MCC, ACSA, SOFA, incompatible with international law

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 by "political 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), both affirm 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 forbidden by 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."

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