International Public Law Developments

“The World Court, ICC and Genocide”

On January 23, 2020, the International Court of Justice (“World Court” or “ICJ”) accepted jurisdiction and ordered protective measures against Myanmar and its campaign of ethnic-cleansing which has forced 740,000 Rohingyas to flee to Bangladesh and 600,000 Rohingyas to remain in camps in Myanmar.

Controversy preceded this order about whether the ICJ—rather than the International Criminal Court (ICC)–was the proper forum to address genocide and which country would prosecute genocide against Myanmar.   The case was brought in the ICJ because Myanmar is not an ICC member.   In such cases, only the UN Security Council can bring an action in the ICC, and it was understood that China, a Security Council Permanent Member, would veto such action supporting Myanmar.   On the other hand, the ICJ, a forum for Country v. Country disputes, was viewed as the appropriate court.   

The issue of standing also arose.   Through a unique set of coincidences, The Gambia (a small, unrelated country in Africa) volunteered to bring the action in the ICJ on an erga omnes partes basis, which the Court accepted pursuant to the application of the Genocide Convention. See icj-cij.org;  and www.hrw.org/new/2020/01/27/interview-landmark-world-court-order-protects-rohingya-genocide.   [Ed.]

What’s Happening at the International Criminal Court (ICC)? *

The Appeals Chamber of the ICC considered an appeal of Pre-Trial Chamber II’s decision not to authorize the Prosecutor to proceed with an investigation of the Situation in Afghanistan, based on the “interests of justice” and potential lack of cooperation from any of the parties. The prosecutor and attorneys for victims appealed. There was an oral ruling that the victims lacked standing but otherwise the decision is pending.

Ms. Bensouda, the ICC prosecutor, concluded following preliminary examination that all statutory criteria for opening an investigation existed regarding the situation in Palestine (allegations of war crimes, crimes against humanity in Gaza and the West Bank), and requested a ruling regarding territorial jurisdiction from Pre-Trial Chamber I.

Pre-Trial Chamber II confirmed charges of war crimes and crimes against humanity against Alfred Yekatom and Patrice-Edouarde Ngaissona for activities in the Central African Republic.

The trial of Al Hassan, accused of crimes against humanity in Mali, is set to commence in July 2020. The Assembly of States Parties voted to include starvation used as a weapon of war as a war crime in non-international conflicts (it was already a war crime in international conflicts.)   See icc-cpi.int to follow ICC developments.

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*Contributed by Sean Butler,  Attorney, Los Angeles; Chair, Alliance for the International Criminal Court.

International Day of Endangered Lawyers

January 24^th was the International Day of Endangered Lawyers (IDEL).   Founded ten years ago by the non-profit IDEL Foundation (see: www.dayoftheendangeredlawyer.eu), the Day focuses on governmental abuses of lawyers performing the work of their profession.  The Holland-based IDEL Foundation “promote[s] the unobstructed practise of lawyers’ profession anywhere in the world who, under repressive regimes come to the defence or support of clients whose human rights are at stake.”  In recent years, the Foundation has focused on, China (’17), Egypt (’18), and Turkey (’19).   This year the focus is on Pakistan and its continuing abuses of lawyers, judges, law professors, and others related to the practice of law.  [Ed.]  

Significant Trade Developments  

NAFTA to USMCA and New Rules for North-American Trade

 The USMCA (or “NAFTA 2.0”) was signed by the U.S., Mexico and Canada on November 30, 2019.  On December 19, 2019, the USMCA was passed by U.S. House of Representatives with a vote of 385 to 41;  the Senate pass it with a vote 89 to 10.   President Trump signed the implementing law on January 29, 2020, but it won’t be trilaterally effective until Canada endorses it (which is likely, although there are some Canadian lawmakers resisting some provisions).   The international agreement among the three countries will go into effect 90 days after Canada’s approval.  

The Agreement met early resistance in the U.S. from Labor, but ultimately it was won over when the AFL-CIO, the largest federation of labor unions in the U.S., agreed to a provision calling for an independent three-person panel of multinational, independent experts which will monitor Mexico and ensure it abides by its union rules and other protections.   Environmental groups also opposed it and still feel the revised Agreement doesn’t go far enough in preserving the environment, but the Agreement eventually received bipartisan support in Congress.

