Lorenzo Fiorito and Sowjeya Joseph
On February 16, the Tamil National People’s Front (TNPF) announced that it would initiate a grassroots signature campaign. The petition first demands that the UN Human Rights Council (UNHRC) cancel the extension granted to Sri Lanka (Resolution 30/4, which allows Sri Lanka until March, 2019 to implement “reconciliation” measures outlined in 2015’s Resolution 30/1). Second, it demands that Tamil grievances should be transferred to the UN Security Council. The petition garnered 200,000 signatures before its delivery in Geneva. This article examines how the TNPF’s second demand, regarding the Security Council, might succeed.
To lobby General Assembly and Security Council members effectively, Tamil advocates should build from the premise that sovereign states are not primarily convinced by legal arguments, nor by moral considerations, but by economic and geopolitical self-interest. Tamils will have to persuasively alter many diplomats’ perceptions of their governments’ best interests, by skilfully basing lobbying scripts on economic and geopolitical logic. Our requests and demands should identify and offer solutions to mutual problems, presenting a win-win scenario.
This requires a change to Tamil self-perceptions: an awareness of our own relative power within the community of nations. As the Tamil people and its advocates prepare for this change of venue, the Tamil national advocacy narrative should shift from one of victimhood to one of strategic importance and equal partnership. Thirukkural 772 reads:
Better to bear the spear that missed the elephant,
than the arrow that hit the rabbit.
கான முயலெய்த அம்பினில் யானை
பிழைத்தவேல் ஏந்தல் இனிது.
Why the Security Council?
The strategy of lobbying the UN Human Rights Council (UNHRC) will be completely exhausted in March, 2019: when UNHRC Resolution 34/1 expires. Four years after the original Resolution 30/1 (which 34/1 extends), no tangible progress will be likely.
A recent Tamil Guardian editorial, after local government elections in early February, summed up the situation well:
If there was ever a window of opportunity for internal change towards a political solution or meaningful accountability, that has now firmly closed. Difficult reforms and conversations that were not pursued when the unity government was in the strongest possible position are not going to be pushed through now in light of Rajapaksa’s re-emergence….As the Tamils have long argued, heightened international pressure is the only way to effect change, and firm international scrutiny is the Tamil people’s only present safeguard against repression by the state.
Changing venues from the UNHRC to the General Assembly, paying particular attention to the Security Council, is the rational next step. One reason for Resolution 30/1’s failure is that UNHRC resolutions do not carry sanctions for violation. The General Assembly is subject to the leadership of the Security Council – particularly the veto power of its five permanent members. Failure to comply with a Security Council decision may earn sanctions – justified under Chapter VII, Article 41 of the UN Charter:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 41-compliant sanctions provide the only advantage of a Security Council resolution over a UNHRC resolution. Sri Lanka has already ignored the stated will of the international community. Thus, if and when Tamils lobby the Security Council for a resolution on Sri Lanka, they should explicitly invoke Article 41 and its associated penalties to make that resolution binding. Otherwise, Sri Lanka will ignore the Security Council too.
Investments: Vested interests in Sri Lanka
Several General Assembly and Security Council members are also investor states in Sri Lanka. At least two Tamil grievances could also affect foreign investments negatively. Such possible threats to foreign investment are common enough that nearly all bilateral investment treaties (BITs) in the world address these scenarios.
First, the government’s clear failure to protect target populations from organized mob attacks escalates Sri Lanka’s frequent states of emergency and civil unrest. The island’s history shows that repeated clashes (such as recent violence against Tamil-speaking Muslims) could worsen to the point where they threaten investments.
Second, Sri Lanka’s judicial system lacks independence, which has prevented prosecutions of war criminals and genocidaires. A well-founded fear of torture while in arbitrary detention is one reason that Tamil asylum-seekers do not wish to return to the island. In turn, the national judiciary is a forum where some foreign investors may settle disputes over unfavourable treatment and compensation.
Potential problems within investment treaties with Sri Lanka provide some incentive for General Assembly members to invoke the Responsibility to Protect, or R2P. (We’ll explore R2P more fully in a companion article.) Five Security Council members hold a veto: China, France, Russia, the UK, and the USA. We’ll examine their possible behaviour through bilateral investment treaties, or BITs. (Other instruments through which to view the issue also exist.) Russia has not negotiated a BIT with Sri Lanka, so we’ll examine the remaining four agreements.
