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Earned or Mediated Sovereignty

Page history last edited by Peace Studies 12 years, 5 months ago

Articles      Resources

 

Earned or Mediated Sovereignty? An assessment.

 

Damien Kingsbury[1]

 

On 15 December 2006, the people of the Indonesian province of Aceh went to the polls to elect a new governor and district and sub-district heads, ahead of the formation of local political parties to contest the 2009 legislative elections. This followed almost 30 years of separatist conflict, which ended in a mediated compromise agreement on 15 August 2005. At the same time, following a similar period of separatist conflict, Sri Lanka was sliding from ceasefire back into war. Also at this time, as then the world’s newest state, East Timor was entering its fourth year of independence, while in West Papua numerous separatist organisations were beginning to consolidate in order to cohesively challenge the Indonesian government.

 

Sub-state and separatist conflict, long a feature of the global political landscape, took on a new lease of life in the post-World War II period of decolonisation, and more recently in the post-Cold War era world, in which previously client states lost their strategic usefulness. Millions of people have been killed in post WWII separatist conflicts, notable among which were those of Biafra (Nigeria), Eritrea, Darfur (Sudan), Bangladesh, Chechnya, Nagorno-Karabakh, Bosnia, Kosovo, East Timor, Sri Lanka, the frontier states of Burma and so on (also see Lacina 2005). Dozens of self-determination movements continue to exist[2], many of which employ violence and in some cases practices defined as ‘terrorism’ in pursuit of their claims[3]. Within this context, there has been considerable effort given to finding methods of resolving such conflict. One such recent method or process is that of ‘earned sovereignty’.

 

This paper will examine some of the basic motivations for separatist claims, and the idea of ‘earned sovereignty’ as a mechanism for separatist conflict resolution. It will assess the claims of ‘earned sovereignty’ against four existing or resolved conflicts, in Timor-Leste (East Timor), Indonesia’s provinces of Aceh and West Papua, and in Sri Lanka. Consideration will also be given, in passing, to other separatist conflicts. The proposal put here is that separatist conflict can be resolved through a variation of the ‘earned sovereignty’ approach. However, such an approach requires clarification of the meaning of the term ‘earned sovereignty’ which, on the face of it, implies reward reciprocating a more or less equal effort. The commonly used meaning of the term also implies the initial agreement of the ‘parent’ sovereign state to participate in such an exercise, noting that the lack of such agreement is the main cause for conflict between competing claims.

 

With greater attention being paid to negotiated outcomes to separatist claims, in particular in the post-Cold War era following a reduction in ideological positioned backing for government and separatist positions, the idea of ‘earned sovereignty’ has gained increasing currency. ‘Earned sovereignty’ is an attempt to standardise the key features of a negotiated resolution to separatist claims, and as such has been formulated by a number of observers in increasingly consistent ways (e.g. see Kirschner 2007, Williams and Pecci 2004, Scharf 2003, Williams 2003, Hooper and Williams 2003, Heyman 2003, Bugajski, Hitchner and Williams 2002). As a model for the resolution of separatist claims, ‘earned sovereignty’ had the advantage of gaining currency among influential international players, who may be more willing to endorse and in practical terms support an ‘earned sovereignty’ resolution to separatist conflict. In this respect, ‘earned sovereignty’ is an attempt to provide internationally consistent and acceptable rules to resolving conflict resolution.

 

In that earned sovereignty has been proposed as a standardised method for resolving separatist claims, it has increasingly come to take shape around a core set of ideas. Key characteristics of shared sovereignty are generally claimed to include:

 

  1. being a multi-stage process
  2. the sharing of sovereignty, where the state, or an international organization, and the sub-state entity may each exercise some sovereign authority and functions over the territory in question for a specified period
  1. the conditional devolution of sovereignty in a given territory through the phasing out of preceding sovereign authority and the phasing in of a replacement sovereign claim
  2. the conditionality placed upon such sovereignty
  3. constrained or limited sovereignty (including options for autonomy, federalism or confederation)
  1. the necessity of building new institutions or adapting existing institutions prior to the determination of final status, often with the assistance of the international community, by which a state is able to manifest its organisational capacity
  2. a mechanism for the determination of the final status of the territory in question, where the relationship between the existing state and the aspiring state is resolved, usually by a vote of the aspiring state’s population and with the consent and under the supervision of the international community.

