Shenali D Waduge

Sri Lanka’s former High Commissioner to India, Milinda Moragoda is pushing for the full implementation of the Indo-Lanka Agreement, an agreement that was signed under virtual duress in 1987 after India secretly trained & armed Tamil militants & they began unleashing terror after hijacking the elite Tamil politician’s quest to create a separate Tamil state. It is no secret that the threat of Tamil Nadu seeking self-determination was what prompted India to transfer that quest to Sri Lanka, while the Agreement cleverly merged several districts into 2 provinces namely North & East as the much-eyed Trincomalee harbor was in the East. Sri Lanka had only a district system till the 13^th amendment created 9 provinces in 1987. The most important take away from the Indo-Lanka Accord is that it does not mention the creation of a Provincial Council System, amending Sri Lanka’s Constitution with 13^th amendment or even Devolution. The Agreement only refers to North East Provinces & merging them & holding an election & referendum in them. The 13^th amendment is separate to the Indo-Lanka Accord. Both were forced on Sri Lanka by India. Why should Moragoda promote its full implementation?

Whose side is Moragoda on?

http://island.lk/implement-indo-lanka-agreement-as-soon-as-possible-says-moragoda/

Anyone with a knowledge of the background to the Indo-Lanka Accord would realize the intervention that took place going so far as to even violate Sri Lanka’s sovereignty while also threatening Sri Lanka, not to take action.

This is a violation of Article 2(4) of the UN Charter refrain …. from the threat or use of force against the territorial integrity or political independence of any state”.

India prevented the capture of Prabakaran in May 1987 by forcibly halting the Vadamarachchi military operation, this was followed by the infamous parippu drop in June 1987 violating Sri Lanka’s sovereignty, Sri Lanka’s Tamil militants were freely using India as a logistics hub. India even airlifted Prabakaran & family to Delhi in special aircrafts & kept him there till the Accord was signed. Prabakaran was flown back only on 2 August 1987. Rajiv Gandhi even gifted Prabakaran his bullet proof vest. However, Rajiv Gandhi was assassinated on Indian soil under orders of Prabakaran on 21 May 1991 & since, the LTTE has asked India to forgive & forget what LTTE did. India banned LTTE in 1991 & has continued the ban even after defeat of LTTE showcasing India continues to regard the threat of separatism impacting India via Tamil Nadu.

It was in the background of above actions that the Indo-Lanka Accord was signed on 29 July 1987 forcing Sri Lanka to even tweak its constitution & create the 13^thamendment & dividing Sri Lanka into 9 provinces based on a bogus history and making Tamil the official language as well. Indian army arrived on 30 July 1987 & went on to commit grave crimes that included raping of Tamil women.

The primary reason for the signing of the Accord was to defeat LTTE in 48 hours which India assured Sri Lanka but failed to do.

It is important for readers to refer the Indo-Lanka Accord as well as the exchange of letters between Indian PM Rajiv Gandhi & Sri Lankan President J R Jayawardena. A country of 1.4billion laid out strict demands to the nation of 20million. Where is the respect for Sri Lanka’s sovereignty?

6 point annexures make up the Indo-Lanka Accord.

The letter drafted by PM Rajiv is not part of the Accord though signed on the same day.

The letter does not even mention Indo-Lanka Accord”. Therefore, contents of this letter cannot claim to be part of the Accord.

Trinco Port / Trinco Oil Tanks/reference to foreign broadcasting (Voice of America) is not mentioned in the Accord but only in Indian PM’s letter.

Accord does not mention letters being part of the Accord. Thus, Sri Lanka is not bound by these letters signed between 2 former heads of State who are no more.

India did not establish peace & normalcy” in Sri Lanka as assured while India only raises concern for one community (Tamils) though India assured safety, well-being & prosperity of people belonging to all communities in Sri Lanka”.

