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INTERNATIONAL BOARD Pratik Bakshi, President Darya Maynes, Secretary General Rosemarie Caruana, Treasurer Matea Butigan, Vice President (Competitions) Melisa Susko, Vice President (Events) Caitlin Conyers, Vice President (Publications) Charles H.W. Mak, Vice President (TIE)

EDITORIAL BOARD Aakash Kumbhat Almas Shaikh Anastasia Radu Bogdan Triado Caitlin Conyers Girish Deepak Pratik Bakshi Stuart Nannes William Seth Grundberg

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The NILS Law Review is published by the members of the Network for International Law Students (NILS). The NILS Law Review publishes material on subjects of interest to the legal profession. The NILS Law Review invites unsolicited manuscripts for publications. Such manuscripts should be sent in MS Word (.doc/.docx format) to vp-publications@nilsinternational.org. All citations and text generally conform to The Bluebook: A Uniform System of Citation (19th Edition). All rights reserved. No article or part thereof published herein may be reproduced without the prior permission of the NILS Law Review. For all matters concerning rights and permission, please contact the Vice President (Publications)

of

NILS

International

at

vp-

publications@nilsinternational.org. The views expressed in the articles published in the issue of NILS Law Review are those of the authors and in no way for they reflect the opinion of the NILS Law Review, its editors or The Network for International Law Students, at large. Recommended form of citation: (2015) 2 NILS L.R. 4


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Contents

In light of challenges regarding the Eighth and Fourteenth Amendments of the US Constitution, does capital punishment have a place in modern society? ........................................................................................................... 7 Comparative Analysis of IPR-Antitrust Regimes & Special Insight into Parallel Trade and Patent Pools .................................................................... 35 Do Military and Special Tribunals violate, or at the very least, compromise on, the Right to Fair Trial? ............................................................................ 56 Foreign intervention in Syria: A Humanitarian or Hegemonic Approach? .. 78 How Far Does the English Legal System Go To Address the Issue of Gender Equality? ....................................................................................................... 92 GMO Labeling Measures under WTO‘s Trade Law: a Jurisprudential Inquiry ..................................................................................................................... 104 Liquidated Damages as a ―Cap‖ on Liability in International Trade Contracts ..................................................................................................................... 119 Role for Sanctions in the WTO: Case for Developing Countries ............... 130

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In light of challenges regarding the Eighth and Fourteenth Amendments of the US Constitution, does capital punishment have a place in modern society? - Francesca Esposito1

INTRODUCTION Capital punishment is the ultimate penalty. The state decides that there is no other option than to take away the life of an individual for the crimes he has committed. The death penalty continues to operate in many states in the US, despite rigorous campaigns against it, generally regarding its violation of the Eighth Amendment or the Fourteenth Amendment of the US Constitution. Whilst ‗the debate over the legitimacy or propriety of the death penalty may be almost as old as the death penalty itself‘,2 the debate nevertheless continues unabated. The US should be viewed as a progressive nation, at the forefront of development, yet arguably the continued imposition of the death penalty in the majority of states is contrary to this. Indeed, it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace.3The defendant is demonised and portrayed 1

LLB Graduate, University of Warwick, Coventry, United Kingdom

2

Isaac Ehrlich, The deterrent effect of capital punishment: A question of life and death 18 NBER 1, 1 (1973). 3

Hugo A. Bedau, The Case Against the Death Penalty, AMERICAN CIVIL LIBERTIES UNION https://www.aclu.org/capital-punishment/case-against-death-penalty (last updated December 11, 2012).

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as someone who no longer possesses a place in society, and ultimately who no longer deserves to live. Society silently justifies the killing because the subject is a criminal – a label which is imposed on him and which is not looked beyond, thereby blinkering members of the justice system and the wider public. Many do not question its hypocrisy and the fact that the state is engaging in the worst act possible, nor do they question the anachronistic procedure employed. The execution is constructed as almost a theatre of horror, attended by those who possess morbid curiosity, or who simply want to see ‗justice‘ being done with their own eyes. It is shocking that such a performance remains, intensified by the methods employed the state. Surely a quick and painless death should be advocated, yet states have resorted to using untested drugs whose effects are unknown.

