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Home Archive for category "Natural Resources" (Page 2)

Novel practice of the Security Council: Wildlife poaching and trafficking as a threat to the peace

Published on February 12, 2014        Author: 

OLYMPUS DIGITAL CAMERAOn 12 and 13 February 2014, heads of states will meet at a London summit on the trafficking of endangered species convened by British Prime Minister David Cameron. The background to this initiative is the increasingly acknowledged link between wildlife poachers, traffickers, and armed conflict in some regions of Africa. According to the WWF, over 20,000 elephants are killed each year for their ivory tusks, many of them in central African conflict zones.

In two recent resolutions of January 2014, on the Central African Republic (res. 2134), and on the Democratic Republic of the Congo (res. 2136), the Security Council (SC) authorized targeted sanctions against poachers, wildlife product traffickers, and against persons and entities pulling the strings. The resolutions were primarily designed to target a number of armed rebel groups operating in the eastern region of the Democratic Republic of the Congo and in the Central African Republic. The United Nations (UN) suspects various armed groups, such as the Lord’s Resistance Army, Somalia’s Al-Shabaab Islamist militant group and Sudan’s Janjaweed militia, to use the illegal ivory trade as a source of generating finances or otherwise to benefit from the illegal wildlife trade. With these resolutions, the Council de facto qualified wildlife poaching and trafficking as a threat to the peace. Although this statement is at least implicit in the resolutions, the rationale remains anthropocentric, as will be shown in this post.

Res. 2134 and 2136: targeted sanctions against wildlife poachers

Under res. 2134 and 2136 states must adopt sanctions, namely freezing assets and restricting travel, on any individual or entity found to be involved in wildlife trafficking. Practically speaking, the resolutions mean that traffickers must be targeted by officials from different government agencies such as interior and finance ministries, and customs. Read the rest of this entry…

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The Right to Regulate for Public Morals Upheld (Somewhat): The WTO Panel Report in EC-Seal Products

Published on January 27, 2014        Author: 

Whitecoat Seal PupThere have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) – the  specific exception that justifies what would ordinarily be a State’s GATT-inconsistent measure, unless such measure is deemed “necessary to protect public morals”.  As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT Article XX(a) must first meet the requirements of the specific exception (e.g. demonstrating that the challenged measure is indeed “necessary to protect public morals”), and thereafter show that the challenged measure also complies with the overall requirements of ‘good faith’ (Brazil – Measures Affecting Imports of Retreaded Tyres, Appellate Body Report of 3 December 2007, at para. 215) as contained in the chapeau to Article XX (e.g. demonstrating that the challenged measure is not being applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade).  The 25 November 2013 Panel Report in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products [hereafter, “EC-Seal Products“] issued the very first decision upholding a State’s right to regulate for public morals as an exception under Article XX(a) of GATT 1994, in relation to ongoing trade arising from seal hunting (pictured above left,) and seal products.

It may be recalled that the 2009 Panel Report in China- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products [hereafter, “China – Publications and Audiovisual Products“] was the first occasion for a WTO panel to directly interpret the scope and meaning of measures “necessary to protect public morals” under GATT Article XX(a). China had invoked the “public morals” exception in GATT Article XX(a) to justify a set of measures that regulated the entry of foreign publications, audiovisuals and other media forms.  China argued that its regulations were designed to protect public morals in China by reviewing the content of foreign cultural goods and forms of expression that could potentially collide with significant values in Chinese society.  The China – Publications and Audiovisual Products Panel had little trouble accepting the interpretation of “public morals” (China-Publications and Audiovisual Products, para. 7.759) already laid down in the 2004 Panel Report in United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services [hereafter, “US-Gambling“], which had defined “public morals” in Article XIV of the General Agreement on Trade in Services (GATS), as “standards of right and wrong conduct maintained by or on behalf of a community or nation” (US – Gambling, para. 6.465).  However, the Panel ultimately rejected China’s assertion of GATT Article XX(a) exception (China-Publications and Audiovisual Products, para. 7.911), finding that China had failed to show the “necessity” of its challenged measures for the supposed purpose of protecting public morals.  The Appellate Body upheld these findings in its December 2009 Report.

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Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…

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The Court of Arbitration Issues Partial Award in Indus Waters Kishenganga Arbitration

Published on June 12, 2013        Author: 

jawad ahmadJawad Ahmad is an attorney admitted in New York and is currently based in Singapore. From January to March 2012, Mr Ahmad worked as an intern at the International Bureau of the Permanent Court of Arbitration where he assisted Legal Counsel on legal research assignments concerning the Indus Waters Kishenganga Arbitration, but did not directly work with the Court of Arbitration. This post is derived from the Author’s forthcoming article in Arbitrational International – “Indus Waters Kishenganga Arbitration and State-to-State Disputes” Arbitration International Issue 3 2013.

On 18 February 2013, the Court of Arbitration (Court) rendered the Partial Award in the Indus Waters Kishenganga Arbitration between Pakistan and India. The Permanent Court of Arbitration in The Hague acted as Secretariat for the Court. The Court is expected to render the Final Award towards the end of 2013.

The case was brought under the Indus Water Treaty 1960 (Treaty) and it is the first time an arbitration has been initiated under the Treaty. The Treaty sought to divide the use of the Indus River System between Pakistan and India. With the involvement of the World Bank, the two countries were able to draw up the Treaty with specified rights and obligations. The Treaty allocated the Eastern Rivers exclusively to India and the Western Rivers to Pakistan. Each country has rights to develop its respected rivers for development purposes, such as hydro-electric power. The Treaty permitted India to use the Western Rivers for the purposes of generating hydro-electric power under an agreed framework. The current dispute involves India’s permissible use of the Western Rivers under the Treaty.

Water is an important economic asset for both India and Pakistan. Not only does it account for a large part of each country’s agricultural use, but also hydro-electric power. Investment in the Indus Basin Irrigation System is in the billions of dollars and it has contributed to 21 per cent of Pakistan’s GDP in 2009-10 (see Shahid Ahmad, ‘Water Insecurity: A Threat for Pakistan and India,’ Atlantic Council). India, with an enormous population, needs to expand its energy sources and is currently investing billions in developing dams along the Indus River system (see The Economist, Unquenchable thirst: A growing rivalry between India, Pakistan and China over the region’s great rivers may be threatening South Asia’s peace). The stakes in this arbitration is, therefore, very high for both countries.

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