 |
| |
 |
 |
| |
 |
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 PTOMS 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.