METHODS OF EXECUTION Historically, methods of execution were gruesome and calculated as a public spectacle to create terror and to illustrate the consequences of living an immoral life.4Indeed, ‗executions were designed to make the state‘s dealings in death majestically visible to all‘.5Hanging could be regarded as a very unpredictable method in terms of the levels of pain experienced – variables such as the position of the knot, the weather and the height of the drop all come into play.6 But Banner notes that this unpredictability was always present; the only difference was that spectators began to become upset whilst 4

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 10 (Oxford University Press 2008). 5 AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA'S DEATH PENALTY (Stanford University Press 2014). 6

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 170(Harvard University Press 2002).

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viewing the suffering of certain subjects.7 The brutality of hanging is made clear by Banner as he describes the execution of the ‗young, small and helpless‘ Stephen Clark in 1821.8 He describes the disparity between executions in the 19th Century and those carried out today. They were previously undertaken outside in public view, and embedded in ritual. Instead, nowadays, it is behind closed doors with as little ceremony as possible.9 Clark‘s killing invoked strong opinions regarding the abolition of the death penalty – ‗because of his death sentence Clark dangled in public memory far longer than he had lived on Earth‘.10Hanging began to be viewed as cruel and barbaric, leading to the development of new technologies.11 Subsequently, the electric chair was developed. It is often considered a modern, more efficient and humane alternative to hanging,12 in accordance with the general principle that ‗punishment must not involve the unnecessary and wanton infliction of pain‘.13But the American scholar Deborah Denno highlights the ‗charring of the skin (…) the drooling and vomiting (…) intense muscle spasms and contractions (…) and extensive sweating and swelling of skin tissue.‘14 This explanation undeniably contradicts this general principle.In 1924 gas chambers were introduced as Nevada sought a more humane way of executing its inmates.15The aim is to cause hypoxia –

7

Id. at 173

8

Id. at 1

9

Id. at 3 Id. at 4 11 Id. at 169 12 Id. 13 Gregg v. Georgia, 428 U.S. 153, 173 (1976). 14 Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over a Century 35 William and Mary Law Review 551 (1994). 15 Jacob Weisberg, This is Your Death, THE NEW REPUBLIC, July 1, 1991. 10

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preventing oxygen reaching the brain.16 Furthermore, the firing squad remains an option in Utah. Five shooters surround the defendant and fire. The prisoner subsequently dies as a result of blood loss caused by the rupture of the heart or a large blood vessel, or a tearing of the lungs.17 One of the newer forms of execution technology is the lethal injection, introduced in the late 1970s. It is believed to be more humane and less expensive method of execution.18In 1977, Oklahoma legislators passed the first lethal injection statute, and Texas passed a similar statue the following day.19 Lethal injection is the practice of killing a person using a lethal dose of drugs administered intravenously, which involves firstly anesthetizing the individual, before stopping the heart.20 In Callins v Collins,21 Justice Scalia remarked ‗how enviable a quiet death by lethal injection‘. Similar views are shared by the Indian Law Commission, who declare it to merely amount to ‗a prick of a needle‘. However, recently concerns have amounted that the lethal injection may actually inflict greater pain than is suspected.Indeed, a study reveals that the conventional view of lethal injection leading to an invariably peaceful and painless death is questionable.22 Perhaps it is simply that the lethal injection embodies a greater psychological distance from killing another human being, as a result of its appearance of a medical procedure as 16

Id. Id. 18 HumanRights Watch, So Long as They Die : Lethal Injections in the United States, HUMAN RIGHTS WATCH (April 2006) http://www.hrw.org/node/11414/section/2, 272. 19 Id. 20 Megan Greer, Lethal Injection: The Supreme Court enters the lethal injection debate: Hill v Mcdonough, 126 S. CT. 2096, 774 (2006). 17

21

510 U.S. 1141 (1994).

22

Teresa A. Zimmers, Jonathan Sheldon, David A. Lubarsky, Francisco LópezMuñoz, Linda Waterman, Richard Weisman, Leonidas G. Koniaris,Lethal Injection for Execution: Chemical Asphyxiation?PLoS Med 4, 4 (2007).

