A response to Dr. Nihal Jayawickrama
The state of State sovereignty

Dr Nihal Jayawickrama, for whom I have considerable respect and affection, makes some very valid and necessary criticisms in his article ‘The Myth of State Sovereignty’ in the Sunday Island (March 28, 2010) and on DBS Jeyaraj’s Transcurrents. He is however gravely in error when he considers state sovereignty a myth or at best, an obsolete doctrine.

Though one cannot credibly uphold an absolutist conception of the state, it would be plainly absurd to claim therefore that the state is a myth, an obsolete or outdated concept. Similarly, while the Westphalian notion of state sovereignty has been eroded and one can no longer absolutize the concept, it is wrong to assert as does Dr Jayawickrama, that state sovereignty is ‘outmoded’, ‘obsolete’ and a ‘myth’ invoked solely in and by Sri Lanka.

The cornerstone of the ‘contemporary world order’ is not international law, it is the state. What is the organising unit and operational agency of international law and is it as material and ubiquitous as the state? What is the actor that supersedes the state in the contemporary world order? There is none. The United Nations is an intergovernmental body and the UN Security Council without which no case can be referred to the newly established ICC, is comprised precisely of powerful states. The contemporary world order rests on the state, state power and sovereignty, exercised in accordance with the perceived interests of that or those states.

Indeed international law supersedes state sovereignty only when a powerful sovereign state or a collection of such, so decide, or permit, the use of international law for purposes that serve or coincide with ‘national’ i.e. state interests. I might add that the Sri Lanka will learn this the hard way if there is even a whiff of a July ’83, somewhere down the road.

If state sovereignty were an obsolete doctrine, it should have been noticeable at least in the UN Human Rights Council, where our resolution on Sri Lanka (which secured a larger vote in favour than even the Goldstone report on Gaza), commenced with an invocation of non-intervention on the basis of state sovereignty.

Dr Jayawickrama’s notion of the contemporary world order is hardly contemporaneous. It describes a trend that was dominant during the heyday of what is now known as ‘liberal humanitarian interventionism’; a sub period of the ‘uni-polar moment’ in contemporary world history, itself a phase of post Cold War history. That moment is over and the echoes of its doctrines remain only in Dr Jayawickrama’s zone of domicile, the UK-EU, and occasionally in the larger Anglo-American domain.

Far from abandoning the notion of sovereignty, there has been a reaction to its erosion in the form of the breakup of Yugoslavia and the unilateral concessions made by Yeltsin. That reaction has come from the rising Asia — most notably China- a resurgent Russia and most of the global South as represented by the Non Aligned Movement. The last named includes some of the most enlightened and progressive administrations on the planet such as Lula’s Brazil, which has in its cabinet, renowned Critical Legal Theorist Roberto Mangabeira Unger formerly of Harvard. One of my most cherished souvenirs is a photograph of Lula perusing my book on Fidel’s Ethics, taken on the occasion that he delivered what would be his farewell speeches to the UN Human Rights Council and ILO, in which he made a stirring reiteration of the relevance of ‘national sovereignty’ and the role of the state.

The laudable commitment to the doctrine of state sovereignty on the part of the world’s most populous democracy, secular India, a rising economic power which the US considers its counterpart in Asia, is manifest whenever the issue of Kashmir and any suggestion of a UN or international role of any magnitude, including that of international human rights probes, comes up. So much for obsolescent doctrines which only that funny little place Sri Lanka, continues to believe in.

If Dr Jayawickrama were to content himself with charging that GOSL is abusing the concept of state sovereignty one could scarcely disagree. State sovereignty has certainly been over-invoked and abused by the GOSL in the post-war period; in peacetime. The problem today is that the closer affinity between ‘national sovereignty’ and (republican) ‘popular sovereignty’ has been glossed over in favour of the equation of ‘national sovereignty’ with ‘state sovereignty’ and ‘state sovereignty’ with ‘state security’, which has itself been equated not with the more holistic recent doctrine of ‘human security’ but with the government of the day, so that the monstrous equation concludes with any activity outside the parameters prescribed by the dominant ideology being anti-government activity; anti-government activity being anti-state activity, tantamount to activity against the security of the state and therefore against national/state sovereignty itself — while the role of the state is increasingly defined in ethno-religious terms. An illustration of this phenomenon is the hitherto unprecedented detention of a young Sinhala woman author and convert to Islam.

That unconscionable narrowing of state sovereignty to state security and that too defined in the narrowest partisan sense, was perhaps pioneered by the 1970-77 administration of Madam Sirima Bandaranaike and chiefly by Hon Felix Dias Bandaranaike, on whose watch Lord Avebury of Amnesty International was deported, the Civil Rights Movement and its head, Law College principal Raja Gunasekara were hounded, and fledgling civil society experiments such as the Marga Institute, derided. Dr Jayawickrema would be better placed than I to confirm this.

While I am no lawyer, the writings and speeches of Lakshman Kadirgamar, who was hardly unfamiliar with international law, is a textbook example of basing one’s external policy precisely and explicitly on the doctrine of state sovereignty while committed to the ratification of international human rights conventions. Mr Kadirgamar’s foreign policy, and even his critique of the Ceasefire Agreement (CFA), had as its foundation stone the doctrine of state sovereignty. I daresay nothing drastic has happened in the world order since his assassination by the Tigers in 2005, to render obsolete the Kadirgamar approach. If anything, the increasing shift of power within the ‘contemporary world order’ to Asia (and China in particular) has lent his approach greater relevance.


The writer is a Visiting Senior Research Fellow at the Institute of South Asian Studies in the National University of Singapore. He was Sri Lanka’s former ambassador/Permanent Representative to the United Nations in Geneva. These are his personal views.

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