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India: Door to diplomacy

As we celebrate the first anniversary of Balakot, one of the biggest challenges facing the Indian subcontinent and West Asia is of managing cross-border air strikes

by Ashok K Mehta

On the first anniversary of Balakot, which is today, challenges of managing cross-border air strikes are worth recalling. Prevention of high-stake military action — initiation or retaliation — from escalation is the challenge. Recent air, drone and missile strikes in the subcontinent and West Asia demonstrate diminishing appetite for war and conflict. Whenever a conflictual incident has occurred, the immediate aim has been to de-escalate. Uri, Doklam, Balakot and the targetted assassination of Iranian General Qassem Soleimani demonstrated marked preference for containment and defusion rather than confrontation or escalation. A classic case of the absence of escalation control occurred during the 1965 Indo-Pakistan war where both sides played tit-for-tat.

Pakistan launched Operation Gibraltar, attacking by infiltrating Jammu & Kashmir. India retaliated at Hajipir and Kishanganga bulge in Pakistan-occupied Kashmir (PoK). Pakistan responded in Chhamb-Jauriyan. Pressed against the wall in Chhamb, India called in its Indian Air Force (IAF) and crossed the International Border (IB) in Sialkot and Lahore sectors, taking the war into the Punjab plains. Rawalpindi had believed its war would be confined to Jammu & Kashmir.

Now compare India’s surgical strikes in Uri and Balakot with the US drone strike against Soleimani. Language and vocabulary employed following these incidents make it clear that both the initiator and the responder aimed at de-escalation. Both the US and India have tried to alter the behaviour of Iran and Pakistan respectively, making both end their use of terrorism as instruments of State policy. In retaliation to the acts of terrorism, neither has wanted escalation after they initiated pre-emptive strikes or acted in anticipatory self-defence — a terminology used by India and the US. Although India’s air strike in Balakot was in retaliation to the Pulwama suicide attack, it was presented as pre-emptive action to ward off imminent terrorist attacks. The US drone strike on Soleimani was portrayed as revenge for earlier Iranian attacks on American interests and its allies in the Gulf region as also to prevent future attacks. As India wanted no escalation, it stated upfront that air attacks targetted the terrorist bases and that no further action was planned. The read-out was similar to pre-emptive attacks in 2016 against terrorist launch pads as reprisal for Uri. By completely denying Indian attacks, Pakistan absolved itself of any response.

But in reaction to Balakot, where the IAF struck for the first time inside Pakistan after the 1971 war and not in PoK, a Pakistani retaliation was inevitable. It came swiftly the next day when a package of F-16s crossed the Line of Control (LoC) and dropped their payload in Nowshera in a void, not on Indian military installations to obviate escalation. But Indian fighter jets scrambled, and in the dogfight, India claimed shooting down of a F-16 while Pakistan shot down a MiG 21 Bison, taking its pilot hostage. Content with retribution but intent on de-escalation, Pakistan agreed to return the pilot, though under US pressure. Pakistan’s announcement of the release of the pilot and India’s declaration that there would be no response to the Nowshera foray hastened the process of de-escalation .

Now compare Balakot with the US drone strike that eliminated Soleimani. Washington explained the operation as anticipatory self-defence. In order to deter wider conflict and asymmetric retaliation by Iran, the US counselled proportionate response even as Tehran put a bounty of $80 million on US President Donald Trump’s head. Iran’s Foreign Minister Javad Zarif said: “The US’ act of international terrorism targetting and assassinating Gen Soleimani is extremely dangerous and foolish escalation. The US bears responsibility for all the consequences of its rogue adventurism.” Iran’s supreme leader, Ayatollah Khamenei, promised revenge, which came through 12 precision-guided missile strikes against two US bases in Iraq, which were programmed to cause no harm to its soldiers and assets (like Pakistan bombing in Nowshera) to minimise scope for escalation despite Trump’s high-octane warnings for reprisals.

Retribution delivered, Zarif said: “Action taken in self-defence under Article 51 of the UN Charter has been concluded. We do not seek escalation or war.” Like Pakistan’s retaliatory strikes after Balakot caused no harm to India, Iranian missiles were sanitised to avoid escalation. Trump chose to step back and imposed only additional sanctions on Iran. For consumption of domestic audience, the Pakistan Air Force claimed causing huge damage in Nowshera.

