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Tamilnation > Struggle for Tamil Eelam > Conflict Resolution - Tamil Eelam - Sri Lanka > Norwegian Peace Initiative > Tsunami & Aftermath > Government of Sri Lanka and LTTE sign Post-Tsunami Operational Management Structure (P-TOMS) > Text of Memorandum of Understanding for Establishment of a Post-Tsunami Operational Management Structure > Sri Lanka Government Explains P-TOMS in Statement tabled in Sri Lanka House of Representatives > The United National Party & P-TOMS - Having it Both Ways? > ISGA & the Law - Professor M. Sornarajah > Sri Lanka President Kumaratunga wants joint mechanism amended > Supreme Court Decision on P-TOMS > Lesson from the Supreme Court Decision on P-TOMS > The President Kumaratunga & the Chief Justice - Two Minds with but a Single Thought? - நான் பேச நினைப்பதெல்லாம் நீ பேச வேண்டும்
Sri Lanka Government Explains P-TOMS
in Statement tabled in Sri Lanka House of Representatives
24 June 2005
Text of Statement tabled by Sri Lanka Government
1. Why is it necessary to have a joint mechanism with the LTTE?
* The principal rationale for creating a joint mechanism with the involvement of the LTTE is to ensure the effective delivery by the government of assistance to the tsunami-affected population in the North and East. Since there are certain areas in the North and East that the Government has limited access to, there is no assurance that the assistance the Government is providing to these areas is benefiting the people directly. At the same time, the LTTE criticizes the Government for discriminating against the Tamil people. A joint mechanism, which includes the LTTE, will greatly strengthen the government's ability to effectively deliver relief, rehabilitation and reconstruction to these areas.
* In the absence of a joint mechanism, the Government would continue to assist the uncleared areas through monetary and other aid, channeled through the Ministry/RRR, but would have limited say in how the aid is utilized. By cooperating in a common structure, the GOSL will have a decision-making role in reconstruction efforts in the North and East, including those in the uncleared areas.
* A joint mechanism will increase the Government's access to and role in the uncleared areas.
* In the cleared areas, a joint mechanism will provide a framework for the LTTE to work with the GOSL and others in a transparent and accountable process of governance.
2. The joint mechanism is neither the ISGA nor an Interim Authority under another name. Unlike the Interim Self Governing Authority (ISGA) proposals of the LTTE, the joint mechanism is limited in its period of operation (one year), in geographic area (only tsunami-affected areas, not the entire North and East), and in subject matter (only post-tsunami work). The ISGA proposals, on the other hand, deal with land, police, natural resources, law and administration, and other aspects of governance. The ISGA would function as a governing authority, which the joint mechanism is not. The joint mechanism, on the contrary, is a group of Committees to be established for administrative purposes to ensure more efficient delivery of post-tsunami aid to the affected people in the North and East.
3. In the absence of a joint mechanism, bilateral donors will be more likely to go to the LTTE directly, circumventing the government agencies. Since the donors have made a commitment to assist the Northern and Eastern Provinces, including uncleared areas, on the principle of equitable aid distribution, it is likely that the donors will find a way to assist these areas directly in the absence of a government-sanctioned mechanism. Donors may provide aid to the LTTE directly or indirectly through LTTE-front NGOs such as the TRO, or through international NGOs, circumventing the Government in the North and East. The LTTE and its front organizations are likely to lobby for direct/indirect funding from the donor community on the pretext that the government is discriminating against the tsunami-affected population in the North and East.
4. A joint mechanism that obtains the participation of all the affected communities, the Sinhalese, the Tamils and the Muslims, will increase donor confidence. Donors have recognized that the heavily-affected North and East Provinces will require substantial reconstruction funds. An agreement between the affected communities on a joint mechanism would increase donor confidence in a non-controversial reconstruction effort.
5. The joint mechanism will not interfere with Government work in the South and West. For the districts of the South and West, relief, rehabilitation and reconstruction will be undertaken by the existing GOSL institutions, e.g. line ministries and Provincial Councils. Projects implemented by the joint mechanism will be limited to those projects in the six (6) districts of Ampara, Batticaloa, Jaffna, Kilinochchi, Mullaitivu, and Trincomalee.
6. The joint mechanism protects and safeguards the interests of all communities. Safeguards have been built into the joint mechanism to provide protection to all ethnic communities, especially in places they may not be in the majority. No proposal for tsunami reconstruction (genuine or disguised) that would hurt the interests of a community can be adopted under the decision-making rules envisaged.
7. The joint mechanism includes the participation of groups of different political persuasions. Muslim and Tamil groups other than the LTTE have a role in the joint mechanism. Furthermore, the joint mechanism is limited to tsunami-related projects. Other development projects will proceed in the North and East, for example, under NEPC or Ministry/RRR, that will continue to include such groups. The joint mechanism is by no means the exclusive actor in the North and East for rehabilitation and reconstruction work.
8. The joint mechanism will be transparent, accountable, and subject to scrutiny.
* The joint mechanism will not bypass normal government regulations and accounting procedures. The allocation of funds will be done in accordance with normal Treasury procedures.
* Representatives of the international donor community and an independent auditor will be able to observe and monitor the operation of the mechanism. This will deter any LTTE violations of the terms of the joint mechanism.
* The joint mechanism will not give money directly to the LTTE.
9. The joint mechanism will contribute to the peace process. The joint mechanism would allow engagement with the LTTE, build confidence and create the climate for beginning the peace talks with the LTTE. In the Joint Mechanism, the LTTE has agreed to an arrangement negotiated with the GOSL. In this way, the Joint Mechanism could function as an ice-breaker in the peace process, and help pave the way to begin peace talks.
