By Daya Gamage –
Two news items stood out last week in Sri Lanka: both well connected to the July 1987 Indo-Sri Lanka Accord signed by both countries. The Energy Minister Gammanpila,on October 4, told parliament that the Trincomalee Oil Tank Farm was handed over to India under the Accord. Then the Indian Foreign Secretary was in Colombo to encourage the government to ‘properly’ implement the Thirteenth Amendment and quicken the process to hold provincial council elections.
India has been, since Gotabaya Rajapaksa became the president, repeatedly asking Sri Lanka to attend to both of these issues.
During his visit to Colombo in March 2015, Prime Minister Narendra Modi said the project to develop the upper tank farm in Trincimalee would help the coastal town become a regional petroleum hub.
This year on February 19 Minister Udaya Gammanpila reported to have said that his government was “proud to re-acquire” the oil tanks being denied access since 2003 when Sri Lanka leased out 99 oil tanks to IOC for 35 years.
In response to the Minister’s statement a reply from the Indian diplomatic mission in Colombo denying reports that the old deal was scrapped said “the two governments have consulted each other to explore mutually acceptable modalities for jointly developing and operating the facility in accordance with existing bilateral understanding, including the Memorandum of Understanding of 2017.
Both these issues, and many more, have been on India’s foreign policy agenda, and all these are by-products of the 1987 Indo-Sri Lanka Accord signed between President Jayewardene and Prime Minister Rajiv Gandhi.
Regarding the ‘Trinco Oil Deal’, Minister Gammanpila most recently quite correctly referred to Clause 2 Section III of the Accord which says “The work of restoring and operating the Trincomalee Oil Tank will be undertaken as a joint operation between India and Sri Lanka.”
Since the ’87 Accord, the whole trajectory of Sri Lanka’s domestic politics – with extremely heavy external domination and influence – was toward the devolution of administrative power to the provinces – along with the vital energy issue – often mentioning about the promulgation of a federal system. This external influence prevented successive administrations to focus on the validity of the Accord which had an agenda solely written by the Government of India. What is most interesting is that the Norwegians who initiated 2002-2005 Peace Talks were in fact working within the ’87 Accord, and so was Washington heavily involved in implementing the ‘devolution aspect’ of the Accord which it thought would redress minority Tamil grievances.
No interest was taken – all these years – even to consider that the devolution was undertaken due to an Accord that was forced on Sri Lanka under military/political coercion by the neighboring power.
With the election of Chandrika Kumaratunga in 1994, under external pressure, she proposed substantial devolution to the north-east provinces, in fact proposing to hand over the provinces to an independent LTTE rule for five years. All these were result of the provisions of the ’87 Accord. With Ranil Wickremasinghe gaining a majority in the 2001 parliamentary election, the Norwegian Peace Talks commenced with Washington heavily involved. Talks were focused on devolution and strengthening the provincial council system. With the advent of the Rajapaksa administration in 2005, the regime in fact proposed 13-PLUS, an improvement of the already existing 13th Amendment.
In addition to military violations of Sri Lankan sovereignty and territorial integrity on eve of the signing of the Accord, were the conditions that India tried to impose on Sri Lankan foreign policy through the Accord. Besides the text of the main accord, an exchange of letters was appended as an annexure that was clearly outside the scope of the ethnic conflict. As Rajiv Gandhi later explained India’s intent: “It is in the exchange of these letters that we have seen to the security problems in our region: . . . hostile forces are not allowed to come into our region, . . . forces prejudicial to India’s interests will not be present on Sri Lankan soil, . . . Sri Lanka’s ports, including Trincomalee, will not be given for military use, [and]. . . any broadcasting facilities that are set up in Sri Lanka will not be used for military or intelligence purposes.” (1)
Since the advent of the Rajapaksas’ administration the Indian Government has pressed Colombo persistently to implement the 13th Amendment to the Constitution, which was ratified as part of the 1987 Indo-Sri Lanka Agreement. (Indian Foreign Secretary has already told the government to implement the 13th amendment and hold PC elections during his visit last week.)
