Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

The Use of Lethal Drones in War – Are the Laws Silent?

6 mins read

“I know it is bad, but we must finish it.

It does not finish. There is no finish to a war.

War is not won by victory.”

Extracted from A Farewell to Arms by Ernest Hemingway

There is a famous Latin maxim Inter arma enim silent leges attributed to Cicero – known by some as the greatest orator who ever lived – which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending conventional warfare in the air to the use of lethal drones (remotely operated flying missiles) as arbitrary killing machines.

The devastating damage caused by drones in war causes the greatest number of civilian fatalities along with destruction of buildings, reducing them to piles of rubble.  This type of attack was seen in 2011 where  an American drone is reported to have hovered above Pakistan’s Waziristan area one day in March 2011 and unleashed three missiles on a gathering of people, some of whom were armed.  Most of the 40 or so killed were civilians.   These drones were operated in most instances, far away from the actual zone of attack by trained personnel operating hand held consoles.  A strike is called a bugsplat.   .

In March 2011, the United Nations Security Council adopted Resolution 1973 which inter alia decided to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians.  The Resolution also authorized Member States to take all necessary measures, to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi.  This resulted in concerted air attacks by NATO forces on Libya. 

 The First Question

The first question is: “what redress do innocent victims of war have against egregious air attacks?”

From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities must be respected, protected and treated humanely. They must be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering must be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.

Within these four precepts, international humanitarian law is entrenched as the legal corpus comprised of the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law. The Geneva Conventions consist of four treaties formulated in Geneva, which set the pace in Standards for international law as applicable to humanitarian concerns. The fourth Convention, which relates to the protection of civilians during times of war in the hands of an enemy and under any occupation by a foreign power, provides in Article 3 that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections that should be accorded to certain categories of persons. These persons are described as: non-combatants, who usually are civilians, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Article 3 also requires these persons to be in all circumstances treated humanely, with the following prohibitions: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b)taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Article 4 defines a person protected by the Geneva Conventions as one who, at a given moment and in any manner whatsoever, finds himself, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which he or she is not a national. However, it explicitly excludes nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations with in the State in whose hands they are.

What is :  “War?”

The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts as referred to in Article 3 of the fourth 1949 Geneva Convention. Also, humanitarian law does not apply only to victims of wars between international actors. Professor Rainer Hoffman, in his report to the International Law Association’s seventy second conference observed that if present international law admits of an individual’s right against a State for injuries suffered during the course of a war in which that State is involved, it must necessarily follow that it is difficult to maintain that the same right might not prevail against international organizations and non-State actors. He further stated that if such Organizations and non-State actors are subjects of international law and engage in acts which could have been committed, under traditional international law, only by States and thus behave like or as States, then they should, in principle be held accountable in the same way as States.

The Second Question

The Second question addressed in this article is: Can the law, administered by the courts, play an active role in preventing or bringing the carnage  caused by drones to a halt?

When the PAN AM disaster over Lockerbie in Scotland which was caused in 1989 was considered by  the International Court of Justice, Vice President of the Court – Justice C.G. Weeramantry – delivered his famous judgment where he said inter alia: “A great judge once observed that the laws are not silent amidst the clash of arms.  In our age we need also to assert that the laws are not powerless to prevent the clash of arms.  The entire law of the United Nations has been built up around the notion of peace and the prevention of conflict.  The Court, in an appropriate case, where possible conflict threatens rights that are being litigated before it, is not powerless to issue provisional measures conserving those rights by restraining an escalation of the dispute and the possible resort to force.  That would be entirely within its mandate and in total conformity with the Purposes and Principles of the United Nations and international law.  Particularly, when situations are tense, with danger signals flashing all around, it seems that this Court should make a positive response with such measures as are within its jurisdiction.

 If the conservation of rights which are sub judice comes within the jurisdiction of the Court, as I have no doubt it does, an order restraining damage to those rights through conflict must also lie within that province.  If international law is to grow and serve the cause of peace as it is meant to do, the Court cannot avoid the responsibility in an appropriate case.

I would indicate provisional measures proprio motu against both parties preventing such aggravation or extension of the dispute as might result in the use of force by either or both parties.  Such measures do not conflict with any decision the Security Council has made under Chapter V11, nor with any obligation arising under Article 25, nor with the principle underlying Article 103.  The way towards a peaceful resolution of the dispute may thus be preserved before the parties find themselves on paths from which there may be no return.  This action is based on Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court”. 


The imposition of sanctions against an aggressor, coupled with military aid to the State attacked has not historically worked.  They have only made one party more determined in its actions.  An example is Cuba which carried on relentlessly amidst decades of sanctions imposed against it. Short of nuclear devastation, capitulation is rarely achieved in the modern age.  On the other hand, diplomatic negotiation based on judicial interpretation and intervention might well work in modern warfare. For this, the entire world should coalesce.

We should give this approach a serious try. 

Aviation Trends in 2023

7 mins read

It’s good to learn from your mistakes.  It is better to learn from other peoples’ mistakes…Warren Buffett

The pandemic wrecked havoc on aviation over the past three years and now the end seems in sight.  Those starved of satiating their appetite for flying no longer face stringent health barriers and have unleashed their pent up frustrations of claustrophobia with a vengeance, filling  up aircraft all over the world.  The demand for air transport has bounced back in leaps and bounds, perhaps much more than expected, prompting Thomas Romig, Vice President of safety, security and operations at Airports Council International (ACI) to say: “ as countries lifted measures, the traffic just bounced – almost on a vertical line.  It would be flat for a little while and then another vertical leap in demand.  Growth like that has obviously been much harder to manage”.  The International Air Transport Association (IATA) has said: “ The travel recovery continues to gather momentum. People need to travel. And when governments remove COVID-19 restrictions, they do. Many major international route areas – including within Europe, and the Middle East-North America routes – are already exceeding pre-COVID-19 levels”. The International Civil Aviation Organization (ICAO) in a statement issued in May 2022 said there were ” “ clear signs of a strong global recovery in air traffic, characterized by increasing airline confidence and a range of regional air connectivity and air travel facilitation improvements”.

Air Transport

The volatility of geopolitics, public health and the energy crisis effectively precludes one from reaching any accuracy in forecasting.  However,  it is not difficult to hazard a conjecture based on plausibility and  foresight. The introduction of masks, safety protocols, and service disruptions has left its impact leading to a continuing trend of “permanxiety” – a word coined by Skift in 2017 “to describe how social, political, and climate turmoil is coloring consumer expectations of everything, including travel. Skift went on to say that “travelers endure a barrage of worries about terrorism, security, neo-isolationism, racial tension, Trumpism, technology and its adverse role, the widening economic gap, culture wars, climate change, and other geopolitical and local issues.”

Permanxiety could be seriously aggravated by delays in border crossings in 2023 brought about by inadequate staffing, computer glitches and delays in visa processing. It has been estimated that in the United States alone “The delays will prevent 6.6 million international inbound visitors from coming to the U.S”. Prolonged visa processing times, lack of trained staff have also affected Europe which have exhibited “pathetic turnaround times”.

All these factors have given rise to a trend where pre Covid business travellers and tourists resorted to “bleisure” – a hybrid of business and leisure travel. The hospitality industry joined in on this concept, an example being the Hilton chain which started a competition to identify and provide for the blended business and leisure traveller. It is plausible that this compromise trend will continue through 2023.

