The statement of the LTTE marking the unhappy 5th Anniversary of the CFA is a noteworthy document, coming as it does at this juncture of the current conflict cycle. It is no doubt, a partisan account, but it represents a rather well stated case.
It seeks to give a comprehensive account of events of the past six years or so; engages international humanitarian law in its critique of the conduct of the government and the international community; and reiterates assumptive principles of process such as parity of status, balance of power, and international guarantees (and also, by sleight of hand, ‘authentic representative’ as opposed to ‘sole representative’) that underpin the CFA of 2002.
It also contains a succinct restatement of the historical dimensions of the Tamil struggle through peace means to armed conflict; and indicates in outline the substantive parameters of a negotiated settlement acceptable to the LTTE by reference to other international peace agreements.
In the absence of Lakshman Kadirgamar, it is difficult to imagine whether the response of the government, if there is one, would meet the LTTE’s document on the same intellectual plane, but that is to anticipate events.
In any event, it is the latter set of issues relating to substance that are more interesting.
Clearly, the LTTE wants a resolution to its self-determination claim that goes the way of secession, or graduated secession and earned sovereignty as its invocation of the Machakos Protocol from the Sudan peace process and the Ahtisaari proposals for Kosovo seems to indicate.
Theirs is a freedom struggle for a territory and people entitled to self-determination as articulated in common Article 1 of the human rights Covenants of 1966 and customary international law.
If that was not enough, having met with a repetitive history of duplicity and rejection with regard to federal autonomy, they are now in a position to assert sovereign statehood by virtue of control over territory and population and capacity to enter into international agreements.
The LTTE is the ‘authentic representative’ by virtue of not only the indirect democratic mandates gained by the TNA, but also by having delivered to the Tamil homeland the trappings of a de facto State.
All this is fine as the articulation of a position. But in practice, there are several obstacles that may prove very difficult to overcome in the LTTE’s quest to place itself in the position of the SPLM/A in Southern Sudan or the KLA in Kosovo.
As a matter of international law, the preponderance of the debate on self-determination is about the development of the right to internal self-determination within existing States in meeting collective claims such as those of the Tamils of North-eastern Sri Lanka.
Unilateral secession is without question actively discouraged in international law.
In turn, this is an aspect of the ongoing development of democracy as a principle of international law, wherein internal self-determination is advanced as inherent to emerging entitlements of democratic self-government within States.
This is where the 2003 Oslo Declaration with its reference to internal self-determination was an outstanding contribution to good sense as a framework for peace in Sri Lanka, but which both parties abandoned on zero sum calculations.
In this context, the LTTE’s own conduct with regard to human rights, democracy and political pluralism in the Northeast creates difficulties for itself in engaging international law in its cause.
On the other hand, as the examples of Southern Sudan and Kosovo demonstrate, international politics is more often than not, more important in strategising secession than rigid concepts of international law.
Nothing in international law entitles the Kosovars or the Southern Sudanese to the strategic autonomy and progressive sovereignty deals they have achieved, but for the odium and international revulsion that Serbian nationalists and Khartoum Arab-Islamists had brought upon themselves by their treatment of the former.
The adroitness of the LTTE statement lies precisely here.
What appears to be a plaintive lament about the international community’s abandonment of the Tamils is in fact a strategically skilful and legally astute ploy designed to exploit the fundamental weakness of the Colombo regime.
That is, Colombo’s reliance on the notoriously fickle support of the international community in the pursuit of a military solution that is accompanied by serious and systematic human rights violations and no ideas on a political settlement.
Staying this course on the part of Colombo, would have a very high probability of legitimising the case for a level of autonomy so extraordinary that even if the LTTE never quite circumvents the geopolitical considerations in realising full legal sovereign statehood, the Northeast would certainly reach a kind of state-like character ipso facto.
The LTTE therefore has studied its situation in comparative context and learnt the lessons well.
If there is such a thing as a policy-making mind in this administration, it would do well to keep these considerations in mind.
Asanga Welikala is a Research Associate with the Legal & Constitutional Unit of the Centre for Policy Alternatives (CPA), Colombo. The views expressed here are the personal views of the author and do not necessarily represent the views of CPA.
The full text of the LTTE’s statement is available at http://www.ltteps.org/?view=1877&folder=17