(Williams and Pecci 2004:4, see also Hooper and Williams 2004, Scharf 2003)

The first type of limit or conditionality may be phased sovereignty, where the aspiring state acquires increasing sovereign authority and functions over a specified period of time prior to or following the determination of its status. This is intended to allow the ceding state both the opportunity for adjustment and to help provide surety around the intentions and capacities of the aspiring state. The second type of limit or conditionality is conditional sovereignty, where the aspiring state is required to meet certain benchmarks such as human rights enforcement before it may acquire increased sovereignty. The purpose of this is to ensure on one hand that ethnic minorities located within the aspiring state that might otherwise belong to the ceding state continue to have their full citizenship respected, as well as to ensure there is no ‘capture’ of the aspiring state by a malignant elite. A third aspect of limitation or conditionality upon sovereignty could be a constrained type of sovereignty, which might impose limitations on the extent of the sovereign authority and some of the functions of the new state. Examples of this might be around a continued international administrative and/or military presence, and limits upon defence, international relations or other external functions of the state.

At its most basic, earned sovereignty entails the conditional and progressive devolution of sovereign powers and authority from a ‘parent’ state to a sub-state entity (the aspirant state) under international, preferably multinational, supervision. Earned sovereignty would generally be available through a peace process as a multi-stage approach to address the issue of the final political status of the sub-state entity, or as a peaceful recognition of the legitimacy of a claim to test sub-state desire for separate status. The case of East Timor can be seen to reflect a number of elements of ‘earned sovereignty’, through the assertion of a claim, international mediation, a UN supervised monitoring and ballot, international peace-keeping and institution building.

As a working definition, therefore, earned sovereignty is intended to act as a ‘compromise between self-determination and the sanctity of borders’ (Graham 2000). Given that, in the post-Westphalian period, the sanctity of sovereign borders has been regarded as a foundation stone of international relations (e.g. see Waltz 1979), the notion of such compromise is by definition an anathema to the idea of sovereignty. This ‘realist’ conception of absolute state sovereignty has been qualified or undermined by various aspects of the globalisation paradigm, in particular the globalisation of economies, in which states are subject to externally defined economic patterns, and communications and information/ideas, in which states may be challenged by the spread of and access to ideas that question or challenge their authority. More to the point is that sovereignty being possessed in full or not at all reflects an absolute, somewhat artificial and often arbitrary dualism, and a failure to see beyond the state/secessionist paradigm so described.

 

Earned sovereignty’s negative aspects

 

While ‘earned sovereignty’ is a legitimate attempt to work past some of the problems of the state-secessionist dichotomy, it also has a number of negative features. These include it being reliant on international goodwill (which may be undermined by disinterest or ‘realist’ strategic self-interest) and being reliant on the agreement of the sovereign state to in principle dismember its territory (usually in contravention of the state’s constitution)[4]. Very often, such an agreement is also reliant upon the majority peoples of the state to accept such an outcome (Sri Lanka’s 1987 autonomy bill led to majority Sinhalese rioting (NYT 1987, while Indonesia’s 2006 Law on the Governing of Aceh was a diluted interpretation of the 2005 Memorandum of Understanding peace agreement). A further difficulty is the common and usually unresolved issue of  minorities within the proposed new state[5]. And, not least, there is the problem of a mediated outcome not being the preferred method of achieving independence by the aspirant state (a negotiated settlement as opposed to settlement by force of arms, as had been pursued in East Timor between 1975 and 1999, Aceh between 1976 and 2005, West Papua from 1969, and as claimed by both the government of Sri Lanka and the LTTE at the time of writing). Beyond these issues (although in some cases overlapping) are, as previously noted, those of what is meant by the term ‘earned sovereignty’, and if the term itself is not at least partially misleading and, to parties to conflict resolution, unhelpful.         

 

In this respect, the term ‘earned sovereignty’ is a literal and theoretical misnomer, as it implies a relationship involving the free (in the sense of will) exchange of goods (labor for goods) or benefits within free exchange or market-type environment. In reality, the exchange rarely happens in a free environment, has few elements of reciprocity and implies goods or benefits largely away from the pre-existing sovereign authority and, other than where the cost of retaining the territory exceeds the benefit of so doing, only towards the ceding state or territory. To this end, a more appropriate descriptor of this process might be ‘mediated secession’. However, given the explicit outcome and the extent to which this would be likely to cause offence, a more subtle but similarly accurate term might be ‘mediated sovereignty’, in that this implies that changes to the status of sovereignty within a standardised process are achieved through mediation rather than through ‘labor’             

Assuming the name applied to the process of achieving sovereignty is itself not thought to be misleading and perhaps unhelpful, the process continues to face further challenges. Claims to sovereignty based on competing, often chauvinist, and sometimes irredentist claims of state and national groups and the strategic and economic interests that are often involved mean that processes that are intended to resolve outstanding separatist claims are often politically fragile. That is, competing interests and the mutual lack of trust that accompany the thinking of the respective parties to such a process mean that each might seek further guarantees before agreeing to participate in such a process, or to accept its outcome. To this end, a mediated sovereignty approach to resolving separatist claims might also include types of limits or conditionalities on the type of sovereignty exercised by the respective parties in any such outcome. 

