Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law July 25, 2003
International
Centre for Settlement of Investment Disputes (ICSID):
CMS Gas Transition Company v. Republic of Argentina,
Award on Jurisdiction, Case No. ARB/01/8 (July
17, 2003)
CMS Gas Transition Company
(“CMS”) purchased shares of an Argentine company,
Transportadora de Gas del Norte (“TGN”), pursuant
to Argentina’s privatization program in 1995. Under
the privatization arrangement, tariffs were to be calculated
in U.S. dollars and expressed in Argentine pesos at the
exchange rate at the time of billing, and were to be adjusted
semi-annually under the U.S. Producer Price Index. Following
Argentina’s economic and financial crisis in 1999,
Argentina introduced legislation in 2001 and 2002 that
restructured and renegotiated public and private contracts
made in foreign currency and prevented public sector licensees
such as TGN from linking tariffs to U.S. price indices,
among other measures.
CMS claimed that the aggregate
of these measures harmed its investment, creating a cause
of action by virtue of the BIT and the ICSID Convention.
Among the number of objections
to jurisdiction raised by Argentina, it challenged the
admissibility of the claims by CMS on the ground that
TGN was the licensee, and CMS only a minority shareholder
of TGN. Argentina therefore maintained that CMS could
not be considered a foreign investor for the purpose of
the BIT and the ICSID Convention. In this regard, CMS
argued that it was not claiming rights pertaining to TGN,
but rather, as a foreign investor claiming a breach of
the guarantees of legal and economic stability provided
by Argentina under its privatization program.
The Tribunal held that, in
view of several other ICSID decisions in addition to decisions
of the International Court of Justice in this regard,
there was no bar to the exercise of jurisdiction over
CMS as a minority shareholder.
Argentina also maintained
that the measures alleged by CMS to have harmed its investment
in breach of the BIT were part of a general emergency
monetary policy, and were not directly related to CMS’s
investment.
The Tribunal concluded that
although it was without jurisdiction to assess the legality
of Argentina’s general economic policy, it did have
jurisdiction “to examine whether specific measures
affecting the Claimant’s investments or measures
of general economic policy having a direct bearing on
such investment have been adopted in violation of legally
binding commitments made to the investor in treaties,
legislation or contracts.”
The Tribunal therefore dismissed
Argentina’s objections and upheld jurisdiction over
the dispute.
German
Supreme Court: Distomo Massacre Case, BGH - III
ZR 245/98 (June 26, 2003)
The German Supreme Court (“the
Court”) held that Germany was not liable to Greek
plaintiffs for reparation payments in relation to the
massacre in the village of Distomo, Greece, caused by
SS-troops, which were integrated into the German Wehrmacht,in 1944.
The plaintiffs,
whose parents were killed in the massacre that constituted
revenge for partisan activities, had brought an action
for a declaratory judgment that Germany was liable for
reparation. The courts of first and second instance dismissed
the action. Besides the proceedings initiated in Germany,
the plaintiffs also participated in a claim for damages
for the Distomo incident brought in the Court in Livadeia,
Greece. On October 30, 1997, the Greek court rendered
a judgment in default against Germany and awarded damages.
The judgment, however, could not be enforced in Greece
because the Greek government refused to give its permission
necessary under Greek law.
The Court
held that it could not give recognition to the default
judgment that was rendered against Germany by the Court
in Livadeia. The Court found that the judgment could be
recognized neither on the basis of a 1961 bilateral agreement
concerning enforcement and recognition of judgments (Vertrag
zwischen der Bundesrepublik Deutschland und dem Königreich
Griechenland über die gegenseitige Anerkennung und Volstreckung
von gerichtlichen Entscheidungen, Vergleichen und öffentlichen
Urkunden in Zivil- und Handelssachen vom 4. November 1961),
nor on the basis of Section 328 of the German Code of
Civil Procedure, for both required that, as a precondition,
Greece had jurisdiction. The Court found that Greece lacked
jurisdiction over Germany because the acts at issue were
sovereign or public acts (“acta iure imperii”)
for which, according to a fundamental principle of international
law, Germany was immune from another State’s jurisdiction.