Intriguingly, these bottlenecks and implosive trends seemingly do not adversely affect the revenue side of the equation for airlines. Aviation by Inform says: “Moody’s Investor Service is forecasting a positive outlook for the aviation industry in 2023. The organization is projecting operating profits for those airlines it rates to increase by more than 200% in 2023. Its projection is based on the premise that increased travel by large corporations and the rebuilding of long-haul international routes will make the recovery more resilient despite declining gross domestic product (GDP) forecasts and other economic factors could increase the risk of falling passenger demand”.


There are other encouraging ongoing trends as well.  From a technological perspective, airports are increasingly becoming space tech hubs, turning into g spaceports and vertiports. As an example, in Houston, spaceport integration has already begun. The United States Federal Aviation Administration (FAA) has a Spaceport Office which has so far licensed 14 spaceports. Furthermore, continuing trends in airport technology include the foray into using liquid hydrogen as an energy source to help in combatting climate change and global warming;  the use of artificial intelligence  for facilitation; and the “Digital Twin” which can effectively plan and determine where passengers, gates and planes should be located and directed. The Digital Twin is being used at Schiphol in Amsterdam, San Francisco International and Vancouver Airport.

The Digital Twin is a virtual replica of every aspect of airport operations and performance “to maximise efficiency and increase capacity in a more timely and cost-effective way”, as an article in the magazine Passenger Terminal World reports.  Its most effective purpose is to alert airports to anticipated problems on a 24-hour basis and flag operations staff at the airport so that they can obviate the threat and operational difficulty that could ensue. It also points to problem areas that could inconvenience and delay passenger flows, thus avoiding congestion.

Another useful purpose of the Digital Twin is that it can alleviate passenger stress.  An example cited is the airport and flight experience it offers before the actual experience, thus enabling passengers who are anxious to be more prepared when undergoing the actual experience.  One category that benefits from this platform is the autistic community.

The Digital Twin can also offer insights into the future.  For example, if an airport has an aspirational goal of net zero carbon emissions by 2030, it can model the aircraft and on-ground vehicle movements as well as other activities on the airfield.  These models can be applied to machine learning that can reflect the most efficient way an airport can be run.   Even in the planning process of an airport, the Digital Twin could offer the best iteration as Schiphol has done in the application of building information management software to generate a 3D digital version of physical and functional characteristics of an airport infrastructure

On the economic side, Airport Economic Zones (AEZ) – which, according to Paul Woodley, a senior lawyer, are “ suburban areas where infrastructure, land use and economy are focused on the airport” – are increasingly becoming popular where the community around an airport has the airport as the focal point of economic and financial progress.  A major study conducted by Gatwick International Airport and a partner in July 2022 revealed that the airport could generate 8.4 billion British Pounds by 2028 through the development of an AEZ.  The same study envisions the creation of 50,000 jobs in the AEZ by 2028.

Another burgeoning concept running into 2023 is the “Freeport” – where customs duties and tax do not apply to goods that stay in the airport and are directly shipped overseas. An example is the East Midlands Freeport in The United Kingdom which encompasses three main sites: the East Midlands Airport and Gateway Industrial Cluster (EMAGIC) in North West Leicestershire, the Ratcliffe-on-Soar Power Station site in Rushcliffe in Nottinghamshire and the East Midlands Intermodal Park (EMIP) in South Derbyshire.

Paul Woodley explains that these areas are strongly supported by robust infrastructure comprising “strong existing road and rail freight infrastructure connecting them to all other parts of the country, including seaport-based freeports. There is significant room for growth across the sites, accelerating regeneration, increasing skills and training opportunities and helping to level-up some of the UK’s most deprived areas. The site development process will be managed by the respective landowners and any future development proposals will be subject to planning approval and public consultation”

The Regulator

States must formulate their own strategy on how best to regulate air transport in an year where the end of the pandemic is in sight. One starting point could be a Resolution adopted by the 41st Session of the ICAO Assembly in the third quarter of 2022.  States should strengthen their crisis management capacity, including by establishing a crisis framework and mechanism while ICAO should continue to collaborate with the  World Health Organization (WHO) and other public health groups, with other relevant aviation medicine and other relevant specialist medical organizations, with Planning and Implementation Regional Groups (PIRGs) and the Regional Aviation Safety Groups (RASGs).  ICAO should, while keeping close contact with its regional offices be on the alert for public health information from them while  working with the Air Navigation Commission, with aviation subject matter expert groups including such as the Personnel Training and Licensing Panel, and the Safety Management Panel to enable the sharing of information and resources for purposes of global harmonization relating to the prevention and management of public health emergencies.

ICAO should also develop an Aviation Health Management Plan by ICAO supporting implementation efforts of comprehensive management of health in aviation, by consolidating the various references to medical and health-related Standards and Recommended Practices in the Annexes to the Chicago Convention into a comprehensive repository for the management of health in aviation.


From early 2020 to date, we have had numerous lessons that must be learned if air transport is to continue in a safe and orderly manner in 2023. The first is that there must be harmonization in communication.  Timely exchange of information is crucial.  The second is that geopolitics should not interfere with civil aviation and respect for global harmony in  adherence to the principles of international aviation law.  There must not be repetitions of blatantly egregious breaches of established norms of international law. 

Two instances in this context stand out:  the first where Ryanair Flight 4978 which was operated  from Athens to Vilnius on 23 May 2021, while over the airspace of Belarus, was diverted to Minsk National Airport in Belarus on seemingly spurious grounds. The Boeing 737-800 which carried 126 passengers and 6 crew members was just 45 nautical miles south of Vilnius and 90 nautical miles west of Minsk when it was ordered to divert from its course and land; the second where  The Democratic Peoples’ Republic of Korea (DPRK, which is  a member of ICAO),  launched, without prior notification to the international community, two short-range ballistic missiles  22 minutes apart on a trajectory over its  eastern waters, seemingly in defiance of  the redeployment of an aircraft carrier by the United States near the Korean Peninsula, which had been in response to Pyongyang’s previous launch of a nuclear-capable missile over Japan. The launches were ominous in that they landed between the Korean Peninsula and Japan. 

As a sage once commented, if we do not learn from history, we are doomed to repeat it.

2023- A Year to Revive the Ancient Wisdom of Sages?

4 mins read

Victory comes from finding opportunities in problems. Sun Tzu…The Art Of War

If 2022 was the year in which we misbehaved, 2023 must surely be the year we dust the tomes of past wisdom and seek some relevance and intelligence in our lives. The year past: of folly at war and talk of the use of nuclear weapons; threats of fire and fury; acts leading to economic dominance without any forethought or perception of consequences; pyrrhic victory by violent suppression of protests, can all be subject to cautious reflection and reference to the words of sages of the past.

In the context of the most serious situation in Ukraine, one is reminded of the words of Sun Tzu  (771-256 BC) a Chinese sage, philosopher and strategist who specialized in military wisdom and is credited as the author of The Art of War – a lasting repository of military strategy for winning a war – which is now considered not only influential in military warfare but also used as a manual for corporate competitive strategy.  Sun Tzu said: “ the supreme art of war is to subdue the enemy without fighting; in the midst of chaos, there is also opportunity; victory is reserved for those who are willing to pay its price; victory comes from finding opportunities in problems”. Sun Tzu also said: “if fighting is sure to result in victory, then you must fight, even though the ruler forbid it; if fighting will not result in victory, then you must not fight even at the ruler’s bidding… he will win who knows when to fight and when not to fight… if you know the enemy and know yourself you need not fear the results of a hundred battles”.

