October-December 2008 1

Editorial

At present, we are witnessing a severe financial crisis, a crisis that manyscholars and political commentators view as the worst since the Great Depres-sion. In a little over a year, the mid-2007 subprime mortgage debacle in theUnited States of America has developed into a global financial crisis andstarted to move the global economy into a recession. Aggressive monetarypolicy initiatives and massive liquidity injections by the central banks of themajor developed countries have been unable to avert this crisis. Most devel-oped economies entered into recession during the second half of 2008, andthe economic slowdown has spread to developing countries. Several majorprojects in developing countries have been abruptly discontinued because oflack of equity and debt capital. According to the United Nations baseline

forecast, World Gross Product (WGP) is expected to slow to a meagre 1.0 per cent in 2009, a sharpdeceleration from the 2.5 per cent growth estimated for 2008.

The key challenge before the policymakers in developed and developing countries is to resolve the financialcrisis in a durable manner and to mitigate the impact of the crisis on global economic activity throughcomprehensive, coordinated and timely measures as may be appropriate. Measures must be designed notonly to restore growth and financial stability, but also to minimize the negative social impact particularly inemerging and low-income countries. The stakes are high. For developing countries, maintaining strongeconomic growth is essential to generate the necessary resources to achieve the Millennium DevelopmentGoals (MDGs). While the developing countries are doing thier best to achieve some of the goals, a corre-sponding responsibility of the developed countries are “to focus on stimulating action on aid, trade, debtrelief, new technologies and investment flows”, tardy, at best of the time hardly discharged, would sufferfurther. The challenges that have been posed by the recent financial-market turbulence are global in natureand require approaches that can be applied consistently at the global level. However, it is impossible to deriveeffective global solutions without the participation and ownership of all countries that have to implementthem.

The crisis has demonstrated that the model of development followed by the West, and which they wereprescribing and even pressurizing the developing countries to follow, has collapsed. A concept for freeenterprise and its concomitant the rapacious greed, has turned out to be a false God. India has not sufferedmuch because it had not libearlised its economy to the extent some person in the government and outsidehad wanted us to do. The policy of creating strong entities in the public sector in various sections of oureconomy has proved correct.

The Bretton Woods Institutions must be comprehensively reformed so that they can more adequately reflectchanging economic scenario in the world economy and be more responsive to future challenges. Suchreforms should also take into account the interests of the poorest countries. Emerging and developingeconomies should have greater voice in policy formation and implementation in these institutions.

Ram Niwas Mirdha

PresidentRam Niwas Mirdha

Executive PresidentProf. R. P. Anand

Vice PresidentsNarinder Singh

V. C. GovindarajC. K. Chaturvedi

TreasurerR. K. Dixit

Secretary GeneralRahmatullah Khan

DirectorManoj Kumar Sinha

INSIDE

Recent Activities ...................................... 2-3

Recent Developmentsin International Law .................................. 3-7

Recent Articles ............................................ 7

New Additions in ISIL Library ................. 7-8

Current Issue of IJIL ................................... 8

Published by:The Indian Society of International Law

V.K. Krishna Menon Bhawan,9, Bhagwan Dass Road,

New Delhi-110001 (INDIA)Tel.: 23389524, 23384458-59 Fax: 23383783

E-mail: isil@giasdl01.vsnl.net.inWebsite: www.isil-aca.org

The Indian Societyof International Law

VOL. 7, NO. 4, October-December 2008

N E W S L E T T E R

For members only

2 October-December 2008

RECENT ACTIVITIES

A SPECIAL LECTURE ONLAWS OF EUROPEAN UNIONBY PROF. JIM HANLON,PRINCIPAL LECTURER LAW,FACULTY OF LAW,SHEFFIELD HALLAMUNIVERSITY, UKISIL organised a Special Lecture on Law ofEuropean Union on 14 October 2008, at itspremises. Dr. Manoj Kumar Sinha, Director,ISIL, welcomed and introduced the chief guest,Prof. Jim Hanlon, Principal Lecturer Law,Faculty of Law, Sheffield Hallam University,UK. Prof. Hanlon analysed the process ofharmonization of European business laws and itsimplications on the markets of othersubcontinents. He said even the presentrecession would not be able to the soundprinciples which had laid the successfulharmonization of business law. The lecturewitnessed lively exchange of views with theaudience on his presentation. Dr. Manoj KumarSinha, Director, ISIL, gave vote of thanks.

FOURTH SOUTH ASIANHENRY DUNANT MEMORIALMOOT COURT COMPETITIONISIL and the International Committee of the RedCross (ICRC) organized the Fourth South AsianRegional Henry Dunant Memorial Moot CourtCompetition at ISIL premises. Dr. R. K. Dixit,Treasurer, ISIL, made opening remarks andintroduced the activities of the ISIL and Mr.Francois Stamn, Head of Regional Delegation,ICRC, also addressed on this occassion. HisExcellency Prof. (Dr.) Rahmat Mohamad,Secretary General, Asian African LegalConsultative Organisation, New Delhi, gaveinaugural address. He underscored the revival ofimportance of International Humanitarian Law(IHL) and necessity for non-state parties tobecome party of various IHL instruments. Dr.Luther Rangreji, Member, Executive Council,ISIL, gave concluding remarks. The Competitionlasted for three days from 17th October till 19th

October 2008. Countries of Bangladesh, Iran,Nepal, Pakistan, Sri Lanka and India had aNational Rounds in their respective countries andwinners of these National Rounds of HenryDunant Memorial Moot Court Competition ofeach country participated in this Fourth SouthAsian Henry Dunant Moot Court Competition(Regional Round).

