SOFA and Sovereignty: Why US-Lankan Pacts Are Cause For Concern

(Courtesy of Lankaweb)

sofa

(The featured image at the top shows Lankan Foreign Minister Tilak Marapana meeting US Secretary of State Mike Pompeo in Washington)

Sri Lanka is on the verge of signing the highly controversial Status of Forces Agreement (SOFA) with the United States, which, according to strategic experts, could theoretically make the island nation a happy hunting ground of millions” of US servicemen, Defense Department personnel and Defense Department contractors.

On the anvil is another controversial agreement on the US$ 480 million fund from the Millennium Challenge Corporation (MCC), which, if approved by the US Congress and the Lankan cabinet, will include a number of infrastructure projects, but principally the 200 km Colombo-Trincomalee Economic Corridor (CTEC), connecting the West coast with the East coast.

According to Sri Lanka’s former Foreign Secretary, Dr. Palitha Kohona, the MCC requires the government to change land laws to enable peasants to alienate lands given to them by the State. The buyers could be foreign entities. He pointed out that the CTEC will also be violating the Indo-Lanka Accord of 1987 which forbids the Lankan government from giving over any harbor or airport in the island to a foreign power to be used for a military purpose inimical to India. The US does intend to develop Trincomalee as a logistics base, Dr. Kohona said.

President Maithripala Sirisenahas said time and again that he is opposed to SOFA as it seriously erodes the sovereignty of the country. He even instructed Foreign Minister Tilak Maraponato tell the US State Department that SOFA cannot be accepted in the present form. Prime Minister Ranil Wickremesinghe, who is generally pro-US, also has reservations, for without his consent, the Foreign Minister Marapona, who belongs to his party, United National Party (UNP), would not have told the Americans that SOFA has flaws.

Only Finance Minister Mangala Samaraweera is all for SOFA and MCC.

ACSA 2017 and SOFA

Adm. Dr. Jayanath Colombage, formal Lankan navy chief who is a maritime security expert with the Pathfinder Foundation, said that the Access and Services Agreement (ACSA) signed in 2007 was a very simple one, meant to facilitate US troops coming here for joint training exercises with the Lankan military.

Dr. Palitha Kohona, Lanka’s Foreign Secretary during the last war with the Tamil Tigers, said that ACSA 2007 was for a fixed period of 10years. When it came up for renewal in 2017, ACSA had become a different kettle of fish. It was an 83-page document with more than 50 annexures. Above all, it was open ended”. In other words, it had no time limit other than a provision for ending it with either party giving 180 days’ notice.

Subsequently, the US proposed to replace ACSA with the comprehensive SOFA. According to Sunday Times the US is wanting aircraft and vessels of the US Government to be free from boarding and inspection. This means none of the Lankan state security arms, like the Navy, Coast Guard or the Customs can board any US military vessel or aircraft when it is in a Sri Lankan airport or sea port. They cannot even check vehicles on land, an internationally accepted sovereign right of a country.

The US also wants exemption from licenses, customs duties, taxes and any other charges within Sri Lanka.

The US is seeking authorization for its troops to wear uniforms whilst on duty” in any part of Sri Lanka, and to carry arms and radio communications equipment. But in terms of the Sri Lankan Constitution and normal laws, only the armed forces and the Police have these privileges.

In addition, Washington wants US troops and contractors to be allowed to enter and leave Sri Lanka, individually or collectively, with the use of only their US identification. This will mean they will carry no passports or visas, Sunday Times says.

SOFA would also grant US military personnel, US military contractors and US military suppliers the same perks and privileges granted to technical and administrative officers of the US Embassy.

While Dr. Palitha Kohona drew attention to the social ills arising out of having an American military Rest and Recreating(R and R) Center here, Adm. Colombage pointed to the possibility of US mercenaries coming in the form of US Department of Defense contractors (example the Blackwater military company which was deployed in the Middle East).

Both Kohona and Colombage said that about 2 million US personnel could be authorized to operate in Sri Lanka in one way or the other.

Violates Diplomatic Privileges Act of 1996

SOFA violates the Diplomatic Privileges Act of 1996 which stresses reciprocity. If a country, say the US, gets certain diplomatic rights in Sri Lanka but does not give Sri Lankan diplomatic personnel the same rights in the US, then the Sri Lankan government will deprive the US personnel of those privileges here in the island.

If it appears to the Minister of Foreign Affairs that the privileges and immunities accorded to a Sri Lankan mission in any State abroad, or to persons connected with that mission, are less than those conferred by this Act on the mission of such State or on the persons connected with that mission, the Minister may by Order published in the Gazette, declare that such of the provisions of this Act as are specified In such Order shall, with effect from such date as may be specified in such Order, cease to apply with respect to the mission of that State or to such categories of members of the mission of that State, as is, or are, specified therein,” the Act says.

Therefore, in view of the Diplomatic Privileges Act of 1996, the SOFA signed in 1995 during the Presidency of Chandrika Kumaratunga cannot be extended automatically to the SOFA envisaged in 2019. This was told to the US State and Defense Departments when Lankan Foreign Minister Tilak Marapana was in the US last.

Impairment of Non-Alignment

According to Dr. Kohona, SOFA would seriously impair Lanka’s status as a non-aligned country wanting to be friends with all and enemy of none.

Since we are under no threat from any country, why should we enter into such a wide-ranging agreement with a Super Power, unless the intention of that Super Power is to draw us into a conflict with China by making Sri Lanka a base?” he asked.

Since the US is obsessed with the security of the Indo-Pacific region following the rise of China as a power, SOFA would invariably draw Lanka into an armed Sino-US conflict, Kohona warned.

India’s Silence Intrigues

Adm. Colombage noted that India, which is a dominant power in the Indian Ocean and the South Asian region is silent on the issue of the Lanka’ SOFAwith the US.

He does not believe that India wants the US to dominate Sri Lanka or that it is going along with the US strategy to contain China in the Indo-Pacific region the whole hog.

India wants good relations with China to increase trade and economic cooperation.Therefore, India is concerned and is perhaps taking steps in its own, quiet way. Indian diplomacy achieves its ends quietly,” Adm. Colombage believes.

However, he does worry about the possibility of the past impairing the Indian vision.

In the past, India was maritime blind.It was maritime blindness which made the 26/11 Mumbai attacks possible andit was maritime blindness which made India ignore Chinese incursions into the Indian Ocean until it became manifest,” he recalled.

Dr. Kohona said that the development of Trincomalee as a logistic base under the MCC fund is linked to SOFA. This should worry India, he added.

Kohona pointed out that the Indo-Lanka Accord of 1987 says that Sri Lanka should not give any of its harbors or ports to any other country which might use it for a military purpose in a way inimical to India.

The Indo-Lanka Accord is a bilateral agreement which we cannot ignore,” the veteran diplomat observed.

Economic Argument For SOFA

However, SOFA has a staunch defender in Lankan Finance Minister Mangala Samaraweera. Recently, he refuted the charge that SOFA is dangerous.

In 1995, a SOFA was signed during President Chandrika Kumaratunga’s time. That had done no harm to the country. The present discussions are only about renewing it,” Samaraweera said.

Further, it will not be in Sri Lanka’s economic interest to alienate the US as it annually purchases about US$3.7 billion worth of goods and services. The European Union (EU) is Sri Lanka’s largest export partner. Both the EU and the US purchase a large percentage of the output of Lanka’s US$5 billion garment industry,” he pointed out.

By P.K.Balachandran

 

 

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