Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C 

Conflict Resolution
in aN ASYMMETRIC Multi Lateral World

Earned Sovereignty:
Bridging the Gap between Self Determination and Sovereignty

"...What is the role of biased mediators in bringing belligerents to a negotiated settlement in internal armed conflicts? Previous research has suggested that biased third parties may mitigate commitment problems between parties, by serving as guarantors for the weakening side. This article contributes to the previous debate by distinguishing, theoretically and empirically, between government- and rebel-biased mediation. When belligerents in internal armed conflicts consider ending their armed conflict through a negotiated settlement, the government stands to relinquish authority, whereas the rebels stand to gain opportunities — legitimacy, time and access to official structures — that can be exploited in the post-agreement future. Hence, in the pre-settlement phase of the conflict process, it is above all the rebels that have problems committing to peace. The author argues that government-biased mediators can decrease the fears of the government and thereby mitigate the rebels' commitment problems. Using new data on the dyadic level covering all intrastate armed conflict in the period 1989—2003, this article examines states, organizations and individuals that are mediating in states' internal conflicts. The empirical analysis supports the above-mentioned argument. Mediators on the side of the government have a positive effect on negotiated settlements, while rebel-biased mediators have no significant effect..." Isak Svensson - Bargaining, Bias and Peace Brokers: How Rebels Commit to Peace, Journal of Peace Research, 2007

"...much more interesting is your claim that 'no state has the right to pursue the internal policies it wishes to if they are in conflict with basic values of freedom'. Quite a statement! Not that I'm not sympathetic to it; but it is based on a rather radical conception of sovereignty, namely sovereignty as something that must be 'earned' by granting one's citizens certain basic rights and freedoms. There are many who would disagree with you on that. More importantly, there are more than a few states who grant their citizens virtually no rights at all.." Judge Jonathan.blogspot. 2005

[see also  Conflict Resolution in an Asymmetric Multi Lateral World -  Country Studies]

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Workshop on Bridging the Gap between Self-Determination and Sovereignty - Centre for Just Peace and Democracy (CJPD) in collaboration with Berghof Foundation for Conflict Studies, May 2008

"The ongoing reconstruction of sovereignty as an institution with functional and ontological significance indicates that it is both founded on the basis of and maintains an important role in shaping international norms. Through practice and rhetoric, state and non-state actors have developed a complex system of terminology that reflects the evolution of sovereignty and its normative framework. This article examines the contributions of state representatives, international institutions and international relations scholars to the re-conceptualization of the fundamental institution of the world order. .. “earned sovereignty,” illustrates how divisibility qualifiers are used not only at the macro level to describe broad, overarching trends, but also at the micro level, where they are heavily contested, in reference to particular cases of conflict resolution.

... Earned sovereignty entails the “conditional and progressive devolution of sovereign powers…from a state to a sub-state entity under international supervision.”39 Similar qualifying adjectives of the divisibility group also give rise to the creation of such quasi-state structures as the UN Mission in Kosovo and other transitional administrations. These sub-state communities are placed in an indeterminate position, as they are neither part of a recognized state nor fully sovereign. Earned sovereignty thus captures the process during which a political entity acquires a temporary status en route toward a conventional conception of sovereignty. According to this interpretation, sovereignty is no longer the unitary right of the state; rather, it is comprised of a collection of separate competencies and authoritative functions. As a sub-state entity acquires the capacity to self-administer, it progresses toward achieving sovereign status..."

"Questions of state sovereignty are the cause of many conflicts today. The theory of earned sovereignty is an evolving concept. A review of recent practice in southern Sudan, Bougainville, and Aceh shows that the core elements of earned sovereignty offer a three-part roadmap for conflict resolution beginning with shared sovereignty, continuing through institution building, and ending at a determination of final status. Other parts of the theory called, “optional elements,” are tools stakeholders in a conflict situation may use in order to move from one core element to another until a final status solution is obtained. Though the optional elements of phased sovereignty, conditional sovereignty, and constrained sovereignty are parts of earned sovereignty they need not always be used. In-depth analysis of the peace agreements in southern Sudan, Bougainville, and Aceh show that, while the core elements are implemented throughout, the optional elements are used to varying degrees and in some instances not at all."