The Competition was conducted in three stages,Quarter-final, Semi-final and Final Rounds. Theparticipants were judged on the basis of theirwritten memorials, appreciation of facts and law,advocacy skills, use of authorities and citations,general impression and court manners. Eminentacademicians, government officers and lawyersjudged the teams in all rounds. Hon’ble JusticeMadan B. Lokur, Justice S. Ravindra Bhat, and

Justice Dr. S. Muralidhar, Judges of Delhi HighCourt were the final round judges. GujaratNational Law University, Gujarat, India andPakistan (a team comprising of students fromfrom Gillani Law College, Bahaudin ZikriaUniversity, Multan, University of Karachi,School of Law and Policy, Lahore) were thewinner and runner-up of the competitionrespectively. Ms. Raneesha De Alwis, Facultyof Law, University of Colombo, Sri Lanka wasadjudged the Best Advocate, Ms. TanjinaSharmin, Department of Law, University ofDhaka won the Best Researcher award, TehranUniversity, Tehran, won the Best MemorialAward in this competition. Justice Madan B.Lokur gave valedictory address.

UGC REFRESHER COURSE ONHUMAN RIGHTS AND SOCIALJUSTICE, ANDINTERNATIONALHUMANITARIAN ANDREFUGEE LAWISIL organized the Second UGC RefresherCourse on Human Rights and Social Justice,and International Humanitarian and Refugee Lawfor international relations, law, and social scienceteachers from 3rd to 22nd November 2008. ShriSankar Sen, Former Director, National PoliceAcademy and Former Director-General, NationalHuman Rights Commission of India inauguratedthe Course. In his address, he highlightedsignificance of the subjects undertaken in theCourse and underlined the need to follow thecontemporary developments in human rightsdiscourse where a significant impediment to theenforcement of international law is the notion of‘state sovereignty’ or the principle that stateshave ‘supreme authority within a territory’.

Eminent professors and scholars fromprestigious universities and institutions , includingInternational Committee of the Red Cross, NewDelhi and United Nations High Commissioner forRefugee, New Delhi, delivered lectures on avariety of themes of human rights and socialjustice, and international humanitarian andrefugee law. About 30 teachers participated in thisUGC Refresher Course. Dr. A. SudhakaraReddy, Member, Executive Council, ISIL,delivered valedictory address and distributedcertificates to the participants.

12TH SOUTH ASIAN TEACHINGSESSION ON IHLThe 12th South Asian Teaching Session onInternational Humanitarian Law was jointlyorganized by the ISIL, ICRC and, AndhraUniversity, Visakhapatnam on 19-26 November2008 at Vishakapatnam, Andhra Pradesh. FourtyDelegates from Afghanisatan, Bangladesh,Bhutan, India, Iran, Maldives, Nepal, Pakistanand Sri Lanka participated in the Session.

A SPECIAL FUNCTION TOCONFER HONORARYMEMBERSHIP OF THE INDIANSOCIETY OF INTERNATIONALLAW TO HON’BLE JUDGE C.G. WEERAMANTRY, FORMERJUDGE OF THEINTERNATIONAL COURT OFJUSTICE, THE HAGUE, THENETHERLANDSISIL organised a special function to conferHonorary Membership of the Indian Society ofInternational Law to Hon’ble Judge C. G.

October-December 2008 3

FORTHCOMING EVENTSGolden Jubilee Concluding Session: SixthInternational Conference, 1-4 February 2009

UGC Refresher Course in International Law,9-28 February 2009

Special Lecture by Richard Falk, 13February 2009

Weeramantry, Former Judge of the InternationalCourt of Justice, The Hague, The Netherlands on9 December 2008, at its premises. Prof. R. P.Anand, Executive President, ISIL, welcomedand presented scroll of Honorary Membership toJudge Weeramantry. Born on 17 November1926, Judge Weeramantry has had a mostdazzling legal career spanning over 60 years;first as a lawyer and law lecturer in Sri Lankaand then as the youngest Supreme Court judgein the country. Thereafter, he joined MonashUniversity as Sir Hayden Starke Professor ofLaw in Australia. He worked as Vice Presidentof the International Court of Justice at TheHague. He was conferred the Sri Lanka’shightest National Honour, the Sri Lankabhimanya(The Pride of Sri Lanka), by His Excellency thePresident of Sri Lanka on 1st December 2007.Judge Weeramantry addressed the gathering andunderlined western dominance in the presentinternational legal order and emphasized theimportance of cross-cultural understanding; thelack of which is a prime cause of many of thetensions that exist in the world today. He drawsattention to the vital contributions of Hindu Law,Buddhist Law and Islamic Law in the past aswell as its potential for assisting towards a morejust world in future. Dr. Manoj Kumar Sinha,Director, ISIL, gave vote of thanks.

A SPECIAL LECTURE ONPRINCIPLES OF LEGALITYUNDER INTERNATIONALCRIMINAL LAW BY PROF.KENNETH S. GALLANT,WILLIAM H. BOWEN SCHOOLOF LAW, USAISIL organised a Special Lecture on Principles ofLegality under International Criminal Law on 26

December 2008, at its premises. Dr. ManojKumar Sinha, Director, ISIL, welcomed andintroduced the speaker, Prof. Kenneth S. Gallant,William H. Bowen School of Law, USA. Prof.Gallant argued that nullum crimen sine lege is afundamental principle of criminal justice and acustomary norm of international law that must beobserved in all circumstances by national andinternational tribunals. He concluded that principleof nullem crimen sine lege does not prevent acourt from interpreting and clarifying the elementsof a particular crime. The lecture witnessed livelyexchange of views with the audience on hispresentation. Dr. Manoj Kumar Sinha, Director,ISIL, gave vote of thanks.

VISIT OF STUDENTSA delegation of around 30 students fromMidnapore Law College and 40 students ofBaroda School of Legal Studies, Faculty of Law,the M. S. Univeristy of Baroda, Vadodara withfaculty members Dr. Archna Gadekar, Ms.Namrata Solanki, Mr. Sanjay Solanki, Mr. ArunDwivedi, Mr. Rajendra Chaudhari visited ISILon 11 November 2008 and 16 December 2008respectively. Dr. Manoj Kumar Sinha, Director,ISIL welcomed the students and described theactivities of ISIL to the visitors and Dr. LutherRangreji, Member, EC, ISIL , discussed theimportance of international law and careerprospect in this area.

