Topics

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National & International Seminars / STATE RESPONSIBILITY UNDER INTERNATIONAL LAW AND THE COVID-19 CRISIS

« on: June 10, 2020, 12:10:45 PM »

Disruptions caused by the global spread of COVID-19 are likely to generate claims for different types of responsibility, whether domestic or international. This contribution focuses on one type of responsibility under international law, that of State responsibility for internationally wrongful acts. It does not consider the probity of specific alleged breaches – for instance whether China has breached its obligations under the World Health Organisation’s (WHO’s) International Health Regulations to notify the WHO of the virus in a timely manner, or the general international law due diligence obligation on States not to allow acts under their jurisdiction to harm other States. The object here is instead to comment on how State responsibility issues arising in the context of the COVID-19 crisis fit with trends regarding the rules of State responsibility themselves; that is, the rules pertaining to what generates responsibility and its enforcement. Some possible future developments are also addressed.

COVID-19 and the Generating Act

Whether or not it is enforced, State responsibility is automatically generated as a matter of law by the presence of the internationally wrongful act, which is to say an act of a State in breach of its obligations and not justified on one of the grounds recognised by the law. The question of when an act is one of the State has long been a focus of attention and especially so in relation to non-State actors (NSA) since the Al Qaida attacks of September 11, 2001. This focus was then in more recent years, joined, perhaps even superseded, by another concern that characterised a large number of prominent responsibility claims: the question of proof of a State’s involvement, often directly through its established organs such as the military, in acts in breach of international obligations. So for instance, could it be proven that Russia was involved in the civil war in the Donbass region of Ukraine from 2014; that the acts of (Chinese mariners) ‘Little Blue men’ in the South China Sea or (Russian soldiers) ‘Little Green Men’ in Crimea were indeed State acts. The same question also arises with cyber-attacks: is there proof that the suspected State is indeed the author of the attack. The focus in all these instances is on attribution, the subjective element of the internationally wrongful act. 

With COVID-19 the focus thus far is less on the question of whether acts are ones of the State but on the acts themselves: whether what the State is doing amounts to a breach of an international obligation – the objective element of the internationally wrongful act. But the question is still one of proof. This focus arguably reflects, at least partially, current broader trends to ‘reconstruct’ truths, taking uncertainty to a higher level since bearing on acts themselves and not simply on actors regarding established facts. In this context, the Australian call for an international fact finding enquiry, whilst perhaps better pursued through international fora (prioritising multilateralism over unilateralism), is a logical – and intrinsically lawful - attempt to reduce that uncertainty. If accepted, and it could only be operationalised with consent, it would be an initiative that would benefit all sides by reintroducing certainty, stability and consequently the rule of law.

Knowledge of the facts is not only important for determining if responsibility has been generated, but also in order to know whether the sanctions to enforce that responsibility are legally justified. Such counter-measures are only lawful if, amongst other conditions, they are a response to an on-going internationally wrongful act. But with no breach established, there is for instance no lawful ground for the US to adopt sanctions against China. Likewise, Australia having committed no prior internationally wrongful act in calling for an independent international investigation, cannot be lawfully subjected to otherwise unlawful trade sanctions simply because of that appeal.

Post Courtesy:
Sarah Heathcote
Associate Professor, ANU College of Law
Wednesday 13 May 2020

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National & International Seminars / RECALIBRATING INTERNATIONAL TRADE IN THE COVID-19 AGE

« on: June 10, 2020, 12:08:57 PM »

International trade law consists of a series of multilateral treaties administered through the framework of the World Trade Organisation (WTO), which has 164 members. WTO members include the world’s biggest economies, all of which are bound by the treaties. The underlying aim of the WTO system is to promote international trade by removing barriers to trade – such as tariffs, quotas and other import or export restrictions – and to promote equal treatment of members by prohibiting discrimination between and against other countries.

