YAHAPALANA AND THE UNITED STATES OF AMERICA Part 8a
Posted on July 30th, 2019

KAMALIKA PIERIS

STATUS OF FORCES AGREEMENT (SOFA)

FULL TEXT   OF DRAFT AGREEMENT.

Here is the full text of the draft Status of Forces Agreement (SOFA) dated 28TH August 2018, which the Government of Sri Lanka is negotiating with the United States. (Sunday Times 30.6.19)   

 (1)   The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka and has the honour to refer to recent discussions between representatives of our two Governments regarding issues related to United States (U.S) military and civilian personnel identified as members of the U.S Department of Defence, respectively, hereafter referred to collectively as U.S. personnel) and U.S. contractors (defined as non-Sri Lankan companies and firms, and their employees who are not nationals of Sri Lanka, under contract to the U.S. Department of Defence who may be temporarily present in Sri Lanka in connection with ship visits, training, exercises, humanitarian activities, and other activities mutually agreed. Companies and firms, and their employees, not under contract with the U.S. Department of Defence shall not receive any privileges and exempt under this Agreement.

(2)   As a result of these discussions, the Embassy proposes that U.S. personnel be accorded the privileges, exemptions, and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961, that U.S. personnel may enter and exit Sri Lanka with U.S. identification and with collective movement or individual travel orders; that Sri Lanka shall accept as valid all professional licenses issued by United States, its political subdivisions, or States thereof to U.S. Personnel for the provision of services to authorized personnel, and that Sri Lankan authorities shall accept as valid, without a driving test or fee, driving licenses or permits issued by the appropriate U.S. authorities to U.S. Personnel for the operation of vehicles. The Embassy further proposes that the U.S. personnel be authorized to wear uniforms while performing official duties and to carry arms while on duty if authorized to do so by their orders.

(3)   The Government of Sri Lanka recognizes the particular importance of disciplinary control by U.S. Armed Forces authorities over U.S. personnel and, therefore, authorizes the Government of the United States to exercise criminal jurisdiction over U.S. personnel while in Sri Lanka.

(4)   The Embassy further proposes that the U.S. Department of Defence and U.S. personnel shall not be liable to pay any tax or similar charge assessed within Sri Lanka. The Government of the United States of America and Sri Lanka shall co-operate to take such measures as may be necessary to ensure the security and protection of U.S. personnel property, equipment, records, and official information in Sri Lanka. Such importation, exportation, and use shall be exempt from any inspection, license, other restrictions, customs duties, taxes or any other changes assessed within Sri Lanka. The Governments of the United States of America and Sri Lanka shall co—operate to take such measures as may be necessary to ensure the security and protection of US personnel, property, equipment, records, and official information in Sri Lanka.

(5)   The Embassy proposes that vessels and vehicles operated by or, at the time, exclusively for the US. Department of Defence may either, exit, and move freely within the territory of Sri Lanka, and that such vehicles (whether self-propelled or towed) shall be exempt from payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, exclusively for the U.S. Department of Defence shall not be subject to the payment of landing fees, or port fees, pilotage charges, lighterage, and harbor dues at facilities owned and operated by the Government of Sri Lanka. Aircraft owned and operated by or, at the time, exclusively for the U.S. Department of Defence shall not be subject to the payment of navigation, overflight, terminal or similar charges when in the territory of Sri Lanka. The U.S. Department of Defence shall pay reasonable charges for services requested and received at rates no less favorable than those paid by the Armed Forces of Sri Lanka. Aircraft and vessels of the U.S. Government shall be free from boarding and inspection.

(6)   The Embassy also proposes that the U.S. Department of Defence may contract for any material, supplies, equipment, and services (including construction) to be furnished or undertaken in Sri Lanka without restriction as to choose of contractor, supplier, or person who provides such material and supplies, equipment or services. Such contracts shall be solicited, awarded and administered in accordance with the laws and regulations of the Government of the United States of America. Acquisition of articles and services in Sri Lanka by or on behalf of the U.S. Department of Defence in connection with activities under this Agreement shall not be subject to any taxes or similar charges in
Sri Lanka.

