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Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the Philippines’ Drug War

Published on August 16, 2018        Author: 
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I’ve been up since 3 am here in Notre Dame making urgent calls and preparing petitions. I was contacted by my law partner in Manila early this morning, alerting me that three of our 16 year-family law firm’s young lawyers  – Attorney Jan Vincent Sambrano Soliven (34, and currently a law professor at the Lyceum of the Philippines College of Law), Attorney Lenie Rocel Elmido Rocha (25, who just passed the bar exam last year and was a former National Jessup Champion for the Philippines and competed in the International Rounds in Washington DC), and Attorney Romulo Bernard Bustamante Alarkon (33, and who just passed the bar exam this year) – were suddenly arrested earlier today in Makati City, Metro Manila, while they were monitoring the police’s implementation of a search warrant on the premises of a famous arts Makati City bar that the police have dubbed a “drug den”. They identified themselves as legal counsels for the owner – my Manila law firm was engaged as counsel by the owner (foreign national) of the Times bar, after the Makati City police made the raid last Saturday. Because two cabinets were locked and could not be opened, the police got a search warrant to inspect the cabinets.  Our client asked the firm to send lawyers to monitor and watch the search of those two cabinets to safeguard against any planting of evidence or theft.  Standard procedure.  The police opened the cabinets, took their inventory, and then turned to my three young lawyers and said they had no authority to be there. My lawyers respectfully said they were legal counsels of the owner and were just sent by the firm to take notes and photograph the opening of the cabinets.  But instead, one of the police team members thought they were being “arrogant” and immediately arrested them on a charge of “obstruction of justice” (punishable with minimum 6 months imprisonment, maximum 6 years imprisonment).  The police did not explain why, and how, the passive and quiet acts of note-taking and phone camera photography of cabinets being opened amounted to an “obstruction of justice” under the Philippines’ Presidential Decree No. 1829:

“(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal’s offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.”

To our surprise, for four hours, we were unable to reach our young lawyers when they were taken because they were not permitted to make any calls to counsel or their families, and neither were they informed of what the charge was against them but instead they were intimidated and verbally harassed.  When I and the law firm in Manila finally got to speak with them, they were already being hauled for medical inquest, and then being moved to the Makati City Police Station to spend the night in jail.  Because we could not find them and did not learn of the arrest until hours afterwards, we were unable to file a petition for a writ of habeas corpus because the Makati City regional trial courts are closed.  As of this writing, it is already 8.30 pm in the evening, and my three young lawyers are detained in the Makati City Police Station.

While my family’s law firm on the ground will certainly file all necessary petitions in Philippine courts and elsewhere, I narrate the circumstances above because it is a firsthand account witnessing to a demonstrated potential for abuse in the Philippines’ anti-drug operations.  The Philippines is a long-time party to the International Covenant on Civil and Political Rights, and has repeatedly upheld the ICCPR as part of the law of the land under Article II, Section 2, of the 1987 Philippine Constitution.  Article 9 of the ICCPR make it clear that arbitrary arrest and detention are anathema to every human being’s civil and political rights:

“Article 9.

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Much has been written about the thousands of extrajudicial killings cases in the Philippines – and, as we did in 2005 when then Chief Justice Puno convened all of us in academia, the bar, and the courts to come up with the new human rights remedies on the writs of amparo and habeas data – many of us today are quietly working pro bono to pursue domestic remedies and justice before Philippine courts for victims’ families.  But this is the first instance I have ever heard of since the start of the Philippines’ drug war – one where the government has repeatedly defended the “necessity”, “proportionality”, and “legality” of its operations publicly and internationally – that the police have started going after the lawyers directly, using “obstruction of justice” as their trump card. As of this writing, the police have not shown any report or evidence of what amounts to “obstruction of justice” from the note-taking and banal photography that those three young lawyers did.

It is now nearly 9 pm in Manila (and 9 am in Notre Dame), and as I and my colleagues race to file the necessary court petitions and alert the Integrated Bar of the Philippines (I have just contacted President Abdiel Dan Fajardo), I cannot help but wonder what Asian Society of International Law President and Presidential Legal Adviser on Human Rights Secretary Harry Roque – my former law professor at UP Law and beloved coach when my team won the Jean Pictet International Humanitarian Law competition in 2004 at Mejannes-le-Clap, France – will say to this course of events on the ground.  Attorneys Soliven, Rocha, and Alarkon are young, idealistic, honorable, and patriotic lawyers – and none of them ever imagined that *this* is now what the “rule of law” looks like in the Philippines.  I’ve witnessed and borne my share of detention and law enforcement abuse in another country, so tonight I’m telling them to clutch hard inside, and stand by due process and the rule of law.  We are working hard to get them out as soon as possible.