Such conditionality, and the circumstances in which an existing sovereign state would accept a diminution of its sovereign authority, raises two further sets of issues. The first issue is that of the circumstances in which a sovereign state would agree to some diminution of its pre-existing sovereign authority. Indonesia agreed to allow East Timor a referendum on independence or ‘autonomy’[6] as a means of resolving what had been referred to as a ‘pebble in the shoe’ of the state[7] (Alatas 1991). But this was only as a result of sustained diplomatic, NGO and economic pressure following Indonesia’s ‘monetary crisis’ of 1997-98, and under the leadership of an interim president trying to establish his human rights credentials, and within the context of the UN’s recognition of the illegality of East Timor’s occupation.

 

The second issue is that the transference of sovereignty, or conditionalities placed around sovereignty, inevitably requires a process of mediation, as noted, by an international actor. This usually also implies some monitoring or peace keeping process and, assuming its success, some institution-building capacity. In this, the role of the mediator is critical in being able to ensure that the negotiating ‘game’ is played by the rules of relative fairness of opportunity to participate, so that the negotiating parties believe they are getting a reasonable opportunity to put their claims and to sustain a position that protects the basic interests of their constituency. In so far as transference of or conditionalities around sovereignty are implied, the mediator has the delicate task of assessing and to some extent adjudicating on what is agreeable, what is practically possible, and what is normatively desirable. In this, the mediator must be able to adjudicate on an ad hoc or needs basis, while maintaining impartiality to all but outcomes that comply with conventional international norms and standards (e.g. upholding basic human rights values, etc).

 

A mediator may also have a role in seeking the participation of agreement monitors or peace keepers, without which breaches of any agreement are possible and in most cases probable. That is, the mediator must have sufficient contact with organisations likely to provide monitors or peace keepers to be able to arrange for their provision in the event of such an agreement, and the organisation/s providing such monitors or peace keepers must be willing to commit them for an extended period, commonly of not less than two years. Mediators or peace keepers can derive from a unilateral source but, given the potential for a conflict of interest, generally derive from a wider range of sources. The Norwegian role in the Sri Lanka Monitoring Mission was buttressed by monitors from other EU states, while the Aceh Monitoring mission was an EU initiative, comprising monitors from most EU states but also from other ASEAN states. Similarly, Interfet in East Timor was led by Australian forces, but comprised forces from 23 states[8].

 

The UN as a source of peace keepers in particular has been regarded as ideal on one hand, representing the global community rather than potentially narrow state interest. However, it has also had three key drawbacks; willingness of specific states to provide resources for such a mission (e.g. US unwillingness to participate in East Timor’s 1999 Interfet program), the often constrained rules under which the UN operates, which may lead to disaster (e.g. Rawnda, East Timor), and a more or less universal UN tendency towards bureaucratic inefficiency and very often incapacity. As such, potential contributor states may be unwilling to participate in UN-led missions, or may be unwilling to sustain commitment to such missions for an extended period (Guehenno 2008).

 

‘Earned’ sovereignty?

 

The question arises as to what, precisely, is meant by a term such as ‘earned sovereignty’? There are two answers to this question, the first relying on a semantic but important distinction, which raises a series of further issues, and the second conforming to the generally accepted political process that is intended to be defined by such a term. In the first instance, ‘earned sovereignty’ begs the question of what sovereignty is. In common usage, sovereignty implies that a sovereign authority has the complete capacity to compel compliance with that authority within and over a specified and delineated territory. The definition of territorial boundaries was, historically, not distinct, with this lack of territorial distinction continuing to be reflected in separate language or ethnic groups residing in territory claimed on behalf of another ethnic group or within a state with which they do not identify. That is, the formalisation of state boundaries has delineated states in ways which have often included, for purposes of territorial neatness or strategic necessity, pre-existing ethnic minorities.

 

The resolution of indistinct boundaries upon which modern states have since been built is generally agreed to have begun with the Treaty of Westphalia in 1648, which (in two parts) ended Europe’s Thirty Years War and the Holy Roman Empire as an effective state or super-state institution. This treaty established, among other things, the general assumption of the non-interference by states in the affairs of other states, and where this has been ignored in practice it has generally implied a breakdown in diplomatic relations or engagement in warfare. In the post-Westphalian period and in particular with the advent of democratic and republican states, sovereign authority has been ascribed to the citizens of the state (with a small number of monarchist exceptions). In the transition from the authority of individual sovereigns to the sovereign authority of ‘the people’,  the question arises as to who are the people who comprise the citizenry, and what claim such self-identifying ‘people’ have to a representative state as a manifestation of their will to self-determination. This is to say, ‘the people’, giving political coherence to their self-identification through common language, culture, history (or myth) and territory, comprise a ‘nation’ (see Gelner 1983, Connor 1994, Anderson 1991, Smith 1996a, Smith 1996b:13-18, 22-46, Smith 2003). In claiming political determination over its own affairs within a specific territory, the nation claims its institutional manifestation as a state. Beyond this claim, the markers of state are institutional capacity and external recognition (Gelner 1983:44). In this respect, then, sovereignty is understood as the right of the citizens of a state to determine their own affairs within that state, and to not cede authority within that state to any other state, organisation or people.

