Colombo Telegraph

Not The Americans, It’s Our Fellows Who Lack Transparency; A Simple Guide To SOFA & ACSA

By Kumar David

Prof. Kumar David

There’s much chest thumping and hair pulling about Sri Lanka signing ACSA in 2007 and now pursuing a SOFA proposal. I am of the view that neither is justified but curious why Mahinda-Gota signed-on and why the Sirisena-Ranil outfit now seeks to enhance it. What these deals include is not widely known and ignorance, the root of trepidation, offers journalists an opportunity to run a good story or bask in much-watched interviews. I will use a three-step approach; first an adumbration of what these agreements with the US include, second my guess for Mahinda-Gota and Sirisena-Ranil involvement (reasons not the same) and finally why they are detrimental to Lanka’s interests. The defence pact Sirisena secretly contracted with China in June is also damaging but not examined here.  

ACSA

Acquisition and Cross-Servicing Agreements are negotiated on a bilateral basis by the US for use in combined exercises, training, operations, or deployments and allow its forces to obtain food, fuel, transport, ammunition, and equipment, collectively termed logistical supplies.  Reimbursement is in cash, or rarely, replacement in kind. The 2007 deal signed by Gota also contains the words “and for unforeseen circumstances or exigencies when one of the parties may have a need of logistic support, supplies, and services”. It is now late in the day to raise hackles that a door has been opened for the US to use Sri Lanka as a logistical base if it gets embroiled in a fracas with China or in the Middle East. This is not true; ASCA is not a defence treaty, makes no provision for stationing personnel (no boots on the ground) and permits no host-based military action. 

ASCA is all about pricing, reimbursement and dispute resolution. I will not bore you with painful elaboration of obvious detail; the dozen or so pages of every ASCA reads like a commercial contract. ACSA is not a military agreement and can be terminated by either party with 180 days’ notice. In any case the 2007 agreement (which followed a scrappy deal signed by the Chandrika government in 1995) ran out in 10 years on March 2017; hence the proposal by Ranil to renew it. It is not clear what amendments were/will be incorporated. The state of play is nebulous; will the 2007 deal be (or has it been) renewed with or without amendment? I can’t make it out but it seems it will be replaced by the more significant SOFA. The Diplomatic Editor of the Sunday Times says on 19 May: “While the 2007 ACSA permits US military vessels to anchor in Sri Lanka ports on a one-off basis, the 2017 ACSA appears to be open-ended” (sic!). I cannot find a copy of a 2017 updated ACSA, but Diplomatic Editors no doubt have access to sources not accessible to minor sods like me.

SOFA

Status of Forces Agreements are more far reaching since they are not confined to purchase of goods and services. They include rules governing boots on the ground – that is US military personnel in a foreign country. In preparation for this piece I examined the SOFA agreements that the US has contracted with the Philippines, Seychelles, Chad, Romania and Surinam before I stopped out of sheer boredom; they are all much the same with small variations to suit each case. SOFA-Japan is more complex because Japan’s relationship with the US is historically and militarily complex.

Before outlining the main provisions, I need to point out that SOFA too is not a pact or treaty and does not authorise the entry of American troops into a host country without explicit case by case permission. I can’t see where the aforementioned Diplomatic Editor found his “open end”! Philippine SOFA for example in Article VIII, Clause 1 (2), says “Aircraft (vessels) operated by the United States armed forces may enter the Philippines upon approval of the Government of the Philippines”. It is palpable that US ground forces cannot be stationed in a host country unless a US base already exists or by specific invitation. 

The content of all SOFA contracts is much the same. I am taking material from many to give readers good coverage. The scope spreads over; Entry & Exit, Criminal Jurisdiction, Custody-Access-Confinement-Visitation, Discipline, Security, Tax Exemptions and customs-free Imports. The underlying assumption is that US military personnel can be present in a host country – that is boots on the ground, this is the big difference from ASCA. 