We are still not out of the pandemic although there are signs of its abating. Sun Tzu in his Art of War posits “one must know oneself as much as one knows one’s enemy”. The problem is that, as Albert Camus reflects in his novel The Plague, we do not seem to know ourselves and our vulnerabilities and choose to ignore red flags not only in the face of epidemics and disease but also when confronted with other existential threats. Politically, grave and ominous threats that portend danger to the global community are ignored as minor irritations that will go away. Covid -19 taught us that we need determination, self-reliance and optimism in the face of hardship. We have to believe despite all the evidence to the contrary, that we could restore a sense of community to a world torn by conflict and that despite all personal tragedy, we have a sense of control over our own destiny.

Most importantly, with the entropic perturbations of 2022 – be it geo-political; economic; or social and communal – individually and collectively we have to get a better handle on our “reason for being” or the sense of direction, purpose, and dignity in our lives. Firstly, we must teach ourselves collective humility. Nassim Nicholas Taleb, the bestselling author of The Black Swan, in his book Antifragile introduces us to the intriguing and well-reasoned concept called “Antifragile” – that any system which depends on predictability and presumption is fragile – and that “some things benefit from shocks and they thrive and grow when exposed to volatility, randomness, disorder and stressors”. According to Taleb black swans (which as we all know are a rarity) are large-scale unpredictable and irregular events which can either devastate those that are fragile and dependent on certain rigid stability or energize risk-takers and flexible persons into action.

Secondly, we must establish a structured and logically reasoned way to find our “reason for being” whether in the context of our personal lives or corporate existence and survival. For this, we have to seek the wisdom of Japan.  Often, we spent our time trying to climb the ladder of success. There is a Venn diagram – created by British entrepreneur Marc Winn in 2014 with four circles,  each with a statement: what you love; what the world needs; what you are good at?; and what you can be paid for? At the point where these four circles all intersect is the Japanese word Ikigai which stands for “reason for being”. Ikigai is similar to the French term “raison d’etre”.

Jeffrey Gaines, writing in 2020 said: “The concept of Ikigai is said to have evolved from the basic health and wellness principles of traditional Japanese medicine. This medical tradition holds that physical well-being is affected by one’s mental–emotional health and sense of purpose in life. Japanese psychologist Michiko Kumano (2017) has said that Ikigai is a state of well-being that arises from devotion to activities one enjoys, which also brings a sense of fulfilment. Michiko further distinguishes Ikigai from transitory pleasure (hedonic, in the ancient Greek sense) and aligns it with eudaimonia – the ancient Greek sense of a life well lived, leading to the highest and most lasting form of happiness”.

In 2023 we must seek the fulfilment that Ikigai represents, whether we are political leaders or corporate employees; parents or progeny; professors or students; doctors or patients. Leon Ho says: “having a sense of purpose is a fool-proof way to a fully satisfactory life. It leads to ease in prioritization, strengthens morals and values, aligns all your life goals, and helps you stay focused. The clarity in life is only possible if you have your sense of purpose sorted”.

In 2023 we must be more aware of Sun Tzu’s teachings of knowing our limitations; not being impulsive in taking decisions; not overestimating or underestimating the serious business of living. At the same time, we have to be non-traditional, lateral thinkers who take existing usage and change the way things are. We have to see through the obvious and question the vertical thinking of traditional intelligence.  We have to upend conventional wisdom and predictability. In 2023, self-interest – both collectively and individually  – will keep increasing; fear will spread even further than at the present time.

There is no better time than now to follow the strategy of Sun Tzu and the wisdom of Ikigai.

2022 – The Year We Misbehaved

6 mins read

Ruwantissa Abeyratne

“Isn’t it really the first real world war we are living in, much more than the first and second world wars?” …Thomas Friedman


With the above quote Pulitzer Prize winning author Thomas Friedman credibly claims that the two “world wars” in the twentieth century were not truly world wars as they did not affect the entire world but occurred in segments of the world, whereas Russia’s invasion of Ukraine – the major disturbance occurring in 2022 – gave rise to the truly  first world war.   Friedman goes on to say: “In this seemingly “global war on air” almost everyone can either watch the fight, participate in it in some way, or be affected economically by it, no matter where they live”.

Granted. A few good things happened in 2022. It was a year where democracies around the world strengthened, and some autocracies stumbled.  The countries in the West grew more united than ever before in their resolve to uphold a rules based international order. China’s economy went down and COVID raised its ugly head spoiling for the autocratic rule of the country its egotistical forward march. A bewildered Russia was thwarted in its use of force  in Ukraine. COVID receded around the rest of the world prompting the World Health Organization to declare, in September, that the end of the pandemic was in sight. Both in aviation and affairs of outer space progressive steps were made, where, for example  the 41st Session of the International Civil Aviation Organization adopted proactive resolutions for the future development of international civil aviation on the one hand, and the United States became the first space-faring nation to undertake  to cease its original intent   to test anti-satellite weapons and pledged  to encourage other major powers to follow its lead.

Regrettably these proactive trends were foreshadowed by a global trend of misbehavior during the year. 

Gross Global Misbehavior

On 22 February, Russia invaded Ukraine – a sovereign democratic nation which seemingly was minding its own business. Many would argue that this event was inconsistent with the fundamental rules enunciated in the foundation of international law contained in the United Nations Charter. Article 2.4 specifies that all Members of the United Nations must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.  While this principle can be considered relevant  to Russia’s violent invasion of Ukraine on the one hand, Article 51 of the Charter can be invoked in defense of Ukraine which acted in self-defense.   Article 51 states that  nothing in the Charter must be deemed to impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council of the United Nations has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense must  be immediately reported to the Security Council and will  not in any way affect the authority and responsibility of the Security Council under the Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Article 51 gives the Security Council the power to intervene and take “necessary action” – which is further expanded in Article 41- which empowers the Security Council to take non-military measures in the first instance and the intervention of the Security Council  and further expanded in Article 42 of the Charter which stipulates that.  should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

However, the legislative impotence of these treaty provisions is made blatant  by the fact that such action as recognized in Articles 41 and  42 can be vetoed in limine by any permanent member of the Security Council (The 5 permanent members are China, France, Russia, the United Kingdom, and the United States).So much for that.

Elsewhere, in the United Kingdom political turmoil was taken to unprecedented proportions when the country saw three prime ministers elected by the Conservative party in just two months.  The first instance involved scandal and misbehavior during the height of the COVID crisis; the second resignation of the short-lived Prime Minister was due to feckless insouciance in economic and financial policy which upended the markets, rendering the country gravely unstable.   

Tension between the two greatest powers – United States and China grew. The policy statement issued in October under the Biden administration focusing on  National Security Strategy said in diplomatically frank and open terms: “China harbors the intention and, increasingly, the capacity to reshape the international order in favor of one that tilts the global playing field to its benefit,” and the United States intends to “win the competition.” The policy statement was also impliedly alluding to Beijing’s militarization of the South China Sea, its somewhat uncanny support for Russia’s invasion of Ukraine, its many provocative and aggressive maneuvers and  efforts calculated to intimidate Taiwan, and its alleged theft of intellectual property in vast proportions.