 

In the second instance, the term ‘earned’ implies that which is in return for effort or work, or a material good or benefit based on an exchange for a reciprocal input of good or benefit (e.g. labor). In this respect, the idea of something being earned implies that it rightfully belongs to the person or group that has undertaken an activity in exchange for the good or service. The origin of the term ‘earn’ derives from the old English word earnian, to gain reward for labor, which is inturn derived from the old German term aznojan, meaning to ‘reap’, as in harvest. Earned sovereignty therefore implies that a group of people claiming the territory of a state as its citizens can in some way work towards or reap the benefit of work towards that outcome. In most circumstances in which this model has been suggested, ‘earning’ sovereignty follows a pattern of a conditional and gradual devolution of state authority over a claimed area, usually under some form of external supervision, with a plebiscite or other form of electoral process confirming the wishes of the people on whose behalf the claim to sovereignty is being made. As such, however, the sovereignty which is sought is not ‘earned’ as such, and at best can be said to be ‘asserted’, ‘claimed’ or ‘won’.

 

Regarding the case studies, they each conform to a more broad or general type of failure of the post-colonial state to adequately, evenly and consistently address the concerns and interests of a specific minority of its citizens (see Kingsbury 2008). In the first instance, the people of post-colonial states usually have high expectations of independence prior to independence being granted. Very often, these expectations are not predicated upon an assessment of either what independence can deliver or the capacity of the post-colonial state in particular to deliver. Notably, most post-colonial states usually do not have the capacity to meet pre-independence expectations, and in many cases, capacity is actually lower than under the colonial regime, following the withdrawal of skilled administration and capital, and often (although not universally) the destruction borne as a consequence of wars of liberation (see Chand and Coffman 2008 on the inadequacy of post-colonial revenue generation and state failure).

 

Often, although not uniformly, this move away from openness and democracy is assisted by the revolutionary organisational structure of liberation movements which commonly assume post-colonial government, and the excessive enthusiasm of former independence militaries to remain engaged in post-independence politics, sometimes employing the rhetoric of ‘guardians of the state/nation’ (in Asia, Indonesia, Burma, Laos, Vietnam, Philippines). Indonesia’s military asserted its authority in post-independent politics, in 1965-66 achieving practical political power (Burma in 1962). This then constrains the potential for a viable civic nation-building project that new states often need to engage in to satisfactorily incorporate all citizens as equal and valued members. The closure of political space this implies reduces rather than expands opportunities for plural political expression, including the specific claims of ethnic groups within the state.

 

Returning to the idea of sovereignty as the claim of a people to self-determination, or of a nation to a state, raises the first principle questions of what is sovereignty intended to achieve, and for whom, and the second principle question of whether sovereignty once proclaimed and recognised becomes absolute and inviolable? If sovereignty predicated upon ‘the people’ is intended to manifest and protect their interests via self-determination, then in the first instance ‘the people’ themselves must be unified within a common political identity. If this identity is to have meaning, it must be a reflection of their will, that is, voluntary, rather than compelled. If, however, the people are not one but ‘peoples’, and these constituent groups do not regard their interests as being in common and, moreover, occupy a specific and usually contiguous territory, they can reasonably lay claim to a separate sovereignty. With the possible exception of strategic interest – and this would be more appropriately negotiated via treaties between parties than compelled inclusion - the claim of a dominant constituent group has no rational prior claim to the territory occupied by another group. Should it assert such a claim, it then undermines the basis of its own claim to territory, and manifestation as a state. That is, if the idea of sovereignty is to assert authority over a specific territory in pursuit of the commonly identified interests of a politically bonded group of people then, short of strategic interest, a state should have little concern over whether or not a geographically specific, differentiated political bonded group within its claimed territory seeks its own territorially based self-determination as a new state. Where claims against this are made, they generally reflect the above noted strategic interest, often combined with economic interest, and the protection of minorities within the claimed territory, as has occurred in Sri Lanka, Aceh, West Papua and Mindanao.

 

All of this, so far, refers to nations of people identifying in common on the basis of, more or less, ethnicity which, as noted by Smith and Gelner, has historically been the most common and strongest basis for nation formation. However, an alternative model of nation can be constructed not around the primordialism of ethnicity but around civic values, particularly in multi-ethnic post-colonial states. In this, national identity may be built upon a civic national identity, or common bonded political identity around shared values such as equitable and consistent application of rule of law and a participatory and accountable political process, rather than on the basis of ‘ethno-nationalism’[9], or national identity built upon an (sometimes idealised) ethnic singularity.