The Court found, however,
that, in general, Germany could be liable as the legal
successor of the German Reich for compensation claims
against the latter. It noted in this context that the
so-called “Two-plus-Four” Agreement of September
12, 1990, constituted a final settlement of reparations
as required under Article 5 paragraph 2 of the 1953 London
Debt Agreement to lift the moratorium it imposed on the
judicial consideration of reparation claims of (1) states
that were at war with Germany, (2) states that were occupied
by Germany or (3) citizens of those states. The court
found that the “Two-plus-Four” Agreement as
a settlement of reparation claims did not preclude judicial
consideration of individual claims, for, besides the fact
that Greece was not even a party to this treaty, there
was no reason to assume that Greece at any point waived
the right of its citizens to bring individual claims against
Germany. The court further found that the 1960 bilateral
agreement on reparation payments in favor of Greek citizens
who endured Nazi prosecution (Vertrag vom 18. März
1960 zwischen der Bundesrepublik Deutschland und dem Königreich
Griechenland überLeistungen zugunsten griechischer
Staatsangehöriger, die von nationalsozialistischen Verfolgungsmaßnahmen
betroffen sind), on the basis of which Germany had
already made a payment of 115 million German Marks to
Greece, did not preclude legal claims by individual citizens.
In regard to applicable law,
the Court noted that since Germany was liable only for
claims against the German Reich, it had to take into consideration
the state of international and national law as of 1944.
The court therefore found that plaintiffs had no cause
of action under international law for damage resulting
from a State’s violation of the laws of war, for
international law as of 1944 did not provide individuals
with a cause of action but conferred upon States the right
to diplomatic protection. Thus, the court further noted
that only States, in asserting their own right to ensure
in the person of its nationals respect for the rules of
international law, could demand reparation from other
States for violations of international law. The Court
found that, regarding violations of the laws of war, this
approach is confirmed by Article 2 of the 1907 Hague Convention
Respecting the Laws and Customs of War on Land, which
expressly provided that its provision apply between parties
only.
The Court furthermore held
that there was no legal basis for the plaintiffs’
claim under German law. The plaintiffs had argued that
Germany would be liable on the basis of Section 839 paragraph
1 of the Civil Law Code in connection with Article 131
of the Weimar Constitution for harm caused by official
acts. The Court found that even though the massacre in
Distomo fulfilled all elements of Section 839 paragraph
1, the provision was not meant to provide a cause of action
for reparation to foreign citizens that were harmed by
conduct of German troops in violation of the laws of war.
Eritrea-Ethiopia
Claims Commission (EECC): Partial Awards on Prisoners
of War between the State of Eritrea and the Federal Democratic
Republic of Ethiopia: Ethiopia’s Claim 4; Eritrea’s
Claim 17 (July 1, 2003)
The Eritrea-Ethiopia Claims
Commission (“EECC” or “Commission”)
issued two awards addressing both Eritrea and Ethiopia’s
claims regarding the mistreatment of prisoners of war
(“POWs”) following the outbreak of hostilities
in May 1998. The Commission’s mandate, set forth
in Article 5, paragraph one of the Agreement between
the Government of the Federal Democratic Republic of Ethiopia
and the Government of the State of Eritrea of December
12, 2000 (“the Agreement”) provides, inter
alia, that the Commission is to decide through binding
arbitration all claims for loss, damage, or injury by
one Government against the other and by nationals of one
party against the Government of the other Party that are
related to “violations of international humanitarian
law, including the 1949 Geneva Conventions, or other violations
of international law.” (See 40 ILM 260 (2001)).
The commission generally found
that both Eritrea and Ethiopia (“the Parties”)
were committed to the most fundamental principles of international
law bearing on POWs, as evidenced by the organized military
training programs each Party conducted for the treatment
of POWs. Nonetheless, the Commission found that “[t]here
were deficiencies of performance on both sides, sometimes
significant, sometimes grave.”
In terms of the scope of the
Commission’s jurisdiction, Ethiopia argued that
Article 5, paragraph one of the Agreement did not grant
the Commission jurisdiction over claims concerning the
treatment of POWs, including claims for repatriation,
arising after December 12, 2000. The Commission found
that its jurisdiction extended to claims by either party
based upon alleged delays in repatriation of POWs. However,
the Commission found that it lacked jurisdiction over
other claims not filed before December 12, 2001.
