Colombo Telegraph

The Controversial SOFA!

By Rusiripala Tennakoon –

Rusiripala Tennakoon

Prevailing squabble about a proposed status of forces agreement with the US has paved the way to bring out serious concerns and differences of opinion in the country regarding its propriety and acceptability. While there is no official announcement of such a step there are many ongoing activities positively suggestive of the government of Sri Lanka’s commitment towards such a move.

 Generally SOFAs deal with the manner in which US military forces would operate when they are in a foreign country under agreed terms between the two countries. There are a multitude of aspects covered and addressed under such agreements. SOFAs have no universal format. Each SOFA can differ from another in size, contents and the mutual interests covered. Provisions in such agreements include inter-alia, the specific understandings about, the freedom for the military personnel to freely move about in the receiving country, wearing of uniforms, carrying of arms and ammunition, exemption from customs and other regulatory requirements on fees, licenses and payment of taxes, use of country’s radio frequencies etc. etc.. But a more serious issue that is essentially required  to be addressed in SOFAs, despite the fact that it often leads to controversy and dissent, is the question as to which country should have the right to exercise judicial control over the visiting military personnel. In other words which country should exercise criminal and civil jurisdiction over the visiting military personnel during their stay in the receiving country. 

All these are directed towards providing of immunities to the arriving military and other perssonel.

US has concluded more than 100 agreements which are currently in force. Some SOFA s have been signed with countries US has previously entered into treaties. Eg. 26  NATO countries have signed SOFAs with US under a multi-lateral arrangement that exists among all NATO countries. In addition US has concluded SOFAs with 24  other countries associated with NATO under a program of partnership for Peace.

SOFAs are entered into with countries that have  previous military agreements  under special security arrangements  between US and a particular country.  As an example of this we can cite the US agreement with Japan following the security treaty that existed before between the two countries . SOFAs are also signed as stand alone agreements with many other countries in the form of  Executive   Agreements which include conditions and provisions specific to that particular country. In such instances the US  Department of Defense which identifies the need for such an agreement with the particular country, negotiate the terms of the agreement with that country. 

The need to place US military forces in a foreign country arises in the context of many special considerations. Most of the SOFAs are based on the understandings and authorities flowing from previous treaties or security commitments and assurances under US foreign policy. The sole-executive or stand- alone SOFAs may be due to reasons such as , 

a)to assist in the defense in the event of an attack upon one party to the SOFA; b)in pursuance of a pledge by the US to support the country if its security is threatened; 

c) to offer military support  to defend a country against internal or external threats; 

d)OR merely as a unilateral compliance under a declared policy statement. 

Under which- ever of these arrangements a SOFA needs to be negotiated as bi-lateral agreement which has to be tailored to the specific situation and more particularly with regard to the assertion of legal jurisdiction to the foreign personnel operating in that country.

The case under issue with Sri Lanka appears to be falling under  c) OR  d)  shown above as we do not have any previous treaties or agreements with US for our security. Then the invariable speculations that have arisen pose the question who initiated the process? Did Sri Lanka make a request or did US consider it essential to them due to some threat in their horizons hence approved by the Congress? 

If both these presumptions do not cover the situation then the only other plausibility for this move is the possible inclusion of a provision in the ACSA that has been signed in 2017 to the effect that it will be followed to a subsequent creation of a SOFA between US and Sri Lanka. Many surrounding dubious happenings associated with the ACSA of 2017 needs further scrutiny and scan to eliminate these ambiguities.

1. Why it was hurried and rushed even before finalizing the security concerns of SL defense forces?

2. Why did the ACSA 2017 swell into a 80+ pages document from the 9 page document it was before?

3. How is that some key SL officials associated in the matter afterwards get US official postings under employment terms with the US?

4. How did the 2019 January 24th , controversial transshipments take place utilizing our commercial airport (Katunayake) and the Colombo Port during the military exercises of the US 7th Fleet in operation then in the so called (newly christened) Indo- Pacific region? This has been publicly highlighted before.The contradictory statements made by the civil aviation authorities and the defense secretary regarding this event!

