by Neville Ladduwahetty
The bipartisan House Res. 413 introduced by Congresswoman Deborah Ross (for herself, Mr. Johnson of Ohio, Mr. Danny K. Davis of Illinois, Mr. Sherman, and Ms. Manning) on May 18, 2021 was referred to the Committee on Foreign Affairs.
The Preambular Paragraphs contain the background material from which the initiators of Res. 413 resolved on seven issues to be presented to the Foreign Affairs Committee.
These seven issues are presented below:
(1) acknowledges the 12th anniversary of the end of the war in Sri Lanka and offers its deepest condolences to all those affected by the conflict;
(2) honours the memory of those who died and reaffirms its solidarity with the people of all communities in Sri Lanka in their search for reconciliation, reconstruction, reparation, and reform;
(3) commends the United Nations Human Rights Council for prioritizing the collection and preservation of evidence related to human rights violations, a process that must not be interfered with by the Government of Sri Lanka;
(4) recognizes the bravery and commitment of advocates for justice across all communities in Sri Lanka, including the Tamil families of the disappeared, whose protests and demands for answers have at times been met with threats, intimidation, and harassment by government security forces;
(5) urges the international community to advocate for and protect the political rights and representation of the historically oppressed northeastern region of Sri Lanka and work towards a permanent political solution to address the underlying issues that led to ethnic conflict;
(6) recommends the United States explore investigations and prosecutions pursuant to the recommendations of the United Nations High Commissioner for Human Rights; and
(7) urges the United States to work with the United Nations General Assembly, the United Nations Security Council, and the United Nations Human Rights Council to establish a credible and effective international mechanism for accountability for the grave crimes committed during the war in Sri Lanka.
The Comments presented below are in respect of Resolutions (2); (5); (6); and (7). Resolution (2) is to “honour the memory of those who died…”, Resolution (5) calls upon the international community to “work towards a permanent political solution to address the underlying issues that led to the conflict” and Resolutions (6) and (7) relate to issues of accountability.
RESOLUTION (2) – “memory of those who died”.
While it is customary to honour the memory of those who died during to the armed conflict, it must be acknowledged that those who died are from all ethnic and religious communities. Therefore, it is natural that the practices adopted by different communities would be in keeping with their respective cultural traits. However, an issue that needs to be acknowledged is that it would be unlawful to publicly display symbols of the LTTE during memorialization procedures in member states that have proscribed the LTTE as a terrorist entity. To permit the display of such symbols is to violate their own provisions under which the LTTE was proscribed.
– “work towards a permanent political solution…”.
The permanent political solution introduced by Sri Lanka at the behest of India following the Indo-Lanka Accord in 1987 was the 13th Amendment. The fact that the conflict persisted for the next 22 years until May 2009, despite serious attempts to negotiate a permanent political solution within the framework of the 13th Amendment, demonstrates with absolute clarity that the political rights granted under the 13th Amendment fall far short of the expectations of the Tamil people. On the other hand, leaving aside the fact the people of Sri Lanka also opposed the 13th Amendment, fulfilling the aspirations of the Tamil people to the extent they aspire to, is NOT in India’s own national interests because India cannot accept a situation where the Tamil community in Sri Lanka enjoys political rights in excess of what is granted to the Tamil majority in Tamil Nadu. This being the case, India saw to it that a limit to political power to the Tamil people in Sri Lanka was recognized and accepted by the international community during the recently adopted UNHRC Resolution A/HRC/46/L.1/Rev.1 which stated: “Calls upon the government of Sri Lanka to fulfill its commitments on the devolution of political authority…and to ensure that all provincial councils, including northern and eastern provincial councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”.
India’s External Affairs Minister Dr. S. Jaishankar is reported to have stated during his last visit to Sri Lanka that ‘Delhi insists on the importance of the 13th Amendment in fulfilling the expectations of the Tamil people for equality, justice, peace and dignity’ (The Island, January 7, 2021). Therefore, it could be concluded that as far as India is concerned the 13th Amendment is expected to be the upper limit beyond which a permanent political solution would be unacceptable to India. The rationale for this limit is because the “Stability, security, and prosperity of Sri Lanka is (not only) in India’s interest, but also in the interest of the entire Indian Ocean”, as stated by India’s Prime Minister Narendra Modi during Sri Lanka’s Prime Minister Mahinda Rajapaksa’s visit to India.