Many of the initial national responses to COVID-19 including restrictions on travel and export prohibitions on essential medical items are prima facie breaches of WTO agreements, such as the General Agreement on Trade and Tariffs (GATT) and the General Agreement on Trade in Services (GATS). However, these treaties also contain exception provisions allowing governments to balance legitimate public policy needs with trade goals. Actions taken during this time that are aimed at preventing the spread of the disease would qualify as those taken to “protect human health or life” as set out in GATT Article XX(b) and GATS Article XIV(b). As long as countries do not unjustifiably or arbitrarily discriminate in how they apply these measures, no GATT or GATS breach would actually occur.

Discrimination in this context includes treating countries with the same conditions differently; or with different conditions the same. Thus, if responses to COVID-19 properly differentiate based on the status of the pandemic in each country, no discrimination takes place even if the measure applies differently to different countries. If, for example, Australia and New Zealand are successful in not just flattening but squashing the curve and chose to lift restrictions vis-à-vis each other – essentially extending the national bubble to a bubble for two countries – the fact such restrictions are not lifted for other countries less successful in containing the pandemic would not be considered discrimination.

However, as global production plummets, countries are now starting to discuss changes to trade policy that will have effects lasting long after the COVID-19 pandemic is over, seeking to bring manufacturing of products back onshore. International trade law rests on the economic assumption that countries should specialise in the industry they are most efficient at and the treaties disincentivise countries from artificially propping up inefficient domestic industries through the use of subsidies, tariffs or other measures. This, combined with the proliferation of free trade agreements, has seen vast shifts in certain industries. For example Australia no longer has a domestic car manufacturing industry, while the now-abandoned North American Free Trade Agreement is often blamed for the shifting of car manufacturing jobs from the US to Mexico. Of those industries that do manufacture onshore, most have deep vertical global supply chains, sourcing composite parts internationally.

Courtesy:
Imogen Saunders
Senior Lecturer, ANU College of Law
Wednesday 29 April 2020

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National & International Seminars / The Council is ill-equipped to respond to unorthodox threats

« on: June 10, 2020, 12:01:35 PM »

The Security Council’s interpretation of threats to international peace and security has expanded considerably since the UN Charter was drafted. In 1945, the UN’s founders would have assumed that the Council would typically respond to conventional security threats to national political independence and territorial integrity. But in recent decades the Council has increasingly characterised non-conventional phenomena, including civil wars, international terrorism, serious violations of human rights, and even climate change, as threats to international peace and security. In fact, the Council has identified previous global health crises as a threat to international peace and security, doing so in relation to HIV/AIDS, SARS and Ebola.

However, despite these precedents for identifying global health crises as a threat to international peace and security, the Security Council is not well-equipped to respond to these unconventional types of threats. The main instruments in the Council’s toolkit for responding to threats to the peace are coercive Chapter VII measures such as sanctions and the use of force. With the benefit of hindsight, and suspending the political reality constraints posed by prospective P5 vetoes, an assertive Council might have sought early to ascertain the facts on the ground by deploying a fact-finding mission. At the same time, it might also have applied a travel ban to slow the spread of COVID-19 across international borders. These responses might have slowed the escalating pandemic, providing crucial additional time for UN member states to strengthen their capacity to cope with COVID-19’s eventual arrival. But effective action to halt COVID-19 would have required the Council to develop new, unorthodox responses. To borrow a cliche, not every global problem is a nail requiring a hammer.

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National & International Seminars / The Security Council struggles to act when there is P5 friction

« on: June 10, 2020, 12:00:39 PM »

The UN Charter granted five states permanent membership of the Security Council, along with the power to veto prospective substantive Council decisions. The threat and/or use of the veto power create a perennial pragmatic constraint on the principled aspirations of Council decision-making. While industrious and innovative elected (E10) Council members have been able to exercise influence over the content and contours of some Council decisions, if one or more of the permanent members have substantial misgivings about prospective action, then efforts to take such action through the Council are destined to fail.

In relation to the COVID-19 crisis, negotiations in early-April towards a formal Security Council response unravelled due to squabbling between China and the United States on how to characterise the name of the virus and early responses thereto. The escalating differences between these permanent members, which the Chinese Foreign Minister recently described as a ‘new Cold War’, suggest that the Council will not agree on a meaningful response to COVID-19 anytime soon.

