Beyond War: The Globalisation of Tamil Nationalism
The Tigers may have silenced their guns, but in the wake of Sri Lanka’s civil war, what prospects remain for Tamil claims to self-determination? Samuel Thampapillai and Mario Emmanuel explore this pertinent question in this edition’s lead article
Introduction
International law and the geopolitical order are fundamentally predicated on the sovereignty of states. Running counter to this is the legal notion of self-determination, which minority groups have often asserted in order to protect their rights in the wake of state-led oppression. The long-standing conflict in Sri Lanka can be characterised as a military and political clash between these two ideals. In the wake of the historical marginalisation of the island’s Tamils, the Liberation Tigers of Tamil Eelam (LTTE) pursued self-determination through an armed struggle for a separate Tamil state, whereas the Sri Lankan state affirmed its sovereignty over the island’s territory. The military victory of the state over the LTTE in 2009 (with Chinese and Indian political and military support) illustrates the primacy of sovereignty over self-determination in the present world order.
However, the post-war era has demonstrated that the political spaces contested hitherto by internal actors in Sri Lanka have been fundamentally globalised, leading to fresh notions of borders, conflict and political community. In particular, the notion of self-determination has taken on a global nature, with the struggle for Tamil political rights continuing in the post-war period. Several countervailing forces have emerged to reinvigorate the claims of Tamil self-determination, including the demands of human rights, the migration flows of asylum seekers, and Chinese and Indian geopolitical interests in the Indian Ocean. Moreover, the presence of a politically mobilised diaspora ensures that Tamil rights are permanently in the Western orbit.
In response, Western policy has acknowledged the need for power-sharing to accommodate minority rights, but insists that this can be accomplished through processes of state transformation, whereby the state voluntarily reconfigures its sovereignty. However, we argue that post-war developments in Sri Lanka indicate the unreality of such a project and challenge the assumption that security is served by maintaining the inviolability of sovereignty. Rather, we propose that the Tamil case illustrates the Realpolitik of recognising self-determination as a primary right leading to a ground-up process of state formation.
Legal Theories on Self-Determination
The right to self-determination is a collective right, exercisable only by groups, and allows those groups to choose their sovereign political status freely. It is enshrined in Article 1 of the UN Charter and restated as a founding principle of numerous other conventions. There are two facets to the right of self-determination: first, the external aspect, which relates to the nature of a group’s status in international law, and second, the internal aspect, which relates to the right of a group to choose a system of governance within the territory that it purports to define. Groups that seek to assert a right to self-determination must establish a distinguishable culture, a history of independence or self-rule in an identifiable territory, and a will and capability to self-govern.
Self-determination initially arose in the context of decolonisation. In the Tamil case, as in many others, the claim of self-determination involves the assertion of autonomy by ethnic and religious minorities within already-established sovereign states. Unlike former colonial land, these claims need not necessarily include an external recognition of a new statehood. Instead, the claim may focus on the internal aspects of self-determination, including the right to a particular form of self-governance such as federalism.
In these circumstances, as demonstrated by the International Court of Justice advisory opinion in the Western Sahara case in 1975, the minorities do not have recourse to the institutions of international law because, as individuals who have no recourse to requests for statehood under international law, they do not yet have a state that can carry their case. This means that the success of the claim to self-determination depends on another sovereign state willingly ceding administrative control of a territory. These are concessions that few states are willing to make, regardless of the legitimacy of the minority’s claim.
Thus, a clear conflict between state sovereignty and self-determination emerges. Some academics have postulated that, where a sovereign state frustrates a legitimate assertion of self-determination, a right to unilateral secession arises. Practically, this is a politically moot point. States form the cornerstones of global stability and international relations have placed pre-eminence on the inviolability of state sovereignty. Therefore, there is no consensus yet on adopting this new form of statehood recognition.
The Need for Countervailing Force
Thus, the theoretical foundations of self-determination are academically recognised, if highly debated. However, practically, we suggest that the actual realisation of collective rights requires countervailing force. In the Tamil case, after the failure of three decades of political and parliamentary pressure, it was only the recourse to armed struggle that compelled the Sri Lankan state to recognise Tamil aspirations, even though it ultimately failed.
This countervailing force reached its zenith in the early 2000s, when the LTTE was running a de facto state over much of the territory it claimed for a separate Tamil Eelam. This created a rival centre of power to the Colombo government. However, the LTTE was categorically defeated in 2009. Although it was once considered invincible, Sri Lanka’s elimination of the LTTE leadership (alongside an estimated 40,000 Tamil civilian casualties) fundamentally changed the power balance between Tamils and the state.
This return to the status-quo ante-bellum was heralded by some commentators as an ‘end of history’ moment for Tamil nationalism. Yet Sri Lanka’s post-war landscape features several new factors that continue to challenge the state’s legitimacy, reinvigorating the political claim of the Tamils for self-determination. These new factors differ from the past in that they are inherently internationalised, as the legal claims for statehood rely on international law. Thus, they not only pressure the Sri Lankan state over its post-war trajectory with the Tamil population, but also require the international community to re-evaluate its approach to the claim for self-determination.