In regard to applicable law,
the Commission observed that Eritrea was not a party to
the 1949 Geneva Conventions prior to its accession to
the Conventions on August 14, 2000. Further, the Commission
noted that Eritrea’s non-acceptance of the Conventions
was evidenced by its refusal to grant access to the International
Committee of the Red Cross (“ICRC”) to visit
Ethiopian POWs. The Commission held that as a consequence
of Eritrea’s non-acceptance of the Geneva Conventions
until August 2000, the law applicable to the armed conflict
between Eritrea and Ethiopia until August 2000 was customary
international law, including customary international humanitarian
law, as exemplified by the relevant sections of the four Geneva Conventions
of 1949 and in particular the Geneva
Convention Relative to the Treatment of Prisoners of War
(“Geneva Convention III”), frequently invoked
by both Parties in support of their claims. The Commission
noted that there was nearly universal acceptance of the
Geneva Conventions and significant authority for the proposition
that the 1949 Geneva Conventions have largely become expressions
of customary international humanitarian law. It concluded
that if either Party wished to assert that a particular
relevant provision of the Geneva Conventions could not
be applied as evidence of customary international law,
the burden of proof would fall on the asserting party
to prove its non-applicability as customary international
law.
In terms of the evidentiary standard
of proof, the Commission required clear and convincing
evidence of violations of international law in order to
establish liability. Further, the Commission found that
“[t]he consistent and cumulative character of much
of the Parties’ evidence was of significant value
to the Commission in making its factual judgments.”
Ethiopia’s Claim
4: The Commission found that Eritrea’s refusal,
from May 1998 to August 2000, to allow the ICRC access
to Ethiopian POWs, to register POWs, to interview them
without witnesses, and to provide them with the customary
and services, resulted in a violation of customary international
law. The Commission disagreed with Eritrea’s argument
that the provisions of the Geneva Convention III requiring
external scrutiny of the treatment of POWs and access
to the ICRC were merely implementing procedural provisions
and not constituting part of customary international law.
The Commission noted that these requirements “incorporate
past practices that had standing of their own in customary
law, and [...] are of such importance for the prospects
of compliance with the law that it would be irresponsible
for the Commission to consider them inapplicable as customary
international law.”
The Commission further found
that Eritrea was liable under customary international
law for the following acts: beating and frequently killing
Ethiopians upon capture and its immediate aftermath; depriving
Ethiopian POWs of footwear during long walks; allowing
its interrogators to threaten or beat Ethiopian POWs;
confiscating personal property of Ethiopian POWs; permitting
pervasive and continuous physical and mental abuse in
its camps from May 1998 to August 2002; seriously endangering
the health of Ethiopian POWs at Embakala, Digdigta, Afabet
and Nakfa camps; failing to provide sanitary housing,
bath and food facilities; failing to provide the standard
of medical care required for Ethiopian POWs; failing to
provide for required preventive care by segregating Ethiopian
POWs with infectious diseases; subjecting Ethiopian POWs
to unlawful conditions of labor; permitting unnecessary
suffering of Ethiopian POWs during transfer between camps;
failing to allow Ethiopian POWs to seek redress and punishing
those who did.
Eritrea’s Claim 17:
The Commission found Ethiopia liable for the following
violations of customary international law: failing to
take effective measures to prevent incidents of beatings
and abuse of Eritrean POWs; depriving Eritrean POWs of
footwear during long walks; failing to protect personal
property of Eritrean POWs, subjecting Eritrean POWs to
enforced indoctrination; permitting health conditions
at Mai Kenetal to endanger the health of Eritrean POWs;
failing to provide an adequate diet to Eritrean POWs;
failing to provide proper medical care and preventive
care; and delaying the repatriation of 1,287 Eritrean
POWs in 2002 for seventy-seven days longer than was reasonably
required.
In regard to Eritrea’s
claim for the alleged unlawful assault of female POWs,
the Commission found that Eritrea failed to submit sufficient
evidence documenting sexual assault of female POWs, and
while noting the vulnerability of female POWs and the
significance of Eritrea’s claim, held that it could
not lower the standard of evidence in this regard.