Reflecting many of the original provisions and approach of the previously negotiated Trans-Pacific Partnership (“TTP”) which was scuttled by the Trump Administration when it took office, the revised NAFTA did institute some significant changes:

• content requirements (“country of origin”) for cars—75% (under NAFTA, 62.5%) of all components in automobiles manufactured in the one or more of the three countries must be manufactured in an USMCA country;
• labor provisions specify that 40-45% of auto parts must be made by workers who earn at least $16/hour by 2023;
• intellectual property protections and some digital trade provisions indicate that copyright terms are extended to 70 years (from the prior 50) and prohibitions on duties on music and e-books, as well as protections for internet companies making them not liable for content their users produce.
• Investor-state dispute resolution provisions in NAFTA (Chapter 11) were removed, but the anti-dumping and countervailing duties (for subsidies) binational panel dispute resolution facility contained in NAFTA Chapter 19 remains.

The Agreement adds a “sunset clause” that provides USMCA will expire after 16 years and the deal is subject to a review every 6 years at which time the countries can agree to extend it. [Ed.]

U.S.-China Trade Agreement—Phase One

The international trade agreement between the U.S. and China, known as “U.S.-China Trade Agreement—Phase One”, was signed by both countries in early January 2020.   The hefty tariffs on Chinese goods, imposed by the U.S. early in the Trump Administration, will continue at a reduced rate although some are maintained.   It continues to impose 25% duties on approximately $250 billion worth of Chinese goods used by primarily U.S. manufacturers to make finished products.   A 7.5% tariff (reduced from 15%) will also apply to $120 billion of consumer goods.  Not changing is the fact that these costs are passed on to U.S. consumers and businesses purchasing such goods and add substantial costs to the products.

Over the next two years under the Agreement, China is expected to buy a minimum of $77.7 billion more of U.S. manufactured goods, $37.9 billion more of services, $32 billion more of agriculture and $52.4 billion more of energy.   It will reduce barriers to U.S. farm products and is committed to improve protection and enforcement of intellectual property rights and increase penalties for copyright theft in order to serve as a deterrent.  Limitations on the conditioning of market access on the transfer of U.S. company technology are included.   U.S. banks will also benefit since they are now able to use assets held by their parent companies to meet China’s financial requirements, rather than just the assets they hold in China.  [Ed.]

Brexit…finally (?); Now what?

The United Kingdom (UK) formally left the European Union (EU) on January 31, 2020.   What follows is an 11 month transition period during which the UK remains in the EU’s customs union and single market, but is no longer a participant in its political institutions.

Negotiations regarding a UK-EU trade agreement commenced on Jan.31 and the deadline for extending the transition period is June 30; if there is no extension, a trade deal should be agreed to and ratified by December 31, 2020, otherwise the UK will leave the EU without a trade deal and—without the free trade access to the EU’s 27 members–will expose itself to tariffs on its exports to EU countries.

In addition to concerns about how the Brexit negotiations will work out, the UK faces future challenges of how to manage the open border between Northern Ireland and the Republic of Ireland (the UK’s only land border with the EU) and the prospects of Scottish secession.   Possibly distant from such current issues are the prospects of a U.S.-UK trade agreement, although some exploratory discussions have already commenced.  UK lawyers and those international practitioners and law firms based in London are experiencing major changes in their transnational-EU practices.  [Ed.]

There is a TransPacific Partnership (“TPP”) After all

The Trump Administration directed withdrawal from the TPP in 2017 (it was signed on Feb. 4, 2016) and never entered into force.  With the U.S. voluntarily out of the picture, Japan initiated negotiations with the remaining parties culminating in a very similar free trade agreement called the “New Comprehensive and Progressive (Free Trade) Agreement for Trans-Pacific Partnership” (“CPTPP”).

The Agreement was completed in January 2018 and the formal signing occurred on March 8, 2018 in Santiago, Chile.  The signatories are Japan, Chile, Mexico, Singapore, New Zealand, Canada, Australia and Vietnam.   Among countries expressing interest in acceding to the treaty in the future include:  the UK, Colombia, Taiwan, Indonesia, South Korea, Thailand, and—interestingly—the United States.  [Ed.]