The Indian Society of International La Newsletter July-Septeber... · 2010-01-29 · settlement of disputed claims, pattas/leases, and conversion of forest villages to revenue villages,

April-June 2008 1

Editorial

The verdict delivered on 7 August 2008 by the jurors of the Military

Commission Act (MCA), constituted by the United States of America

to try the Guantanamo prisoners, found Osama bin Laden’s former

driver Salim Hamdan guilty of providing material support to terrorism

and awarded him 5 years and 6 months imprisonment. The case, the

first US war crimes trial since World War II, will be seen as an

important test of the controversial military commission system that

has been widely criticized as unfair by human rights groups. The

Court itself was as much on trial as Hamdan. In the spring of 2006,

Hamdan’s lawsuit Hamdan v. Rumsfeld reached the Supreme Court, which gave Hamdan and

his lawyers a sweeping victory. The Court struck down the Bush Administration’s military tribunals.

In a 5-3 decision of 29 June 2006, reversing the Court of Appeals (D.C. Circuit) decision in

Hamdan v. Rumsfeld, the Court upheld the Geneva Conventions of 1949 as enforceable under

US law. The Supreme Court justice demonstrated how fundamental tenets of international law

amplify American values, which are deeply embedded in US law. In response to this decision, the

Bush administration redoubled its efforts, pressing Congress to authorize the military tribunals,

which it did by passing the MCA on 28 September 2006. MCA was created to prosecute non-U.S.

citizens on terrorism charges outside the civilian and military court system.

This is to be seen whether defense lawyers will go for appeal against the decision, in light of the

lighter sentenced awarded to Salim by the jurors of MCA, which he almost served by spending

same period in the Guantanamo prisons. The Military Commissions have faced repeated legal

challenges and Hamdan’s appeal could have far-reaching consequences.

Hamdan’s case was the first case before the Military Commission at Guantanamo to proceed to

a full trial. More than 260 detainees remain in Guantanamo, most of whom have been held for

over six years. The decision in the first US war crimes trial could be a troubling sign for military

prosecutors as they prepare to try about 80 other Guantanamo detainees on terrorism charges.

Ram Niwas Mirdha

PresidentRam Niwas Mirdha

Executive PresidentProf. R. P. Anand

Vice PresidentsNarinder Singh

V. C. GovindarajC. K. Chaturvedi

TreasurerR. K. Dixit

Secretary GeneralRahmatullah Khan

DirectorManoj Kumar Sinha

INSIDE

ISIL Activities ......................................... 2,4

Recent Developmentsin International Law ............................... 5,7

Recent Articles ...................................... 7,8

New Additions in ISIL Library ................... 8

Current Issue of IJIL ................................. 8

Published by:The Indian Society of International Law

V.K. Krishna Menon Bhawan,9, Bhagwan Dass Road,

New Delhi-110001 (INDIA)Tel.: 23389524, 23384458-59 Fax: 23383783

E-mail: [email protected]: www.isil-aca.org

The Indian Societyof International Law

VOL. 7, NO. 3, July-September 2008

N E W S L E T T E R

For members only

2 April-June 2008

ISIL ACTIVITIES

SPECIAL LECTURES ON ANEW BINDINGINTERNATIONAL TREATY ONCLUSTER MUNITIONS:WHERE WE STAND NOW BYLOU MARESCA, LEGALADVISER, ICRC LEGALDIVISION, AND ANINITIATIVE RELATED TO THEREGULATION OF PRIVATEMILITARY COMPANIES ANDPRIVATE SECURITYCOMPANIES BY CORDULADROEGE, LEGAL ADVISER,ICRC LEGAL DIVISIONIndian Society of International Law (ISIL)organised a special lecture on “A NewBinding International Treaty on ClusterMunitions: Where We Stand Now” and “AnInitiative Related to the Regulation ofPrivate Military Companies and PrivateSecurity Companies” on 1 July 2008 at itspremises. Prof. Lakshmi Jambholkar, ECmember. ISIL, introduced the speakersLou Maresca and Cordula Droege, LegalAdvisers, ICRC Legal Division and invitedthem to deliver the lectures. Marescahighlight the primary effects caused bythese weapons—the effects that underliethe calls for new regulations. During thewar in Indochina, tens of millions ofsubmunitions are believed to have beendropped in Lao People’s DemocraticRepublic, and there are estimates that 8–25million of them may have failed to explodeas intended. Significant numbers ofsubmunitions were also used and failed toexplode in Afghanistan, Iraq, Kosovo andother recent conflicts. Predictably, thesesubmunitions have caused large numbersof civilian casualties and posed seriouschallenges for organizations involved inthe clearance of explosive remnants ofwar. He presented the content of theTreaty on Cluster Munition that prohibitedthe use, production, stockpiling, and tradeof cluster munitions. On the sameoccasion, Cordula Droege analysed thelegal status of private contractors inhumanitarian law, a question that is ofcrucial importance as it defines rights andobligations of the person in question. TheLecture witnessed lively exchange ofviews with the audience on herpresentation. Dr. Manoj Kumar Sinha,Director, ISIL, gave vote of thanks.

