by Tamara Kunanayakam, Former Ambassador/Permanent Representative to the United Nations in Geneva
[T]here is no friendship when nations are not equal,when one has to obey another and when one only dominates another.” Jawaharlal Nehru, the Prime Minister of India Closing Speech at the Asian-African Conference, Bandung, 1955
Acquisition and Cross Servicing Agreement (ACSA), the Status of Forces Agreement (SOFA) and Millennium
Challenge Compact (MCC) are agreements integral to US national security and
self-defense strategies, whose goal is American Self-Preservation,” an
ideology incompatible with the Charter of the United Nations and international
law.
MCC, crude and
dogmatic alignment with US National Security Strategy
A clarification of MCC’s role in America’s national security
and ‘self-defense’ strategies is required. The alignment is crude and dogmatic,
designed to advance US influence globally and secure allies and partners by
imposing upon developing countries, mostly those branded failed states,”
fundamental political, legal and economic reform of the state apparatus
and a ‘rule of law’ that benefits US interests in the long-term.
MCC’s central role was ‘codified’ in the 2002 National
Security Strategy of US President George W. Bush, which for the first
time contained the controversial doctrine of ‘pre-emptive’ war. It
elevated development aid to the level of defense and diplomacy as one of the
three pillars of the global War on Terror.” The current President’s
2017 National Security Strategy (NSS) links US military strategies to
the imperative of political and economic reform, claiming consolidation of its
military victories” were made possible only bypolitical and
economic triumphs built on market economies and fair trade, democratic
principles, and shared security partnerships”.
One of the most novel and coercive
features of MCC is the ‘pre-emptive’ method used to administer aid – it will
reward countries that have demonstrated real policy change and challenge those
that have not to implement reform.” Before receiving aid, the country must
successfully pass 16 eligibility criteria devised by the Bush Administration
ranging from civil liberties to ‘days to start a business.’ In a March
2018 speech on US-Africa relations, the then US Secretary of State, Rex
Tillerson, described the coercive essence of MCC that goes far above and beyond
the particular project targeted. Referring to a $524
million compact signed with Cote d’Ivoire to improve its education and
transportation sectors, Tillerson declared, This was only possible after
the country had implemented policies to strengthen economic freedom, democratic
principles, human rights, and to fight corruption. Spurring reforms before a
dollar of U.S. taxpayer money is even spent is the MCC’s model.”
The 2017 National Security Strategy reaffirms MCC as
a coercive tool to bring fragile” and developing countries under
America’s influence to counter Russia and China, by achieving radical
transformation of the recipient State, based on free-market principles,
privatization, and good governance: “We already do this through the
Millennium Challenge Corporation, which selects countries that are committed to
reform and then monitors and evaluates their projects.” MCC is “a
model to achieve greater connectivity” in the so-called Indo-Pacific.
It is notable that unlike the MCC of the Bush era, the
Trump Administration will no longer provide MCC assistance” in the form of
“grants,” but “loans.”
American self-preservation and the right
of self-defense
The US-Sri Lanka ‘defense’ agreements, which logically flow
from the infamous US-led Human Rights Council resolution 30/1, are explicit
recognition by the Ranil Wickramasinghe regime of America’s global leadership
and its hegemonic status, which commit the country to a global unilateral system
for America’s ‘self defense’.
The US view of ‘self-defense’ is rooted in ‘self-preservation’
and not on some reciprocal relationship between equal subjects of international
law, but on combatting a threat to its own interests. It is based on the
ideology of ‘American Exceptionalism’ that arrogates to itself exclusive
prerogatives and special responsibilities for global governance, which continue
to guide US national security and defense strategies. The US President’s 2017 National
Security Strategy (NSS) and the 2019 Indo-Pacific Strategy Report
(IPSR),bothaffirm US global leadership is grounded in the
realization that American principles are a lasting force for good in the world.”
The notion of American Exceptionalism was best
expressed by former US Secretary of State Madeleine Albright, “If we
have to use force, it is because we are America; we are the indispensable
nation. We stand tall and we see further than other countries into the future.”
In May 2015, the then US Secretary of State, John Kerry, claimed America’s
leadership of the ‘Indo-Pacific’ because we have a strong economy
and an ability to be able to project”. It is the worldview of a global
hegemon that sees itself destined by divine providence for full-spectrum
domination – air, maritime, land, outer space, and cyberspace, and
full-spectrum force (2017 NSS).
