LAWCTOPUS’ ACADEMIC: United State’s A Status of Forces Agreement and its Dangers for India

The idea of US aircraft carriers within 30 minutes flying distance of the Indian shores sure is a startling thing to know courtesy the recent times of leaked documents lurking everywhere in world politics.

WHAT IS SOFA?

A Status of Forces Agreement allows a foreign nation to station military forces in a host nation.

The US has about 100 SOFAs around the world, mostly with allies like Canada, Qatar and South Korea or troubled countries like Iraq and Afghanistan.

Maldives which sits right on the energy lanes that connect south and Southeast Asia with the Persian Gulf is about to finalise one such SOFA agreement with the United States of America.

Leading figures in the current Maldivian government–illegitimate, bankrupt and corrupt–appear to have very little qualms about whom they do business with as long as the price is right.

The concerns being raised in both India and Sri Lanka after a Maldivian news website reported and posted an alleged leaked copy of the draft SOFA agreement running into eight pages is well justified.

The not so pleasant state of affairs of the Maldives government, the GMR fiasco of past and now this sudden revelation of US military base in backyard is definitely not helping the Indo-Maldivian ties.

It is said that the leak of the draft document was engineered by former Maldivian president Maumoon Abdul Gayoom. His PPM is the largest political party after opposition MDP and part of the ruling coalition.

He surely intends to maintain pressure on the present president Waheed Hasan Manik before the elections in September 2013. Gayoom visited India in June and expressed his unhappiness over the proposed SOFA between the US and Maldives.

Recalling the by-gone events, on cancellation of the GMR-led consortium’s contract for modernising and running the airport at Male-the biggest single ticket FDI proposal in the Maldives, Mr. Gayoom blamed Muhammad Nasheed, former President who had defeated Mr. Gayoom in the archipelago’s first multiparty polls in 2008.

Though, eventually the multibillion-dollar contract was scrapped by Mr. Nasheed’s successor, Mohammad Waheed Hasan with American blessings.

The proposed agreement with the Maldives is a maturation of two earlier deals in 2004 and 2010. The purpose of the 2004 agreement was to provide relief and rehabilitation in the event of a tsunami in the Maldives.

But the 2010 agreement and the draft SOFA envisage US military presence in the name of controlling illegal immigration, sea-piracy and anti-terror operations.

The United States has confirmed it is in discussion with the Maldivian government over the signing of a Status of Forces Agreement (SOFA).

Rubbishing reports of some new uptick in military co-operation or any new military presence, a spokesperson for the US Embassy in Colombo was unable to verify the authenticity of the leaked draft, “as the agreement has not been finalised” adding that Status of Forces Agreement (SOFA) is an effort to provide a framework to the ongoing joint military exercises that the US has with Maldives.

The president office and the Defence ministry in Maldives denied having any information about the agreement. The opposition members though were waiting for the matter to be eventually taken to parliament’s national security committee.

The leaked draft SOFA being discussed by Male and Washington “incorporates the principal provisions and necessary authorisations for the temporary presence and activities of the U.S. forces in the Republic of Maldives and, in the specific situations indicated herein, the presence and activities of United States contractors in the Maldives.

HIGHLIGHTS OF THE DRAFT PROPOSAL

Under the proposed 10 year agreement outlined in the draft, the Maldives would “furnish, without charge” to the United States unspecified “Agreed Facilities and Areas”, and “such other facilities and areas in the territory and territorial seas of the Republic of Maldives as may be provided by the Republic of Maldives in the future.”

• “The Republic of the Maldives authorizes United States forces to exercise all rights and authorities with Agreed Facilities and Areas that are necessary for their use, operation, defence or control, including the right to undertake new construction works and make alterations and improvements,” the document states.

• The US would be authorised to “control entry” to areas provided for its “exclusive use”, and would be permitted to operate its own telecommunications system and use the radio spectrum “free of cost to the United States”.

• The US would also be granted access to and use of “aerial ports, sea ports and agreed facilities for transit, support and related activities; bunkering of ships, refuelling of aircraft, maintenance of vessels, aircraft, vehicles and equipment, accommodation of personnel, communications, ship visits, training, exercises, humanitarian activities.”

• US personnel would be authorised to wear uniforms while performing official duties “and to carry arms while on duty if authorised to do so by their orders.”

• US personnel (and civilian staff) would furthermore “be accorded the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention”, and be subject to the criminal jurisdiction of the United States.

• US personnel and contractors would moreover be permitted to import and export personal property, equipment, supplies and technology without license, restriction or inspection, or the payment of any taxes, charges or customs duties.

• Vessels and vehicles operated by, and for, US forces would be permitted to enter and move freely within the territorial seas of the Maldives, free from boarding, inspection or the payment of landing, parking, port or harbour fees.

• Disputes would be resolved without recourse to “any national or international court, tribunal or similar body, or to a third party for settlement, unless otherwise mutually agreed.”

• At the conclusion of the lease, “the parties shall consult regarding the terms of return of any Agreed Facility and Area, including possible compensation for improvements or construction.”

• Each party would furthermore waive claims (other than contractual) concerning “damage to, loss of, or destruction of its property or injury or death to personnel of either party’s armed forces or their civilian personnel arising out of performance of their official duties in connection with activities under this agreement.”

• The proposed agreement would supersede an earlier agreement between the US and Maldives regarding “Military and Department of Defence Civilian Personnel”, effected on December 31, 2004.

sofa

The highlights are just the tip of the iceberg.

