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Detecting Prohibited Subsidies and Determining Continued Compliance: WTO Panel Rules (Again) for the US in the Airbus Dispute with EU

Published on September 26, 2016        Author: 

On 22 September 2016, the United States Trade Representative (USTR) scored another victory in its long-running dispute with the European Union (EU) over subsidies provided by certain EU Member States to large civil aircraft manufacturer Airbus. The USTR sought to prove that 36 challenged EU measures remained inconsistent with its duty to comply with the rulings and recommendations issued by the WTO Dispute Settlement Body (DSB) after adopting the original 30 June 2010 Panel Report in this case.  Specifically, the US challenged four types of subsidies allegedly made by the EU and/or certain EU Member States to Airbus for continuing inconsistency with the Subsidies and Countervailing Measures (SCM) Agreement: 1) launch aid or member State financing; 2) equity infusions for the corporate restructuring of Aerospatiale and Deutsche Airbus; 3) infrastructure related measures of German and Spanish authorities; and 4) research and technological development funding provided by the EU and certain member States.

The 22 September 2016 WTO Panel Report European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft [hereafter, “2016 Panel Report”] found, among others, that: 1) French, German, Spanish, and UK launch aid or member State financing for the Airbus A350XWB constituted actionable specific subsidies (2016 Panel Report, para. 7.1.c.ii.); 2) the EU and certain member States have failed to comply with their obligation to withdraw the subsidies for other Airbus aircraft (2016 Panel Report, para. 7.1.c.ix.); 3) the EU continues to be in violation of Articles 5(c) and 6.3(a)(b) and (c) of the SCM Agreement by failing to comply with previous recommendations and rulings of the WTO Dispute Settlement Body in the original 30 June 2010 Panel Report (2016 Panel Report, para 7.2); 4) to the extent that the challenged EU measures remain inconsistent with the SCM Agreement, they have nullified or impaired benefits accruing to the US under that Agreement (2016 Panel Report, para. 7.3); and 5) the EU and certain member States failed to bring 34 of its 36 challenged measures into conformity with their obligations under the SCM Agreement (2016 Panel Report, para. 7.4).

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Announcements: International Law Association Regional Seminar Series; States and Migrations in International Law Event; Chatham House Meeting; Graduate Institute International Law Literature Forum; 6th Annual Junior Faculty Forum for International Law

Published on September 25, 2016        Author: 

University of Nottingham International Law Association Regional Seminar Series. The University of Nottingham School of Law is pleased to announce the autumn term schedule for the 2016-2017 International Law Association Regional Seminar Series. The schedule of can be found here and runs from Wednesday 5 October to Wednesday 23 November. The first seminar is entitled General Principles of International Law for the 21st Century and will be given by Catherine Redgwell (All Souls College, University of Oxford).

States and Migrations in International Law Event. Next week the first Debate of the Global Network of Societies for International Law will take place and deal with States and Migrations in International Law. Three experts will explain their position and the various positions and debates within their State or region: Vincent Chetail (Switzerland), T. Alexander Aleinikoff (United States of America) and Linda Kirk (Australia). The Debate will last 30 minutes and will be broadcast here from 28 September at 3pm Paris / 9am New York / 11.30pm Melbourne.

Chatham House Meeting. The International Law Programme at Chatham House will be hosting a meeting on ‘Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism’ on 6 Dec 2016 at Chatham House. For further details and to enquire about registering see here. Read the rest of this entry…

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Joint Series on International Law and Armed Conflict: Monica Hakimi on Fair Trial Guarantees in Armed Conflict

Published on September 23, 2016        Author: 

The second post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Fair Trial Guarantees in Armed Conflict’- by Monica Hakimi (Michigan Law) is now available on Lawfare.

Here’s a taste:

hakimiThe fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.

A. The Regulatory Framework

The relevant treaty law can be laid out succinctly. The four Geneva Conventions, the two Additional Protocols, and human rights law all require that criminal trials be fair. The specific language and requirements of each instrument vary, but the key parameters are similar. (The relevant provisions are GCI art. 49; GCII, art. 50; GCIII arts. 84, 86, 99, 102–08; GCIV arts. 5, 64, 66–75, 117; common art. 3; API art. 75; APII art. 6; and ICCPR art. 14.)  In short, a court must: (1) be independent, (2) be impartial, and (3) afford defendants basic guarantees. A court is independent if it has the ability to conduct its business without undue external interference. It is impartial if its decisions rest on the evidence before it, without any predisposition toward one side or the other.