"...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.

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. 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... 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..."

On Earned Sovereignty in the Conflict in Sri Lanka in Presentation by Viswanathan Rudrakumaran in International Seminar: Envisioning New Trajectories for Peace in Sri Lanka, 7 - 9 April 2006

"The Machakos Protocol, signed with the facilitation of the US, the UK, Norway, and Italy recognized the South Sudanese people’s right to form an independent state. The Protocol provides for a referendum in South Sudan after six years on the question of remaining within the state of Sudan or forming a separate state. Similarly, the Good Friday agreement allows the people of Northern Ireland to determine their political future through a referendum every seven years. Along these same lines, the Serbian – Montenegrin Agreement recognizes the Montenegrin people’s right to form an independent state and provides for a referendum on this matter after three years. The Papua New Guinea- Bouganville Agreement allows Bouganville to hold a referendum between ten and fifteen years hence to ascertain the political aspirations of the Bouganville people.

South Sudan, Northern Ireland, Montenegro and Bouganville are not relics of colonialism. The above conflicts arose in non-colonial contexts. The international community did not oppose the Machakos Protocol on the grounds that it infringed on the sovereignty or the territorial integrity of the United Kingdom. It did not oppose the Serbia – Montenegro Agreement on the grounds that it infringed on the sovereignty or the territorial integrity of Serbia. It did not oppose the Papua New Guinea - Bouganville agreement on the grounds that it violated the sovereignty or the territorial integrity of Papua New Guinea. The international community did not set any pre-negotiation parameters on what the outcome of peace negotiations should be in any of the above-mentioned conflicts. Recently, the UN Secretary General Kofi Annan stated that “Talks on whether Kosovo should remain part of Serbia or be given independence should start soon.” Thus, although the international community employs concepts such as “earned sovereignty,” “phased out sovereignty” and “conditional sovereignty” in the above conflicts, 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. On the other hand, having these options on the table will increase the confidence of the Tamils in the fairness of the current peace process. As Arend Liphart argues, the best way to avoid partition is not to resist it. "

 This article looks at emergent challenges to the sanctity of international borders. It first provides a brief discussion of international law on the issues of uti possidetis and territorial integrity. It then examines challenges to these ideas that have emerged in recent years through the notion of contingent sovereignty and its relation to earlier calls for humanitarian intervention and current discussions around reform of the United Nations. In contrast the other side of the coin is the notion of earned sovereignty, where new states can enjoy transitional paths to independence or secession. The former has enjoyed much more international support, but both ways of rethinking the notion of sovereignty have important territorial implications. The article concludes by raising questions about this relation and the question of borders more generally. Since the end of World War II, the international political system has been structured around three central tenets: the notion of equal sovereignty of states, internal competence for domestic jurisdiction, and territorial preservation of existing boundaries.

"..One of the most common situations is when a people claim the right to self-determination, the larger entity of which it is a part argues for state sovereignty and territorial integrity. Recently a new idea has emerged to deal with such situations. Earned sovereignty is designed to create an opportunity for resolving such conflicts through managed devolution of sovereign authority and functions from a state to a substate entity and thereby promotes coexistence between a state and a people by establishing a power sharing agreement. (P. Williams and F. Pecci, Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination, Stanford Journal of International Law 40 (2004) p. 354-355) Proponents of earned sovereignty say that it is neutral in the debate between self-determination and sovereignty and that earned sovereignty bridges the “sovereignty first” and “self-determination first” approaches and draw on their strengths while minimizing their disadvantages.  As the sovereignty and self-determination arguments, according to proponents of earned sovereignty state, “have been reduced to little more than legal and political shields behind which states and substate entities justify their actions,” finding a new way to determine the future status of a state had to emerge to resolve conflicts. The peoples or substate entities are guided through a process of transition to statehood or heightened autonomy in a way that does not undermine the legitimate interest of parent states and of the international community. Proponents of this strategy also state that earned sovereignty re-establishes security and promotes democracy and institution building. "