It is ironic that permanent members have prevented the Council from taking meaningful action against COVID-19, given the damage the pandemic has wrought not just on the Council’s New York home, but also on the domestic populations of all permanent members. At the time of writing, the only permanent member who sits outside the COVID-19 top ten infectious countries is China, where the virus originated.

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National & International Seminars / COVID-19 Symposium: COVID-19 and International Law

« on: June 10, 2020, 11:56:21 AM »

[Philippe Sands is a Professor of Law at University College London and a barrister at Matrix Chambers.]

The birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law. The full consequences will emerge over time, but certain observations may be proposed. It is plain that the health needs of COVID-19 go beyond the capacities of our hospitals, and of our international legal structures.

What have we learned?

We are interconnected.

We are fragile.

We are ill-informed.

We need government and cannot rely on the market-place.

We adopt international principles – like precaution – then fail to apply them.

We are adaptable.

We cannot act alone.

Whether the world will act together remains unclear. ‘The epidemic itself and the resulting economic crisis are global problems’, Yuval Noah Harari notes, even as the response confronts us with a binary choice, ‘between nationalist isolation and global solidarity’. Harari opts for ‘global co-operation’.

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National & International Seminars / International Law in times of crisis: COVID-19 and Foreign Investments

« on: June 10, 2020, 11:54:58 AM »

As the COVID-19 pandemic continues to unravel without regard to national borders, countries around the world are faced with both public health and economic issues on a scale not previously seen. In this context, international law, particularly international investment law, continues to apply. It does not present a binary choice between “State protection” and “investor protection” but involves a balancing of rights and interests. The measures adopted by sovereign States using their regulatory “police powers” to respond to the pandemic may have a significant impact on foreign investments situated within their territory. Therefore, it is imperative that countries hosting foreign investments take into account applicable international law safeguards and limits when adopting reactive measures, such as acting in a non-discriminatory and non-arbitrary manner, in order to prevent a potential fallout from disputes with foreign investors. Conversely, foreign investors must also be watchful of these intrusive measures, and should be pro-active in considering whether action taken by a host State is compliant with that State’s obligations under international treaty and customary law and whether the State’s conduct might give rise to an international law remedy in addition to remedies available under the laws of the host State.

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Law / Climate Change as a Trigger of Non-Refoulement Obligations

« on: February 17, 2020, 08:53:08 PM »

The recently published decision of the UN Human Rights Committee (HRC) pursuant to Individual Communication No. 2728/2016 (Teitiota v New Zealand) offers an insight into how the international legal system is coming to address climate change displacement. Teitiota is significant for its recognition that climate change impacts affecting migrants in their State of origin can trigger obligations of non-refoulement binding on the States they enter.

The HRC expounded on the effect of climate change on migrants’ right to life under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), and provided guidance on how the applicable test of a ‘real risk of irreparable harm’ is to be deployed in this novel context.

The HRC’s decision concerned a complaint brought under the ICCPR First Optional Protocol by Ioane Teitiota, a Kiribati national, against New Zealand. Teitiota applied for asylum in New Zealand, on the basis that climate change affecting Kiribati exposed himself and his family to inter alia: violent land disputes, a lack of fresh drinking water, an inability to sustain a livelihood via agriculture due to soil salinization, and flooding (paras. 2.5-2.6). The New Zealand Immigration and Protection Tribunal, considering both the Refugee Convention and the ICCPR, rejected his application. His subsequent domestic appeals were also unsuccessful (paras. 2.2, 2.8-2.9).

Teitiota was removed to Kiribati in September 2015, and his family also returned from New Zealand (para. 4.4). His HRC complaint argued his removal placed New Zealand in breach of his Article 6(1) ICCPR right to life. The question before the HRC was whether it could depart from New Zealand’s findings to hold that Teitiota was exposed to a ‘real risk of irreparable harm’ to his right to life in Kiribati (para. 9.3). Only if this question could be answered in the affirmative was a non-refoulement obligation derived from Article 6(1) opposable against, and breached by, New Zealand (see HRC General Comment 31 (2004), para. 12).