The observations of a former President of India, Pranab Mukherjee in his autobiography is of extreme importance. He opined that bilateral ties between India and Sri Lanka had been “greatly influenced by Tamil politics in India, particularly with the emergence of a strong Dravidian party (DMK) in Tamil Nadu since the mid-60s”. Continuing, the report also states “on the concept of Tamil Eelam the former President observed that it was raised by ‘the Tamil population residing on both sides of the Palk Strait…” (Daily News, January 11, 2021).
The perspective presented by the Tamil diaspora is that a political solution based on a federal arrangement with the right of self-determination, is realistically achievable. The hard reality is that such an arrangement is unacceptable not only to the people of Sri Lanka but also to Delhi because any political arrangement beyond the 13th Amendment would impact on the security and territorial integrity of both States. Now that the DMK who supported the aspirations of the Tamils in Sri Lanka is back with a majority in the State Assembly of Tamil Nadu, not only Sri Lanka but also Delhi is deeply concerned that the initiative taken by Res. 413 for a political solution to meet Tamil expectations in Sri Lanka would impact seriously on the security and stability in respect of India’s territorial integrity and that of Sri Lanka as well. Hence, the insistence by Delhi of the importance of the 13th Amendment. Furthermore, any arrangement beyond the 13th Amendment that would have serious implications on the territorial integrity of India would impact on the ability of India to be play an effective role as a member of the Quad that is intended to partner with the US in the security of the Indo-Pacific.
RESOLUTION (6) – “US to explore investigations and prosecutions pursuant to the recommendations of the UN
High Commissioner for Human Rights”.
Since the Res. 413 is influenced by the recommendations of the High Commissioner for Human Rights, it is pertinent that the Resolution pays particular attention to recommendations in Paragraphs 182 and 183 in the Report of the Office of the High Commissioner for Human Rights on Sri Lanka (OISL).
Paragraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka” AND Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.
Since Common Article 3 of the Geneva Conventions have been expanded and incorporated as Additional Protocol II of 1977 applicable to Non-International Armed Conflict and ratified by 168 Member States as of 2020, the conduct of the conflict in Sri Lanka should be evaluated in the context of an Armed Conflict under provisions of Additional Protocol II of 1977. Thus Additional Protocol II should be included within the body of Customary International Law, and any investigations and prosecutions the US intends to explore, should follow the guidelines in Additional Protocol II.
RESOLUTION (7) – The US to work with the UNGA, Security Council and UNHRC to establish an international mechanism to address accountability.
For the US to work with three organs of the UN namely the General Assembly, the Security Council and the UNHRC is a direct violation of Article 2 (7) of the Charter of the United Nations .
Article 2 (7) states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter…”
The need for Resolution (7) is perhaps because of the prejudice against the domestic mechanism established by the Government of Sri Lanka. In order to convey its credibility key provisions of the mandate of the Presidential Commission of Inquiry as per Gazette No. 2211/55 of 21, January, 2021 is presented below.
“Whereas the decision taken by the Government of Sri Lanka to withdraw from co-sponsorship of 40/1 Resolution on March 2019 on Reconciliation, Accountability and Promotion of Human Rights in Sri Lanka and its preceding resolution 30/1 of October 2015 and 34/1 of March 2017 has been announced at the 43rd session of the United Nations Human Rights Council on 26th and 27th of February 2020″…
“appoint you Hon A. H. M. D. Nawaz Esq, Judge of the Supreme Court; Chandra Fernando Esquire, Retired Inspector-General of Police; Nimal Abeysiri, Retired District Secretary, to be my Commissioners to investigate and inquire and take necessary action to report on the following matters, namely –
(a) Find out whether preceding Commissions of Inquiry and Commissions which had been appointed to investigate into human rights violations have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences;
(b) Identify what are the findings of the said Commissions and Committees related to the serious violations of human rights, serious violations of international humanitarian law and other such offences and whether recommendations have been made on how to deal with the said facts;
(c) Manner in which those recommendations have been implemented so far in terms of the existing laws and what steps need to be taken to implement those recommendations further in line with the present Government policy;
(d) Overseen of whether action is being taken according to (b) and (c) above”.
