New York, 23rd
October 2001
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I am very honoured to be asked to deliver this Fifth Memorial Lecture
in memory of Cedric Barclay. My wife
and I have been very much looking forward to be in
New York on this special occasion. But we
wish we could have come in happier circumstances.
In 1972 when Cedric Barclay first established in Moscow the ICMA,
International Congress of Maritime Arbitrators, although there was the cold
war, the world was relatively speaking, orderly and predictable and certainly for the ordinary person less dangerous. There would be no
question of our children and our parents asking us whether it was absolutely
necessary to go to a city like New York for a conference. After the terrible terrorist attacks, what
would Cedric Barclay (a man never lost
for words) say to this audience in New York about the future
of arbitration.
New York, 11th September 2001 was the day which changed not only the United States of America but the whole world. Even at the risk of merely putting forward some random thoughts of an Admiralty Judge from Hong Kong, it seems to me worthwhile on an occasion such as today at the Waldorf-Astoria (only a few miles from the World Trade Centre) in front of this august body of international maritime arbitrators to reflect briefly on the relationship between terrorism and arbitration in the New Millennium.
“Terrorism” is defined in Section
2656(f) of Title 22 of the United States Code as meaning:-
“premeditated,
politically motivated violence perpetuated against noncombatant targets by subnational groups or clandestine
agents, usually intended to influence an audience”.
“International
terrorism” is defined as
“terrorism
involving citizens or the territory of more than one country”.
A definition of “international terrorism” acceptable
to the world community proved to be impossible over the last thirty years. In 1972
international terrorism as a topic was first placed on the agenda of the
General Assembly of the United Nations but countries could not agree on the
definition of international terrorism or the measures necessary to combat
it. Since that time the United Nations
had adopted a number of Conventions on Terrorism including:-
-
in 1979, the Convention against Taking of Hostages;
-
in 1988, the Convention for the Suppression of Unlawful Acts against the Safety
of Maritime Navigation;
-
in 1997, the Convention for the Suppression of Terrorist Bombings;
-
in 1999, the Convention for the Suppression of the Financing of Terrorism.
In
all up to date, 12 Conventions had been adopted by the United Nations. But a
comprehensive convention on international terrorism or an agreed definition of
international terrorism is still not within reach.
While the diplomats and politicians
debated on the words and the contents of Conventions, international terrorism
spread and gathered its fatal force. The world learnt about:-
-
the downing of the Panam
Lockerbie flight in 1988,
-
the Tokyo subway gas
attacks in 1995,
-
the Luxor tourist
killings in 1997,
-
the bombing of US
embassies in Nairobi and Dar Es Salaam in 1998,
-
the USS Cole killing of
sailors in 2000 in Aden.
The
world condemned the violence of these terrorists acts but the violence did not
change our way of life. They were too
remote for most of us.
The General Assembly of the United Nations in 1994 in
its Resolution 49/60 of Declaration on Measures to Eliminate International
Terrorism said:-
“ ….
Terrorists acts are in any circumstance unjustifiable, whatever the
consideration of a political, philosophical, ideological, racial, ethnic,
religious or of any other nature that may be invoked to justify them … ”.
This universal sentiment however was
not reflected in the full participation
of every country in the world in the UN Conventions against international terrorism.
Large number of countries
did not sign and even more did not ratify. Many countries did not have proper domestic legislation against
international terrorism. In Hong Kong only some 7 pre-1980 UN Conventions apply and we do not have a sufficiently
comprehensive domestic legislation dealing with suppression of international
terrorism. I believe this lack of adequate domestic legislation on full suppression of international
terrorism is probably true for the countries of many delegates to this
Conference.
In USA, domestic legislation dealing with international
terrorism had been enacted for some time.
An example of this is the Antiterrorism and Effective Death Penalty Act
of 1996 which provide for the designation by the Secretary of State of
terrorist groups as Foreign Terrorist Organizations (FTOs). It is unlawful in the USA to provide funds
or other material support to a designated FTO and banks are required to block
funds of designated FTO. I understand
that on 5th October 2001, the Secretary of State of the USA amended
the list of designated FTO from 26 to 28, a full list of
which with Background Information is set out in the attached Annex. A
casual look at the contents of the Background Information on the 28 Terrorist Groups suggest
that for sometime we have in this world a large number of international
terrorists groups which had carried out terrorists attacks or which are likely
to do so in future.
