Earned Sovereignty: East Timor…Kosovo…Sri Lanka?

The statement issued by the LTTE political wing to coincide with the 62nd General Assembly of the UN raises several interesting concerns. A careful look at the statement reveal that this is not just another statement of the LTTE but a policy statement that spells out its future strategic direction. I refer to the final section of the paper that refer to the expectations of the Tamil people from the international community(i).

1.To recognize the concept of the sovereignty of the Tamil people, and support the peace process in accordance with this principle.
2. To provide appropriate opportunities to the Tamil people to express their aspirations, as have been given to the people of East Timor and Kosovo.

The demand for a separate state and the creation of a Tamil nation has been the foremost concern of the LTTE. The ethno political conflict is about reasserting the Tamil identity separate and distinct from a Sri Lankan identity. Today there are some 140 self-determination movements(ii). Those aspiring to gain self-determination often engage in violence and acts of terrorism and LTTE is no exception. This hinders any constructive resolution efforts. Violence of secessionist movements attract harsh military responses from states and often violates international laws concerning the protection of civilians, humanitarian concerns and human rights.

In light of recent developments in international law and the perception towards absolute sovereignty being a barrier to conflict resolution, LTTE’s reference to the cases of Kosovo and East Timor indicates a policy shift towards a concept that diplomats and the international community have adopted in resolving secessionist conflicts: This concept is Earned Sovereignty. Visuvanathan Rudrakumaran, who is a high profile lawyer in New York and is a legal advisor to the LTTE in a speech titled “The LTTE's Flexibility in the Current Peace Process” delivered at the Centre for Just Peace and Democracy's 'Envisioning New Trajectories for Peace in Sri Lanka' conference held in Zurich, April, 2006 proposed the idea of Earned Sovereignty and challenged the international community to act on it(iii).

According to Rudrakumaran “ Although the international community employs concepts such as “earned sovereignty,” “phased out sovereignty” and “conditional sovereignty” in the above conflicts [Southern Sudan, Northern Ireland, Montenegro and Bouganville], its insistence that the Tamil – Sinhala conflict on the island of Sri Lanka be resolved within a united country creates a perception that the international community is applying a double standard. Even purely from the point of view of negotiation, leaving the options of “earned sovereignty,” “phased out sovereignty,” and “conditional sovereignty” off the negotiation table will reduce the incentive for the Sinhala Nation to put forward a meaningful power-sharing proposal or even to take the peace process seriously”(iv) Thus, the statement issued by the political wing of the LTTE addressed to the UN is significant because this is the first instance of LTTE acknowledging in public and advocating international intervention based on a concept that straddles humanitarian intervention and self-determination.

The concept of Earned Sovereignty has been a relatively successful conflict resolution tool in some countries, however it produced mixed results in some protracted conflicts(v). Attention to this concept gained currency among political leaders and diplomats due to several reasons. Secessionist conflicts challenge the notion of sovereignty hence traditional methods of conflict resolution cannot resolve these conflicts without eroding sovereignty of a given state. However many scholars and practitioners feel that that the hurdle of sovereignty can be overcome through the judicious application of Earned Sovereignty.

What is Earned Sovereignty?

Earned sovereignty is “a conceptual and a practical tool of conflict resolution that seeks to reconcile the principles of self-determination and humanitarian intervention with the principles of sovereignty and territorial integrity”(vi). “Earned sovereignty, as developed in recent state practice, entails the conditional and progressive devolution of sovereign powers and authority from a state to a sub state entity under international supervision. Earned sovereignty most naturally develops within a peace process as a multi-stage approach to address the issue of the final political status of the sub state entity”(vii). Earned Sovereignty is a process and has six stages out of which the first three form the core elements of the concept(viii).

(1) Shared Sovereignty, where the state, or an international organization, and the substrate entity may both exercise some sovereign authority and functions over a defined territory for a specified period of time; (The ISGA and the PTOMS would fall under this category.)