Further, I do hereby authorize and empower you, the said Commissioner, to cause or cause the conduct of necessary investigations and inquiries and require you to transmit to me Interim Reports where necessary and the final Report within six months of the date hereof…”
The key intentions of US House Res. 413 are to work towards a permanent political solution to address underlying issues that led to the conflict (Resolution 5) and to address issues relating to accountability (Resolutions (6) and (7).
In the background of India insisting on the importance of the 13th Amendment as the means to address concerns of the Tamil people, the attempt by the US to explore fresh political arrangements is to engage in efforts that run counter to the geopolitical and strategic interests of one of the key partners of the security alliance of Quad. Furthermore, this attempt by the US ignores the rationale for India to initiate the Indo-Lanka Accord judging from the statement made by Prime Minister Rajiv Gandhi. He stated that the Accord had “Prevented the island nation from coming into the orbit of some superpower trying to tighten their hold in Sri Lanka on the pretext of helping to find a solution to the four year old ethnic conflict” (Kodikara, p.147, Indo-Sri Lanka Agreement). As far as India is concerned US Res.413 is nothing but an attempt to get a “hold in Sri Lanka” as warned by a former Prime Minister, even though India is with the Quad security alliance.
As for addressing issues relating to Accountability, any intended action should be cognizant of the fact that from February 2002 until May 2009 the conflict was a non-international armed conflict and therefore applicable provisions of Additional Protocol II that are based on Common Article 3 of the Geneva Conventions should govern any investigations and prosecutions; a fact endorsed by the Office of the High Commissioner for Human Rights (OISL).
The attempt by the US to work with UN and its Agencies to establish international mechanism to address accountability is not only a violation of Article 2 (7) of the UN Charter because the UN and its Agencies are not authorized to intervene “in matters which are essentially within the domestic jurisdiction of any member state….”, but also to question the credibility of the domestic mechanism established by Sri Lanka.
In summary, House Res. 413 appears to be more of an attempt to please its promoters, and in the process the drafters of the Resolution have failed to recognize broader geopolitical ramifications of their proposals and have even gone to the extent of ignoring the fundamentals such as violating the provisions of the UN Charter itself.
by Katrina Kramer
Cricket bats made from bamboo might help batters hit farther and faster, researchers have discovered. While willow has been the bat wood of choice for nearly 200 years, bamboo could deliver more energy to the ball during impact, though at the price of being much heavier. But bamboo’s fast growth could help make the sport more affordable to its rapidly growing fanbase.
Source: © Tom Almeroth-Williams
Almost all high-end cricket bat willow comes from just two suppliers in England. The trees take around 15 years to mature, and bat makers often discard up to 30% of the wood due to imperfections.
Darshil Shah, former member of Thailand’s under-19 national cricket team, and his colleagues from the University of Cambridge, UK, decided to investigate bamboo as an alternative. Bamboo is cheap and grows in many countries that have seen increasing cricket participation – China, Japan and South America for example. The plant matures within six years and can produce several harvests without needing to be replanted.
Darshil Shah holding a bamboo cricket bat …. Source: © Tom Almeroth-Williams
Working with cricket bat manufacturer Garrard & Flack, the team created a bat from bamboo strips held together with an adhesive. The bat turned out to be fairly heavy, since bamboo is denser than willow, lending itself to straight rather than cross strokes, Shah recounts. ‘But because it is stiffer, we can reduce the thickness of the blade, which will reduce the weight,’ he explains. His team was surprised to find that the bamboo bat also had a larger sweet spot, the area that transfers maximum energy onto the ball on impact.
‘The other important property is the sound of a bat,’ says Shah. Bamboo’s resonant frequencies are almost identical to willow’s, so players and spectators are unlikely to notice the difference.
The mechanical differences between the materials come down to cellular rather than molecular differences, says wood materials scientist Ingo Burgert from the Swiss Federal Institute of Technology, ETH Zurich. Both bamboo and willow contain cellulose, hemicellulose and lignin as their main structural components. But in trees, water and sugar transport take place in different tissue types. As a type of grass, there’s only one structure performing both functions in bamboo, Burgert explains.