*Update as of 18 August 2018:  The young lawyers were released late Friday evening and are in recovery. Thankful that this matter has moved to the judicial process and out of being incommunicado in illegal detention.  No further statements from us here following the sub juice rule for pending cases.  The Integrated Bar of the Philippines, Free Legal Assistance Group (FLAG) Lawyers, many other organizations and volunteer lawyers have now taken up this matter at many levels.

Filed under: EJIL Analysis
 

The turn to managed interdependence: a glimpse into the future of international economic law?

Published on August 14, 2018        Author: 
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Beyond the unpredictability injected into the international order in the wake of policies adopted by the current US administration, a trend seems to be taking shape: the management of interdependence. The belief whereby increased global integration and connectivity would bring peace, stability and prosperity has never been as challenged as presently, when links between states are occasionally “weaponized” in the pursuit of goals that increasingly blur the economic, political and strategic divides.

This scenario pre-dates the Trump period. It was described in an influential 2016 publication by the European Council on Foreign Relations as one where interdependence “has turned into a currency of power, as countries try to exploit the asymmetries in their relations”. In reaction, states are reassessing their exposure to an interdependent global order, seeking to mitigate perceived vulnerabilities that might stem from connectivity and openness.

International law is likely to be transformed if this trend gains traction. A number of international rules and institutions were premised on – and, in fact, harnessed – the interdependence that marked the post-Cold War environment. This article offers insights into possible implications of managed interdependence for international economic law, an area where states are increasingly resorting to “economic statecraft” in order to advance strategic interests. As explored below in the example of investment screening regulations, some of these interests — as national security – are pursued by the management of interdependence.

The emergence of managed interdependence

The intensification of the US-China rivalry has made salient the drivers of managed interdependence. In what possibly amounts to one of the most consequential shifts in global politics, the US has decided to change its approach to China. According to the 2017 National Security Strategy, the US needs to “rethink the policies of the past two decades—policies based on the assumption that engagement with rivals and their inclusion in international institutions and global commerce would turn them into benign actors and trustworthy partners.“

In the context of the change in policy, calls are emerging for the US to manage its economic interdependence with China. In the defense establishment there seems to be a growing sentiment that it is necessary to untangle the economic links between the two countries in order to safeguard US national security. Leading China experts in the US are advocating “ways to protect ourselves against (…) Chinese activity that’s intended to exploit our openness.” And think tanks are suggesting to build “diversity and redundancy in critical supply chains” to limit China´s leverage over the global economy.

The US case with respect to China offers a compelling manifestation of the push to manage interdependence, but it is not an isolated instance. China, for its part, is rolling out its own network of interdependence, partially as a result of the lesson “that overdependence on the West in trade and economy is dangerous”, as argued by a Chinese scholar. Likewise, friends and allies of the US are taking due note of the cost President Trump is seeking to extract from interdependence in the form of trade concessions under the guise of alleged national security. While these states often have little wiggle room to counteract at present, they might be looking for options in the future, as analysts recognize. The private sector too is adjusting to managed interdependence by means of a redesign of global supply chains. Finally, it could also be argued that domestic anti-globalization pressure can induce governments to limit their economies’ exposure to interdependence.

International economic law in times of managed interdependence

Underlying these developments is the perception that, in a context of great power competition, economic policies might be enlisted in a larger set of tools aimed at advancing strategic interests. The 2017 US National Security Strategy acknowledges that this dynamic is currently at play when it states that “American prosperity and security are challenged by an economic competition playing out in a broader strategic context.“ The combination of strategic goals and economic policies is the essence of the notion of “economic statecraft”.

In many instances, economic statecraft in all its expressions is enabled by economic interdependence. Economic statecraft is often associated with the imposition of (formal or informal) economic sanctions, and with the leveraging of state clout to advance national economic interests, as the opening of foreign markets. What became more frequent at present, though, is another brand of economic statecraft, namely the deployment of economic tools to push forward strategic state interests such as access to raw materials and the acquisition of relevant technologies. The fact that the strategic rationale behind some state measures might be debatable does not take away their nature as economic statecraft. When the US decides to manage its interdependence with a NATO ally such as Turkey by crippling bilateral economic ties, this is no less an example of economic statecraft – although some could be left wondering what the strategic logic for this decision is.