 

While Indonesia and Sri Lanka formally recognise their ethnic minorities, both have a dominant ethnic majority, Javanese in Indonesia on one hand and Sinhalese in Sri Lanka on the other. Where that civic national identity building project fails (e.g. Indonesia prior to 2004), or fails to maintain its earlier promise (e.g. Sri Lanka), in so far as a national identity is constructed, it can in a functional sense tend to be ethnically or normatively exclusivist, and hence alienate minority ethnic groups from the national project. In the case of Indonesia, alienation of ethnic minorities has been extensive, including at one time or another including the people of Aceh, Minangkabau, Riau, West Java, Sulawesi, Kalimantan, Maluku, East Timor and West Papua. In the case of Sri Lanka, this applies primarily to the Tamils of the north and east. Thus, state failure to protect minorities has created a tendency for minorities in geographically specific areas to retreat to the ethnically and territorially specific, i.e. to claim a separate and independent political identity, such as Sri Lanka’s Tamil Eelam and Indonesia’s Aceh, South Maluku Republic, East Timor and West Papua. This then manifests as separatist claims and, very often, violence in pursuit of those claims and consequent (although sometimes preceding) state repression[10].

 

By way of illustration in a ‘minority’ setting, expectations within Aceh upon Indonesia’s independence were that the post-colonial independent state would attain a high level of autonomy within a loose federal framework, so as to functionally determine its own affairs. Indonesia was initially constructed, in 1949, as a federal state, potentially allowing considerable scope for self-determination on the part of constituent states. However, early in 1950 Indonesia restructured itself as ten provinces, with Aceh incorporated into North Sumatra, and later that year Indonesia was unilaterally reconstituted as a unitary state to impose a degree of unified political authority. As such, Aceh’s autonomous status was lost, which disenchanted those Acehnese aspiring towards a high level of self-rule. In 1951, Aceh was fully subsumed into North Sumatra, which many Acehnese regarded as a further betrayal of their political status and their fight against the Dutch. Failing to resolve this loss of autonomy, in 1953, Aceh’s governor, Daud Beureueh, declared Aceh’s independence from Indonesia, initially joining with the Darul Islam Indonesia (DII) rebellion, declaring the Federated State of Aceh (Negara Bahagian Acheh - NBA) as a means of securing this claim (see Reid 2004, also Kell 1995). Although the following Free Aceh Movement rebellion was not based on Islam as was the earlier Darul Islam rebellion, its founder, Teungku Hasan di Tiro, was a Darul Islam member and its claims were consistent with and largely followed on from those of the earlier rebellion (Nessen 2007).

 

The situation was somewhat different in West Papua, as a later inclusion into the state (functionally 1963, formally 1969). In this case, initial aspirations were oriented towards complete independence, rather than being subsumed into Indonesia (see GoN 1961: 10-14). In this respect, the aspirations of independence were not so much disappointed but forestalled, being replaced by what many in West Papua viewed as a further form of colonialism. Similar was the situation of East Timor, which proclaimed independence on 27 November 1975, in the hope of achieving international recognition to deter an imminent Indonesian invasion. On 7 December 1975, however, Indonesia formally invaded East Timor[11], ushering in a new era of colonialism, until 20 September 1999 (after which there was an interim UN administration until 2002). In Sri Lanka, initial hopes for post-independence development were in significant part met by a democratic government presiding over relatively high levels of human development[12]. However, an assertion of Sinhalese majority rights at the expense of the Tamil minority, notably around the issue of official language and the opportunities or exclusions that implied, quickly alienated much of the Tamil population, leading to communal discord and violence

 

The lack of post-colonial state capacity (or in some cases desire) to meet expectations inevitably produces disappointment and anger, and opens up divisions that were previously covered by the common struggle for independence (e.g. Sri Lanka, Aceh, East Timor post-2002). These divisions may be ideological (East Timor) or, as is common in former colonies, they may (also) be between ethnic groups that were combined in given territories under colonial administration (Aceh, West Papua, Sri Lanka). In particular, if members of one ethnic group have had a closer or more favored relationship with the previous colonial regime, they might find they are subsequently discriminated against by the post-colonial state, particularly if they are in the minority (e.g. Tamils in Sri Lanka). In this, even in democratic states, such as Sri Lanka, there is a tendency for majoritarian rule, in which the majority excludes the minority, as opposed to majority rule, in which the minority also has its interests represented. Unable to control this deteriorating political environment, governments of post-colonial states have tended to turn away from open democratic processes in favour of more authoritarian administrative methods (e.g Indonesia 1958-1999, Sri Lanka’s 2001 closure of parliament, media restrictions 2000 onwards). Most discussion around this phenomenon has focused on sub-Saharan Africa, although the principle applies more broadly (see, e.g. Luis 2000, Englebert 2000, Cornwell 1999, Hirschmann 1987). However, the Indonesian experience conforms to this general principle, with the orientation towards authoritarian and centralist administration first alienating Aceh (Reid 1969, 1979, Sjamsuddin 1985) and then, following their forced incorporation West Papua (1963-69) and East Timor (1975-76). Similarly, since independence, Sri Lanka has veered back and forth between more and less authoritarian responses to challenges to its authority. 

