6 : Compliance Flashcards
What are some of the reasons we witness compliance ? (2)
1/ States consent voluntarily to binding forms of DS
2/ pragmatic way for a State to move past a dispute and depoliticise it
What are examples of possible outcomes of a judgment ? (3)
1/ finding of wrongdoing
2/ establishment of maritime/land boundaries
3/ recognition of sovereignty
What are the remedies available in the case of breach of legal obligations ? (2)
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)
What are forward-looking/prospective remedies ?
cessation and non-repetition
What are retrospective remedies ?
restitution, compensation, satisfaction
When is cessation relevant ?
relevant when State is responsible for an ongoing and continuing internationally wrongful act
Example of case in which ICJ issued an order of cessation ?
Whaling in the Antarctic (AUS v JAP)
=> order to withdraw outstanding licenses + refrain from granting further permits
What does non-repetition involve ?
appropriate assurances and guarantees of non-repetition IF the circumstances require it
What is the aim + characteristics of restitution ? (3)
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
Example of a case in which ICJ ordered restitution ?
Arrest Warrant (DRC v BEL)
=> order to cancel arrest warrant + inform authorities to stop its circulation
Characteristics of compensation ? (2)
1/ can be granted insofar restitution for damage caused is impossible/disproportionate
2/ compensation covers financially assessable damage (excludes immaterial damage)
Example of case in which compensation was granted ?
CMS v Argentina (arbitration)
=> partial award of damages to CMS
Characteristics of satisfaction ? (4)
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
Example of case in which satisfaction was provided ?
Bosnia Genocide (Bosnia v Serbia)
=> ICJ recognized Serbia failed to prevent and punish genocide
What are some characteristics of judgments/awards ? (4)
1/ binding
2/ require compliance
3/ final
4/ no possibility of appeal (except at WTO)
Characteristics of “binding character” of judgments/awards ? (4)
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
Provisions related to binding character of judgments/awards ?
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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
What is the purpose of finality of judgments/awards ?
Prevent endless litigation by same parties on same subject
=> principle of res judicata
What does compliance have to be distinguished from ?
Enforcement
What is compliance + characteristics ? (3)
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)
What is enforcement + characteristics ? (3)
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
What are the very basic enforcement procedures that exist in int legal order ? (3)
1/ reporting to court/tribunal
2/ reporting to UNGA or UNSC
3/ awarding of costs in cases of non-compliance
Rules on reporting to court/tribunal ? (2)
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)
Case in which parties had to report back to ICJ ?
The Gambia v Myanmar (2020)
=> order to file reports on all measures taken within 4 months, and every 6 months after that
Characteristics of reporting to UNSC ? (3)
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
Characteristics of reporting to UNGA ? (3)
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
Case in which reporting to UNSC and UNGA took place ? (2)
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
Characteristics of non-appearance ? (3)
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
Cases in which some parties did not appear ? (3)
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
Characteristics of procedural rules on non-appearance ? (4)
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
Characteristic of WTO compliance system ? (2)
1/ compliance is core feature of WTO DS system
2/ elaborate set of enforcement mechanisms
Characteristics of remedies in WTO system ? (3)
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
3 stages of the WTO compliance system ?
1/ dispute settlement (panel, AB) : Art. 19 DSU
2/ compliance : Art. 21 DSU
3/ retaliation : Art. 22 DSU
Characteristics of DS stage in WTO system ? (5)
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
Characteristics of compliance stage in WTO system ? (6)
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
Characteristics of retaliation in WTO system ? (7)
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)
Jurisdictional basis in “Certain Activities Carried Out by Nicaragua in the Border Area” (2015) ? (2)
1/ pact of Bogota
2/ optional clause declarations of CR and NIC
Proceedings before judgment of “Certain Activities Carried Out by Nicaragua in the Border Area” ? (3)
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
‘Certain Activities Carried out by Nicaragua’: PMO was not appropriate phase for ICJ to assess compliance. Why ? (2)
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
What reparations did ICJ order in 2015 “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ? (2)
1/ satisfaction => violation of territorial sovereignty but no financially assessable damage
2/ compensation => dredging of caños caused material damage
Why did ICJ consider it inappropriate to request appropriate assurances and guarantees of non-repetition from NIC ? (2)
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
Did ICJ accept that NIC should bear CR’s costs ? (4)
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
What are some possible consequences of the rules on the bearing of costs by one party ? (3)
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
What did the 4 judges consider in their joint declaration on the “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ? (2)
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
What is one of the potential negative consequences of the “Certain Activities Carried Out by Nicaragua in the Border Area” judgment ?
it could encourage and incentivise unilateral actions and self-help
What was the main issue in the “United States – Continued Suspension of Obligations in the EC – Hormones Dispute” case ? (AB, 2008)
How should parties resolve a disagreement about whether an inconsistent measure has been removed ?
=> Main discussion is about meaning of Art. 21.5 DSU
How did AB interpret the term “DS procedures” figuring in Art. 21.5 ? (3)
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
How did AB justify its decision that in the absence of consent, a dispute about compliance must be referred to the original panel ? (2)
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)
What does Art. 23 DSU provide for ? (3)
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
What does Art. 22.8 DSU provide for ? (2)
1/ suspension of concessions and other obligations is temporary
2/ suspension can only last until inconsistent measure is removed
What did the AB think of EC’s argument that AB should presume good faith compliance when a new measure is adopted ? (3)
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
Why did AB consider that the DSB must be the organ to determine whether there has been substantive compliance ? (2)
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
Similarities / differences between countermeasures and suspension of concessions ?
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)