The “international law of economic statecraft” differs from international economic law in critical ways. First, states often possess more discretion to act, as a number of economic statecraft measures fall under exceptions to international rules, as national security carve-outs. Second, economic statecraft decisions are inspired by a strategic rationale, which not necessarily privileges the efficient allocation of resources. Indeed, these decisions might confound the market, as when the US government vetoed the takeover of the American chip manufacturer Qualcomm by Singaporean company Broadcom.

As exceptions to rules are more frequently invoked, legal uncertainty is introduced into global economic regimes, and the rule of law is impaired. As a reaction, states are likely to opt for some sort of managed interdependence in order to ensure a degree of predictability.

One area of economic regulation where increased managed interdependence can be identified are the disciplines for investment screening. These rules allow states to scrutinize – and occasionally discourage or veto – transactions taking place in their jurisdictions.

The dissemination of foreign investment screening as management of interdependence

Developments in the investment field offer interesting insights on what international economic law might look like in a context of managed interdependence.

Increased interdependence brought about by rules that liberalized investment flows expanded the global outward stock sixfold between 1997 and 2017, from US$ 5.5 trillion to US$ 30.8 trillion, according to UNCTAD.

More recently, though, that same agency noted that, as a consequence of “concerns about national security and foreign ownership of land and natural resources (…) investment screening procedures are becoming more common”. Whereas investments tended to be by and large welcomed in the past, they are now viewed with slightly more caution.

Tellingly, national security is a concept in expansion. This affords state authorities more leeway to review investment transactions. As the OECD documented in a 2016 report, “the reference to strategically important industries and critical infrastructure is nowadays much more frequent than some six years ago when national security was defined in a much narrower sense”.

Other developments also point to an increased management of interdependence in this area. Of particular relevance is the fact that new actors are adopting investment screening legislation – most notably the European Union, where a regulation is expected to be in force in the short term. Additionally, states with established mechanisms are reinforcing the powers held by national authorities to scrutinize foreign investments, as evidenced in the reform of the Committee on Foreign Investment in the United States (CFIUS), whose bill should be signed into law soon.

The current stage of investment screening regulation also hints at possible roles for international institutions and cooperation in this area. Accordingly, the US Congress has directed the President “to urge and help allies and partners of the United States to establish processes that parallel the [CFIUS] to screen foreign investments for national security risks (…)”. For their part, trade ministers of the US, EU and Japan have agreed on the need to work on best practices to stop governments from “the systematic investment” aimed at acquiring foreign technologies.

China, in its turn, has advocated that the WTO examine, as a possible measure of investment facilitation, to “[e]ncourage the establishment of clear and consistent criteria and procedures for investment screening, appraisal and approval (…)”.

As these examples suggest, managed interdependence does not necessarily inhibit some level of internationalization. However, they also expose different views of internationalization, one pushing for the dissemination of national rules and the other for an international control over the application of these rules.

Conclusion

To be sure, interdependence has never been complete, as states have always enjoyed varying degrees of flexibility to implement international rules. What stands out today is the risk of unravelling the interdependence that has been achieved, which generated positive results despite the shortcomings that still need fixing.

Managed interdependence is not a given. It is only emerging and its dissemination depends to a certain degree on whether more states will resort to it or not.

A world of more managed interdependence would mean an unfortunate step backwards. It undercuts the rule of law, produces regime duplication and ultimately promotes the rise of competing legal orders.

While the reasons for increased resort to economic statecraft – by all actors – might be understandable in a context of global power shift, managed interdependence testifies to the incapacity to find agreements. Rather than parting ways, efforts should instead be placed on producing commonly acceptable solutions.

*The views expressed above are personal to the author and do not represent the official views of the Government of Brazil.

 

Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro et al. v. Federal Republic of Germany

Published on August 13, 2018        Author:  and
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In 2015, German State officials began referring to the atrocities committed by Imperial German soldiers in today’s Namibia between 1904 and 1908 as ‘what would now be called genocide’. This paradigm shift sparked considerable societal debate about Germany’s long neglected colonial past – finally, one might say. Although an official apology is still lacking, Germany and Namibia are currently addressing this ‘terrible chapter in history’ at an inter-State level. Despite this diplomatic progress, however, and much to the dismay of many descendants of victims of the German colonial era, individual compensation is not a subject of those negotiations. On 5 January 2017, various Herero and Nama representatives filed a (subsequently amended) class action complaint against Germany in the New York Southern District Court, which addresses both past and present day issues (for an overview of the case see here and here). The plaintiffs, first, request compensation for ‘the horrific genocide and unlawful taking of property’ by Germany (complaintpara 1). Secondly, the plaintiffs ask the Court to declare that their exclusion from the ongoing negotiations between Germany and Namibia violates international law (ibid. para 2).