Although the HRC decided that Teitiota’s removal was lawful because this risk could not be suitably established (para. 10), its reasoning sheds light on how climate change impacts are caught within the expanding scope of the ICCPR right to life.

The right to life and core minimum obligations under the International Covenant on Economic, Social and Cultural Rights

The HRC reaffirmed how the right to life is a broad right to a dignified life, and how climate change is a ‘pressing and serious’ threat to its enjoyment (para. 9.3, General Comment 36 (2018), para. 62). Teitiota’s innovation is encapsulated in the HRC’s holding that the effects of climate change per se can lead to a violation of individuals’ right to life, such as to require protection from refoulement. The HRC took the view that:

‘[W]ithout robust national and international efforts, the effects of climate change in receiving states [of rejected asylum-seekers] may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states’ (para. 9.11)

The HRC clarified the kinds of climate change impacts which will have a bearing on the right to life, and by extension the inquiry which would-be sending States are required to conduct to ascertain if a non-refoulement obligation is opposable against them.

It accepted that sea level rise will likely render Kiribati eventually uninhabitable (para. 9.12), and recognised that the gravity of ‘the risk of an entire country becoming submerged under water’ meant that ‘the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized’ (para. 9.11).

In recognising that the right to life entails an entitlement to certain living conditions, the HRC has acknowledged the binding force of the right’s economic and social components. Previously, it was not completely clear whether the legal obligation to protect life required States to ensure access to basic economic and social entitlements. This ambiguity was a consequence of the language used by the HRC in General Comment 36 on the economic, social and cultural dimensions of a dignified life (see e.g. General Comment 36, para. 26).

As Sarah Joseph has pointed out, those remarks were (at least on one reading) merely suggestions on desirable steps which States could take to improve living conditions. They were ‘arguably written in the language of aspiration, with the continuous use of the word ‘should’ and other forms of soft language’ (p. 357). Teitiota dispels these doubts. The binding obligation to protect life under the ICCPR requires States to ensure access to basic economic and social entitlements.

This is confirmed by the HRC’s reasoning on the admissibility of Teitiota’s complaint. The initial admissibility hurdle was satisfied because of evidence, previously accepted by the New Zealand Tribunal, that the village where Teitiota had resided was overcrowded, had its wells impacted by salinization, and suffered from regular tidal flooding (para. 2.5). These impacts were relevant to the risk Teitiota faced to his right to life (para. 8.6).

The HRC thereby included paradigm economic and social entitlements within the ambit of the right to life. The overlap between the climate change impacts considered relevant to the ICCPR right to life, and the content of the core minimum obligations of States under the International Covenant on Economic, Social and Cultural Rights (ICESCR) is notable.

Take for example the Committee on Economic Social and Cultural Rights’ (CESCR) General Comment 14 (2000) on the ICESCR right to health. There, the CESCR listed the provision of ‘basic… housing’, ‘an adequate supply of safe and potable water’, and ‘minimum essential food’ as binding obligations requiring immediate fulfilment (General Comment 14, para. 43).

These map coherently onto the aforementioned impacts which affected Teitiota and his family: overcrowding and flooding clearly have a bearing on individuals’ housing, while sea water contamination may deprive individuals of sufficient drinking water, as well as food (both directly via crop destruction and by depriving farmers of subsistence income). Given their substantial overlap post-Teitiota, guidance as to what precise entitlements are required by the ICCPR right to life can be obtained by referring to the content of ICESCR core obligations.

Applying the ‘real risk’ test

Another key takeaway is Teitiota’s demonstration of how a real risk of irreparable harm to an individual’s right to life is to be ascertained. The HRC required New Zealand to have ensured there was no ‘reasonably foreseeable’ risk to Teitiota’s right to life (a standard New Zealand met) (paras. 9.7-9.9).

The HRC’s invocation of this foreseeability standard in previous non-refoulement decisions has been inconsistent (Adrienne Anderson, Michelle Foster, Hélène Lambert and Jane McAdam, p. 136). Teitiota indicates that it may feature more heavily in future HRC reasoning. Utilising reasonable foreseeability in the climate change non-refoulement context mirrors the approach in Portillo Cáceres v Paraguay (analysed here, and cited at paras. 9.4-9.5). There, the HRC held that ICCPR States parties are required to safeguard individuals from reasonably foreseeable threats to their right to life connected with environmental degradation.