 

Conflict Resolution?

 

Recognising that such conflicts arise for what approximates to the above noted reasons, the question arises as how to resolve such claims and, in particular, the violence that is often associated with them. Despite relatively few successful cases of state devolution or dismantling (excluding the USSR, former Yugoslavia and the ‘velvet divorce’ of former Czechoslovakia), a number of models of such devolution have been proposed to either achieve such devolution or otherwise address separatist claims. Most proposed (and actual) conflict resolution processes have involved some type of external mediation, independent monitoring (or peace-making or keeping), institution-building and a ballot to determine the views of the people on whose behalf claims for independence are being made. This may result in grievances being addressed, often through devolved or autonomous authority, or independence.

 

In East Timor, the UN acted as mediator and monitor and, following a UN-supervised ballot (and brief forced withdrawal), oversaw peace-making, peace-keeping and institution building. Alternatives to this general model generally focus on other than complete independence, including types of partial devolution, including localised decision-making (Sri Lanka under the 1987 Indo-Sri Lanka Accord), regional autonomy (Aceh, Hong Kong and Bangsamoro[13]), federation (proposed by both the Government of Sri Lanka and the LTTE in March 2003 (RNMFA 2003) and confederation (as mooted by the LTTE until November 2007). The main difficulties with these alternatives, in particular localised decision making and regional autonomy is that the devolved powers may be easily subverted in practice, meaning the form but not necessarily the substance of separatist claims is addressed. This means that the underlying causes of separatist claims may continue or resurface (e.g. the Aceh conflict resolved in 1962 but resurfacing in 1976).

 

In Aceh, international pressure for a resolution to that conflict quickly developed following the 2004 tsunami that killed around 200,000 people in the province and destroyed much of its infrastructure. That the Indonesian military continued and intensified the conflict following the devastation and while the international donor community was attempting to undertake a relief effort focused the international community on a serious problem in Aceh that has previously been ignored (so as not to threaten Indonesia’s territorial sovereignty) but which now needed to be resolved. Indonesia had been seeking a negotiated resolution to the otherwise intractable problem, but without external mediation and, in essence, retaining the status quo. The international donor community quickly indicated to the Indonesian government, and to the GAM rebels, that if the conflict was not resolved it would jeopardise around US$5 billion in promised aid, which Indonesia could not afford to do. As a result, Indonesia agreed to accept mediation by the Helsinki-based Crisis Management Initiative, with monitoring of the eventual agreement by an EU-led Aceh Monitoring Mission (Ahtisaari 2006).

 

In West Papua, the Indonesian government has said it would talk with separatist leaders, but only within Indonesia and without international mediation. These two criteria had been rejected by West Papuan separatist leaders[14], with discussion continuing between them and the Indonesian government about this issue. In principle, however, negotiations had been agreed to, and at the time of writing an outcome around a genuine form of autonomy for a united West Papua was a possibility. In Sri Lanka, however, negotiations had at best achieved a ceasefire ( 2002 - January 2008) but, unlike the 2005 Aceh resolution, without attempting to address substantive causal issues. As a consequence, this ceasefire only entrenched existing positions and, when circumstances changed around the agreement, the agreement itself began to unravel. In this respect, peace agreements, regardless of whether they contain measures to address substantive claims, only succeed in so far as the parties to the agreement honor both the letter and the spirit of the agreement. If the agreement does not address substantive issues and there is no clear mechanism by which this aspect will proceed, it is commonly only a matter of time before the ceasefire collapses. That is to say, factors beyond the conventional ‘earned sovereignty’ approach that also play a critical role in separatist conflict resolution include the capacity of the mediation party, the extent of ‘parent’ state government agreement to negotiate sovereignty, addressing causal issues underlining separatist claims, international guarantees and sanctions, agreement monitoring, the capacity for extended multilateral peacekeeping operations, and the extent of commitment to institution and capacity building measures.

