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International Dispute Settlement > 6 : Compliance > Flashcards

6 : Compliance Flashcards

1
Q

What are some of the reasons we witness compliance ? (2)

A

1/ States consent voluntarily to binding forms of DS

2/ pragmatic way for a State to move past a dispute and depoliticise it

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2
Q

What are examples of possible outcomes of a judgment ? (3)

A

1/ finding of wrongdoing

2/ establishment of maritime/land boundaries

3/ recognition of sovereignty

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3
Q

What are the remedies available in the case of breach of legal obligations ? (2)

A

See law on State resp for internationally wrongful acts

1/ cessation and non-repetition (Art 30 ARSIWA)

2/ reparation

(i) restitution (Art 35)
(ii) compensation (Art 36)
(iii) satisfaction (Art 37)

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4
Q

What are forward-looking/prospective remedies ?

A

cessation and non-repetition

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5
Q

What are retrospective remedies ?

A

restitution, compensation, satisfaction

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6
Q

When is cessation relevant ?

A

relevant when State is responsible for an ongoing and continuing internationally wrongful act

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7
Q

Example of case in which ICJ issued an order of cessation ?

A

Whaling in the Antarctic (AUS v JAP)

=> order to withdraw outstanding licenses + refrain from granting further permits

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8
Q

What does non-repetition involve ?

A

appropriate assurances and guarantees of non-repetition IF the circumstances require it

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9
Q

What is the aim + characteristics of restitution ? (3)

A

1/ reestablish a situation that existed before internationally wrongful act was committed

2/ not possible in all circumstances (e.g. death, irreversible material damage)

3/ becomes irrelevant if disproportionate

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10
Q

Example of a case in which ICJ ordered restitution ?

A

Arrest Warrant (DRC v BEL)

=> order to cancel arrest warrant + inform authorities to stop its circulation

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11
Q

Characteristics of compensation ? (2)

A

1/ can be granted insofar restitution for damage caused is impossible/disproportionate

2/ compensation covers financially assessable damage (excludes immaterial damage)

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12
Q

Example of case in which compensation was granted ?

A

CMS v Argentina (arbitration)

=> partial award of damages to CMS

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13
Q

Characteristics of satisfaction ? (4)

A

1/ official expression of regret / declaration by a court/tribunal of wrongdoing

2/ obligation to provide satisfaction insofar as injury cannot be made fully good by cessation/restitution/compensation

3/ has to be proportionate

4/ cannot be humiliating

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14
Q

Example of case in which satisfaction was provided ?

A

Bosnia Genocide (Bosnia v Serbia)

=> ICJ recognized Serbia failed to prevent and punish genocide

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15
Q

What are some characteristics of judgments/awards ? (4)

A

1/ binding

2/ require compliance

3/ final

4/ no possibility of appeal (except at WTO)

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16
Q

Characteristics of “binding character” of judgments/awards ? (4)

A

1/ legal forms of DS produce binding outcomes

2/ judgments/awards demand compliance

3/ judgments/awards do not bind other States besides disputing parties

4/ no principle of binding precedents

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17
Q

Provisions related to binding character of judgments/awards ?

THIS FLASHCARD IS FOR YOU PETER <3

A

1/ Article 94(1) UN Charter + Article 60 ICJ Statute

2/ Article 296(1) UNCLOS

3/ Article 34(2) PCA Arbitration Rules

4/ Article 53(1) ICSID Conv

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18
Q

What is the purpose of finality of judgments/awards ?

A

Prevent endless litigation by same parties on same subject

=> principle of res judicata

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19
Q

What does compliance have to be distinguished from ?

A

Enforcement

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20
Q

What is compliance + characteristics ? (3)

A

1/ observance of a decision (i.e. execution)

2/ IDS almost entirely premised on voluntary compliance

3/ typically, States comply with judgments/awards by engaging in further DS methods (e.g. negotiation, mediation)

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21
Q

What is enforcement + characteristics ? (3)

A

1/ procedures in place for compelling adherence to decisions of int courts/tribunals

2/ typically involves a third party (e.g. judicial body, body within an IO)

3/ int legal system is decentralized and there are no enforcement procedures ensuring there is compliance, besides some very basic enforcement procedures

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22
Q

What are the very basic enforcement procedures that exist in int legal order ? (3)

A

1/ reporting to court/tribunal

2/ reporting to UNGA or UNSC

3/ awarding of costs in cases of non-compliance

23
Q

Rules on reporting to court/tribunal ? (2)

A

1/ Art. 78 ICJ Rules : Court can request information from parties related to implementation of PMs (discretionary decision of ICJ)

2/ Art. 95(1) ITLOS Rules of Court : reporting to ITLOS on implementation of PMs (automatic)

24
Q

Case in which parties had to report back to ICJ ?