Institute, Gurgaon, while addressing the topic“Forests Land and Rights of Tribal”. Dr.Avanish began with the analysis of “Erosion ofLand or Traditional Rights of the Tribal?”. Hediscussed the rights of tribals in thebackground of any individual rights in forestsunder Indian legal framework, where 13 listedforest rights include rights to land, usufructsand grazing, including the right to protect,regenerate and/or conserve/manage,settlement of disputed claims, pattas/leases,and conversion of forest villages to revenuevillages, rights over minor forest produce,intellectual property rights on traditionalknowledge, habitat and habitation rights ofprimitive tribal groups and pre-agriculturalcommunities. These rights are heritable butnot alienable, subsistence and livelihoodpurpose and not for exclusive commercial use.He also analysed how forest, forest land andtribes should be empowered through theprocess. He also underlined target anddefinitional challenges viz., who is Tribe?,what should be the lowest unit viz., GramPanchayat etc. He suggested for a systemwhich should constitute participatory,preventive and predictive with proper policy,institutions, technology and action. TrainingProgramme has not only covered theoreticalaspects of rights of tribal but also expanded itsreach to procedural aspects by taking a topic“Role of Commission of ST and Rights ofTribal with Specific Reference to Forest RightsAct”. The discussant was Shri R. C. Durga,Director, National Commission of ST,Government of India. He analysed the powerand function of Commission in the backgroundof perpetrated violation of tribal rights in day-

TWO DAYS TRAININGPROGRAMME FOR SENIORGOVERNMENT OFFICERS OFMINISTRY OF ENVIRONMENT &FORESTSISIL has successfully conducted Two-daysTraining Programme on Forest Land andOther Related Rights of Tribal - Adequacy ofNational Provisions in the Forest Policy forIndian Forest Service Officers at its premiseson 3 and 4 July 2008. ISIL undertook followingthemes for discussion in the Programme: 1.Forest Land and Rights of Tribal; 2. Forestryand Sustainable Development; 3. NationalForest Policy and Its Efficacy; 4. Bio Diversityand Natural Resources; 5. The Role ofCommunity Forestry in SustainableDevelopment. Dr. Bachittar Singh, JointSecretary, Ministry of Tribal Affairs,Government of India inaugurated thisprogramme and spoke on the topic“Implementation of Forest Rights Act, 2006”.Dr. Singh highlighted main features of the Act,laying down a procedure for recognition andvesting of forest rights in forest dwelling tribesand gave emphasis on the protection of therights of tribal so that conservation of theforest should be strengthened with theirparticipation in the management of the forests.This lecture laid foundation for participants tounderstand the origin and development oftribal rights in the management of forests andits implications. This approach has been takenfurther by Dr. Avanish Kumar, AssociateProfessor, School of Public Policy andManagement, Management and Development

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to-day activities. He provided guidelines toForest Officers how to ensure the rights oftribal in forest department. TrainingProgramme has also ensured criticaldiscussion on the theme. Programmeprogressed with the discussion by Prof.Shekhar Singh, Former Director, Centre EquityStudies on the topic “Sociological Dimensionsof the Protected Area Network in India withreference to the Forest Right Act”, highlightedthe need to ensure tribal rights in themanagement of the Forest. He emphasizedtheir right for the historical wrong done totribals and other forest dwellers who werenever given titles to their holdings withinlegally designated forests. His presentationwas an attempt to assess Forest Rights Act interms of some of its potential impact on theecosystem and biodiversity of India’s forestsand wilderness areas, specifically thosecontained in the protected area network, andon the people dependent on these resources.He made an attempt to highlight those parts ofthe law that are ineffective or counter-productive. Lecture was then followed with thediscussion on the topic of “SustainableDevelopment and Natural ResourceManagement: Contribution of the IndianJudiciary”. The commentator was Shri SanjayParikh, Senior Advocate, Supreme Court ofIndia. He mainly explained principles viz.,“Common Concern of Mankind”, “Common butDifferentiated Responsibility”, “PrecautionaryPrinciple”, “Polluter Pays Principle”, “PublicTrust Doctrine” which is core of realizing the“Sustainable Development” and its importanceand applicability in increased globalisedsociety. “International Environmental Law:Sustainable Development After Kyoto Protocolon Forests” was next topic for discussion. ShriShiju M. V., Lecturer, TERI University, NewDelhi highlighted historical nature ofinternational law dominated by industrializedcountries and its implications on smaller anddeveloping countries and continueddominance of powerful countries in ongoingtalk in Post-Kyoto. Diplomacy of Europeancountries in the laying down international ruleshistorically and its continuance is unstoppable.He emphasised the role from forest officers forproactive role in the development ofinternational environmental law pertaining toforests related matters. Programme endedwith the discussion on “Protection ofEnvironment: Armed Forces” by Major GeneralNilendra Kumar, Judge Advocate General,Government of India. He highlighted thearmed forces initiative to save forest in India.Efforts of Indian Armed Forces in themanagement of forest were interestingfeatures of the discussion.

LECTURE ON RULE OF LAW ININTERNATIONAL LAW: IS ITILLEGAL? BY PROF. UGOMATTEI, UNIVERSITY OFCALIFORNIAISIL organised a lecture on “Rule of Law inInternational Law: Is It Illegal?” on 25 July2008 at its premises. Prof. Rahmatullah Khan,Secretary General, ISIL, introduced thespeaker Prof. Ugo Mattei, University ofCalifornia and invited him to deliver thelecture. The Lecture witnessed livelyexchange of views with the audience on hispresentation. Dr. Manoj Kumar Sinha, Director,ISIL, gave vote of thanks.

