November 2020: Series 3

Around the World

Two Weeks and Counting: Trump Refuses to Concede

Sahibnoor Singh Sidhu

It has been close to a fortnight since Biden, won a tight but consequential election for the Presidency of the United States. However, despite the widespread acceptance of the election results, the incumbent, Donald Trump, has refused to concede the election and remains dug into his passionate, yet unsubstantiated claims of widespread voter fraud. The Trump campaign’s legal strategy, led by the controversial former Mayor of New York, Rudy Giuliani has failed in multiple states. However, State judges in Arizona and Pennsylvania and a federal judge in Georgia rejected election-related lawsuits Thursday from Republicans and the Trump campaign. Not only is this unprecedented, it is being deemed as dangerous for the Office of the President of the United States, the national security of the country, and also of the world. While most world leaders have accepted the results of the US Elections and have congratulated the President-Elect Biden, Trump’s refusal seems to be taking on a shabby attempt to pull off a coup.

This apprehension comes at the heels of various statements of powerful Republicans who continue to support Trump. Newly re-elected Senate Majority Leader, Mitch McConnell in the Senate stated that the President was “100% within his rights” to challenge the results of the election. Secretary of State, Mike Pompeo upon being asked regarding his opinion of the need for a smooth transition said, “there will be a smooth transition to a second Trump administration.” The Attorney General, William Barr has also allowed federal prosecutors to investigate any substantive claims of voter fraud. Trump has also fired his Secretary of Defence, Mark Esper, and a senior official of the Department of Homeland Security, Chris Krebs (see here), who had issued a statement that the 2020 elections were the most secure in American history.

Trump has further removed many senior defence officials and installed his loyalists. Despite the rising alarms of a coup attempt by Trump, the world is looking forward to a change in the American policies under President-Elect Biden, as they await his inauguration on 20th January 2021, while a 2024 challenge by Trump looms in the shadows.


Trade

Pushkar Reddy

G20 Countries slowdown COVID 19 Trade Restrictions

The 24th WTO Trade Monitoring Report shows a slowdown in the level of trade restrictions between mi May and mid October 2020. The report stated that the reason for the slowdown is due to the sharp decline in overall global trade since the pandemic. Over 400 support measures in direct response to the pandemic and collectively worth several trillion dollars were put in place by G20 economies up until mid-October. The report also shows greater flexibility in terms of IP measures aimed at facilitating COVID 1 related technologies. 

Read more here and here

Indonesia Launches a Safeguard Investigation on Expansible Polystyrene

The investigation notification came on 18th November 2020. A safeguard measure is aimed to determine if the import of a particular product is damaging or threatens to damage domestic industries. As per Article 3.1 of the WTO Agreement on Safeguard, Indonesia will provide an opportunity for member States who have a substantial interest in the concerned industry to present their views and evidence. The date for the hearing is 9th December 2020. 

Read more here and here

Negotiation of Rules on E-Commerce Being Not Moving Fast Enough

On 17th November, Australia, Japan, and Singapore stressed on the need to work in smaller groups to accelerate progress. The current discussion revolved around bridging the differences on text proposals covering online consumer protection, paperless trading, open government data, open internet access, customs duties on e-commerce, and electronic signatures and authentication. The November 5th meeting of the negotiation dealt with the streamlining of text on personal information/data protection and ICT products that use cryptography. 

The e-commerce negotiation began following the 2017 WTO Ministerial Conference. The member states realised that there was a need for trade rules to fit the digital age. A Consolidated draft text should be ready by the end of 2020. 

Read more here and here

Brexit and Carbon Border Adjustment Mechanism (CBAM)

With less than 50 days left for Brexit, talks have begun with respect to the finer details of the trading arrangement. One particular topic that has been of concern is with respect to UK leaving the EU’s Emission Trading Scheme (ETS) and setting up its own carbon pricing equivalent. This may potentially impact EU’s “Green Deal” Strategy, which involves using funds from CBAM to fund its Covid 19 economic recovery. Concerns have been raised that there may be carbon leakage, where polluting industries may migrate to countries with less stringent polluting safeguards. 

Read more here, here and here

India Announces Incentive to Promote Manufacturing of Solar PV Modules and Batteries

The incentives which were announced by the ministry of finance are available to both domestic and foreign companies. The total value of incentive would be 605 million dollars for the PV modules and 2.4 billion dollars for batteries. The incentives seem to be aimed to move away from dependency on importing the two products from China which at one time constituted 90% of PV modules in India. The incentives come soon after safeguard and anti dumping duties to support domestic producers. 

Read more here


Human Rights

Ruchi Chaudhury 

Human Rights Watch: Thai authorities in violation of international human rights standards in their handling of peaceful democracy demonstrators

The Thai government has shown increased hostility toward democracy demonstrations, which started on July 18 and later spread across the country. Demonstrators have called for the resignation of the government, the drafting of a new constitution, and an end to harassment for exercising freedom of expression. Some of the protests included demands to curb the king’s powers.

International human rights law, as expressed in the International Covenant on Civil and Political Rights (ICCPR), which Thailand ratified in 1996, protects the rights to freedom of expression and peaceful assembly. 

According to Human Rights Watch, Thai police used water cannons and teargas against peaceful democracy demonstrators outside the parliament in Bangkok on November 17, 2020 in violation of international human rights standards. Under the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and other international human rights standards, law enforcement may only use force when strictly necessary and to the extent required to achieve a legitimate policing objective. 