10. It is an opportune moment for the Joint Mechanism. The LTTE is willing to settle for a joint mechanism because it has been weakened by the Karuna break away and by the tsunami disaster. In six months, the GOSL would likely have to give more to the LTTE in order to obtain LTTE consent to a joint agreement.
11. Politically, Sri Lanka needs the Joint Mechanism. The Joint Mechanism, by engaging the LTTE at a political level, can help reduce likelihood of the return to war. Furthermore, if the Joint Mechanism is not signed, it would strengthen the extremists in Sri Lanka who are against the peace process and are likely to endanger the already fragile ceasefire.
12. We must consider the alternative to the Joint Mechanism. If we fail to agree on the Joint Mechanism with the LTTE, it is likely that aid will go directly to the LTTE and LTTE-controlled NGOs. The GOSL would be left out of the decision-making for reconstruction. Furthermore, the GOSL's credibility with the Tamils of this country, with all the tsunami victims in the North and East, and with the international community, would be shattered.
13. There are international precedents for establishing mechanisms such as the proposed Post Tsunami Operational Management Structure.
* In examples throughout the world, sovereign governments have entered into agreements with rebel groups for urgent humanitarian purposes, in the absence of progress in negotiations for a permanent settlement to an ethnic conflict. While not directly addressing the core issues of the conflict, such agreements can have a positive impact on the prospects for lasting peace in the relevant country without conferring legitimacy on the rebel group.
* The Government of the Philippines, for example, entered into an agreement with the Moro Islamic Liberation Front (MILF) in which the rebel group was given the primary responsibility to determine, lead and manage rehabilitation and development projects in conflict-affected areas (2001). This agreement allowed the government to engage with MILF on a matter in which there was mutual interest, and resulted in subsequent agreements between the two parties. Both parties are currently participating in formal rounds of peace talks.
* In the absence of formal peace talks, the Government of Indonesia and the Free Aceh Movement entered into a Humanitarian Pause Agreement to cooperate on humanitarian issues, and set up a two-tiered structure consisting of representatives from both the Government and rebel group (2000). The Agreement was renewed for an additional three months after the expiration of its initial term.
* The Government of Guatemala and the Unidad Nacional Revoluncionara entered into a Comprehensive Human Rights Agreement (1994) prior to an agreement on a final peace settlement. Establishment of the Comprehensive Human Rights Agreement accelerated discussion of the other topics and, therefore, the signing of the other agreements included on the agenda for negotiations. This culminated in a firm and lasting peace agreement signed in December 1996. Furthermore, the almost immediate adoption of an international mechanism to verify the Comprehensive Agreement helped to generate confidence between its parties during the two years before the peace agreement was signed.
14. The PTOMS will not strengthen the LTTE's claim of statehood under international law.
I. The establishment of the PTOMS would not help the LTTE meet the criteria for statehood under the Montevideo Convention on the Rights and Duties of States (signed 1933):
a. Under the Montevideo Convention, the entity must have control of a permanent population.
b. The PTOMS does not give the LTTE control of any population, instead, the responsibility for assisting the affected population is shared between all the members of the Committees, including nominees of the GOSL and other political parties.
II. Furthermore, there is not a permanent population under the scope of PTOMS, rather the affected population is temporary in nature and only relevant for a period of one year.
The entity must possess a defined territory over which it exercises control.
1. The PTOMS does not give the LTTE control over any new territory; instead, it blurs the lines between the ''uncleared'' and "cleared" areas by giving the LTTE and GOSL joint jurisdiction in the tsunami-affected areas.
2. Furthermore, the geographic scope of P-TOMS is limited to 2 Km from the coastline, and only includes areas affected by the tsunami. This is distinct from the ''uncleared'' areas defined in the Ceasefire Agreement, and also much less than the entire Northern and Eastern provinces, which the LTTE would presumably claim for a separate state.
3. Therefore, the P-TOMS does not in anyway strengthen the LTTE's claims to control a defined territory and may in fact weaken its argument.
III. The entity must exercise effective and independent governmental control.
1. Under the PTOMS, the LTTE is not acting independently, but in cooperation with the GOSL. The very fact that the LTTE has agreed to enter into the agreement is a concession on its part that it is incapable of performing essential governance (tsunami relief) on its own and needs the support of Sri Lankan government administrative machinery in order to accomplish this task.
2. In this way, LTTE's participation in the PTOMS is an implicit acceptance of the sovereignty of Sri Lanka as a whole.
IV. The entity must have the capacity to freely engage in foreign relations.
1. This is an important indicator of statehood, but its realization depends on the response of other actors - states - on the international stage. An entity may have the capacity to enter into foreign relations, but should other states decline to enter into relations with it, the entity in question is denied the opportunity to demonstrate this capacity in practice.
2. It is unlikely that any state would enter into international relations with the LTTE within the context of the PTOMS and therefore PTOMS will not pave the way towards achieving statehood.
3. On the contrary, if there was no PTOMS, then there would be a strong likelihood that foreign states might be compelled to enter into bilateral agreements with the LTTE. That is a factor that must not be overlooked.
B. Under contemporary international law, fulfilling the conditions set forth in the Montevideo Convention would not be adequate in itself to grant the LTTE recognition as a state.
1. The Montevideo Convention is only one framework among many utilized in international law in determining whether an entity can be recognized as a state. It is not an authoritative or exhaustive checklist.
2. Additional criteria under international law include consideration of, among other factors, whether an entity has been established as the result of illegality, whether it is willing and able to abide by international law, and whether it constitutes a viable entity.