Common Article 3 does not list specific guarantees for criminal defendants in NIACs; it simply requires that defendants be afforded “all the judicial guarantees which are recognized as indispensable by civilized people.” Other treaty provisions identify what these guarantees might be. The provisions that apply in international conflicts, Additional Protocol II (which governs a subset of NIACs), and human rights law all require: (a) a presumption of innocence, (b) prompt notification of the offenses, (c) charges based on individual responsibility and offenses prescribed in law, (d) means to present a defense, (e) presence at trial, (f) a right against self-incrimination, and (g) notification of remedies. Three other guarantees are listed in the treaty provisions for international conflicts and in human rights law—but not in the provisions that specifically govern NIACs: (h) trial without undue delay, (i) open proceedings, and (j) no double jeopardy.

Read the full post over on Lawfare.

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Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity

Published on September 23, 2016        Author: 

Many say that there is “tribunal fatigue”. International tribunals have been said to be too costly and too slow. It has become clear that the ICC can only deal with a few situations. Calls for the establishment of new ad hoc tribunals, for instance in relation to MH17 or Syria, have not succeeded. Instead, we have seen a trend towards “new hybridity”, namely the establishment of special judicial mechanisms. The United Nations Mechanism for International Criminal Tribunals (the ‘Mechanism’) and the newly established Kosovo Specialist Chambers and Specialist Prosecutor’s Office (formally Kosovo Relocated Specialist Judicial Institution) are part of this trend. The name of both institutions indicates caution and compromise. The title “tribunal” was avoided. The two institutions are representative of a broader turn to hybridity in international criminal justice. In this post, I will discuss some of their distinct features and challenges.

I. The status quo: International justice 4D

Let us start with the status quo. International criminal justice has traditionally recognized two main forums to investigate and try international crimes, namely domestic and international jurisdiction.

National courts have traditionally been the main forum, given that international crimes have domestic roots. In recent years, more and more States have adopted specialized laws or special prosecution units to investigate and prosecute international crimes (e.g., Guatemala, Colombia, Uganda).

The second forum is international jurisdiction. International institutions have been seen as necessary corollary to domestic jurisdiction in specific circumstances. As Judge Röling argued, international crimes are violations of “international law”, hence “an international judge should try the international offences”. This led to the turn to fully international courts and tribunals, such as the ad hoc tribunals and the ICC. Read the rest of this entry…

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Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict 

Published on September 22, 2016        Author: 

As noted yesterday, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The first post in the series is by Nehal Bhuta on fair trial guarantees in armed conflict.

The protection of fair trial rights during international and non-international armed conflicts might reasonably be seen as an area where the convergence between international humanitarian law (IHL) and international human rights law (IHR) is considerable, and in which the co-application of the two bodies of international law results in “interpretive complementarity” in respect of specific guarantees contained in both legal regimes. It should be noted at the outset that a person detained for the purposes of criminal prosecution during an international or non-international armed conflict is within the jurisdiction of the prosecuting state for the purposes of international human rights law whether the person is within the territory of the detaining state or not. At the same time,  that state may also be a detaining power, an occupying power or a party to a conflict on its own territory (even if part of that territory may be outside its effective control).

In this short post, I wish to raise for discussion areas of tension and uncertainty in the relationship between IHL and IHR in fair trial guarantees during an armed conflict. I first address the question of whether IHL countenances different understandings or interpretations of specific fair trial guarantees protected in both IHL and IHR. I then turn to the related question of whether derogation provisions can and should be invoked in order to give effect to IHL-based interpretations of a fair trial right over an IHR-based construction of the right. Finally, I examine some dilemmas associated with countenancing the possibility of courts constituted by armed groups as conducting fair trials under IHL.

Fair Trial Guarantees under IHL and IHR

The fair trial guarantees contained in IHL are expressed in the following general formulations found in the Geneva Conventions (GC) and Additional Protocols (AP I and II):  Read the rest of this entry…

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Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 21, 2016        Author: 

In late July, a group of academic, military, and governmental experts from both sides of the Atlantic gathered at the University of Oxford for the fourth annual “Transatlantic Workshop on International Law and Armed Conflict”. The roundtable, held under the Chatham House Rule, and which this year included participants from Australia was held over two days and examined contemporary questions of international law relating to military operations.

This year’s event placed a particular emphasis not only on some substantive issues relating to the conduct of hostilities (such as targeting of “war sustaining” objects and the principle of proportionality), but on procedural obligations arising under the law of armed conflict. The procedural obligations discussed include the obligations of parties: to engage in review of the lawfulness of detentions in the armed conflict; to guarantee fair trials for those prosecuted for offences related to the conflict; and to investigate suspected violations of the law of armed conflict. Discussion of these procedural obligations focused on the content and scope of these obligations. The sessions also examined the extent to which these obligations apply to (and are capable of being fulfilled in) non-international armed conflicts and non-state armed groups. Inevitably, the sessions also considered the relationship between the procedural obligations imposed by international humanitarian law and those which may arise under international human rights law. To what extent should the latter inform the former?

