By Sarath Wijesinghe –

Sarath Wijesinghe

Agreements entered into with States, International Organizations including UN subsidiary bodies (such as WTO IMF), and multinational companies (such as Google) are binding and tested by the World Court or by way of arbitrations or goodwill of the parties as there is no Executive body for the United Nations for the implementation of agreements by member states other than indirect methods such as Sanctions. Being a small Nation depending on Major powers and world and economic powers, Sri Lanka will have to be extremely cautious in this dangerous maize with traps and bombs laid down under the floor of the international arena. Equal parties will settle disputes by flexing muscles, but the small Nations will be subjected to the law of the jungle- survival of the fittest! States consist of human beings. Human beings are full of selfishness and jealousy. Every nation will promote and protest themselves at the expense of the other!

Nicaraguan Government in 1986 filed a case in the International Court of Justice which ruled against USA in breach of customary international law. USA refused to participate and blocked enforcement forcing Nicaragua to withdraw the complaint in 1992.This is a classic example on complications in the implementation and enforceability of agreements between unequal parties under international law. India is a regional power closely aligned with USA expecting to look after their interests in the Indian Ocean against China and other competitors/regional/world powers. Now that we are forced to enter into the skeleton of the proposed unseen draft called ECTA the danger deepens on Sri Lanka being a weaker less knowledgeable and less organized party of the agreement. Indians are veterans in International Affairs, UN and the system of the world court jurisdiction having got involved in litigation. Honestly we are not- It is the reality! If we are knowledgeable this is the time to seek the jurisdiction of the World Court for raping, poaching and destroying our most valuable sea bed day in and out possibly, leaving us a valueless dead sea in few years. Sri Lankan Government looks the other way, out of fear respect or unconcerned despite frequent visits of Indian politicians of all levels and diplomatic statements on all the areas other than the main threat to Sri Lanka – dispute on encroachment and illegal and forceful perching an invading our sea-. There is a clear and a strong case against India on this continuous and forcible destruction of our valuable historical natural resources of great scientific and business significance and value. With 1987 India Sri Lanka Accord which is still in force, and the political involvements on the success of the current government to come into power, whether we have a will and competency is a matter only unseen powers and proctors of our nation can help the citizen entrusted the Nation to the current trustees expected to rule the country on trust, because world is not going to help us against mighty and powerful India. There is lot of unfinished contentious issues with India including CEPA, SAFTA, 1987 Indu Sri Lanka Accord and the international law implementations, to be discussed and sorted out before entering into ECTA which few privileged have seen or read. According to an interview by the President Sirisena with the GMOA President Even President of Sri Lanka has not seen the drift scheduled to be signed in mid-year despite any protests or resistance from any corner. It is reported Indian delegation is due with the Indian proposals. We have a long history of hurriedly signed and ill drafted international Agreements from 1815 onwards including the Indu Sri Lanka Accord that has introduced provincial councils the white elephants eating into a major share of the national income and the income of the sweat of the Sri Lankans employed abroad. India invaded Goa then a part of Portugal after afraid and ground offensive and capture the area forcefully. There was a protest by the UN and the member states the mighty India managed it suing their skills and enormity. When India forced Army to Sri Lanka she managed the international arena well suing their craft and experiences. In the event there is a situation on ECTA it will possible be another fishing issue.

Competency to draft international agreements

Our competency on drafting international agreements is limited. The truth and the reality is that Nether the AG’s Department no the Foreign Ministry is fully competent to prepare complicated agreements in a hurry. Let us not be shy and face facts. Let us turn on our Sri Lankan academics and international civil servants worldwide for our assistance with our resources. We have Sri Lankan intellectuals all over the world as retired world court judges, leading academics in universities and leaders in international organisations prepared to help Sri Lanka with the local professionals. Any such international document should be approved by the Parliament and a body appointed to discuss with the professionals before ratified. President, Prime Minister and other Ministers sign international agreements frequently without realizing that the Sri Lankan citizen and the future generations bound by the agreements. But given time and space we will be able to prepare documents of high standard.