RECENTDEVELOPMENTSThe International Law Commission held the firstpart of its sixtieth session from 5 May to 6 June2008 and the second part from 7 July to 8August 2008 at its seat at the United NationsOffice at Geneva. The session was opened byMr. Ian Brownlie, Chairman of the fifty-ninthsession of the Commission. Consideration oftopics on the agenda of the 60th session: (1)Shared Natural Resources (chp. IV of theReport): The Commission adopted two stepapproach (a) taking note of the draft articles to beannexed to its resolution and recommending thatStates concerned make appropriate bilateral andregional arrangements for the propermanagement of their transboundary aquifers onthe basis of the principles enunciated in the draftarticles; and (b) considering, at a later stage, theelaboration of a convention on the basis of thedraft articles. Having adopted a two stepapproach, it was considered premature toaddress issues relating to relationship with otheragreements and dispute settlement. (2) Effectsof armed conflicts on treaties (chp. V of theReport): The Commission provisionallyadopted, on first reading, a set of 18 draft articlesand an annex (containing a list of categories oftreaties the subject matter of which involves theimplication that they continue in operation, inwhole or in part, during armed conflict), togetherwith commentaries thereto, on the effects ofarmed conflicts on treaties and decided, inaccordance with Articles 16 to 21 of its statute, totransmit the draft articles, through the SecretaryGeneral to Governments for comments andobservations, with a request that such commentsand observations be submitted to the SecretaryGeneral by 1 January 2010. The draft articles,which apply to situations where at least one ofthe parties to a treaty is a party to an armedconflict whether international or non international,proceed on the premise of the basic principle ofcontinuity of treaty relations: the outbreak of sucharmed conflict does not necessarily terminate orsuspend the operation of treaties, and drawrelevant expository consequences therefrom.(3) Reservations to treaties (chp. VI of theReport): The Commission adopted 23 draftguidelines dealing with formulation andwithdrawal of acceptances and objections, aswell as the procedure for acceptance ofreservations, together with commentariesthereto. The main issues in the debate concernedthe relation between conditional interpretativedeclarations and reservations, as well as theeffects of silence as a reaction to an interpretativedeclaration. Given the dearth of practice withregard to reactions to interpretative declarationsand the different opinions of the members of theCommission, the Commission would be grateful

RECENT ACTIVITIES/ RECENT DEVELOPMENTS

4 October-December 2008

if States would kindly respond to the questionsbelow in their concrete pratice: (a) Are therecircumstances in which silence in response toan interpretative declaration can be taken toconstitute acquiescence in the declaration? (b) Ifso, what would those circumstances be (specificexamples would be very welcome)? (c) Ifsilence does not per se constitute acquiescencein an interpretative declaration, should it play apart in the legal effects that the declaration maybring about? Taking into account that next year’sreport will deal with, inter alia, the consequencesof interpretative declarations, what are theconsequences of an interpretative declaration for:(a) Its author; (b) A State or internationalorganization which has approved the declaration;(c) A State or organization which has expressedopposition to the declaration? More generally,what impact do the reactions - whether positiveor negative - of other States or internationalorganizations to an interpretative declaration haveupon the effects that the declaration may produce(specific examples would be very welcome)?(4) Responsibility of internationalorganizations (chp. VII of the Report): TheCommission provisionally adopted eight draftarticles, together with commentaries thereto,dealing with the invocation of the internationalresponsibility of an international organization, andconstituting chapter I of Part Three of the draftarticles concerning the implementation of theinternational responsibility of an internationalorganization. It also took note of seven draftarticles provisionally adopted by the DraftingCommittee, focusing on countermeasures andconstituting chapter II of Part Three of the draftarticles concerning the implementation of theinternational responsibility of an internationalorganization (A/CN.4/L.725/Add.1). TheCommission would welcome comments andobservations from Governments and internationalorganizations on draft Articles 46 to 53, dealingwith the invocation of the responsibility of aninternational organization. The Commissionwould also welcome comments on issuesrelating to countermeasures against internationalorganizations, taking into account the discussionof these issues, as reflected in Chapter VII of itsreport to the General Assembly. (5) Expulsionof aliens (chp. VIII of the Report): TheCommission considered the fourth report of theSpecial Rapporteur (A/CN.4/594), dealing withquestions relating to the expulsion of dual ormultiple nationals, as well as loss of nationalityor denationalization in relation to expulsion,prepared in the light of the debate in 2007.Following the debate on the report, theCommission established a Working Group toconsider the issues raised by the SpecialRapporteur in his report and it determined thatthere was no need to have separate draft articleson the matter; the necessary clarifications will bemade in the commentaries to the relevant draft