A

The Gambia v Myanmar (2020)

=> order to file reports on all measures taken within 4 months, and every 6 months after that

25
Q

Characteristics of reporting to UNSC ? (3)

A

1/ Art. 94(2) UN Charter : SC can play a role in enforcement of judgments (but only judgements)

2/ recommendations or decisions

3/ political procedure

26
Q

Characteristics of reporting to UNGA ? (3)

A

1/ Arts. 10, 12, 14 UN Charter (read together)

2/ UNGA can make recommendations for enforcement/compliance with ICJ judgments

3/ but not if matter is on agenda of UNSC

27
Q

Case in which reporting to UNSC and UNGA took place ? (2)

A

Nicaragua case (1986)

1/ NIC first turned to UNSC, but resolution was vetoed by US

2/ NIC then turned to UNGA, which issued 4 resolutions calling for full and complete compliance by US

28
Q

Characteristics of non-appearance ? (3)

A

1/ situation in which a party to a dispute decides not to participate in one or more phases of the proceedings

2/ usually respondent

3/ frequently followed by non-compliance problems

29
Q

Cases in which some parties did not appear ? (3)

A

1/ Nicaragua case (NIC v US) : US refused to appear after unfavourable ruling on POs

2/ Arctic Sunrise (NL v RUS) : RUS refused to appear during all stages of proceedings

3/ South China Sea Arbitration (PHI v CHI) : CHI refused to participate in the proceedings

30
Q

Characteristics of procedural rules on non-appearance ? (4)

A

1/ geared towards maintaining equality of the parties (procedural fairness)

2/ safeguard legitimacy of decision on the merits

3/ court/tribunal must satisfy itself it has jurisdiction + that the claim is well-founded in law and fact

4/ then balance of the risks to both parties, i.e. court must not accept claims of participating party by default

31
Q

Characteristic of WTO compliance system ? (2)

A

1/ compliance is core feature of WTO DS system

2/ elaborate set of enforcement mechanisms

32
Q

Characteristics of remedies in WTO system ? (3)

A

1/ different from remedies under general IL

2/ remedies at WTO are only prospective (i.e. no reconstitution of preexisting situation)

3/ compensation has a different meaning than in general IL

33
Q

3 stages of the WTO compliance system ?

A

1/ dispute settlement (panel, AB) : Art. 19 DSU

2/ compliance : Art. 21 DSU

3/ retaliation : Art. 22 DSU

34
Q

Characteristics of DS stage in WTO system ? (5)

A

DSU Article 19

1/ panel assesses challenged measure

2/ panel determines conformity of challenged measure with WTO covered agreement

3/ if appeal, AB can uphold/modify/reverse panel’s findings

4/ if measure is deemed inconsistent, panel or AB can make recommendations and suggestions on implementation

5/ ( ! ) DSU does not provide for reparation but only for obligations to bring measure in conformity with WTO obligations

35
Q

Characteristics of compliance stage in WTO system ? (6)

A

DSU Article 21

1/ once report adopted by DSB, it becomes a ruling

2/ ruling requires compliance

3/ DSB in charge of surveilling and monitoring implementation

4/ reasonable period of time to comply (prompt compliance is feature of WTO system) -> 30 days after adoption of report defendant State has to have a plan for implementation

5/ if immediate compliance is impracticable, non-complying State must do so in a reasonable period of time (Art. 21(3) DSU)

6/ if there is a dispute about compliance, parties have to bring it before a panel (i.e. quantification of reasonable period of time, insufficiency of measures to eliminate violations) - Art. 21(5) DSU

36
Q

Characteristics of retaliation in WTO system ? (7)

A

Article 22 DSU

1/ relevant in situations of persistent non-compliance

2/ retaliation stage deals with compensation, i.e. reduction of benefits, suspension of concessions and other obligations

3/ complaining State can request violating State enters negotiations with it

4/ if no agreement reached btwn parties in 20 days, complaining State can ask DSB for permission to retaliate

5/ retaliation is meant to be temporary and prospective to bring violating State into conformity with its obligations

6/ in practice, retaliation has to occur in same sector as violations (but if impracticable, cross-retaliation may be allowed)

7/ in case of objection to retaliation, arbitration is mandatory (Art. 22(6)(7) DSU)