The HRC’s assessment of reasonable foreseeability of risk in Teitiota took its lead from the approach of the New Zealand courts in relation to Teitiota’s case. The decisions of both the New Zealand courts and the HRC were strongly influenced by the ‘the time left for the Kiribati authorities and the international community to intervene’ to protect the population (para. 9.13), including through relocation (para. 9.12).

This consideration meant much of the HRC’s reasoning focused on the intensity of climate change impacts already felt in Kiribati in the present (c.f. para. 8.5). The HRC appears to have attempted to identify risks which could reasonably eventuate in the present, while excluding those grave risks which while reasonably foreseeable today, would not eventuate until years in the future.

The conclusion that New Zealand had not violated Teitiota’s right to life thus became difficult to escape. Previous jurisprudence established that the real risk threshold is high (see para. 9.3). For example, it was not enough that Teitiota was affected by water rationing implemented in response to salinization – the supply of fresh water was not sufficiently ‘inaccessible, insufficient or unsafe’ (para. 9.. The difficulty of meeting the threshold was amplified by the deference which the HRC affords to State organs’ factual examinations. Their assessments of risk must be clearly arbitrary, erroneous or unjust to be impugned (see para. 9.3).

Conclusion

Teitiota represents an important contribution to the capacity of international human rights law to deal with climate change displacement, achieved through the augmentation of the scope of the Article 6(1) ICCPR right to life. While displaced migrants seeking protection from refoulement will continue to face difficulty in proving a real risk of irreparable harm to their right to life, the decision is a warning to destination States. They must take seriously both their assessment of climate change impacts when making protection decisions, as well as their obligations to assist vulnerable States in averting climate disaster.


Post Courtesy: https://www.ejiltalk.org/climate-change-as-a-trigger-of-non-refoulement-obligations-under-international-human-rights-law/#more-17905

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Law / ITLOS – Nippon Foundation Capacity Building and Training Programme 2020

« on: February 17, 2020, 08:51:22 PM »

The ITLOS-Nippon Foundation Capacity-Building and Training Programme on Dispute Settlement under UNCLOS, July 2020 – March 2021, to be held at ITLOS (Hamburg, Germany), is welcoming applicants until 3 April 2020. For more information see the flyer and website.

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Law / Conference on Persistent and Emerging Challenges in International Fisheries Law.

« on: February 17, 2020, 08:48:59 PM »

10 – 12 September 2020 a conference entitled “Persistent and Emerging Challenges in International Fisheries Law” will be held in Tórshavn, Faroe Islands. The conference is co-hosted by the University of the Faroe Islands and the Law of the Sea Institute of Iceland and gathers together 32 strong panelists, including judges of international courts and tribunals, prominent professors of international law, well established practitioners and young promising scholars. The Conference will focus on challenges that emerge and those that persist in international fisheries law, including IUU related matters, institutional mechanisms in RFMOs, jurisdictional aspects in regard to fisheries disputes, substantive aspects in regard to disputes on the conservation and management of transboundary fish stocks, trade related measures with respect to fisheries resources and fisheries related matters concering BBNJ.

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Law / Symposium: Football Feminism – Global Governance Perspectives.

« on: February 17, 2020, 08:48:04 PM »

Center for International and Regional Economic Law & Justice at NYU School Law will host a two-day symposium – Football Feminism: Global Governance Perspectives – on 24 – 25 February 2020. The symposium will bring together scholars and practitioners from around the world to critically examine the transnational system of governance that regulates football (soccer) through the lens of gender. The presentation and discussion of interdisciplinary research (works-in-progress) on this topic aims to elucidate the operation of discrimination in and through the structures, rules, and practices of football governance; to assess various understandings of, and approaches to, advancing gender equality in this context; and to contemplate innovative ideas for feminist reform or reimagination of an increasingly complex and globalized system of significant social, economic, and political import.

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Law / UNCITRAL and ISDS Reforms: What Makes Something Fly?