The Financial Times states:
from 2005 to 2014 China spent $870.4 billion in worldwide investments and contracts, out of which $8.9 billion was invested in Sri Lanka. In contrast, according to the International Finance Corporation (IFC), which is part of the World Bank group has made cumulative investments worth $596 million in Sri Lanka.
China has invested $1.4 billion USD in the Hambantota Port, which Sri Lanka has formally handed over to China on a 99-year lease. It has committed a further $1 billion to the development of the port. This location holds high strategic importance, adding value to the investment.
China’s investments are protected by its BIT with Sri Lanka, signed in 1986 and still in force. Treaty Article 7 forces Sri Lanka to compensate Chinese investors for “losses owing to war or other armed conflict, a state of national emergency, revolt, insurrection or riot,” to a level “no less favourable” than compensation given to a third state.
So, Sri Lanka has a strong interest in refusing to compensate any foreign investor who suffers losses during a time of instability, in order to avoid compensating Chinese investors who carry the heaviest international risk. Any form of instability is thus a potential threat to the security of Chinese investments.
Article 13 of the China-Sri Lanka BIT commits Chinese investors to submit any investment disputes either to Sri Lankan courts, or to an ad hoc international investment tribunal.
China therefore has an interest in displaying its preference for an independent Sri Lankan judiciary. The signal of no-confidence offered by helping to establish an international criminal tribunal could help curb Sri Lankan government influence over the judicial system, thus helping to improve the investment environment.
France’s BIT with Sri Lanka was signed in 1982, and remains in force.
Article 7(3) of their agreement commits Sri Lanka to compensate France for losses suffered during civil unrest and armed conflict, at a rate no less favourable than any compensation given to Sri Lankan investors. This provision creates a problem similar to the Chinese treaty: during times where investments suffer losses due to civil unrest, Sri Lanka could avoid compensating French investors by failing to compensate its own nationals.
The treaty makes no mention of using Sri Lanka’s national courts to settle investment disputes: instead, under Article 11(2), these disputes must be referred directly to the International Centre for the Settlement of Investment Disputes (ICSID) in Washington, DC. Under Article 13(4), if France and Sri Lanka cannot agree on who to place on the ICSID tribunal, the UN Secretary-General is empowered to name arbitrators for the dispute.
While French interests are certainly tied to those of the European Union, France does not appear to have strong investment interests in Sri Lanka. Its embassy lists a loan of 13.9 million euro to Sri Lanka for development in the dairy sector. The lasting, peaceful, and democratic political solution to Sri Lanka’s problems that a referendum offers should pose no threat to France’s national interests.
c) United Kingdom
The UK’s BIT with Sri Lanka was signed in 1980, and remains in force. Information on the value of protected investments appears not to be readily available.
Article 4(1) commits Sri Lanka to compensate the UK for losses due to civil unrest and armed conflict, at a level “no less favourable” than compensation given Sri Lankan domestic investors. This produces the same problem for the UK as with France, where Sri Lanka may simply avoid compensating UK investors by not compensating Sri Lankan nationals when they lose assets during a crisis. However, under Article 4(2), Sri Lanka must always compensate UK investors in certain cases where state authorities or forces are responsible for investment losses.
Taken together, Articles 8 and 9(2) mean that investment disputes will be referred directly to an ICSID tribunal, without mention of national courts.
d) United States
The Office of the US Trade Representative states that “U.S. foreign direct investment (FDI) in Sri Lanka (stock) was $111 million in 2015 (latest data available), unchanged from 2014.” Interestingly, “Sri Lanka’s FDI in the United States (stock) was $57 million in 2015 (latest data available), up 35.7% from 2014.” A new Sri Lankan administration entered office in 2015.
These interests are reciprocally protected under the USA’s BIT with Sri Lanka. It came into force in 1993, and remains in force.
Article III:3 commits parties to compensate losses, due to armed conflict and civil unrest, to a level equal to any domestic or third-country compensation – whichever is the most favourable. Sri Lanka may avoid compensating US investors who suffer losses during times of instability by refusing to compensate anyone.