Similarly, Iran fed its people the fake news that 80 US terrorists had been killed in revenge attacks. At the same time, it was able to demonstrate the impressive capability of its missiles, which were fired for the first time outside Iran in Iraq after the Iran-Iraq war. Neither the US nor Iran targetted each other’s territory. The US was deterred from escalation by the threat of stepped up asymmetric Iranian response against more than 70,000 American troops in the region scattered over US bases in 10 allied countries.

While in India-Pakistan conflicts the nuclear bomb was a factor for deterrence, in the US-Iran fight it was not. Prime Minister Narendra Modi had claimed during an election rally after Balakot that he had a couple of missiles ready for launch in case the Indian pilot was not released.

Although both the ground and air strikes launched across the LoC/IB were in the aftermath of the terrorist attacks in Uri and Pulwama in Jammu & Kashmir, New Delhi did not invoke Article 51 and the right to self-defence to retaliate. Instead, it utilised the principle of pre-emption to thwart imminent attacks in both cases. Arguably between pre-emptive action and anticipatory self-defence, the latter is more acceptable in international law.

While the US invoked anticipatory self-defence in eliminating Soleimani, Iran used the right to self-defence in attacking American bases. The problem arises while responding to non-State actors like India did in response to Jaish-e-Mohammed attacks in Uri and Pulwama. It specifically targetted terrorist launch pads/training bases in Pakistan, the country supporting/sponsoring terrorist groups and on whose soil they were located. The UN Charter covers only armed attacks by one State against another State under Article 51 that covers self-defence provision. In the US-Iran case, America attacked a terrorist entity in a third country, Iraq, and Iran, too, responded in Iraq.

Restraint and de-escalation have ensured that the imminent threat of war in West Asia has passed, though tensions remain. But another Pulwama or Uri will set alarm bells ringing again. On assuming charge, Army chief Gen MM Naravane warned Pakistan of pre-emptive strikes to deter cross-border terrorism. For military action, pre-emptive or in anticipatory self-defence to be salutary, it has to be executed periodically against terrorists bases like what the Israelis do: Mowing the grass in Gaza. But comparing Gaza with PoK/Pakistan will be wrong. Surgical air and ground strikes — even after the induction of Rafale — will not be the new normal as they were made out by the BJP during election rallies.

(The writer, a retired Major General, was Commander IPKF South, Sri Lanka and founder member of the Defence Planning Staff, currently the Integrated Defence Staff.)

Sri Lanka: The reality of the system

The cost incurred by the Government of Sri Lanka to maintain this corrupt system is huge. It is worth comparing the meagre sum of Rs. 20 that the Government spends per day on a destitute child in an orphanage with the money spent on motor vehicles for ministers and MPs which is over Rs. 50 million.

by Victor Ivan

The whole system of the country which has been crumbling is now on the verge of near collapse. The political regime, bureaucracy, intellectuals and the society in general did not have a sufficiently developed political imagination to understand the need to rectify the mistakes and errors that occurred from time to time, due to various reasons. The outcome of this situation was that they had become compounded and solidified, turning the whole system into a rotten and stinking mess.

Now the whole system of Sri Lanka is in a state of complete deterioration, and even then, it is strange that no one has been able to realise the need for correcting it through structural reforms. The only thing that can happen in a situation like this is the collapse of the entire system, before our very eyes.

The political system can be compared to a complex machine. Even a normal machine needs to be serviced on a regular basis and repaired when defects occur. Similarly, the political system also requires servicing and repairing. If these two basic requirements are not met adequately, it is likely that the machine may fall into disrepair before its time so that it can no longer be used.

The political system

Generally, in modern times, the lifespan of a political system is counted not by decades but by centuries. Britain has the oldest political system in the world. It is 1,427 years old. Switzerland has the next oldest political system; it is about 727 years old. It is not a representative democratic system that we find in the UK or the United States. It is a mixture of both representative democracy and direct democracy. The US Constitution is 233 years old.

Sri Lanka has adopted three constitutions during the past 72 years since Independence. The second Republican Constitution, which is 42 years old now, can be said to have become an utter mess that can no longer be used for successful State administration.

Generally, as indicated above, the lifespan of a constitutional system is counted by centuries. But, a constitution which has been adopted improperly and not maintained well with necessary services and repairs being effected when the need arises can collapse in a few decades instead of lasting for centuries.

Now, Sri Lanka is faced with a similar confusion. When a machine is completely dilapidated and collapsed, a similar machine or even a better one can be purchased from the market. But it is impossible to purchase a readymade system from the market when the political system of the country is collapsed. It should necessarily be built by the people of that country. It is not simple or easy, but a difficult and complicated task.

