Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law January 19, 2007
The Israeli Supreme Court examined whether preventative targeted strikes in the Gaza Strip aimed at terrorists who planned to commit attacks against Israeli soldiers and civilians, but which also resulted in the deaths of civilians, were illegal.The court held that such strikes are not always illegal, but must be examined in the context of the law of armed conflict and with respect to the international law norm of proportionality.
The case arose out of the second intifada that began in February 2000. It resulted in the deaths of more than one thousand Israelis and thousands of Palestinians. In response, the State of Israel has used a “policy of targeted frustration of terrorism” in which its security forces kill representatives of terrorist organizations seeking to launch terrorist attacks against Israel. Until the end of 2005, the petitioners claim that almost three hundred members of terrorist organizations have been killed, as well as approximately 150 civilians.
Petitioners, The Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment, brought suit against the Government of Israel and its Prime Minister, the Minister of Defense, the Israel Defense Forces, the Chief of the General Staff of the Israel Defense Forces, and Shurat HaDin the Israel Law Center and others, alleging that the targeted killing policy is illegal and violative of international law, Israeli law, and basic principles of human morality. They sought to cancel the “targeted killing” policy, and order that the Government of Israel and individual defendants refrain from acting pursuant to that policy.
In his analysis, President Emeritus Barak applies the law of war distinction in the treatment of combatants and civilians. While attacks may be made against combatants, they are not to be made against civilians unless civilians “take a direct part” in hostilities. He notes that the terrorists and the organizations sending them to carry out attacks are “unlawful combatants,” who are civilians yet not protected from attack as long as they are participating in the hostilities. He notes however, that customary international law has not yet recognized a category of “unlawful combatants.” He also discusses the international law rule of proportionality that forbids legitimate strikes if they are likely to result in injury or death to civilians that is excessive in comparison to the military benefit.
Approximately 42 pages.
World Trade Organization Appellate Body Ruling: United States--Measures Relating to Zeroing and Sunset Reviews (January 9, 2007)
The World Trade Organization (WTO) Appellate Body issued a ruling against the United States practice of "zeroing," holding that it violated the antidumping agreement in Article VI of the General Agreement on Tariffs and Trade, the General Agreement on Tariffs and Trade (GATT 1994), and the Marekesh Agreement establishing the WTO. In doing so, it upheld the Panel's Report in paragraph 7.58. It dismissed the U.S. claim that that the Panel acted inconsistently with Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).
"Zeroing" is a practice when the U.S. Department of Commerce calculates a dumping margin based upon a series of sales and disregards incidences of no dumping and when the price at export of a particular good is greater than its domestic sale value. By doing so, the Department of Commerce calculates a greater dumping margin.
The dispute arose out of a dispute between Japan and the U.S. with Japan complaining regarding the calculation of margins of dumping by the U.S. regarding "zeroing" as such and as applied in cases involving imports of steel and bearings. The Appellate Body recommended that the Dispute Settlement Body (DSB) request the U.S. to bring its measures that the Panel, as modified by the Appellate Body, found inconsistent with the Anti-Dumping Agreement and GATT 1994 into conformity with its obligations pursuant to those Agreements.
Approximately 100 pages.
World Trade Organization: Vietnam Joins WTO (January 11, 2007)
On January 11, 2007, Viet Nam joined the World Trade Organization (WTO) as the 150th member. The October 2006 Working Party report describes how Vietnam originally applied for accession to the WTO in January 1995. The WTO General Council subsequently established a Working Party to examine the application. The Working Party convened fourteen times between 1998 and 2006, and issued its report in October 2006. Under the "Doi Moi" (Renovation) policy, Vietnam took a number of economic reforms including market-oriented economic management, and the promotion of external economic relations. Vietnam has also been undergoing legislative reforms to meet its responsibilities under the WTO. Vietnam has ongoing efforts to improve its market-orientation, liberalization, and transparency.