The objectives of the Agreement are broken down

• says India only desires” to preserve unity, sovereignty & territorial integrity of Sri Lanka. There is no firm commitment.
• / 1.3 / 1.4 refers to Sri Lanka as a multi-ethnic, multi-lingual plural society, recognizes that each ethnic group has a distinct cultural & linguistic identity / recognizes North & Eastern provinces as areas of historical habitation of Sri Lankan Tamil speaking people. The then Govt & advisors should have presented facts on colonial settler colonization” that resulted in South Indians being brought & colonized in these areas while displacing the Sinhalese who lived originally. If Muslims are included as Tamil speaking, they were chased out of the North in 1980s/1990s.

1.5 Reference to plural society” has always been to sheepishly remove the Buddhist civilizational identity of Sri Lanka. The draft uses aspiration” which connects to different people possessing different dreams. Everyone’s dreams cannot be fulfilled by any document.

2. Thereafter 1.1 to 1.5 objectives are turned into Resolutions, thus

2.1 The Agreement claims the GOSL agreed to joining two provinces into one administrative unit till 31 December 1988 & thereafter holding a referendum to separate from each other. No such referendum was held. In fact, in 1990, President Premadasa had to annul the merger after Varatharaja Perumal Chief Minister of the merged NE declared unilateral independence. Democracy for the North prevailed only after 2009 & PC elections was held in 2013 (a gap of almost 25 years).

2.2 Until Dec 1988 the merged NE would function as 1 Provincial Council with 1 Governor & 1 Chief Minister & 1 board of Ministers.

What was the reason to merge 2 provinces / hold elections & a referendum when the Accord was signed to preserve the sovereignty of Sri Lanka by defeating LTTE?

2.3 This clause of the Indo-Lanka Agreement gave discretion to the Sri Lankan President to indefinitely postpone the referendum in the East. Only in 2006 that the merged NE was de-merged. Indian army failed to defeat LTTE in 48 hours. Sri Lankan Army defeated LTTE in May 2009.

2.4 India assured necessary conditions” to enable the displaced to return to areas from where they were displaced. Muslims & Sinhalese were chased out from the North but no measures were taken to rehouse them.

2.5 of Agreement says the Referendum when held was to be monitored by a Committee headed by Chief Justice, Presidential nominee, nominee of GOSL & a member representing the Tamil speaking people of the East.

2.6 of Agreement claimed a simple majority sufficient to declare results

2.7 of Agreement was regarding meetings & propaganda ahead of the referendum

2.8 of Agreement stated that the referendum was to be held 3 months prior to 31 Dec 1987 with Indian observers present.

Clauses 2.1 to 2.8 & 2.17 of the Indo-Lanka Accord was only about merging NE provinces, holding PC elections before Dec 1987 & a referendum before 31 Dec 1988 which Sri Lankan President could postpone.

Why should only 2 provinces of Sri Lanka continue to get prominence & preference over the other 7 provinces?

2.9

• Declared emergency will be lifted only in the N E by 15 Aug 1987 but not the other provinces.
• Declared cessation of hostilities within 48 hours of signing Agreement & militants had to surrender arms
• Sri Lankan Army were to be confined to barracks from 25 May 1987

2.10

Allows the GoSL to use the same law enforcement & security mechanisms in the NE as used in the rest of the island.

2.11

Allows President of Sri Lanka to grant a general amnesty to political & other prisoners in custody under the PTA & other emergency laws as well as to combatants. GoSL agrees to rehabilitate militant youth & India is to co-operate”.

2.12

Commits the GoSL to accept & abide by the provisions

2.13

If framework for resolutions is accepted, GoSL will implement relevant proposals immediately. This offers a window of opportunity for GoSl to object to clauses of the Agreement & it is the failure of GoSL not to have removed the detrimental clauses that continue to haunt Sri Lanka.

2.14

India guarantees by the resolutions & to cooperate in the implementation of the proposals. guarantees” holds India accountable for its commitments.

2.15

An important clause as the proposals are conditional to proposals negotiated between 4 May 1986 & 19 Dec 1986. Residual matters were to be finalized within 6 weeks of signing the Accord & proposals are condition to India cooperating DIRECTLY with Sri Lanka in the implementation of the Accord.