SOFA once signed will allow the US to virtually control the 1192 Maldivian islands that stretch across the Indian Ocean. Interestingly the agreement focuses on Seenu Gan island in southern-most part and Laamu atoll near Male, the capital, which can bring the entire nation under US forces.

There is a twist in tale too. Article 77(3) of the Maldives Constitution stipulates that:

No part of the territory of the Maldives shall be given to a foreign person or party for a military purpose for any period without the approval of the People’s Majlis.The proposed SOFA will not be able to see the light of the day if not altered and made less draconian. The current draft agreement violates the Maldivian constitution which forbids using any part of the country for military purposes.

India may well be particularly worried about articles III, VI, VIII and X of the draft.

While article III gives exclusive criminal jurisdiction to US personnel in the Maldives, article VI allows sweeping import and export of equipments without inspection, customs duty or taxes.

But the most worrying are articles VIII and X that allow US ships and aircraft carriers to move freely in and out of Maldivian waters. The agreement makes it explicit that the US military personnel will be fully armed and can exercise command over all kinds of vessels including nuclear-powered aircraft carriers.

Foreign experts should realize that India, which has been pre-occupied with figuring out the ‘string of pearls’ strategy of China, ignored how the US has been encircling it.

China built its embassy in Maldives in 2011 during the presidency of Muhammad Nasheed. India’s suspicions about China’s friendship with Maldives after its courting of Pakistan, Sri Lanka and Mauritius intensified with reports of $550 million investment by Chinese government in the Maldives.

Our government had taken note of the reports of Chinese plans about a submarine base on Marao island. The SOFA draft however, shows the Americans were always a step ahead of China and way ahead of India and the rest. India, infact has never aspired for a base in Maldives despite the clout it enjoyed in region for decades.

By 2020, the Pentagon expects to have 60 percent of its naval assets in Asia. The United States has over 1000 military bases across the world. For most native populations, the presence of the forces creates controversy or unrest and discontent, rather than security. There is ongoing opposition to these US military bases ‘stretched like tentacles across the globe‘.

The most notorious of the US bases is Guantanamo Bay in Cuba with its extra-legal prisons, illegal detainees and torture. As it became widely known, Guantanamo is not the only US military base to be used for illegal purposes.

Diego Garcia is a British Indian Ocean Territory. To lease the base to US in 1966, the British evicted the island’s 1800 native population ‘Chagos’ who are continuing their fight for the right to return through various British courts.

The US Navy currently operates one of its largest bases outside the US at Diego Garcia, approximately 740 kilometres south of Addu Atoll, the lease for which is due to expire in 2016. The site includes multiple landing strips for heavy bombers, pier and port facilities for the largest vessels in both the US and UK fleets, and accommodation for thousands of navy personnel.

The agreement between the US and the UK allowing the US military base on the island of Diego Garcia will expire in December 2016 unless the two parties agree on an extension by December 2014.

The island of Diego Garcia with its US base, called ‘Camp Justice’, was reportedly used for extraordinary rendition, extra-legal detention of ‘high-value detainees’ and for other anti-human purposes. Losing Diego Garcia would be a significant blow to the US, especially in light of the recent ‘Asia pivot’ in its foreign policy.

A base in the Maldives, where the southern-most island is only just over 700km from Diego Garcia, would be ideal.

The US announced the Asia Pivot in its foreign policy in November 2011.

Although it denies that the change of policy is aimed at containment of the rising China, many remain unconvinced. But what cannot be denied is that with the pivot has come the increased movement of US naval assets to Asia, which currently hosts fifty percent of it.

Media reports speak of a resurgence of U.S. warships, planes and personnel in the Philippines, Australia and other parts of the region. Several thousand more troops are also due to be added to the over 300,000 already at various bases in Asia.

Indian Defence Ministry said that Maldives was free to do whatever it wished with other countries as long it did not have any security implication for India and South-Asia.

Meanwhile Maldives seems to have done a policy pivot of its own with little regard to India, Australia and other friendly members of the Indian Ocean region. Senior Maldivian government officials were invited aboard a US aircraft carrier as it passed by the Maldives.

Tourism Minister Ahmed Adheeb, Defence Minister Mohamed Nazim, Home Minister Mohamed Jameel Ahmed, Police Commissioner Abdulla Riyaz and Vice President Mohamed Waheed Deen were flown to the USS John C Stennis aircraft carrier as part of an arrangement between the US embassy and Maldives Defence Ministry.

The visit was followed by the signing of a Memorandum of Understanding (MOU) between the Maldives and the US government to install a free border control system adding a new dimension to the never ending Domestic controversy there.

Who negotiated with the US to set up the army base? Who is ready to sign away a portion of the Maldivian archipelago to a foreign military? Who is ready to create a part of the Maldives that is not accessible to the Maldivian people and where no Maldivian laws apply? Who? And in return for what? Answers to these questions need to be found as soon as possible or the present situation may upset the balance of power in Indian Ocean region in near future.

A Status of Force Agreement that envisages a foothold for American forces in the heart of the Indian Ocean is not a pleasant prospect for Asia. SOFA in its current form will have wide ranging implications for the security and the movement of oil & gas in the Indian Ocean. It must be signed only after discussion with other neighbouring nations.

Moreover Maldives is obliged to discuss it with India under a bilateral understanding between the countries. Whether Maldives is ready to honour its old commitments or not will be an important thing to watch out for. Until then the threat of new players in the Indian Oceanic region still lingers.

BY SHAMBHAWI SINHA
Government Law College, Mumbai

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  1. Well written shambhavi. congratulations!

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