« on: February 17, 2020, 08:46:06 PM »

When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than others? Are you moving toward a safe landing zone, even if it is some distance away? The second concerns the products you are developing in those negotiations. Are some options more aerodynamic than others? Are some more likely to achieve lift off? What component parts need to be designed and built? Is there an overall plan about how the pieces might be put together in the end?

These are questions we thought about as we watched the UNCITRAL process unfold in late January. On one level, it might have been the week when one could have expected to see some turbulence. Since the process started three years ago, this was the first time that the Multilateral Investment Court was formally on the agenda for discussion and it is clear that the views of states are divided on its merits. But on Monday, the Chair adeptly steered the group from high level questions (Is an investment court better than ISDS? Is a particular state for or against such a court?) to more technical engineering work (e.g., What are the ways of constructing an appeal? Which options are available for financing a permanent body? What issues need to be resolved regarding enforcement? What are the options for appointments?).

This approach meant that, instead of being an arena in which states rethink the system’s fundamentals (eg what are the purposes of investment treaties) or engage in high level policy positioning (eg do they support a court or arbitration), the Working Group began to feel a bit like a team of engineers breaking down a complex design challenge into its component parts. Each part undergoes preliminary analysis and troubleshooting in the Working Group, with states suggesting potential models or raising design concerns and considerations with the Secretariat, and tasking the Secretariat with further research and with creating prototypes for each part. Many delegates proved themselves to be serious engineers, coming well-prepared to engage in technical questions. In the process, momentum toward a panoply of reforms seems to be building as participants work collectively on individual design issues.


By Anthea Roberts and Taylor St John

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Law / UNCITRAL and ISDS Reform: Plausible Folk Theories

« on: February 17, 2020, 08:44:32 PM »

Terence Halliday, a professor of the sociology of global governance and a long-time observer of UNCITRAL, coined the term ‘plausible folk theories’ to refer to the way in which ‘vast enterprises of global regulation and lawmaking [often] proceed on weakly founded justificatory rhetorics’. What he means by this is that many rules and regulations are passed at the global level based on assertions that are not subject to empirical testing. Instead, negotiators and policy makers frequently rely on assertions that sound reasonable but remain unverified.

A plausible folk theory isn’t necessarily wrong about the facts, it just isn’t verified. It may be contrary to empirical evidence, it may not. In the absence of factual support, what makes a folk theory plausible? Parsimony (it is simple), face validity (it sounds right), rhetorical compactness (it can be easily expressed), ambiguity (it papers over divisions), affinity with extant beliefs (it accords with prior assumptions), and unexamined premises and logics (it relies on assumptions and isn’t designed to withstand rigorous testing). Of all of these, the first two are probably the most important: does it have the simple sound of truth?

Arguably, the investment treaty system has long been built on plausible folk theories. If asked why states sign investment treaties, most people in the field historically would have answered ‘because it depoliticizes investment disputes’ or ‘because it increases foreign investment’ or ‘because it contributes to the rule of law’. These arguments sound right. They are plausible. They have the sound of truth to them. Yet, as the field has evolved, these claims have come under scrutiny in the academic literature and some have not stood up well. But is this evidence used in global governance debates? If not, why?

Multiple plausible folk theories are at play in UNCITRAL Working Group III. Some, like those above, are core justifications for investor–state dispute settlement, while others are newer and emerging within reform debates. We will discuss a variety of these plausible folk theories in this blog series as the reform process unfolds so that readers can see how certain rhetorical claims are made, narrative battles are fought, and evidence is or is not used. The example that we feature this time is a claim about the impact of investment treaties and structural reform on investment flows.

By Anthea Roberts and Taylor St John

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Law / Forthcoming discussion of a Multilateral Investment Court

« on: February 17, 2020, 08:42:35 PM »

A Multilateral Investment Court: a rise for international adjudication or an exercise in futility?

