KAMALIKA PIERIS

The final essay in this series examines the   academic and political reactions to the three agreements discussed, namely, ACSA, SOFA and MCC. All three agreements are with the United States of America and all three Agreements focus on the territorial and military control of the island. Of the three agreements, ACSA is already signed. SOFA and Millennium Challenge Compact are yet to be signed.  The public, specially the intelligentsia are worried.  It looks as though we are about to go into our fourth bout of foreign rule, this time under the United States of America, they said. They do not like the idea at all.

US control of Sri Lanka has become more urgent recently, since US may have to vacate its military base in Diego Garcia. International Court of Justice has ruled that the occupation of Chagos Islands by USA is illegal and that Chagos must be handed back to Mauritius ‘as rapidly as possible.’ Chagos Islands are home to the strategic US military base of Diego Garcia.  If Chargos Islands goes back to Mauritius in accordance with the UN ruling then US will need an alternative base. That will be Sri Lanka.

SOFA and MCC are not the only agreements that the US has been pushing to conclude in Sri Lanka, said Lasanda Kurukulasuriya. The country’s pro-US Prime Minister led government is working hard to conclude or implement a number of other pieces of legislation and policy at the behest of its Western patrons, against all odds.  There is a sense of urgency in these efforts, because time is running out. With a Presidential election only months away, and the government showing a dismal report card on its performance, its Western backers know that its days are numbered. Therefore the pressure is turned up, to fast-track the desired laws and agreements. It is the US-friendly UNP leadership that will be instrumental in this process. The public will need to be on alert because once these laws are passed there is no possibility of judicial review, under the Constitution, warned Lasanda.

Analysts refer to the high profile agreement between the US and Sri Lanka Parliament signed in September 2016 in Washington. Speaker Karu Jayasuriya and Chairman, House Democracy Partnership of the U.S. House of Representatives J.Roskam signed the agreement on Sept 14, 2016 on behalf of Sri Lanka and the US, respectively. They say this also has a bearing on the three agreements.

When the three agreements were discussed, it was pointed out that ACSA is already signed. Sri Lanka must now accept this and respect the decision. Sri Lanka has no intention of accepting it. The public want ACSA revoked.  US aircraft carrier could to dock into Trincomalee under ACSA and USA could use it as a floating base for its military activity, experts said.

Chief of Defence Staff (CDS) Admiral Wijegunaratne  when asked by the media, about ACSA, said,  I refused to  say yes to ACSA when I was Commander of the Navy, because we could not agree to certain matters.  He had reservations also about the manner in which the ACSA was rushed through the Cabinet. Most of the time there are no talks or discussions to get ideas of others. They just go for such agreements,” he said.  In addition, critics wanted to know whether in the USA, the ACSA had the consent of two-thirds of the US Senate, in accordance with US regulations.  If it did not, what would be its status in international law.

The  intelligentsia are objecting to the manner in which the agreements are being negotiated. The agreements   are known to one or two pro-American Cabinet ministers  who then push  the matter through Cabinet. The public  loudly objects to the secrecy involved.  In the case of ACSA, there was no government statement explaining the contents, nor was it tabled in Parliament, they complained. It is outrageous that plans involving such drastic changes are not made available for public debate. The secrecy surrounding them shows that the government knows they will be unpopular, observed Lasanda Kurukulasuriya.

Agreements of that nature should be approved by Parliament, said critics. Parliament should have a role in discussing such agreements because they affect the  sovereignty, independence and territorial integrity of the country.  Were ACSA, SOFA and MCC discussed in Cabinet and in Parliament, by the Parliamentary Sectoral Oversight Committees handling foreign and defense issues. If not, why not.

OBSERVATIONS OF  N.A.DE S AMARATUNGA

 N.A..de S Amaratunga said there is a perceived threat of a major intrusion into the country’s sovereignty and the country being turned into a military base for the US, as part of its strategy for dominance in the Indian Ocean. Several agreements with the US and supportive parliamentary acts are said to be in the pipeline hidden from the public eye. The proposed agreements are (1) Status of Forces Agreement, (2) Acquisition and Cross Service Agreement and (3) Millennium Challenge Corporation Compact.

 The first would enable the US to deploy their armed forces in any part of our country with the freedom of not coming under the law of the country. The second envisages the building of an economic corridor from Colombo to Trincomalee and the third agreement would establish a corporation to utilize the land that comes under the economic corridor.

 Going hand in hand with these agreements are the following proposed parliamentary acts; the Land Special Provisions Act and the State Land Bank Act. These acts of parliament would facilitate acquisition of land by foreign investors and the formation of corporations for the development of these lands.

Obviously, the primary interest of the US is in the military sphere, and the secondary interest is to tighten the grip it has on the country with a strong economic involvement making us dependent on them. Our land would be made available to their armed forces and also to their investors. The economic corridor could eventually be American owned and would connect the two ports also, Colombo and Trincomalee for military and economic purposes. . The US and also our Prime Minister seem to be in a great hurry to get our government to enter into these agreements as there is an election around.