The stray journey

Lack of advanced thinking has had an adverse impact on the socio-political situation and the economy of Sri Lanka. There was no abolition of feudalism and the land tenure and the feudal service system associated with it even after gaining independence. There was no abolition of the caste system either. Also, there was no attempt to build the modern nation to ensure co-existence between different ethnic groups and religions. In this background, the political system can be said to have evolved without having a solid foundation.

Even though Sri Lanka gained independence without shedding a single drop of blood, 10 years after independence the country was plunged into ethnic conflict; 20 years later, it turned into a violent struggle that persisted for 30 long years making the country a land of incessant bloodshed on large scale. The divisive factors of race, caste and religion, in one way or another caused the violent youth uprisings in the Tamil north and the Sinhalese south.

The prolonged uncivilised environment prevailed in the country had a devastating impact on socio-political and economic system. It caused the whole system to be crippled, weakened and corrupt. In this process, both parties, the rebels and the security forces unleashed maximum cruelty on the society. A large number of people were killed, and all those who were able to survive physically, were killed spiritually to a greater of lesser degree.

In that horrific social environment, State rule had become a way of plundering public wealth. Eventually, this situation resulted in rendering the entire State and its institutional system ineffective and corrupt. Notwithstanding the Government being able to defeat, though belatedly, the two uprisings of the Sinhala youth in the south and Tamil youths in the north, both uprisings had however caused serious damage to the State, making it weak and degenerated.

After ending the internal civil war, it had become an essential condition to introduce structural changes and recreate the entire system which had become distorted and degenerated, in order to ensure the survival of the entire system. But neither the Rajapaksa Government, which won the internal war, nor the Yahapalana regime, which came to power later, was able to realise this need.

It can be said that the entire system had reached a level of collapse in the face of usual predatory policy followed by both regimes ignoring the essential reforms. The country is now on the brink of a catastrophic destruction.

Vehicle mania

Most of my time has been spent exploring and writing about the degeneration of the entire system, including the State of Sri Lanka. I believe that some of my experiences in this respect may be useful to understand this issue better.

The system of offering super grade motor vehicles for MPs, which they can use to earn a substantial income, at the cost of public funds can be considered a significant factor having symbolic importance, among many other factors, that has led to bankrupting the country. It was late President J.R. Jayewardene who initiated this shady system. It can be considered a corrupt and ugly system not operative in any other country where a democratic system of governance is being practiced.

The hidden purpose of offering a supra grade motor vehicle to MPs once every five years was to keep them happy by providing them with an opportunity to generate a large income by selling it at the end of five years. Later, this corrupt system was extended to senior Government officials as well. In addition to offering duty-free vehicle licenses once in five years, they were allowed to take home a vehicle worth Rs. 30 to 40 million for a comparatively negligible price of about Rs. 1 million when they retire from the public service.

Gradually, the type of vehicles and the number of vehicles used by high-ranking politicians increased dramatically. The price of a vehicle used by Presidents, Prime Ministers and Ministers increased to over and above Rs. 100 million and the number of vehicles in their reserve of vehicles also went up.

A system that allowed Ministers to maintain a private staff consisting of six officers and 28 employees in addition to their official staff was set up. This can be considered one of the most expensive and corrupt systems not to be found in any other democratic country in the world. The six staff members of the Minister’s personal staff were also offered duty free vehicle licences once every five years in addition to their official vehicles. Often, the six officers of the minister’s personal staff consisted of his family members or close relatives. Thus, the number of duty-free vehicle permits issued to a family of a minister increased to seven.

The cost incurred by the Government of Sri Lanka to maintain this corrupt system is huge. It is worth comparing the meagre sum of Rs. 20 that the Government spends per day on a destitute child in an orphanage with the money spent on motor vehicles for ministers and MPs which is over Rs. 50 million.

Sirimavo Bandaranaike

No one elected to the Parliament, whether educated or not, good or bad, has objected to this corrupt system of giving MPs duty free vehicles, a system not to be found in any other democratic country in the world. Generally, what happened is the adaptation of MPs to this corrupt and ugly system when they get elected to Parliament.

Once I inquired about this at a discussion held on several issues including the issue of vehicles when Sirimavo Bandaranaike was the Leader of the Opposition (in 1991). Bandaranaike, J.R.P. Suriyapperuma, Party Secretary, Mahinda Rajapaksa, Anuruddha Ratwatte and Dr. Neville Fernando were also present at this discussion.