In the context of terrorism having been for some time
a “clear and present danger to the international community” it is surprising
that a major terrorist attack did not take place earlier. What caused the world
to finally wake up in horror on the 11th of September was that for the first time, the terrorists attacked
massively inside the urban centre of the West.
Previously the killings were done in and to embassies, ships and planes. This time the terrorists killed thousands of non-combatants
civilians in the financial heart of America. The
full force of the murderous brutality of the World Trade Centre attack was
brought home on the 11th of September 2001 to everyone through their television sets everywhere
in the world and it struck terror into the heart and soul of every single
person in the world. There was the
sudden realisation that international terrorism could hit at any time, at any
place and kill large number of people in one single attack, including you, me,
our family, our friends and our neighbours.
America and her allies have started the War on terrorism and in particular
against Al-Qaida and its leader Bin Laden (see the Annex for details of the description, activities, strength,
area of operation and external aid of Al-Qaida). This War
might take months or years. President Bush was reported last Thursday as
saying that the War could take 2 years. This
War might result in the total
elimination of Al-Qaida and its leader Bin Laden or it might not. What would be the international political and economic landscape
after the War. Will we go
back to normal after the War or
will we have a
different world whatever happens with this War.
It is my belief that international terrorism will
trouble our world for a long time to come, whatever might be the outcome of
this War and I say
this because:-
(a)
there appears to be
social and political discontent in many parts of the world to such extent as to
enable fanatic terrorist groups not only to operate in secret for long period
of time but to recruit successfully new members to join the terrorist groups.
The reported ability of Al-Qaida to recruit young fanatical Saudi and Egyptian
muslims into the Al-Qaida Group
is an example of the appeal of such terrorist groups;
(b)
it is unlikely that the tension between the
capitalist west and some of the people of islamic countries will disappear in
the near future. The tension was
described by Samuel Huntington thus:-
“The underlying problem for the West is not Islamic fundamentalism. It is
Islam, a different civilization whose people are convinced of the superiority
of their culture and are obsessed with the inferiority of their
power. The problem for Islam … is the
West, a different civilization whose people are convinced of the universality
of their culture and believe that their superior, if declining power, imposes
on them the obligation to extend that culture throughout the world.’(underlining supplied)
The inability to accept global
multi-culturism (arguably on both sides) is one underlying reason for the
insecurity of the world. The insecurity is most acute and dangerous in the
economically deprived areas of the world where islamic fundamentalism has the
greatest attraction for the people;
(c)
terrorist groups by
nature and definition operate in secret and it is extremely difficult to fight
against enemies who work in the dark, not in open view. War against
international terrorists who have no fixed address cannot be waged like a conventional war against the
Iraqi army with tanks and large formation of troops;
(d)
the United States of
America has declared long-term war against international terrorism. A study of the 28 designated FTOs will reveal that some
18 of these are middle eastern groups with heavy emphasis on muslim or islamic
leadership and the rest (including Japanese, Basque, Irish, Greek, Peruvian and
Colombian) are spread over the rest of the world. Being a novice in this area, I cannot say whether these 28
Designated FTOs have established any record of staying power. However it is
very probable, given the nature of some of these FTOs with their background
that, this War even if successful will still leave sufficient groups of
secretive and dangerous terrorists in active operation as to keep many of the
security agencies of the western world very busy for the next decade. What is different between this War and the
war against Iraq is that in the Iraqi war, there was a beginning and an end,
against a clear single enemy operating from a known fixed location. No one can say now what will amount to an
end to this War as there had been no clearly stated war objectives one, two and
three. So for example even the death of Bin Laden tomorrow might not
necessarily mean the end of this War. The worldwide struggle against
international terrorism might not come to an end for a very long time because
until there is political and cultural stability in most of the underdeveloped
parts of the world (specially in the muslim world) there will be plenty of room
for international terrorism. This
struggle against international terrorists will be unlike any previous wars we
have known. The west led by America will be fighting against enemies of unknown
identities, unknown attributes, unknown
numbers and unknown networks.