Read further on the issue here

Australia announces creation of Office of Special Investigator to examine potential criminal matters raised by the Brereton report

The inquiry headed by Justice Paul Brereton contains findings of the alleged war crimes by Australian forces in Afghanistan. The investigation found credible information of 23 incidents of unlawful killing of 39 people “by or at the direction of members of the Special Operations Task Group in circumstances which, if accepted by a jury, would be the war crime of murder. None of these are incidents of disputable decisions made under pressure in the heat of battle, found the inquiry.”

The report, among other things, found credible allegations that junior soldiers were required by their patrol commanders to shoot a prisoner to achieve the soldier’s first kill, in a practice that was known as “blooding.”

On November 12, the Australian government announced the creation of an Office of the Special Investigator to examine potential criminal matters raised by the Brereton report. The government said the office will be staffed with experienced investigators from the Australian Federal Police, state police experts, and legal counsel, who will gather evidence and refer briefs to the commonwealth director of public prosecutions for consideration.

Read further on the issue here


International Arbitration

Mahima Balaji

Future Retail v. Amazon: Challenges in Enforcing the Outcome of Emergency Arbitration in India

Amazon, earlier in October, sent a legal notice to Future Group detailing that the promoters allegedly violated a non-compete contract over their deal with Reliance Industries Limited (“RIL”). Right after, Amazon approached the Singapore International Arbitration Centre (“SIAC”) to call off the deal between RIL and Future Group. The bone of contention at present, is the validity of the award passed by the Emergency Arbitrator, stalling the sale of Future Group.

At present, Amazon, acquired an indirect minority stake of about 5% in Future Retail which entails food and grocery stores (like Big Bazaar), which was after it bought 49% in Future Coupons for Rs 1,500 crore last year (a promoter holding firm). Amazon seems particularly concerned with RIL’s acquisition worth nearly $3.38 billion (₹24,713 crore) as the acquisition of Future Retail speaks to RIL’s intent on expanding and taking on e-commerce giants such as Amazon and Flipkart (acquired by Walmart), through its own platform: JioMart. In fact, if the deal goes through, Reliance Retail would have access to over 1800 stores spread across 420 Indian cities. They would also take over the wholesale business of the Future Group, including logistics and warehousing facilities (see here and here). Amazon’s brief victory at SIAC, where the Order of the Emergency Arbitrator provided for an injunction, preventing Future Retail from proceeding with the transaction with RIL, is what is currently being challenged before the Delhi High Court (live updates on Bar & Bench here). 

While both parties agreed to the SIAC Rules, which not only provides for the appointment of an Emergency Arbitrator (under Schedule 1) for emergency interim relief, Rule 1.3 also declares that an award passed by an Emergency Arbitrator falls within the general definition of an arbitral award under the SIAC Rules. However, given that India is the seat, the grant of such relief by an emergency arbitrator finds no place within the purview of the Arbitration and Conciliation Act, 1996, which only recognises reliefs passed by an arbitral tribunal, or by Courts having jurisdiction. 

On 19th November 2020, Senior Advocate Darius Khambata in Future Retail v. Amazon argued exactly this: “On a plain reading of Part I, it is crystal clear that our law does not permit a person to act as an Emergency Arbitrator for an India-seated arbitration and grant relief. Only a court under Section 9 can do it” (see here). 


COVID-19 and Humanitarian Law 

Aditi Nagpal

The following update is a must read for anyone interested in International Humanitarian Law. In a recent article series examining the impact of the COVID-19 pandemic, Just Security has curated three specific articles to examine the intersection of the pandemic on the application of international humanitarian law. 

The first article lays down the legal framework of international humanitarian law which exists through the Geneva Conventions and Additional Protocols to the same, which govern the conduct of hostilities in international armed conflicts and non-international armed conflicts. The particular focus of the first article is to explain how the practical implications of these obligations are altered – with violations having far graver impacts in conflict affected societies and thus abiding by these laws accordingly become even more relevant. For instance, the principle of proportionality would be expanded to include “reverberating effects” of a military operation and its possible Covid-19 effects. Another example would be how the Additional Protocols contain precautions against attacking “works and installations containing dangerous forces”, this definition would include any areas that are developing Covid-19 vaccines.

The second article specifically deals with humanitarian access, which forms a part of the customary international law governing international humanitarian law. This article stresses the urgency for humanitarian access in conflict-ridden zones and explains the increased vulnerability of these zones to the devastating effects of the pandemic. Moreover, access to essential COVID prevention materials becomes the need of the hour, especially at the hands of aid organisations that are better equipped than State Parties to provide these reliefs. The impediments to such access by State Parties, specifically Syria and Yemen, constitutes an even greater danger to their populations given the fast-spreading nature of the virus. 

The final article deals specifically with the treatment of detainees. The pandemic has brought on an unprecedented deterioration of the rule of law in certain countries such as Libya or South Sudan, which is why the question of detainee treatment becomes increasingly important. While the treatment given to detainees differs in the context of an international armed conflict vis a vis that of a non-international armed conflict, the principles remain the same and in the OCVID-19 context would mean that detainees are guaranteed protective equipment and adequate social distancing in detention facilities and allow for medical examination of detainees.

Find Just Security’s whole series titled ‘COVID19 and International Law’ here.

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