The current prototype is about 40% heavier than a traditional bat, because bamboo is denser
One way to get an idea of a bamboo’s potential is from children playing baseball with bamboo bats, says Philip Evans from the Wood Surface Science Lab at the University of British Columbia in Canada. ‘They mention that the bat is heavy, but they also say that the ball pings off well.’ However, unlike willow, bamboo doesn’t recover well from deformation and becomes dented more easily.
However, as a game steeped in tradition, cricket regulators have so far resisted changes to bat material and design. Since 1979, when Australian cricketer Dennis Lillee used an aluminium bat in a match against the English team, rules have only allowed for wooden blades in professional games. And no amount of science will convince cricketers if the bat doesn’t feel and handle right, Evans points out. ‘But if the work at the Cambridge group can put bats in the hands of young kids who have fun playing cricket then that’s great,’ he adds.
‘Certain uses, like cricket bats and musical instruments get associated with particular species to the point that people stop considering if any other species would work,’ says Dan Ridley-Ellis, head of the Centre Wood Science and Technology at Edinburgh Napier University in the UK. ‘But two bits of wood from one species can be as different – in terms of properties like density and stiffness – as two pieces of different species. It becomes increasingly important to look for alternatives, species and sources, to meet wood demand without costing too much financially or ecologically.’
Understanding bamboo’s properties, in particular its sound absorption behaviour, might also help Shah and his colleagues with their principal research: understanding how bamboo and engineered timber could be used in the construction sector.
The Increasing Incidents of Container Ship Fires and Environmental Destruction
by Dr Manique Cooray
Fires at sea continue to pose a significant risk to container shipping and often give rise to long-winded and complex claims between all affected parties. Space does not permit even a cursory examination of the large body of relevant international legal provisions available. Moreover, the rise of containerisation has exacerbated the problem of fire on board ships as we have seen with the MV Hansa Brandenburg, the Jolly Rubino, the Maersk Londrina and recently in February 2017, in the MV APL Austria case where a Liberian flagged container ship caught fire off the Eastern Cape of South Africa.
In the backdrop of the ongoing environmental catastrophe in one of Sri Lanka’s worst ever marine disasters, it is imperative to address two issues that seem to be of central importance pertaining to the cargo ship carrying tonnes of chemicals which now lie in the seabed off the west coast of the Island. The Singapore registered MV X-Press Pearl, Super Eco 2700-class container ship was built by Zhoushan Changhong International Shipyard Co. Ltd at Zhoushan, China, for Singapore based X-Press Feeders and its sister ship X-Press Mekong. The 37,000 dead weight tonne (DWT) container vessel could carry 2,743 twenty-foot equivalent units. The ship was delivered on February 10, 2021. It had a 25-member crew including Filipinos, Chinese, Indian and Russian nationals. It was carrying 1,486 containers, among them 81 carrying dangerous goods, which included 25 tonnes of nitric acid, along with other chemicals, cosmetics and low-density polyethylene (LDPE) pellets. Reports indicate the vessel was deployed in the Straits of Malacca to Middle East (SMX) service of X-Press Feeders, from Port Klang (Malaysia) via Singapore and Jebel Ali (UAE) to Hamad Port (Qatar). The return journey to Malaysia was to be via Hazira (India) and Colombo (Sri Lanka). It was reported that the ship’s crew had noticed the leakage of nitric acid from one of the containers when the vessel set sail to the Port of Colombo.
It is common knowledge that under the United Nations Convention on the Law of the Sea, no vessel can enter a country’s “territorial water” extending up to 12 miles from the nearest land without approval from the coastal state. Nevertheless, bearing in mind that Sri Lanka is a signatory to the Basel Convention, it is not the aim here to address basic questions on how, why and who authorized a vessel with a container leaking nitric acid to enter the territorial waters of the country carrying hazardous material. This entry into Sri Lankan waters could have been under “Port of Refuge”, a situation wherein a ship deviates to a port due to an emergency which renders the ship unsafe to continue on her voyage.
