US and Sri Lanka seek consensus on controversial deal

By Easwaran Rutnam

The US and Sri Lanka are attempting to seek a consensus on a controversial agreement, which has come under strong criticism from the Opposition and some members of the Government as well.

Foreign Ministry sources told The Sunday Morning that Sri Lanka and the US are still negotiating the deal and nothing has been finalised.

The Status of Forces Agreement (SOFA) was among the topics discussed between Foreign Minister Tilak Marapana and the US Government during his recent visit to Washington DC.

The agreement was initially signed in 1995 in Sri Lanka allowing the US military to be in Sri Lanka for military exercises or other official duties.

The US has now sought to amend the 1995 agreement by including fresh clauses which give US troops additional privileges.

US Embassy Spokesperson Nancy VanHorn told The Sunday Morning that as democracies in the Indo-Pacific, the US and Sri Lanka have a built a strong partnership that enhances security for the people of the two countries and for the region.

She recalled that in 1995, the US and Sri Lanka concluded an agreement on the status of US Department of Defence (DoD) military personnel and civilian employees who visit Sri Lanka for exercises or official duties.

“We have proposed amending this agreement to include some additional privileges, such as the mutual recognition of professional licenses, how US military personnel and DoD civilians can visit Sri Lanka, fees for support services rendered, and regulations for hiring foreign and local contractors,” she said.

VanHorn said the updates will streamline processes already in place and will facilitate collaboration with the Sri Lankan military on counter-terrorism practices, maritime security, and other issues of common concern.

‘Standard practice’

The Opposition accused the US of attempting to reach such an agreement with Sri Lanka with sinister motives.

However, VanHorn noted that these types of agreements are standard practice between global partners and the US, which has similar agreements with more than 100 other nations around the world.

“These agreements facilitate training, exercises, and exchanges, as mutually agreed and for the benefit of both countries, by standardising routine administrative procedures,” she said.

One of the biggest concerns of the Opposition and others is that the US will be able to use the agreement to establish a military base in Sri Lanka and protect US troops in the event they face allegations on Sri Lankan soil.

However, the US Embassy insisted that the agreement will not permit the US to establish a base in Sri Lanka or station troops in the country.

“In no way would it permit the US to base forces or equipment in Sri Lanka. Sri Lanka would retain all its sovereign rights to approve or deny entry or exit of US personnel, vessels, and aircraft into Sri Lanka’s territory and territorial waters/airspace,” VanHorn said.

Minister of Public Enterprise, Kandyan Heritage, and Kandy Development Lakshman Kiriella said that while the original agreement signed between the US and Sri Lanka in 1995 notes the exemption from criminal jurisdiction of the host country, Marapana informed the US, during his recent visit to Washington, that Sri Lanka will find it difficult to grant immunity from criminal jurisdiction to US forces.

Further, he said that it was also stated that it will be difficult to implement the 1995 SOFA agreed through an exchange of notes due to the enforcement of the Diplomatic Privileges Act No. 9 of 1996.

The Government of Sri Lanka signed the initial Acquisition and Cross-Service Agreement (ACSA) with the US in 2007. The signatories to the 5 March 2007 agreement were Ambassador of the US to Sri Lanka Robert Blake and former Defence Secretary Gotabaya Rajapaksa.

The agreement is valid for a period of 10 years and thus was due to expire on 6 March 2017.

A new draft ACSA was proposed by the US in July 2016. In general, the contents are similar and no major changes were observed in the text. However, a key difference was with regard to timelines, in that the proposed new ACSA will not require renewal, meaning that it will remain in force until either party gives 180 days’ notice of its intention to terminate the agreement.

“This is not a military agreement, it means increased logistic cooperation. The provision of logistic support, supplies, and services has been defined in the agreement including food, water, transportation including airlift, petroleum, oils, lubricants, clothing, communication services, medical services, ammunition-based operations support and construction of incident-to-base operation support, storage services, and the use of facilities, training services, spare parts, components, repair, maintenance services, collaboration services, and port services.

The term also includes the temporary use of general-purpose vehicles and other non-lethal items of military equipment where such lease or loan is permitted under national laws and regulations of the parties.

Over 100 SOFA deals signed

The US has been party to multilateral and bilateral agreements addressing the status of US armed forces while present in a foreign country. These agreements, commonly referred to as Status of Forces Agreements (SOFAs), generally establish the framework under which US military personnel operate in a foreign country, addressing how the domestic laws of foreign jurisdiction shall be applied toward US personnel while in that country.

The US is currently party to more than 100 agreements that may be considered SOFAs.

Formal requirements concerning the format, content, length, or title of a SOFA does not exist. A SOFA may be written for a specific purpose or activity, or it may anticipate a long-term relationship and provide for maximum flexibility and applicability. It is generally a stand-alone document concluded as an executive agreement.

A SOFA may include many provisions, but the most common issue addressed in it pertains to which country may exercise criminal jurisdiction over US personnel.
Other provisions that may be found in a SOFA include, but are not limited to, the wearing of uniforms, taxes and fees, carrying of weapons, use of radio frequencies, licenses, and customs regulations.

SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement with a particular country. A SOFA itself does not constitute a security arrangement; rather, it establishes the rights and privileges of US personnel present in a country in support of the larger security arrangement. SOFAs may be entered based on authority found in previous treaties and congressional actions or as sole executive agreements.

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