Coming to the Middle East a far-right government which some claim to lead to an illiberal democracy was put in place in Israel which may cause justifiable trepidation in the international community in the context of the ongoing and intractable Israeli-Palestinian issue.  

One of the worst, and most egregious demonstrations of misbehavior occurred in Iran. “Morality Police” in Tehran proceeded to arrest Mahsa Amini – a twenty-two-year-old Kurdish-Iranian woman visiting Iran’s capital city – on the charge of failure to cover her hair properly. She died in police custody. Mass protests erupted in September across the country, primarily led by women against this outrageous  killing. The signature cry of the protesters was “Women, life, freedom!” The political situation in Iran led to an  absurd claim by Iranian leaders who accused the United States and Israel of interference and misbehavior in engineering the protests.  This was  arguably with a view to shrouding the government’s political repression, corruption, and mismanagement of the economy. To make matters worse, the Government of Iran ordered the use of force against the protesters with a view to quelling the protests. It is reported that as many as 450 protesters had been killed on the streets by Iranian security forces by December.

Further East, on 24 December and in flagrant disregard and abuse of women’s’ human rights, the Taliban government ordered all foreign and domestic non-governmental groups in Afghanistan to suspend employing women, again with the tenuous accusation that some female employees didn’t wear the Islamic headscarf correctly. The ban was an unfortunate and regrettable follow up of an earlier move by the Taliban authorities to ban women from universities.


On a global level one of the worst examples of human misbehavior is the failure to stand together on the environmental front, where climate change is one of three major defining megatrends of our time (the other two being the looming and portentous threat of nuclear war and the exponential forward march of the technological revolution). At the 27th Conference of the Parties (COP/27) of the United Nations Framework Convention on Climate Change (UNFCCC) which opened on 7 November 2022 in Egypt, The Secretary General of the United Nations  called the climate crisis the defining issue of our age. And the central challenge of our century.  He added that the world was on the highway to hell with the foot firmly on the accelerator and that it is unacceptable, outrageous, and self-defeating to put it on the back burner .  The Secretary General called for “a historic Pact between developed and emerging economies – a Climate Solidarity Pact.  A Pact in which all countries make an extra effort to reduce emissions this decade in line with the 1.5-degree goal.  A Pact in which wealthier countries and International Financial Institutions provide financial and technical assistance to help emerging economies speed their own renewable energy transition.   A Pact to end dependence on fossil fuels and the building of new coal plants – phasing out coal in OECD countries by 2030 and everywhere else by 2040” .

One of the greatest obstacles to combatting climate change at a global level is the lack of political will which can be put down to the irresponsible indifference of States.   As of September 2022 Only 38 countries had filed their National Adaption Plans .  COP/27 ended with the retention of the 1.5c goal (compared to pre industrial levels) and an agreement on a fund to compensate developing countries for losses and damage caused by the climate crisis. However, the conference failed to agree on concrete steps to wind down the use of fossil fuels.

With these goings on, we can only hope that the world will conduct itself more responsibly in 2023.

Christmas – The Feast of Light and Peace

4 mins read

Someone once wondered why in every manger displayed at Christmas there was a bright light on while the rest of Bethlehem was in pitch darkness.  Christmas reminds me of when the three wise men followed a shining star that took them to the newborn.  Christmas is the story of light, as is Hanukkah, the Jewish festival of lights, and of giving;  So is Deepavali, the festival of lights for the Hindus.

To me, the most significant symbol of the nativity commemorating the birth of Jesus is the light displayed in the manger innovatively by the creators of Christian imagery. 

Light is life against death.  Light is hope that we have against darkness; against the evil and danger that lurks in the dark. Would the Christmas of light come to us this Christmas wherever we may be?

On 25 December each year the world celebrates the feast of Christmas, when Jesus – also called the Prince of Peace – was born.  It is said in Isiah 9.6 : and the world rejoiced and cried out, “Unto us a Child is born, unto us a Son is given. And the government will be upon His shoulder. And His name will be called Wonderful, Counselor, Mighty God, Everlasting Father, Prince of Peace!”  In other words, the spirit of Christmas should essentially bestow peace on earth and goodwill to all humanity.  The spirit of Christmas is also “truth” as mentioned in the Holy Quran – that Jesus stood for the word of Allah, or truth: records that “though Jesus is mentioned by name in twenty-five places in the Holy Quran he is also addressed with respect as: “Ibne Maryam” – son of Mary; as Masi (Heb) Messiah – translated as Christ; “Abd-ullah” servant of Allah; “Rasul -Ullah” – Messenger of Allah. He is spoken of as “the word of God”, as “the spirit of God”, as a “Sign of God”, and numerous other epithets of honour spread over fifteen different chapters. The Holy Quran honours this great Messenger of God, and over the past fourteen hundred years Muslims continue to hold Jesus as a symbol of truth”.

One interpretation of the words of the Old Testament and the Holy Quran is that Jesus – The Ruler of Israel – ruled through peace and truth.  This is so pertinent in the current context of the world – of fake news; disingenuity and self-service on the one hand and the brutal destruction of humans and cities on the other. The symbolism of Christmas, particularly in its original setting, brings to bear the real significance of the event as a harbinger of peace and happiness and the heralding of understanding and compassion particularly of those in power toward their fellow beings.

Once upon a time, in the lonely darkness of the mountain lived a little girl with her family, fearful of the secrets of the night which brought invaders who purveyed evil.  They were hiding from evil, with no food and shelter.  The cold winter chill was gnawing at their emaciated bodies and bones.  That night they came and took her away, far beyond this earth.  The snow was falling in thick flakes around her and the wind was howling, stopping every now and then as if to catch its breath.  She felt lonely and sad.  Some distance away, as if suspended in the sky was this white dove who invited the little girl on his back.

The dove rose
towards plumes of white cloud
searching the heavens
for children of God
On his way they  met a child
his face in smiles and eyes so wild
a mix of sadness and of joy
was stamped on the countenance of the boy
“Are you God’s child?” inquired the dove
“I am the child of eternal love”
“Pray why is’nt there peace on Earth?”
they inquired  with no mirth
“your world does not want peace, dove
nor do they want eternal love
the boundaries you have striven to make
do not admit of give and take
and only those who do suffer
from war and strife would prefer
that peace prevails for all mankind

The dove took the little girl far away from the darkness of the night, into the light.  The next morning the little girl was found dead at the foot of the mountain, ravaged by the evil visitation of the night.    

The purity of Christmas  gives  us solace from a world of inequity, corruption and evil. The symbolism of Christmas, particularly in its original setting, brings to bear the real significance of the event  as a harbinger of peace and happiness and the heralding of understanding and compassion particularly of those in power toward their fellow beings.  Christmas is  a time for introspection; of self examination for self worth.  It is a time that all of us should  demonstrably show our  capacity to shed differences and work toward the common human goal of peace.  The Christmas season calls us to nurture our boundless spirit of giving, particularly to those in distress. 

