchange, the British government rescinded two sources of its damns to sovereignty over Northern Ireland as found in Section 75 of the Government of Ireland Act (1920) and the Ireland Act (1949). While the United Kingdom's claim to sovereignty over Northern Ireland remains (based on the Act of Union of 1800) the agreement to relinquish sovereignty based on the concurrent majority rule establishes a clear constitutional mechanism for reunification. It should also be noted that hi-national, concurrent majority principle is operative at subsidiary levels of governance, both within the power-sharing executive (now suspended) and at the confederal level in terms of decision-rules within the North-South Ministerial Council.
H. L. de Silva has argued that federalism in the Sri Lankan context will amount to 'evolutionary secession as de facto territorial autonomy for the North and East will merely 'whet the appetite for more powers'. For de Silva, devolution or federalism has the potential to violate the 'final and essential postulate on which the whole legal order of the Republic rests' because it threatens to undermine the 'sense of unity and the concept of a single collective identity of the People (which is) encapsulated in the concept of the sovereignty of the people which may be properly described as the central norm of the law of the Constitution..'
There are grounds, in other words, for questioning and re-examining the 'pre-existing values which precede and transcend the constitution'. To argue that these values and principles are 'eternal and irrefragable and cannot be compromised by understandings reached by itinerant negotiators or anybody else', raises them to a perennialist or even primordialist axiom whose very rigidity can be considered a source of conflict rather than a source of stability while disagreement persists on the foundational legitimacy of the state. Moreover, any constitution that agrees a mechanism for amendment has agreed a priori to regulate rather than reify sovereignty. Neither does one need to accept the bona fides of the LTTE to progress a conflict regulation process. If one believes that the LTTE is bluffing concerning its acceptance of an internal solution, the best strategy is not to overturn the card table but instead to play the hand dealt and call the opponent's hand (whether or not it is a bluff). Already, there is evidence that the LTTE are facing, however grudgingly, the realities of political bargaining: committing in principle to power-sharing (with Sinhalese and Muslim parties) in the East; accepting the principle of multi-party democracy (moving away from its 'sole representative' stance) and signing up to commitments to protect human rights in areas under its de facto authority. There is no question that these commitments are being breached on the ground but over the longer term, and given reciprocal implementation moves by the Sri Lankan government, these commitments will become increasingly difficult to breach without risking both domestic and international status. An agreed mechanism for self-determination offers a necessary, though not a sufficient, approach to a settlement. The following proposal applies comparative empirical analysis of conflict transformation to recommend mechanisms for self-determination within the terms of the Liechtenstein Draft Convention on Self-Determination. The concurrent majority principle that was the linchpin of the British-Irish (Good Friday) Agreement could be adapted to the Sri Lankan case as follows, assuming the current federalist trajectory of negotiations:
The main advantage of such an approach is to provide clarity on the related questions of external and internal self-determination. The concurrent majority veto powers should reassure the Sinhalese majority on the island that they have an effective veto over any change in the territorial status of the island. This mechanism of self-determination removes the 'slippery slope' threat that many associate with federalism or constituted devolution. At the same time, the concurrent majority formula guarantees Tamils (or any other potential secessionists) two important safeguards: first, that authorities devolved to the Provinces cannot be rescinded without their consent; secondly, that a constitutional mechanism exists for the achievement of Eelam (or independence, or a reconfigured Province) in the future, albeit subject to the consent of the rest of the island. This approach is consistent with even close reading of the Thimpu principles, which currently define Tamil claims to self-determination. This formula also fulfils the criteria of popular sovereignty identified by H. L. de Silva and others as foundational of the Sri Lankan Constitution because it gives the people (or their representatives) the final say on core regulative aspects of sovereignty, albeit in separate, simultaneous plebiscites (or concurrent majority votes in representative assemblies). Moreover these proposals address the absence of a mechanism for constituting devolved power, which was a central obstacle in securing LTTE consent in all phases of negotiation from the Indo-Lanka devolution attempt from the mid-1980s to the 1997-2000 devolution amendments. It should also be noted that such a mechanism does not preclude 'paradiplomacy' or inter-governmental links between or among devolved (or federal) parts of Sri Lanka, including inter-governmental institutions with executive authority over delegated policy areas. If a peace deal results in separate Northern and Eastern Provinces, for example, it is possible to envisage significant inter-governmental links allowing cooperation between areas claimed as the Tamil homeland while protecting the territorial interests of Muslims and Sinhalese in the Eastern Province. In theory, such inter-governmental links could be extended to confederal relations with neighbouring jurisdictions, such as Tamil Nadu, provided there was agreement between the Indian and Sri Lankan central governments (the latter using the concurrent majority rule). The same principle could be applied to the regulation of subsequent changes to territorial composition of Provinces, a central point of contention given the ambiguity surrounding the relationship between the Northern and Eastern provinces. I. Why would LTTE sign up to a mechanism that gives the Sinhalese majority a veto on external self-determination? This is a particularly serious objection in light of the comparative analysis with Northern Ireland because a central portion