“If you allege that President Jayewardene is pursuing a policy of bribing parliamentarians to win their support, why didn’t the SLFP oppose the corrupt system of granting duty-free permits to MPs, a system not in operation in any other democratic country in the world?” I asked Bandaranaike. She didn’t have a clear answer to that.

Dr. Neville Fernando had ordered biryani for lunch for the participants followed by the discussion held at Rosemead home of Bandaranaike. Normally, the quantity of food that I eat at lunch is little. Having finished eating before the others, I went to the pantry to wash my fingers. Dr. Neville Fernando also came there. He smiled and remarked that “it was only today I realised that Victor Ivan will get killed not by an UNPer but by a SLFPer”. He also stated that “the SLFP leaders who had been out of office for 16 years are greedier than the UNP leaders”.

Wijamu Lokubandara

During a discussion I had with Wijamu Lokubandara, the Minister of Cultural Affairs at the time, he taught me a wonderful lesson on how they run the system.

“As members of the Government, we eat well. We get enough to eat like gluttons. We let the Opposition also eat well, though not to the extent that we do. Apart from that, a selected clique of Opposition is allowed to eat more than the others in the Opposition.” Then he concluded his remarks, saying, “Therefore, my dear friend, it will not be easy to change this Government.”

All the other governments that came to power after that implemented a similar policy as explained by Wijamu Lokubandara with certain changes.

There was a big monied man visible or invisible behind every political leader who had the potential to become the head of State. It is this rich person who used to defray all expenses incurred when the leader travels both locally and overseas. The leader had a strong connection with the rich person who backs him. It is possible to say that the rich man could make a decisive influence on all important decisions made by the leader. Similarly there are rich men behind those who have the potential to become cabinet ministers.

Black money

Black money plays an important role not only in maintaining political parties but also in running election campaigns. I heard about a strange incident that had taken place when President Jayewardene decided not to contest for a third term due to strong objections that came from Prime Minister Premadasa, and giving the opportunity to the latter to contest the election.

President Jayewardene had summoned Ranjan Wijeratne to his residence and instructed him to hand over all the money kept under lock and key in a huge closet to presidential candidate Premadasa. Later, following the assassination of President Premadasa, it was revealed that there was a huge sum of money amounting to millions of rupees at Sucharitha, the home of President Premadasa. The money kept in a huge closet of President Jayewardene and the money stored at Sucharitha can be treated as black money and not as money earned legally.

I had the rare opportunity of witnessing how Chandrika Kumaratunga received financial aid at the 1994 Parliamentary Election. One day, summoned by Chandrika Kumaratunga, I went to the official residence of the Leader of the Opposition. That was a day reserved for the receipt of financial support in excess of Rs. 1 million from donors. I was asked to stay in a room until the financial aid program was over. It gave me an opportunity to get a glimpse of that carnival like incident in which the donors handed over the parcels of money to Chandrika Kumaratunga.

Anuruddha Ratwatte was the one who handled the money queue on the ground floor. Chandrika was upstairs. The time allotted to each donor did not exceed more than two to three minutes. The donors approached Chandrika on a queue, carrying parcels of money, one after the other. Apparently the donors could not see me, but I could see them from where I was seated in the room.

After the donor queue was over, Anuruddha came upstairs and I too came out of the room. There were over 40 parcels of money, each containing Rs. 1 million or more stacked on chairs. There was no documentation or issuance of receipts when donations were received. I simply asked Chandrika what she would give back to the donors who had given her the money. My questioning angered her. “How can we do the election without money?” She retorted in a tone that showed her anger. But soon she was back to normal.

This can be considered only the collection in one single day allocated for receipt of financial support. It is one way of raising funds for elections by political parties. There are other methods as well. But there is no room here for me to go into details. Suffice it to to say that this system is corrupt and contrary to the law.

Assets and Liabilities Law

In my opinion, the Assets and Liabilities Law is the most powerful tool available in Sri Lanka to combat corruption. It is more powerful than the Bribery and Corruption Commission. It can be considered a law which has a most progressive and practical vision capable of trapping those who have acquired assets by undue means; but the Sri Lankan version of this law is designed with two glaring loopholes that enable the wrongdoers to circumvent the law.

Initially, the access to the declarations of assets and liabilities remained closed to the public. I may be the first person to have gained access to them. The Secretary of Parliament asked me to bring a Court order when I contacted him over the phone in 1991 and asked for the copies of the declaration of assets and liabilities by the MPs. This was the situation prevailing everywhere at that time.The 1994 election manifesto of the Podu Peramuna (United Front) included the policy it intended to implement in relation to the Assets and Liabilities Law. I was instrumental in having it inserted in the election manifesto. But Chandrika’s Government did not keep that promise.