After more than one and a half years of proceedings, things now seem to be getting serious. At a ‘pre-trial conference’ held on 31 July, both parties pleaded for the first time on the delicate question of the Court’s jurisdiction. This short contribution focuses on whether and to what extent Germany is entitled to claim immunity from jurisdiction. It then analyses at which point of the proceedings this immunity would be (or has already been) violated, and considers possible implications of the case from an immunity perspective and beyond.

Can Germany claim immunity from jurisdiction?

Deriving from the sovereign equality of States, jurisdictional immunity protects States from being subjected to the jurisdiction of courts in another State. It is widely accepted in contemporary international law that States only have an obligation to give effect to this immunity for another State’s acta jure imperii. The ICJ defined these as ‘exercises of sovereign power’ (Jurisdictional Immunities, para 60), as distinct from States’ private and commercial activities (acta jure gestionis), which are excluded from the scope of immunity.

Today’s negotiations between Germany and Namibia – the object of the plaintiffs’ second request – touch upon issues such as inter-State compensation (and other forms of redress). Such matters can only be settled by States acting in sovereign capacity, i.e. by way of acta jure imperii. The various acts of the colonial era – the objects of the plaintiffs’ first request – have to be distinguished. The genocidal crimes were committed by Imperial Germany’s armed forces in military operations. A State’s armed forces typically exercise sovereign power. The situation is less clear when it comes to the takings of property. The plaintiffs seem to argue that these were sovereign acts (complaint, para 39). Yet, the German authorities also stripped many Herero and Nama of their belongings by (grossly unfair) contracts. If viewed as private law agreements, these might constitute acta jure gestionis. From an international law perspective, a more nuanced assessment of the different forms of colonial wrongs could therefore have been a promising strand of argument for the complaint. Read the rest of this entry…

 

Announcements: Evolutionary Interpretation in Different International Legal Systems Conference; IMPRS-SDR Applications for PhD Proposals

Published on August 12, 2018        Author: 
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1. University of Geneva Conference: Evolutionary Interpretation in Different International Legal Systems. On 4 – 5 October 2018, the Law Faculty of the University of Geneva is hosting a conference entitled Evolutionary interpretation in different international legal systems. Evolutionary interpretation is an intriguing and fundamental concept in international law. It allows for the interpretation of treaty provisions by taking into account, emerging factual and legal situations, changes in international law, new social considerations, technological improvements or environmental concerns that did not exist at the time of the conclusion of the treaty. Whether this evolutionary reading of terms occurs by virtue of the generic nature of the terms in the treaty, the contemporary meaning of such terms, the object and purpose of the treaty or the immediate or remote context of the treaty, evolutionary interpretation allows the terms of a treaty to adapt to the passage of time. This conference aims to facilitate thematic discussions on the topic of evolutionary interpretation. These discussions will allow for a broader understanding of the approaches to evolutionary interpretation in various areas of international law, as well as a comparison of these approaches. The programme can be found here. Further information can be found on the conference’s website. Attendance is free, but registration is mandatory. To register for the conference or to ask questions, send an email before 25 September to clement.marquet {at} unige(.)ch.

2. IMPRS-SDR Applications for PhD Proposals. The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of 5 funded PhD positions at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural law. The IMPRS-SDR was established in 2009 to bring together academics and practitioners in international dispute settlement with excellent PhD candidates to examine and compare international dispute resolution from a legal and interdisciplinary perspectiveSelected PhD candidates will receive full-time research contracts of initially two years, with a possible extension. For further information please see here. The closing date for applications is 31 August 2018.

Filed under: Announcements and Events
 

Balancing between Trade and Public Health Concerns: The Latest Step in the Plain Packaging Saga

Published on August 8, 2018        Author:  and
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The Australian Tobacco Plain Packaging (TPP) measures raised the classic issue of balancing between competing interests. While aiming at improve public health by putting plain packaging requirements on tobacco products, Australia revived an important debate in international economic law concerning whether international obligations have become too intrusive for the State’s policy space, asphyxiating the sovereign right to protect essential interests or values.

On the one hand, Australia’s measures seem to have been encouraged by public health concerns and the Framework Convention on Tobacco Control (FCTC), which is a component of a juridical strategy that purports to construct a consensus in the international legal community on the need to fight the tobacco epidemic. As the preamble to the Convention clearly states, the parties were ‘determinedto give priority to their right to protect public health’. On the other hand, the judicial contestation of the TPP measures nevertheless showed the diversity of competing interests at stake, which made the topic a perfect example of those multifaceted litigations raised before a plurality of international courts and tribunals.