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opposed to an execution23 which renders it more palatable to the general public.24 Although interestingly, and rather ironically, lethal injection was originally opposed as it resembled a medical procedure.25

EIGHTH AMENDMENT: „CRUEL AND UNUSUAL‟ PUNISHMENT Under the Eighth Amendment ‗excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted‘.26 According to Ratner, cruel and unusual punishment is distinct from torture, instead encompassing acts that inflict mental or physical suffering, anguish, humiliation, fear or debasement, but do not amount to torture.27 The death penalty has been challenged on numerous occasions on the basis that it is ‗cruel and unusual‘, either within the meaning of the Eighth Amendment directly or as subsumed in the Fourteenth Amendment.In the dissenting opinion of Justice Blackmun in Furman v Georgia,28 he argues that the death penalty was an issue that was inappropriate for the judiciary to deal with.29 He emphatically states that authority to abolish capital punishment ‗should not be taken over by the judiciary in the modem guise of an Eighth

23

Richard Gabriel, It‟s time to televise executions, CNN, May 11, 2014.

24

Human Rights Watch, So Long as they Die : Lethal Injections in the United States, HUMAN RIGHTS WATCH (April 2006) http://www.hrw.org/node/11414/section/2, 272. 25 Megan Greer, Lethal Injection: The Supreme Court enters the lethal injection debate: Hill v Mcdonough, 126 S. CT. 2096, 773 (2006). 26 U.S. Const. amend. VIII. 27

Peter Danchin, Meaning/Definition: Torture, COLUMBIA (http://ccnmtl.columbia.edu/projects/mmt/udhr/article_5/meaning.html 28 408 U.S. 238 (1972). 29

UNIVERSITY,

Carol S. Steiker & Jordan M. Steiker, No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code, 89 Texas Law Review 353, 353 (2010).

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Amendment issue‘.30In Furman v Georgia31the Supreme Court declared the death penalty unconstitutional, as cruel and unusual punishment in violation of the Eighth Amendment.32 Upon receiving this news, more than 600 prisoners had been released from their death sentences, and one of the prisoners recalls – ‗we laughed, we whooped, we hollered and shook the doors‘.33 Furman influenced the speed of change, making the death penalty a salient issue.34 Brennan and Marshall had advanced the arguments that the death penalty was unconstitutional regardless of the way in which it was carried out.35 However, the Court did not hold that the death penalty was cruel and unusual punishment per se and therefore unconstitutional, but rather that it was unconstitutional because it was being applied in an arbitrary, capricious, and discriminatory manner contrary to the Eighth and Fourteenth Amendments of the US Constitution.36Whilst Furman37 can be regarded as a landmark case in its declaration of unconstitutionality, and at the time it was praised as the final elimination of capital punishment in the US,‗the victory was shortlived‘.38Thus in their decision, the Court effectively prompted states to

30 31

408 U.S. 238 (1972). Id.

32

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 231(Harvard University Press 2002). 33 Id. 34 Id. at 268. 35 Id.at 274. 36 ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 10 (Oxford University Press 2008). 37

408 U.S. 238 (1972). Hugo A. Bedau, The Case Against the Death Penalty, AMERICAN CIVIL LIBERTIES UNION https://www.aclu.org/capital-punishment/case-against-death-penalty (last updated December 11, 2012). 38