The ill-fated ship erupted in a fire while anchored about 9.5 nautical miles northwest of Colombo. The Sri Lankan navy believes the fire was caused by a chemical reaction from the leaking cargo loaded from the port of Hazira in India. As flaming containers laden with chemicals fell from the ship’s deck, seawater may have entered the hull that submerged the MV X-Press Pearl’s quarterdeck a day after firefighters extinguished the fire. With such a dramatic turn of events of an overseas registered ship, carrying crewmen of various nationalities and cargo belonging presumably to various parties, and with a vessel located within the territorial waters of Sri Lanka, presents itself a plethora of issues in conflict of laws determining principles of choice of law with recognition and enforcement of foreign judgments.
While the local authorities are moving to sue the owners of the vessel to claim damages from the insurer, the suitability of existing Penal Provisions and the Marine Pollution Prevention Act No 35 of 2008 of Sri Lanka raises the question of its adequacy as the principle legislation of the forum state to hear a case of such magnitude of which the main issue is to claim compensation. Insurers of cargo vessels generally require the owners and operators to adhere to internationally recognized guidance concerned with maximizing the overall safety of the vessel, the crew and the cargo. One part of the guidance is the International Maritime Organizations Dangerous Goods Code (IMDG Code), an internationally accepted guideline for the transportation or shipment of dangerous goods or materials by a vessel on water.
Even a cargo that might be quite innocuous in small quantities can display dangerous properties when transported in large quantities, especially if those large quantities of material are exposed to environmental conditions such as moisture or heat, during or prior to loading, or during a voyage. Under the Hague-Visby Rules, the liability regime for the carriage of most cargo, neither the carrier nor the shipowner is responsible for loss or damage arising or resulting from fire unless caused by the actual fault or privity of the shipowner or carrier. To successfully recover for damage to cargo from the shipowner or to defend a claim for general average, the cargo owner must show a lack of due diligence of the shipowner to make the ship seaworthy and safe to receive, carry and discharge the cargo. From a procedural perspective, “(i) the cargo owner must prove their loss; (ii) the carrier or shipowner must prove the cause of loss (i.e., that the fire caused the loss); (iii) the carrier or shipowner must prove due diligence to make the ship seaworthy prior to and at the commencement of the voyage; and (iv) the cargo owner must prove fault of the carrier or shipowner or knowledge of fault or another for whom the carrier or shipowner is responsible.”
The shipowner is not liable for an act or omission by the crew. If the negligence of the crew caused the fire, this is a complete defence for the shipowner unless the cargo owner can show that there was some lack of due diligence by the shipowner, which made the ship unseaworthy. In the case of fires at sea, this would include the shipowner failing to exercise due diligence insofar as the crew fighting the fire is concerned, a lack of adequate firefighting systems, lack of training, or lack of procedural guidance from owner or carriers to the crew. Cargo owners are also likely to be successful in claiming against a shipowner where it is shown that the shipowner or carrier failed to correctly stow dangerous or hazardous cargo (provided that such cargo was correctly declared) in accordance with IMDG guidelines. In the event a shipowner can rely on a “fire defence”, the cargo owner (or their insurers) may be left with a recovery action against the shipper of the miss declared cargo. However, this often involves expensive litigation in a foreign jurisdiction where the “guilty” shipper may be a brass plate company without any assets to satisfy millions of dollars worth of damages to the ship and her cargo and let alone the environmental aftermath. This means that the insurer may be liable, and the affected party could claim compensation from the shipowner.
From the brief facts at hand, it appears to be a total loss for the shipowner even if the vessel stays afloat with what appears to be, if not all, of the cargo, damaged. Although there is much uncertainty over the size of the loss, it is safe to assume that insurers will face cargo and liability claims and the value of the hull and machinery. The value of these claims have not yet been made known. It is highly possible for the fire and explosion losses to be covered under cargo insurance policies among various companies which are party to it. The London Steam Ship Owners Mutual Insurance Association Ltd and its subsidiary, the London P&I Insurance Company (Europe) Ltd, in a press statement on May 26, 2021, stated that as the “liability insurer, it would cover crew injuries and any environmental impact.” A study of previous cases of similar nature indicates that a vessel sinking in deep water perhaps is a better outcome for the insurer than saving it and bringing it back to port with the heavy cleanup costs incurred. Perhaps in this current scenario, the P&I insurer could end up covering the cargo and salvage costs.
