Grounds for voiding the Indo-Lanka Accord
Posted on July 15th, 2013

By Neville Ladduwahetty Courtesy Island

The earlier call by India’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 India’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.

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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 Lanka’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 India’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 Minister’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 agreement”¦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 Lanka’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: “”¦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 “India’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 minister’s office; the National Security Council, led by a powerful national security adviser; and the foreign ministry”¦ All three officers and their top positions are filled by Indian Foreign Service officers”.

Continuing the article states: “Not only do India’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 India’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. India’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 Lanka’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 Lanka’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.

7 Responses to “Grounds for voiding the Indo-Lanka Accord”

  1. Susantha Wijesinghe Says:

    HEY NEVILLE, GOOD TO SEE YOU.
    It appears to me that HE MR and those around him are in a state of a peritonitis rigor, shivering from the winds of threat. I wonder whether they read this kind of advice. Hope wise counsel will prevail.
    Please say Hi ! to Douglas from me.

  2. Lorenzo Says:

    I hope the govt. has the balls to do this.

    Now this pact is OUTDATED. SCRAP it!

  3. Dilrook Says:

    The Accord is the starting point. However, India has been pushed from one Cold War to another. Only the partner has changed. India is at the thick of the Asian Cold War and it is very unlikely India will let Sri Lanka go. Two main concerns affect India.

    1 – The Accord says Sri Lanka must consider Indian interests in any dealing.
    2 – Sri Lanka escaping from the dictates of India will stir-up sentiments in Tamil Nadu which will cause national security and political crises in India at a crucial geopolitical juncture.

    The Accord is irrelevent to Sri Lanka today but it is more valuable than ever to India.

    India will bring the Vienna Convention matter when we try to negotiate. Both nations are not signatories to the Convention and hence it is not (emphasised) appilcable to us. Former attempt at cancelling the Accord is the first step when India will formally lay down the procedure for cancellation. No nation should be forced to be bind by an agreement it wishes to exit from.

    UNHRC 2012 was the perfect backdrop to have initiated that process.

    Indian supreme court has given notice to the Indian government on Kachchateevu islet in an attempt to take it back. Tamil Nadu petitioners argue it is “unconstitutional” ro recede the islet to Sri Lanka in 1974. In that event India is in the same predicament. Unconstitutional domestically when treaty-bound internationally. Unintentionally the DMK leader has done Sri Lanka a favour.

  4. Ananda-USA Says:

    Why is this OUTRIGHT MURDER not SHOW CASED as a WAR CRIME by the GOSL?

    Forget RECONCILIATION with Murders; Start PROSECUTING THESE MURDERS & DISH OUT RETRIBUTION!

    Why is Sri Lanka playing DEFENCE with those who cry “war crimes” at the UN?

    USE THESE CASES … and the wholesale SLAUGHTER of 1000 policemen and army soldiers after the fall of Mullaitivu … to INDELIBLY TAR & FEATHER these MONSTERS in the eyes of the world!

    ……………………….
    Two Tamil Tiger cadres charged for killing 26 Sri Lankan military personnel

    ColomboPage News Desk, Sri Lanka.

    July 15, Colombo: Sri Lanka judiciary will indict two cadres of the intelligence unit of the Tamil Tiger terrorist organization Liberation Tigers of Tamil Eelam (LTTE) today at Vavuniya High Court for the killing of 26 personnel of state military, burning and burying their bodies.

    The two LTTE cadres identified as Madaarayan Sulakshan and Ganeshan Darshan are accused of executing the 26 military personnel who were captured and detained at the LTTE torture camp in the LTTE’s Victor 1 camp in Puthukudiyiruppu.

    As the Sri Lankan military advanced into the Tiger territory in 2009 the two cadres, who were fighting at the front lines and injured, have been assigned to torture and interrogate the military personnel.

    Although the torture camp was protected by mines and claymores, as the Sri Lankan troops approached the senior cadre in charge of the camp named Ratnam Master has ordered the two suspects to kill all the captured soldiers, douse their bodies with diesel and burn.