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rewrite their statutes in order to eliminate the issues that were raised.39 Subsequently, in Gregg v Georgia40 the constitutionality of death itself as an appropriate penalty was entirely focused upon. The actions of the legislature provided evidence for its acceptability, and it was also found that as a punishment it was not excessive.41 The death penalty was reaffirmed, thereby ending the moratorium imposed in Furman.42 With reference to the Eighth Amendment, the court in Furman43 also focused on the deterrent effect of punishment. The argument over whether the death penalty or life imprisonment has a greater deterrence effect has been present since the inception of prisons.44To many the deterrent effect of capital punishment is self-evident – surely an individual would consider the implications of committing a murder when the potential consequence may be forfeiting one‘s own life. However, the rarity of the imposition of the death penalty and the emotionally charged circumstances of most murders arguably counter acts this.45Previous investigations have developed evidence used to unequivocally deny the existence of any deterrent or preventive

39

Death Penalty Curricula for High School, MICHIGAN STATE UNIVERSITY COMM TECH LAB AND DEATH PENALTY INFORMATION CENTER, http://deathpenaltycurriculum.org/. (last updated, 2001). 40

428 U.S. 153 (1976). ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 32 (Oxford University Press 2008). 42 408 U.S. 238 (1972). 43 Id. 44 Id. 41

45

Daniel S. Nagin & John V. Pepper, Deterrence and the Death Penalty, NATIONAL

RESEARCH COUNCIL, 27 (2012), https://www.law.upenn.edu/live/files/1529-nagin-fullreportpdf.

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effects of capital punishment.46 Indeed, Beccaria argues that ‗it is not the intenseness of the pain that has the greatest effect on the mind, but its continuance… the death of a criminal is a terrible but momentary spectacle and therefore a less efficacious method of deterring others‘47. Nevertheless, whilst the Eighth Amendment bans the use of a form of punishment in a criminal case if it is ‗cruel and unusual‘, it remains undefined.48 Thus there is an inherent ambiguity in the phrase. In re Kemmler49 it was held that the term ‗cruelty‘ implies there is something inhuman and barbarous – something more than the mere extinguishment of life. Sarat highlights the juxtaposition of the word ‗mere‘ with the phrase ‗extinguishment of life‘ and remarks that such a statement leaves no room for mishaps that very often make execution something more than merely extinguishing life.50 The phrase has been used in three distinct, but related senses.51 The first encompasses the notion of proportionality, as illustrated by People v Mincey;52the harshest sentences must be reserved for the

46

Isaac Ehrlich, The deterrent effect of capital punishment: A question of life and death18 NBER 1, 45 (1973). 47

CESARE B. BECCARIA. AN ESSAY ON CRIMES AND PUNISHMENTS, 115 (London, 1767). 48

Lyle Denniston, Constitution Check: Does a botched execution violate the Eighth Amendment? CONSTITUTION DAILY, (May 1, 2014) http://blog.constitutioncenter.org/2014/05/constitution-check-does-a-botched-executionviolate-the-eighth-amendment/ 49 136 U.S. 436 (1890). 50

AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA'S DEATH PENALTY (Stanford University Press 2014). 51

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 232(Harvard University Press 2002). 52

(1992) 2 Cal. 4th 408.

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harshest crimes.53Despite Justice Scalia‘s rejection of the principle falling under the Eighth Amendment, a majority of the Supreme Court nevertheless finds proportionality to be an aspect of the Eighth Amendment. Even in the early 20th century, in Weems v. United States,54 the courts interpreted proportionality and unconstitutionally barbaric punishment to fall under the Eighth Amendment.55 Moreover, in Atkins,56 proportionality was referred to in the consideration of whether the execution of mentally retarded persons was unconstitutional.57 Alternatively, many use it to refer to the methods of punishment employed by the state.58 Arguably this is the most commonly held meaning of the phrase. As hanging was not considered a painful method of execution in the 18th Century, citizens in the US perceived the Eighth Amendment as a precaution, in case a future legislature wished to adopt a more severe form of punishment.59 Thus perhaps the ability of the Eighth Amendment to be invoked in the debate over the abolition of the death penalty is dependent on how one regards the US Constitution – is it a living instrument or should it be perceived in light of the time in which it was conceived? Justice Scalia seeks to find the original meaning of the text, as illustrated in his dissent in