CONVOCATION ANDINAUGURATION OF P. G.DIPLOMA AND CERTIFICATECOURSES OF THE INDIANACADEMY OF INTERNATIONALLAW, ISIL, NEW DELHIISIL organized the Convocation for Awardingof Post Graduate Diploma Certificates on 8th

September 2008. The ceremony was alsomarked to inaugurate Post Graduate Diplomaand Certificate Courses 2008. Prof.Rahmatullah Khan, Secretary General, ISILwelcomed and introduced the chief guestHon’ble Justice, J. S. Verma, Former ChiefJustice, Supreme Court of India and invitedhim to give inaugural address. Hon’ble JusticeVerma also distributed certificates to students ofISIL. Mr. Prakash Chandra received V. K.Krishna Menon Memorial Prize for the securinghighest marks in the Post Graduate DiplomaCourse in International Law and Diplomacy. Forthe first time, Academy also instituted threemore prizes in other courses of the Academy.

Mr. Ashok Kumar received K. Krishna RaoMemorial Prize for securing highest marks in thePost Graduate Diploma Course in InternationalTrade and Business Law and Ms. M. ImkonglaJamir received Judge Nagendra Singh MemorialPrize for securing highest marks in the PostGraduate Diploma Course in Human Rights,International Humanitarian and Refugee Lawand Ms. Firdruse Qutub Wani received M. K.Nawaz Memorial Prize in Certificate Course inInternational and National Intellectual PropertyRights Law.

SPECIAL LECTURE BY PROF.VED P. NANDA, PROFESSOROF LAW, DIRECTOR,INTERNATIONAL LEGALSTUDIES, PROGRAMME LAWSCHOOL, UNIVERSITY OFDENVER ON THE TOPIC OFDARFUR AND THERESPONSIBILITY TO PROTECTISIL organised a lecture on “Darfur and theResponsibility to Protect” on 6 August 2008 atits premises. Prof. Rahmatullah Khan,Secretary General, ISIL, introduced thespeaker Prof. Ved P. Nanda, Professor of Law,Director, International Legal Studies,Programme Law School, University of Denverand invited him to deliver the lectures. He tookreferral of Darfur situation to reflect therelatively recent but fundamental shift ininternational law towards recognition of therights and duties of States. He advocated toprogress in codifying the State’sresponsibilities’ to individuals and relied on thetheory of sovereignty as responsibility. In brief,he substantiated views of some progressivescholars and governments who argue that astate’s claim to sovereignty is dependent upon

4 April-June 2008

the state effectively shouldering its primaryresponsibilities. The Lecture witnessed livelyexchange of views with the audience on hispresentation. Dr. Manoj Kumar Sinha, Director,ISIL, gave vote of thanks.

SPECIAL LECTURE BY DR.KISHORE SINGH, SENIORPROGRAMME SPECIALIST,RESPONSIBLE FOR RIGHT TOEDUCATION, UNESCO, PARIS,SECRETARY, JOINT EXPERTGROUP, UESCO(CR)/ECOSOC(CESCR) ON THE MONITORINGOF THE RIGHT TO EDUCATIONON THE TOPIC OFINTERNATIONAL LAW ANDRIGHT TO EDUCATIONISIL organised a special lecture onInternational Law and Right to Education on14 August 2008 at its premises. Dr. ManojKumar Sinha, Director, ISIL, welcomed andintroduced the chief guest, Dr. Kishore Singh,Senior Programme Specialist, Responsible forthe Right to Education, UNESCO, ParisSecreatary, Joint Expert Group,UNESCO(CR)/ECOSOC (CESCR) on theMonitoring of the Right to Education. Prof.Rahmatullah Khan, Secretary General, ISILgave vote of thanks.

A ROUND TABLECONFERENCE ONINTERNATIONAL CHILDABDUCTION – PARENTALREMOVAL CHAIRED BYHON’BLE DR. JUSTICE A. R.LAKSHMANAN, CHAIRMAN,LAW COMMISSION OF INDIAISIL organised a Round Table Conference onInternational Child Abduction – ParentalRemoval on 28 July 2008 at its premises. Onthis occasion, Dr. Justice A. R. Lakshmanan,Chairman, Law Commission of India gaveinaugural address and highlighted theimportance of the International Convention onCivil Aspects of International Child Abduction,1983 in the background of increased numberof abduction and child custody disputes. Heargued apart from signing the Convention, thelaw in India also requires amendment toensure that it gives equal rights to women.Prof. Lakshmi Jambholkar, EC Member, ISILprovided full spectrum of decisions of Indianjudiciary and highlighted the principle that theprimary consideration for deciding childcustody cases has to be the welfare of thechild. The Conference witnessed lively

interventions by participants.

