February 2021: Series 1

Public International Law

At the ICJ

Abhijeet Shrivastava

The International Court of Justice (“ICJ”) has announced the names of its newly elected President and Vice President from amongst its members (see here). As required, the internal election was held using the secret ballot method. Judge Joan E. Donoghue, who hails from the United States of America, is the new President of the Court. She has been a member of the ICJ since 9th September 2010, and was re-elected as from 6th February, 2015 (see biography here). Judge Kirill Gevorgian, hailing from the Russian Federation and a member of the ICJ since 6th February, 2015, has been elected as the President of the Court (see biography here). 

Their tenure shall last for three years, commencing officially from 8th February, 2021. With this, the Presidency of Judge Abdulqawi Ahmed Yusuf (Somalia) and the Vice Presidency of Judge Xue Hanqin (China) has come to an end. For a list of all the current members of the Court, see here. For insights into the role, powers, responsibilities, and further details of the offices of the ICJ’s President and Vice President, see here. For further reading, see here.

4G Internet Restored in Kashmir

Mahima Balaji

Recently, after 550 days, 4G mobile internet service was restored in Jammu and Kashmir on Friday, 5 February. Gowhar Geelani and several other activists have noted how this move cannot (and arguably, should not) be interpreted as a “favour” – particularly where the right to high speed internet services was suspended for over 18 months in the region. Given that the right to internet has been realised as a fundamental right, its fulfilment certainly cannot be interpreted as a concession or a compromise of any sort.

Anuradha Bhasin filed a petition in the Supreme Court in 2019 to seek withdrawal of the communication ban and questioned the restrictions that curbed the rights of journalists under Articles 14 and 19 of the Indian Constitution. In a verdict that recognised the freedom of speech and expression to include the right to internet under Article 19 (consequently implying that restrictions much follow principles of proportionality under Article 19(2)), the same has been hardly realised or implemented in Kashmir. Most notable was the subsequent response by the Supreme Court that found “compelling reasons of cross border terrorism” that was notably a reason to prevent access to 4G internet (in Foundation for Media Professionals v. Union Territory of Jammu & Kashmir, ¶¶ 12-19).


Trade 

WTO Panel circulates its report on UAE’s challenge to Pakistan’s anti-dumping measures

Karan Himatsingka 

The WTO Panel has circulated its report in the case of “Pakistan — Anti-Dumping Measures on Biaxially Oriented Polypropylene Film from the United Arab Emirates”. The UAE had challenged anti-dumping duty measures that Pakistan had adopted on the import of biaxially oriented polypropylene (BOPP) films from multiple sources, including the UAE. The Panel held that the measures were inconsistent with Pakistan’s obligations under the Anti-Dumping Agreement, inter alia, on the grounds that there was not sufficient evidence to justify the initiation of an investigation as Pakistan had used evidence that was several years old without justifying the same or attempting to find recent evidence; that a determination of dumping and injury was made on the basis of evidence that was 31 months old at the time of determination without any justification; and that Pakistan had not evaluated all the injury factors listed in Article 3.4 and the impact of the dumped imports on the domestic industry.  

The UAE had also requested the Panel to suggest that Pakistan should withdraw the anti-dumping measures and refund the duties already paid by UAE exporters. While the Panel recommended that Pakistan should withdraw its anti-dumping measures, it refused to recommend that it also refund the duties already collected.

To read the Panel’s full report, see here, for a summary of key findings, see here.

WTO Panel circulates its report on Korea’s challenge to US duties on steel products and transformers

Karan Himatsingka 

In 2018, the Republic of Korea had challenged the imposition of anti-dumping and countervailing duty measures by the United States on the import of certain steel products and large power transformers from Korea. Korea also challenged an unwritten measure that the United States Department of Commerce (“USDOC”) allegedly adopted where it used “adverse facts available” in anti-dumping and countervailing duty investigations. Korea contended that these measures were inconsistent with the Anti-Dumping Agreement (“AD Agreement”) and the Subsidies and Countervailing Measures Agreement (“SCM Agreement”).

The Panel found that the USDOC had acted inconsistently with Article 6.8, Article 9.4 and Annex II of the AD Agreement, and Article 12.7 of the SCM Agreement in multiple anti-dumping and countervailing duty investigations.

With regard to Korea’s “as such” claim on the unwritten measure adopted by the United States, the Panel found that Korea was unable to clearly establish whether such an unwritten measure existed.

To read the Panel’s report, see here, for a summary of key findings, see here.

WTO Director General Elections

Pushkar Reddy

The Biden administration expressing their support towards Ngozi Okonje-Iweala’s candidacy as the next Director General of the WTO, finally ends the uncertainty towards the Director General election. The Trump administration insisted that Okonje-Iweala did not have the credentials to take the position and stood as the only nation to block her appointment. However, the other members of the WTO considered her experience as a strong stitique of corruption as the Finance Minister of Nigeria to be more than adequate for the position. 

Okonjo Iweala’s appointment will mark a watershed movement in the WTO history as she will be the first woman and African leader of the organization’s 25 year history. The bIden’s administration support for Okonje Iweala’s also likely indicates towards the end of the Appellate body deadlock that the Trump Administration have blocked for the past year. 

To read more, see here, here and here.


International Criminal Law

Pushkar Reddy

ICC Jurisdiction Over Palestine

On February 5th, the ICC Pre-Trial Chamber expressed its territorial jurisdiction over Palestine. While the ICC does not have the authority to decisively determine the nature of Palestine’s statehood it does subject the area to the condition in the Rome statute, thereby permitting the court to prosecute violence committed by Israeli forces in Palestine. Israeli Prime Minister Benjamin Netanyahu considered the ruling to be “anti-semitic” and perverse and wishes to “fight the perversion of justice…”. While the ruling also made Palestinian acts of violence to also be subject to the court’s possible prosecution, they have largely expressed their support with the Hamas officials stating that the ruling was consistent to International Humanitarian Law. 

To read more, see here, and here

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