Following K. B. Ratnayake being appointed the Speaker of the Parliament, in a letter detailing the Assets and Liabilities Law, I requested him to provide me with certified copies of the declaration of assets and liabilities of the MPs. The Speaker, thanking me for pointing out the law, advised me to obtain the certified copies of the declarations of assets and liabilities after paying the copying charge; he had further stated that he had informed the Secretary of Parliament in this respect. Accordingly, I got the copies I needed. It was the first time the gates of Parliament were opened on this subject.

Thereafter, during the 1999 Presidential Election, I wrote a similar letter to Dayananda Dissanayake, the Commissioner of Elections, explaining the law pertains to the declaration of Assets and Liabilities, with a cheque for Rs. 5,000, requesting certified copies of the declaration of assets and liabilities submitted by Chandrika and Ranil with their nominations.

The Commissioner of Elections sent me the certified copies of the two declarations along with the balance money. It was because of a feud created by me that a tradition of obtaining assets and liabilities from presidential candidates when handing over nomination was established.

According to the Assets and Liabilities Law, when a request is made for a copy of a declaration of any person, the authority concerned should provide it without raising any question. In this backdrop, I was shocked when I heard that Transparency International had to seek permission of Courts to obtain a copy of the declaration of assets and liabilities of Prime Minister Ranil Wickremesinghe.

I have been able to open the door to obtain declarations of assets and liabilities and have made a great attempt to reform the law to close the two loopholes. However, I must say that no government that came to power up to the Yahapalana regime took the initiative to close these two loopholes. Apparantly, every government must have realised rightly that it is tantamount to committing suicide. In my opinion, closing these two loopholes alone will enable to trap anyone who has amassed wealth by undue means.

A Leap in the Dark?

Every four years we added an extra day to our shortest month, February, and called it a leap year. But what would happen if we didn’t add that extra day?

by Victor Cherubim

2020 is a leap year. Every four years a year comes along that has one more day than the 365 days we are accustomed to reckon in a normal year. It is a day to keep the calendar synchronised with the astronomical year or seasonal year.

The Earth completes one revolution around the Sun in around 365 days 6 hours. Over a period of 4 years, the extra 6 hours from every year get added up to become an extra day. The month of February is different to other months. It has the shortest number of days of the year, often 28 days and this extra day is added to it, once in four years.

School children in Sri Lanka used to learn in the kindergarten the old rhyme.

“Thirty days has September
April, June and November
All the rest have thirty-one
Except February which has 28 days
Till Leap year gives it 29”

Besides, there are also four interesting things to note in a leap year.

Leap day goes back to the Roman Emperor, Julius Caesar, who declared it as the last day of February. 

Because such days in the year are rarer than the normal years, they have become lucky omens. 29th is an especially important day as tradition states anything started on this day is sure of success. It was on 29th February in the leap year of 1504 that Christopher Columbus, the famous explorer was able to have contact after being marooned in the small island of Jamaica.

A day of reckoning for women

For women February 29th can also be a very successfulday, as once every four years on this day they have the “right” to propose to a man of their choice. This “right” of every woman to propose on February 29th of a Leap Year, goes back hundreds of years when the leap year had no recognition in English Law. It was decided that the day had no legal status, meaning that a break in tradition on this day was accepted. So, on this day women could take advantage of this anomaly and propose to the man they wished to marry. In Scotland since the year 1288, to ensure success they would also wear a scarlet undergarment to make sure it was partly visible to the man when they propose. Today proposing under water or doing a sky dive with a parachute saying: “Will you marry me” are among the top tips for women thinking of popping the question in a leap year. It was reported that any man who refused the proposal would need to pay a fine in the form of a kiss, buy a dress, or at least a fine of One Pound.

Days in other calendars

The Leap Year was also a feature in other calendars. Some calendars like the Chinese, Hindu, Buddhist and perhaps, Arabic and Hebrew calendars are lunisolar, meaning their dates indicate the position of our nearest planet, the Moon, as well as the position of the Earth relative to the Sun, there is as much as a month allowed for a leap year. As there is a natural gap of roughly 11 days between a year as measured by lunar cycles and one measured by the earth’s orbit, such calendars periodically require the addition of extra months, known as intercalary months, to keep them on track.