EIGHTH HENRY DUNANTMEMORIAL MOOT COURTCOMPETITIONISIL and the International Committee of theRed Cross (ICRC), New Delhi organized theEighth Henry Dunant Memorial Moot CourtCompetition at its premises from 11th to 14th

September 2008. Prof. Rahmatullah Khan,Secretary General, ISIL, gave welcomeaddress. On this occasion Hon’ble JusticeDalveer Bhandari, Judge, Supreme Court ofIndia gave inaugural address. He appreciatedteam members participations and underlinedthe importance of the event in the presentdays which equip the students to developskills and create asset for the bar of thecountry. Mr. Jan Nicolas Schuett, Deputy Headof Regional Delegation, ICRC, New Delhi alsoaddressed the gathering and spoke about theimportance of the subject of the moot courtcompetition and highlighted the contribution ofthe ICRC in development of internationalhumanitarian law. Sixty two law universitiesand/ colleges participated in the Competition.The Competition was concluded in fourstages, preliminary, quarter-final, semi-finaland final rounds. The participants were judgedon the basis of written memorials, appreciationof facts and law, advocacy skills, use ofauthorities and citations, general impressionand court manners. Eminent professors, legalofficers and international law scholars judgedthe teams in preliminary, quarter-final andsemi-final rounds.Hon’ble Justice Rajinder Sacher, Former ChiefJustice, Delhi High Court, Prof. Dr. RahmatMohammad, Secretary General, AALCO, andProf. V. S. Mani, Director, Jaipur NationalUniversity, Jaipur, were the final round judges.Gujarat National Law University, Gujarat andD. E. S. Law College, Pune were the winnerand runner up of the Competition respectively.Mr. Avinash Jha, National Law Institute, Bhopal

was adjudged the Best Advocate, Ms. Gurjit K.Dhillon, University Institute of Laws, RegionalCenter, Ludhiana won the Best Researcheraward, and Hidayatullah National LawUniversity, Raipur won Best Memorial award inthis Competition. Hon’ble Justice Sacher gavevaledictory address on the occasion.

VISIT OF STUDENTSA delegation of 35 students from LawDepartment of Hoogly Mohsin College,Burdwan, West Bengal visited ISIL on 4September 2008 . Dr. Manoj Kumar Sinha,Director, ISIL welcomed the students anddescribed the activities of ISIL to the visitorsand also discussed the importance ofinternational law and career prospect in thisarea.

FORTHCOMING EVENTSGolden Jubilee, Fourth South Asian HenryDunant Memorial Moot Court Competition,17-19 October 2008

UGC Refresher Course in Human Rightsand Social Justice, InternationalHumanitarian and Refugee Law, 3 - 22November 2008

Training Programme on InternationalHumanitarian Law, 19-26 November 2008

A Special Function to Confer HonoraryMembership of the Indian Society ofInternational Law to Hon’ble Judge C. G.Weeramantry, Former Judge of theInternational Court of Justice, The Hague,The Netherlands, 9 December 2008

International Conference on “Indian Judgeand International and Comparative Law”Jointly Organizing by the HEC, ParisBusiness School and the Indian Society ofInternational Law, 13-14 December 2008

April-June 2008 5

RECENTDEVELOPMENTSRequest for Interpretation ofthe Judgment of 31 March 2004in the Case Concerning Avenaand Other Mexican Nationals(Mexico v. United States ofAmerica)The ICJ started proceedings on 16 July 2008with regard to the Application filed in theRegistry of the Court on 5 June 2008 byMexico, whereby Mexico requested the Courtto interpret paragraph 153(9) of the judgmentdelivered by the Court on 31st March 2004 inthe Case concerning Avena and other MexicanNationals (Mexico v. United States of America)(hereinafter the “Avena Judgement”). In itsapplication, Mexico claims that, since theCourt delivered its judgment in the AvenaCase, only one state court has provided therequired review and consideration, in the caseof Osvaldo Torres Aguilera”, adding that, in thecase of Rafael Camargo Ojeda, the State ofArkansas agreed to reduce Mr. Camargo’sdeath sentence to life imprisonment inexchange for his agreement to waive his rightto review and reconsideration under the AvenaJudgement”; and whereas according toMexico”, all other efforts to enforce the Avenajudgement have failed.

In its application, Mexico stated that the Courtfound that the appropriate reparation in thiscase consists in the obligation of the UnitedStates of America to provide, by means of itsown choosing, review and reconsideration ofthe convictions and sentences of the Mexicannationals” mentioned in the judgment. The USis obliged under Article 36 of the Vienna

Convention on Consular Relations andparagraphs 138 to 141 of the Judgment toreconsider and review convictions andsentences of the Mexican nationals.

Mexico has sought indications of provisionalmeasures from the Court thereby prohibitingUS from carrying out sentences with regard toMexican nationals unless the individualaffected has received review andreconsideration. The Court found that thesubmission by the US seeking the dismissal ofthe Application filed by the United MexicanStates cannot be upheld.

UN General Assembly’s HighLevel Meeting on MillenniumDevelopment Goals (MDGs)On 25 September 2008, the UN Secretary-General and the President of the GeneralAssembly convened a High-level event on theMillennium Development Goals (MDGs), whichevaluated progress towards achieving thegoals at the halfway point towards the 2015target. The High-level event on the MDGbrought together heads of state, ministers,business and foundation representatives, non-governmental organizations and civil societyrepresentatives to evaluate progress andchallenges in meeting the MDGs. UNSecretary-General Ban-ki-Moon said that thegathering exceeded his most optimisticexpectations, noting that it generated anestimated US $ 16 billion in funding, includingover US $4.4billion for education andapproximately $1.6 billion to enhance foodsecurity.