It is recorded that Jesus talked of famines, pestilences, and earthquakes in various places (Matt. 24:6-8).  This is part of human existence and an unfortunate reality.  In the case of the current pandemic, there is one word that will help the world and that is “restraint”.  Science advises us that we must restrain ourselves from succumbing to the temptation of celebratory gatherings at Christmas.  We must also restrain ourselves from flouting directives whether they be given by our employers in training sessions or by public authorities.  However, this is not enough.  There is one more word that is inextricably linked to our audacious hope of the return to global health: “responsibility”.

Christians believe that Jesus was born to redeem us from sin and the imperfections of social debauchery.  This is the message of Christmas.

We have cling to our audacity that the birth of the Prince of Peace will bring the World together in the New Year and from the ashes of a divided world will rise a united humanity with mutual respect and the abhorrence of self service among nations.   Emer de Vattel, in his 1758 treatise Droit de gens – The Law of Nations– enunciated this fundamental principle: “A nation then is a mistress of her own actions as long as they do not affect the proper and perfect right of any other nation – – so long as she is only internally bound, and does not lie under any external or perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty…”

Vattel’s statement meshes well with what President Obama said in his book  The Audacity of Hope where he says: “We will need to understand just how we got to this place, this land of warring factions and tribal hatreds. And we will need to remind ourselves, despite all our differences, just how much we share: common hopes, common dreams, a bond that will not break”. 

Let us hope the child of eternal love will keep a light on that shines bright,  bringing us hope in the coming year.

International Migrants’ Day – Putting Things In Perspective

4 mins read

Our immigration system is a broken system that needs to be fixed. We need reform that provides hardworking people of good character with a real path towards citizenship.” ― Joe Baca

On 18 December of each year, the world joins the International Organization for Migration (IOM) in celebrating International Migrants’ Day. The theme for this year is “I Am a Migrant”, and IOM most appropriately conveys the message that the organization will focus on sharing the message that “migration is a universal phenomenon that has taken place in all cultures and societies since time immemorial”. The United Nations estimates there are 281 million migrants across the world. A migrant is “any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of: the person’s legal status; whether the movement is voluntary or involuntary; what the causes for the movement are; or  what the length of the stay is”. As Maxine Alleyne-Esprit, Communications Assistant for IOM Dominica (where celebrations are held this year) said:  “This year, on International Migrants Day, we choose to focus not only on the needs of migrants, but also on their values and active contributions to change, social progress, and resilience.  We at IOM are making a global call to end all forms of discrimination against migrants”.

On 18 December 1990 the United Nations General Assembly adopted The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) that is intended to ensure equality and dignity of all migrant workers now spread across the world.  ICRMW was adopted by the UN General Assembly through Resolution 45/158 without a vote on December 18, 1990 and entered into force on 1 July 2003.  It is the most recent UN human rights treaty to come into force. A migrant worker has been defined as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”.

Of the 17 United Nations Sustainable Development Goals (SDGs) for 2030 11 are said to be relevant to the recognition of equitable and dignified treatment for migrants of which direct reference can be seen in SDG 10.7: “to facilitate orderly, safe, regular, and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies. Other targets directly related to migration mention trafficking, remittances, international student mobility and more. Moreover, migration is indirectly relevant to many more cross-cutting targets”.

In December 2020 193 States who are signatory to the Global Compact for Migration (GCM) saw the official publication of the  GCM containing 23 objectives, all of which resonated the central theme of the right of human mobility with dignity, in a safe, regular and an orderly manner . The GCM is non-binding on States and is respectful of States’ exercise of sovereignty over their territories and the sovereign right to determine who enters and stays in their territory. However, it remains persuasive by demonstrating commitment to international cooperation on migration. The GCM offers guidance on governance of migration and the various challenges that are faced by States in allowing migrants into their territories.  More notably, the 23 objectives of GCM are calculated to strengthen the contribution of migrants and migration to sustainable development. The Global Compact is designed to: “support international cooperation on the governance of international migration; provide a comprehensive menu of options for States from which they can select policy options to address some of the most pressing issues around international migration; and give States the space and flexibility to pursue implementation based on their own migration realities and capacities”.

International Migrants’ Day should make us aware that  the story of migration goes back 1.75 million years when Homo Erectus began moving from Africa to Australia, Asia and the Americas. This essential activity has been continued by Homo Sapiens for whom migration has been an essential human activity that helped populate the world in its entirety.

In the present context, migration has become a complex issue, as Yuval Noah Harari says in his book 21 Lessons for the 21st Century: “As more and more humans cross more and more borders in search of jobs, security, and a better future, the need to confront, assimilate or expel strangers strains political systems and collective identities that were shaped in less fluid times”. Professor Harari views migration as a bilateral and reciprocal “deal” between the people of a recipient State and the migrant, which has three conditions: the host country allows the immigrants in; in return the immigrants must embrace core norms and values of the recipient or host State, even if that entails giving up some of the migrants’ values and norms; and if the immigrants succeed in assimilating into their host societies and communities at least to a sufficient degree, they would be eventually be recognized as equal and full members of the host country.  In his words “they become us”.

This having been said, the often heard protestations against migration have been based on the fact that migrants do not fully integrate; they overburden the labor market and steal jobs that are the rightful claims of the natives; they muddy or corrupt long established local values; and create instability in local society and communities.  Whatever the merits of these fears are, the benefits brought in by migrants are claimed to override the concerns.  Giovanni Peri writing in Berkeley Review of Latin American Studies (Fall 2013) says:   “In the United States — and in many European countries — the foreign born have become a large and growing presence in the home services sector. Home services include cleaning, food preparation, and gardening, as well as personal services such as child and elderly care. These jobs are often characterized as “household production” services. The increased presence of immigrants in this sector has made home services more affordable, which in turn has allowed more native-born women — especially highly educated women — to join the labor force or to increase their hours worked…

Highly educated immigrants are a huge asset for the U.S. economy, which attracts scientists and engineers from all over the world. One-quarter of the U.S.-based Nobel laureates of the last 50 years were foreign-born, and highly educated immigrants account for about one-third of U.S. innovation. In 2006, immigrants founded 25 percent of new high-tech companies with more than $1 million in sales, generating income and employment for the whole country. Innovation and technological growth are the engines of economic growth in technologically advanced countries like the United States, where attracting and training new scientists and engineers is key to continued economic success”.

In a world that is currently over sensitive to human rights and human safety, the overriding consideration should be human dignity, which is the key driver for ensuring equal rights for migrants, most of whom migrate from repressive and destructive war zones, famine driven and drought affected countries, and places where employment opportunities are non-existent.  In this perspective the IOM has to be lauded in its dedication of this year’s International Migrants’ Day to   not only focusing on the needs of migrants, but also on their values and active contributions to change, social progress, and resilience.  The IOM’s global call to end all forms of discrimination against migrants is therefore both appropriate and justified.

International Civil Aviation Day – A Different Perspective

4 mins read

The United Nations has recognized 7th December of each year as “International Civil Aviation Day” and this year, the International Civil Aviation Organization (ICAO) – which is the specialized United Nations agency on the subject of international civil aviation – has given this day the theme “Advancing Innovation for Global Aviation Development. This theme – which is laudable, given the modern world we live in – is, in and of itself both ambivalent and ambiguous in the use of the word “innovation”.  From a hermeneutic point of view, the more progressive approach would be to interpret the word as referring both to scientific and technological innovation as well as creative and innovative thinking on reviewing the Chicago Convention of 1944 which was signed on 7 December 1944 and which entered into force in April 1947.  It has been 75 years in application with very few amendments to it. Since it is after the Chicago Convention that International Civil Aviation Day is named,  this day should be primarily looked at in the perspective of the effectiveness of the treaty in its service to the international aviation community.