"The peace process broke down because the two parties were unable to agree on the fundamental issue dividing them: whether Aceh would become an independent nation or remain an integral part of the Indonesian state. Leaders in Jakarta were determined to maintain Indonesia’s territorial integrity and prevent “national disintegration.” But GAM leaders were equally adamant that Aceh had an incontrovertible right to independence. The strategy of the peace process, as conceived by its Geneva-based mediator, was to bridge the gap between the two sides by shifting the focus away from incompatible goals toward more immediate concerns such as reduction in hostilities, disarmament, reconstruction, and the like. It was hoped that the two sides would be able to develop greater confidence in one another and perhaps eventually come up with unexpected and creative means to resolve the underlying political difference. In other words: the idea was to develop a political framework for resolving the conflict by peaceful rather than violent means. Reality proved to be very different. Not only were the two sides rarely able to put aside their differences over first principles, but neither evinced an unreserved commitment to the peace process as the primary means for resolving the conflict."

"This article is the first in a series of three articles prepared under the auspices of the Public International Law & Policy Group that discuss the emerging approach of earned sovereignty, and is the product of the melding of two presentations delivered at the University of Denver by the co-authors. The purpose of this article is to provide a detailed definition of earned sovereignty, and its sub-components, as well as to track the development of the approach through recent state practice. The second article sets forth the legal basis for the approach, and the third article tracks international efforts to employ the approach as a basis for structuring a long term resolution of the Kosovo conflict...

There are currently over fifty sovereignty-based conflicts throughout the world, and nearly a third of the Specially Designated Global Terrorists listed by the United States Treasury Department are associated with sovereignty-based conflicts and self-determination movements. To date, the “sovereignty first” international response to these conflicts has been unable to stem the tide of violence, and in many instances may have contributed to further outbreaks of violence. This article will argue that the “sovereignty first” doctrine is slowly being supplemented by a new conflict resolution approach which we dub “earned sovereignty.”" more

"...It has often been said that 'the defining issue in international law for the 21st century is finding compromises between the principles of self-determination and the sanctity of borders.' Today. there are some 140 self-determination movements world-wide. Those aspiring to obtain self-determination often resort to terrorism or armed conflict. Most of the groups on the United States (U.S.) Department of State's list of terrorist organizations are self-determination movements...This piece is the second in a trilogy of three simultaneously published articles in the Denver Journal of International Law that examine the emerging doctrine of "earned sovereignty," a concept that seeks to reconcile the principles of self-determination and humanitarian intervention with the principles of sovereignty and territorial integrity. This article sets forth the legal underpinnings for the doctrine, while the other two articles in the trilogy provide its policy foundations, and apply the doctrine to several modern case studies..."

"...The ability to determine the final status of the substate entity years after the initial peace agreement provides an opportunity for the parties to make a decision on final status at a time when passions are not inflamed by an ongoing armed conflict. The approach also permits a more rational, deliberative process, which may involve the international community in some form. Similarly, the involvement of the international community in institution building benefits the state and substate entity by enabling the creation of institutions necessary to ensure the stable operation of the substate entity, either as a new state or as a province with heightened autonomy. The creation of domestic institutions also provides the state and the international community with an additional point of contact to pressure the substate entity, which facilitates the protection of legitimate interests, such as the protection of minority rights, and responsible regional behavior..."

"...Continuing international ambiguity and delay over the final status of Kosovo is increasingly untenable. Confusion and obfuscation over whether the territory becomes a long-term United Nations (UN) or European Union (EU) protectorate, is unilaterally handed over to Belgrade’s control, or is finally launched on a trajectory for statehood erodes the effectiveness of the UN Mission in Kosovo (UNMIK), fuels the misplaced hopes for some in Serbia that all or part of Kosovo will again come under the authority of Belgrade, postpones stability in Southeast Europe, and most disturbingly, contributes to increased tensions, political and economic stagnation, and an unhealthy culture of dependence among Kosovo’s ambitious, youthful, and growing population. The international community has argued that Kosovo’s society and institutions must demonstrate that they are ready to govern responsibly before discussions on final status can begin. However, such a position, nourished by the ambivalence over status in UN Resolution 1244, turns the problem on it head. It is not so much up to the Kosovars to prove their ability to govern as much as it is up to the international community to make the case for why the development of functioning institutions in Kosovo precludes the determination of the territory’s final status or why the nature of that status should remain in question..."