Unless the leaked document is false, it raises four important issues that need to be considered by the Marape government.

Undermining the sovereignty of the PNG state

The first is the issue of diminishing sovereignty for PNG. The draft provisions invite foreign military to access PNG infrastructure, to establish bases, to embed directly or indirectly within PNG agencies and to strategise their geo-political interests without any legal control by the State of PNG.

This gives rise to various other issues, including that of legal immunity from PNG laws, essentially surrendering a foundation of PNG sovereignty.

The founding fathers of PNG realised in early 1975 that the country needed to be in full control of its political and legal systems to proclaim itself as a sovereign nation.

A draft Constitution for an independent PNG had been presented to the colonially-created parliament, the House of Assembly, to be accepted as the country’s Constitution.

However, our forefathers refused that arrangement and created for themselves a body called the Constituent Assembly to examine the proposed Constitution.

The Constituent Assembly was a congregation without any legal basis as far as colonial statute was concerned. That is, it was an illegal body.

Yet the Speaker of the House of Assembly, that had spearheaded the formation of the Constituent Assembly, was adamant that it was necessary to “break any ties that may exist between Papua New Guinea and Australia….so that we may draft our own legislation”.

The Speaker was clearly referring to the drafting and passing of the PNG Constitution.

The reason for such action was that the House of Assembly was a creature of the Australian parliament under the Papua New Guinea Act.

Allowing the PNG Constitution and provisional legislation in preparation for independence to be thus enacted would mean that the links to Australian law would not be clearly broken.

PNG could not be truly sovereign because its legal roots would be draped in an Australian-created legal institution.

The founding fathers needed to cut that link, despite the vehicle’s illegality under colonial law, in order to truly cement PNG’s legal sovereignty.

The outcome was that the PNG Constitution that emerged was ‘home-grown’ and ‘home-delivered’, such was the determination of the forefathers of this nation to defend the sovereignty of their new country.

It was Governor Luther Wenge of Morobe Province who reminded PNG of these historic ideals in the 2005 Supreme Court case that successfully challenged a proposal that would have granted legal immunity to Australian Federal Police working in PNG under the Enhanced Cooperation Program.

[See ‘The Enhanced Cooperation Program’, Chapter 4, pages 88-124 of Dr Philip Mitna’s thesis, ‘Factors Influencing Papua New Guinea’s Foreign Policy in the Twenty-First Century’, The Australian National University, Canberra, July 2018]

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This US-PNG Defence Cooperation Agreement should be viewed through these same lenses and the question asked whether it chops away some PNG’s political, legal or constitutional control over activities conducted within its territory by a foreign entity.

If the answer is ‘yes’, even in the smallest part, then the PNG government will need to reassess the Agreement.

A constitutional challenge might also be launched which would be adverse to PNG and US prestige in the Pacific Islands region.

PNG as a military target in a regional war

Maintaining bilateral relations in the social, political, economic and trade spaces could be characterised as normal statecraft.

However, military relations are not normal because they project perceptions of threat.

By doing this they create alliances and identify potential enemies, whether state or non-state actors.

It is normal for states to exercise great caution and careful consideration before entering into military bilateral relations.

At the lower end are simple exchanges like shared personnel training between two countries.

At the higher and more serious end are the use of domestic territory and facilities by a foreign force – for example, opening a military base, enabling forward joint exercises or allowing strike weapons to be positioned in or passing through the host country.

And all that becomes even more serious when the host country does not have control over the activities of the foreign force within its territory and in using its infrastructure.

It is very serious because, apart from the affront to sovereignty and constitutionality issues, a lack of effective control over foreign forces by the host country could result in the foreign force conducting adverse, aggressive, or counter actions against another state while inside the host country.

This could be direct military activity, espionage or other forms of gaining strategic advantage.

A basic example is the Pakistan-US defence agreement in which US assets operate in Pakistan to conduct operations in neighbouring countries.

This directly opens the host country as a threat that may need to be neutralised. A recent example from 2022 occurred when Iran bombed a military base in Iraq, accusing it of hosting US military personnel who used the base to enable adverse actions against Iran.

Such retaliation risks the lives of innocent citizens of the host country.

Based on the leaked US-PNG Agreement, this risk is evident. The leaked document allows for US personnel to operate in PNG without enforceable PNG control.

This means us forces could potentially be based here and project military action elsewhere, targeting another State while on PNG soil.

If that happens, it could ultimately render PNG a target of retaliatory action from a third State.

Diminishing morale and legitimacy of PNG institutions

The entire PNG justice and legal systems, security architecture, including military, police and border agencies, are founded on the uncompromising believe that they are the sole authorities legitimately charged to enforce and subjugate all persons within the territory of PNG according to PNG laws.

These laws apply to both domestic and foreign persons on PNG territory.

It is a linchpin in the morale of the disciplined services and a source of public confidence in their operations – that they can reach anybody, anywhere, at any time within the territory of PNG.

However, having a foreign force or a group of foreign citizens operating outside this umbrella can undermine these institutions, creating negative perceptions that these institutions, despite their power as enforcers of sovereignty, are at the whim of government.

It can create the negative perception that there is a higher, superior authority beyond the reach of PNG laws and institutions.

Such perceptions can have negative implications on institutional legitimacy, morale and undermine the efforts made to build public confidence in domestic institutions.

USA’s experience elsewhere in the world

The agreement the US intends to sign with PNG is similar to agreements it has with some other countries such as Japan, South Korea and in the Middle-East, where the US has unimpeded access to certain infrastructure and immunity from local laws.

In the Pacific, the US have unimpeded establishment in Guam and in the Federated States of Micronesia.

So what’s the difference with PNG?

Simply, these countries have a very different security and threat outlook and historical connection with the US. PNG does not.

Japan surrendered to the US during World War II, South Korea is technically still at war with North Korea and the US is the guarantor of security for certain Middle East countries in highly volatile situations.

PNG has none of those connections. So argument that such agreements happen in other countries so therefore they can happen in PNG is misguided and erroneous.

It would disrespect and possibly belittle PNG.

Conclusion

These are some initial assessments based on the leaked draft US-PNG Defence Cooperation Agreement.

The context of PNG is different. This includes PNG's current position as a non-aligned state in the international Non-Aligned Movement and its so-called ‘friends to all, enemies to none’ foreign policy.

If the government is interested, I join with others in offering my availability for further discussions and consultations.

The conclusion here is not to stop the agreement. There are obvious benefits in having close relations with the US and with China and other major powers.

My discussion here is simply to point out potentially serious failings or future challenges that may to arise from the proposed agreement, at least as evident from the leaked document.

The US should by now realise PNG is not like any other country they have encountered in the Pacific.

The PNG government should be well informed of all the concerns; it should realise there is still more to be done to advance this agreement, if it is found to be necessary.

Any excuse that a US force will be in country for only a short while is misguided. Once entrenched, it will be difficult to unwind so it is better to get things right from the start.

The US Secretary of State was due to arrive yesterday, but a sovereign, proudly independent PNG is under no obligation to fast track or rush this agreement when there are serious questions raised by its people.

As President Biden unashamedly demonstrated with his postponed trip to PNG and Australia, things can wait or be deferred if there is good cause.

In like manner, even the world’s most powerful country, can wait until PNG gets it right.

For all the good things prime minister Marape and his government have done, it will be remiss of them if they are accused of betraying the trust of the people by establishing what appears to be a problematic agreement, which may ultimately undermine PNG’s interests.

* Dr Bal Kama is an Adjunct Assistant Professor in the Faculty of Business, Government and Law at the University of Canberra