articles. The seven draft articles referred to theDrafting Committee in 2007 remain in the DraftingCommittee until all the draft articles areprovisionally adopted. See the oral progressreport given by the Chairman of the DraftingCommittee. (6) Protection of persons in theevent of disasters (chp. IX of the Report):The Commission held a debate on the basis ofthe preliminary report of the Special Rapporteur(A/CN.4/598). It also had before it amemorandum of the Secretariat, focusingprimarily on natural disasters (A/CN.4/590 andAdd.1 to 3 (to be issued)). Among the manyissues discussed were the main legal questionsto be covered by the topic, including questionsconcerning the approach to the topic, as well asits scope in terms of the subject matter, personalscope, space and time. (7) Immunity of Stateofficials from foreign criminal jurisdiction(chp. X of the Report): The Commission held adebate on the basis of the preliminary report ofthe Special Rapporteur (A/CN.4/601). Amongthe many issues discussed were the main legalquestions to be considered when defining thescope of the topic, including the officials to becovered, the nature of the acts to be covered, aswell as whether there are possible exceptions.(8) The obligation to extradite or prosecute(aut dedere aut judicare) (chp. XI of theReport): The Commission held a debate on thebasis of the third report of the Special Rapporteur(A/CN.4/603 ). Among the issues discussedwere the substantive questions related to thecustomary nature of the obligation, the relationwith universal jurisdiction and internationalcourts, as well as procedural aspects to be dealtwith in future. (9) Other decisions andconclusions of the Commission (chp. XII ofthe Report): The Commission set up thePlanning Group to consider its programme,procedures and working methods (chap. XII,sect. A). The Commission is most appreciativeof the efforts undertaken during the two day eventorganized to commemorate its sixtiethanniversary session (chap. XII, sect. A.1). TheCommission pursuant to resolution 62/70 of 6December 2007 has commented on its currentrole in promoting the rule of law (chap. XII, sect.A.2). A Working Group on the Long termprogramme of work was reconstituted, under thechairmanship of Mr. Enrique Candioti (chap. XII,sect. A.4). The Commission decided to includein its current programme of work two new topics,namely “Treaties over time” on the basis of arevised and updated proposal by Mr. G. Nolte(see annex A of the Commission’s report) and“The Most favoured Nation clause” on the basisof the report of the 2007 Working Group chairedby Mr. D.M. McRae on the subject (see annexB of the Commission’s report). In this regard, itdecided to establish at its session next year twostudy groups on the two topics (chap. XII, sect.

A.4). The Commission decided that its sixty firstsession be held in Geneva from 4 May to 5June and 6 July to 7 August 2009.

THE FOURTEENTHCONFERENCE OF THEPARTIES MEETING ANDFOURTH MEETING OF THEPARTIES SERVING ASCONFERENCE OF THEPARTIES TO THE KYOTOPROTOCOL FROM 1-12DECEMBER 2008The United Nations Climate Change Conferencein Poznan, Poland, was held from 1-12December 2008. The Conference involved aseries of events, including FourteenthConference of the Parties (COP-14) and theFourth Conference of the Parties serving as themeeting of the Parties to the Kyoto Protocol. Insupport of these two main bodies, four subsidiarybodies convened: the fourth session of the AdHoc Working Group on Long-term CooperativeAction under the Convention (AWG-LCA 4); theresumed sixth session of the Ad HocWorkingGroup on Further Commitments for Annex IParties under the Kyoto Protocol (AWG-KP 6);and the twenty-ninth sessions of the SubsidiaryBody for Implementation (SBI 29) andSubsidiary Body for Scientific and TechnologicalAdvice (SBSTA 29). These meetings resulted inthe adoption of COP decisions, COP/MOPdecisions and a number of conclusions by thesubsidiary bodies. These outcomes covered awide range of topics, including the AdaptationFund under the Kyoto Protocol, the 2009 workprogrammes of the AWG-LCA and AWG-KP,and outcomes on technology transfer, the CleanDevelopment Mechanism (CDM), capacitybuilding, national communications, financial andadministrative matters, and variousmethodological issues.

The main focus in Poznañ, however, was onlong-term cooperation and the post-2012 period,when the Kyoto Protocol’s first commitmentperiod expires. In December 2007, negotiatorsmeeting in Bali had approved the Bali ActionPlan and Roadmap setting COP 15 in December2009 as the deadline for agreeing on aframework for action after 2012. Poznañ,therefore, marked the halfway mark towards theDecember 2009 deadline. While the Poznañnegotiations did result in some progress, therewere no significant breakthroughs, andnegotiators face a hectic 12 months of talksleading up to the critical deadline of December2009 in Copenhagen, Denmark.

One of the major breakthroughs of theConference was the creation of the Adaptation

October-December 2008 5

Fund. The developing countries would accessfinancial help for meeting concrete adaptationmeasures. The World Bank serves as trustee forthe Fund and it will provide secretarial service tothe Fund.

THE APPEALS CHAMBERCONFIRMS THE STAY OF THEPROCEEDINGS ANDREVERSES DECISION ON THERELEASE OF THOMASLUBANGA DYILO(DEMOCRATIC REPUBLIC OFTHE CONGO: THEPROSECUTOR v.S. THOMAS LUBANGA DYILO)On 21 October 2008, the Appeals Chamberdelivered its judgments in respect of two appealsof the Prosecutor against the decision to stay theproceedings (on 13 June 2008); and his appealagainst the decision ordering the unconditionalrelease of Thomas Lubanga Dyilo (on 2 July2008). The Appeals Chamber, by unanimity,dismissed the appeal and confirmed the decisionon the stay of proceedings. On 13 June 2008,the Trial Chamber had decided to stay theproceedings in respect of Mr. Lubanga Dyilo. Inthe view of the Trial Chamber, there was noprospect that a fair trial could be because theProsecutor was unable to disclose a largenumber of documents containing potentiallyexculpatory information and information relevantto the preparation of the defence. The prosecutorhad obtained the documents in question fromseveral information providers, in particular fromthe United Nations, on the condition ofconfidentiality, and these information providershad refused to consent to their disclosure to thedefence and, in most instances, to the TrialChamber. Further, the Appeals Chamber, bymajority reversed the decision of the TrialChamber I on the release of Thomas LubangaDyilo and decided to remand the matter to theTrial Chamber for new determination of thequestion of release of Mr. Lubanga Dyilo. TheTrial Chamber will have to decide in light oftoday’s judgment of the Appeals Chamberwhether Mr. Lubanga Dyilo should remain incustody or should be released with or withoutconditions, taking into account all relevant actors.

