THE POHOTTUWA GOVERNMENT OF SRI LANKA Part 2 C8g
Posted on November 14th, 2020

KAMALIKA PIERIS

TREATY OBLIGATIONS

The Sri Lankan intelligentsia wanted clarification about these US Agreements. This was the first time that the Sri Lanka public had even thought about such matters.  Until now the intelligentsia had shown no interest in any Agreements that the government was signing.   They trusted the government .This time it was different.   The intelligentsia were concerned as to what mess Yahapalana government was getting them into.  They made inquiries.

The three US Agreements under discussion are treaties between two sovereign states, they were told. A treaty is different from a contract. A treaty is governed by international law and in the case of a dispute they have to go before an international court. A contract is governed by domestic law and is enforced in the domestic courts.

A treaty can be labeled under different names, ‘compact’, ‘convention’, ‘agreement’, ‘covenant,’ ‘accord,’ ‘protocol,’ etc .What is important is whether the agreement is intended to create international legal rights and obligations. Laws relating to treaties between states are governed by the Vienna Convention of 1969.

These bilateral agreements are legally binding, Palitha Kohona told a concerned audience at a well attended OPA seminar on Treaties. Treaties are binding at international law. Once you enter into an agreement you are bound by it.  International law also requires that the treaty must be implemented faithfully by the parties. Failure to comply with the provisions of a treaty could result in sanctions.

Once concluded, a party cannot simply walk away from a treaty. It remains binding. Thus it would not be possible for Sri Lanka to walk away from the MCC or any other treaty, once it is signed. Therefore a country must not enter into a treaty if it has any doubts. You can get out of a treaty only on the treaty’s own conditions. With superpowers there is no easy way out of it, Kohona said. In Sri Lanka we sign these things and only realize the implications later. 

The law relating to treaties says that the Head of state, the Head of government and the Minister for Foreign affairs can sign on behalf of the country.   In USA these officials cannot sign a treaty until US Senate had approved it. Sri Lanka has no such safeguards, Kohona observed.  

Once a treaty is signed there are treaty obligations.” One school of thought says treaty obligations must be respected regardless of the circumstances under which they are signed. Another school of thought thinks that the legitimacy of agreements/treaties depends on circumstances.

Article 46 (1)  of the Vienna Convention stated that  once a treaty is signed,  a country can back out  saying that it was against their laws, only if  that law was one of fundamental importance”.

Ladduwahetty said that in his opinion, an “internal law of fundamental importance” is violatedin Sri Lankawhen agreements/treaties are concluded by the Head of State without consulting Parliament.

 In Sri Lanka they should sign only when the treaty has got the consent of two-thirds of members of Parliament and the consent of the Executive. Any agreement/treaty signed in the name of the people by the Sri Lanka‘s Head of state, Prime Minister or Foreign minister without the consent of Parliament amounts to a violation of the sovereignty of the people.

Ladduwahetty said that the Supreme Court must rule, once and for all, on the procedures that should be followed when agreeing to bi-lateral treaties. The procedures must be in accordance with the Constitution.  This ruling should be a common ruling that it would apply to all agreements/treaties.

Tamara Kunanayagam added her observation. There may be an International law of Treaties but this cannot go against the UN Charter. We are entitled to protect our resources, our land. There is a right to permanent sovereignty, said Tamara Kunanayagam.” Future governments must say it will not recognize the treaties signed by Yahapalana government.

The alarmed intelligentsia were reminded that ACSA was already signed. The next in line was MCC. MCC is a treaty, the intelligentsia were told. Further, the MCC is a state organization. its Board of Governors consist of Secretary of state, Secretary of the Treasury, US Trade Representative, Administrator of USAID and four private sector members appointed by the US President with the advice and consent of the US Senate. The CEO is appointed by the US President. The MCC is therefore   a part of the US foreign policy.

The intelligentsia were not prepared to give in. They debated   on how to get out of these treaties, when the next President is appointed in November 2019.  Military treaties will bring in troops. If the Americans come, how to get rid of them, pondered the intelligentsia. Land grabbing is a violation of international law but it may be difficult to throw them out, if US leases our land. The best way, the intelligentsia decided was to keep them out at the start itself.

STOP USA”

A new organization named STOP USA was started in Colombo in June 2019  to highlight the danger   of these Agreements. The objective was to prevent the three USA treaties.”  At its inaugural meeting, speakers including MP Wimal Weerawansa, Pivithuru Hela Urumaya leader MP Udaya Gammanpila, MP Vasudeva Nanayakkara and former lawmakers A.L.M. Athaulla, Mohammed Muzammil and Sarath Weerasekera.

The speakers said that the US   had commenced work on these agreements in 1995, soon after Chandrika Kumaratunga’s election as President. US then gradually expanded its military-to-military relations. ACSA and SOFA were meant to allow the US to set up base here.  The various US military units that would be allowed access were listed in the agreements.

These Agreements were the biggest threat Sri Lanka has faced since it gained Independence.  It would affect Sri Lanka’s sovereignty and territorial integrity. Today, the US plan has received the backing of Prime Minister Ranil Wickremesinghe and Finance Minister Mangala Samaraweera, these speakers said.

The organization was joined by many lawyers, politicians and artists.The organization seems to be going strong. In August there was a Stop USA” meeting at Gampaha, reported the media.

Mangala Samaraweera spoke up on behalf of the Agreements. He defended SOFA and ACSA. These were military to military” agreements, he said. They were harmless” and was not a danger.”

Samaraweera alleged that those opposed to such agreements were bent on undermining bilateral relations with the US, a country that always stood by Sri Lanka. He cautioned that Sri Lanka would lose its exports to the US and also new employment opportunities if these Agreements were not accepted. He drew attention to Sri Lanka’s dependence on exports to the US, particularly garments. (continued)

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