Members of the Eritrea-Ethiopia
Claims Commission:
The case was originally brought
against Ireland before the European Commission of Human
Rights, and was transferred to the ECHR on November 1,
1998, when Protocol No. 11 of the Convention came into
force. The applicant claimed that the prohibition
of the broadcast of his religious advertisement by virtue
of Ireland’s 1998 Radio and Television Act constituted
a violation of his rights under Articles 9 and 10 of the
Convention. In particular, the applicant claimed that
his advertisement was protected under Article 10 of the
Convention which extended to ideas that “offend,
shock or disturb” in accordance with
Handyside v. the United
Kingdom (December 7, 1976).
The ECHR found that the issue
did not concern a restriction of the freedom to manifest
one’s religion under Article 9 of the Convention,
but rather, a restriction of the right to freedom of expression
under Article 10. The ECHR noted that Article 10 protected
not only the content and substance of the information,
but also the means of dissemination, given that any restriction
on the means necessarily interfered with the right to
receive and impart information.
The ECHR found that since
the prohibition related only to advertising, such limitation
reflected a reasonable distinction made by the State,
particularly in view of the partisan nature of advertisement.
The ECHR noted that there appeared to be no consensus
between the Contracting States of the ECHR as to the limits
of regulating religious advertisements, and that a wide
margin of appreciation was generally accorded to ECHR
Contracting States in regulating these matters.
The Court found that the Government
of Ireland’s objective to ensure respect for religious
doctrines and beliefs for public order and safety were
legitimate aims for the purposes of Article 10 §2 of the
Convention.
UNCLOS
Arbitral Tribunal: Ireland v. United Kingdom (Order
No. 3 - Suspension of Proceedings on Jurisdiction and
Merits and Request for Further Provisional Measures)
(June 24, 2003)
The Arbitral Tribunal (“the
Tribunal”) decided unanimously that further proceedings
on jurisdiction and merits would be suspended until no
later than December 1, 2003. In addition, it affirmed
a provisional measure on co-operation prescribed by the
International Tribunal for the Law of the Sea (“ITLOS”)
in its Order of December 3, 2001 (seeILIB summary of February 11, 2002) and rejected
Ireland’s request for additional provisional measures.
The case concerns a dispute
between Ireland and the United Kingdom under the 1982 United Nations Convention
on the Law of the Sea (“the Convention”)
over discharges into the Irish Sea of certain radioactive
wastes produced by or as a result of the operation of
a mixed oxide (“MOX”) fuel plant at Sellafield
in the United Kingdom. The MOX plant reprocesses spent
nuclear fuel into a new, mixed oxide fuel. Ireland asserted
that in respect of the establishment and prospective operation
of the MOX plant, there was a risk of harm arising from
(1) the discharge of radioactive waste, (2) the transport
of radioactive material through the Irish Sea, and (3)
the storage of such material in the facility. Ireland
further argued that under the Convention the United Kingdom
has obligations concerning the protection of the maritime
environment, the prevention and control of pollution and
co-operation between States. Ireland alleged that the
United Kingdom was in breach of several of its obligations
under the Convention and referred in particular to Articles
123, 192, 193, 194, 206, 207, 211, and 213.
The procedural background
to this case began on October 25, 2001, when Ireland submitted
to the United Kingdom a Notification and Statement of
Claim instituting arbitral proceedings as provided for
in Annex VII to the Convention. Ireland also submitted
a request for provisional measures pending the constitution
of the Tribunal. Article 290 paragraph 5 of the Convention
provides that “pending the constitution of an arbitral
tribunal to which a dispute is being submitted under this
section [...] the International Tribunal for the Law of
the Sea [...] may prescribe, modify or revoke provisional
measures in accordance with this article if it considers
that prima facie the tribunal which is to be constituted
would have jurisdiction and that the urgency of the situation
so requires.” Thus, ITLOS, finding that the Tribunal
to be constituted under Annex VII has prima facie
jurisdiction, prescribed provisional measures on December
3, 2001. The Tribunal was subsequently established in
February 2002.