SUBMISSION TO THECOMMISSION ON THE LIMITSOF THE CONTINENTAL SHELFOn 1 December 2008, the Republic of Mauritiusand the Republic of Seychelles, and on 5December 2008, 16 December 2008, theRepublic of Suriname, the Union of Myanmarrespectively submitted to the Commission on the

Limits of the Continental Shelf, in accordancewith Article 76, paragraph 8, of the Convention,information on the limits of the continental shelfbeyond 200 nautical miles from the baselinesfrom which the breadth of the territorial sea ismeasured. It is noted that the Convention enteredinto force for Myanmar on 20 June 1996, forSuriname on 8 August 1998, for the Republic ofMauritius on 4 December 1994 and for theRepublic of Seychelles on 16 November 1994.The consideration of the submission made by theRepublic of Mauritius and the Republic ofSeychelles will be included in the provisionalagenda of the twenty-third session of theCommission to be held in New York from 2March to 9 April 2009. And the consideration ofthe submission made by Myanmar andSuriname will be included in the provisionalagenda of the twenty-fourth session of theCommission to be held in New York from 10August to 11 September 2009. Upon completionof the consideration of the submission, theCommission will make recommendationspursuant to Article 76 of the Convention.

JUDGE JOSÉ LUIS JESUS ANDJUDGE HELMUT TUERKBECAME PRESIDENT ANDVICE-PRESIDENTRESPECTIVELY OF THEINTERNATIONAL TRIBUNALFOR THE LAW OF THE SEAOn 1 October 2008, Judge José Luis Jesus waselected as President of the International Tribunalfor the Law of the Sea for the period 2008–2011by the 21 members of the Tribunal. PresidentJosé Luis Jesus has been a member of theTribunal since 1999. Judge Helmut Tuerk(Austria) was on 2 October 2008 elected asVice-President of the International Tribunal for theLaw of the Sea by the judges of the Tribunal forthe period 2008 to 2011. Vice-President Tuerkhas been a Member of the Tribunal since 2005and replaces Judge Joseph Akl. The newly-elected President of the Tribunal, José LuisJesus, conducted the election.

“INDIA — ADDITIONAL ANDEXTRA-ADDITIONAL DUTIESON IMPORTS FROM THEUNITED STATES” (DS360)The Appellate Body, on 30 October 2008, issuedits report on “India — Additional and Extra-Additional Duties on Imports from the UnitedStates” (DS360), WT/DS360/AB/R. TheAppellate Body: (a) rejected the United States’claim that the Panel limited the scope of theUnited States’ challenge to the Additional Duty asimposed only through Customs Notification 32/

2003, and the Extra-Additional Duty as imposedonly through Customs Notification 19/2006; (b)as regards the Panel’s findings with respect tothe interpretation of Articles II:1(b) and II:2(a): (i)found that the Panel erred in its interpretation thatArticle II:1(b) covers only duties or charges that“inherently discriminate against imports”; (ii)found that the Panel erred in interpreting the term“equivalent” in Article II:2(a) as requiring only aqualitative comparison of the relative function of acharge and internal tax, thereby incorrectlyexcluding quantitative considerations relating totheir effect and amount; (iii) found that the Panelerred in finding that “consistency with ArticleIII:2” is not a necessary condition in theapplication of Article II:2(a); and, consequently(iv) reversed the Panel’s findings, in paragraphs7.299, 7.394, 7.401, and 8.1 of the Panel Report,that the United States failed to establish that theAdditional Duty and the Extra-Additional Dutyare inconsistent with Articles II:1(a) and II:1(b) ofthe GATT 1994; (c) found, in the circumstancesof this case, that the United States was requiredto present arguments and evidence that theAdditional Duty and the Extra-Additional Dutyare not justified under Article II:2(a), and thatIndia, in asserting that those duties are justified,was required to adduce arguments and evidencein support of its assertion; (d) declined to makean additional finding on the United States’ claimunder Article 11 of the DSU; (e) considered thatthe Additional Duty would not be justified underArticle II:2(a) of the GATT 1994 insofar as itresults in the imposition of charges on imports ofalcoholic beverages in excess of the exciseduties applied on like domestic products; and,consequently, that this would render theAdditional Duty inconsistent with Article II:1(b) tothe extent that it results in the imposition of dutiesin excess of those set forth in India’s Schedule ofConcessions; (f) considered that the Extra-Additional Duty would not be justified underArticle II:2(a) of the GATT 1994 insofar as itresults in the imposition of charges on imports inexcess of the sales taxes, value-added taxes,and other local taxes or charges that Indiaalleges are equivalent to the Extra-AdditionalDuty; and, consequently, that this would renderthe Extra-Additional Duty inconsistent with ArticleII:1(b) to the extent that it results in the impositionof duties in excess of those set forth in India’sSchedule of Concessions; and (g) found that thePanel did not act contrary to Articles 3.2, 11, and19 of the DSU in providing “concluding remarks”in paragraph 8.2 of the Panel Report. Havingreversed the Panel’s findings in paragraph 8.1 ofthe Panel Report, and in view of its findings andconclusions above, the Appellate Body made norecommendation, in this case, to the DisputeSettlement Body pursuant to Article 19.1 of theDSU.

6 October-December 2008

THE MAYOR ANDCOMMONALTY & CITIZENSOF THE CITY OF LONDON v.ASHOK SANCHETIIN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION) ONAPPEAL FROM CENTRAL LONDON CIVILJUSTICE CENTREHIS HONOUR JUDGE KNIGHT QC 6CL05967

Neutral Citation Number: [2008] EWCA Civ1283; Case No: B2/2008/0489; Royal Courts ofJustice, Strand, London, WC2A 2LL