The environmental impact of the fire could have a significant bearing on the size of the P&I claim leading to potentially hundreds of millions, as previous cases have shown us. It is well to keep in mind that while the owners of the ship are maybe accountable for bringing the ship to the territorial waters, the local authorities themselves may have a share in their contribution by their bad choice of actions. It is highly questionable whether adequate compensation could be secured given the larger environmental impact (an impact which may be seen beyond the limitation period for such claims to be brought) under the existing lacuna in the local law. Hence, the importance of the forum state to take on such a mammoth legal action against the parties possibly raises the issues of whether recourse should be made to an international maritime arbitration tribunal permitting contractual arrangements.
The second issue to be addressed is whether a special legal regime in the nature of strict liability is needed to cover the irreparable damage caused to the Sri Lankan Sea, marine lives, including the coral reefs and the fisheries industry. There is now an additional danger that fuel tanks of the stricken vessel containing thousands of tons of thick bunker oil could break up under the pressure of the seawater and discharge its deadly cargo into the ocean. The Wildlife Conservation Department of Sri Lanka states that apart from the fish species, the harm done to seagrasses and nesting habitats, sea mammals, and reptiles will also be substantial and that their “initial observations reveal the spill-over effect will last for more than 100 years.” The illustration of the Exxon Valdez’s incident in 1989 and the Deepwater Horizon accident in the Gulf of Mexico in 2010 indicates that the oil spill is a severe threat to the maritime environment. A review of this incident may be a good reference to seek a fair understanding of the circumstances and for proper estimation and preparation in encountering massive oil spills.
The harm caused by many environmental incidents are not only contained within the borders of the states, but pollution originating from one state may cause harm to another state. And pollution which damages the Oceans does not belong to one state alone. This type of harm raises a number of acute legal conundrums. Establishing causal connections between effects such as damage to marine life or extinction of species and a particular source of pollution, which could be targeted by a system of liability and compensation rules, may be extremely difficult. In the absence of intergovernmental compensation regimes or where individual states seek compensation for cross border pollution, claims must be made in domestic courts. In such situations, the importance of conflict of laws rules about jurisdiction, choice of law, and recognition of judgments matters. One could plausibly conclude that X-Press Pearl too may find its unfortunate place in legal history for the colossal task it has presented of assessing harm to the environment caused in a line of container ship losses in the maritime insurance industry.
(The writer is a Senior Lecturer at the Faculty of Law, Multimedia University. Malaysia and was the Dean of the Faculty of Law from 2014-2016 and 2018-2021.)
Cold War to COVAX: New US President rallies allies, but no brave new world in sight
by Rajan Philips
Six months in office, President Biden took his first foreign trip last week, attending the first in-person G7 summit after the pandemic over the weekend, at Carbis Bay in Cornwall, England, and meeting with Vladimir Putin on Wednesday in Geneva. In between, he attended a summit gathering of NATO member country leaders on Monday and met with the European Council on Tuesday. The G7, NATO and the EU meetings became occasions for diplomatic China bashing. And China responded in kind and more, through its Embassies in London and in Europe rather than by the mandarins in Beijing. China’s “wolf warrior” diplomacy might be irksome to old school sensibilities, but China seems to be in no hurry to change its modes of diplomacy to please anybody.
Everything is different now from the geopolitics of Cold War. Russia is no longer the West’s main adversary, and capitalism and socialism are not the same weighty words as they once were. Vladimir Putin is, at best, or worst, mostly a significant spoiler. It is China that looms large from the East, pre-occupying western powers, but the terms of engagement now are more competitive and less conflictual. The world is currently without any serious skirmishes, internal or otherwise. There is a lull even in the Middle East, and there are hopes that it might continue with both Benjamin Netanyahu and Donald Trump out of power, at least for now. But where violence has receded, the pandemic has taken over. And Cold War politics has given way to vaccine politics.