In observing whether it had
jurisdiction not only prima facie but also in a
definitive sense, the Tribunal had to consider two categories
of objections raised by the United Kingdom. The first
category of objections to jurisdiction and admissibility
concerned the Convention itself and other instruments
invoked by Ireland such as the 1992
Convention for the Protection of the Marine Environment
of the North-East Atlantic (“the OSPAR Convention”).
The Tribunal, however, rejected the United Kingdom’s
objections in this respect, finding, inter alia,
that the OSPAR Convention did not cover the field as to
invoke Articles 281 or 282 of the Convention which would
have precluded the Tribunal’s jurisdiction. The
second category of the United Kingdom’s objections
concerned certain European Community law issues. As to
the second category of the United Kingdom’s objections,
the Tribunal found that it is not clear whether “the
provision of the Convention on which Ireland relies are
matters in relation to which competence has been transferred
to the European Community and, indeed, whether the exclusive
jurisdiction of the European Court of Justice, with regard
to Ireland and the United Kingdom as Member States of
the European Community, extends to the interpretation
and application as such and in its entirety.” The
Tribunal held that if this were the case, the jurisdiction
of the Tribunal would be precluded by Article 282 of the
Convention. The Tribunal recognized that these matters
have to be determined within the institutional framework
of the European Communities and therefore held that until
these issues are definitely resolved, it could not firmly
establish jurisdiction in respect of all or any of the
claims of the dispute.
As to the additional provisional
measures requested by Ireland, the Tribunal found that
its competence to prescribe such measures was contained
in Article 290 of the Convention. Ireland argued that
(1) discharges from the MOX plant constitute serious harm
to the environment and irreparable prejudice to Ireland’s
claimed right that the Sea not be polluted, (2) the United
Kingdom’s failure to consult and co-operate with
Ireland constitutes irreparable prejudice to Ireland’s
claimed right to such consultation and co-operation, and
that (3) it has a right to require the United Kingdom
to undertake a proper environmental assessment, in accordance
with Article 206 of the Convention. The United Kingdom
argued that the discharges would not cause a serious threat,
that it complied with the ITLOS Order of December 3, 2001
and that compliance with some of the additional measures
sought would mean closing down the MOX plant for several
months, which could eventually cause serious prejudice
to the United Kingdom.
As to Ireland’s first
claim, the Tribunal held that the harm caused by discharges
was not “serious” and thus did not meet the
threshold test in Article 290 paragraph 1. It further
found that “there is no urgent and serious risk
of irreparable harm to Ireland’s claimed rights,
which would justify the tribunal in prescribing provisional
measures relating to discharges form the MOX plant. As
related to Ireland’s second point of request, the
Tribunal found that no further order was required as to
co-operation and the provision of information at this
stage. As to Ireland’s claim in respect to the environmental
assessment, the Tribunal held that this was a key question
on the merits and that Ireland’s request “would
not give any clear guidance to the United Kingdom of what
conduct is required of it pending a final decision.”
The Tribunal however, affirmed
the provisional measure on co-operation prescribed by
ITLOS in its Order of December 3, 2001 and requested the
parties to “take such steps as are open to them
separately or jointly to expedite the resolution of the
outstanding questions of European Community law.”
The dispute was the first
one under the OSPAR Convention and concerned the access
to information about a mixed oxide (“MOX”)
fuel plant at Sellafield in the United Kingdom. Ireland
claimed that the United Kingdom had breached its obligations
under Article 9 of the OSPAR Convention by refusing to
disclose information redacted from two reports prepared
as part of the approval process for the MOX plant. The
United Kingdom argued that the information was deleted
for reasons of commercial confidentiality.
The relevant sections of Article
9 of the OSPAR Convention read:
9.1. The Contracting Parties
shall ensure that their competent authorities are required
to make available the information described in paragraph
2 of this Article to any natural or legal person, in response
to any reasonable request, without that person’s
having to prove an interest, without unreasonable charges,
as soon as possible and at the latest within two month.
9.2. The information referred
to in paragraph 1 of this Article is any available information
in written, visual, aural or data base form on the state
of the maritime area, on activities or measures adversely
affecting or likely to affect it and on activities or
measures introduced in accordance with the Convention.