of the logic of Sinn Fein acceptance of the concurrent majority rule was and in the belief that Catholic/nationalist will soon become the majority in Northern Ireland. They have a realistic expectation that they will be able to achieve through referenda what they could not achieve through war. But the achievement of a Catholic/nationalist majority in Northern Ireland will not automatically translate into support for Irish unification because, historically, approximately 15-20% of Catholic/nationalists have expressed support for continuing the union with Britain. The point is that demographic uncertainty incentives both groups to focus on internal (regulative) sovereignty, federation and power-sharing rather than fixating on the numbers game. On the other hand, the LTTE demand for external self-determination is not as deeply held as the Irish majority wish for territorial integrity and independence from Britain. In this sense, the nation-state goals are reversed as the IRA was fighting for the achievement of territorial reunification, claiming to fulfill the constitutional imperative to unity (Article 2 and 3) and consistent with a central ambition of the dominant party in Ireland: Fianna Fail. By contrast, the LTTE's and other Tamil demands for Eelam emerged only after the failure to reach internal accommodation with the Sinhalese majority in the post-independence period. The goal of Eelam was arguably a result, not a cause, of Tamil disaffection with majoritarian domination, just as Sinhalese majoritarianism was a result of the iniquitous divide and rule strategy of favouring Tamils within the British colonial administration. Concurrent-majority principles can thus be seen as a way of addressing deeper structural cause of historical conflict, specifically guarding against the type of majoritarianism that sewed deeper divisions. Secondly the idea that the Sinhalese majority would never accede to Tamil self-determination dismisses the viability of what Ian Lustick identifies as 'state contraction' as an approach to state-craft. With the internationalization of economies, the scale-advantages, attributed to large territorial states are less deterministic of growth than previously. As a result, the same logic that applies to Tamil aspirations to become a Singapore or Hong Kong of South Asia has potentially equal implications for the Sinhalese-dominated regions of Sri Lanka. The current government's pursuit of regional economic links with South India and Japan is further testament to potential shifts away from an island-centric political economy. A divided Sri Lanka may be unthinkable for the majority, but constitutional mechanisms should be designed to take into account potential shifts in currently dominant conceptions of governmental and state sovereignty. Against these forces of disintegration one has to recognise the particular stabilizing factors attributed to small islands. Adrian Guelke has written authoritatively on the bias in international politics for maintaining the integrity of small islands. The same pressures that promote international opinion in favour of Irish, Cypriot, Taiwanese (etc.) territorial integrity are likely to similarly promote the integrity of Sri Lanka. So despite these countervailing potentials for integration or disintegration, the wider point is that the uncertainty of long-term prospects for either are best confronted and managed through political agreement which allows for either state-consolidation or state-contraction to be regulated rather than merely responded to. 2. Why would Sinhalese majority give the LTTE an excuse to pursue Eelam by force if a self-determination bid was continuously rejected by the rest of Sri Lanka? In other words, after a generation of refusals, Tamils could argue that force was justified because of the intransigence of the rest of Sri Lanka in preventing self-determination. This is a version of the 'mega-constitutionalism' argument against consensual, inclusive governance. One (slightly optimistic) view is that if the LTTE were to abrogate their commitment to the constitutional mechanism for self-determination, their chances of recognition of any putative Eelam by the international community would be minimal. They would achieve, at best, the pariah status of the Turkish Republic of Northern Cyprus. Against this view, it is clear that current international sanctions against state disintegration are insufficient to provide external security. The break-up of Yugoslavia and Ethiopia despite explicit threats of non-recognition by the US did little to deter Slovenian, Croatian or Eritrean secession and almost overnight recognition by the 'international community'. The recognition of Bangladesh during the height of the Cold War moratorium on external self-determination gives further cause for doubt, highlighting once again the need to regulate certainty. Regionally, Sri Lanka has, on balance, a crucial ally - India - whose interest in preventing a precedent-setting Tamil independence movement is likely to continue to act as an effective deterrence to a non-negotiated declaration of independence. Unlike the 'big brother' relationship between Turkey and TRNC, the Indian 'big brother' to Tamil separatists has a clear incentive to prevent Eelam as a bridge to a greater Tamil homeland. That is why a Lanka-India Accord, including improved formal and informal inter-governmental relations is central to managing the creative process of conflict regulation. More generally, the Indian experience supports the argument that a responsive and accommodative centre can reduce separatist demands by ethno-nationalists. Both the modifications of the federal system to reconfigure states along ethno-linguistic lines, and the subsequent practice of power-sharing at the centre, however informal, are consistent with the need to regulate, rather than reify sovereignty. Moreover, far from maintaining a strict moratorium on external self-determination, Kashmir was granted the right to hold a referendum on self-determination. Even though it has not been implemented, the recognition of the right to external self-determination is a potentially important precedent. On balance, this reactive, ambiguous and un-implemented policy also compares unfavourably to the regulated mechanism being proposed for Sri Lanka. If we consider the most proximate comparator to the political and strategic calculus of Tamils in Sri Lanka -their co-ethnics in Tamil Nadu - we can offer further hope for the durability of a quasi-federal, substantively devolved settlement. Against H. L. de Silva's pronouncement that devolution to ethnically concentrated groups will accentuate the trend towards separatism, Atul Kohli has argued convincingly that separatism in Tamil Nadu has been successfully managed and reduced through the modifications to the federal system which offer incentives to cooperate within the federal union. The reversal of the 'Hindi-first' language policies of the post-Nehru era, granting Tamil co-equal status with the official federal languages (Hindi and English), combined with the opening up to opportunities for non-Brahman castes within the state administration, effectively neutralized the independence demands of the Dravida Munnetra Kazhagam (DMK). According to Kohhi:
Like the IRA, and for a time the PLO, the DMK was transformed by changed political opportunity structures to shift from a military-political to a political-military movement. In Northern Ireland the resilience of the mechanism for self-determination is demonstrated by the reasonably solid public support for the Good Friday Agreement and specifically, the solidity of the republican (Sinn Fein and IRA) commitment to it, despite the lower than anticipated census figures recently published. Despite tactical appearances to the contrary, the IRA is trading weapons for significant electoral gains, police reform and demilitarization, thus managing its grass-roots while deepening its stake in the Agreement. It might lead to a united Ireland, but it might not, and in the margins of uncertainty there is a solid logic for power-sharing and federalism to transcend and changes to constitutive sovereignty. At the same time, the process of co-opting extreme ethno-nationalists into constitutional compromise was a reciprocal exchange. Both the British and Indian governments have had to concede significant aspects of regulative sovereignty, in terms of political autonomy, collective and individual rights protections. By doing so they have made the prospects of international opprobrium much higher for any group that might assert a continued right to forceful separatism. Broadening the comparisons, we can posit that the best cure against external self-determination is the delivery of stable, regulated, internal self-determination. Against those who assume that devolved autonomy or federation will lead to secession, comparative research suggests that when devolution or federal solutions fail, it is more often due to the refusal or inability of the centre to implement commitments to devolution or federalism than because of growing demands among separatists. The case of Sikh demands in India is illustrative. It is the only case in the 11 cases studied by Ted Gurr and his colleagues, in which devolution or other autonomy arrangements led to subsequent demands for independence. Even if we add the recent cases of Chechnya and Georgia within the Russian Federation, we can conclude that even these exceptions support the argument that autonomy arrangements broke down because of the refusal of the centre to implement promised devolved authorities and not simply from the whetted appetites of unilateral separatists. More recent developments in the case of Sikhs in Punjab lend further support to the argument that a responsive centre can reduce demands for independence through substantive autonomy. In the European context, federation or significant devolution to ethno nationally homogenous territories has moderated demands for secession among Scots, Catalans, Basques and Flemish separatists. Even if we accept the special conditions which facilitate inter-governmental conflict regulation in Europe, we can also recognise that the South East Asian regional context is also conducive to regulating self-determination, compared for example to most of Africa or significant portions of the Middle East. Sri Lankan economic and political relations with India and Japan in particular are likely to add to the potential reward power necessary to distribute benefits necessary to underpin a political settlement. In comparative and regional contexts, the joint Sri Lankan-Indian interest in regulating self-determination is a vital asset for conflict regulation because delivering an Indian recognition of the self-determination mechanism reinforces its constitutional sanctity. And inter-governmental co-operation in areas such as trade, infrastructure links, frontier (naval) controls will be necessary to provide psychic and physical security. It is my contention that the establishment of inter-governmental agreement on the territorial integrity of Sri Two important indicators of the success in establishing these ground norms are the failure (to date) of the attempted PA-VP alliance, which looks likely to stall on the PA's commitment to its own federal principles and opinion polls that show rising support for Indian involvement in the constitutional process. Given that the PA is also in favour of a more prominent role for India, a Lanka-India treaty guarantee would re-enforce the bipartisan underpinning of a settlement, necessary to secure the two-thirds majority to ratify an agreement. Where significant historical sovereignty claims have been sought consistently, and particularly where they are based on hi-national cleavages, the structures of settlement have to be built on these 'fault-lines' rather than wished away through assumed civic-national primacy. Those who advocate both strong, centralized, unitary state and/or strong local government assume agreement on the polity, when there is none. It is crucial to understand that the recognition of a right of self-determination does not mean acceptance of the veracity, historically, morally etc. of those claims, merely that they are felt subjectively by a named population (usually) living in a concentrated territorial space. Instead, as has evolved in the Canadian-Quebec and the British-Irish constitutional relationships, once recognised and constitutionally entrenched, the principle of national self-determination can be regulated in practice by international treaty, domestic judiciary and mediated through routinised inter-governmentalism. In these cases, it appears possible, indeed necessary, to constitute mechanisms for self-determination, while possibly disagreeing the trajectory of the nation-state. It is also clear that devolving or federating internal phases of sovereignty can be effective in reducing separatism, and thereby removing important sources of disagreement over the nation-state. |