Among the initiatives launched at the eventwere: a global campaign to reduce malariadeaths to near zero by 2015, with initialcommitments of over US $ 3 billion; and a taskforce on maternal mortality.

World Trade OrganizationFrom 21 July to 29 July, roughly 40 ministersmet in a Ministerial Green Room in a bid tohelp find consensus on agriculture andindustrial goods trade, while discussing thebest way forward in future negotiations onservices, rules and intellectual property.Meetings of the Trade Negotiations Committee(TNC) were also held from 21 July to 30 July.The TNC comprises representatives of all 153members of the WTO. It is chaired by theWTO Director-General Pascal Lamy and hasoversight of the whole Doha Round.

RECENT DEVELOPMENTS

Georgia Instituted Proceedingagainst the Russian Federationat the European Court ofHuman Rights and theInternational Court of JusticeOn 11 August 2008, Georgia institutedproceedings before the European Court ofHuman Rights alleging that the RussianFederation was violating the EuropeanConvention on Human Rights. Georgiaalleged that the Russian Federation violatedthe following rights applicable pursuant to theEuropean Convention on Human Rights: Rightto life (article 2 of the Convention); Prohibitionof inhuman and degrading treatment (article 3of the Convention); Protection of property(article 1 of Protocol No. 1 to the Convention).And on 12 August 2008, Georgia institutedformal proceedings against the RussianFederation at the International Court ofJustice, alleging violations of the Conventionon the Elimination of All Forms of RacialDiscrimination, and reserving the right toallege violations of the Genocide Conventionat a later date. The Convention on theElimination of All Forms of RacialDiscrimination provides for automaticjurisdiction of the ICJ in contentious cases,even when a State Party has not accepted thefull compulsory jurisdiction of the ICJ. Georgiaalleged that the Russian Federation violatedthe following rights applicable pursuant to theConvention on the Elimination of All Forms ofRacial Discrimination: Racial discrimination(article 2 of the Convention); Racialsegregation (article 3 of the Convention);Promotion or justification of racial hatred anddiscrimination (article 4 of the Convention);Failure to prohibit or eliminate racialdiscrimination (article 5 of the Convention);Failure to ensure an effective protection orremedy against racial discrimination (article 6of the Convention).

Appellate Body Issued ReportRegarding the Panel Reportson “United States - MeasuresRelating to Shrimp fromThailand” (DS343) and on“United States - Customs BondDirective for MerchandiseSubject to Anti-Dumping/Countervailing Duties” (DS345)On 1 August 2008, the Dispute SettlementBody adopted the Panel and Appellate Bodyreports in the cases filed by Thailand andIndia concerning the US measure known as

ISIL FACULTY VISITDr. Anwar Sadat, Assistant Professor, ISILparticipated in Session on Implementationof Environmental Law organized by theHague Academy of International Law from18th August - 5th September 2008. Hepresented a paper titled “ComplianceMechanism in the Kyoto Protocol”.

Shri D. Sridhar Patnaik, AssistantProfessor, ISIL participated in theAdvanced Training Course on InternationalHumanitarian Law for University Teachersin Geneva from 25-30 August 2008. Thecourse is organized by the GenevaAcademy of International HumanitarianLaw and Human Rights and the ICRC.

6 April-June 2008

the “enhanced continuous bond requirement”on imports of shrimp. In fact, the AppellateBody, on 16 July 2008, issued its reportregarding the panel reports on “United States -Measures Relating to Shrimp from Thailand”,(DS343) and on “United States - CustomsBond Directive for Merchandise Subject toAnti-Dumping/ Countervailing Duties” (DS345).These Panel reports examined complaintslodged by Thailand and India, respectively. Inrespect of the appeal of Panel Report, US –Shrimp (Thailand), for the reasons set out inthis Report, the Appellate Body: (a) upholdsthe Panel’s finding, in paragraph 7.130 of thePanel Report, that the application of the EBRfalls within the temporal scope of the Ad Note,in the sense that the Ad Note authorizes theimposition of security requirements during theperiod following the imposition of a UnitedStates anti-dumping duty order; (b) declares ofno legal effect the interpretation developed bythe Panel that the cash deposits requiredunder United States law following theimposition of an antidumping duty order arenot anti-dumping duties governed by Article 9of the Anti-Dumping Agreement; (c) upholdsthe Panel’s finding, in paragraph 7.150 of thePanel Report, that the additional securityrequirement resulting from the application ofthe EBR to subject shrimp is not “reasonable”within the meaning of the Ad Note; (d)reverses the legal interpretation made by thePanel, in footnote 184 to paragraph 7.142 ofthe Panel Report, that, in the context of theapplication of the EBR, there is no obligationunder the Ad Note to assess the risk of defaultby individual importers; and (e) upholds thePanel’s finding, in paragraph 7.192 of thePanel Report, that the EBR, as applied tosubject shrimp, is not “necessary” within themeaning of Article XX(d) of the GATT 1994.Consequently, the Appellate Body upholds thePanel’s conclusion, in paragraph 8.1 of thePanel Report, that the application of the EBRto subject shrimp is inconsistent with Article18.1 of the Anti-Dumping Agreement becauseit is inconsistent with the Ad Note to ArticleVI:2 and 3 of the GATT 1994. The AppellateBody recommends that the DSB request theUnited States to bring its measure, found inthis Report and in the Panel Report, US –Shrimp (Thailand), as modified by this Report,to be inconsistent with the Anti-DumpingAgreement and the GATT 1994, intoconformity with its obligations under thoseAgreements.