It is therefore the theme of my Lecture today that 911
has changed our world. We cannot go back to the old world where
terrorism was a mere inconvenient item every two or three years on the television evening news.
World Trade Centre attack has changed all that. Whatever might take place in and after the present War, we will have to live in a
world where international terrorism and steps taken to prevent and suppress
international terrorism will become part of our political, social, cultural and
economic life. How would such a new world affect arbitration and what impact it will have on arbitration.
What I will be
saying now is largely an exercise in speculation as there is not a great deal from
past history to guide us as to what might happen in the next few years or
decade. Being aware that this is
something of a crystal-ball look into the future, it seems to me that in the new world
facing us, there are three areas which
would be affected by international terrorism:-
(a)
Direct and indirect
consequence on persons, properties and economic activity as result of a
particular terrorist attack;
(b)
Direct and indirect
consequence on persons, properties and economic activity as result of steps (including violent steps) taken to
find and punish the particular terrorist attackers;
(c)
Direct and indirect
consequence on persons, properties and economic activity as result of steps
taken to suppress terrorism generally including terrorist activities or the
funding of terrorist activities.
Before delving into the three areas affected by terrorism, it seems
worthwhile to state that World Trade Centre attacks have brought about a sea
change in the world’s attitude to international terrorism. What is the sea change?
First I believe that there will be an accelerated programme of domestic
legislation against terrorism in practically all countries of the world. All activities everywhere will be affected
by such new domestic legislation. Previously international conventions had made
very little impact on such activities and before 911 most countries did not
regard the passing of domestic legislation in conformity with their UN
Conventions obligations as a matter of first priority. 911 has changed that and
domestically there will be demand for an accelerated programme of legislation
against international terrorism. I read
with interest that a new substantial anti-terrorist bill is now before the
British Parliament.
Secondly, the increasing appreciation of the relevance and importance of
terrorism and anti-terrorism legislation will in a short time cause many
contracts (with arbitration clauses) to be differently written. Terrorism can no longer be hidden behind
standard clauses but would be the subject of probably elaborate treatment in
contracts. Many lawyers amongst you will be very busy with advising and
drafting relevant clauses exempting liability arising out of terrorism or for
not taking sufficient steps to prevent terrorism. I expect many law firms in all urban centres of the world have
already received request from companies asking for advice on and relating to
terrorism. In many cases, security
experts will have to be brought in to advise on the exposure of a particular
company on terrorism.
With the above sea change as the background, I will try to take a look
into the first area of the future after a Terrorist Attack.
TERRORIST ATTACK
Persons
The
first immediate casualties of a terrorist attack are normally the innocent
civilian victims who happen to be at the scene of the attack. In the case of WTC attacks, I would include
in this category not only those directly on the top floors of World Trade
Centre but also those firemen or policemen who were not there at the time of
the attack but who bravely and selflessly went to the rescue of the
victims. The death and/or bodily or
psychological injuries as result of the terrorist attack often trigger off
contractual rights the dispute of which require resolution by arbitration.
Examples of this would be life, accident or health insurance policies,
contracts of employment and pension schemes.
Persons injured might have claims which would be subject to arbitration
clauses. A typical example of persons
injured by a terrorist attack would be passengers injured on board a cruise
ship which was seized by terrorists who gained access to the ship as result of
inadequate security system of the cruise ship. A claim by the passengers
against the ship could be met with exclusion clauses in the ticket conditions. An arbitrator would have to resolve such
disputes.
Properties
Loss of properties as result of a
major terrorist attack at World Trade Centre is a subject of such complexities
that the matter may have already engaged the professional attention of many of
the attendees of this Conference.