Thursday 05 March 2020 5:30pm to 8:00pmHosted by the Department of Law

Registration: https://www.eventbrite.com/e/a-multilateral-investment-court-a-rise-or-an-exercise-in-futility-registration-90128710399

Hosted by Dr Rishi Gulati from the LSE Department of Law, join a multi-disciplinary discussion on the EU's proposed creation of a Multilateral Investment Court. Whereas the USA has sought to incrementally reform investor-to-state dispute settlement since the early 2000s, the EU has recently started advocating systemic reforms and proposed the creation of a Multilateral Investment Court. In this timely seminar, three experts examine whether such a court is needed. If yes, what should it look like? The seminar takes an inter-disciplinary perspective with speakers putting forward views from a legal as well as a political science perspective. Dr Theresa Squatrito will act as Chair. Dr Robert Basedow discusses how one can explain the markedly different preferences for reform and institutional design. He will assess to what extent diverging understandings of legitimate international law and dispute settlement mechanisms, structural exposures to litigation risks and evolving economic power account for EU and US reform choices. Professor Nikos Lavranos will then put forward his contention as to how the EC hijacked the United Nations Commission on International Trade Law for the creation of another international court that will be underused but will cost us dearly. Finally, Dr Rishi Gulati will make some observations on the implications of the proposed reforms for international economic law in particular, and international law in general. This seminar is free for all and seating is granted on a first come, first served basis on the door. The seminar will be followed by a drinks reception open to all seminar attendees. Please register your attendance via the Eventbrite invitation provided above.

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Law / Time to Focus on Multilateral-ism

« on: December 24, 2019, 08:53:05 PM »

Bangladesh needs to focus on WTO and should refer trade disputes before international forums where experts and observers from other countries get involved tilting the balance towards a more level playing field. Though the country took resort to WTO in 2004 for compelling India to withdraw anti-dumping duties on batteries, nonetheless she always seems to shy away from litigating trade issues before international forums.

Two possible factors could possibly prevent Bangladesh from not preferring multilateralism over bilateral negotiation. First, the culture on non-litigiousness with the mindset that litigation causes irreparable harm to the bilateral relationship and it is a kind of unfriendly behavior and damaging of foreign relationship. Second, a political power theory postulates that it is the external considerations of political powers that affect a country's decision on whether or not to take a dispute to a particular forum. Proponents suggest that a less powerful counterpart would be slow in bringing a dispute against more powerful counterpart for the fear that the defendant may consider such a move to be hostile, attracting retaliation through trade, foreign aid or other areas of international relations.

These theories and myths were not strong enough to prevent South Korea from bringing US before WTO for more than ten times though the country relies heavily on US for its security arrangements. Likewise, even though the US military is a major contributor to Japan's military as well, the latter has never shied away from bringing disputes before multilateral forum for about eight times. This is high time Bangladesh should think of making its claims.

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Law / Anti-dumping duties on Jute

« on: December 24, 2019, 08:52:02 PM »

Though Bangladesh has many success stories in international trade market, nevertheless huge negative trade balance is still a matter of great concern. Bangladesh has been in deficit over the last few years and unfortunately, the trade relations with India are not only unsatisfactory but also highly frustrating.

Jute is an emerging billionaire domestic industry in Bangladesh. In the fiscal year 2015-16, about 29.46% of our total export earnings from India accounted for Jute and Jute Goods. This progress has stumbled drastically after New Delhi imposed anti-dumping duties from 5-30% over Jute products coming from Bangladesh on 5th January 2017. This measure is causing the destabilisation of $ 1 billion jute export market and it has brought half million jobs at stake. According to the latest data of the Export Promotion Bureau, Export earnings from jute and jute goods slipped to $55.81 million in July-December of FY18 from $106.54 million in the same period of FY17.

To combat this trade restrictive measure imposed by our neighboring country, the high official of the Government of Bangladesh requested the Government of India to rethink the issue of anti-dumping duties on Jute. Two countries engaged in bilateral negotiation to settle the issue but unfortunately that brought nothing for Bangladesh.

Bangladesh has the long four years of failed trade negotiating experience with India from 2001 to 2004, when India for the first time imposed anti-dumping duty on lead-acid battery exported from Bangladesh. Initially, Bangladesh prioritised bilateral negotiation to solve the trade dispute amicably, where the country found itself in a highly unequal position that did not produce a fair outcome.