By a lease dated September 16, 1998 theCorporation of London let the 4th Floor, 124 NewBond Street, London W1 to ALC Press Inc., aJapanese company, for a term of years expiringon March 24, 2003. By clause 4(4)(e) thelessors and the lessee “submit to the non-exclusive jurisdiction of the competent courts ofEngland and Wales”, and the lease was to beconstrued in accordance with English law. OnApril 3, 2001, Mr Sancheti, a solicitor of Indiannationality, took an assignment of the unexpiredterm of the lease. Mr Sancheti established asolicitor’s practice at the premises. The leaseenjoyed the protection of Part II of the Landlordand Tenant Act 1954 and came to an end byservice of a notice served pursuant to section 25of the 1954 Act. The lease came to an end onOctober 15, 2004, and Mr Sancheti continued tooccupy until December 24, 2004, when MrSancheti vacated the premises. He is now inpractice in the firm of Morgan Walker at 115AChancery Lane. At that time, there was anoutstanding rent review under the Lease. Clause1(1) of the lease provided for a rent review as atMarch 24, 2002. In default of agreement theincrease in rent was to be determined by asurveyor appointed by agreement or in defaultby the President of the RCIS. In July 2002, theCorporation of London had put forward proposalsfor an increase in rent, but no agreement wasreached. In due course, Mr Last FRICS wasappointed by the President of the RICS inJanuary 2005 to determine the increased rent.On March 15, 2005, Mr Last determined theamount of the full rack rental as £13,950 perannum with effect from March 25, 2002. TheCorporation sought to recover the balance of therevised rent from Mr Sancheti, who refused topay. The case was before Lord Justice Laws,Lord Justice Richards and Lord JusticeLawrence Collins.

On May 4, 2005, Mr Sancheti served a notice ofdisputes under the BIT on the Treasury Solicitor,seeking amicable negotiation of those disputes,and notifying the Treasury Solicitor of arbitrationunder Article 9(3)(c) (ad hoc arbitration underUNCITRAL rules) if settlement was not possible.

In paragraph 8 of this letter Mr Sancheticomplained of “blatant discrimination by differentorgans and functions of the United Kingdom intheir dealing with me in my capacity as anInward Investor.? He complained ofdiscrimination by the Home Office, the LawSociety, and the judiciary. His complaintsagainst the Corporation of London were oftargeted harassment and racial discrimination,and misfeasance. On September 16, 2006 MrSancheti wrote to the Treasury Solicitor givingnotice of arbitration. Mr Sancheti’s request forarbitration relied on Articles 3(2) and 4(1), andcomplaint that he had been a victim of racialdiscrimination in relation to his application forleave to remain in the United Kingdomindefinitely and in relation to his practice as asolicitor by the Law Society. His complaints inrelation to the Corporation of London were that:(1) while occupying the premises as a tenant ofthe Corporation he had been the subject oftargeted harassment and racial discrimination tothe extent that he had to stop his legal practice toattend to their unreasonable demands, and as aresult he was finally forced to move to otherpremises; and (2) the Corporation of Londonexercised influence on the local courts to havespecific chosen judges to attend to his litigation.

The Tribunal consists of Justice Umesh ChandraBanerjee, a retired judge of the Indian SupremeCourt (appointed by Mr. Sancheti); ProfessorMichael Reisman, a professor at Yale law school(appointed by UK Government) and an arbitratoron numerous investment treaty tribunals; andH.E. Dr. Fracisco Rezek (Chairman) a Brazilianjudge and former member of the InternationalCourt of Justice. On November 18, 2004, MrSancheti had written to the Lord Mayor ofLondon seeking to invoke the BIT proceduresand alleging unfair treatment by the Corporationof London of Mr Sancheti as its tenant, and inparticular racial discrimination and manipulation ofrents. But this was plainly ineffective. MrSwaroop, for Mr Sancheti, sought to argue thatthe request for arbitration in the proceedingsagainst the United Kingdom should be read in thelight of this document and should be interpreted toinclude a claim for manipulation of rents, but thereis no basis for this argument. The court of appealrejected Sancheti’s request on the grounds thatthe Corporation of London is not a party to theBIT arbitration, nor was a “mere affiliation”between the city of London and the governmentof the United Kingdom deemed sufficient to granta stay of the court proceedings. “The fact that incertain circumstances a State may beresponsible under international law for the acts ofone of its local authorities ... does not make thatlocal authority a party to the arbitrationagreement,” writes Lord Justice LawrenceCollins. Notably, Lord Justice Collins explicitlyrejected a 1978 judgment in Roussel-Uclaf v GD

Searle & Co Ltd, arguing that it was “wronglydecided and should not be followed.” In Roussel-Uclaf v GD Searle & Co Ltd a subsidiary of apharmaceutical company was entitled to a stayof court proceedings through an arbitrationagreement held by its parent firm.

GERMANY FILES SUITAGAINST ITALY IN ICJ ONWAR REPARATIONS CLAIMSOn 24 December 2008, Germany has filed acomplaint against Italy at the United NationsInternational Court of Justice (ICJ) over Italianjudgments awarding damages to victims of Naziwar crimes on the grounds that it has alreadypaid reparations under international treaties withItaly. It also argues that as a sovereign state ithas immunity in Italian courts, and that of anyItalian is therefore unenforceable. At the sametime, it reiterated that Germany “fullyacknowledges the untold suffering inflicted onItalian men and women” during World War ll. “Inrecent years, Italian judicial bodies haverepeatedly disregarded the jurisdictional immunityof Germany as a sovereign State,” the complaintfiled with the ICJ in The Hague says, citing aruling that Italy held jurisdiction on a claim by aperson deported to Germany during the war toperform forced labour in the armaments industry.After this ruling, numerous other proceedingswere instituted before Italian courts by otherswho had suffered injury due to the war, andenforcement measures have already been takenagainst German assets in Italy, including a“judicial mortgage” on a German-Italian culturalcentre, the complaint said. It also cited “attemptsby Greek nationals to enforce in Italy a judgmentobtained in Greece on account of a massacrecommitted by German military units during theirwithdrawal in 1944.” Germany asked the ICJ toadjudge that Italy must ensure that all decisionsof its courts and other judicial authorities infringingGermany’s sovereign immunity becomeunenforceable and that in the future Italian courtsdo not entertain legal actions against Germanyfounded on such occurrences.