The need to determine a balance between the right of the State to legislate to protect public health and the rights of tobacco companies had appeared already in the case law of the European Court of Human Rights(ECtHR Hachette Filipacchi presse automobile et Dupuy v. France,). Investment arbitration has also been another setting for this sort of litigation, most notably after Philip Morris introduced two claims contesting that the Australian and Uruguayan legislation restricting the presentation and sale of cigarettes was in violation of its rights stemming from BITs. In both cases, these requests remained unsuccessful. The ICSID tribunal used the systemic integration principle of Article 31(3)(c) VCLT to operate a balancing test between the investment protection obligations under the BIT and the State’s right to regulate, established in customary international law, together with its corollary, the police powers doctrine (Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, award, para 290).

Ever since the introduction of the complaints in 2012, the question that remained was whether the WTO adjudicatory bodies would have interpreted trade obligations in keeping with this line of reasoning. In an earlier post on the Panel report, Margherita Melillo reflected on how the Panel used the FCTC for evidentiary purposes. This blog post continues this reflection by looking at how the Panel resolved conflicting interests of public health and trade.

Balancing in international trade law

Concerns about the treatment of tobacco control measures under international trade law date back at least to the 1990 GATT case Thailand – Restrictions on importation and internal taxes on cigarettes. While tobacco control measures have also been the subject of two recent trade disputes (i.e. Dominican Republic — Import and Sale of Cigarettesand US — Clove Cigarettes), neither of these disputes drew as much attention to these concerns as Australia – Plain Packaging. At the heart of this dispute was the sharp conflict between the trade interests of the complainants and the public health concerns of Australia. International trade law normally addresses such conflicts through a system of ‘rule and exception’, set out to strike a balance between trade and non-trade interests. However, the two agreements at issue in Australia – Plain Packaging, namely the TBT Agreementand the TRIPS Agreement, do not contain a general ‘exception clause’ equivalent to GATT Article XX. The balancing of competing interests (trade and public health) in this dispute thus took place in the context of determining the consistency, or otherwise, of the TPP measures with Article 2.2 of the TBT Agreement and Article 20 of the TRIPS Agreement.

More trade restrictive than necessary?

The complainants alleged that the TPP measures were more trade restrictive than necessary to achieve their legitimate objective, contrary to Article 2.2 of the TBT Agreement. This provision allows Members to adopt technical regulations that achieve legitimate objectives, insofar as they are not more trade restrictive than necessary to fulfil those legitimate objectives. Parties to the dispute agreed that the objective of the TPP measures, as the Panel put it, was ‘to improve public health by reducing the use of, and exposure to, tobacco products’ (para 7.232). They also accepted that such objectives are legitimate within the meaning of Article 2.2 (para 7.248). Their disagreement was over the trade restrictiveness of the measures and their contribution to the public health objective they pursue. The complainants contended that the measures were more trade restrictive than necessary and proposed four alternative measures that would have been, in their view, reasonably available and less trade-restrictive while making an equivalent contribution to the realization of the legitimate objectives.

Since the objective of the measures at issue was undisputed and such objectives fall within the illustrative list of legitimate objectives under Article 2.2, the main task of the Panel was to determine whether these measures were indeed trade-restrictive but nevertheless contributed to the legitimate objectives. Taking the evidence before it in its totality, the Panel concluded that ‘the TPP measures, in combination with other tobacco-control measures maintained by Australia […], are apt to, and do in fact, contribute to Australia’s objective of reducing the use of, and exposure to, tobacco products’ (para 7.1025). The Panel also found that ‘the TPP measures are trade restrictive, ‘insofar as, by reducing the use of tobacco products, they reduce the volume of imported tobacco products on the Australian market, and thereby have a “limiting effect” on trade’ (para 7.1255).

Having found that the TPP measures are trade-restrictive but make a significant contribution to the protection of public health, the Panel had to weigh and balance the trade and public health interests at stake to determine whether they are more trade-restrictive than necessary to achieve their public health objectives. In doing so, the Panel first considered the risk of non-fulfilment of the objectives and then the reasonable availability of alternative measures that are less trade-restrictive while making an equivalent contribution to the achievement of those objectives. On the ‘risks of non-fulfilment’, it found that ‘the public health consequences of not fulfilling [the] objective are particularly grave’ (para 7.1322). It then examined the proposed alternative measures and found that the complainants failed to demonstrate their proposed alternative measures (individually or collectively) constituted a less trade-restrictive alternative to the TPP measures with an equivalent contribution to Australia’s objective (paras 7.1362-7.1723). Against this background, the panel concluded that the TPP measures are not more trade-restrictive than necessary to achieve their legitimate objective of improving public health (para 7.1732).