(7)   The Embassy further proposes that U.S. contractors shall not be liable to pay any tax or similar charge assessed within Sri Lanka in connection with activities under this Agreement and that such contractors may import into, export out of, and use Sri Lanka any personal property, equipment, supplies, material, technology training, or services in the fulfillment of contracts with the U.S. Department of Defence in connection with activities under this Agreement. Such important, exportation, and use shall be exempt from any licence, or other restrictions, customs duties, taxes, or any other charges assessed within Sri Lanka.

(8)   The Embassy proposes that U.S. contractors shall be granted the same treatment as U.S. personnel with respect to professional and driver’s licences.

(9)   The Embassy proposes that U.S. personnel shall have freedom of movement and access to and use of mutually agreed transportation, storage, training, and other facilities required in connection with activities under this Agreement.

(10) The Government of Sri Lanka recognizes that it may be necessary for the U.S. Armed Forces to use the radio spectrum. The US Department of Defence shall be allowed to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union). This shall include the right to utilize such means and services as required to ensure full ability to operate telecommunication systems. Use of the radio spectrum shall be free of cost to the U.S. Government.

(11) The Embassy proposes that the parties waive any and all claims (other than contractual claims) against each other for damages to, loss of, or destruction of the other’s property or injury or death to personnel of either Party’s armed forces or their civilian personnel arising out of the performance of their official duties in connection with activities under this Agreement. Claims by third parties for damages or loss caused by U.S. personnel shall be resolved by the U.S. Government in accordance with U.S. laws and regulations.

(12) Further, the Embassy proposes that this Agreement, upon its entry into force, shall supersede the Agreement regarding the status of U.S. military personnel and civilian employees of the Department of Defence who may be present in Sri Lanka for exercises or other official duties, effected by exchange of notes at Colombo, February 9 and May 16, 1995, which entered into force May 16, 1995.

(13) Finally, the Embassy proposes further that our two governments, or their designated representatives, may enter into implementing arrangements to carry out the provisions of this Agreement.

(14) If the foregoing is acceptable to the Government of the Democratic Socialist Republic of Sri Lanka, the Embassy proposes that this note, together with the Ministry’s reply to that effect, shall constitute an agreement between the two Governments, which shall enter into force on the date of the Ministry’s reply.

(15)         The Embassy of the United States of America avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka the assurance of its highest consideration. (END OF DRAFT AGREEMENT.)

CLAUSES EXPLAINED.

Sunday Times thereafter explained the clauses saying, the public can now decide whether the SOFA is harmless” or inimical to the national interests of Sri Lanka.   A number of these demands would impinge on Sri Lanka’s sovereignty, Sunday Times   said.