SINGAPORE TREATY WILLENTER INTO FORCE NEXTYEAROn 17 December 2009, Australia became thetenth country to ratify the Singapore Treaty on theLaw of Trademarks (“the Singapore Treaty”),which was adopted by member States of theUN World Intellectual Property Organization(WIPO) in March 2006. Thus, the SingaporeTreaty will enter into force on 16 March 2009.The Treaty standardizes procedural aspects oftrademark registration and licensing and isexpected to enable owners of trademarks andnational trademark authorities to take advantage

October-December 2008 7

RECENT ARTICLES/ NEW ADDITIONS IN ISIL LIBRARY

of efficiencies in using modern communicationstechnologies to process and manage evolvingtrademark rights.

UNITED NATIONS GENERALASSEMBLY AND SECURITYCOUNCIL ELECT FIVEMEMBERS OF THE COURTThe General Assembly and the Security Councilof the United Nations on 7 November 2008elected five Members of the International Court ofJustice (ICJ) for a term of office of nine years,beginning on 6 February 2009. Judges AwnShawkat Al-Khasawneh (Jordan) and RonnyAbraham (France) were re-elected as Membersof the Court. Messrs. Antônio Augusto CançadoTrindade (Brazil), Christopher Greenwood(United Kingdom of Great Britain and NorthernIreland), and Abdulqawi Ahmed Yusuf (Somalia)were elected as new Members of the Court.

RECENT ARTICLESAlderman, Kimberly L., “The Ethical Trade inCultural Property: Ethics and Law in theAntiquity Auction Industry”, ILSA Journal ofInternational and Comparative Law, vol. 14, no.3 (2008), pp. 549-570.

Anghie, Antony, “Sovereignty: Nationalism,Development and the Postcolonial State: theLegacies of the League of Nations”, TexasInternational Law Journal, vol. 41, no. 3 (2006),pp. 447-464.

Bothe, M., Environment, Development,Resources, Recueil Des Course, vol. 318(2005), pp. 333-516.

Collins, L., “Revolution and Restitution: ForeignState in National Courts (Opening Lecture,Private International Law Session, 2007)”,Recueil Des Course, vol. 326 (2007), pp. 9-72.

Dinstein, Y., “The Interation between CustomaryInternational Law and Treaties”, Recueil DesCourse, vol. 322 (2005), pp. 243-828.

Kalantry, Sital, “The Intent-to-Benefit: IndividuallyEnforceable Rights under International Treaties”,Stanford Journal of International Law, vol. 44,no. 1 (2008), pp. 63-100.

Kennedy, David, “Sovereignty: Responding toAnghie and Aravamudan”, Texas InternationalLaw Journal, vol. 41, no. 3 (2006), pp. 465-468.

Kumar, Nagesh, “Relevance and Challenges onBroader Regionalism in Asia”, India Quarterly,vol. LXIV, no. 1 (2008), pp. 79-105.

Patnaik, D. Sridhar, “Protect the Diaspora”, TheHindustan Times, 18 December 2008.

Rajgopal, Balakrishnan, “Translating HumanRights: Culture, Resistance, and the Problemsof Translating Human Rights”, TexasInternational Law Journal, vol. 41, no. 3 (2006),pp. 419-42.

Rose, Brian, “No More Whining aboutGeographical Indications: Assessing the 2005Agreement between the United States and theEuropean Community on the Trade in Wine”,Houston Journal of International Law, vol. 29,no.3 (2007), pp.731-770.

Sands, Philippe, “Lawless World: The Culturesof International Law”, Texas International LawJournal, vol. 41, no. 3 (2006), pp. 387-389.

Walsh, John H., “Institution-Based FinancialRegulation: A Third Paradigm”, HarvardInternational Law Journal, vol. 49, no. 2 (2008),pp. 381-412.

NEW ADDITIONSArti, Ajit, Ghandi’s View of Legal Justice (Deep& Deep Publications, New Delhi, 2007).

Aryal, Sharma, Interpretation of Treaties: Lawand Practice (Deep & Deep Publications, NewDelhi, 2003).

Bala, Chandan, International Court of Justice(Deep & Deep Publications, New Delhi, 2007).

Bandyopadhyay, R., Human Rights of the Non-Citizen: Law and Reality (Deep & DeepPublications, New Delhi, 2007).

Bhandari, Surendra, World Trade Organization(WTO) and Developing Countries (Deep & DeepPublications, New Delhi, 2007).

Bhatia, H. S. (ed.), International Law andPractice in Ancient India (Deep & DeepPublications, New Delhi, 1977).

Bhatia, H. S. (ed.), British Colonial Governmentin India (Deep & Deep Publications New Delhi,2001).

Bhatia, H. S., Genesis of British Power in India(Deep & Deep Publications, New Delhi, 2001).

Bhatia, H. S. (ed.), Society, Law andAdministration in Ancient India (Deep & DeepPublications, New Delhi, 2001).

Chandra, Geetanjali, Public Interest Litigationand Environmental Protection (Deep & DeepPublications, New Delhi, 2005).

Chandra, Satish, Individual Petition inInternational Law (Deep & Deep Publications,New Delhi, 1985).

Chander, Shailja, Justice V.R. Krishna Iyer onFundamental Rights and Directive Principles(Deep & Deep Publications, New Delhi, 2003).

Chatterjee, B., Environmental Law:Implementation Problems and Perspectives(Deep & Deep Publications, New Delhi, 2007).

Chaturvedi, S. K., Foreign Investment Law andIts Impact on Labour (Deep & Deep Publications,New Delhi, 2007).

Chaturvedi, S. K., Legal Control of MarinePollution (Deep & Deep Publications, NewDelhi, 1981).

Chopra, Chanchal, Foreign Investment in India:Liberalisation and WTO-The Emerging Scenario(Deep & Deep Publications, New Delhi, 2003).

Datta, C. L., General Zorawar Singh: His Lifeand Achievements in Ladakh, Baltistan and Tibet(Deep & Deep Publications, New Delhi, 1984).

Deshta, Sunil & Deshta Kiran, FundamentalHuman Rights: The Rights to Life and PersonalLiberty (Deep & Deep Publications, New Delhi,2007).