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post represent’s the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented. The blogposts focus almost exclusively on procedural obligations in the law of armed conflict. In addition, there will be a post on the principle of proportionality under IHL. Although proportionality imposes a substantive obligation on parties not to cause damage or casualties which are excessive in relation to the anticipated military advantage, arguably, the attempts to achieve conformity with this obligation tend to be effected through particular processes and procedures . Read the rest of this entry…

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Withdrawal from the United Nations: Would it have been Lawful for the Philippines?

Published on September 19, 2016        Author: 

50 years ago today (on 19 September 1966), the Ambassador of Indonesia to the United States sent a telegram to the UN Secretary-General stating that “my Government has decided to resume full co-operation with the United Nations and to resume participation in its activities . . .” That marked the beginning of the end of the only case where a UN member has purported to withdraw from the organization. Last month, Rodrigo Duterte, President of Indonesia’s neighbour, the Philippines, threatened that the country would withdraw from the United Nations because of criticism by two UN Special Rapporteurs (see here). As has been widely reported, and as pointed out by Marko a couple of weeks ago, hundreds of (or on some accounts up to 3000) suspected drug dealers or users have been killed since the Duterte took over in Philippines.  On 18 August, the UN Special Rapporteurs on Summary Executions and on the Right to Health issued a statement “urging the Government of the Philippines to put an end to the current wave of extrajudicial executions and killings in the context of an intensified anti-crime and anti-drug campaign targeting drug dealers and users.” In response, Philippines President Duterte stated that “maybe we’ll just have to decide to separate from the United Nations” (see here and here). The Philippines Foreign Minister later stated that the country had no plans to leave the UN, and Duterte himself subsequently stated that his threat was just a joke.

However, the threat to withdraw does raise the question of whether UN members may legally withdraw from the Organization. Although the circumstances are very different, and there are clear treaty provisions to provide guidance, British withdrawal from the European Union also provides cause to ponder more generally about how and when states may withdraw from international organizations. Would the Philippines have been entitled to withdraw from the UN? Unlike the position with the European Union, and it’s now well-known Article 50 of the Treaty on European Union), the UN Charter does not make explicit provision for withdrawal. This post explores whether despite the absence of specific provision,  a UN member is legally entitled to withdraw from the organization. Read the rest of this entry…

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Announcements: National University of Ireland Galway Vacancies; CfP Utrecht Centre for Accountability and Liability Law; Works in Progress Conference; Student Writing Competition; Stress Testing the Law of the Sea Conference; Kosovo Specialist Chambers Website; ICTY and MICT Open Day

Published on September 17, 2016        Author: 

1. National University of Ireland Galway Vacancies. The National University of Ireland Galway seeks to appoint an Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights. Closing date for applications is 20 October 2016Full details can be found here.

2. Call for Papers: The Utrecht Centre for Accountability and Liability Law. The Utrecht Centre for Accountability and Liability Law (UCALL) welcomes abstracts from both senior and junior researchers for an international conference titled ‘Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards’. This conference inquires how regulatory tools stemming from international law, public law, and private law may or may not be used for transnational corporate accountability purposes. Attention will be devoted to applicable standards of liability, institutional and jurisdictional issues, as well as practical challenges, with a focus on ways to improve the existing legal status quo. The conference will be held at Utrecht University on 19 and 20 May 2017. Abstracts of maximum 500 words should be sent to ucallconference {at} uu(.)nl by 1 November 2016. Further information can be found here.

3. University of Missouri School of Law Works in Progress Conference on International Dispute Resolution. The works-in-progress conference will take place on 2 – 3 February 2017, at the University of Missouri School of Law. The purpose of the conference is to help authors develop draft articles for publication, so authors will be required to submit a working draft before the conference takes place. Papers will be circulated in advance of the session, and all participants will be expected to provide detailed feedback on a limited number of other papers. The conference will also feature various networking opportunities as well as several substantive presentations (either live or by video) on issues relating to international dispute resolution. Papers presented at the works-in-progress conference will be eligible for expedited review by the University of Missouri’s highly regarded Journal of Dispute Resolution as well as for consideration by the ICSID Review-Foreign Investment Law Journal. To be considered, potential participants must submit a one-page abstract of their work on or before 15 October 2016. Further details can be found here. Read the rest of this entry…

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Al-Saadoon and the Duty to Investigate

Published on September 16, 2016        Author: 

On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. Read the rest of this entry…

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English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Published on September 14, 2016        Author: 

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

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