Urgent need for a national policy on bilateral and multilateral agreements

 Implementation of international agreements

Agreements entered into with states and international organisations including UN subsidiary bodies (such as WTO, IMF), and multinational companies (such as Google) are binding and tested by the World Court or by way of arbitrations or goodwill of the parties as there is no executive body for the United Nations for the implementation of agreements by member states other than indirect methods such as sanctions.

Being a small nation depending on major powers and world and economic powers, Sri Lanka will have to be extremely cautious in this dangerous maze with traps and bombs laid down under the floor of the international arena. Equal parties will settle disputes by flexing muscles, but the small nations will be subjected to the law of the jungle – survival of the fittest! States consist of human beings. Human beings are full of selfishness and jealousy. Every nation will promote itself at the expense of the other!

The Nicaraguan Government in 1986 filed a case in the International Court of Justice which ruled against the USA in breach of customary international law. The USA refused to participate and blocked enforcement, forcing Nicaragua to withdraw the complaint in 1992. This is a classic example on complications in the implementation and enforceability of agreements between unequal parties under international law. 

India is a regional power closely aligned with USA expecting to look after their interests in the Indian Ocean against China and other competitors and regional/world powers. Now that we are forced to enter into the skeleton of the proposed unseen draft called ETCA, the danger deepens on Sri Lanka being the weaker, less knowledgeable and less organised party of the agreement. 

Indians are veterans in international affairs, UN and the system of the world court jurisdiction, having got involved in litigation. Honestly we are not; it is the reality! If we are knowledgeable, this is the time to seek the jurisdiction of the World Court for raping, poaching and destroying our most valuable seabed day in and out, possibly leaving us a valueless dead sea in few years. 

The Sri Lankan Government looks the other way, out of fear or respect or is unconcerned despite frequent visits of Indian politicians of all levels and diplomatic statements on all the areas other than the main threat to Sri Lanka – dispute on encroachment and illegal and forceful perching an invading our sea. There is a clear and a strong case against India on this continuous and forcible destruction of our valuable historical and natural resources of great scientific and business significance and value. 

With the 1987 India-Sri Lanka Accord, which is still in force, and the political involvements on the success of the current Government to come into power, whether we have a will and competency is a matter with which only unseen powers and proctors of our nation can help the citizen who entrusted the nation to the current trustees expected to rule the country on trust, because the world is not going to help us against mighty and powerful India.

There are many unfinished and contentious issues with India including CEPA, SAFTA, the 1987 Indo-Sri Lanka Accord and the international law implementations, to be discussed and sorted out before entering into ETCA which only a few privileged people have seen or read. 

According to an interview by President Sirisena with the GMOA President, even the President of Sri Lanka has not seen the draft scheduled to be signed mid-year despite protests or resistance from every corner. It is reported the Indian delegation is due with the Indian proposals. 

We have a long history of hurriedly-signed and ill-drafted international agreements from 1815 onwards including the Indo-Sri Lanka Accord that has introduced provincial councils, the white elephants eating into a major share of the national income and the income of the sweat of Sri Lankans employed abroad. 

India invaded Goa, then a part of Portugal, and captured the area forcefully. There was a protest by the UN and the member states; the mighty India managed it using its skills and enormity. When India forced the Army to Sri Lanka, it managed the international arena well, using its craft and experiences. In the event there is a situation on ETCA, it will possibly be another fishing issue.

Competency to draft international agreements

Our competency on drafting international agreements is limited. The truth and the reality is that neither the AG’s Department nor the Foreign Ministry is fully competent to prepare complicated agreements in a hurry. Let us not be shy and face facts. Let us turn on our Sri Lankan academics and international civil servants worldwide for our assistance with our resources. 

We have Sri Lankan intellectuals all over the world as retired world court judges, leading academics in universities and leaders in international organisations prepared to help Sri Lanka with the local professionals. Any such international document should be approved by Parliament and a body appointed to discuss with the professionals before it is ratified. 

The President, Prime Minister and other Ministers sign international agreements frequently without realising that the Sri Lankan citizen and the future generations are bound by the agreements. But given time and space we will be able to prepare documents of high standard.

National policy for bilateral and multi-lateral agreements

The treaty is an agreement under international law entered into actions on international law, in the form of agreements, protocols, covenants, conventions, or exchange of letters, which are legally binding until changed or dissolved. Bilateral agreements are with two nations and multilateral are more than one nation with international organisations. 

