6 : Compliance Flashcards

Question

Characteristics of reporting to UNSC ? (3)

Answer 1

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

Answer 2

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

Answer 3

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

Answer 4

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

Answer 5

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

Answer 6

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

Answer 7

1/ compliance is core feature of WTO DS system 2/ elaborate set of enforcement mechanisms

Answer 8

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

Answer 9

1/ dispute settlement (panel, AB) : Art. 19 DSU 2/ compliance : Art. 21 DSU 3/ retaliation : Art. 22 DSU

Answer 10

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

Answer 11

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

Answer 12

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)

Answer 13

1/ pact of Bogota 2/ optional clause declarations of CR and NIC

Answer 14

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

Answer 15

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

Answer 16

1/ satisfaction => violation of territorial sovereignty but no financially assessable damage 2/ compensation => dredging of caños caused material damage

Answer 17

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

Answer 18

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

Answer 19

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

Answer 20

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

Answer 21

it could encourage and incentivise unilateral actions and self-help

Answer 22

How should parties resolve a disagreement about whether an inconsistent measure has been removed ? => Main discussion is about meaning of Art. 21.5 DSU

Answer 23

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

Answer 24

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)

Answer 25

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

Answer 26

1/ suspension of concessions and other obligations is temporary 2/ suspension can only last until inconsistent measure is removed

Answer 27

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

Answer 28

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

Answer 29

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)