Historically, self-preservation” and self-defense” was
used by Nazi Germany to occupy neutral Belgium, neutral Norway, neutral
Netherlands, neutral Denmark, neutral Luxembourg, and Poland.
Doctrine of pre-emptive, preventive wars
The 2002 US National Security Strategy (NSS) under
President Bush introduced the controversial doctrine of pre-emptive and preventive
war, using the 9/11 terrorist attacks as a pretext, which provided the new
enemy in the form of terrorism. The existence of terrorists, described as the
unknown unknown,” by the then Defense Secretary Donald Rumsfeld, served to
justify a unilateral right to pre-emptive and preventive use of force in
‘self-defense’ against states even before an armed attack” occur. The
US argument was an act of violence by the terrorists amounted to an armed
attack.”
In Afghanistan, for 18 years, the US continues to claim
self-defense, extending the right to preventing the return to power of the
Taliban. Such unilateral intervention is expressly forbiddenby the UN
Charter and unequivocally rejected by both the International Court of Justice
and the Security Council.
The US justifies the illegal act by an abusive
interpretation of the right of self-defense” in Art. 51 of the UN
Charter, the only exception in the Charter to the use of unilateral force.
Contrary to US claims, however, self-defense under the Art. 51 is permitted
only under narrowly defined conditions: (a) it is an armed attack”; (b) the armed
attack actually occurs,” and is not just an imminent or potential threat”;
(c) the state using force was the object of an attack on its own territory, not
elsewhere, as a sine qua non; (d) it is a temporary right until the
Security Council has taken measures necessary to maintain international peace
and security”; (e) it is proportional; (f) it does not affect the authority and primary responsibility of the
Security Council; (g) it must be at the request of the victim; (h) the victim must request assistance from the state
claiming to act in collective self-defense.
Committing Sri Lanka to the logic of war, not the logic of
peace
The 2018 US National Defense Strategy that translates
into military terms the strategic objectives outlined in the US President’s
2017 National Security Strategy is based on the indefensible illogical
logic that the surest way to prevent war is to be prepared to win one,”
which is antipodal to the logic that drives the UN collective security system –
that war must be prevented at all costs to achieve international peace and
security. The documents are replete with bellicosity – enhancing joint
lethality,” credible combat-forward posture,” forward force manoeuvre,” forward deployment”…
It is a clarion call to war, but not to any kind of war. It will be a more
lethal war – more deadliness, more carnage and more destruction, to be fought
together with a robust
constellation of allies and partners.”
It must be recalled that ACSA, SOFA, and MCC are part and
parcel of the US concept of a Free and Open Indo Pacific” (FOIP), a
sinister security system whose objective is to impose
on countries of two distinct regions and Oceans, a single US-led geographic and geopolitical order founded on rules determined by
Washington. The concept not only excludes China from the region as a hostile existential threat to US interests, but is aimed at putting in place a networked security
architecture” under US leadership to fight and win” a war against China.
China as principal adversary is named in the 2017 National
Security Strategy, the Pentagon’s 2018 National Defense Strategy,
and 2019 Indo-Pacific Strategy Report.
By entering into such US ‘self-defense’ agreements in the
context of big power rivalry and the threat
of war, the Ranil Wickramasinghe regime is
committing Sri Lanka to the logic of war, not the logic of peace, a partner in
crime that poses a grave threat to regional and
international peace and security and drags Sri Lanka into a war not of its own
making.
This warmongering vision of the ‘global’ order is shared by
the ruling UNF Presidential candidate Sajith Premadasa as reflected in his 2
October exchange with foreign diplomats at which he outlined his foreign policy
objectives not in terms of Sri Lanka’s national interests, but in terms of
Washington’s FOIP strategy: open trade,” freedom of navigation,” air and
maritime connectivity,” rules-based world order,” and violent extremism”.
However, it was unequivocally rejected by Sri Lanka’s
opposition party leaders, by letter of 9 August 2019 addressed to the Secretary
General of Indian Ocean Rim Association, demanding that the UN
Charter-based rule of law be restored in the Indian Ocean by, inter alia,
implementing the UN Declaration of the Indian Ocean as Zone of Peace,
which designates the Indian Ocean, for all time, as a zone of Peace, together
with the airspace above and the ocean floor subjacent thereto.
