By Neville Ladduwahetty Courtesy Island

The earlier call by IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Minister of External Affairs Mr. Salmon Khurshid urging Sri Lanka to implement the 13th Amendment in full and even go beyond was followed by a similar call by IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s National Security Advisor Shivshankar Menon during his recent visit to Sri Lanka. While India does not seem to miss any opportunity to remind Sri Lanka of implementing the 13th Amendment, a vibrant debate is going on within Sri Lanka regarding its retention in the current form, revision of certain provisions, or repealing its altogether.

While the focus is on the 13th Amendment, little attention has been paid to the agreement that precipitated the 13th Amendment namely, the Indo-Lanka Accord. This may be due to a perception that the 13th Amendment is an internal construct and therefore within Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s jurisdiction to revise or repeal, while the Indo-Lanka Accord is a Treaty between two sovereign states. If a Treaty, it needs to comply with the provisions of the Vienna Convention on the Law of Treaties of 1969 for it to be valid. Therefore, if Sri Lanka demonstrates that India failed to fulfil provisions of the Vienna Convention, grounds exist under provisions of international law for the Indo-Lanka Accord to be voided.

The Island editorial of July 10 listed 5 specific obligations [2.16 (a) to (e)] specified in the Indo-Lanka Accord that the Indian Government was expected to fulfil, and commented on the effects of non-compliance against each of these 5 obligations, the most important being IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s failure to stop the violence which actually grew in ferocity and intensity over the operation of the Accord. The editorial concluded that the Accord “is now defunct to all intents and purposes”.

The choice for Sri Lanka then, is to either void the Accord unilaterally or to renegotiate it as suggested by the Indian Minister of State Prime MinisterƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s office, V. Narayanaswamy, who in an interview with the BBC, stated: “When it [international agreement] is signed between two sovereign governments, both governments are bound to implement the agreementƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦If one government wanted to change it, it should re-negotiate with the other government. One government cannot unilaterally cancel the agreement” (Hariharan, Daily Telegraph, July 8, 2013).

Considering the political compulsion that exists between the central government of India and the political formations in Tamil Nadu whose hostility towards Sri Lanka is manifest in a variety of forms, there is little or no hope whatsoever of Sri Lanka gaining any relief through negotiations with the Indian Government. However, as a first step, Sri Lanka should as a matter of courtesy formally convey to the Indian establishment, the instances of non-compliance of the Accord by India in terms of the Vienna Convention and thereby officially establish grounds to void the Accord.

GROUNDS FOR VOIDING THE ACCORD per VIENNA CONVENTION on the LAW of TREATIES

If the Indo-Lanka Accord is to be accepted and recognized as a Treaty it has to comply with the provisions of the “Vienna Convention on the Law of Treaties” of 1969 since it is the internationally recognized instrument governing treaties. Therefore, even though both India and Sri Lanka are not signatories to the Convention the following articles are grounds for voiding a treaty since they are within the domain of Customary Law:

(1) Article 52: Coercion of a State by the threat or use of force;

(2) Article 60: Breach of treaty obligations;

(3) Article 62: Fundamental changes in circumstances.

The Preamble to the Vienna Convention states:

“Having in mind the principles of international law embodied in the Charter of the United Nations such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all states, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for and observance of human rights and fundamental freedoms for all”.

ARTICLE 52 titled “Coercion of a State by the threat or use of force” states:

“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”.

PROOF OF COERCION, THREAT AND USE OF FORCE:

Having attempted and failed to resolve the conflict in Sri Lanka, India realized the need to mount a show of force. The first of these was to send a convoy of ships to northern Sri Lanka which was intercepted and turned back by the Sri Lankan Navy. The next attempt was a show of naked force by the Indian Air Force code named Operation Poomalai in broad daylight. The operation was for 5 AN – 32s India Air Force planes under cover of heavily armed Indian fighter jets to drop 25 tons of supplies in support of the LTTE. At the same time Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Ambassador to India was summoned by the Minister of External Affairs, K. Natwar Singh and informed that if the ongoing operation was hindered in any way India would launch a full scale military retaliation against Sri Lanka (Bharat-rakshak.com). Thus, THE SHOW OF THREAT, USE OF FORCE AND INTIMIDATION REFLECTED ABOVE ARE GROUNDS FOR VOIDING THE ACCORD UNDER ARTICLE 52 OF THE VIENNA CONVENTION.

ARTICLE 60 titled “Termination or suspension of the operation of a treaty as a consequence of its breach states:

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

3. A material breach of a treaty for the purpose of this article consists in:

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

BREACH OF THE FOLLOWING OBLIGATIONS:

Article 2.14 of the Accord states: “The Government of India will underwrite and guarantee the resolution, and co-operate in the implementation of these proposals”.

Article 2.16 of the Accord states: “These proposals are also conditional to the Government of India taking the following actions if any militant groups operating in Sri Lanka do not accept this framework of proposals for a settlement, namely,

a) India will take all necessary steps to ensure that Indian territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka.

b) The Indian navy/coast guard will cooperate with the Sri Lankan Navy in preventing Tamil militant activities from affecting Sri Lanka.

c) In the event that the Government of Sri Lanka requests the Government of India to afford military assistance to implement these proposals the Government of India will cooperate by giving to the Government of Sri Lanka such military assistance as and when requested.

d) The Government of India will expedite repatriation from Sri Lanka of Indian citizens to India who are resident here, concurrently with the repatriation of Sri Lankan refugees from Tamil Nadu.

e) The Government of Sri Lanka and India will cooperate in ensuring the physical security and safety of all communities inhabiting the Northern and Eastern Provinces.”