The US has indicated that they want future governments to honour these agreements, probably aiming to take an insurance against a possible defeat of this government at the forthcoming elections. The legality of these agreements and their future validity have to be seriously looked at in relation to the relative powers of the executive and the legislature, given their far reaching and obvious adverse impact on Sri Lanka’s sovereignty and land ownership.

For the US, Sri Lanka has assumed greater geopolitical importance in view of the proposed Chinese Belt and Road Initiative, and the vital role Sri Lanka may be called upon to play in that project. US Secretary of State has stated in no uncertain terms that they would not hesitate to militarily intervene to protect their interests anywhere in the world, including sea routes for trade. Further their global economic policy is to make countries dependent on them rather than improve the quality of life in those countries. Thus they want to get a grip on Sri Lanka’s economy and make us dependent on them, which would make it easy to convert Sri Lanka into a US military base for all practical purposes. The latter is crucial for them for they may soon lose the right to have their base in Diego Garcia, concluded Amaratunga.

 MOUNTING OPPOSITION

 Public opposition is mounting over the Agreements.  The opposition is coming from the very top. President Sirisena declared in July 2019 that he will not allow any foreign agreement that would threaten the country’s independence and sovereignty during his tenure. There are discussions regarding the agreements such as SOFA (Status of Forces Agreement), Millennium Challenge and a land act. These are not suitable for the country,” He would not allow any unsuitable agreements with any country or world power.

A final decision on the Status of Forces Agreement (SOFA) with the US should be delayed till the conclusion of the 2019 presidential election. Similarly, the proposed Millennium Challenge Corporation (MMC) agreement, too, should be delayed till after the next presidential election, said Dayasiri Jayasekera speaking on behalf of the President.

Chief of Defence Staff, Admiral Ravindra Wijegunaratne, who heads the apexbody of the armed services and the police told media in July 2019. These two agreements (ACSA and SOFA) with United States are controversial. We cannot agree to some parts. UPFA said ‘Yahapalana government is ready to commit a great betrayal of the country. The ACSA agreement has been signed. It is now preparing to sign SOFA. Kohona asked why Sri Lanka has to enter into agreements which were not beneficial to it. Kumar David observed that there is simply not enough good reason to sign on for ACSA and SOFA. I believe that in our case the disadvantages outweigh potential benefits, he said.

In July 2019, Sri Lanka Podujana Peramuna held a news conference to protest against the two agreements. It was observed at this conference that there have been many problems wherever SOFA is signed by the US with other countries. An army base will come up in any country that signs a SOFA. We have a trained, experienced and world-recognized armed force which could meet any situation. We do not have any need to get military assistance from any country, said SLPP.

In July 2019 the Bar Association of Sri Lanka (BASL) requested a meeting, with the President and Prime Minister to clarify certain concern they had regarding the agreements. BASL also met Opposition Leader Mahinda Rajapaksa to discuss the ACSA and the proposed SOFA and the Land Bill. They discussed action they could jointly take to protest over the ACSA and urge the government not to go ahead with the SOFA. BASL President Indatissa warned that if the SOFA was signed, Sri Lanka would become a target of anti-American terrorists.

Ceylon Chamber of Commerce, the oldest trade chamber in the country, wrote to the Prime Minister in July 2019. The Chamber said, The Ceylon Chamber expresses its concern with regard to the increasing levels of speculation among its Membership and society at large on the consequences surrounding the proposed  SOFA and MCC.

The Chamber wants the government to clarify the exact position with regard to the current status of these two Agreements. What is the current status of the negotiations and/or execution of these agreements. . The Chamber  wants the government to be transparent with respect to these agreements and their consequences. The Chamber also wanted the agreements to be approved by Parliament. This will ensure that the national interest is protected.

STOP USA”

Concerned members of the public launched STOP USA” campaign In June 2019 to highlight the danger   of these Agreements. At its inaugural meeting, speakers including MP Wimal Weerawansa, Pivithuru Hela Urumaya leader MP Udaya Gammanpila, MP Vasudeva Nanayakkara and former lawmakers A.L.M. Athaulla, Mohammed Muzammil and Sarath Weerasekera.

The speakers said that the US launched this project in 1995, soon after Kumaratunga’s election as President. It then US gradually expanded its military-to-military relations leading to the current situation. ACSA and SOFA were meant to allow the US to set up base here.  The various US military units that would be allowed access were listed. These Agreements were the biggest threat Sri Lanka has faced since it gained Independence.  It would affect Sri Lanka’s sovereignty and territorial integrity. Today, the US plan has received the backing of Prime Minister Ranil Wickremesinghe and Finance Minister Mangala Samaraweera.

Mangala Samaraweera spoke up on behalf of the Agreements. He  defended SOFA  and ACSA. These were military to military” agreements, he said. They were  harmless” and was not a danger.” Samaraweera alleged that those opposed to such agreements were bent undermining bilateral relations with the US, a country that always stood by Sri Lanka. He cautioned that Sri Lanka would lose its exports to the US and also new employment opportunities if these Agreements were not accepted. He drew attention to Sri Lanka’s dependence on exports to the US, particularly garments).