  • United States personnel (troops, contractors etc) be accorded the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of the US Embassy. They may enter and leave Sri Lanka with US identification individually or collectively. (Note: This means they could enter Sri Lanka without Passports or Visas)
  •  Sri Lanka shall accept, without a driving test or fee, driving licences or permits issued by the appropriate US authorities to US personnel. US personnel be authorised to wear uniforms whilst performing official duties and carry arms while on duty.
  • Disciplinary control by US Armed Forces authorities over US personnel and, therefore, the Government of the United States to exercise criminal jurisdiction over US personnel whilst in Sri Lanka. (Note: This clearly means Sri Lankan laws do not apply to them.)
  • US personnel not be liable to pay tax or similar charge assessed within Sri Lanka. The Government of the United States of America and Sri Lanka shall co-operate to take measures to protect US personnel property, equipment, records, and official information in Sri Lanka. (Note: They want the Government to protect their assets free of charge)
  • Vessels and vehicles operated by or, at the time, exclusively for the US Department of Defence may either, exit and move freely within the territory of Sri Lanka. Such vehicles shall be exempt from payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, exclusively for the US Department of Defence shall not be subject to payment of navigation, overflight, terminal or similar charges when in the territory of Sri Lanka. The US shall pay reasonable rates for services requested and received at no less favourable than those paid by the Armed Forces of Sri Lanka. Aircraft and vessels of the US Government shall be free from boarding and inspection. (Note: This is a blatant infringement of the sovereign right of a nation)
  • The US Department of Defence may contract for any material, supplies, equipment and services (including construction) to be furnished or undertaken and shall not be subject to any local taxes. (Note: Makes clear that construction work would be required in Sri Lanka. What do they propose to construct?)
  • US contractors will not be liable to pay any tax or similar charges. Property, equipment, supplies, material, technology training, or services in the fulfilment of contracts with the Department of Defence and use shall be exempt from any licence, or other restrictions, customs duties, taxes or any other charges assessed within Sri Lanka. (Note: This again is a blatant infringement of the sovereign right of a nation to impose taxes and ensure their rules are followed)
  • The Government of Sri Lanka recognises that it may be necessary for the US Armed Forces to use the radio spectrum. The Department of Defence shall be allowed to operate its own telecommunication systems. This shall include the right to utilise such means and services as required to ensure full ability to operate telecommunication systems. Use of the radio spectrum shall be free of cost to the US Government. (Note: This simply means they will have their own radio communications network parallel to those used by the Army, Navy, Police and the Coast Guard)
  • Waive any claims (other than contractual claims) against each other – and  damage or loss shall be resolved by the US Government in accordance with US laws and regulations. (Note: This is also an infringement of Sri Lanka’s sovereignty. Sri Lanka’s laws will not apply to US troops and those associated with them. For the troops and others, it would be just as good as moving around in any part of the United States)
  • The US is seeking that aircraft and vessels of the US Government to be free from boarding and inspection. This means none of the state security arms, like the Navy, Coast Guard or the Customs can board any US military vessel or aircraft when it is in a Sri Lankan airport or sea port — or even vehicles on land and helicopters, an internationally accepted sovereign right of a country.
  • The US is also seeking authorisation for its troops to wear uniforms whilst on duty” in any part of Sri Lanka, carrying arms and radio communications equipment. (Both in terms of the Sri Lanka Constitution and normal laws, only the armed forces and the Police are empowered to carry out this task. The only exceptions are Sri Lankans who are authorised by licence)
  • The US wants exemption from licence, Customs duties, taxes and any other charges within Sri Lanka.
  • Washington wants US troops and contractors to be allowed to enter and leave Sri Lanka, individually or collectively, with the use of only their US identification. This will mean they will carry no passports or visas.
  • 3 party claims by us, only under US Law. They  run over one of us,  and kills, it will be under US law.
  • thay can do anything to our forces, our army can be killed. our movements can be restricted.

 THE DIPLOMATIC NOTE

Lasanda Kurukulasuriya commented  on the agreement.  She said, the SOFA under negotiation relates to a confidential Diplomatic Note from the US embassy to the foreign ministry dated 28th August 2018, said Lasanda.. The US embassy ‘reminds the GSL’ that “as a result of these discussions the Embassy proposes that U.S. personnel be accorded the privileges, exemptions, and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations; that U.S. personnel may enter and exit Sri Lanka with U.S. identification and with collective movement or individual travel orders”..

Lasanda observes: “The Government of Sri Lanka recognizes the particular importance of disciplinary control by U.S. Armed forces authorities over U.S. personnel and, therefore, authorizes the Government of the United States to exercise criminal jurisdiction over U.S. personnel while in Sri Lanka.””…the U.S. Department of Defense and U.S. personnel shall not be liable to pay any tax or similar charges within Sri Lanka. The U.S. Department of Defense and U.S. personnel may import into, export out of, and use in Sri Lanka any personal property, equipment, supplies, material, technology, training, or services in connection with activities under this agreement. … They shall be exempt from any inspection within Sri Lanka.”

“The Embassy proposes that vessels and vehicles operated by or, at the time, exclusively for the U.S. Department of Defense may enter, exit, and move freely within the territory of Sri Lanka. The discussions so far held between the GSL and USG in Colombo and, most recently in Washington highlighted “Aircraft and vessels of the U.S. Government shall be free from boarding and inspection.”

The Embassy also proposes that the U.S. Department of Defense may contract for any material, supplies, equipment, and services (including construction) to be furnished or undertaken in Sri Lanka without restriction as to choice of contractor, supplier, or person who provides such material, supplies, equipment or services. Such contracts shall be solicited, awarded and administered in accordance with the laws and regulations of the Government of the United States of America. Acquisition of articles and services in Sri Lanka by or on behalf of the U.S. Department of Defense in connection with activities under the Agreement shall not be subject to any taxes or similar charges in Sri Lanka.”The Embassy proposes that U.S. personnel shall have freedom of movement and access to and use of mutually agreed transportation, storage, training, and other facilities required in connection with activities under this Agreement.” .