Given the persistent salience of the 13th Amendment in Indo-Sri Lankan diplomatic discourse, it would be appropriate to say about the underlying legality of the amendment and its checkered implementation. First, there is a reasonable argument to be made that the bilateral accord that mandated the devolutionary restructuring of the Sri Lankan government was illegal from its inception. Although signed by Jayawardene the accord was obtained by India under the threat of military action. The threat of forcible intervention must have been perceived as real to persuade the Sri Lankan president to agree to Indian occupation of the North although that surely added fuel to the Sinhalese insurrection in the South. Lt. Gen. A.S. Kalkat, the commander of the Indian Peace Keeping Forces (IPKF) during 1987-1990, explained in a recent interview that Rajiv Gandhi had felt compelled by domestic political pressures from Tamil Nadu to launch the military intervention and that he had extracted the Accord from Jayawardene by the show of power projection that was the food drop. The General opined that the Accord, opposed by both the Sri Lankan people and the LTTE, was fundamentally flawed in granting autonomy to one fifth of the population spread over one third of the area of the island. The lesson for India and the U.S., he said, is that “an outside power cannot give a political dispensation; only the government of the country could give [that to] its citizens.” (2)
Because Sri Lanka continues to pressured by external powers operating through the United Nations and International Court of Justice (ICJ) to implement fully its 13th Amendment, Colombo to date has not given serious thought to invalidating the 1987 Accord. But the Amendment was imposed on the country under duress rather than being legislated through democratic debate, and it remains politically controversial. What is less debatable is that the Indian airdrop and threatening diplomatic communications from New Delhi to Colombo prior to the IPKF were violative of at least the spirit of Article 2(4) of the United Nations Charter. That Article enjoins all member states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.” Both the Security Council and the General Assembly have adopted numerous resolutions that contain implicit or explicit references to Article 2(4), condemning, deploring or expressing concern about acts of aggression or the launching of armed intervention. A number of resolutions contained calls for a withdrawal of troops from foreign territories. (3)
In addition, Article 51 of the Vienna Convention on the Law of Treaties states that an “expression of a state’s consent to be bound by [a] treaty which has been procured by coercion of its representative through acts or threats directed against him shall be without legal effect. (4) Similarly, Article 52 of the same Convention provides that “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”
Some Indian commentators have argued that Sri Lanka cannot withdraw from the 1987 Accord—and by extension the Amendment—by reason of the Vienna Convention because neither Sri Lanka nor India are signatories to the Convention. The United States has never ratified the Vienna Convention, but its Department of State as early as 1971 acknowledged that the Convention constitutes “the authoritative guide to current treaty law and practice,” even for non-parties. (5) Despite being a non-signatory, the US Government has frequently brought cases before the ICJ based on alleged violations of the Vienna Convention. In short, neither India nor the US Government has standing under international law to press the Sri Lanka to honor commitments imposed on it illegally.
This is how Washington collaborated with India in the latter’s foreign policy dicta on Sri Lanka, and it’s best to know.
An assessment prepared jointly by the State Department and CIA in 1986 – an year before the Accord was signed – shows that Washington was deeply aware of India’s hegemonic ambitions in the Indian Ocean Region and cautioned that “U.S. military aid [to the Jayawardene government], in our view, would seriously complicate U.S. relations with India. . . . [The separatist war] will make the Sri Lankan government increasingly eager for U.S. military aid. [Such] support would seriously strain Indo-U.S. relations. (6)
Washington’s appeasement did not end, however, with helping New Delhi conceal its dirty secrets about nurturing the LTTE. In a declassified intelligence report, U.S. analysts correctly assessed that the Government of India wanted the U.S. to remain uninvolved in resolving the Sri Lankan conflict and to eschew military assistance to the Government of Sri Lanka, but to support Indian initiatives, including potential military intervention. In the words of the report, dated May 17, 1985:
“We believe New Delhi wants the United States to defer to India’s lead in resolving the conflict, to treat the insurgency as a regional issue, and to continue to urge Colombo to accept the need for a negotiated solution. Should the Sri Lanka communal conflict deteriorate to the point where New Delhi becomes convinced of the need to intervene militarily to restore order, the Indians look to Washington for political support, or at the least, for diplomatic acquiescence. New Delhi would characterize Indian military intervention as aimed solely at restoring public order, not an expression of Indian expansionism within the region. The Indians will assume Jayawardene would turn to the United States for military support, but they will urge Washington to turn down such requests. In our assessment, New Delhi would not call for or even welcome a greater role for the United States in resolving the Sri Lankan communal conflict.” (7)
It is clear, however, that Washington agreed with New Delhi that the emergence of the LTTE separatist movement was the result of real Tamil grievances. Washington and New Delhi both accepted the narrative promulgated by Tamil activists that the underlying cause of those grievances was growing Sinhalese-Buddhist nationalism.
Both governments also projected onto Sri Lanka their panacea for ethnic discord—federalism—without prescribing mechanisms to protect democracy in devolved jurisdictions and prevents them for being used as bases for renewed separatism.
It is good time that Sri Lanka summons her guts and dignity to abrogate the 1987 Indo-Sri Lanka Accord, as the above narration explicitly denote India’s forceful attempt to re-structure Sri Lanka’s domestic as well as its foreign policy trajectory. It is important for Sri Lanka to note the stand Washington has take on Accords that are forcibly imposed and the position it has taken in reference to Global Charters.
Rajiv Gandhi, Foreign Affairs Reports, 36:208 (July/October 1987) New Delhi, p. 241
Interview with Lt. Gen. A.S. Kalkat, https//www.youtube/com/watch?v=UnhVo7oeLv4
Vienna Convention on the Law of Treaties, May 22, 1969, Art. 7, 1155 U.N.T.S. 331, 334.
Congressional Research Service, Library of Congress, “Treaties and Other International Agreements,” Prepared for the Committee on Foreign Relations, United States Senate, January 2001 (https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/html/CPRT-106SPRT66922.htm)
CIA/State Dept intelligence report, December 30, 1983 (https://www.cia.gov/library/readingroom/document/cia-rdp85t00287r000801760001-1
The Department of State and the Directorate of Intelligence of the CIA, September 1986. Joint assessment declassified in January 2012. https://www.cia.gov/library/readingroom/doc/CIA-RDP88T00096R000300340001-2.pdf