In respect of the appeal of Panel Report, US –Customs Bond Directive, for the reasons setout in this Report, the Appellate Body: (a)upholds the Panel’s finding, in paragraph7.107 of the Panel Report, that the applicationof the EBR falls within the temporal scope of

the Ad Note, in the sense that the Ad Noteauthorizes the imposition of securityrequirements during the period following theimposition of a United States anti-dumpingduty order; (b) declares of no legal effect theinterpretation developed by the Panel that thecash deposits required under United Stateslaw following the imposition of an antidumpingduty order are not anti-dumping dutiesgoverned by Article 9 of the Anti-DumpingAgreement; (c) upholds the Panel’s finding, inparagraph 7.128 of the Panel Report, that theadditional security requirement resulting fromthe application of the EBR to subject shrimp isnot “reasonable” within the meaning of the AdNote; (d) reverses the legal interpretationmade by the Panel, in footnote 148 toparagraph 7.119 of the Panel Report, that, inthe context of the application of the EBR, thereis no obligation under the Ad Note to assessthe risk of default by individual importers; (e)upholds the Panel’s finding, in paragraphs7.236-7.238 and 8.1 of the Panel Report, thatthe Amended CBD, by virtue of which the EBRis imposed, is not inconsistent “as such” withArticles 1 and 18.1 of the Anti-DumpingAgreement and Articles 10 and 32.1 of theSCM Agreement; (f) upholds the Panel’sfinding, in paragraphs 7.161, 7.263, 7.264,and 8.1 of the Panel Report, that the AmendedCBD, by virtue of which the EBR is imposed,is not inconsistent “as such” and “as applied”with Articles 9.1, 9.2, 9.3, and 9.3.1 of the Anti-Dumping Agreement and that it is notinconsistent “as such” with Articles 19.2, 19.3,and 19.4 of the SCM Agreement; (g) finds itunnecessary, for purposes of resolving thisdispute, to make an additional finding onIndia’s claims that the Amended CBD is “assuch” inconsistent with Article 18.4 of the Anti-Dumping Agreement and Article 32.5 of theSCM Agreement; (h) upholds the Panel’sfinding, in paragraph 7.196 of the PanelReport, that Section 1623 of the Tariff Act andSection 113.13 of the United StatesRegulations were not within its terms ofreference; (i) finds that the Panel did notbreach its obligation to make an objectiveassessment of the matter under Article 11 ofthe DSU, since it did not make a prima faciecase for the United States when it included, inits analysis under Article XX(d) of the GATT1994, certain laws and regulations other thanthose specifically cited by the United Statesfor purposes of its defence under thatprovision; and (j) upholds the Panel’s finding,in paragraph 7.313 of the Panel Report, thatthe EBR, as applied to subject shrimp, is not“necessary” within the meaning of ArticleXX(d) of the GATT 1994; and, therefore, doesnot express a view on the question of whether

a defence under Article XX(d) of the GATT1994 was available to the United States.Consequently, the Appellate Body upholds thePanel’s conclusion, in paragraph 8.2(i) of thePanel Report, that the application of the EBRto subject shrimp is inconsistent with Article18.1 of the Anti-Dumping Agreement becauseit is inconsistent with the Ad Note to ArticleVI:2 and 3 of the GATT 1994. The AppellateBody recommends that the DSB request theUnited States to bring its measure, found inthis Report and in the Panel Report, US –Customs Bond Directive, as modified by thisReport, to be inconsistent with the Anti-Dumping Agreement and the GATT 1994, intoconformity with its obligations under thoseAgreements.

Panel Reports Issued on Autoparts DisputesOn 30 March 2006, the EuropeanCommunities and the United States, and on13 April 2006, Canada, requestedconsultations with China regarding China’simposition of measures that adversely affectexports of automobile parts from the EuropeanCommunities, the United States and Canadato China. The measures include the following:(a) Policy on Development of AutomotiveIndustry (Order No. 8 of the NationalDevelopment and Reform Commission, 21May 2004); (b) Measures for theAdministration of Importation of AutomotiveParts and Components for Complete Vehicles(Decree No. 125), which entered into force on1 April 2005); and, (c) Rules for DeterminingWhether Imported Automotive Parts andComponents Constitute Complete Vehicles(General Administration of Customs PublicAnnouncement No. 4, which entered into forceon 1 April 2005; as well as any amendments,replacements, extensions, implementingmeasures or other measures related.

