A decent enough interval has not lapsed between Dr Nihal Jayawickrama’s first expression of views on sovereignty in the Sunday Island a fortnight ago, and his more reasoned and most recent expression, for the reader to have forgotten his original stand. In his April 4th reply to me Dr Jayawickrama states I have “rushed to challenge” his assertion that : “ the doctrine of state sovereignty, in so far as it relates to the treatment by a state of its own nationals, had been significantly eroded in the past fifty years”. He goes on to write that “what I submitted, in my article published last Sunday, was what I believe to be a universally accepted legal proposition, namely, that the emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community. It has also resulted in the individual becoming a subject of international law.”
Now, is this what I have “rushed to challenge”? More to the point, is this what Dr Jayawickrama originally asserted a mere two Sundays back? I’m afraid not. The record shows that his article entitled “The Myth of Sovereignty” featured as its opening sentence the strongly categorical assertion: “A constitutional myth that has been developed in Sri Lanka in recent years is that of Sovereignty”. (Sunday Island March 28th).
Dr Jayawickrama is not talking merely of the erosion of the Westphalian concept or its misuse in its un-evolved form by the Sri Lankan state. His position is that “sovereignty” – with no qualifiers– is but “a constitutional myth” and that too, one “that has been developed in Sri Lanka in recent years”. The penultimate paragraph of his original piece contains a line which re-states his position: “To invoke an obsolete doctrine of state sovereignty to defend oneself is to deride the contemporary world order.” Thus for Dr Jayawickrama the problem is not the invocation of an obsolete version or interpretation of the doctrine of state sovereignty; it is the doctrine of State sovereignty itself – not its abuse or over extension. For him, this doctrine is at drastic variance with the contemporary world order. It is this throwing of the baby with the bathwater that Dr Jayawickrama urged us to accede to and now attempts to finesse, if not obfuscate.
While Dr Jayawickrama alleges that my response “has demonstrated the futility of seeking to demolish a legal proposition by the application of political theory”, I would argue to the contrary that his shifting positions demonstrate the futility of seeking to deny or override political reality, including international political reality, by the application of a legal proposition or more correctly, by a legalistic interpretation.
The great Stanley Hoffmann, student of Hannah Arendt and Raymond Aron, and renowned theorist of international relations, in his Foreword to the Macarthur Foundation and Social Sciences Research Council volume ‘State Sovereignty: Change and Persistence in International Relations’(1997) notes, not without a tincture of ruefulness, that
“State sovereignty remains the organizing principle of world order. In the public sphere, the institutions that have acquired some fragments of legitimate supreme authority at the expense of the states are interstate institutions, manifestations of pooled sovereignty … Power still resides primarily in the states, however great may be the losses that they have experienced”.
Similarly, Stephen Krasner, a critic of state sovereignty admits that
“in international relations, the most important diffuse principle is sovereignty…” and goes onto refer to “the constitutive principle of sovereignty…” (‘International Regimes’)
So much for “sovereignty…deriding the contemporary world order” and “myths” recently minted in and circulated only by Sri Lanka.
The second and third sentences of Dr. Jayawickrema’s original submission incontrovertibly reveal what his criticism is; what his preferences and recommendations are. He strenuously objects that  “Whenever the United Nations or a foreign government focuses on an act or omission of the Sri Lanka Government, the immediate response is that our sovereignty is under threat or attack. When the UN Secretary-General announces his intention of appointing an expert committee to advise him on matters relating to compliance with international humanitarian law in Sri Lanka, it is condemned as an infringement of our sovereignty.” (Sunday Island March 28). The UN Sec-Gen is an international civil servant, heading and serving what remains an intergovernmental body, the United Nations. When the United Nations is more democratic, when the Security Council is more representative of the world, when the General Assembly is empowered, when the dice is not laden in the international courts and tribunals, when the rich and the powerful submit their wars and their armed forces to international courts and probes, so too should Sri Lanka be advised to – but not a day sooner. Any effective pressure must stem from a source with legitimacy in the eyes of the Sri Lankan people.
In his reply to me, Dr Jayawickrama produces the reference in the UN HRC resolution on Sri Lanka to international law, and Lakshman Kadirgamar’s stout defence of human rights in his HL de Silva lecture. What’s the relevance? And where’s the contradiction? The UN HRC Sri Lanka resolution and the Kadirgamar foreign policy reflect a careful balance between sovereignty/non-intervention in domestic affairs on the one hand, and human rights and international law on the other, with state sovereignty accorded primacy and priority. For my part I have not derided international law, be it human rights law or humanitarian law, as a ‘myth’ as Dr Jayawickrama did ‘sovereignty’.
