PIL Week 6

Question 1

An Arbitral Tribunal Established under the auspices of ICSIC: Bernardus Henries Funnekotter and Others v. Zimbabwe

PRESCRIBED

Answer 1

EXPROPRIATION WITHOUT COMPENSATION

When a host state directly or indirectly EXPROPRIATES assets from an foreign investor:

• was the expropriation for the PUBLIC use or interest of the host state?
• was the expropriation NON-DISCRIMINATORY?
• were the foreign investors COMPENSATED for the expropriation?

Question 2

Appellate Body of the WTO: Import prohibition of Certain Shrimp and Shrimp Products

PRESCRIBED

Answer 2

US shrimp case: only shrimps that are caught with a special net (to help turtles escape, because they are endangered) are allowed to be imported on the US market. People needed a license.

Sea turtles are an exhaustible natural resource (exceptions which allow discrimination in art. XX under b and g).

But: is there a less restrictive mean possible to achieve the same goal? It may not be arbitrary or unjustifiable (one of them is sufficient) discrimination, which would mean the discrimination is not allowed to be an exception, because of the CHAPEAU OF XX.

In this case: it was arbitrary and unjustifiable because there was no transparency for getting a certificate.
(To be arbitrary, you need transparent rules.)

Question 3

ICJ Case concerning Pulp Mills on the Rived Uruguay (Argentina v. Uruguay)

PRESCRIBED

Answer 3

Case: Argentina and Uruguay had a treaty on the use of the river Uruguay. Uruguay had given permission to companies to build pulp mills, which Argentina rendered as environmentally polluting.

Compromissory clause: ICJ

ICJ interpreted the specific prohibition of environmental pollution in the treaty in light of the customary prohibition (a state has an obligation to prevent damage to a neighboring state)

ICJ gave hands and feet to the generic obligation to prevent harm: it indicated which measures a state must take in orde to meet the obligation.

ICJ relied extensively on the RIO Declaration confirming the customary status of the principles.

Question 4

Trail Smelter dispute

Answer 4

1930’s (long before the establishment of international environmental law after the world wars)

A smelter on Canadian territory caused air pollution and damage to citizens of the USA, just over de border. The USA took legal actions. The arbitral tribunal decided (on the basis of extensive research) that Canada had an OBLIGATION to prevent damage to a neighboring state.

Question 5

GATT prohibitions and exceptions

Answer 5

Prohibition on discrimination between members in setting tariffs (art. 1: most-favored nation treatment)

Prohibition on imposing internal measures on imported goods that are different from the measures placed upon national goods of the same kind (art. 3 GATT)

• not allowed to make it difficult to import or export products compared to alike products
• same kind

Exceptions:

art. 20 GATT: measures are NOT applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination
- protection of environment, moral values, human life and rights.

Exceptions GATT NOT in EIL:

6: importer is price dumping
18: preferential trade agreements with developing countries
19: imposing supertariffs in case of an influx of goods which threatens the domestic industry
24: the creation of custom union in which no tariffs are levied

Question 6

Nuclear weapons case

Answer 6

According to the no harm principle (Nuclear Weapons case), a state may not harm another state, and also has an obligation to prevent damages to places beyond national jurisdiction, which is a reference to the High Seas.

Cant find it in EIL