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.”