(2) Institution Building, where prior to the determination of final status, the sub state entity, frequently with the assistance of the international community, undertakes to construct new institutions for self-government, or modify those already in existence; and (international aid and donor agencies have been working tirelessly with LTTE political and administrative institutions and has developed extensive networks with the international community)

(3) A Determination of Final Status, where the relationship between the state and the sub state entity is determined with the consent of the international community. (The third stage proposes active international involvement and as afore mentioned this could be in the form on intervention based on humanitarian grounds)(ix)

The additional three stages provide flexibility to strengthen the core principles:

(1) Phased Sovereignty, where the sub-state entity acquires increasing sovereign authority and functions over a specified period of time prior to the determination of final status;

(2) Conditional Sovereignty, where the sub-state entity is required to meet certain benchmarks such as human rights enforcement before it may acquire increased sovereignty; and

(3) Constrained Sovereignty, which involves continued limitations on the sovereign authority and functions of the new state, such as continued international administrative and/or military presence, and limits on the right of the state to undertake territorial association with other states.

The gravity of this letter is its reference to a successful concept that has produced results and the challenge it throws at the international community to act on it. This is what GOSL policy makers should focus on, debate, discuss and plan its next strategic move. So far, there has been no response from the GOSL on the letters conceptual and content related issues.

Practical use of this concept has produced reasonably stable results in Kosovo and East Timor. UN Security Council Resolution 1244 for Kosovo(x) and UN Security Council Resolution 1272 for East Timor(xi) highlights the resolve of the international community to act on a humanitarian crisis and address the issue of the rights of a minority community.

Therefore dismissing the letter sent by the LTTE to the UN as an act of propaganda or dismissing it, as a sign of military weakness of the LTTE will turn out to be detrimental to the GOSL in its political war against the LTTE. Repeatedly scholars and analysts have urged GOSL to be strategic and think strategically about the conflict. The current clamor of the international community about human rights and humanitarian concerns will not abate. The confrontational attitude of some of the Sri Lankan ambassadors will not help to dismiss concerns of the international community about humanitarian and human rights concerns rather they have reinforced the perception that Sri Lanka pays little or no attention to what the international community feels.

There can be many more military victories over the LTTE, however if the GOSL can not win the battle of ideas that is being played in the international arena Sri Lanka will be the next successful case study for scholars studying “ Earned Sovereignty”

(i) Tamil sovereignty, basis of peace talks – LTTE (accessed on September 24, 2007) http://www.tamilnet.com/art.html?catid=13&artid=23362
(ii) See Halim Morris, Self Determination and Affirmative Right or Rhetoric?, 4 ILSA J INTL& COMP.L. 201,201 (1997)
(iii) The LTTE's Flexibility in the Current Peace Process (accessed on September 24, 2007) available from http://sangam.org/taraki/articles/2006/07-12_Flexibility.php?uid=1833
(iv) The LTTE's Flexibility in the Current Peace Process (accessed on September 24, 2007) available from http://sangam.org/taraki/articles/2006/07-12_Flexibility.php?uid=1833
(v) See Earned Sovereignty: Judicial Underpinnings by Michael P. Scharf
(vi) Ibid. P375.
(vii) Public International Law and Policy Group- Earned Sovereignty. (accessed on September 27th, 2007) http://www.publicinternationallaw.org/areas/peacebuilding/earnedsov/index.html . This working definition propounded by the Public International Law and Policy Group has more significance owing to its involvement with the Government of Sri Lanka. The group provides pro-bono legal assistance to the government of Sri Lanka on the Peace Process and opened its office in Colombo in May 2006.
(viii) See http://www.publicinternationallaw.org/areas/peacebuilding/earnedsov/index.html
(ix) Humanitarian Intervention under Chapter V11 of the UN Charter
(x) http://www.unmikonline.org/misc/N9917289.pdf
(xi)http://daccessdds.un.org/doc/UNDOC/GEN/N99/312/77/PDF/N9931277.pdf?OpenElement