Properties lost would include naturally both real and personal property,
namely immovables or movables. In
respect of immovable properties I suspect many offices in the World Trade
Centre would be the subjects of leases, sub-leases or agreements with
arbitration clauses. In relation to shops the possible permutation of
contractual arrangements might be even more diverse and many of these may have
arbitration clause providing for dispute resolution. Property lawyers can
probably spend days discussing the implications on the leases arising from the
collapse of the World Trade Centre buildings.
In July 2001 Silverstein Properties
apparently acquired the lease of World Trade Centre from the Port Authority of
New York. Herald Tribune reported
recently that Silverstein Properties was seeking $7.2 billion from the
insurers. The insurance claim was made on the basis of two separate occurrences
under the insurance and therefore entitling Mr. Silverstein’s company to collect
twice on $3.6 billion for each occurrence of attack. The underwriters were
reported to contend that there was only one occurrence as the two attacks were
coordinated. I do not know if the
insurance contract in question contained an arbitration clause but if it does,
then the arbitration over the insurance claim will certainly be one of the
largest arising out the of terrorist attack on World Trade Centre or possibly
the largest insurance claim for loss arising out of a terrorist attack.
In respect of personal movable
properties, whether they be in the form of equipment, appliances, vehicles,
goods, personal belongings or even works of art, inevitably very large losses would be suffered as
result of a terrorist attack. Some
$100 million works of art were reportedly to be destroyed in the WTC. Computers destroyed amounted to over $10 billion in
value. Borders
Bookstore at the World Trade Centre was my favourite bookshop in New York where
I had spent many many happy hours. All
the books lost in that Borders store might well be the subject of a number of
arbitration disputes between Borders and the various publishers or suppliers. It is in fact difficult to imagine what a full list of
properties lost at World Trade Centre would look like. I suspect it will take
many many months to compile such a list let alone deal with claims arising from
the destruction of the properties.
Undoubtedly these properties would be the subject of huge number of
contracts and the working out of the economic consequence of these contracts
arising from the destruction caused by the terrorist attacks would be the
difficult task facing many professional arbitrators in the next few years. As
with arbitration over lives lost at WTC, the arbitrators will be faced with
heart-renderingly difficult decisions the reaching of which might well proved
to be the most painful and difficult for even the most experienced of
professional arbitrators.
Loss of
Economic Activities
What is even more difficult and
almost of unprecedented complexity will be the working out of economic loss
from inability to carry out contractual obligations arising out of the
destruction of WTC. Tens of thousands
of contracts must have been affected by the terrorist attacks on WTC and many
of these will require dispute resolution by patient arbitrators.
In the past, when terrorist attacks
were confined to embassies, warships or planes, the economic losses resulting
from such attacks were relatively easy to work out and did not give rise to
many disputes requiring resolution by arbitration. But the World Trade Centre
destruction was of a totally different order. It is not just a case of 5,000
lives lost but it was total destruction of the most important workplace in
America where huge amounts of business activities were carried on and where
these enterprises had entered into hundreds of thousands if not millions of
contracts, many of which were adversely affected by the attacks. Take for example one of the security houses
such as I believe Lehman Brothers which had to find quickly alternative office
in a Sheraton hotel nearby or the tragic case of Kantor Fitzgerald the unique
bond dealers which lost some 80% of its staff.
Outsiders could not even begin to speculate as to how these companies
and their contracts were affected by the attacks. But one thing is certain, if any contract was affected and there
was a dispute and such a contract contained an arbitration clause then the
arbitrator would have to decide such a tragic case. World Trade Centre attack
was vicious and on an enormous scale, but it is possible to think of worse
situations. If there was a secret and
successful attack say of the air supply or the water supply of a major city
like Chicago or London or Paris and millions die, how would the contractual loss
arising from such attacks be resolved.
It is therefore not too speculative
to conclude that any terrorist attack involving loss of life, loss of property
and loss of economic activity will result in disputes of contracts requiring
resolution by arbitration. The
arbitration work from a small attack can be easily handled but the arbitration
community probably would be hard pressed to cope with the consequence of a
really major or huge terrorist attack.
FINDING TERRORIST ATTACKERS
After a terrorist attack, inevitably
there would be a hunt for the attackers.