The Declaration, it must be recalled, was adopted at the
initiative of Sri Lanka, joined by Tanzania, backed by the Non-Aligned
Movement. While preserving free and unimpeded
use of the zone by the vessels, whether military or not, for all nations in
accordance with international law, it called on the “great powers” to eliminate from
the Indian Ocean “all bases, military installations and logistical
supply facilities, the disposition of nuclear weapons and weapons of mass
destruction and any manifestation of great power military presence… conceived
in the context of great power rivalry,” and halt “further
escalation and expansion of their military presence in the Indian Ocean.”
The Declaration also calls on littoral and hinterland States, the Permanent
Members of the Security Council and other major maritime users of the Indian
Ocean to enter into consultations to ensure that, inter alia, warships and military aircraft would
not use the Indian Ocean for any threat or use of force against any littoral or
hinterland State.”
Threat to peace and security
Sri Lanka is committing itself not to defending its own
national interests, its sovereignty, independence and territorial integrity,
but to combatting threats to US prosperity and security,” which are
named in NSS and NDS as the revisionist powers” China and Russia, the rogue
regimes” North Korea and Iran, and ‘transnational terrorism.’ None of the
countries mentioned pose a threat to Sri Lanka’s national interests. On the
contrary, Sri Lanka has excellent relations with all four countries within the
framework of the United Nations and close bilateral ties with China, Russia and
Iran.
However, the ‘defense’ agreements involve the use of Sri
Lanka’s territory, airports, harbours, defense installations, and
infrastructure, for transport of military equipment, training and joint
operations with Sri Lankan forces, and other activities, known and unknown, to
enhance joint lethality” in
preparation for an act of aggression against one or more friendly states in the
‘Indo-Pacific’. In doing so, Sri Lanka will find
itself a partner in crime and potential target of reprisal or retaliation,
posing a grave threat to Sri Lanka’s security.
It was not so long ago that British occupied Ceylon was
targeted by Japanese bombs, during World War II, characterized by the
independence movement as an imperialist war, which resulted in the panicked
fleeing of civilian population to India by boat. The Japanese military raids
also took place on an Easter Sunday, in 1942.
The threat to Sri Lanka’s security will not only come from
outside. When US forces are permitted to freely roam the land, in their
vehicles, without permission, armed, in uniform and with impunity, Easter
Sunday type carnage or protests against US occupation could result in Sri Lanka
itself becoming America’s military target in the name of self-defense”.
Bilateral agreements, inherently unequal
The so-called partnership” entered into with Washington is
not between equals.
Bilateral agreements between a global hegemonic power and a
small developing country heavily indebted to international capital markets
dominated by the power and highly dependent on its market for exports, are
inherently unequal.
Since the Bush Administration’s ‘War on Terror,’ which
coincided with emerging powers challenging US hegemony, it
has increasingly resorted to preventive and pre-emptive unilateral
interventions imposing decisions on weaker states or to bilateralism with
significantly weaker states to establish US-led collective defense systems
(or collective self-defense” systems), which allow Washington to modify
international norms and rules or impose decisions not in accordance with
international law, thus, retaining its hegemonic status.
ACSA, SOFA and MCC are pre-existing institutional
arrangements that are an integral part of the US national security and national
defense strategies designed for ‘American Self-Preservation’ to achieve
strategic US goals and objectives grounded in the realization that American
principles are a lasting force for good in the world” (US National
Security Strategy, 2017). ‘American Self-Preservation’ is rooted not
on reciprocal relationships between equal subjects of international law, but on
combatting a threat to its own interests. Its sheer hegemonic power makes the
principle of reciprocity impracticable in bilateral negotiations with weaker
states such as ours, and it is illusory to believe that ACSA, SOFA and MCC can
be “re-negotiated” or “amended” for “mutual
benefit.”
Historically, bilateralism is associated with the commercial
policies of Hitler’s Germany; it is inherently discriminatory in contrast to
the system of collective security based on the UN Charter. The US shift to
bilateralism is also reflected in its free trade and economic agreements as an
important tool to coerce or reward potential allies and partners to support its
geopolitical agenda.