 

These requirements are much more basic than the standardisation of ‘earned sovereignty’ or, as it might more usefully be described, ‘mediated sovereignty’. But without these types of preconditions in place, transferring full or even partial sovereignty is likely to fail at the first serious challenge. If they are in place, then the process of mediating sovereignty becomes relatively simple. That is to say, if the parties are at the negotiating table and are genuinely seeking a solution, then there is a high likelihood of resolution, regardless of whether a standardised process is in place or not. Such willingness to genuinely participate, and ultimately to compromise, under the mediation of a competent neutral party was the critical lesson of the 2005 Aceh peace agreement and the UN-brokered agreement on 5 May 1999 that led to the East Timor ballot on independence (formally, whether or not to accept autonomy) on 30 August 1999. Other critical factors included the representative parties to the talks having the capacity to legitimately represent their constituencies, and to be able to compel compliance with their decisions among potential or actual dissenters.               

 

In summary, then, ‘earned sovereignty’ appears to take a number of increasingly conventional features of negotiation processes intended to assist resolving separatist conflict, but predicates the process on the likely outcome of sovereignty being ‘earned’ or, in more applicable terms, ‘mediated’.

 

In that this idea has problematic features, it prima facie assumes that complete or partial sovereignty for the aspiring state is a natural or given condition – that as the primary claim, the devolution of sovereignty must be negotiated. While many and perhaps most separatist movements have some legitimacy to their claims, based on ethnicity, territory and a sense of lack of belonging to the ‘parent’ state, built into the model is the assumption that the parent state will negotiate away complete or partial sovereignty. In fact, very few states are willing to do this, and most that do only do so through a lack of options. That is, ‘earned’ or ‘mediated sovereignty’ is implicitly pro-separatist in its outlook, which may be a legitimate perspective but is unlikely to earn the trust of guardians of parent states. To this end, earned or mediate sovereignty must be more neutrally balanced to allow parent states to engage in negotiation without understanding that, to paraphrase Oscar Wilde, the status of the claimant state has been established, and they are only haggling over the terms.

 

The ‘earned sovereignty’ model also aspires to a universality of application, which is both the strength and the weakness of the legal academics who have tended to dominate discussion of the idea to date. In this respect, the attempted codification of the model appears to be intended to serve as a kind of statute for the resolution of separatist conflicts. Yet while many and perhaps most of the abstract underlying features of such conflicts are common enough, short of a lack of self-determination being given the status of a crime against humanity (although in a place such as East Timor, Darfur and perhaps others, it might do so), there is no global legal mechanism which could impose such a statute. Nor, in a world that to a large degree remains based on both the legal and practical inviolability of sovereign states, are states likely to recognise such a statute, even in principle, for fear it may come back to haunt them at some unforseen time. As a consequence, one of the realities of conflict negotiating remains intact, and that is the negotiating table is the place where, apart from allowing each party the opportunity to speak and a mediator can to a greater or lesser degree facilitate the process, the rules of the game are made as the game progresses and are, in large part, determined by the respective capacities of the bargaining parties. In reality, a state in a relatively weaker position will concede more, and a state in a relatively stronger position will concede less, and the strength and weakness of the respective parties will be one of the issues that is considered within such a process (e.g. see Habeeb 1988).       

 

This then brings the process of negotiation back to first principle issues; principally what does each party claim, why do they claim it, and can the underlying concerns that inform their claim be met by an alternative arrangement. In most cases of separatism, the claim for a new state is based on the failure of the existing state to adequately address the legitimate concerns of a territorially specific ethnic group. This is usually as a consequence of the failure of the state to regard its citizens both as equal and their concerns as equally important. This then raises the question of the origins and nature of the state, and whether this can be changed to accommodate the legitimate grievances of separatist claimants, whether there is sufficient capacity to change or trust in such change, or whether the conflict has become so bitterly entrenched that the only option is for a divorce. Assuming no capacity for state change, then divorce, i.e. separatism, may be the only practical option; assuming complete capacity for state change, it is likely that the concern informing separatist claims can be addressed within the radically altered state; and assuming a limited capacity for state change, then partial sovereignty, autonomy, federation or confederation may be an acceptable solution.  

 

This then devolves to the legitimacy of nations, i,e, territorially specific and politically bonded ethnic groups, to be the basis for the formation of states. In that ethnically specific individuals might find comfort within a territorially defined group of like people then there is a strong claim to the right to self-determination for that group. However, if an individual feels the need to find comfort within a group, then that group can and normatively should be predicated not upon a shared culture or claimed history, but respect for individuals as equally important members of the common community, or respecting the community by respecting its constituent members. That is to say, nations may legitimately claim the right to self-determination as manifested in states, but this of its own does not address the issues of, for example, equality before the law, social and economic fairness (as per a social contract) and like values that more accurately refer to the civic than the ethnic.  