2.16

This clause claims proposals are conditional to India taking following actions if militant groups in Sri Lanka do not accept the framework” of proposals.

a) India to ‘take all necessary’ steps to ensure Indian territory is not used for activities prejudicial to the unity, integrity, security of Sri Lanka. (India failed)

b) Indian Navy/Coastguard to cooperate with Sri Lanka Navy in preventing Tamil militant activities from affecting Sri Lanka (India failed)

c) If Sri Lanka requests India for military assistance to implement the proposals, India would provide if & when requested (India failed)

d) India will expedite repatriation of Indian citizens in Sri Lanka alongside the repatriation of Sri Lankan Tamils living in Tamil Nadu (India failed)

e) Both Sri Lanka & India will cooperate to ensure physical security & safety of all communities inhabiting North & East provinces (Sri Lanka & India failed)

Clause 2.16 sets further actions by the Government of India if Militant Groups do not accept the outlined framework of proposals (NE merger/NE Elections/Referendum)

Condition A:

India assures Indian territory is not used for activities prejudicial to the unitary, integrity & security of Sri Lanka.

India did not keep assurance.

LTTE used Tamil Nadu as its logistics hub with even support of the TN govt.

Condition B:

Indian Navy/Coastguards did not cooperate with Sri Lanka Navy to prevent Tamil militant activities against Sri Lanka

India did not keep assurance

Condition C:

Indian Govt committed to providing military assistance to implement proposals upon request by Sri Lanka.

President Jayawardena used 2.16 (C ) to request Indian Peace Keepers to disarm LTTE.

Condition D:

Indian Govt commits to expediting repatriation of Indian Citizens living in Sri Lanka while repatriating Sri Lankan refugees to Sri Lanka from Tamil Nadu.

India did not keep assurance.

Condition E:

Both Govts to cooperate to ensure physical security & safety of all communities living in N E provinces.

Both India & Sri Lankan Govts failed as the Sinhalese & Muslims who were living in the North were chased out by militants.

India failed because the Indian army began arbitrarily killing & raping people of all communities as they could not identity who was who & IPKF soldiers did not speak Tamil.
IPKF rapes & killings have never been investigated.

2.17 Sri Lanka assures a free, full & fair election with cooperation of India.

2.18 Note this clause.

The clause says official language of Sri Lanka shall be Sinhala” while a COMMA separates Tamil & English will also be official languages”. What is the legal implication of writing Clause 2.18 in this manner & how has it been written in Sinhala?

The Agreement & Annexures were to come into force upon signature.

Clause 3 stipulates that the above clauses plus annexures will come into effect with the signing of the Agreement on 29 July 1987.

There were 6 Annexures to the Indo-Lanka Agreement

1. Both leaders agreed that the referendum mentioned in para 2 & subparagraphs will be observed by a representative of the Election Commission of India. Para 2 was dedicated to merging NE & holding referendum observed by Election Commission of India – is this not undermining Sri Lanka’s Election Commission?

• Both leaders agreed that elections to Provincial Council mentioned in para 2.8 will be observed, and all para military will be withdrawn from N E. How was all para military to be withdrawn from NE when the Sri Lanka Army was confined to barracks?

• President of Sri Lanka was given discretion to absorb para military into the regular security forces of Sri Lanka. What was the purpose of this insertion?

• Both leaders agree that Tamil militants shall” surrender their arms to authorities designated by Sri Lankan President & shall take place in the presence of a representative from SL Red Cross & Indian Red Cross. There was no clause that addressed the question of Tamil militants not surrendering arms & what to do thereafter.

• Both leaders agreed that a joint Indo-Lanka Observer Group consisting of qualified representatives of both Govts would monitor the cessation of hostilities from 31 July 1987. Who comprised this Group & how were they selected and where is there report?

• Both leaders agreed that terms of para 2.14 & para 2.16(c) regarding Indian Army is on invitation by the Sri Lankan President to guarantee cessation of hostilities.