37
Q

Jurisdictional basis in “Certain Activities Carried Out by Nicaragua in the Border Area” (2015) ? (2)

A

1/ pact of Bogota

2/ optional clause declarations of CR and NIC

38
Q

Proceedings before judgment of “Certain Activities Carried Out by Nicaragua in the Border Area” ? (3)

A

1/ 2011 : PMs order => NIC must refrain from sending personnel to disputed area ; obligation of non-aggravation of dispute ; report about compliance

2/ 2013 : second PMs order => NIC has to remove trench and personnel; no more dredging

3/ 2015 : judgment dealing with issue of reparations

39
Q

‘Certain Activities Carried out by Nicaragua’: PMO was not appropriate phase for ICJ to assess compliance. Why ? (2)

A

1/ purpose of PMs stage is to safeguard rights of the parties which could be irreparably damaged pending the issuance of final decision

2/ purpose of merits stage is to reach a decision on State responsibility

40
Q

What reparations did ICJ order in 2015 “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ? (2)

A

1/ satisfaction => violation of territorial sovereignty but no financially assessable damage

2/ compensation => dredging of caños caused material damage

41
Q

Why did ICJ consider it inappropriate to request appropriate assurances and guarantees of non-repetition from NIC ? (2)

A

See paras. 140-141

1/ NIC complied with 2013 PMO

2/ ICJ presumed good faith of NIC and considered there was no reason assume NIC’s attitude towards final judgment would be different

42
Q

Did ICJ accept that NIC should bear CR’s costs ? (4)

A

1/ no, even after “taking into account overall circumstances of the case”

2/ Art. 64 ICJ Statute : principle is that each party bears its own costs, unless otherwise decided

3/ Art. 97 Rules of Court : ICJ can require one party to bear all costs + issue an order for this

4/ ICJ has never asked one party to bear all costs, so we do not know which special circumstances may justify such an order

43
Q

What are some possible consequences of the rules on the bearing of costs by one party ? (3)

A

1/ affect States’ incentives to resort to litigation

2/ impact kinds of expenses parties are willing to pay during proceedings

3/ impact decision of parties to settle

44
Q

What did the 4 judges consider in their joint declaration on the “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ? (2)

A

1/ NIC was not litigating in good faith

2/ it should have been sanctioned for this, i.e. it should have borne the costs of CR

45
Q

What is one of the potential negative consequences of the “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ?

A

it could encourage and incentivise unilateral actions and self-help

46
Q

What was the main issue in the “United States – Continued Suspension of Obligations in the EC – Hormones Dispute” case ? (AB, 2008)

A

How should parties resolve a disagreement about whether an inconsistent measure has been removed ?

=> Main discussion is about meaning of Art. 21.5 DSU

47
Q

How did AB interpret the term “DS procedures” figuring in Art. 21.5 ? (3)

A

1/ when there is a dispute about compliance, it must in principle be brought back before original panel

2/ except when parties consent to another form of “DS procedures” (i.e. arbitration, mediation, conciliation, consultation, good offices)

3/ as such, when there is no consent, recourse to the original panel is compulsory

48
Q

How did AB justify its decision that in the absence of consent, a dispute about compliance must be referred to the original panel ? (2)

A

1/ quicker (panellists already know facts of case, shorter time frame of 90 days)

2/ this is logical and follows the continuum of events (follow-up on compliance)

49
Q

What does Art. 23 DSU provide for ? (3)

A

1/ WTO is exclusive forum for DS under WTO covered agreements

2/ this requires adherence to rules set out in DSU

3/ as such, parties cannot make unilateral determinations that another party is not in compliance with its obligations

50
Q

What does Art. 22.8 DSU provide for ? (2)

A

1/ suspension of concessions and other obligations is temporary

2/ suspension can only last until inconsistent measure is removed

51
Q

What did the AB think of EC’s argument that AB should presume good faith compliance when a new measure is adopted ? (3)

A

1/ AB rejected this argument

2/ it is the duty of the DSB to determine whether substantive compliance has been achieved

3/ as such, the duty to cease suspension of concessions and other obligations is not triggered until the DSB has made such a determination

52
Q

Why did AB consider that the DSB must be the organ to determine whether there has been substantive compliance ? (2)

A

1/ if parties could determine it themselves, would weaken effectiveness of WTO system

2/ there must be security and predictability in the multilateral trade system

53
Q

Similarities / differences between countermeasures and suspension of concessions ?

A

1/ both temporary

2/ but WTO members may not decide for themselves when they may undertake/end a suspension of concessions (i.e. no self-help)

International Dispute Settlement (7 decks)

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