I suspect in most cases, the suspects will be drawn from a small known
circle of terrorist groups and the hunt would be to find them physically and
bring them to justice. There would also be efforts made to freeze their assets
and immobilize their ability to use their funds.
In terms of the operation to find
the attackers, most likely physical force would be used both in the country
where the attack took place as well as anywhere else where the attackers or
their associates could be found. If there was physical conflict (which would
most likely to be the case as it is difficult to imagine that the attackers
would be giving up quickly without any resistance), then damage to persons as
well as properties would likely occur and in such situation, the same
categories of loss could be suffered as in the case of terrorist attacks. In all these situations, arbitration clauses
in the affected contracts would call for disputes to be resolved by arbitration.
In the case of operation to find not the attackers but
the funds of the attackers, as legal means would be used by the Government
pursuant to whatever power they have under their domestic legislation, there
would be little scope for claims for personal harm or injury or physical damage
to property. But what is likely to occur would be economic loss suffered as
result of the banks or third parties taking steps pursuant to directives from
the Government or some semi-official agencies.
Let us imagine a case of a west European bank freezing the local bank
account of a company suspected of some connection abroad with the attackers.
The west european bank acted prematurely without a legally enforceable order of
its Government. The local bank customer was wholly innocent of any terrorist
connection. And because of the freezing of the account, the company was not
able to carry out a certain transaction and claim was made by the company
against the bank for the loss suffered by the customer company. If there was an arbitration clause in the
bank/customer contract then the dispute will have to be resolved by arbitration
and it may well be that the bank has no defence to the claim brought by the
customer.
There are reports of terrorist
groups doing business for profit as well as using front organizations to carry
out their activities. Even charities or religious foundations are said to be
involved. Any company therefore which
had dealings with such organization or charity or foundations might suddenly
find itself the subject of inquiries or actions taken by third parties or banks
resulting thereby in loss which would be subject of claims in arbitration.
SUPPRESSING TERRORISM
It is my belief that one of the most
important legacies of the World Trade Centre attacks of 11th
September will be the accelerated pace of demand for new measures to prevent
and suppress terrorism and in particular terrorist attacks. There will be, I think great improvements in
anti-terrorism in at least the following areas:-
(1)
improved international
convention on international terrorism;
(2)
increased domestic
legislation on prevention and suppression of international terrorism;
(3)
increased measures taken
or required to be taken by law to guard against terrorist attacks;
(4)
increased measures taken
or required to be taken to track down terrorists groups in advance of attacks
by them.
In the past, the international community did not act
with the greatest of urgency in the discussion, drafting and adoption of the
various UN Conventions against international terrorism. I believe after 911 and
specially after this War in Afghanistan, a new international attitude will
press for a much faster adoption of a comprehensive convention against
international terrorism. It is at present difficult to predict what detailed
form such convention will take but after the lessons learnt from the World
Trade Centre attacks, I suspect the new Comprehensive Convention will contain
requirements for elaborate measures to detect, prevent and suppress
international terrorism and most importantly of all to work together to reach
the aforesaid objectives.
On the domestic legislation front,
there will be a compelling public pressure on each country and within each
country (specially in the west) to enact domestic laws in compliance with the
various UN Conventions and in many countries to go beyond such UN
Conventions. There should be in the
domestic legislation:-
(a)
prohibitions against
harbouring terrorists;
(b)
prohibitions against the
establishment and operations of terrorist camps;
(c)
prohibitions against
activities to encourage, organise, or finance terrorism;
(d)
duty to exchange
information and expertise on terrorism, terrorists, their movements, support,
weapons and connections ;
(e)
duty to catch terrorists
for their prosecution or extradition.
Whilst the domestic legislation lays down duties and
obligations principally on the government of the country to take the
appropriate steps against terrorists and terrorism, the greatest impact on
everyday behaviour of all enterprises would be the necessity to be vigilant at
all times against terrorists. All important public places will be expected to have necessary procedures put in
place so as to minimise
the risk of terrorist attack. A cruise
ship will be expected to put in place a proper system to protect its passengers
at all times, not just at the time of boarding but even during the course of
the cruise voyage and if there was a terrorist attack, the conditions of the
contract might not be sufficient to protect the cruise line owners. The same goes for the airlines and an
example of such inadquacy of security would be the deliberate failure to put in
air marshals on board a known vulnerable flight for financial reason of saving
money. An arbitrator might have to
decide the question of the liability of the cruise ship or airline for such
terrorist attack.