Noteworthy is that annexure 6 aligning to 2.16C of Agreement was with intent to deploy Indian soldiers in Sri Lanka.

Now that we have gone through the Accord & the 6 Annexures, we come to the most controversial part – the exchange of letters between the two heads of State.

The letter from PM Rajiv to President Jayawardena dated 29 July 1987

• Did not mention that the letter was part of the Indo-Lanka Agreement.

Areas highlighted in the letter:

Joint agreement:

1. Not allow territories of both nations to be used for anything that impacts the unity, territorial integrity & security of either country

Sri Lanka makes 4 commitments (addressing India’s concerns) subject to Sri Lankan President confirming commitment via response to PM Rajiv’s letter which is not available.

1. Foreign military & intelligence personnel to not prejudice Indo-Lanka relations
2. Trinco or any other port in Sri Lanka to be given for military use by any country against India’s interest
3. Restore & operate Trinco Oil Tank as a joint operation between India & Sri Lanka
4. Sri Lanka’s agreement with foreign broadcasting organizations reviewed are only used for public broadcasting & not military or intelligence purposes.

India’s commitment

1. Deport all Sri Lankans in India who are engaging in terrorist activities or advocating separatism or secessionism (India did not fulfil this)
2. Provide training & military supplies for Sri Lanka security services

India & Sri Lanka to set up a joint consultative mechanism to review matters & monitor implementation.

If the letter is not part of the Accord, Sri Lanka is not bound to abide by them.

• Eternal use of India’s security concern”
• Giving Trinco Port to any party & not requiring to seek ‘permission’ of India
• Not bound to operate Trinco Oil Tank as a Joint venture (an error that successive Sri Lankan govts continue to make – SL first leased 99 oil tanks to India for 35 years in 2003)

The most important take away from the Indo-Lanka Accord is that it does not mention the creation of a Provincial Council System, amending Sri Lanka’s Constitution with 13^th amendment or Devolution.

The Agreement only refers to North East Provinces & merging them & holding an election & referendum in them.

India forcing Sri Lanka to sign Indo-Lanka Accord is a violation of Article 51 of the Vienna Convention of the Law of Treaties:

 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.

India has also violated Article 52 of the same Convention

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.”

India committed to 5 clauses under the Indo-Lanka Accord. India did not honor any of them. This is a violation of Pacta Sunt Servanda’ (pacts are meant to be honored for agreements to be valid) If India did not honor the pact, that pact is no longer valid under this legal maxim.

The political dynamics of the 1980s/1990s do not exist presently.

Both leaders are no more.

LTTE leader is dead

LTTE terror outfit was defeated in May 2009.

Only the Tamil political/LTTE Diaspora secessionist/political separatist quest exists.

India was a closed economy at the time of the signing

India was not pro-US during this period which is why clauses referred were directly applicable to US.

Fast forward to 2020s … India is now a key ally of the US. India has no issue with US using Trinco harbor which it opposed in 1987. India has no issue to US military planes landing in SL. India did not object to Sri Lanka’s signing of SOFA, ACSA or even MCC. Yet, what if this honeymoon between US & India collapses? Many of the clauses in the Indo-Lanka Accord were written directly targeting the US. Does Sri Lanka have to dance to double standards & diplomatic hypocrisies?

There is absolutely no requirement to continue with the Indo-Lanka Agreement leave alone honor it as the clauses were only relevant to the North East. It is a violation of the Constitution to treat one community above the rest of the communities and some provinces given prominence over the others. There is no mention of any other provinces in the Accord. The Accord does not mention a word about 13^th amendment or devolution or even provincial councils in other parts of the island. Take the Accord & read it to see for yourself.

The Accord or Annexures do not mention Trinco Port, Trinco oil tanks – these are only appearing in the letter from Rajiv Gandhi to President JR. Read the letters for yourselves.

Why would diplomats push for the implementation of an Accord that is defunct and legally non-binding in view of India not honoring any of its commitments?

Shenali D Waduge