Thus, THE INABILITY OF THE GOVERNMENT OF INDIA TO PREVAIL ON THE MILITANT GROUPS TO ACCEPT THE FRAMEWORK OF THE PROPOSALS, AND NOT FULFILLING THE TREATY OBLIGATIONS CITED ABOVE ARE GROUNDS FOR VOIDING THE ACCORD UNDER ARTICLE 60 OF THE VIENNA CONVENTION.

ARTICLE 62 titled “Fundamental Changes of Circumstances”.

“A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a grounds for terminating or withdrawing from the treaty UNLESS (emphasis added);

(b) The effect of the change is radically to transform the extent of the obligation still to be performed under the treaty”.

PROOF OF CHANGES IN CIRCUMSTANCES

The second paragraph of the Accord states: “ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦the imperative need of resolving the ethnic problem of Sri Lanka, and the consequent violence”. It was intended primarily to persuade the militant groups to cease violence and accept the proposed framework that precipitated the Accord. The fact that violence continued for over two decades means that the militants rejected the framework proposed in the Accord. Now that the militants have been neutralized and violence has ceased, the framework proposed in the Accord has no relevance. These circumstances have radically altered the basis for and relevance of the Accord. Thus, the above fundamental changes in the circumstances warrant a fresh take on a framework that would restore a durable normalcy. THIS WARRANTS THE ACCORD TO BE VOIDED UNDER ARTICLE 62 OF THE VIENNA CONVENTION.

FORMALIZING GROUNDS FOR VOIDING THE ACCORD

Whom does Sri Lanka engage with for the purpose of voiding the Accord? Is it the Minister of External Affairs or the National Security Advisor?

Judging from an article titled “IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Feeble Foreign Policy” in the May/June 2013 issue of Foreign Affairs it is neither. According to this article:

“By and large three bodies in the Indian government work together to make foreign policy: the prime ministerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s office; the National Security Council, led by a powerful national security adviser; and the foreign ministryƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ All three officers and their top positions are filled by Indian Foreign Service officers”.

Continuing the article states: “Not only do IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s foreign service officers wield enormous power; they also enjoy near autonomy. The ultimate responsibility lies with the political figures in charge: the prime minister and the foreign minister. They must play the tricky game of persuading the political leadership to accept their decisions, resulting in a bottom-up policymaking process. As Jaswant Singh, a former foreign minister, explained, “If a [foreign] minister has the skills to command the respect of the [foreign ministry] officers, he will make policy and implement it. Otherwise, it is the civil servant who makes the policy and the minister is simply the figurehead”.

If there is any validity to the comments cited above Sri Lanka should forward grounds for voiding the Accord to the Indian establishment in the three branches that make policy and convince them that it is only by voiding the Accord that Sri Lanka would be free to evolve a political arrangement that would bring stability to Sri Lanka since in the final analysis what is at stake as stated by a former Foreign Minister S. M. Krishna is that the security of India depends on the stability and security of Sri Lanka.

CONCLUSION

The focus both in India and Sri Lanka is on the 13th Amendment. However, what needs to be appreciated is that even though the 13th Amendment is an internal construct it is the product of the Indo-Lanka Accord; a treaty between two sovereign states. Therefore, instead of attempting to adopt piecemeal measures to modify the 13th Amendment or repealing it, Sri Lanka should address the first cause and demonstrate officially to the Indian establishment that violation of the Vienna Convention on the Law of Treaties on the following 3 counts warrants voiding the Accord thereby making the 13th Amendment irrelevant:

1. Coercion, threat and use of force;

2. Breach of IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s treaty obligations;

3. Fundamentally changed circumstances from those that precipitated the Indo-Lanka Accord.

Grounds for voiding the Accord should be submitted to the three branches cited above of the Indian establishment that determine foreign policy. Attempting to limit this issue only to the political arm of the Indian government would not be productive given the nexus that exists in coalition politics whatever government is in power between the center in Delhi and Tamil Nadu. IndiaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s response is likely to be that Sri Lanka should renegotiate judging from reported comments from officials of the Indian government. While such a course of action would save face for all concerned except perhaps for Tamil Nadu, Sri Lanka should demonstrate that the changes needed to make good the damage done to Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s national interests imposed by the Indo-Lanka Accord of 1987 are too significant for revision. Therefore, the Accord of 1987 should be voided and replaced perhaps with a fresh statement of understanding drawn up between the governments that reflect the fundamentally changed circumstances in Sri Lanka. Such an outcome would result in voiding the 13th Amendment since it a product of the Accord of 1987.

Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s future depends on the strategies the government adopts in regard to the Accord, and its product the 13th Amendment. The government must have the fortitude, just as it did to bring closure to the military phase of the conflict despite considerable international pressures, to free the nation to exercise its inalienable right of national self-determination, based on internationally recognized Conventions.