9.3. The provision of this
Article shall not affect the right of Contracting Parties,
in accordance with their national legal systems and applicable
international regulations, to provide for a request for
such information to be refused where it affects:
...
(d) commercial and industrial confidentiality
According to the parties’
final submissions it appeared to the Tribunal, which was
established pursuant to Article 32 of the OSPAR Convention,
that it had to determine three questions: (1) whether
Article 9(1) of the OSPAR Convention required a Party
to disclose or to set up a procedure to disclose “information”
within the meaning of Article 9(2), (2) whether the material
Ireland wanted to be disclosed constitute “information”
for the purpose of Article 9(2), and, (3) whether the
United Kingdom thus withheld information contrary to Article
9(3).
As to the applicable law,
the Tribunal had to decide, inter alia, whether
the reference of “applicable international regulations”
in Article 9(3) of the OSPAR Convention would include,
as contended by Ireland, also the 1998 Aarhus Convention
on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters (“the
Aarhus Convention”) which neither Ireland nor the
United Kingdom had ratified. By a majority comprising
Professor Michael Reisman and Lord Mustill, the Tribunal
found that it could only consider current international
law and practice insofar as such law and practice are
admissible under Article 31 of the Vienna
Convention and held that it could not apply the Aarhus
Convention.
In relation to the first question
before the Tribunal, the United Kingdom argued that Article
9(1) of the OSPAR Convention did not establish a direct
right to receive information but rather required Parties
to establish a domestic framework for the disclosure of
information. The United Kingdom asserted that thus, Ireland
only had a cause of action for breach of Article 9 if
the United Kingdom had failed to provide a regulatory
framework for disclosure of information. The United Kingdom
maintained that it had taken the required legislative
and administrative measures.
The Tribunal rejected the
United Kingdom’s arguments and found by majority
composed of Lord Mustill and Dr. Griffith QC that “upon
its proper construction Article 9(1) requires an outcome
of result, namely that information falling within the
meaning or Article 9(2) (and not excluded under Article
9(3)) is in fact disclosed in conformity with the Article
9 obligation imposed upon each Contracting Party.”
As to the second question,
the United Kingdom asserted that the information requested
by Ireland does not fall under Article 9(2). The Tribunal
rejected by a majority comprising Lord Mustill and Professor
Reisman Ireland’s argument for a broad interpretation
of Article 9(2) and held that information to fall under
9(2) has to be related to the state of the maritime area,
and, focusing on the second of the three categories of
Article 9(2), further held that such information has to
be on activities and measures “adversely affecting
or likely to affect” the maritime area. If found
that Ireland had failed to demonstrate that the 14 categories
of information which were redacted from the reports and
which it desired to obtain were “information on
the state of the maritime area” or on “activities
and measures adversely affecting or likely to affect it.”
Concluding that the information
sought by Ireland did not fall within Article 9(2), the
Tribunal found there was no need to consider the third
question.
In a short declaration Prof.
Reisman explained that he did not join the majority in
their decision on Article 9(1) because in his opinion,
“Article 9(1) is not expressed in terms to establish
an obligation on the international plane to provide information,
with the performance of that obligation in specific cases
to be subject to the jurisdiction of a Tribunal established
under Article 32.”
In a dissenting opinion Dr.
Griffith QC disagreed as to the majority’s decision
regarding the applicable law, concluding that the Aarhus
Convention fell within the definition of applicable law
and Article 31 of the Vienna Convention. In addition,
he disagreed with the majority’s narrow interpretation
of the second category of information under Article 9(2)
and the majority’s conclusion that the onus of proof
to establish that the MOX fuel production is an activity
“adversely affecting or likely to affect”
the maritime area was on Ireland.
World Trade
Organization (WTO) (Final Panel Report): United States-Definitive
Safeguard Measures on Imports of Certain Steel Products
WT/DS248/R-WT/DS259/R (July 11, 2003)
The WTO Panel concluded that
the safeguard measures imposed by the United States on
the imports ofcertain steel productswere
inconsistent with the provisions of the GATT 1994 and
the Agreement
on Safeguards, which provide WTO members with a conditional
right to limit market access and to take measures otherwise
inconsistent with its obligations under the GATT in order
to obtain temporary relief when unforeseen developments
have resulted in increased imports that are causing or
threatening to cause serious injury to the relevant domestic
producers. The complainants challenging the measureswere Brazil, China, the European Communities, Japan,
Korea, New Zealand, Norwayand Switzerland.