The Chicago Convention established ICAO, ascribing to the Organization its aims and objectives (not a “mandate” as often misquoted). Therefore, ICAO is guided by the principles of the treaty. Although there are no specific provisions in the Chicago Convention that inspire “innovation” there is much room in its overall philosophy to innovate through interpretation of the provisions to suit modern times.

  As a treaty , the Chicago Convention  is intriguing as well as unique in its terminology and presents many ambiguities which make it somewhat difficult to interpret, opening it to review.  The Vienna Convention  on the Law of Treaties (the principles of which apply to the Chicago Convention) in Article 31 (1) and (2) states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In this context there are two issues with the Chicago Convention.  One is its terminology which sways back and forth on its lack of precision. Words such as  “States may” (discretionary) , “States recognize” and “undertake”, “deem”  as well as “shall” (peremptory)  and “ This Convention shall be applicable only to civil aircraft” (peremptory), “the contracting states recognize” (acknowledge?) do not provide States precise guidance as to what they are obligated to do or not under the Convention.

These various terms which are couched in ambiguity make it difficult to interpret the true intent of the drafters of the treaty from an originalist point of view.  The only conclusion one can make is that the founding fathers of the Convention, realizing that air transport could evolve exponentially in the future, left room for interpretation as exigencies demanded. This ambivalence has blurred the clarity required in the Convention.    Furthermore, these terms make it even more difficult to place them in the modern context in a meaningful way.   One commentator addressed this difficulty by saying “the problem of treaty interpretation…is one of ascertaining the logic inherent in the treaty and pretending that this is what the parties desired.  In so far as this logic can be discovered by reference to the terms of the treaty itself, it is impermissible to depart from those terms. In so far as it cannot, it is permissible”.

The problem with the Chicago Convention is that, given its variance in abstruse terminology, the Vienna Convention itself – the beacon that shines a light on treaty law – has added to the  obfuscation in laying down general principles that a treaty must  be interpreted in good faith in accordance with the “ordinary meaning” to be given to the terms of the treaty in their context and in the light of its object and purpose.  “Ordinary” connotes a common, routine, or usual context of a normal order of things and events and it may not clearly provide interpretative guidance. The Chicago Convention and many of its Annexes which are technical in nature contain technical terminology and not ordinary words.  In a hermeneutic sense the Chicago Convention and its unique and esoteric regime cannot always be interpreted in ordinary usage.  In the aviation industry which is heavily regulated with regional, transnational, and national regulations which are all expected to be under the umbrella of the Chicago Convention, any application of “ordinary meaning” of text must be teleological and related to the object and purpose of the provisions of the treaty.

Another difficulty presented by the Chicago Convention is the lack of accessibility by many States to knowledge of their obligations under the Convention.  In particular, States do not have a clear picture of their obligations in terms of ratification of amendments to the Chicago Convention. At the 41st Session of the ICAO Assembly which concluded on 7 October of 2022 The Republic of Korea pointed out “States do not have sufficient information about amendments made to international air law instruments. ICAO needs to continue to make the effort to ensure Contracting States can easily be aware of and understand the amendments. There is no clash between a ratifying Contracting State’s international air law instruments and those of a non-ratifying Contracting State, and therefore, both remain valid. There is coexistence among ratified international air law instruments that remain valid between ratifying Contracting States, non-ratified international air law instruments that remain valid between non-ratifying Contracting States, and nonratified international air law instruments that remain valid between ratifying and non-ratifying Contracting States. Thus, a harmonious international law order continues to remain in place”.

ICAO Assembly, in response adopted a Resolution which inter alia urged all Contracting States (to the Chicago Convention)  which so far had not done so to ratify those amendments to the Chicago Convention which were  not yet in force, while urging  the Secretary General of ICAO to take all practical measures within ICAO’s means in cooperation with States to provide assistance, if requested, to States encountering difficulties in the process of ratification and implementation of the air law instruments, including the organization of and the participation in workshops or seminars to further the process of ratification of the international air law instruments.

Hopefully, International Civil Aviation Day in 2023 would be on the theme of the relevance of the Chicago Convention to international civil aviation in modern times.  

Twists and Turns of Megatrends and Their Indicators in 2023

5 mins read

You cannot escape the responsibility of tomorrow by evading it today ~ Abraham Lincoln

We are barely a month away  from 2023 and the world has moved in unprecedented ways in 2022, forcing us to  hold our breath against the unrelenting winds of change.  A bewildered international community has witnessed a  rules-based international system being upended. Arbitrary and capricious geo political tactics; our implacable attitude towards climate change and lack of collective commitment; the exponential advance of technology playing to the inexorable strings of  Moore’s law ( the number of components in integrated circuits doubles every two years); the portentous disaster from nuclear abuse; and unexpected economic shifts, all stare at our faces as we prepare for a new year of hope. Hope that we may gradually get rid of the pandemic threat present and future; hope that the geo political trends will stabilize; and above all that we could have a better standard of living from the base of Abraham Maslov’s pyramid of needs to its apex.

Amidst this chaos, the megatrends we have so far identified – which are powerful global transformative forces that affect our existential future and change the global infrastructure, economy, business and society – will still remain. These megatrends are: shifting global economy; climate change and resource security; technological change; shifts in demography, social change and choices; population explosion and rapid urbanization; and inter connectivity.  All these have shown twists and turns, adding two possible trends which could possibly emerge as mega trends in the near future. These are  water scarcity and water wars (which can be identified as corollaries to climate change as well as geopolitics) and  the global rise of the middle class.

Before getting to the water crisis, mention must be made of the rise in middle class at the global level adding another twist in megatrends and that is the rise of Africa, and the significant economic shift toward the continent which cannot be relegated to the background anymore.  Africa has the fastest growing middle class in the world.

Rana Foroohar, Global Business Columnist and an Associate Editor at the Financial Times, and CNN’s global economic analyst says: “Africa has the fastest growing middle class in the world. Sure, we are talking about people spending about $2-20 a day, but this is a huge increase from only a few years ago. In my mind, Africa is where China was a few decades ago. Massive, unorganized, underutilized, but with a huge untapped potential. Of course there are striking differences in culture, history and social structures (plus Africa is a continent comprising several countries), but they seem to follow a similar path towards growth.

On a same note, China seems to be entering a maturity phase after years of massive growth. Its economy is slowing down and its population is ageing. People are finally starting to spend more. Frankly, it reminds me a bit of Europe a couple of decades ago”.

The water crisis is mainly due to the unequal distribution of water. Water is crucially essential to human beings. Arguably, water is the essence of human existence and we can barely survive a few days without access to it. Historically, it is an incontrovertible fact that that human societies and civilizations sttled in areas that had abundance of water. In the modern world, growing population and the climate crisis are two contributary factors to the acute water crisis we face. Experts at the World Resources Institute have said: “Water is likely to cause the most conflict in areas where new demands for energy and food production will compete with the water required for basic domestic needs of a rapidly growing population”.