Birthdays in a Leap Year

It is perhaps, a special birthday technically speaking for those who are born on February 29th of a Leap Year. They only get to cut their birthday cake every four years, But they are very special too. People born on a Leap Day are called “Leaping’s” hardly to be considered as “Weaklings.”I would hardly have been able to calculate the odds of being born on a Leap Day, but my Accountant states that the odds stand at 1 in 1,461.

So much for being born on February 29th

Cultures across time whose calendars relied on the Sun, the Moon or both had different methods to keep their festivals and planting schedules in line with the seasons.

Every four years we added an extra day to our shortest month, February, and called it a leap year. But what would happen if we didn’t add that extra day?

Perhaps, we would get out of whack with the seasons and at some point, we would do Christmas shopping in June.

I know that the weather in UK has been a mixture of showers, rain, sleet and snow with very few really sunny days, since October 2019. How I wish they not only find a miracle cure for coronavirus like our anticipated spring season soon?

But wouldn’t it be wonderful also to research a way to hibernate like animals during the winter, and wake up refreshed in Spring each year, rather than travel abroad with so many contingencies and take a leap into the “unknown”.

Divide and Rule in India

The real trick is to destroy the confidence of a people: make them believe the caricatures you have created about them. The strength of the hoax lies, of course, in the fact that it is constructed on a malicious distortion of reality to give it a facade of believability.

Hindu-Muslim confrontations have begun to occur with sickening regularity in parts of India where the two communities co-exist. Unrest across India began in December with the passing of a law that makes non-Muslims from some neighbouring nations eligible for fast-tracked citizenship - a move many Muslims say is discriminatory and marks a break from India's secular traditions. Persecuted religious minorities including from Hindu, Sikh, or Christian communities are eligible for citizenship, but those from Islam do not enjoy all the same advantages.

Modi has pursued a Hindu-first agenda that has emboldened his followers, who account for about 80 percent of the population, and left India's 180 million Muslims reeling. In August, it stripped Kashmir, India's only Muslim-majority state, of its special status, a move which Modi defended as a way of integrating the region with the rest of the country. In November, the Supreme Court handed Hindu groups control of a contested site in the city of Ayodhya that paves the way for a temple to be built on a site where a mosque once stood.

From being Hindu versus Muslim, they have become Hindu versus Christian, Hindu versus Sikh, upper-caste Hindu versus lower-caste Hindu. It is just about everyone against everybody. The root cause of spreading endemic violence is economic: religious linguistic and ethnic differences provide the excuse and motivation to indulge in it. There is not enough jobs available. There are always economic and social divisions within society to be exploited by those more rich and powerful, particularly when the existing order is threatened. Religious perceptions in any class-divided society are not neutral, but a tool in the hands of the dominant class in its struggle to maintain its control over economic surplus. Religious and all manner of spurious ideological theories are contrived by the ruling class or its representatives in the intellectual community and church organisations to keep the downtrodden perpetually entrapped in the vicious circle of exploitation.

To create a good slave you must first kill his pride, his self-respect, his notion of himself as an ordinary equal human being. The slave's body is needed - the man's for labour, the woman's for labour and abuse; but to control the body the inner spark which ignites anger must be crushed. There are many weapons in the arsenal, both psychological and physical but the chief one is dramatically simple: hunger. Oppress by destitution. Keep a people on the permanent edge of want. And the last stage of hunger - despair. There is no hope left.

The real trick is to destroy the confidence of a people: make them believe the caricatures you have created about them. The strength of the hoax lies, of course, in the fact that it is constructed on a malicious distortion of reality to give it a facade of believability.

( Courtesy: socialismoryourmoneyback )

The Corona Virus and Air Transport – Rights and Liabilities

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case?

by Dr. Ruwantissa Abeyratne
Writing from Montreal

Yesterday, a distinguished airport colleague in charge of a European airport wrote to me asking the following questions:

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case?

In case a passenger decides not to take a flight due to health recommendation in an affected area, but his flight is operated to an area not affected by the Coronavirus, does he have the right of reimbursement?

Is an airline liable if a passenger is infected on a particular flight by an infected flight attendant, or by infected passengers on the flight?

Do handling agents bear responsibility for refusing boarding to a sick passenger or in fact boarding a sick passenger?

What are international standards for aircraft cabin disinfection between two flights?

In the case of a cruise ship, some ports refuse acceptance of the ship carrying sick passengers. Can any airport or Member state refuse licence for landing of the airplane in to its territory or airport if it is declared that it has a passenger with a communicable disease on board?

I will address these questions in their order of appearance.