The Government of Sri Lanka recognizes that it may be necessary for the U.S. Armed forces to use the radio spectrum. The U.S. Department of Defense shall be allowed to operate its own telecommunication system. This shall include the right to utilize such means and services as required to ensure full ability to operate telecommunication system. The use of the radio spectrum shall be free of cost to the U.S Government.The classified diplomatic communication dated 28 August 2018 sent to the Sri Lanka Ministry of Foreign Affairs at the conclusion states that (Quote) If the foregoing is accepted to the Government of the Democratic Socialist Republic of Sri Lanka, the Embassy proposes that this note, together with the Ministry’s reply to that effect, shall constitute an agreement between the two Governments, which shall enter into force on the date of the Ministry’s reply.” (End  of Quote)

There is further information regarding the contents of the SOFA in relation to ‘contractors’ brought in by the US Department of Defense:”The Embassy further proposes that U.S. contractors shall not be liable to pay any tax or similar charge assessed within Sri Lanka in connection with activities under this Agreement and that such contractors may import into, export out of, and use in Sri Lanka any personal property, equipment, supplies, materiel, technology, training, or services in fulfillment of contracts with the U.S. Department of Defense in connection with activities under this Agreement. Such importation, exportation, and use shall be exempt from any license, other restrictions, customs duties, taxes, or any other charges assessed within Sri Lanka.””The Embassy proposes that U.S. contractors shall be granted the same treatment as U.S. personnel with respect to professional and drivers’ licenses.”

“Sri Lankan authorities shall accept as valid, without a driving test or fee, driving licenses or permits issued by the appropriate U.S. authorities to U.S. contractors of the operation of vehicles.”The US embassy has repeatedly asserted that the US has ‘no plans to establish a military base’ in Sri Lanka. But then, in recent times that’s not the approach used by the superpower in extending its military footprint. Nowadays the US gets its ‘partners and allies’ to share part of the burden of meeting shared goals. The US’s mantra of a ‘free and open Indo Pacific’ illustrates the strategy, with Japan, India and Australia asked to join in pushing back against China’s growing maritime power. Meanwhile the US finds it useful (and economical) to negotiate bilateral agreements with individual strategically located states.

SALLYPORT

In the backdrop of the ACSA, already signed and a SOFA deal pending, security companies in the US are looking for personnel in Sri Lanka.Sallyport, a US firm offers a comprehensive range of global protective, security and mission support solutions to the US Government, foreign allied governments, and a wide range of private and commercial clients.In a note to recognised Sri Lankan security companies, Sallyport has on offer jobs which are full time and hourly.The note, among other matters, says: As a part of our Professional Services group at Michael Baker Global Services, a whole owned subsidiary of Caliburn International, the Cleared American Guard (CAG) is professionally trained to protect the security integrity of the construction site and responsible for protection of building materials, furniture, fixtures, and other items. CAGs will perform access control functions at all vehicle and pedestrian entrances to the site on a 24/7 basis throughout the construction or project period.” (Sunday Times 7.7.19)

The note adds:

  • Denies introduction of prohibited materials such as explosives, weapons, electronic devices, or other items as specified by the Accrediting Official (AO) or designee.
  • Conducts random inspections of all site areas to ensure no prohibited materials have been brought on to the site.
  • Ensures that all suspicious materials or incidents be brought to the attention of the site security manager or construction surveillance technician.
  • Monitors all non-cleared guards provided by the construction company.
  • Maintains and operates the Secure Storage Area (SSA) established by the assigned construction company within the construction site footprint where they will store construction materials and equipment that will be used for the project.

What are the key skills required for this role?

  • Must possess the ability to exercise discretion and good judgment to make logical and effective decisions.
  • A CAG will typically progress onto one of our next construction projects or with the required experience be promoted to a Construction Surveillance Technician or Team Lead. 

Minimum qualifications and education requirements:

  • You must be a U.S. citizen with an active TOP Secret clearance. You must have at least 3 years’ experience in a security field. Candidates with overseas experience are highly preferred.
  • Selected candidates will be sponsored for required 40-hour CAG training. Candidates with active DOS CAG certification are preferred.  You must be capable of independent decision making, possess a high degree of individual initiative and be able to function with minimal supervision.
  • You need to be able to stand for 8 hours, work outdoors in all seasons and lift up to 25 pounds. ( CONTINUED)

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