Council of Europe: Parliamentary Assembly Report of Special Rapporteur Dick Marty, Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-state Transfers of Detainees involving Council of Europe Member States. (June 12, 2006)
The report examines the United States Central Intelligence Agency’s (CIA) secret rendition program and identifies an alleged “spider’s web” of detentions and unlawful inter-state transfers. Its analysis is based upon official national and international air traffic control authorities’ information with a specific focus upon ten individual cases. It identifies a number of member states that had collaborated with the U.S. including Bosnia-Herzegovina, Cyprus, Germany, Greece, Italy, Ireland, Macedonia, Poland, Portugal, Romania, Spain, Sweden, Turkey, and the United Kingdom. Nations assisted the U.S. in a variety of ways including secretly detaining individuals for an indefinite period of time while denying them human rights; operating secret detention centers; serving as “staging points” for the transfer of detainees; and providing intelligence to the U.S. where it was foreseeable that such data would be used to implement a “rendition.”
The Special Rapporteur emphasizes that the report is not meant to be an anti-American exercise. The report calls upon all Council of Europe members to comply with their duty under the European Court of Human Rights to investigate any serious allegation of fundamental rights violations. It emphasizes the critical need to ameliorate the international response to terrorism in a coordinated manner, while simultaneously respecting human rights.
Approximately 100 pages.
United StatesLegislation and Conference Report: Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (P.L. 109-401) (December 2006)
President George Bush signed the Henry J. Hyde United States India Peaceful Atomic Energy Cooperation Act of 2006 (“the Act”) into law December 18, 2006.
The Act provides the sense of Congress that it is a critical objective of U.S. Foreign Policy to prevent the proliferation of nuclear and other weapons of mass destruction, as well as the means to produce and deliver them. Congress recognizes that the Nuclear Non-proliferation Treaty (NPT) has achieved significant success in preventing nations from obtaining nuclear weapons as well as in maintaining international security. In section 103 the Act sets out a number of U.S. policy principles including, with respect to South Asia that: 1) a moratorium is achieved on the production of fissile material for nuclear purposes by India, Pakistan, and China; 2) that India’s full participation in the Proliferation s Security Initiative be obtained; 3) India’s commitment to “dissuade, isolate, and, if necessary sanction, and contain Iraq” for its attempts to acquire nuclear weapons should be obtained.
Section 104 of the Act allows the President to waive a number of requirements of the Atomic Energy Act of 1954 (AEA) but requires the President to submit a report requesting Congressional approval before such waivers can take effect. Congressional approval would be required to waive the requirements in section 123a(2) of the AEA that non-nuclear weapons states have IAEA safeguards on all nuclear materials in all peaceful nuclear activities in a state under its jurisdiction or under its control anywhere (“full-scope safeguards”) as a pre-condition of ongoing U.S. nuclear supply. It would be required to waive the requirement of section 128 of the AEA that non-nuclear weapons states possess full-scope safeguards to receive nuclear exports from the U.S. Waiver would also be required of section 129 of the AEA which requires the U.S. to end nuclear exports if a non-nuclear weapon state has tested nuclear weapons after 1978. India lasted tested nuclear weapons in 1998.
Section 104 of the Act imposes restrictions on transfers of nuclear material, and in subsection 104(d)(2), no items subject to the Nuclear Supplier Group (NSG) guidelines may be transferred to India if such transport would be incongruous with the NSG guidelines on the day it occurred.
In a Presidential “signing statement” however, President Bush stated that he views the statements of U.S. foreign policy contained in sections 103 and 104(d)(2) as advisory only.
Approximately 45 pages.
United States Legislation: Establishing the House Democracy Assistance Commission H.R. 24 (January 4, 2997)
House Resolution 24 establishes the House Democracy Assistance Commission (“the Commission”) for the One Hundred and Tenth Congress. The Commission will be composed of 20 members of the House of Representatives, with 11 members representing the majority party and appointed by the Speaker of the House of Representatives and 9 representing the minority party and appointed by the minority leader.
The purpose of the Commission is to work collaboratively with the legislatures of partner nations on a “frequent and regular basis” to permit members, officers, and staff of the House to offer expert guidance to members and staff of legislatures from other nations; allow members and staff of legislatures of other nations to study the operation of the House, and make recommendations to the Administrator of the U.S. Agency for International Development (USAID) on providing assistance, information technology, and library supplies as the Commission deems is needed by another legislature to improve its efficiency and transparency.
The Commission will conduct studies on the feasibility of providing assistance to legislatures and will examine: the independence and substantive work that other legislatures conduct; or could conduct in legislative process and government oversight; the possible benefit to legislature of expert advice in areas including legislative procedure, committee operations, the budget process, government oversight and constituent services.
Approximately 5 pages.
American Society of International Law (ASIL) Annual Meeting
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