Human Rights and Liberal Governance
A key driver of current Tamil self-determination is the professed concern of the international community over the safeguarding of human rights within Sri Lanka. Implicit in such rhetoric is the belief that, in a post-war society, de-militarisation and democratisation should gradually emerge. However, the conduct of the state in the war’s closing stages, and in its yearlong aftermath, has revealed that human rights violations in Sri Lanka are inextricably bound to the ethnocentric character of the state.
Following the war, the Sri Lankan Government incarcerated 300,000 Tamil civilians – the entire population of the former conflict zone – in military internment camps. Moreover, the Tamil majority regions of Sri Lanka are now under permanent military occupation, with the UK’s The Times reporting the expansion of army camps throughout the country’s northern and eastern regions. Arguably, this constitutes a significant subjugation of Tamils in the absence of an armed threat. Furthermore, a year after victory was declared in the war, Sri Lanka continues to be governed under a state of emergency, with sweeping powers for both the military and police. A U.S. State Department report on human rights in Sri Lanka, released in March 2010, reveals the consequences of such militarisation. It details that, overwhelmingly, the victims of human rights violations, which included acts such as extrajudicial killings and unexplained disappearances, were young, male Tamils.
Consequently, the evidence reveals that human rights for Tamils cannot be safeguarded without the existence of an independent political space for Tamils as a collective entity. Doctrines such as the Responsibility to Protect empower the international community to breach sovereignty where human rights are violated. Thus, a commitment to liberal values can only truly be realised by emphasising Tamil self-determination as a necessary foundation for a stable, overarching Sri Lankan polity.
Internationalised Elements
Whilst the ‘internationalisation’ of human rights norms may at best intensify the hypocrisy of professing liberal values in the absence of credible support for Tamil self-determination, other factors create an impetus for self-determination. The continuing insecurity for Tamils in Sri Lanka resulted in a continued, steady flow of asylum seekers throughout the history of the conflict, particularly since its conclusion. These historical flows have created a million-strong Tamil diaspora that is primarily domiciled in India, Europe, North America and Australia. The increased migration flows have put pressure on border protection globally.
Governments facing political fallout over increased boat arrivals have gravitated towards short-term measures, such as Australia’s recent freeze on processing Sri Lankan asylum claims. Whilst such measures have electoral value, they are unlikely to halt migration flows in the absence of political stability in Sri Lanka.
Concurrently, the diaspora’s vigorous engagement with Sri Lanka’s politics has made the Tamil claim for self-determination a transnational discourse, involving both Tamils on the island of Sri Lanka and those outside. In this transnational discourse, the diaspora lays concurrent claims: first, as a stakeholder in Sri Lankan politics, with its members as constituents of a ‘Tamil Nation’ dispersed by the ethnocentric politics of Sri Lanka, and second, as full citizens of Western democracies, and the inheritors of their liberal democratic ideals.
This political space, in which the diaspora confidently asserts a dual identity, ensures that the politics of the ‘homeland’ retain an integral part of its members’ political engagement with Western governments. A key example of this new ‘political space’ is the worldwide ‘referendums’ on an independent Tamil Eelam that have been conducted by diaspora Tamils. Maintaining that democratic space for Tamils is absent in Sri Lanka, where the advocacy of separatism is banned under the Constitution. The diaspora argues that referendums are a legitimate use of Western democracy in which Tamil national aspirations can be freely expressed. Conversely, the diaspora’s mobilisation is not without its critics. Some have argued that the diaspora has the luxury of pursuing maximalist objectives while being disconnected from the ground realities facing Tamils in Sri Lanka. Nonetheless, the diaspora’s mobilisation is powerful and has drawn the attention of Western policy makers. For example, the International Crisis Group has devoted an entire report to the diaspora post-LTTE.
Ultimately, the widespread Tamil migration, combined with the diaspora’s resilience in maintaining Tamil national aspirations, and its capacity to finance further armed struggle, place the conflict firmly within the Western orbit. A meaningful model of self-determination will not only promote peace in areas of conflict but also mitigate the conflict’s international fallout, thereby contributing towards greater global stability.
The Geopolitical Game
The international community also has other strategic interests that are intertwined with Tamil political claims on the island of Sri Lanka. The military defeat of the LTTE was significantly assisted by the geopolitical alignment of Sri Lanka with the global south, especially China. The West, whilst opposing the armed struggle of the LTTE and its secessionist goal, placed faith in the containment process that was enacted, which focused on stabilising the situation to a negotiated equilibrium favourable to its interests.
However, the emergence of China and the global south as allies of Sri Lanka provided the Sri Lankan state with an alternate pathway to defeat the LTTE. Such a geopolitical alignment provided not only military support to Sri Lanka, but also acted as a buttress against the charges of war crimes that were subsequently brought against the state. Assistance has continued after the war, with significant financial flows from China.