What are the rights of an airline to stop operations to affected areas, and what rights do passengers have in this case? The decision of an airline to halt operations to its agreed destinations is a commercial decision and one which is presumably taken with good reason. The International Air Transport Association (IATA) – the association of airlines – has issued guidelines by way of an Emergency Response Plan to its member airlines for use in any public health emergency: IATA - which has forecast that airlines stand to lose $29.3bn (£23.7bn) of revenue this year due to the coronavirus outbreak- recommends that “all air carriers have emergency response plans to deal with public health emergencies. While a number of air carriers already have such a plan in place, many do not”. The document has two primary objectives: identify in broad terms how to prepare for a public health emergency and provide checklists of actions that should be built into a public health emergency plan.

One of the main recommendations is for airlines to establish an emergency response centre and an emergency response team to handle the crisis. IATA says: “The information triggering an emergency response could come from any number of different areas. The most likely scenario would probably be a notification from the World Health Organization (WHO) that there has been a progression into a more critical phase of the emergency in question. However, the information could also come from National Public Health Authorities, as it did for some countries during the SARS crisis and the Fukushima accident. Lastly, a response could also be triggered at the air carrier level if, for instance, many passengers and/or crewmembers on a particular flight display symptom compatible with communicable diseases.

As for State responsibility, The International Civil Aviation Organization (ICAO) – the specialized agency of the United Nations for matters concerning international civil aviation - has requested that States that are not yet members of the ICAO Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) programme are strongly encouraged to become members as per ICAO Assembly Resolution A40-14: Mitigation of the spread of disease through, inter alia, aircraft disinsection and vector control methods, and the importance of CAPSCA (Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation) for implementation. It is important to note that neither IATA nor ICAO has recommended the stoppage of flights, presumably following the same position so far taken by the World Health Organization.

Operating a flight into a State and allowing a flight into a State are two different things and the latter is the prerogative of that State. Annex 9 to the Chicago Convention, which comes within the purview of ICAO, recommends that, in cases where, in exceptional circumstances, air transport service suspensions on public health grounds are under consideration, States should first consult with WHO and the health authority of the State of occurrence of the disease before taking any decision as to the suspension of air transport services. The Annex also requires that Contracting States must not prevent an aircraft from calling at any international airport for public health reasons unless such action is taken in accordance with the International Health Regulations (2005) of WHO. However, provisions of the Annexes are not actionable law as they are not mandatory.

As for a passenger’s rights, the airline cannot be held liable for any outcome relating to a flight concerned or cancellation thereof unless, on a preponderance of probabilities, it can be shown that the airline was negligent.

In case a passenger decides not to take a flight due to health recommendation in an affected area, but his flight is operated to an area not affected by the Coronavirus, does he have the right of reimbursement? The answer is in the negative. The air transport undertaking is based on a contract between the airline and the passenger and this is one instance that would be a breach of contract by the passenger.

Is an airline liable if a passenger is infected on a particular flight by an infected flight attendant, or by infected passengers on the flight? In common law countries this would be based entirely on whether the airline was negligent in allowing the infected flight attendant or the passenger on the flight and this would be based on the test of foreseeability. The Montreal Convention of 1999 (for those States which have ratified the treaty) states that the carrier is liable for damage caused in the event of death or bodily injury if the accident which caused the damage occurred on board the aircraft or during embarkation of disembarkation. The word “accident” has been broadly defined by the courts. The carrier has an exculpatory condition in the treaty that says it would not be liable if the damage was caused by the contributory negligence of the claimant.

Do handling agents bear responsibility for refusing boarding to a sick passenger or in fact boarding a sick passenger? The handling agent is an agent of the airline. Ultimately, it is the airline that will be held accountable. The principles of the law of agency will apply. The claimant will however not be precluded from bringing a separate action grounded on tort against the agent if the agent was negligent and such negligence caused damage to the claimant.

What are the international standards for aircraft cabin disinfection between two flights? Disinfection is the procedure whereby health measures are taken to control or kill infectious agents on a human or animal body, in or on affected parts of aircraft, baggage, cargo, goods or containers, as required, by direct exposure to chemical or physical agents. Annex 9 provides that States must determine the conditions under which aircraft are disinfected. When aircraft disinfection is required, the following provisions apply: the application must be limited solely to the container or to the compartment of the aircraft in which the traffic was carried; the disinfection must be undertaken by procedures that are in accordance with the aircraft manufacturer and any advice from WHO; the contaminated areas must be disinfected with compounds possessing suitable germicidal properties appropriate to the suspected infectious agent; the disinfection must be carried out expeditiously by cleaners wearing suitable personal protective equipment; and flammable chemical compounds, solutions or their residues likely to damage aircraft structure, or its systems, such as by corrosion, or chemicals likely to damage the health of passengers or crew, must not be employed.