When history fails to turn
Yet, after much haggling and despite promises to do a lot more, G7 leaders were not able to come up with anything more than one billion vaccine doses when 11 billion of them are needed to immunize the world’s population. Gordon Brown, former British Finance Minister and later Prime Minister, has called the G7 summit another missed opportunity in the history of summits, “another turning point where history failed to turn.” He blamed G7 leaders for their failure to honour the pre-summit promise of Prime Minister Boris Johnson to vaccinate the entire world.
Besides Johnson, more than 100 former world leaders had called on G7 leaders to pledge $44bn of the $66bn needed to vaccinate the world, or eight billion doses and not one billion. A joint Norway-South Africa plan had worked out that eight billion doses donation would involve 27% contribution from the US and 22% contribution from the EU. The current US promise of 500 million doses amounts to 50%, which is a significant share but of the pathetically scaled down one billion promise of the Group of Seven countries. In early May , President Biden announced America’s support for waiving western vaccine patents to facilitate worldwide production and supply of COVID-19 vaccines. His radical turn surprised many, but found no support in G7 and the summit once again “failed to turn.”
Aid and welfare agencies are palpably disappointed with the poor show of vaccine generosity by the wealthiest of the world’s nations, and these civil societies are not likely to be enthused by President Biden’s clarion call for democracies of the world to unite against its autocrats. Nor are other G7 countries entirely enthusiastic about agreeing with the US policy towards China. A number of them do not want to alienate China which they see has a necessary role to play in the global economic recovery after the pandemic. To non-American observers, Biden’s position on China is not very different from that of Trump; what is different is the absence of Trump’s narcissism and racism. And America’s allies, while relieved at the exit of Trump and the entry of Biden, are also unsure that there will not be another political recession in the US similar to what they have had to unexpectedly encounter over the last five years.
Even though China was the main subject at the summit, the final statement reflected a balance between the pushes and pulls between America and its allies. Perhaps the sharpest note in the 70-point G7 statement could be the reopening of the ‘origin’ controversy involving the coronavirus. The summit’s call to make a “science-based” determination of the origins of COVID-19 may have better served its totally legitimate and objective purpose if the call too could have found a science-based origin rather than adversarial politics. Unfortunately, there is no international mechanism to facilitate such a consensus.
As Secretary General António Guterres rued last September marking the 75th anniversary of the United Nations, “the pandemic is a clear test of international cooperation — a test we have essentially failed.” The G7 summit, while it was positively different with Biden displacing Trump as America’s President, came nowhere near to rectifying the failure of international cooperation that the Secretary General was alluding to. There are many things about China that are not at all unexceptionable, but isolating a giant of a country and economic powerhouse is not the way to foster international co-operation, or to determine the truth about the origins of COVID-19.
Two days after G7, NATO got in on the act of targeting China, for first time in its deliberations, and calling China’s actions as a threat to “rules-based international order.” China responded calling NATO to stop “slandering” and to “devote more of its energy to promoting dialogue”. That NATO’s take on China may have been more a manifestation of bureaucratic overreach and not political consensus became evident from the notes of caution that came from the British and French leaders, among others. Prime Minister Boris Johnson asserted that nobody “around the table wants to descend into a new Cold War with China.” France’s Emmanuel Macron had earlier admonished that “China has little to do with the North Atlantic,” while Germany’s Angela Merkel had apparently emphasized that western alliances are “not about being against something, but for something”.
Besides COVID-19, the summit focused on human rights, again targeting China over human rights violations in Xinjiang and in Hong Kong. A somewhat positively competitive response to China was the announcement of a new global infrastructure plan. In an obvious counter to China’s Belt and Road infrastructure initiative, the G7 group at America’s prompting has come up with an initiative of its own, called “Build Back Better World (B3W).”
The new plan is expected to raise about $40 trillion by 2035, and will focus on improving “climate, health and health security, digital technology, and gender equity and equality” conditions in developing countries. By comparison, China’s Belt and Road initiative launched in 2013 is bankrolled solely by China to the tune of $160 billion and is expected to focus more on hard infrastructure projects. The rest of the world can only applaud the two initiatives while hoping that the two promoters will allow other countries to proportionately benefit from both, and not from one or the other.
