Decision in USA-India WTO Dispute to come out next month

The Chairman of the Panel in ‘India — Certain Measures Relating to Solar Cells and Solar Modules’ has informed the Dispute Settlement Body (‘DSB’) that the final Panel Report is expected to come out next month.

The United States has challenged certain measures of India relating to domestic content requirements under the Jawaharlal Nehru National Solar Mission (“NSM”) for solar cells and solar modules. Brazil; Canada; China; European Union; Japan; Korea, Republic of; Malaysia; Norway; Russian Federation; Turkey; Ecuador; Saudi Arabia, Kingdom of; Chinese Taipei are third parties to the dispute.

The NSM was launched in 2010 with an ambitious target of deploying 20,000 MW of grid connected solar power by 2022. It aimed at reducing the cost of solar power generation in the country through aggresive Research & Development and domestic production of certain critical components. Therefore, the idea was to encourage domestic production of solar panels and modules.

According to the United States, under NSM, the solar power developers are granted certain benefits such as guaranteed long term tariffs for electricity (in the form of power purchase agreements under NSM or with NTPC Vidyut Vyapar Nigam Limited) if they purchased and used solar cells and solar modules of domestic origin.

Picture Courtesy: The Diplomat

The United States’ position is that these domestic content requirements are inconsistent with Article III:4 of the GATT 1994 (National Treatment); Article 2.1 of the TRIMs Agreement( National Treatment and Quantitative Restrictions) and Articles 3.1(b), 3.2, 5(c), 6.3(a) and (c), and 25 of the SCM Agreement (Prohibition on Subsidies, Causing of Adverse Effects through Subsidies, Notification of Subsidies).

The Dog That Didn’t Bark: The curious silence of the UN Security Council on Omar Hassan Ahmad Al-Bashir

The Dog That Didn’t Bark^[1]

by Neha Bhat

In March 2005, the UN Security Council (UNSC) referred the Darfur ‘situation’ to the International Criminal Court (ICC), making it the first referral of its kind. UNSC Resolution 1593 was adopted under Chapter VII of the UN Charter with 11 votes in favor,^[2] and 4 abstentions.^[3] The Resolution was hailed as a major step towards strengthening the fight against impunity for the ‘crimes against humanity’ committed in Darfur against the indigenous Fur, Zaghawa and Massalit tribes.

Pursuant to Resolution 1593, the ICC opened preliminary investigations into the Darfur ‘situation’ and on July 14, 2008, then ICC Prosecutor Luis Moreno-Ocampo filed an application for issuance of warrant of arrest for Omar Hassan Ahmad Al-Bashir (Al-Bashir), the sitting President of Sudan, before the Pre-Trial Chamber I (PTC I). The first warrant of arrest against Al-Bashir was issued by the PTC I on March 4, 2009 covering murder, torture, rape, and intentionally directing attacks against the civilian population. On a subsequent application filed by the Prosecutor’s Office, a second warrant of arrest against Al-Bashir was issued by the PTC I on July 12, 2010 on three counts of genocide.

Image Courtesy: International Justice Project

Al-Bashir, and Cursus Curiae of the ICC and South African Supreme Court.

By Sujoy Sur

South African executive’s open defiance of its Supreme Court’s order to arrest Omar Hasan Ahmad Al-Bashir is an issue which had attracted a great many concerns from many corners of the international arena, and rightly so. The concern is that Mr. Al-Bashir is an international criminal and South Africa, a country which  has signed the Rome Statute (ICC) and is a committed actor to international peace and security (member of UNSC and UN Charter), should have have acted in accordance with International law. Instead, South Africa invited Al-Bashir to the African Union summit and allowed him to leave the country despite the Court’s order.

Background

Omar Al-Bashir is the president of Sudan. Yes, the same country which got divided into two, into a new South Sudan, which went on to become the 193rd member of the UN General Assembly (UNGA). A referendum was held in January, 2011 in which majority of the population (99.83%) people voted for a South Sudan. The reason for it’s independence, so to speak, are intertwined with that Al-Bashir’s indictment. South Sudan was deeply affected by Civil Wars which had torn the region apart. The first Sudanese civil war lasted from 1955-1972, the improper culmination of which lead to a second Sudanese civil war from 1983-2005. Many atrocities were committed during this period, out of which Omar Al-Bashir was held “individually criminally responsible for genocide, crimes against humanity and war crimes” committed in Darfur, since 2003. Allegations were pitched against Al-Bashir formally by the Chief Prosecutor of ICC, Luis Moreno Ocampo, in July 2008. An arrest warrant was issued against him by a Pre-Trial chamber composed of judges Akua Kuenyehia of Ghana, Anita Usacka of Latvia, and Sylvia Stenier of Brazil indicting him on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians).

ICSID Additional Facility (A Primer)

By Sarthak Malhotra

What is ICSID ?

The International Centre for Settlement of Investment Disputes (ICSID) was established by ICSID Convention, entered into force on October 24, 1966. The idea behind establishing ICSID was to make a body that will provide dispute resolution facilities( arbitration or conciliation) for investment disputes between Contracting States and nationals of other Contracting States.

Article 25(1) of the Convention elaborates upon the jurisdiction of ICSID.

According to Article 25(1),

[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.

The Additional Facility Rules were adopted by the ICSID Administrative Council in 1978 to administer disputes that fall outside the scope of the ICSID Convention.

An Argument against the Customary International Law

By Sarthak Malhotra

Amidst the widespread recognition of custom as a source of International Law, there have always been echoes of those who deny that custom is signficant as a source of law.^[1]While the importance of custom cannot be denied, it will also not be an exaggeration to say that the value of custom has decreased because of widespread codification of International Law.

27 May 1963, Fifteenth session of the International Law Commission, Palais des Nations.

Does this mean that Customary International Law is obsolete now ?

Professor Trachtman‘s reply is in affirmative.

Enclave-tion: An analysis of the Indo-Bangladeshi Agreement

By Sujoy Sur

Image courtesy: Deccan Herald

The 4 decade long India-Bangladesh enclave saga has been concluded by the monumental 119th Constitutional Amendment Bill (100th Constitutional Amendment in effect), which was passed by the Indian Parliament on 7th May. While there are 198 enclaves in total (106 Indian and 92 Bangladeshi), the agreement which was put in effect by the Constitutional amendment settles the position of 162 enclaves. Out of these 162 enclaves, India gets 51 Bangladeshi Enclaves, constituting an area of around 7,110 acres, while Bangladesh gets 111 Indian enclaves, constituting an area of around 17,160 acres.

What is an enclave?

Colloquially speaking, an enclave is a island land of one country surrounded by the land of another. An enclave under international law is generally understood to be a part of the territory of a state that is enclosed within the territory of another state whose inhabitants are culturally and ethnically distinct. A prominent example of this is the Vatican City, which is territorially surrounded by Italy. As one can see, their existence is rare and abnormal in the international scheme of state order as they defeat the very idea of contiguity of territoriality of a nation state. They usually pose difficulty in governance and even have the potential to threaten international peace, which is why states prefer to either dispose of the contentious land by agreement or sale or by an international accord.

Enclave-tion

The issue of enclaves, though complex in itself, is not as simple as its definition seems to be. Enclaves often have counter-enclaves, which is an enclave in an enclave. Say there are two countries, A and B. Country A has an enclave in Country B, say en-A. Now, a counter enclave would be an enclave of country B in this en-A. Still confused? Take a look at this diagrammatic representation.