Sri Lanka: Abrogate ’87 Indo-SL Accord – It Contravenes UN Charter

By Daya Gamage –OCTOBER 7, 2021

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)

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