In the case of a cruise ship, some ports refuse acceptance of the ship carrying sick passengers. Can any airport or Member state refuse licence for landing of an airplane into its territory or airport if it is declared that the aircraft has a passenger with a communicable disease on board? Permitting entry into a State is the prerogative of the State concerned. This is under the principle of State sovereignty recognized by the UN Charter and under customary international law. No one can question that at law or in international relations. In the aviation context this right is guaranteed by Articles 1 &2 of the Chicago Convention.

Dr. Abeyratne, who is former Senior Legal Officer at ICAO and currently Senior Associate at Aviation Strategies International as well as lecturer in aviation law and policy at McGill University, has provided the above answers in his personal capacity and they should not necessarily be attributed to his present or past professional and academic affiliations.

Case for abolishing UN Security Council

VETO power given to permanent members of Security Council have been exercised several times in the past by one permanent member or the other for self centred purpose,creating a road block for peace process.

by N.S.Venkataraman

UN Security Council has 15 members, of which USA,UK,France,China and Russia are 5 permanent member states and 10 other member states are elected periodically for specific period as members of the Security Council.

In the last several decades after formation of UN Security Council, 5 permanent members have not shown any better quality of wisdom or better commitment for world peace, that distinguish them from other countries and justify their permanent membership . Compared to other over 190 member states of UNO, permanent members of UN Security Council have not exhibited any superior and pro active approach to the world issues.

Many people have started thinking that UN Security Council is not serving useful purpose for the cause of peace. On the other hand, in the last several decades it has created hindrance for the efforts to promote peace and harmony in the world.

By and large, UN Security Council has not been really useful, since any one of the permanent members have VETO power to prevent unanimous decision on any issue, if it would not meet the demand and need of any permanent member.

Certainly, providing VETO power to the permanent members is one of the worse forms of anachronism in the organizational structure and decision taking process of Security Council and this is an extremely severe flaw made at the time of formation of UNO.

VETO power given to permanent members of Security Council have been exercised several times in the past by one permanent member or the other for self centred purpose,creating a road block for peace process.

Obviously, permanent members of the Security council have not been able to take holistic view on most matters with global interests in view and have shown self centered attitude to protect their interest and that of the allies. Their strategies have often been guided by their narrow political and sectarian approach with least concern for world peace and welfare of the global community.

Often proceedings of the Security Council are marked by acrimonious debates and counter productive arguments with hate speech and mutual accusations not being uncommon . In such situation, with self interests of individual permanent member receiving the highest attention and priority, Security Council has not been able to emerge as productive wing of UNO to promote peace in the world.

Original decision, when UNO was conceived, to give special VETO power to five permanent members in Security Council was an attempt by the five permanent member states to enhance their importance and exercise control over UNO and the world events.

Today, countries like Japan, Germany, South Korea, India are all advanced technologically to a high level and they conduct themselves with dignity.

Japan and Germany have technological capability even better than a few permanent member states.

With the world situation changing dramatically now compared to the time when UNO was formed after World War II,why should the countries like Japan, Germany should be treated as less important countries than the five permanent member states to become eligible for becoming permanent members of UN Security Council ? There is no logic or reason in this. There is no justification to treat Japan and Germany as “lesser countries”, in view of their role in World War II several decades back. Today, the commitment of Japan and Germany to world peace is total, perhaps even greater than a few permanent members of UNO.

It is very important that the UNO should not only be fair in taking decisions with regard to peace process but should also appear to be fair and democratic and the decisions of UNO should be world decisions and not that of five permanent members.

The urgent need is that UNO should remain as an organization of member states in all respect with equal status for every member state. This can happen only with the abolition of UN Security Council.

By abolishing Security Council, there would not be any vacuum. On the other hand, all major decisions towards protecting and restoring peace in the world can be taken with participation of all member states and taking decisions, with majority world opinion being ascertained by voting process.

Non existence of Security Council would enable the UNO to take decisions, in which there would be transparency with nobody complaining about any decisions, since majority views would prevail.

It appears that abolishing Security Council is a pre condition for restoring genuine and lasting peace in the world today.

Further, this would pave way as forward step towards forming some sort of world government, as far as peace process is concerned.