Does the ISGA Violate the Oslo Agreement?

 by Wakeley Paul, Esq.




According to Dayan Jayatilleka, "Richard Armitage and Chris Patten have both gone on record noting critically that the ISGA far exceeds the Oslo Accords and does not resemble any kind of Federalism" [response to Prabakaran's Maaveerar Speech, The Island, Sunday Nov 30,2003]. Let us examine what the Oslo accord envisaged and what the proposal requests.

On the political aspects of the Accord, I quote the following from the preamble to what was agreed upon:

"Responding to a proposal by the leadership of the LTTE, the parties have agreed to explore a political solution founded on the principle of internal self determination in areas of historic habitation by the Tamil-speaking peoples, based upon a federal structure within a United Sri Lanka."

The preamble then goes on to say, "Guided by this objective, the parties have agreed to initiate discussions on substantive political issues such as, but not limited to,:

Power-sharing between the center and the region as well as within the center

Geographical Region

Human Rights Provisions

Political & Administrative Mechanisms

Public Finance

Law & Order"

What, if any, of the above have the proposals made by the LTTE violated? The LTTE have outlined the areas in which they will exercise regional control to the exclusion of central control. They have provided for Human Rights protections within their area, which is more than the Sri Lankan Constitution contains. They have outlined the political and administrative mechanisms to be used; have outlined the financial sharing of the burden; and outlined the structure of law and order with an independent judiciary to be adopted, again providing for a judiciary more independent than the Sri Lankan Constitution does for its own citizens. Where then lies the rub?

The proposals talk of the Administration of lands that are not privately owned. They do not include a suggestion in the Accord to request the Sub-Committee on De-escalation and Normalization to propose a common approach to settling cases involving disputed use of private property, where such use has been impeded by the conflict. Article 17 of the proposals calling for immediate resettlement of such lands and compensation of the owners for the past dispossession of these lands may be in conflict with that provision of the Accord. That does not make the proposal one which exceeds the concept of Federalism, by any means.

A subsequent paragraph states as follows: "Furthermore, the LTTE will ensure that the activities of their law and order mechanisms will not be extended beyond the areas under LTTE control." What does this mean? Under LTTE control under the terms of the Accord or physical control now? One could hardly imagine that the LTTE would have restricted their law and order control to the Vanni. It has to mean those lands brought under their control by the Oslo agreements. If so, there is nothing on the face of the proposal which conflicts with the terms of the agreements. Article 9 brings law and order in the specified territories under the Accord within the ISGA's plenary powers. This is in agreement with decisions in Oslo.

I have already dealt with the minor legislative powers in the proposals which do no more that facilitate the administration of the areas at issue, as provided for in the Interim Agreement. They neither offend concepts of Federalism or the terms of the Accord. To reiterate these clauses of the proposal for clarity, they are:

[i] They can create District Committees and delegate powers to them. The powers that can be delegated are administrative in nature. That does not violate either the spirit of the Accord or the Agreement.

[ii] Under Article 15, the ISGA may create Committees to advise on economic, financial, judicial, resettlement and rehabilitation affairs. These are merely advisory bodies to assist in the Administration of these regions.

[iii] The only other is the power to create institutions for the Administration of Justice and the vesting of judicial powers under Article 10. There is nothing in the Accord or the Agreement which precludes this.

Let me reiterate the statement of Mr G. L. Peiris at the conclusion of the Oslo agreements. "There was the explicit statement by Mr Vellapullai Prabakaran on the 27th of November [2002] in his Heroes' Day speech in which he said that the LTTE is no longer insisting on a separate state, but the LTTE is looking at a different concept in earnest, and that is internal self determination........That was power sharing, extensive power sharing, within the framework of one country. No question of secession, no question of separation of power, but power-sharing within the framework of one country."

Where have any of these proposals violated the exercise of powers by a regional government within a Federal set up as envisaged by the Accord? Let any expert on Federalism prove otherwise. The only provision which allows for external contact as part of internal self determination, is that which provides for raising revenues through trade. Every American State in the American Federal Union of states has that power. America is a Federation, not a confederation of states - though some states' rights advocates might argue it is. They are subject to the Constitution of the Federal government and the powers granted to it by that Constitution. The States, for example, cannot make Foreign or Trade policy, but can trade within the guidelines set by the Federal government. These broad guidelines, if any, will have to be the subject of further negotiation between the Central and regional government. There is nothing in this proposal for an ISGA that denies this general policy power to the Central government, the extent and scope of which will have to be the subject of further negotiation. It is the type of internal self determination envisaged by the Oslo agreement.

Our two major problems of the moment are:

[a] that some are trying to shift the focus from rehabilitation and reconstruction to human rights to be observed by an interim administration. For the government to obsess over human rights which it does not observe itself is outrageous.

[b]that the present discriminatory Jayawardena Constitution neither recognizes equality for all nor the right to have a Federal Constitution. Our team at the talks should be emphatic about having these issues attended to first, before going any further. The proposals will be meaningless if we allow others to sidetrack the crucial issues at hand by arguing whether the Oslo agreement is complied with or not.

To quote the words of the distinguished G. L. Peiris again in his concluding statement on the Accord, "So we are talking of a Federal solution. It is not separatism. It is not confederation. It is a federal model." I submit, that the proposals are well within that model. The proposals are both a just and fair set of demands for internal self-determination, which should be dealt with on their merits.


Posted December 5, 2003