Unsurprisingly, these funds have favoured a post-war model centred on economic development, rather than governance reform and improving political rights. This tactic is clearly aligned with the interests of the global south, whose states have been similarly harsh in dealing with their minorities and sub-nationalist movements. Ultimately, this financial backing stabilises the current autocratic rule in Sri Lanka. In turn, this reduces the leverage of sanctions (and similar measures) being used by the West, such as the EU’s suspension of Sri Lanka’s GSP+ (Generalised System of Preferences extension) concession. Thus, empowering a claim of self-determination could perhaps be the only vehicle for the West to wield influence in the region, given its rivals’ competition for hard and soft power in the region and in an increasingly multipolar world.
Self-Determination: The Foreign Policy Prescription
The abovementioned factors clearly align Tamil desires for self-determination with the strategic interests of Western stakeholders. However, the key issue of deciding how to advance such a goal remains. As mentioned, bridging the gap between self-determination and sovereignty in international law requires the unlikely acquiescence of the Sri Lankan state in voluntarily adopting structures to accommodate the plural nature of its polity.
Some Western states have sought to encourage this process of ‘state transformation’ through constitutional reform. Although they reject self-determination as a right, some Western states have sought to “convince the Sri Lankan state to transform itself in such a manner as to address the various challenges that it faces”, the former Tamil MP Gajen Ponnambalam has posited. Indeed, the U.S. response to Sri Lanka’s recent parliamentary election encouraged the Government to move forward on issues such as “national and ethnic reconciliation, decentralizing power, economic development, and securing human rights”. Thus, Western policy recognises the pragmatism of decentralised governance, but still treats sovereignty as sacrosanct. Consequently, it has advocated measures that internally restructure sovereignty through top-down devolutionary processes such as constitutional reform. The central policy focus is not so much the goal – of a decentralised political model – but the particular method of arriving at such an outcome.
However, Sri Lanka’s history has shown that the state has been unwilling to devolve power to the Tamils. The key driver of this resistance is a deep-seated Sinhalese ultranationalism that has been emboldened under a unitary Constitution. Moreover, Sri Lanka’s electoral democracy reinforces such majoritarianism. Sinhalese-dominated parties have sought to outdo each other over who can best represent Sinhalese interests, usually at the expense of Tamils. Among the advantages afforded by numerical superiority to the Sinhalese majority is the opportunity to camouflage discriminatory measures through a democratic veneer.
Where ethnocentric policy is electorally incentivised and structurally entrenched, there is no impetus for the state to transform itself voluntarily. Despite this, as mentioned, top-down constitutional reform has become a major preoccupation of Western policy towards Sri Lanka. We argue that a more pragmatic policy is a ‘ground-up’ policy that would recognise a primary right of self-determination of the island’s constituent Tamil peoples. A federal policy premised on self-determination does not regard the state as the sole custodian of power. This would empower civil society and NGOs to organise on their own terms. It would mitigate against the politicisation of development, with projects organised and donor funds channelled directly through non-governmental routes. Moreover, political engagement by foreign governments and agencies would not need to occur exclusively through the conduits specified by the state. Such measures would mark sovereignty as residing with the people, not the state. This would more likely result in accountable governance, human rights and the empowerment of citizens. It necessarily punctures the equation of majoritarianism with democracy, recognising the pluralistic nature of the island.
Conclusion
The formation of political spaces in which minority groups such as Tamils can enjoy both individual and group rights is increasingly crucial in a globalised world. Regional instability has broader security and economic implications for the international community. The case of the Tamils demonstrates that intra-state conflict has significant global reach. Moreover, the end of armed hostilities does not in itself end political turmoil. The principle of self-determination forms the most pragmatic basis of reconciling group identity within the community of nations. Western foreign policy should not insist that decentralised models of governance emerge from within the state itself. Rather, the recognition of a right to self-determination is a first step in state-formation. This process is more consonant with the ideals of liberalism and human rights than the realist project of top-down state-transformation. Such a process identifies the primacy of sovereignty as being within the possession of citizens themselves. Moreover, this facilitates governance models that promote stability and regional security. The political recognition of the Tamil claim to self-determination thus portends to resolve civil strife within Sri Lanka and augurs well for the global project of liberal democracy.
Postscript
Since the original submission of this article, new events have reinforced its thesis. The International Crisis Group released a report that provided substantial evidence of war crimes committed by the Sri Lankan armed forces, prompting the UN Secretary General, Ban Ki-Moon, to announce an investigative panel into Sri Lanka’s conduct of the war. Simultaneously, Tamils in the diaspora have elected representatives to a Trans-National Government of Tamil Eelam, which was launched at the historic Philadelphia Independence Mall in the United States. It appears that, whilst the war is over, the battle lines remain drawn in the ongoing quest for Tamil self-determination.
Samuel Thampapillai is in his sixth year of a Bachelor of Laws and Bachelors of Economics with Honours.
Mario Emmanuel is in his fourth year of a Bachelor of Laws and a Bachelor of Commerce.