 

Finally, assuming there is some legitimacy to the general claim of nations to self-determination as manifested in states, which would appear to be reasonable given that the world’s most privileged peoples live in such communities, the question is what is necessary in order to establish and achieve such a claim. This then goes back to the term ‘earned sovereignty’, and begs the question of whether sovereignty can be ‘earned’ in any meaningful sense (sovereignty fought for may be ‘earned’, but is more accurately ‘won’), whether sovereignty infers a reciprocal obligation (as in conventional ‘earning’) or, alternatively, whether it is just claimed, and whether or not this implies a right to sovereignty that could be  (and often has been) disputed.

 

Perhaps in this there is an element of the political philosophy of the state from which most of the protagonists of the ‘earned sovereignty’ school derive; the United States, in which there is an intrinsic sense of entitlement that only need be claimed to have been ‘earned’. But given that sovereignty, complete or partial, in any of the cases under consideration (and many others) can only be ‘earned’ through the sacrifice borne of conflict, one might say that it is not ‘earned’ but ‘won’, thus legitimising the very conflict that the proposal is intended to mediate away.

 

To that end, the proposal put here is that separatist conflict can be resolved through a variation of the ‘earned sovereignty’ approach, and that separatist conflict resolution theoreticians and practitioners may need to spend more time at the drawing board to reconstruct a basic set of principles which might, with a sensitivity for the various nuances, be applied in a more circumspect mediated environment. This is not to deny, as noted above, the legitimacy of many separatist claims. But it is to note that such claims are invariably contested, and that any mediated resolution model cannot at the outset assume a broad direction, much less a particular outcome. The process, then, requires mediation, and regardless of how the parties resolve their differences and the status of the sovereignty which reflects that resolution, the outcome will be a ‘mediated sovereignty’.  

  

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DRAFT paper, March 13, 2008.

 Damien welcomes feedback at :  damien.kingsbury@deakin.edu.au



[1] Associate Professor Damien Kingsbury is Associate Head (Research) of the School of International and Political Studies, Deakin University, Melbourne, Australia. He was political advisor to the Free Aceh Movement in the 2005 Helsinki peace talks and has since advised other separatist organisations on negotiating settlements to their outstanding political claims.  

[2] Assuming no regard, for the capacity of separatist movements, there are almost one hundred separatist movements, with many more parties associated with such separatism (see Broadleft 2005). The Open Directory Project (2008) lists 383 territorial disputes, although many of these could not be claimed as separatist. The UN Unrepresented Peoples’ Organisation has 69 members, although this is not an exhaustive representation of separatist claimants.

[3] ‘Terrorism’ can be most simply be described as employing the use or threat of violence to compel a person, people or organization to undertake actions against their wishes. This is generally, although not accurately, applied to non-state actors.

[4] Reasons for states voluntarily dismembering or otherwise reaching a negotiated conclusion may include recognition of the inappropriateness of inclusion of the disputed territory (e.g. republics of former USSR, Yugoslavia), lack of international recognition of inclusion or illegality of inclusion under international law (e.g. East Timor), international pressure or the relative inability to contain or resolve the claims of the separatist movement and the excessive cost implied to the state (e.g. Aceh).  

[5] This refers to both further minorities as well as residual elements of the original majority, e.g. Sinhalese and Muslims in the claimed Tamil Eelam and Gayo, Alas and ‘transmigrant’ (predominantly Javanese) minorities in Aceh and similar ‘transmigrant’ and economic migrant minorities in West Papua.

[6] ‘Autonomy’ was widely viewed within East Timor as code for little or no effective change of status, based on discussion between the author an numerous East Timorese across East Timor at this time.

[7] Indonesia’s then Foreign Minister, Ali Alatas, 12 November 1991, see also Alatas 2006.

[8] Australia, Brazil, Canada, Denmark, Egypt, Fiji, France, Germany, Ireland, Italy, Jordan, Kenya, Malaysia, Mozambique, New Zealand, Norway, Philippines, Republic of Korea, Singapore, Sweden, Thailand, United Kingdom and the United States.

[9] Connor (1994) argues that the term ‘ethno-nationalism is redundant, as the etymology of ‘ethnic’ is from the Greek word for nation, meaning that ethno-nationalism literally means ‘national-nationalism’. In that ‘ethnicity’ can be ascribed a meaning other than nation, it refers to ‘tribe’, or rather a nation without a state. 

[10] In a number of cases, armed separatist movements claim they formed in response to pre-existing violence, e.g. LTTE, Aceh, West Papua.

[11] Indonesian forces had engaged in cross-border incursion for the previous ten weeks.

[12] As defined by the Human Development Index.

[13] Bangsamoro in the southern Philippines was, at the time of writing, being negotiated between the Government of the Philippines and the Moro Islamic Liberation Front, with agreement on the concept of an autonomous administrative region, but talks stalling over technical details, including sea-bed boundaries and division of economic resources.

[14] This position was confirmed a number of times but, most uniformly, at a meeting of leaders of separatist groups at a secret location in September 2007, at which the author was present.

 

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