Lessons from the fiasco over the detention of ‘Aeroflot’

Sri Lankan Court on last Monday suspended an order preventing a detained Aeroflot A330 Airbus from leaving Colombo

As if Sri Lanka did not have enough problems, the government last week let another one crop up and then when a full-blown foreign policy crisis was in the making, staggered to extricate itself.

The detention of an Aeroflot Airbus 330, the Russian national carrier, by court order on June 2 could have far-reaching consequences; the hurried release of the aircraft by the intervention of the Attorney General might have spared the country from the worst of them, though some damage would be hard to repair.

  This would also not be the last of such episodes. Not just involving Russia, but there is a renewed rivalry between the US and China, also between China and Taiwan, often involving the repatriation of Taiwanese nationals to China. Then there is the protracted conflict between China and India, and elsewhere, Japan is increasingly alarmed, and vocal about the disputed territorial claims with China and the growing Chinese influence in the region. A Chinese misadventure over Taiwan, which it claims as a renegade province would lift the lid off a larger geopolitical conflagration in Asia.

Sri Lanka cannot do much about these changes in its external environment.  Nor can it insulate from these forces. If anything, after this narrow miss, it can take a lesson or two about how it could better handle such eventualities in the future.

Incident

On June 2, Moscow-bound Aeroflot Airbus 330-300 with 191 passengers and 13 crew members was prevented from taking off at the Katunayake International airport after the Colombo Commercial High Court issued an enjoining order. The court order came after it heard a petition filed by Celestial Aviation Trading Limited in Ireland, which sought an enjoining order, pending the arbitration of the lease of A330 in London.

The crust of the dispute appeared to be an attempt by the leaser to seize the aircraft. Under the EU sanctions on Russia after it invaded Ukraine, the EU lesser of aircraft to Russia were forced to terminate their contracts. Yet, impounding of aircraft was an issue, as Russia had allegedly re-registered aircraft to avoid the repossession.
The government initially termed the issue as a private legal matter. However, Moscow’s swift response revealed it did not think so. Sri Lankan Ambassador to Moscow, Janitha Abewickrema Liyanage was summoned to the Russian foreign office. The Russian foreign ministry described the detention of the aircraft as “groundless” and warned of a “negative impact on the traditionally friendly bilateral relations.” 

Aeroflot sent repatriation flights to Colombo and suspended ticket sales and flights to Colombo. The Russian tourist market is now as good as dead. Later on June 6, the court suspended the enjoining order, releasing the A 330 after it considered a motion by the AG. 

In theory, though it might be a private legal matter, much was at stake in bilateral relations. 
The AG’s intervention betrayed that reality.

Economy

A greater worry was a potential fallout on the tea exports. Earlier in 2016, a ban on Asbestos, which Sri Lanka sourced mainly from Russia, resulted in a tit-for-tat ban on Sri Lankan tea exports. It was lifted when Sri Lanka allowed asbestos imports.

Russia is the largest buyer of Sri Lankan tea, buying about 17% of Sri Lankan tea which Sri Lanka exports. Losing the Russian market would be a deadly blow to the local tea industry already reeling from a disastrous presidential ban on chemical fertilizer, crippling power cuts, and soaring energy prices.

The tourism market would still get a blow until Russia resumes flights to Sri Lanka. Russians were among the top three tourist arrivals during the last year. This year, until the breakout of the conflict in Ukraine in March, the Russians were the largest single market. Fall out of the economic sanctions of Russia had their toll on Sri Lanka as the Russian tourist arrivals plummeted to 8% of all tourist arrivals in March. However, since then it had been picking up, on the back of the recovery of the Rouble, which, strangely enough, is at its strongest point since 2015 - thanks to rising energy and commodity prices.

Geopolitics

The episode highlighted the danger of Sri Lanka being dragged into a geopolitical rivalry, in which it has refused to take sides. But the scope of the US and EU sanctions on Russia over its war in Ukraine is overarching and the Western desire to lock Russia within its sanction regime and degrade not only its economic and war-waging capacity but also Moscow’s global standing is stubbornly high. 

Naturally, it is hard for a small nation to insulate itself from these forces - even powerful India is under pressure over the purchase of Russian oil. 

At present Sri Lanka suffers from a slew of other weaknesses: The current economic crisis has resulted in an over-encompassing political dysfunction and policy paralysis. Not that such maladies did not exist before, however, things have taken a turn for the worse. Sri Lankan foreign policy, like its domestic policy, is now on autopilot. There is not much to expect from bureaucracy when the government offices are shut down on Fridays to save fuel.
 The vacuum in the governance increases the danger of the country being dragged into unwanted geopolitical entrapments, unbeknownst to it. When it finds out, it is already in the middle of a brewing crisis. A foreign ministry that kept itself track of the developments could have proactively engaged and averted the dispute.

Not purely a judiciary matter 

Many pundits tend to view the dispute concerning the Russian airliner as a case of judiciary independence and that court should decide itself, unencumbered by the state. This reveals a flawed understanding of the relationship between the courts and the executive (or the government) in the latter’s conduct of foreign affairs. It is a widely accepted premise that the court should not act prejudicial to the government’s conduct in its foreign relations.
In most countries, including most Common Law countries, there exists a long-standing tradition that the statements by the foreign ministry or equivalent are considered conclusive by the courts, to the extent that they are matters of foreign affairs. 

The increasing number of civil and commercial litigations of matters related to international law, or those that could have foreign policy consequences, have recently tested the relationship between the courts and the executive. These concerns might be rather new to Sri Lanka, however as it comes to play a role an enlarging role in the international system and cultivating nexus of interdependency with the rest of the world, it is bound to confront these questions.

In such instances, the courts and executive should tread a fine line of demarcation of each other’s responsibilities, without usurping each other’s functions. Such an understanding should take into account, Sri Lanka’s position in the international system (it is a small power without much recourse against major fallout).

This is not the only instance where Sri Lanka is affected. Colombo had been reluctant to explore a direct line to Moscow to buy Russian oil, fearing Western repercussions. Hence the calls to use India have an intermediary. India’s Oil exports from Russia increased by tenfold this year, although from a very low baseline.  (And its leaders are vocal in defending the country’s interests, as  Indian foreign minister S. Jaishankar famously told an audience two weeks back, said Europe has to grow out of the mindset that its problems are the world’s problems, but the world’s problems are not Europe’s problem).  Whereas Sri Lanka needs the goodwill of the West, the US and Japan as it seeks a bailout from the IMF. The relations with the West deteriorated under the Gotabaya Rajapaksa presidency. 

Now, it needs to strike a delicate balance. 
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