Unjustifiable encumbrance?

The complainants also alleged that the TPP measures constitute special regulations that unjustifiably encumber the use of trademarks in the course of trade, contrary to Article 20 of the TRIPS Agreement. The threshold issues here were whether the measures in question constitute ‘special regulation’ and ‘encumbrance’ within the meaning of Article 20. The parties to the dispute agreed that the measures indeed constituted special regulations, but they disagreed over the precise scope of the term ‘encumbrance’. While the complainants argued that it covers all kinds of hindrances and impediments, Australia insisted that it covers only limitations on the use of trademarks. Australia was of the view that a total prohibition on the use of trademarks is outside the scope of Article 20. The Panel agreed with the complainants that it would be ‘counterintuitive’ to consider that a measure that restricts the use of a trademark would be subject to the disciplines of Article 20 while a more far-reaching measure to prohibit such use would not’ (para 7.2238). This consideration has led the Panel to conclude that ‘encumbrances arising from special requirements within the meaning of Article 20 may range from limited encumbrances, […], to more extensive encumbrances, such as a prohibition on the use of a trademark in certain situations’ (para 7.2239). This finding settles the debate over the meaning of the term ‘encumbrance’ in Article 20. While scholars such as Pires de Carvalho have argued that the degree of encumbrance is not to be taken into account for the applicability of the provision, others, most notably McGrady, have argued that a prohibition falls outside the scope of application of Article 20 because the provision deals with whether the trademark could be used and not how it may might be used. The position of Pires de Carvalho seems to have prevailed over the one of McGrady in the eyes of the Panel. On this point, it is also interesting to note that a similar discussion took place concerning what constitutes a technical regulation within the meaning of the TBT Agreement. The Appellate Body in EC – Asbestos reversed the conclusion of the Panel,stating that an absolute prohibition does not qualify as a technical regulation.

Having passed the threshold issues, the Panel then had to determine whether such an encumbrance was unjustified within the meaning of Article 20. No definition or guidance as to what constitutes ‘unjustifiable encumbrance’ exist under the TRIPS Agreement. Nor there is case law on the subject. The Panel had to appreciate the justifiability in concreto, balancing the two conflicting interests.

In the absence of an agreed upon definition or jurisprudence, the Panel interpreted what constitutes ‘unjustifiably’ encumbering the use of trademarks in light of the object and purpose of the TRIPS Agreement. Here the Panel relied mainly on Article 8.1 of the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. Having found that these two provisions authorize WTO Members to take measures for the protection of public health, the Panel concluded that the complainants have not demonstrated that the TPP measures unjustifiably encumber within the meaning of Article 20 (para 7.2605). That is to say that although the measures at issue encumber the use of trademarks within the meaning of Article 20, the encumbrance is justified by virtue of its public health objective. This conclusion resonates with the conclusion of scholars like M. Abbott who have argued  that an interpretation of Article 20 consistent with Article 8 and the Doha Declaration would have acknowledged and given effect to the ‘right to protect public health’ in any implementing action under the TRIPS Agreement and in any dispute settlement proceeding.

In arriving at this conclusion, the Panel also considered the fact that the TPP measures are ‘in line with the emerging multilateral public health policies in the area of tobacco control as reflected in the FCTC and [its] guidelines’ (para 7.2604). The Panel was of the view that the fact FCTC (a non-WTO agreement) endorses the TPP measures reinforces their justifiability. This raises the longstanding question of whether WTO adjudicatory bodies could use non-WTO agreement as an interpretative key. Although the Appellate Body has used such instruments to interpreting WTO agreement in the past, the jurisprudence is far from settled on this matter. This is why Honduras highlighted this issue in its notification of appeal.

A parallel could be made with the Brazil – Tyrescase. Here, the Appellate Body adopted a holistic approach and stressed that, because of their nature, health protection measures had to be analyzed in the larger framework of the State policy action. Looking at the measure as a whole would allow for a clearer overview of the objectives pursued by the State to be identified, in order to facilitate a more accurate balancing. Moreover, the analysis of the effectiveness of the measure had to take a chronologically larger standpoint; the effectiveness of a public policy can in fact take time to emerge (paras 151 and 182). This holistic approach, elaborated in the framework of Article XX GATT, seems to be reiterated in the framework of Articles 20 and 8 TRIPS: the unjustifiability of the encumbrance has be examined in light of all the contextual elements that lead to the adoption of the public health measure, including the reliance on the FCTC and the customary right to regulate. Here we find a strong similarity with the balancing operated in the Philip Morris case, based on an intersystemic and holistic approach.