These instruments are provided by the Vienna Convention adopted on 22 May 1969 and implemented from 27 January 1980. The judicial organ of the UN is the International Court of Justice with the jurisdiction to the member nations in the resolution of disputes.

Even the United States should follow the procedure for a treaty to become law/binding by obtaining the approval from the senate seeking giving advice and consent it with a two-third majority. This is the State policy and the procedure in the formulation of international agreements in the USA, UK and many Western nations. The EU has a common foreign policy and ratification of an instrument is still difficult.

Historically we have blundered on the process and procedure on international agreements and it is a necessity to formulate a policy and a procedure on this issue approved by all the member nations. Why do we need an agreement in a hurry when the BOI is functioning so well, inviting investors? How could the agreement generate jobs when entering into controversial agreements in a hurry? 

For jobs to be generated, investors should invest and generate employment and export markets, which is currently taking place successfully. Why only India with suspicions and why not enter into agreements with other SAARC nations? Therefore, the best remedy and course of action is to introduce a National Policy and a procedure to approve agreements by a committee of experts.

Way forward

Though Sri Lanka is a senior member of the United Nations, it lacks experience in the formulation and drafting of contentious international instruments. We are currently paying heavy prices for hurriedly-prepared agreements on many areas. 

The notorious hedging deal during the Rajapaksa regime, many WTO agreements, the Indo-Sri Lanka Accord – connected to the 13th Amendment India is harping on to implement, CEPA and SFTA are some of many including the recently introduced ‘ambulance saga,’ initiated, promoted and presented to the Cabinet by Prime Minister personally, bypassing the line minister.

The Indo-Sri Lanka Accord by JR and CEPA signed by Chandrika, the 2002 horrendous agreement signed “with the separatist leader” was hurriedly prepared and forced on us and we are paying heavy prices now. Even now the President, Prime Minister and the Minister of Foreign affairs sign various ad hoc agreements hurriedly prepared that are binding on Sri Lanka and the citizens including the future generation. The Foreign Minister has no faith in the Ministry of Foreign Affairs and has appointed an apex body to advise him.

We were fortunate with highly-learned and reputed international civil servants in the international arena in the past such as Shirley Amarasinghe, Dr. R.S.S. Gunawardena, Lakshman Kadirgamar and many including Justice C.G. Weeramantry and Desmond De Silva QC, are still alive and ready to serve the nation. It is not fair and dangerous to politicise this national issue and terrorise the opponents, media, and citizens and force and bulldoze it on the people.

The ETCA agreement for some unknown reason only known to some. It should have been made public for the people not to be suspicious; if it is genuine and put forward for genuine reasons with no ulterior motives. Today statesmanship and patience is lacking in the legislature and politicians are behaving like pre-programmed dolls, naming media persons and attacking everybody in this most respected house of legislature in a most unbecoming of statesmanship, tarnishing great customs, conventions and democratic norms we have been used to. 

We need a full-scale public discussion on this most controversial and many other issues based on the principles of King Lichchave as proposed by the proponents of the current policies. It is argued that this agreement will generate jobs for Sri Lankans. It is hard to believe this as it has to be worked out with a long-term strategy on political and economic sphere. Have the other agreements India entered with its neighbours been successful in generating jobs? 

India has eternal disputes with all its neighbours, especially landlocked Nepal and tiny Bhutan. Issues with Pakistan and Balderdash are eternal. We were safe for thousands of years because we were an island separated by the sea, yet dealt with the world successfully, not being isolated. It is good to expose ourselves to the world via agreements but it has to be done with due care and caution in this selfish world. 

Apparently the Government fears India, professionals and people and is hiding the facts unnecessarily. What is the difficulty and fear in making the skeleton draft public for the public to know and to make contributions and suggestions to the proposals if it is done for the benefit of the citizen?

We propose as concerned citizens and professionals for the Government acting as a trustee to the nation to be calm and patient, giving space and time to all parties concerned and worried including members of the Legislature and the general public to participate in the debates as there is no hurry and there is all the time in the world to prepare a better and safer instrument on behalf of the worried and disturbed nation.

(The writer is a former Ambassador to the UAE and Israel and a Solicitor/Attorney-at-Law.)