As for those ‘foreign governments’ which ‘focus on acts of omission and commission by the government of Sri Lanka’, Dr Jayawickrama spurns Sri Lanka’s objection to the hypocrisy of these critics and condemnation of their violation of our sovereignty. His position is that of liberal cosmopolitan interventionism, known earlier as liberal humanitarian interventionism, in which a particular interpretation of international law is upheld ‘uber alles’ while national/state sovereignty is regarded almost as nothing; a residue, afterthought or ‘myth’. People’s sovereignty is invoked in opposition to national/state sovereignty and is sought to be defended (selectively, to be sure) by international law, the international courts, the UN and ‘foreign countries’. The outstanding historian EJ Hobsbawm refers to this perspective as ‘human rights imperialism’ while the world’s leading public intellectual Noam Chomsky has critically detailed its function in the Kosovo war and the dismemberment of the former Yugoslavia by NATO.
If I am to understand Dr Jayawickrama’s point, since the state is usurping people’s sovereignty with the specious doctrine of state sovereignty, the said sovereignty of the people is to be served by the surrender of national sovereignty to certain international entities! I would argue to the contrary, that popular sovereignty is not served but harmed by any trade-off with national sovereignty and that popular sovereignty is in fact a propellant of the Sri Lankan Government’s stand on national/state sovereignty. While the GOSL stand is self-serving and self-protective to a great degree, it is propelled to an even greater degree by the awareness that any administration that succumbs to such wide ranging external intrusion and opens the Armed Forces to invasive foreign scrutiny with regard to a victorious and popular war, runs the risk of rebellion by the sovereign people.
People’s sovereignty is far better served by struggling (with support and solidarity from global civil society or what is now called the ‘global justice movement’) for strong, independent national institutions and processes of accountability.
What is sovereignty? Who is sovereign? Whatever the degree of erosion of the Westphalian notion of sovereignty, the core remains. The Schmittian definition that ‘sovereign is he [she] who decides on the exception’, with ‘the exception’ being whether or not to make war or peace, remains valid. That decision does not reside with international law, precisely because it has no identifiable agency capable of the decision. The decision ‘war or peace’ is quintessentially political, not legal, and therefore always made by one or more states. If he thinks that any state has signed away that power, i.e. its sovereignty, or to use a phrase anathematic to him, ‘state sovereignty’, Dr Jayawickrama has confused the neoliberal cosmopolitan project with the ‘contemporary world order’.
The exchange in the Sri Lankan press with Dr Nihal Jayawickrama on the subject of sovereignty takes place in a certain political and ideological context, nationally and internationally. He represents one of two extreme positions on the subject, while the interests of the nation and the people, not only of Sri Lanka but also most of the developing world, are best served by a third position of which I am also an advocate and adherent.
Dr Jayawickrama finds a mirror image—I may say a misshapen and dwarfish mirror image—in those hyper-nationalist Sinhala neoconservatives for whom state sovereignty is an absolute, and international law, especially human rights and humanitarian law, are likewise a myth. These ideologues and apparatchiks refer to federalism and secessionism as if they were synonyms! One of these is so well informed as to have actually expressed his belief in print, that the UN Security Council had cast 24 votes in Sri Lanka’s favour.
My view, which is that of the Non Aligned Movement, Russia and China, is one that upholds international law while continuing to regard national (state) sovereignty and sovereign states as the cornerstones of the ‘contemporary world order’, and that order as fundamentally, the global interstate system, an international system of an inter-state character.
Dr Jayawickrama wishes us to pay heed to those ’foreign countries’ who point out our sins of omission and commission, quite irrespective of the beam in their eye, while GOSL‘s hyper-nationalist ideologues believe we haven’t sinned at all and if we have, so what of it? I believe that Sri Lanka must resist any attempt an international probes into the last war and the last days of the last war but I also believe that we should set up an internationally credible national investigation into at least two gruesome massacres, that of the Trinco 5 (the five students cold bloodedly murdered in Trincomalee) and the ACF 17 in Mutur (crimes, which, together with the Lasantha and Sivaram killings, I never once defended in Geneva).
My perspective is one in which we recognise that we may have lost much of our ‘soft power’ and begun to lose what my friend Richard Falk, eminent scholar of international law and human rights, calls “the legitimacy war” and fight to build back that ‘soft power’ and legitimacy not by submission to foreign powers and probes, not by compromising our national (state) sovereignty, but by a two-track strategy of (i) a first rate foreign policy which, while anchored in Non Alignment, leverages multi-polarity and the rise of Asia, while (ii) struggling internally for liberalisation, the widening of democratic space and restoration of national standards and institutions pertaining to accountability and justice.
Any effective pressure must stem from a source with legitimacy, acceptable to the Sri Lankan people. It can only come from those states that supported Sri Lanka in its war against terrorism and secessionism; not from those states that attempted to stop that war of liberation, reunification and the restoration of sovereignty and democracy. The answer lies primarily then, not in international law, international courts and certainly not in compliance with the criticisms tendered by Western states, but in the rights enshrined in the Sri Lankan Constitution, the Sri Lankan judicial system, the Sri Lankan citizen, Sri Lankan democracy and the sovereignty of the people of Sri Lanka.