Within these megatrends – which take years to unfold – are indicators which are seen in the short term transitioning from year to year with characteristics that are embodied in megatrends. Ruchir Sharma, Chairman of Rockefeller International and Founder and Chief Investment Officer of Breakout Capital, and author of 10 Rules of Successful Nations, in a recent interview unfolded ten indicators.  I give below my understanding of what Dr. Sharma said at the interview with the caveat that any error in the  erroneous explication of Dr. Sharma’s views are mine alone.

Dr. Sharma began by saying that trends are determined on a decadal pattern, where economic trends evolve decade by decade.  In 2023, Dr. Sharma predicts that the United States will peak economically (giving a twist to the megatrend which indicates that there will be an economic shift from the West to the East) while the rest of the world would also rise. Also, in 2023 the top ten companies in the world will struggle in the next decade and small companies will flourish.  Dr Sharma sees a potential fall of the big tech companies which will still remain strong but diminish in growth and wealth creation.  Next year will also see a trend toward de-globalization where capital, migration and protectionism will take center stage, largely due to populism.  The trend that has already started on emphasis being laid on local goods and services will continue, prominent among which will be data localization, again as a corollary to rising nationalism, protectionism, and surveillance.  The end result would be that de-globalization will make way for localization.

Another trend identified is the shrinking working population where a distinct decline in working age population can be observed.  There will be fewer people joining the workforce, bringing to bear a negative effect on the global economy where fewer people at work would mean lower growth.  Another trend is that there will be changing consumer spending, particularly by the new generation – millennials who are between the ages 22-37 ( the generation gap is chronologically identified as Generation Z- under 21 years of age; Millennials – 22-37; Generation X – 38-55 years, baby boomers – 54-71, and the silent generation – over 72).  The new generation will perpetuate new consumption habits based more on experiences rather than material goods.  Gaming will be the largest generator of consumption and wealth creation.

Another indicator identified by Dr. Sharma is that populism will surge, and polarization will increase politically notwithstanding that it has already deepened to unacceptable proportions. Added to this disturbing trend will be the undesirable return of inflation due to low growth which will be the result of low employment. The Fourth Estate – the media – will continue to diminish in usage (and perhaps credibility) as people are receiving less news due mostly to the decline in print media.  Traditional media, which has been the bulwark of democratization of society will continue to give way to what Dr. Sharma calls the Fifth Estate – online news (such as twitter) which will continue to serve as the more popular medium.  Finally, there will be a continuation in the rise of inequality – which President Obama called the defining factor in our lives – as an example of which Dr. Sharma cites India, which had 49 billionaires in 2010 whereas there were 106 billionaires in 2019.

Admittedly, Dr. Sharma, who is an expert on finance and economics, focused more in his areas which inexorably have an impact on all the megatrends and indicators.  To this one might add public health, the resources of which were seriously impeded and impacted  to unbearable proportions during the Pandemic.   In 2023 one could look forward to a heightened sense of awareness in this area. There are four scenarios to envision as plausible: that the Covid-19 virus might stay on continually, whether in Pandemic form or not; that the Pandemic and the virus will go away like the SARS virus did; and that, depending on these two scenarios our lifestyles will change; or we would go back to living the way we were.

There are two certainties that the Pandemic would bring to bear in any of these scenarios.  These are a health revolution and a communication revolution of sharing information, both of which the world had not seen before in the intensity that they would be present in the future.  In this context the generation that would impact the next 5 to 10 years most would comprise the Millennials.  Whichever way we go in the scenarios mentioned above, Millennials would take center stage in the health revolution and the communication revolution.

The Need for an International Anti Corruption Court

4 mins read

“You know the old Russian proverb.  What’s mine is mine, and what’s yours is mine.” ― Daniel Silva, The Cellist

In a recent interview on BBC’s HARDtalk, the interviewee was Judge Mark L. Wolf – a Senior Judge of the United States District Court for the District of Massachusetts and Chair of the NGO Integrity Initiative International – who had initiated a proposal for the establishment of an International Anti Corruption Court (IACC)  at various fora such as the 2012 St. Petersburg International Legal Forum; the 2014 World Forum on Global Governance, and in platforms such as the Brookings Institution and The Washington Post with articles in 2014. At the interview, Judge Wolf clarified that the proposed IACC would not only target corrupt leaders of countries but also any individual or entity that is allegedly guilty of kleptocracy.

In March 2019 at a discussion convened and hosted by The American Academy of Arts and Sciences and  participated by a distinguished array of judges, attorneys, human rights specialists, and academics, discussions ranged from the meaning and purpose of an IACC – as to whether such a body would be able to contribute to global peace and security- to the methodology to establish an IACC.  Judge Wolf was an active participant in this event as well as  Robert, President Emeritus of the World Peace Foundation, Founding Director of the Program on Intrastate Conflict at the Harvard Kennedy School, and Justice Richard Goldstone, formerly of the Constitutional Court of South Africa and Chief Prosecutor at the initial United Nations International Criminal Tribunal for the former Yugoslavia.

The IACC is suggested as a punitive judicial tool to counter kleptocracy which is defined as a society or system ruled by people who use their power to steal their country’s resources. The initial problem with bringing those guilty of kleptocracy is that often they act with impunity as the institutions that are charged with countering this egregious activity are controlled by them and are therefore destitute of effectively carrying out their duties.  

It is distressing that kleptocrats are everywhere in various forms of human embodiment and form a systemic threat.  At the forefront are corrupt politicians who, in Justice Goldstone’s words “are abetting other compromised institutions, such as the judiciary, police, and prosecutorial offices, thereby making domestic prosecution ineffective”. The learned judge went on to opine that a  supranational, neutral institution would be the last resort to hold officials accountable for their corruption and theft of resources belonging to a State in these countries to account by enforcing  internationally recognized protocols against corruption.

In manner and form the proposed IACC would derive inspiration from the currently existing International Criminal Court (ICC) and have  the authority to prosecute instances of grand corruption by high-level political leaders. The American Academy of Arts and Sciences in its 2019 Bulletin says: ” Just as nations that are signatories to the ICC are subject to its jurisdiction, so too would signatories to the IACC allow the Court to serve as a venue of last resort for violations of the United Nations Convention Against Corruption (UNCAC). The Court would be empowered only to bring charges when a signatory to the UNCAC did not make a good faith effort to bring charges”.

It is encouraging that there is already in effect a multilateral treaty against corruption.  The UNCAC is the only legally binding international anti-corruption multilateral treaty. It was adopted by the United Nations General Assembly in October 2003 and entered into force in December 2005.  However, treaties can only be enforced on States Parties who ratify them.  Even if an IACC is established through a treaty, such a court would be ineffective against a non-party to the treaty establishing the court.  Nonetheless, its importance cannot be understated.  One alternative would be to bring the treaty into the domestic jurisdiction of a court through  the Global Administrative Law (GAL) theory which posits that the administrative law type of mechanisms allow individual and national courts to be part of a checks and balances system of global governance in anti corruption. Here,  global governance does not mean world governance but instead  a global approach to the governance of anti corruption that requires each component system, including international, domestic and global institutions to collaborate with each other.