Gandhi, Jegadish, India and China in the AsianCountry: Global Economic Power Dynamics(Deep & Deep Publications, New Delhi, 2007).

Garg, M. R. and Others (eds.), EnvironmentalPollution & Protection (Deep & DeepPublications, New Delhi, 2006).

Goel, Aruna, Environmental and SanskritLiterature (Deep & Deep Publications, NewDelhi, 2003).

Govindraj, V. C., Judge Nagendra Singh of theWorld Court His contribution to the Developmentof Contemporary International Law (Deep &Deep Publications, New Delhi, 1999).

Gupta, Sushma, History of Legal Education(Deep & Deep Publications, New Delhi, 2006).

Jain, N. K., Rights to Information: Concept, Lawand Practice (Regal Publications, New Delhi,2007).

Krishnapuram, R. M., Sovereignty of Parliamentin India (Deep & Deep Publications, New Delhi,1985).

Kumar, Vijay Gandhi, The Man, His Life andVision (Regal Publication, New Delhi, 2007).

Mani, V. S. (ed.), Handbook of InternationalHumanitarian Law in South Asia (OxfordUniversity Press, New Delhi, 2007)

8 October-December 2008

Printers: Paras Printers 4648/21 Sedhumal Building, Ansari Road, Darya Ganj, New Delhi-110002

Current Issue ofIndian Journal of International Law

October – December 2008, Vol. 48, No. 3

CONTENTS

ARTICLES

Formation of International Organisations andIndia : A Historical Study

R. P. Anand

The Implications of Trade Agreementsbetween the US And Arab Countries withParticular Reference to Jordan: A Critique ofthe Current Legal Framework

Haitham A. Haloush & Bashar H. Malkawi

The Eradication of Poverty in the Era ofGlobalisation: A Human Rights Perspective

B. C. Nirmal

SHORTER ARTICLE

Children in Conflict with the Law or the Law inConflict with Children: The RehabilitationRhetoric

Anuradha Saibaba Rajesh

OFFICIAL DOCUMENTS

Asia-Pacific Trade Aqreement, 2005

The Unlawful Activities (Prevention) AmendmentAct, 2008

Mathur, Mahesh, Legal Control ofEnvironmental Pollution: Jurisprudence & LawsApplicable to Environmental Violation &Prevention (Deep & Deep Publications, NewDelhi, 1998).

Murray, C. & Other (ed.), Schmithoff’s ExportTrade: The Law and Practice of InternationalLaw (Sweet & Maxwell, London, 2007).

Nabulsi, Karma, Traditions of War: Occupation,Resistance and the Law (Oxford UniversityPress, New York, 2007).

Ntoubandl, Faustinz, Amnesty for Crimesagainst Humanity under International Law(Oxford University Press, Oxford, 2007).

Proshit, S. K., Ancient Indian Legal Philosophy:Its Relevance to Contemporary JurisprudenceThought (Deep & Deep Publications, NewDelhi, 2001).

Raj, Hans, Protection of Foreign InvestmentProperty and Nationalization in India (Deep &Deep Publications, New Delhi, 1989).

Rawat, M. S., International Trade andCommerce: Settlement of Disputes throughCommercial Arbitration (Deep & DeepPublications, New Delhi, 1985).

Sahni, Geetanjali, Globalisation and Sovereigntyof Nation States (Regal Publications, NewDelhi, 2007).

Schdeva, G. S., International Transportation:Law of Carriage by Air (Deep & DeepPublications, New Delhi, 1987).

Sharma, Suman, State Boundary Change inIndia: Constitutional Provisions andConsequences (Deep & Deep Publications,New Delhi, 1995).

Singh, Diva Kumari, Technology Change andAgricultural Development (Deep & DeepPublications, New Delhi, 1993).

Singh, Gurucharan, Pollution to Purity ofEnvironment (Deep & Deep Publications, NewDelhi, 2005).

Singh, Nirmal, Business Law (Deep & DeepPublications, New Delhi, 2006).

Singh, S. R. and Srivastava, M. P. (ed.), RiverInterlinking in India: The Dream and Reality(Deep & Deep Publications, New Delhi, 2006).

Sreenivasulu, N. S. (ed.), Intellectual PropertyRights (Regal Publications, New Delhi, 2007).

Subbain, A., Human Rights Complaints System:International and Regional (Deep & DeepPublications, New Delhi, 2003).

Subbain, A., Intellectual Property Rights:Heritage Science and under International

BOOK REVIEW

V. K. Ahuja, Law of Copyright andNeighbouring Rights: National andInternational Perspectives

T. S. N. Sastry

Punjabi University Law Journal (InauguralIssue), Vol. I, 2007

G.S. Sachdeva

SELECT ARTICLES AND NEWACQUISITIONS

New Acquisitions to the ISIL library fromOctober to December 2008

Treaties (Deep & Deep Publications, NewDelhi, 2007).

Subbian, A., Human Rights and Terrorism:Universal Dimensions and Jurisdiction (Deep &Deep Publications, New Delhi, 2005).

Supakar, S., Law of Procedure and Justice inAncient India (Deep& Deep Publications, NewDelhi, 1986).

Thakur, A. K. & Kumari, P. (eds.), Interlinking ofRiver in India: Costs and Benefits (Deep & DeepPublications, New Delhi, 2007).

Thakur, A. K., WTO and India (Deep & DeepPublications, New Delhi, 2007).

Thakur, Devendra (ed.), International Businessfor Third World Countries (Deep & DeepPublications, New Delhi, 1997).

Thakur, Kailash, Environmental Protection Lawand Policy in India (Deep & Deep Publications,New Delhi, 2005).

Thakur, Ramesh, The United Nations Peace andSecurity (Cambridge University Press, UnitedKingdom, 2008).

Tochilousky, Vladimir, Jurisprudence of theInternational Criminal Courts and the EuropeanCourt of Human Rights (Martinus, Leiden, 2008).