    Following the orders the suspects on January 15, 2009 have built a 5 feet high and 10 feet long pyre and lined up the blindfolded soldiers against the pyre and shot them. Darshan has shot 3 of the soldiers and Sulakshan has shot the other 23.

    The Terrorism Investigation Division has arrested Arumugam Jogadeesan, another LTTE cadre connected to the incident while in a refugee camp after the war ended and he has provided this information to the authorities during interrogation.

    The 26 military personnel included 18 Sri Lanka Navy and eight Army personnel.

    The two suspects will be charged when they are produced today before the Vavuniya High Court Magistrate Ms. C. N. Bandumathi.

  5. Ananda-USA Says:

    JAYAWEWA!

    Sri Lanka Rises from the Ashes of the 30-year Eelamist War

    Every Day, in Every Way, We are Forging Ahead to becoming the New Wonder of Asia!
    ………………
    Expressway from Sri Lanka’s Katunayake airport to capital to be opened in September

    ColomboPage News Desk, Sri Lanka.

    July 16, Colombo: The new expressway linking Sri Lanka’s main international airport in Katunayake to Colombo will be ready to open in September, the Economic Development Ministry said Monday.

    The Ministry said arrangements are being made to open the 26 kilometer-long Katunayake – Kelaniya Expressway built at a cost of US$ 291 million in September.

    Economic Development Minister Basil Rajapaksa inspected the expressway Sunday and instructed the relevant officials to plant trees native to Sri Lanka on either side of the road after conserving the marshy lands on either side of the expressway and cleaning the Dutch Canal.

    According to the Ministry, the highway is planned to have three lanes each way from Colombo to Peliyagoda and two lanes each way, from Peliyagoda to Katunayake with the width ranging from 26 to 34 meters.

    Speed limit will be 80 kilometers per hour (50 mph) for the first eight kilometers (5.0 mi) and 110 km/h (68 mph) for the rest of the road.

    The expressway, built under the direction of President Mahinda Rajapaksa, is part of the highway network connecting the already functioning Southern Expressway, proposed Northern Expressway and the Colombo Outer Circular Highway that is under construction.

    Once completed the road network will provide fast and easy access to the country’s north and south and will avoid traffic when reaching the capital Colombo.

  6. S de Silva Says:

    Thank you Neville – Excellent Analysis of the Accord on its legality and how to disengage from it! – Just what SL Administrators should understand. But will they??! – S de Silva – London

  7. jayasiri Says:

    Thank you Mr.Neville Ladduvahetty!……….I have not seen many articles, but have read some important ones published by you in Lankan Newspapers. I feel you are one of the few, who support Sri Lanka & give advice, to many Sri Lankans including our politicians.

    WHY is India so hell bent on improving our trade relations with India?? mainly because we ARE FOOLS to agree to anytiing & everything what India THROWS at us.

    There is NO RESISTENCE what so ever, if NOT for Orgaization of Professionals REJECTION of any COMPREHENSIVE free trade deal, this GOVT. would have just signed it off. EVERY agreement with India has always been to INDIAS benefot. LIKE THE FREE TRADE AGREEMENT between Canada & USA. Canada is the looser.

    It is TIME we break off any future agreements at the nitial stage, before they think that we might sign it. WITHOUT listening to people like Jayathilaka,( a lost individual) GOVT. should stop entertaining ANY futre agreements, even if they are equally important BOTH countries. Any relationshoip with INDIIA is & will be detrimental to Lanka.

    Their ULTIMAE AIM is to make Lanka, a colony of theirs, LIKE BHUTAN or some other satelite states, Sychelles, FIJI, Mauratius & countless countries,where INDIAN Migrannts have multiplied, and made it impossible for INDEGENOUS people of that country to govern their country by themselves.

    We are NOT concerned with POWERFUL India even NOW their presence is a menace to Lanka, and other South Asian neighbours. I salute you Sir, & HOPE your analysis will give our President some encouragemment for him to ABROGATE this accord.

    Thank you again…….& hope our nay sayrs, (like the ones Mr. Joean Chretian said about LIBERAL party establishment) and NOT listen to a man who is burnt out & trying to promote his book about INDIA & USA.

    ANOTHER EXPAT..FROM CANADA……~ j

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