Such examples can be multiplied.
Utilities consumer could hold the utilities company liable for loss caused by
the interruption of the utilities services if there was insufficient measure
taken by the utilities company to prevent terrorist attack.
Employer could be held liable to employees if inadequate steps were
taken in respect of terrorist biological or chemical attacks. The US Congress closed down very quickly
after the Anthrax attack last week and an improved system will have to be put
in place to prevent similar future attacks.
A charterer or shipper or cargo could hold the ship
liable for lack of adequate steps taken to guard against terrorist attack.
Imagine a giant oil tanker which due to inadequate security precaution was
allowed to sail into Hong Kong harbour and huge explosion was set off by the
terrorists causing widespread fire onto other ships in harbour and buildings on
land resulting in the closure of the Hong Kong harbour due to the sinking of
the ships. Between the shipper of the
oil cargo and the shipowner, the dispute as to liability might have to be
decided by one of your members as to whether the bill of lading conditions or
the charterparty terms could protect the carrier from liability.
The common theme of all these disputes, requiring
possibly difficult decision by an arbitrator is that after the World Trade
Centre’s ferocious terrorists attack, the protection and prevention standard
expected from everyone (person, company, institution and government) is raised
to a totally different level. The enormous danger and risk of unexpected
attacks from terrorists is now known and accepted by the world and certainly by
the business community of the world. The question is no longer whether
preventive steps should be taken but what reasonable and prudent steps ought to
be taken in the circumstances having regard to the risk and expense. In the case of major public buildings, which
are prime targets of attack or major installations or vehicles of transport
which can be employed as means of mass destruction such as a VLCC, I expect
that much would be expected. In the
case say of a very small craft, it would not be reasonable to expect the same
expensive and elaborate security measures to be taken.
The duty of tracking down attackers
and their funds so that their terrorist activities could be curtailed or shut
down calls for a different kind of standard of behaviour, the breach of which
might give rise to claims in arbitration.
In general of course, the duty of tracking down would lie on the part of
the government and government agencies. But let us assume that a large
container terminal company in Europe was asked to supply to its Government
anti-terrorist agency information about a certain employee which would have led
to the immediate capture of a terrorist groups of which that employee was a
member. The terminal company failed to either respond quickly or gave the wrong
information as result of which the container terminal was blown up by the
terrorists and large number of the staff were killed and/or injured and hired
appliances were destroyed. It would be up to the arbitrator to decide whether
any exclusion provision in the employment contracts (in the case of death and
injury claims by the employees) and in the appliances hire agreements could
protect the container terminal company.
Examples of such disputes arising out
of the new duty on many to track down on terrorists and their funds could be
repeated many times. A difficult question which might be asked is whether there
is any duty to report on
activities which give rise to suspicion of existence of terrorist
activities. In the days before World
Trade Centre, it could be
argued that there was no such duty but after 911, I believe a good case can be
made out for a duty on everyone, within reason and without exposing oneself or
one’s immediate circle to excessive danger, to report on possible terrorism and
terrorists. How can I live in peace and
security if you, my neighbour do not take the reasonable step when you can see
or sense terrorist danger around me.
Security comes from not only by the Government acting to protect us (by way of
domestic laws or measures such as the taking over of the scanning machines at
the airports) but security comes from every one behaving differently from
before because the collective security for everyone is the collective vigilance
and protection we can give to each other.
After what we have seen on television of the disaster at World Trade
Centre an arbitrator will most likely apply very high standard if any dispute
should arise as to the adequacy of vigilance of a person or company in respect
of potential terrorism and terrorists.
Well drafted
exclusion of liability from terrorism clauses could of course make a difference
to the outcome of many of these arbitration disputes. In time, possibly the centre of dispute
in these cases will shift from whether there was inadequate security measures
to whether the exclusion clauses are sufficient to protect such lack of
security measures. Often the lack of
comprehensive security measures is due to economic reasons of a company not
wanting to spend the necessary money.