The European Communities argues that,under the measures identified, importedautomobile parts that are used in themanufacture of vehicles for sale in China aresubject to charges equal to the tariffs forcomplete vehicles, if they are imported inexcess of certain thresholds. The EuropeanCommunities considers that the measures areinconsistent with: Articles II:1(a), II:1(b), III:2,III:4, III:5 of the GATT 1994, as well as withthe principles contained in Article III:1 andArticles 2.1 and 2.2 of the TRIMs Agreementin conjunction with paragraphs 1(a) and 2(a) ofthe Illustrative List annexed to the Agreementand Article 3 of the SCM Agreement andChina’s obligations under its Access Protocol,in particular Part I, para. 7.3 of the Accession

April-June 2008 7

RECENT ARTICLES

Protocol, and in para. 203 of the WorkingParty Report on the Accession of China (WPReport) in conjunction with Part I, para. 1.2 ofthe Accession Protocol, and para. 342 of theWP Report.

The European Communities also considersthat China had nullified or impaired thebenefits accruing to the EuropeanCommunities under the Accession Protocol, inparticular para. 93 of the WP Report, inconjunction with Part I, para. 1.2 of theAccession Protocol, and para. 342 of the WPReport. The United States argues that themeasures identified appear to penalizemanufacturers for using imported auto parts inthe manufacture of vehicles for sale in China.In the United States’ opinion, although Chinabound its tariffs for auto parts at ratessignificantly lower than its tariff bindings forcomplete vehicles, China would be assessinga charge on imported auto parts equal to thetariff on complete vehicles, if the importedparts are incorporated in a vehicle thatcontains imported parts in excess ofthresholds. The United States considers thatthese measures are inconsistent with thefollowing provisions: Article 2 of the TRIMsAgreement; Articles II (including para. 1) andIII (including paras. 2, 4 and 5) of the GATT1994; Article 3 (including paras. 1 and 2) ofthe SCM Agreement; The Protocol ofAccession (WT/L/432) (including Parts I.1.2and I.7.3, and paras. 93 and 203 of theWorking Party Report). The United States alsoconsiders that China had nullified or impairedthe benefits accruing to the United States,directly or indirectly, under the citedagreements.

Canada argues that the measures identifiedabove impose different charges on vehiclesmanufactured in China depending on thedomestic content of the automobile parts usedin the manufacture, thus providing domesticmanufacturers with an advantage if they usedomestic parts. Canada considers that themeasures at issue are inconsistent with: TheProtocol of Accession (WT/L/432) (includingParts I.1.2 and I.7.3, and paras. 93 and 203 ofthe Working Party Report); Articles II(including para. 1) and III (including paras. 2, 4and 5) of the GATT 1994; Article 2 of theTRIMs Agreement; Article 2 of the Agreementon Rules of Origin, specifically paras. (b), (c)and (d); Article 3 of the SCM Agreement.Canada considers that, in addition, China’smeasures may nullify or impair benefitsaccruing to Canada under the citedagreements.

In dispute WT/DS340, Australia, Canada, theEuropean Communities, Japan and Mexicorequested to join the consultations. In disputeWT/DS342, Australia, the EuropeanCommunities, Japan, Mexico and the UnitedStates requested to join the consultations. Atits meeting on 26 October 2006, the DSBestablished a single panel pursuant to Article9.1 of the DSU. Argentina, Australia, Japan,Mexico and Chinese Taipei reserved theirthird-party rights. Subsequently, Brazil andThailand reserved their third-party rights. On18 July 2008, Panel issued the reports thathad examined, respectively, complaints by theEuropean Communities, the United States andCanada regarding “China - Measures AffectingImports Of Automobile Parts” (DS339, DS340and DS342). The Panel recommends that theDispute Settlement Body request China tobring these inconsistent measures as listedabove into conformity with its obligationsunder the GATT 1994.

WTO Issued Arbitration Reporton Tyres DisputeOn 17 December 2007, the DisputeSettlement Body (the “DSB”) adopted theAppellate Body Report and the Panel Report,as modified by the Appellate Body Report, inBrazil - Measures Affecting Imports ofRetreaded Tyres. (for more details see ISILNewsletter no. 4, 2007) The DSB held on 15January 2008, Brazil stated that it intended tocomply with the recommendations and rulingsof the DSB in this dispute, and that it wouldneed a reasonable period of time in which todo so. On 4 June 2008, the EuropeanCommunities informed the DSB thatconsultations with Brazil had not resulted in anagreement on the reasonable period of timefor implementation. The EuropeanCommunities therefore requested that suchperiod be determined through bindingarbitration pursuant to Article 21.3(c) of theUnderstanding on Rules and ProceduresGoverning the Settlement of Disputes (the“DSU”). Yasuhei Taniguchi, Arbitrator,determined that the reasonable period of timefor Brazil to implement the recommendationsand rulings of the DSB in this dispute is 12months from the date of adoption of the Paneland Appellate Body Reports. The reasonableperiod of time will thus end on 17 December2008.

Panel report issued on Mexico-EC Dispute Concerning OliveOilA WTO dispute panel issued on 4 September2008 its report on the EC’s complaint

concerning Mexico’s final countervailingmeasures on olive oil from the EuropeanCommunities (DS341). On 31 March 2006, theEuropean Communities requestedconsultations with Mexico concerning theimposition by Mexico of definitivecountervailing measures on imports of olive oilfrom the European Communities. TheEuropean Communities claims that theinitiation and conduct of the investigations inthis case, as well as the imposition ofdefinitive countervailing measures areinconsistent with Mexico’s obligations under,inter alia, Article VI of GATT 1994; Articles 1,10, 11, 12, 13, 14, 15, 16, 19, 22 and 32 of theSCM Agreement; Articles 13 and 21 of theAgreement on Agriculture. On 23 January2007, the DSB established a panel. Canada,China, Norway and the United States reservedtheir third party rights. Subsequently, Japanreserved its third party rights. The DSU,having found that Mexico has actedinconsistently with provisions of the SCMAgreement as set out above, andrecommended that Mexico should bring itsmeasures into conformity with that Agreement.