National Policy for bilateral and multi-lateral agreements

Treaty is an agreement under international law entered into actions on international law, in the form of agreements, protocols, covenants, conventions, or exchange of letters, which are legally binding until changed or dissolved. Bilateral agreements are with two nations and multilateral are more than one nation with international organisations. These instruments are provided by the Vienna Convention adopted on 22nd may 69 and implemented from 27th January 1980. Judicial organ of the UN is the International Court of Justice with the jurisdiction to the member nations in the resolution of disputes.

Even in the United States should follow the procedure for a treaty to become law/binding by obtaining the approval from the senate seeking giving advice and consent it with 2/3rd majority. This is the State policy and the procedure in the formulation of international agreements in the USA, UK and many Western Nations. EU has a common foreign policy and ratification of an instrument is still difficult. Historically we have blundered on the process and procedure on international agreements and it is a necessity to formulate a policy and a procedure on this issue approved by all the member Nations. Why do we need an agreement in a hurry when the BOI is functioning so well inviting investors? How could the agreement generate jobs om entering into the controversial agreements in a hurry? For the jobs to generate investors should invest and generate employments and export markets which is currently taking place successfully. Why only India suspicious on each other and why not other SARC nations to enter into agreements in order to work with. Therefore, the best remedy and the course of action is to introduce a national policy and a procedure to approve the agreements by a committee of experts.

Way forward

Though Sri Lanka is a senior member of the United Nations it lacks experience in the formulation and drafting of contentious international instruments. We are currently paying heavy prices for hurriedly prepared agreements on many areas. Notorious Hedging deal during Rajapaksa regime, many WTO agreements, Indo Sri Lanka Accord – connected to 13th Amendment India is harping on to implement-, CEPA, SFTA, are some of many including the recently introduced” Ambulance Saga” initiated promoted and presented to the Cabinet by the Prime Minister personally by- passing the line minister. Indu Sri Lanka Accord by JR and CEPA signed by Chandrika 2002 horrendous agreement signed “with separatist leader” was hurriedly prepared and forced on us and we are paying heavy prices now. Even now President, Prime Minister and the Minister of Foreign affairs sign various “ad hoc” agreements hurriedly prepared that are binding on Sri Lanka and the citizens including the future generation. Foreign Minister has no faith on the Ministry of foreign affairs and appointed an Apex body to advise him. We were fortunate with highly learned and reputed international civil servants in the international arena in the past such as Shirly Amarasinghe, Dr R S S Gunawardena, Laxman Kadirgamer and many including Justice G. Weeramanthry and Desmond De Silve QC, still alive and ready to serve the nation. It is not fair and dangerous to politicize this national issue and to terrorize the opponents, media, and the citizens to force and bulldoze it on the people.

ECTA agreement for some unknown reason only known to some. It should have been made public for the people not to be suspicious- if it is genuine and putting forward for genuine reasons with no ulterior motives. Today statesmanship and patience is lacking in the legislature and politicians behaving like pre-programmed “DOLLS” naming media persons and attacking everybody in this most respected house of legislature in a most unbecoming of statesmanship, tarnishing great customs, conventions and democratic norms we have been used to. We need a full scale public discussion on this most controversial and many other issues based on the principles of KING LICHCHAVE as proposed by the proponents of the current policies. It is argued that this agreement will generate jobs for Sri Lankans. It is hard to believe this as it has to be worked out with a long-term strategy on political and economic sphere. Has the other agreements India entered with the neighbours successful and generating jobs? She has eternal disputes with all the neighbours, especially landlocked Nepal and tiny Bhutan. Issues with Pakistan and Balderdash is eternal. We were safe for thousands of years because we were an Island separated from the sea – yet dealt with the world successfully not being isolated. Is it good to expose ourselves to the world vis agreements but it has to be done with due care and caution in this selfish world. Apparently government fear India, Professionals , people and hiding the facts unnecessarily. What is the difficulty and fear in making the skeleton draft public for the public to know and to make contributions and suggestions to the proposals if it is done to the benefit of the citizen. We propose as concerned citizens and professionals for the Government acting as a Trustee to the Nation to be calm, patient, giving space and time to all parties concerned and worried including members f the legislature and the general public to participate in the debates as there is no hurry and there is all the time in the world to prepare a better and a safe instrument to the worried and disturbed nation.