If it is seen by Government
that socially and politically it is undesirable that companies escape liability
with such exclusion provisions then legislation might be passed to make it mandatory for adequate security systems to be
put in and it would be against the law to contract out of such statutory
obligations. The above speculative scenario would provide much scope for
arbitrator to wrestle with the difficult problems arising out of the necessity
to prevent and suppress terrorism.
CONCLUSION
Have I painted a black picture of
hell or is it all an illusion which will soon disappear and we can go back to
relatively normal lives. It is not
possible for us to see into the future but I have tried to speculate from
present evidence of what
the future might hold for the world and the role which might be played by
arbitration and arbitrators in such a world.
If I am even half right in my
prognosis, then you will agree with me that arbitration will be very active
because it will be a new world which we are not used to, where we will have to
live in fear of international terrorist attacks at any time and at any
place. A lot of adjustment will have
to be made for life in the new world and such adjustments often give rise to
differences requiring arbitration.
When the
Atomic bomb was first dropped, fear gripped the world. We now live in fear of a
different kind but no less deadly. Cedric Barclay, a man born in Istanbul in
1917 and who lived most happily amongst muslims (he spoke Turkish and Uzbek and
even carried pilgrims to Mecca in a shipping line founded by him) would
understand the human dilemma facing the world today. As the founder of the Congress of International Maritime
Arbitrators, he would probably suggest that differences of whatever kind could
be resolved in arbitration by a firm and independent arbitrator.
Terrorism and arbitration are not
strangers to each other. In practically all the UN Conventions there are
provisions for arbitration in the event Governments cannot agree on the
interpretation or application of these Conventions on terrorism (see for
example Article 16 of the 1979 Convention, Article 16 of the 1988 Rome
Convention, Article 20 of the 1997 Terrorist Bombing Convention, Article 24 of
the 1999 Financing Terrorism Convention, Article 23 of the draft Comprehensive
Convention on International Terrorism).
If one day the fundamental difference dividing most of the world from
the terrorists groups could be referred to arbitration, then this world will be
a safer place. But time for peaceful
solution by such arbitration will not come unless the whole world begins to
understand a great deal more of what causes a person or group of persons to
become terrorists. Is the fundamental
cause of the terrorism the great economic divide between the increasingly
wealthy west and the increasingly poorer people of the third world? The economic swamp that serves as the
breeding ground of hatred of the world’s wealthiest and most affluent countries
headed by the USA is where the future terrorists of our children’s generation
are born. The cultural and political
impotence of people of non-western religious faith and cultural tradition is also the source of rage which
cause young and educated people in these undeveloped parts of the world to take
up the ideology and practice of terrorism. We must find out
for example why in the universities and madrasahs of Egypt, Pakistan or
Algeria, young students learnt to detest the western or American world and
their values. It is only when
the world has understood the fundamental causes of terrorism can we begin to
address the exceedingly difficult problem of terrorism and find the solution to the problem. In the meantime,
all we can do is pray that another terrible attack will not take place, at least not easily or due to
lack of vigilance on the part of the citizens of the world.
As a guest of New York and of the United States of America, I am sure I
share the feelings of all the visitors here today of our admiration for the
courage of the brave people of New York and the firm strong principle taken up
by the great nation of the United States of America. Your President has been transformed by 11th of
September and I pray that all of us have also been transformed into vigilant
citizens who demand a different world where we do not have to live in daily
fear and where no international terrorist group can survive for long because it
will be a world where his peers or fellow citizens will not allow them to cause
cruel and senseless destruction. How that will come about I do not know but if
there is ever any need for a system of bridge building between two sides, then
we have in this magnificent arbitration community, miracle workers of bridge
building.
I thank you for granting me the
indulgence of sailing with you into dangerous uncharted waters talking about a
subject which I know so little about.
For me it was a fascinating voyage of discovery allowing us to see
something of the future, where a special place is reserved for arbitrators.