Under Article VI:3, investors choose individually how to pursue investment disputes. If investors do not wish to use national courts, they may sign an agreement committing them either to ICSID arbitration, or to an ad hoc investment tribunal that uses ICSID rules. US investors may choose to pursue these disputes in Sri Lanka’s national courts, in which case they forgo the right to use either of these investment tribunals.
So the United States, like China, has some interest in curbing Sri Lankan government influence over the judiciary. It may wish to provide an alternative to a judiciary that lacks independence.
Sri Lanka should fear disputes with investors who turn to arbitral tribunals because they mistrust the national judiciary: a 2015 report by the UN Conference on Trade and Development (UNCTAD), cited here, indicates that “investors…have actually won most of the time: 72 per cent of the decisions on jurisdiction, and 60 per cent of cases decided on the merits”.
The foregoing facts lend themselves to a particular advocacy narrative.
Tamils and the international community have given the model of reconciliation in Resolution 30/1 an extended chance. That time period clearly demonstrated that 30/1’s approach will not change Sri Lanka’s behaviour. Similarly, the Sri Lankan Army’s counter-insurgency strategy worsened the underlying national tensions. In this environment, three factors indicate shared ground between Tamil national demands and the international community’s vested interests.
1) Seventy years of history show that Sri Lanka’s pattern of racist mob attacks, during which the state fails to protect target populations, is essential to its statecraft. This produces instability that could escalate at any time.
Such structural instability threatens foreign investment: Sri Lanka may then use loopholes in its treaties to avoid compensating investors who suffer losses during a crisis.
2) An international criminal tribunal, doing justice to perpetrators of war crimes and crimes against humanity (including genocide), will begin the necessary healing process for a war-affected nation to coexist with its neighbours in peace.
Failure to judicially address grievances from the armed conflict creates resentments, which could be expressed through political instability. Recent attacks on Tamil-speaking Muslims are also the direct result of impunity for attacks against the Tamil people during the armed conflict. A well-founded fear of torture in arbitrary detention often underlies asylum claims.
Tamils call for a competent international tribunal because Sri Lanka lacks an independent judiciary. This same body also resolves disputes over some investors’ assets. Supporting a credible international criminal tribunal would send an effective signal that investors lack confidence in Sri Lanka’s judiciary, and thus lends itself to more impartial protection of investments.
3) Maintaining a unitary political structure creates the conditions for instability, by failing to address national grievances.
Tamils propose a referendum and an international criminal tribunal, offering two peaceful and democratic mechanisms to help the international community safeguard lasting stability and security in the region.
Satisfying these Tamil demands strongly reduces the likelihood that civil unrest and riots, directed at target populations such as Tamils and Tamil-speaking Muslims will recur. A referendum offers a lasting resolution to the underlying causes of Sri Lanka’s structural instability, by expressing the Tamil people’s will. A referendum could also establish a territory that Tamil refugees would be willing to return to, without the reasonably founded fear of torture, thus easing the perceived burden on some General Assembly members’ immigration systems.
Stability and security on the island safeguard the lives and property of target populations. They also protect the vested interests of Security Council members and of the larger international community. The Tamil people and the international community thus have a shared interest in crafting these solutions together: in contrast with a structural Sri Lankan state practice that demonstrably satisfies few, if any, international stakeholders. Article 41 of the UN Charter offers the Security Council a safeguard that the UNHRC cannot: the legal possibility of economic sanctions for violation. Lending support to Tamil advocates’ demands is a win-win scenario for the General Assembly and the Security Council.
The present article does not provide an in-depth analysis of the geopolitical and economic interests in the island of Sri Lanka among all relevant stakeholders (for example, India, Singapore and the EU), but limits its analysis to investment interests of four out of five permanent Security Council members. Our point is that there is a margin to effectively lobby the Security Council. In a companion article, we will look at what a Security Council referral means, in legal terms.
By using skilful methods of presentation, Tamil advocates will amplify the voices of the 200,000 people who signed the TNPF’s petition – and the many more whose aspirations to self-determination and justice have gone unheard until now. This approach provides states with incentives to uphold international law and morality. In such a scenario, the Tamil nation becomes a partner, and not a beggar, of the international community.
Sowjeya Joseph is a German-qualified lawyer, and holds an LL.M in International and European law. She is in London, UK.
Lorenzo Fiorito holds a B.A. in Political Science, and is an LL.M candidate. He is based in Geneva, Switzerland.
Both authors are members of the Tamil diaspora.