Let me keep it as brief as possible. SOFA allows US forces, dependents and associated civilians (non-military staff and contractors) to enter and leave a host country as conveniently as diplomats; US documents will be adequate therefor. In the event of a criminal act the host country will not have jurisdiction, the accused will be handed to US authorities to be tried under US law. Income from US sources will not be liable to personal tax; import of food (and good bourbon no doubt) and personal goods will be free of customs duty. The US military will ensure discipline of its troops but the host country will provide a secure environment. Nothing very exciting; if a host takes the political decision to enter into a ‘forces agreement’, the rest follows.

A little more worrying is that the host is required to recognise that the U.S. Armed forces will use the radio spectrum free of charge and operate its own telecommunication system. However, the issues that have caused GoSL greatest discomfort and are being renegotiated are the diplomatic-like entry and exit provisions and the exclusion of domestic criminal jurisdiction. Aren’t hosts being asked to forego rights of a sovereign state?

Why did our governments sign on?

Both SOFA and ACSA are reciprocal, meaning that if a Sri Lanka naval gunboat drifts across the Pacific it can limp into San Diego naval port and demand first-aid, repair and drinking water. Reciprocity between a monkey and a mouse racing up tree-tops into the canopy! No; there is no way Lanka’s armed forces will be in a position to call upon SOFA for logistical support. Then there must be other reasons that motivated Gota in 2007 and Ranil today. It is not difficult to decipher.

Though Ambassador Robert Blake made it plain that the US was not prepared to get involved in the ant-LTTE civil war, the then government realised that there were plenty of intangible and semi-tangible benefits to be had. Militarily, India and America helped locate LTTE arms ships which the navy sank, and I think other useful intelligence was passed on. Broadly the government reckoned, correctly, that having the US on-side would be beneficial in economic, political and IMF related matters. It didn’t go as far as Geneva where the US came under intense pressure from international and diaspora human rights lobbies. Overall did it pay off? Well, nothing has been lost by Lanka because to the best of my knowledge the US military did not lay claim to any (or negligible) ACSA services in the ten-year period 2007-2017.

And what about Ranil, what does he want? Like the previous government he hankers to keep on the good side of the US. However, I suspect there is more in the mind of UNP strategists. Lanka is not politically stable now; the President is erratic and unhinged; there may have been a hidden-hand and power grabbers behind the recent chaos; the UNP does not trust the democratic credentials of the opposition or its presidential candidate; the military must not be allowed to get ambitious. Is Ranil thinking, win or lose elections the presence of a restraining shadow-power will be beneficial? It seems a likely line of thought and a few friends I bounced it off replied “Maybe you have a point”.

Why am I against ACSA and SOFA?

There is simply not enough good reason to sign on. US military power is cast far and wide across the globe and one cannot foresee in what theatre it may unexpectedly need logistical facilities or hard support. Hence it makes sense for the US to have ACSA or SOFA. It does not cost anything; you pay only when you use it or if you move manpower into a host country. Notwithstanding what Gota saw and Ranil now sees, I believe that in our case the disadvantages outweigh potential benefits. I am too much a realist to be swayed by emotional sovereignty-type nationalist bleating. What sovereignty for a small country buffeted this way and that by great powers except to intelligently balance between them? The tributes on offer are Hambantota cum economic servitude for China, obedience for India and the offer of SOFA for America. Is it common sense or is it triangulated whoredom? The only lasting guarantee of democracy in Sri Lanka is that India remains secular and democratic.

The other danger that some see is that SOFA may be a prologue to unwanted involvement in a regional conflict involving the US, say against China, or an imbroglio in the Middle East. I take this less seriously than my earnest interlocutors. Sino-American war won’t happen and a huge explosion in the Middle East is unlikely though skirmishes will erupt out from time to time. In any case the world will be a safer place once the Americans dump Trump.

I don’t get hot under the collar about an eight-page version submitted to Cabinet and an 83-page version which Ranil and/or Sirisena are said to be concealing. I am familiar with people crying-wolf; most likely the 75 pages are a bunch of annexures and appendices. All SOFA documents I have looked up are between eight and ten pages. Of course, it goes without saying that this is no excuse for a lack of transparency. The eight pages or the 83 pages, it should all be released to the public. The US puts a lot more stuff on the web.

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