The complainants challenged
the application of safeguard measures pursuant to the
U.S. President’s Proclamation No. 7529 of March
5, 2002 entitled “To facilitate Positive Adjustment
to Competition from Imports of Certain Steel Products”
in which the U.S. imposed a tariff of 30% on imports of
Plate, Hot-Rolled Steel, Cold-Rolled Steel, and Coated
Steel.The complainants challenged the application
of the safeguard measures imposed by the United States
in addition to the methodologies of the United States
International Trade Commission (“USITC”) in
its determination of safeguard measures pursuant to Proclamation
No. 7529.
The Panel noted that safeguard
measures under Article XIX:1(a) of GATT 1994, as interpreted
by the WTO Appellate Body in Argentina-Footwear
(EC), were intended by the drafters of the GATT
to be “matters out of the ordinary” and in
short, “emergency actions.” The Panel observed
that such actions may be taken when a WTO Member faces
developments that were unforeseen when the Member incurred
its GATT 1994 obligations.
In respect of the unforeseen
development determination, the United States argued that
the Russian financial crisis, the Asian financial crisis,
the continued strength of the U.S. market, along with
the persistent appreciation of the U.S. dollar constituted
a combination of unforeseen developments. The European
Communities, China, Switzerland and Norway argued that
no combination of the above-mentioned events cited by
the USITC could constitute an unforeseen development.
The Panel found that the report
on unforeseen developments submitted by the USITC, although
describing a “plausible set of unforeseen developments
that may have resulted in increased imports to the United
States from various sources, [...] falls short of demonstrating
that such developments actually resulted in increased
imports into the United States causing serious injury
to the relevant domestic markets.” The Panel found
that the USITC report “failed to link the steel
market displacements to the specific increased imports
into the United States at issue.” The Panel
therefore found that the failure to provide a reasoned
and adequate explanation demonstrating that such unforeseen
developments resulted in increased imports and serious
injury to the relevant domestic producers was inconsistent
with, inter alia, Article XIX:1 of GATT 1994 and
Articles 2.1 and 3.1 of the Agreement on Safeguards. The
Panel recommended that the Dispute Settlement Body of
the WTO request the United States to bring its safeguard
measures in conformity with its obligations under the
Agreement on Safeguards and GATT 1994.
European
Union (EU): Council adopted proposals on GMOs (July 22,
2003)
On July 22, 2003, the Council
of Ministers formally adopted two European Commission
proposals for regulations on genetically modified organisms
(GMOs). The two proposals were previously adopted by the
European Parliament on July 2, 2003.
This new legislation will establish
a coherent system of authorization, labeling and tracing
of food and feed products derived from GMOs. Authorization
will be granted on the basis of a single risk assessment
conducted by the European Food Safety Authority (“EFSA”)
and will be based on the “one door - one key”
principle, which means that authorization can only be
received either for none or for both, deliberate release
into the environment and use of the GMO in food and/or
feed. The labeling requirements will apply to all foods
consisting of, containing or produced from GMOs irrespective
of whether there is DNA or protein of GM origin in the
final product and all genetically modified feed. The traceability
requirements will require business operators to transmit
and retain information that helps to track the movement
of GM products throughout the production and distribution
chain.
The new legislation will enter
into force 20 days after its publication in the Official
Journal of the European Union.
European
Union (EU): Council adopted Directive on greenhouse gas
emissions trading (July 2, 2003)
On July 22, 2003 the Council
adopted a Directive creating a scheme for greenhouse gas
emission allowance trading within the European Community.
Previously, the European Parliament voted in favor of
the Directive on July 2, 2003. The Directive aims to promote
the reduction of greenhouse gas emissions in a cost-effective
manner. The scheme covers all greenhouse gases covered
by the Kyoto Protocol but only the carbon dioxide emissions
from the activities listed in Annex I of the Directive
will be included from the start. The first period of the
trading scheme will start on January 1, 2005.
International Law In Brief (ILIB) - Copyright 2003
- The American Society
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