The European Union remains a salutary reminder that countries that value their sovereignty should be wary of transnational courts. While much focus on this issue has centered on prosecution of American personnel, we should also remember that transnational courts hold great power over other decisions as well. A great example has occurred recently in the EU in relation to the terrorist organization the LTTE, more popularly known as the Tamil Tigers, the Sri Lankan group that invented suicide bombing as we know it.
Back in 2006, the European Union declared the LTTE a terrorist organization in an attempt to dry up funding for the group, following the lead of the U.S., the U.K., and India. This helped the Sri Lankan government to a military defeat of the LTTE in 2009. Sri Lanka has begun to move on from the 30-year long war and has returned to peace, with rebuilding occurring in previously war-torn areas. However, the Indian government believes that pro-LTTE forces are trying to regroup and fundraise clandestinely for a renewed campaign.
Enter the European Court (not the European Court of Justice — there are several transnational European courts with confusing names). Earlier this year, it annulled the EU’s designation of the LTTE as a terrorist group, on the basis that the initial designation relied too heavily on Wikipedia and media accounts. Given that the LTTE attacks and methods were well-known, it is somewhat odd to read a ruling that complains that, essentially, the designation was based on common knowledge.
Yet irrespective of the Court’s rationale, the question remains why the Court has such a say in foreign policy. While the European Union has a “Common Foreign and Security Policy,” the treaties that established that were explicit that the European Court has no competence to give judgment in this area. The power of the European Court to issue such a judgment appears to be based on a technicality, which is ironic given that the judgment itself was based on a technicality.
What we are seeing in actions like this from the European Court is a further example of the transnational-progressive power grab so eloquently described by John Fonte over a decade ago. The technocrats of the European Court have asserted a power over foreign policy that does not exist in the EU founding treaties. What that means for the poor people of Sri Lanka appears to be irrelevant, just as the bureaucrats of the U.N. Framework Convention on Climate Change can reach an agreement that satisfies their own preferences but could delay the adoption of wealth-supporting energy infrastructure in the developing world, keeping billions in poverty.
Yet transnational soft power like this does run up against the realities of hard power. The U.S., U.K., and India all retain their designations of the LTTE as a terrorist group, and if the resolve is there, the main flows of potential funding will still be cut off. Yet David Cameron is under significant pressure within the U.K. owing to the dynamics of the South Asian diaspora there, as well as pressures within the EU that have led to the rise of UKIP. That means that President Obama is the last line of defense against renewed funding for the LTTE. Indeed, the president could delist the LTTE by executive fiat. The fact that Samantha Powers did not object to a U.N. High Commission on Human Rights inquiry into the armed struggle, which will almost certainly focus on the government’s role (such is the way of these things) does not inspire confidence. I should stress that the Sri Lankan government was by no means a saint during the three decades of war, but the fact is that Sri Lanka now has peace. Sri Lanka may well decide it would have a better ally than the U.S. in China.
In any event, this speculation should not detract us from the main point here, which is that we once again have an example of the way in which the transnational elites can use institutional power to direct policy the way they like it, and there’s very little even a major country that is trapped within those institutions can do about it. We join transnational institutions at our peril.