53

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 232(Harvard University Press 2002). 54

217 U.S. 349 (1910).

55

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 35 (Oxford University Press 2008). 56

536 U.S. 304 (2002).

57

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 36 (Oxford University Press 2008). 58

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 233(Harvard University Press 2002). 59 Id. at. 234

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Atkins v Virginia,60 where he concludes that the majority opinion had ‗no support in the text or history of the Eighth Amendment‘61. But this originalist stance disregards the fact that theframers of the Constitution drafted it not just for their generation, but for future generations.62 Therefore it is living judges who possess the power to decide what amounts to cruel and unusual punishment.63 Indeed, this is consistent with the Supreme Court's determination that what constitutes ‗cruel and unusual‘ should be dependent on ‗evolving standards of decency‘.64 Methods of execution once viewed as acceptable can come to offend Eighth Amendment standards, as scientific knowledge and society's norms evolve. As Judge Harry Blackmun explained, ‗the emphasis (of the Eighth Amendment) is on man's basic dignity, on civilized precepts, and on the flexibility and improvement in standards of decency as society progresses and matures‘.65 Cases began to gradually reach the Supreme Court and broader principles were established – ‗brick by brick, they laid a foundation that lawyers would eventually use to challenge the constitutionality of the death penalty‘.66 Banner argues that interpretation should change over time to reflect changed circumstances.67 However, which sources does one refer to in deciphering what the evolving standards are, and is this limited to the

60 61

536 U.S. 304 (2002). Id.

62

JOHN D. BESSLER, CRUEL & UNUSUAL: THE AMERICAN DEATH PENALTY AND THE FOUNDERS' EIGHTH AMENDMENT317 (UPNE, 2012). 63

Id. Trop v. Dulles, 356 U.S. 86 (1958). 65 Jackson v. Bishop 268 F.Supp.804 (1967). 64

66

STUART BANNER, THE DEATH 235(Harvard University Press 2002). 67 Id. at 236.

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views of US citizens?68 Arguably international opinions, public polls and the opinions of professional organisations can be used as support, but not primacy sources. Instead, focus is on legislation and jury verdicts.69 However, this limited reliance may result in a restriction on the will of the majority, thereby amounting to a defeat of the purpose of the Eighth Amendment.70 There has been a history of cases challenging the constitutionality of execution methods. The constitutionality of hanging was considered in Campbell v. Wood,71 of execution by lethal gas in Fierro v Gomez,72 and finally,Provenzano

v.

Moore73

concerned

the

constitutionality

of

electrocution. Only the second case found a violation. Indeed, courts in the US have been increasingly hostile to challenges on the basis of fairness of trials and sentences brought by prisoners regarding capital punishment. When prisoners began bringing cases challenging methods of execution, including the most recent challenges to lethal injection, the courts have often responded with irritation and impatience.74 In the absence of guidance from the US Supreme Court, lower courts saw the cases as simply another stalling tactic by death row prisoners and thereby failed to give serious consideration to their claims.75

68

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 336 (Oxford University Press 2008). 69 Id. at 37. 70 Id. at 39. 71 (1994) 18 f. 3d.662 72

519 U.S. 918 (1996).

73

744 So.2d 413 (Fla.1999) Human Rights Watch, So Long as They Die : Lethal Injections in the United States, HUMAN RIGHTS WATCH (April 2006) http://www.hrw.org/node/11414/section/2, 272. 75 Id. 74