Conclusion

The WTO Panel’s recent report is the last step in a long saga. This saga has allowed different international courts and tribunals to test the flexibility of international obligations with regard to the State’s regulatory space in health issues. The plain packaging report confirms a general trend in WTO case law, whereby the telosof the measure serves to justify the interference within free-trade obligations. In fact, the Appellate Body had floated an ‘unspoken sympathy for well-intentioned health and safety measures’, an unspoken sympathy that is based on the axiological importance attributed to the policies at stake. This kind of ‘smell test’, as Hudec notoriously defined it, reflects Robert Alexy’s idea of weight formula, intrinsic in the balancing operation operated in different fora. The Panel has extended this technique to two areas of WTO law where its scope of application was doubtful.  

 

Rome Statute at 20: Suggestions to States to Strengthen the ICC

Published on August 6, 2018        Author:  and
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This year marks the 20th anniversary of the adoption of the Rome Statute, the treaty that established the International Criminal Court (ICC, Court), the world’s only permanent tribunal with a mandate to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. The euphoria that greeted its adoption has been tempered by an appreciation of its limits. Disappointment with the Court’s record has led to pessimism about the future of international criminal justice generally. Critics point out that the ICC has spent nearly US$1.5 billion since it began operations in 2002 and, in that time, convicted just three people on charges of war crimes and crimes against humanity.

The truth is more nuanced

But the ICC is more active, and its cases more complex, than many of its critics realize. The ICC has brought cases against 42 individuals, resulting in eight convictions (five for witness tampering). Cases have failed, for a variety of reasons – including state obstruction of access to evidence, and bribery and intimidation of witnesses – at the pre-trial, trial and appeal stages. Four persons are currently on trial; another is in ICC custody at the confirmation of charges stage. A large proportion of those charged are fugitives.

Another key point is that the ICC is a court of last resort. It does not have primacy of jurisdiction like the tribunals for the former Yugoslavia (ICTY), Rwanda (ICTR), Sierra Leone (SCSL), and Cambodia (ECCC). Instead, the ICC’s guiding principle is complementarity: it will not intervene if a State is genuinely investigating or prosecuting. So, by design, the ICC’s duty to investigate and prosecute is deferential to domestic jurisdictions, which can result in challenging circumstances for all involved. Unlike predecessor tribunals, the Office of the Prosecutor (OTP) must devote considerable resources to encouraging, and assessing the progress of, domestic legal processes.

The Court carries a heavy workload and is forced to spread its resources thinly. Whereas the ICTY, ICTR, SCSL and ECCC had scores of lawyers and analysts poring over evidence from one conflict, the ICC has to deal with many. It is currently carrying out “preliminary examinations” in Afghanistan, Colombia, Gabon, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine and Venezuela. It is conducting investigations in Uganda, the DRC, Darfur, the Central African Republic (CAR), Libya, Côte d’Ivoire, Mali, Georgia and Burundi. Each requires mastering a complex conflict with shifting alliances, an array of State and non-State actors, and dozens of societal factors central to a proper contextual understanding. Each requires gaining access to reliable evidence necessary to determine which party is responsible for which crimes, and whether the state is genuinely investigating or prosecuting. This requires a great deal of diplomatic engagement with numerous States. Read the rest of this entry…

 

Announcements: Recommendations on the Legitimacy of Institutions of International Justice; Armed Conflict and Starvation Event; 20 Years of the ICC’s Rome Statute; CfP Melbourne Doctoral Forum on Legal Theory; CfP Engaging with Domestic Law in International Adjudication; CfP German Yearbook of International Law

Published on August 5, 2018        Author: 
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1. Recommendations on the Legitimacy of Institutions of International Justice. Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law. Blog posts are available on Intlawgrrls and PluriCourts blogs.

2. Chatham House Event: Armed Conflict and Starvation – What does the law say? The International Law Programme at Chatham House is hosting an even entitled “Armed Conflict and Starvation- What does the law say?” on 12 October 2018 from 17.30pm. Millions of civilians suffer hunger and starvation in times of armed conflict. This panel will discuss the legal prohibitions on the use of starvation as a method of war, and the obligations on the warring parties to allow access for humanitarian relief. Speakers include Professor Dapo Akande and Emanuela-Chiara Gillard, and the event will be chaired by Elizabeth Wilmshurst. It will be hosted at Chatham House | 10 St James’s Square | London | SW1Y 4LE.  The event will be followed by a drinks reception.

3. Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis. On 7 – 8 of September 2018 Edge Hill University and the University of Hamburg will co-host an interdisciplinary conference in Liverpool/UK on “Twenty Years of the ICC’s Rome Statute: Utopia – Reality – Crisis“. ICC judges, international scholars and practitioners will critically discuss the past, present and future role of the International Criminal Court. The program of the Conference and further information are available here

Read the rest of this entry…

Filed under: Announcements and Events
 

Trade Retaliation in the Time of Trump

Published on August 3, 2018        Author: 
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A week ago the Editor-in-Chief of this Journal published a piece titled Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System. Prof. Weiler’s argument can be summarised in two-steps: the steel tariffs imposed by the US arguing national security reasons were a gross violation of the WTO system — the black lie. The EU response establishing countermeasures did not follow the letter — or the spirit — of WTO Dispute Settlement System (Article 23). This may seem like a minor political issue, but, from a legal point of view, it undermines the system that the EU is declaring to uphold — the white lie.

Prof. Weiler — who I hold in utmost respect and appreciation as an academic and a person — does an excellent job in explaining the limitations of the WTO Dispute Settlements Understanding (DSU) to provide an adequate response to these cases. He cites the Internet Gambling saga and explains how the party violating the agreement has all the incentives to continue the violation until told by the final voice within the DSU (the Appellate Body) to cease in its conduct. In my view, this is an accurate description of a well-known problem within international trade law, since, pretty much, the creation of the WTO in 1994.

On paper, I would have nothing to add to his excellent editorial. In practice, there are a few elements that, I believe, could enrich the readers understanding of what is at stake here and how a system can organically evolve to address some of these shortcomings. Read the rest of this entry…

 
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The Rise and Rise of Political Backlash: African Union Executive Council’s decision to review the mandate and working methods of the African Commission

Published on August 2, 2018        Author: 
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The latest African Union (AU) Summit, held in Nouakchott, Mauritania, from 25 June to 2 July 2018, has left the African Commission on Human and Peoples’ Rights (ACHPR) severely undermined. The Executive Council adopted Decision EX.CL/Dec.1015(XXIII), which endorses some worrying recommendations that emanated from the joint retreat, held in June, by the ACHPR and the Permanent Representatives’ Committee (PRC). The adoption of the Decision has turned the recommendations into binding AU decisions or directives (see Executive Council Rules of Procedure, Rule 34 and Art. 23(2) of the Constitutive Act of the AU). This post reflects on the political motivations for, the legality of, and potential implications of three of these decisions or directives, namely:

  1. The decision to review the interpretative mandate of the ACHPR “in light of a similar mandate exercised by the African Court [on Human and Peoples’ Rights] and the potential for conflicting jurisprudence”;
  2. The directive to the ACHPR to align its guidelines for granting observer status to NGOs with “the already existing criteria on the accreditation of NGOs to the AU”; and
  3. The directive to the ACHPR formulate a code of conduct, in consultation with the AU Legal Counsel.

These decisions are seemingly noble or harmless. However, their underlying motive and impact dovetail into the broader backlash against human rights bodies in Africa (Alter et al 2016). Indeed, the decisions are based on a misconception about the nature of ACHPR’s independence. Read the rest of this entry…

 
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Supreme Court of Spain: UN Treaty Body individual decisions are legally binding

Published on August 1, 2018        Author: 
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The Spanish Supreme Court has established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. The Court ordered Spain to pay €600,000 in compensation to Ángela González for the responsibility of its authorities in relation to the death of her daughter. Her daughter was murdered by her father in an unsupervised visit authorised by a judge. National courts dismissed Ángela’s case, but the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) found a breach of her human rights. The Supreme Court has now affirmed that the State must comply with the Committee’s decision. This article discusses the significance of the case and the principle established by it.

Ángela González:  from domestic violence up to the United Nations (1996-2014)

Ángela’s daughter Andrea was born in 1996. Ángela’s partner subjected her to frequent physical and psychological violence. Ángela lodged no less than 30 complaints to the police and to the court. Her partner was convicted for one minor offence and ordered to pay a small penalty for harassment. Only one judicial order protected the minor and lasted for two months.

Marital separation was ordered in November 2001. The judge did not mention the violence as the cause of separation. The order allowed unsupervised visits between father and daughter, and the father was granted the use of the family dwelling. Ángela appealed the decision but was unsuccessful. Andrea had repeatedly expressed her desire not to see her father. In April 2003, the father killed the 7-year-old girl and then committed suicide during an unsupervised visit. Read the rest of this entry…

 
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