An even more far reaching summit outcome is the agreement on global corporate taxation. Already in the run-up to the summit, G7 Finance Ministers had reached a deal on (1) source-taxing corporations (i.e., to tax businesses in the countries where they conduct business and earn income); and (2) a global minimum tax proposal of 15% on businesses. The 15% rate is lower than the business tax rate in every G7 country, so this is not a tax increase in those countries. But what it will do is to expose to taxation multinationals and digital companies that now keep running for tax holidays and tax havens. Netherlands, Luxembourg, Singapore, and Ireland are among the more established tax havens, where “phantom investments” flow but no physical manifestations (as in factories, sales, or jobs) are seen. According to the IMF, “phantom investments” account for 40% of the world’s much coveted FDIs (Foreign Direct Investments). Is Sri Lanka’s Port City meant to be a magnet for its miniscule share of phantom investments?
The G7 agreement over global taxation is really the culmination of a much broader effort involving more than 100 countries working over a number of years. And the estimated revenues from global taxation are quite significant – ranging between $250 billion to $600 billion annually. While the G7 agreements is a big step forward, there are obstacles ahead as nothing can be done without the support of everyone. US Treasury Secretary Janet Yellen mooted the idea for global taxation long before the G7 summit, but it will have to pass muster in the US congress. There is broad support in the EU, but Ireland could be an outlier. The next forum for the global taxation effort will be the gathering of G20 Finance Ministers in Venice in July. Large countries from every continent including China and India will be at the table. Its outcome will offer clues about the pace of global taxation reform.
From Nixon to Biden
The Guardian in one of its editorials last week recalled something that no one in the US or China would seem to have bothered to note so far. It is that next month would be the 50th anniversary of Henry Kissinger’s secret mission to China to prepare the path for President Richard Nixon’s historic visit to China in February 1972. The visit lasted a week, “the week that changed the world,” as President Nixon famously declared. No one, not even President Biden, is going suggest that the new President’s first week of foreign forays in England and in Europe is going to change the world. But there is no denying the extent to which the world has changed between Nixon’s visit to China in 1972 and Biden’s visit to Europe in 2021. It is not that Nixon’s visit changed the world, but only that he seized the opportunity in a world that was already beginning to change.
Henry Kissinger reportedly assured Chinese leaders that “It is the conviction of President Nixon that a strong and developing People’s Republic of China poses no threat to any essential US interest.” Fifty years later, President Biden is calling on democracies to come together against the world’s authoritarian powers, primarily China. In a sense, Biden’s meeting with Russia’s Putin in Geneva last Wednesday caricatures Nixon’s historic visit to China. The summit was a useful necessity even if it was mostly meant for the domestic audiences of the two leaders. Putin wanted to show Russians that under him their country is still a force to reckon with, even though it no longer has the armour of a Soviet Union. For Biden, it yet another demonstration that Trump is gone and America is back. Yet, it was useful that the two leaders have opened a dialogue, which is essential if any headway is to be made, especially in the Middle East.
But it will be paradise lost if America and the West were to fail to open a new dialogue with China without isolating it or ganging up on it. Western leaders made the same mistake after the collapse of the Soviet Union, when they isolated Russia and invited all the former Warsaw Pact countries to join NATO and gang up on Russia. But there is no comparison between Russia without the Soviet Union and 21st century China that is set to surpass the US as the world’s biggest economy in a matter of decades. Yet, there are also growing backlashes against China even as its economic power grows, not only in the West but also in China’s own backyard and wider Asia. The EU, Lithuania and Hungary have recently blocked or put on hold economic partnership prospects with China. On the other side, Australia, South Korea, India, and South Africa are open to aligning themselves with G7 countries. They were all in sidebar attendance at the G7 summit.
If there is paradise to be regained, it can only be through the working of multilateralism. For all its unanticipated problems, the 21st century is remarkable for growing reality of multilateralism in spite of its serious institutional limitations. Beefing up the world’s multilateral institutions should be the first order of business for world leaders in whatever forums they gather. That was not anyone’s agenda at the G7 summit. Nor is it likely to be uppermost in China when it will celebrate, on July 1, the centenary of the Chinese Communist Party.
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