5. Above all what is the justification for the ACSA to remain coveted while the responsible characters continue to be tight-lipped about the matter?

6. Why did minister Kiriella conceal from his parliamentary colleagues the differences between the ACSAs before and the 80 page that was signed in 2017

All these lead but to the grave of a strong suspicious and buttoned up deal that the government has chosen to keep away from the very Public of this country who have elevated them  from no- where to the ivory towers they are in today!

Can The Government Keep The SOFA Too Under Cover? 

Reportedly last August, the American Embassy in Colombo has exchanged a diplomatic note with the Ministry of Foreign Affairs SL, requesting an acknowledgement of what has so far been discussed between the two countries. This undoubtedly leads to the fact that there have been on- going discussions on this matter. It is said that the note indicates that an acknowledgement by the MOF construes an understanding for a new SOFA. Many have interpreted this statement to mean that the Ministers mere acknowledgement shall translate the previous discussions into a binding agreement. Whatever his instructions are, Mr.Marapona is a Senior reputed lawyer in this country who will, irrespective of his political loyalties ,not take any steps to impugn his standing. That may be the reason why he has reportedly raised an important issue during his negotiations in Washington in May 16-18, 2019, stating that a new SOFA cannot be concluded according to the Laws of this country following the 1995 precedence. He has cited a very important reference to a SL legal enforcement titled, Diplomatic Privileges Act  No 9 of 1996.

The “third US Partnership dialogue” held in May ,2019,  in Washington with the participation of Sri Lanka Foreign Minister,Tilak Marapona is an important milestone in this episode causing  the reigning anxiety surrounding the issue. 

This has prompted us to take a look at this piece of legislature. While the Lawyers in this country , we  believe , will examine this in minute legal detail, a cursory glance by us indicate the following provisions highly relevant to the issue we are discussing.

This Act under section 5 shows;

5.Order to be placed before parliament

(1) Every order made under sections 2, 3 or 4 shall as soon as convenient  after its publication in the gazette be placed before Parliament for approval. Any Order which is not so approved shall be deemed to be rescinded from the date of its disapproval, but without prejudice to anything previously done thereunder.

(2) Where any Order is deemed to be rescinded by virtue of the operation of the provisions of subsection (1) of this section, notification of such rescission shall be published in the gazette.

These provisions , while bearing strong evidence of the fact that Sri Lanka has always respected transparency and public opinion to the highest possible extent {unlike under the present circumstances}, confirms that there are strict and stringent conditions under which the Diplomatic Immunities afforded to Diplomatic Missions under the Vienna Conventions could be extended to non-diplomatic sources according to International Laws.

  In the context of the proposed SOFA section 4 of this Act becomes highly relevant. Under Section 4 , it is stated inter-alia, that “where the GOSL has entered into an agreement with any inter-governmental or International Organization providing for the grant of any immunities and privileges, to the officers or agents or property of such organization,the Minister may by Order published in the Gazette,and to the extent necessary to give effect to the terms of such agreement, declare that such of the provisions of this Act are specified in such Order shall apply to such officers , agents and property, of such organizationas are,or is,specified in such Order,to such extent as specified therein,and upon the making of such order such, of the provisions of this Act as are specified therein shall mutatis mutandis,apply to such officers, agents and property…………”. 

This Act was to give effect to the Vienna Convention on Diplomatic Relations; to provide for the grant of immunities and privileges to the officers , agents and property of certain international organisations .

The Vienna Convention on Diplomatic Relations 1961 under sections 32,35, 36and 40 clearly specify the privileges and immunities to be admitted by the receiving state and how they are given effect to internationally.

Our Act passed in 1996 address certain relevant issues in this regard and has made it mandatory for the country’s parliament to be made aware of any extensions of these privileges to any one other than Diplomatic Personnel as there are other implications arising out of such extensions internationally.

Therefore SOFAs cannot be concluded as close door operations as far as this country is concerned. The transparency that is ensured under the Acts quoted above will have to be respected. And above all  the Minister of Foreign Affairs has an obligation to disclose to Parliament all the discourses and intercourses between US and Sri Lanka in this regard. 

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