International collective security v. US-led collective
‘self-defense’
Washington’s unilateral vision of a US-led global order for
‘American Self-Preservation,’ justified by a divine mission, is
diametrically opposed to the universally recognised international order under
the UN Charter, based on sovereign equality and international cooperation,
respect for sovereignty, independence and territorial integrity of states.
Contrary to the US-led collective system for America’s
self-defense, the universally recognised collective security system under the
UN Charter seeks to prevent war – not make war – to achieve permanent universal
peace based on equal rights and justice for all, in accordance with the
purposes and principles of the United Nations.
The UN collective security system is a system without military alliances. It is based on multilateralism, the duty to cooperate, and respect for
the principle of sovereign equality of States. It expressly prohibits war, as it does the use of force or the
threat of use of force against the territorial integrity or political
independence of any state and all forms of foreign interference and
intervention in its internal affairs, including by the United Nations. The
Charter expressly prohibits any unilateral or preventive action outside of the
UN framework.
The primary responsibility for maintaining international
peace and security lies with the Security Council, with member States agreeing
that it acts on their behalf in carrying out its duties. Despite being at the
highest level of the international legal hierarchy, the Security Council is
required to act in accordance with the Charter, and not violate fundamental norms
of international law, customary international law, and treaties, in the
accordance with the UN Charter.
The generally binding international law obliges states to resolve any dispute
that may endanger international peace and security through peaceful means,
firstly by parties seeking a solution through negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice”. Any
member State or non-member may bring such a dispute to the attention of the
Security Council or the General Assembly. Legal matters should be brought
before the International Court of Justice of which all UN members are ipso facto parties.
The role of regional arrangements is strictly limited
to efforts toward pacific settlement of local disputes before referring them to
the Security Council. Regional arrangements are forbidden from taking
enforcement measures unless authorised by the Security Council.
The use of armed force in the case of collective action is
only permitted under the authority and supervision of UN Security Council, and
only once it has determined the existence of threats to the peace,
breaches of the peace, and acts of aggression” and that other measures
would be inadequate or have proved to be inadequate to “maintain or
restore international peace and security“.
Non-Aligned Movement and Friendly Relations
The Non-Aligned Movement, of which Sri Lanka is a founder
member, has contributed in no small measure to developing the universally
recognised principles on which friendly relations and cooperation among states
must be based, including the landmark UN Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations, which is
viewed as an authentic interpretation of the Charter.
The Movement recognised that State sovereignty, sovereign equality and international
cooperation are fundamental features of an international order that would
permit weaker states to exercise greater leverage over their former colonial
masters, and, toward this end, focused every effort to enhancing the role of
multilateralism, promoting a new international economic order based on justice
and equality, and strengthening the collective security system based on the UN
Charter.
The identity of the Non Aligned
Movement is not determined by the existence of Great Power rivalry. It reflects
the aspirations of newly independent states for an independent stand, based on
a shared history and a positive perception of their own identity and views. It
is essentially an anti-colonial, anti-imperialist alliance to defend their
collective interests, protect their freedom and dignity, prevent the
restoration of Western domination, support the struggles of peoples still under
foreign domination and occupation, promote the right to development, and advance
universal peace.
Their experience had shown that wars
and alien domination result only in exploitation, oppression, death and
destruction, not peace nor development nor social progress. At all cost, a
return to Western domination, recolonisation, and war had to be prevented, and
the ambitions of the most influential founders of the Movement was to unite the
newly independent states to bring their collective weight to bear on the side
of international peace, against war. The Movement opposed military alliances
and collective ‘defense’ pacts with Great Powers, especially in the context of
rivalry between them, since they would be designed to serve Great Powers
interests and allow them to intervene in their internal affairs. Such pacts
would only bring them closer to war and destruction, and strengthen the forces
of war, not peace.
India’s Prime Minister Jawaharlal Nehru, speaking at the
1955 Asian-African Conference in Bandung, energetically opposed US-led
collective defence pacts in Asia and the Middle East, including the short-lived
anti-Communist Southeast Asia Treaty Organization (SEATO), primarily aimed against
China. He argued membership in such pacts would only result in demeaning
oneself to a role of camp-follower of others” and hangers on,”
and lead to the loss of freedom and individuality”: It is most
degrading and humiliating to any self-respecting people or nation. It is an
intolerable thought to me that the great countries of Asia and Africa should
come out of bondage into freedom only to degrade themselves or humiliate
themselves in this way.”