USA RESPONSE

USA was so concerned about the  virulent opposition to its Agreements that its Ambassador conducted a Face book live chat in July 2019  to counter misinformation and disinformation that has been propagated about US-Sri Lanka cooperation. The Ambassador emphasized that when the US extends support and assistance to the people of Sri Lanka, it is only at the invitation of the Sri Lankan government.

The Ambassador responded to public questions on the US-Sri Lanka partnership agreements,  ACSA, MCC and SOFA. The Ambassador said that the MCC Compact  would not be establishing an ‘economic corridor’ between Colombo and Trincomalee.   USA will not buy, sell, or own any actual land under the Compact, either.

SOFA,   now re-branded as Visiting Forces Agreement (VFA) addresses the status of US military and civilian employees of the US Department of Defense, who may be temporarily present in Sri Lanka for exercises or official duty at the invitation of the Government of Sri Lanka,  said the Ambassador. The title ‘VFA” shows that  US has no intention to build a military base or establish a permanent military presence in Sri Lanka, she said.

 The US Forces would only come to Sri Lanka at the invitation of the Sri Lankan government and would then depart. No troops – even under a VFA – would enter Sri Lanka without proper documentation and prior approval. Sri Lanka would retain all sovereign rights to approve or deny entry or exit of U.S. personnel, vessels, and aircraft into Sri Lanka’s territory and territorial waters/airspace,   assured the Ambassador. Regarding immunity  of US defense personnel from Sri Lanka law, the Ambassador said that the two countries would come to an advance agreement on how to deal with such incidents should they arise. However, the draft VFA is still under negotiation and has not been concluded as of yet, she stated.

TREATY OBLIGATIONS

The three Agreements under discussion are treaties between two sovereign  states. Such treaties  have  treaty obligations.” One school of thought  says treaty obligations must be respected regardless of the circumstances under which they are signed. No matter the circumstances, once signed, states are bound to fulfill their obligations.

However, another school of thought thinks that the legitimacy of agreements/treaties depends on  circumstances. Laws relating to treaties between states are governed by the Vienna Convention of 1969.   Article 46 (1)  of the Vienna Convention says  once a treaty is signed,  a country can back out  saying that it was against their laws, only if  that law was one of fundamental importance”. Ladduwahetty argues that  an “internal law of fundamental importance” is  indeed violated in Sri Lanka,  whenever agreements/treaties are concluded by the Executive without reference to Parliament.

He explains that the Constitution of Sri Lanka says that sovereignty is in the people and  it  is  exercised by Parliament and the President acting together in the name of the people. Sovereignty cannot be exercised by Parliament or the President acting separately .

The Vienna Convention authorizes Heads of States, Heads of the Governments and Ministers of Foreign Affairs to sign agreements/treaties. But , says Ladduwahetty, these are designated persons, whose authority is derived from following  the correct procedures which in the case of Sri Lanka is by securing the consent of two-thirds of members of Parliament and the consent of the Executive. Therefore, any agreement/treaty signed in the name of the people by the  Head of state, Prime Minister or Foreign minister without the consent of Parliament amounts to a violation of the sovereignty of the people.

Ladduwahetty says that the Supreme Court must rule, once and for all, on the procedures that should be followed when agreeing to  bi-lateral treaties. The procedures must be in accordance with the Constitution.  This ruling should not be directed at any particular agreement/treaty with any particular country. It should be a common ruling that it would apply to all agreements/treaties.

The intelligentsia  are now frantically looking for a way out of  these Agreements.  National Joint Committee  wrote to Prime Minister Ranil Wickramasinghe saying that they were  concerned about the unity and territorial integrity of our nation. We believe that Sri Lanka should follow a foreign policy of non-alignment. Due to the fact that Sri Lanka is strategically located in the Indian Ocean the country needs to remain non-aligned and refrain from getting involved in the geopolitical confrontation that is developing between America and China, through agreements that would enable these countries to gain a foothold in Sri Lanka, ” said the NJC.

We must maintain good relationships with USA, China and India, but that it should not mean we should sacrifice our independence, said Kohona.  Admiral Wijegunaratne said  ‘We are having big issues in our country. The Indian Ocean can be easily controlled from Sri Lanka. India’s one-time National Security advisor Shiv Shankar Menon noted that Sri Lanka is a permanent aircraft carrier in the Indian Ocean. 

 We have given Hambantota Port on lease to China for 99 years.  The Americans are saying that if you can lease it to China, why you can’t agree to our agreement. They have stated  that  Sri Lanka location is very important for them. Then, Russia is asking if you get into such agreement with America, you should also sign an agreement with us. Admiral Wijegunaratne had just returned from Moscow after leading a military delegation there. We need all of these countries.  

We cannot forget America, he added. If we take American economy on the one hand, and those of other countries on the other, the US is greater in scale. The US economy is strong. Its defence expenditure is higher than the eight other countries that come thereafter. However, this important location, (he means Sri Lanka) , must be protected for the people of our country and future children. That is our responsibility. Therefore, this should not be a playground where international groups engage in their power struggles. We should come to a middle ground and make agreements, said Admiral Wijegunaratne .