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1987 Indo-Sri Lanka Agreement & 13th Amendment violate Vienna Convention

There is extensive reference to the Thirteenth Amendment to Sri Lanka’s Constitution that brought Provincial Councils in this Forum. Many – almost all – those in this Forum want the 13th removed from the statute books and abolish the system of provincial councils.

In fact, the whole exercise – the signing of the 1987 Agreement, the promulgation of the Thirteenth Amendment and the installation of the provincial council system under International Law is illegal as all these acts are considered coercive acts by the Indian Government.

At least the Sri Lanka Government should note the seriousness of how the nation was coerced, and should take steps, even at this late stage, to abrogate all these.

Lets’ see how events led to the signing of the 1987 Indo-Sri Lanka Agreement before I bring the attention of the participants of this Forum – and of course the Government of Sri Lanka – the illegality, under accepted ‘universal law’ and the importance of adhering to such ‘universal laws’ to abrogate the Agreement and subsequent ‘so called’ legal measures taken by the Government of Sri Lanka.

Responding to rising public concern in southern India about the fighting in Sri Lanka, the Rajiv Gandhi administration ordered a dramatic demonstration of support for Sri Lanka’s Tamils.   First it tried to deliver supplies to Jaffna by a naval flotilla, but this was intercepted and ordered to turn back by the Sri Lankan Navy.  Then, on June 4, 1987, the Indian Air Force violated Sri Lankan air space and dropped 25 tons of food and medicine over the city.

The operation was a thinly veiled threat to Colombo that unless it accepted Indian mediation it could expect more direct military intervention.

Leveraging this threat of military force, the Indian government prevailed on the GSL to sign a bilateral accord on July 29, 1987 to devolve some powers to the provinces.  The agreement also provided for the withdrawal of Sri Lankan troops from the north and their replacement by a force of some 100,000 Indian “peacekeeping” troops, referred to as the IPKF.   The mandate of the latter was to supervise the disarming of Tamil militants and enforce a complete ceasefire in preparation for the standing up of an Interim Administrative Council to implement the devolutionary scheme.

In addition to these military violations of Sri Lankan sovereignty and human rights were the conditions that the GOI tried to impose on Sri Lankan foreign policy by way of the so-called Indo-Sri Lanka Peace 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 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.”  (Rajiv Gandhi, Foreign Affairs Reports, 36:208 (July/October 1987) New Delhi, p. 241)

Although not mentioned by name, it is clear that first among the “hostile forces” envisaged by New Delhi were those of the United States.  A joint report released by the CIA and State Department on October 9, 1987 recognizes that “The Peace Accord includes language New Delhi could invoke to press Colombo to reduce U.S. ship visits and prevent construction of a large VOA facility on the island.” (Directorate of Intelligence and Department of State, “The Indo-Sri Lanka Peace Accord Fraying at the Edges, https://www.cia.gov/library/readingroom/document/cia-rdp90t00114r000700590001-7)

Since the advent of the Rajapaksas’ administration in 2019/2020 the GOI has pressed Colombo persistently to implement the 13th Amendment to the Constitution, which was ratified as part of the 1987 Indo-Sri Lanka Agreement.  The Amendment outlines an administrative arrangement devolving substantial powers to the provinces, and especially to the Tamil-majority Northeast region.

Contravening of Universal Laws

Given the continuing salience of the 13th Amendment in Indo-Sri Lankan diplomatic discourse, it would be appropriate here to say a word 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 President 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 prime minister to agree to Indian occupation of the North.   The Indian airdrop and threatening communications to Colombo were violative of at least the spirit of Article 2(4) of the United Nations Charter.  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.” (Vienna Convention on the Law of Treaties, May 22, 1969, Art. 7, 1155 U.N.T.S.  331, 334) 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.”

Could those part of this Forum who have some ‘links’ to the Rajapaksa administration apprise it of this, please.

Prepared by Daya Gamage – A Retired Foreign Service National Political Specialist of the U.S. Department of State.

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