The Non-Aligned Movement and the principles on which it is
based remain valid in a world that continues to be dominated by wars of
aggression, foreign occupation and domination, unilateralism, coercion,
intervention and interference in the internal affairs of sovereign states, and
in which the victims are from the global south and the perpetrators, the US and
its Western allies.
Sri Lanka’s decision to go to war if necessary for the
preservation of America against an emerging power identified with the
developing world, and the threat this poses to the interests of friendly
nations and to the multilateral collective security system that the Movement is
committed to strengthening, will result in the loss of Sri Lanka’s credibility
and its increasing isolation from the majority in the United Nations.
An isolated country is more vulnerable and easy prey to a
global hegemon.
International agreements incompatible with UN Charter are
null and void
International agreements that are incompatible with the
international obligations of the State under the Charter of the United Nations
and impede the fulfilment of the purposes and principles of the United Nations,
in accordance with the Charter, are null and void under international
law. Besides, secret treaties are incompatible with the UN Charter and
unenforceable.
ACSA, SOFA, and MCC violate Sri Lanka’s sovereignty and
undermine its ability to fulfil its international obligation to protect its population and ensure
respect for a broad range of their individual and collective rights: the right
to determine the system best suited for their needs and aspirations; the right
to exercise permanent sovereignty over their wealth and resources, including
maritime resources; their economic, social, cultural, civil and political
rights; the right to development; the right to a clean and safe
environment; and, the fundamental right to peace and to be free from war.
Sovereignty and its international corollary, sovereign
equality of states, are non-derogable peremptory norms of general international
law that form the basis of the United Nations Charter, which is akin to a world
Constitution. An international treaty that violates sovereignty is null
and void and, hence, non-negotiable.
In the event of conflict between a State’s obligations under
the Charter, which it is duty bound to fulfil in good faith,” and its
obligations under any other international agreement, Article 103 of the
Charter, the supremacy clause, stipulates that it is their obligations
under the present Charter that prevail. Subsequent treaties must conform to the
Charter and are invalid if they impede the achievement of its purposes and principles,
including its provisions concerning international peace and security, friendly
relations among states, international cooperation, promotion of human rights
and development.
Under Article 53 of the Vienna Convention on the Law of
Treaties, A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law.” The Vienna Convention
is a restatement of pre-existing law that the
International Court of Justice applies as generally applicable international
law having reached the level of customary international law.
Toward a new era of peace and prosperity in Sri Lanka and
internationally
MCC, ACSA, and SOFA are incompatible with the purposes and
principles of the United Nations, as developed in the landmark UN Friendly
Relations Declaration and in other international instruments, in accordance
with the Charter. If Sri Lanka is to pursue an independent foreign policy that
is in conformity with its international obligations, it cannot ignore those
principles.
There can be no benefit to Sri Lanka from a bogus “partnership”
that involves surrender of territory, institutions, infrastructure and
resources to a foreign power to perpetrate acts of aggression against third
states, thus also becoming a partner in crime and a potential target for
reprisals. There can be no benefit to Sri Lanka from its armed forces’
involvement in hostile acts against friendly nations for ‘American
Preservation’ There can be no benefit to Sri Lanka from fanning existing
bilateral hostilities that may lead to regional conflagration and pose a threat
to international peace and security. There can be no benefit to Sri Lanka if
another terrorist attack in Sri Lanka with alleged international links turns
the US forces against our own people.
If there is to be change rather than continuity, every
effort must be made to restore Sri Lanka’s sovereignty and promote peace,
development, and social justice, unequivocally rejecting externally imposed
agendas to transform Sri Lanka into a permanent aircraft carrier for
Washington’s hegemonic wars in the Indian and Pacific Oceans. Western dominance
must not be allowed to re-enter through the back door, taking the country and
the region into war, not peace, and into full spectrum domination”.
The UN Independent Expert on the promotion of a
democratic and equitable international order, Alfred de Zayas, in his full
report based on six years of work on the mandate, underlined the importance of
international efforts to peace: In a context of increasing confrontation
and competition among world powers, we must re-centre peace as a unifying
multilateral objective, and we must ensure that propaganda for war and
sabre-rattling are banned.”