GAL came into existence as a theory in the first decade of the 21st Century.  The importance of GAL is apparent in the current context  where the world is dominated by such forces as social media through which many practice post truth, cancel culture, and fake news that can enable spin doctors and ideologues to deflect the truth about their own corruption.  The GAL Project is focused on an emerging field of research and practice where administrative law-type mechanisms that address issues of  transparency, participation, accountability, and review operate within the parameters of global governance.

The GAL theory posits that administrative law and its principles must be applied not as a mutually exclusive realm but in conjunction with the principles of international law and other related disciplines. Like domestic administrative law, GAL could be an amalgam of a scholarly approach or methodology and a set of actual norms, ‘practices’, or activities or mechanisms.  In other words GAL would be a combination of the legal rules, principles, and institutional norms that apply to administration from a global perspective rather than a structure that demonstrate and exhibits a mere intrastate legal and political realm of authority.

GAL would be a necessary adjunct to the web of treaties that are adopted by the United Nations but unfortunately is riddled with the discretionary option that States have in being the ultimate arbiter of being bound by such agreements.  Of course, the United Nations is neither the world’s judge nor its police, as Dag Hammarskjold, a Secretary General of the United Nations said: ”  The UN was not created to take mankind to heaven, but to save humanity from hell”.  There is something in what Judge Wolf said at the BBC interview – that an IACC would be outside the jurisdiction of the United Nations – an individual and independent body that is not established by a treaty of the UN. This principle, coupled with the infusion of GAL, could well be the basis of an IACC.

Climate Change and The Fossil Fuel Paradox

4 mins read

“We are on a highway to climate hell with our foot still on the accelerator” ~ Antonio Guterres, Secretary General of the United Nations

The Secretary-General made the above statement at his opening speech at the 27th Conference of the Parties (COP/27) of the United Nations Framework Convention on Climate Change (UNFCCC) which opened on 7 November in Egypt and was attended by 110 heads of State. He went on to say “ It is the defining issue of our age.  It is the central challenge of our century.  It is unacceptable, outrageous, and self-defeating to put it on the back burner.  Indeed, many of today’s conflicts are linked with growing climate chaos”.  

This has all been said before at preceding COPs. Only, the rhetoric was stronger this time, perhaps delivered in the hope that it would shock a  quiescent world out of its slumber of ineptitude and feckless insouciance. The Secretary-General called for “a historic Pact between developed and emerging economies – a Climate Solidarity Pact.  A Pact in which all countries make an extra effort to reduce emissions this decade in line with the 1.5-degree goal.  A Pact in which wealthier countries and International Financial Institutions provide financial and technical assistance to help emerging economies speed their own renewable energy transition.   A Pact to end dependence on fossil fuels and the building of new coal plants – phasing out coal in OECD countries by 2030 and everywhere else by 2040”.

All this is old hat, regurgitated over the years albeit now presented in a new format.  Hundreds of billions of dollars have been promised by the developed countries to the developing countries as assistance to face the impending disaster which is threatening their ecosystems, food supplies and their very existence as nations on this planet. That promise has not yet been delivered, but Ibrahim Pam, Climate Expert and Head of the Green Climate Fund expressed enthusiasm at COP/27  that “ there is heavy support for the creation of the Climate Change Support Fund, especially for developing Countries”.

There is no gainsaying that in this Anthropocene, climate change is the most serious natural disaster we are facing and that, as agreed in the Paris Agreement of 2015, the world has to limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels.  Furthermore, one has to agree that the scientific community has approached this issue with vigour and dexterity.  However, what strikes one in this confederacy of pomp and circumstance is the diversity of opinion and approach.  China and India – two of the biggest users of coal – have given every indication that they intend to keep using coal, let alone reduce their use. Of the big polluters, only Britain and Australia have presented new climate targets. The United States and China have not submitted anything, while the European Union is working on a redefinition of the National Voluntary Contributions to reflect the additional cuts that will result from plans against the energy crisis and to release Russia’s gas.

There is also a paradox in the call for a Solidarity Pact to “end dependence on fossil fuels and the building of new coal plants – phasing out coal in OECD countries by 2030 and everywhere else by 2040.  This raises questions such as: do the advantages and benefits brought to bear by the use of fossil fuels as sources of energy outweigh the damage caused by fossil fuels? what would a world without fossil fuels look like in terms of overall living standards and sustenance of humankind? Alex Epstein – an energy expert and founder of the Center for Industrial Progress – in his book The Moral Case for Fossil Fuels, while claiming that the use of fossil fuel would grow in the future and that fossil fuel use would only be of benefit to the flourishing of humanity far outweighing its negative effects, including negative climate impacts, asserts that fossil fuels provide low-cost, reliable energy that would serve a world which would exponentially need more energy progressively, and be of tremendous use to the billions who do not use energy at present.  Furthermore, low-cost fossil fuels would be needed to power machines which are only increasing in output to cope with the growing existential demands of the world population and to combat climate change, more importantly, fossil fuels would play a role in the technology that would be the impetus for human ingenuity to control vacillations of the climate.  These claims are further buttressed by the anticipated results of the arguments pro-fossil fuels – that instead of destroying the world, the use of fossil fuels would make the world a far better place, where billions could be rescued from poverty, giving them a higher quality of life and safety from the hazards wrought by climate change.

In his second book Fossil Future: Why Global Human Flourishing Requires More Oil, Coal, and Natural Gas – Not Less Epstein argues that the rapid elimination of fossil fuel usage, if fully applied would cause “apocalyptic” effects, making people impoverished in a dangerous and miserable world. As food for thought, Epstein goes on to say that, although we should take climate change seriously, the use of fossil fuels per se should not be subject to a moral obligation to eliminate it, saying that historically, there have been instances where the justification by experts of such evils as slavery, racism and eugenics have been since rejected by society as morally reprehensible.   

Whichever way the wind blows at COP/27, one thing is clear: States should put their money where their mouth is and commit, as the Secretary General of the United Nations has said,  to a collaborative solidarity pact towards financing and implementing a global mechanism that would enable the world to reach the target of the Paris Agreement. Whatever pompous, pedantic and pretentious speeches are made, the COP should accept that the system so far has not worked despite pledges, promises and mechanisms. The United Nations Environment Programme Emissions Gap Report 2022 Closing the Window says: “Countries’ new and updated nationally determined contributions (NDCs) submitted since COP 26 reduce projected global greenhouse gas (GHG) emissions in 2030 by only 0.5 gigatons of CO2 equivalent (GtCO2e), compared with emissions projections based on mitigation pledges at the time of COP 26. Countries are off track to achieve even the globally highly insufficient NDCs”.

The concern of the world is that there will be serious adverse effects on the world if the global temperature goes above 1.5 c of pre-industrial levels during this century.  Scientists have opined that if this target is achieved the climate change problem will at least be alleviated. However, the problem with the climate change solutions offered so far is that, although the aim of the Paris Agreement of 2015 – which was entered into by States under the auspices of the UNFCCC and which entered into force on 4 November 2016, is to achieve not more than  2 c  above pre-industrial levels this century and most desirably bring it down to 1.5 c – nothing much has been done to implement a concrete global plan to achieve this target.  This makes the characteristics of the Agreement – which are that it is universal and legally binding, fair and differentiated, and sustainable and dynamic – open to question.