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Kapur, S. Paul and Ganguly, Sumit, “TheTransformation of U.S. - India Relations: AnExplanation for the Rapprochement andProspects for the Future”, Asian Survey, vol.XLVII, no. 4 (2007), pp. 642-656.

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OFFICIAL DOCUMENTS

BOOK REVIEW

SELECT ARTICLES AND NEWACQUISITIONSNew Acquisitions to the ISIL Library from Julyto September 2008

Current Issue ofIndian Journal of International Law

July - September 2008, Vol. 48, No. 3

CONTENTS

Journal of World Trade, vol. 42, no. 2 (2008),pp. 433-460.

Das, Kasturi, “Select Issues and Debatesaround Geographical Indications withParticular Reference to India”, Journal ofWorld Trade, vol. 42, no. 2 (2008), pp. 461-508.

Dalal, Milan, “India’s New Constitutionalism:Two Cases That Have Reshaped Indian Law”,Boston College International and ComparativeLaw Review, vol. 31, no. 25 (2008), pp. 257-276.

Stiglitz, Joseph E., “Regulating MultinationalCorporation: Towards Principles of Cross-Border Legal Frameworks in a GlobalizedWorld Balancing Rights with Responsibilities”,American University International Law Review,vol. 23, no. 3 (2008), pp. 451-558.

NEW ADDITIONSAjayi, J. F. Ade. (ed.), General History ofAfrica: Africa in the Ninetieth Century until the1980s, Vol. 6. (Heinemann UNESCO,California, 1989).

Anderson, David, Modern Law of the Sea:Selected Essays (Martinus Nijhoff, Leiden,2008).

Bare Act,.The Negotiable Instruments Act,1981 (Universal, New Delhi, 2008).

Bhargava, R., Justice: Political, Social,Juridical (Sage Publications, New Delhi,2008).

Boahen, A. Aow (ed.), General History ofAfrica: Africa under Colonial Domination 1980-

1935, Vol. 7 (Heinemann UNESCO, California,1985).

Bowring, Bill, The Degradation of theInternational Legal Order (Rutledge -Cavendish, New York, 2008).

Braziel, Jana Evans, Diaspora: An Introduction(Blackwell, USA, 2008).

Elfasi, M. (ed.), General History of Africa:Africa from to Seventh to the EleventhCentury, Vol. 3 (Heinemann UNESCO,California, 1988).

Falk, Richard, International Law & the ThirdWorld: Reshaping Justice (Rutledge, USA,2008).

Harrison, James, The Human Rights Impact ofthe World Trade Organizations (HartPublishing, USA, 2007).

Kaul, J. L. and M. K. Sinha, Human Rights &Good Governance: National and InternationalPerspective (Satyam Law International, NewDelhi, 2008).

Ki-Zerbo, J. (ed.), General History of Africa:Methodology and African Prehistory, Vol. 1,(Heinemann UNESCO, California,1981).

Kumar, Nagesh (ed.), Asia’s New Regionalismand Global Role: Agenda for the East AsiaSummit (Research and Information System,New Delhi, 2008).

Lester, Simon and Others, World Trade Law:Text, Materials and Commentary (HartPublishing, USA, 2008).

MaAdam, Jane (ed.), Forced Migration,Human Rights and Security (HartPublishing,USA, 2008).

Mapp, Susa, C., Human Rights and SocialJustice in a Global Perspective (OxfordUniversity, New York, 2008).

Marjit, Sugata, International Trade andEconomic Development: Essays in Theory andPolicy (OUP, ND, 2008).

Maskus, Keith E. (ed.), Intellectual PropertyGrowth and Trade, 1st edn (Elsevier, UnitedKingdom, 2008).

Mazrvi, Ali. A. (ed.), General History of Africa:Africa since 1935, Vol. 8 (HeinemannUNESCO, California, 1993).

Mokhtar, J. (ed.), General History of Africa:Ancient Civilizations of Africa, Vol. 2.(Heinemann UNESCO, California, 1981).

Nair, P. M., The Kalam Effect: My years withthe President (Harber Lollins, New Delhi,2008).

Najam, Adil and Others, Envisioning aSustainable Development Agenda for Tradeand Environment (Palgrave, Macmillan, NewYork, 2007).

Ndiaye, T. M. and R. Wolfrum (ed.), Law of theEnvironmental Law and Settlement of Dispute(Martinus Nijhoff, Leiden, 2007).

Niane, D. T. (ed.), General History of Africa:Africa from the Twelfth to the SixteenthCentury, Vol. 4, (Heinemann UNESCO,California, 1984).

Normand, R., Human Rights at the UN: ThePolitical History of Universal Justice (IndianaUniversity Press, USA, 2008).

NEW ADDITIONS IN ISIL LIBRARY