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As the lethal injection is the newest form of execution, challenges with regards to its constitutionality are far more recent. Challenges are often based upon claims that there is an unnecessary amount of pain inflicted due to the selection of drugs, the procedure and the absence of medically trained personnel.76 In Baze v Rees,77 the use of the lethal injection as administered in Kentucky, was challenged. It was held that ‗an isolated mishap alone does not give rise to an Eighth Amendment violation‘ as this ‗does not suggest cruelty‘ and does not indicate that the procedure used presented ‗a substantial risk of serious harm‘.78However, such incidents are clearly far from ‗isolated‘. In Hill v McDonough79it was held that inmates can challenge the state‘s method of execution.80 Many believe that this case has prompted a wider debate over the substantive merits of the lethal injection.81 Indeed, ‗in the public arena, Hill82fuelled the fire of the already contentious lethal injection debates and put the issue at the forefront of the nation‘s capital punishment litigation‘.83 As the lethal injection is now the primary method of execution, it is therefore unsurprising that it would be contested by death penalty opponents – if successful it would stall executions.84 Consequently,

76

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 49 (Oxford University Press 2008). 77 553 U.S. 35 (2008) 78 ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 49 (Oxford University Press 2008). 79 547 U.S. 573 (2006) 80 Megan Greer, Lethal Injection: The Supreme Court enters the lethal injection debate: Hill v Mcdonough, 126 S. CT. 2096, 767 (2006). 81 Id. 82 547 U.S. 573 (2006). 83 Megan Greer, Lethal Injection: The Supreme Court enters the lethal injection debate: Hill v Mcdonough, 126 S. CT. 2096, 772 (2006). 84 Id. at. 773

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the Hill85decision can be praised for its ability to act as an ‗open invitation‘ for inmates to challenge the constitutionality of the lethal injection.86 Concerns over whether the injection sufficiently protects against unnecessary pain,87 have pervaded this area. Indeed, the brutality of the lethal injection has been brought into stark view in recent cases. As a result, there will be a greater scrutiny of procedures, and hopefully an increasing responsiveness by the courts with regards to constitutional challenges.88Procedures involve the use of neuromuscular blocking agents such as pancuronium bromide. This has created a danger of masked suffering, as it prevents offenders from communicating verbally or physically, thus the offender may in fact be experiencing excruciating pain behind his paralyzed face.89 Over thirty states have thus banned its use on the euthanasia of animals,90 revealing the extent of the inhumanity of its continued use on US citizens. To make matters worse, many states refuse to retain post-mortem records of the execution procedure,91and protocols fail to provide details on the training, credentials, or experience required of the execution team.92 The absence of any form of revision of lethal injection protocols means that developments in the medical field fail to be mirrored in execution procedures.There is clear evidence of executions using lethal injection going visibly wrong, starkly illustrated by 85

547 U.S. 573 (2006). Megan Greer, Lethal Injection: The Supreme Court enters the lethal injection debate: Hill v Mcdonough, 126 S. CT. 2096, 779 (2006). 87 Carol S. Steiker& Jordan M. Steiker, No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code, 89 Texas Law Review 353, 362 (2010). 86

88

HumanRights Watch, So Long as They Die : Lethal Injections in the United States, HUMAN RIGHTS WATCH (April 2006) http://www.hrw.org/node/11414/section/2 89

Id. Id. 91 Id. 92 Id. 90

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Radelet‘s list of 36 ‗botched executions‘.93In Morales v. Hickman,94 a prisoner from California sought a stay of execution so that a full evidentiary hearing on his Eighth Amendment challenge to the state's lethal injection procedures could be conducted. He presented the court with six execution logs, which suggested that the suspects were still breathing and conscious during the administration of drugs. This debate is likely to become even more rigorous since the recent botched execution in Oklahoma. Clayton Lockett, a convicted killer, began writhing, clenching his teeth and straining to lift his head off the pillow after the first drug in the lethal injection cocktail had been administered, which was supposed to render him unconscious.95 The execution was subsequently halted, and Lockett died ten minutes later. This incident has thus reinvigorated arguments that the lethal injection amounts to a violation of the Eighth Amendment. Arguably, ‗botched executions remind us of the ferocity of the state‘s sovereign power over life itself‘.96 Botched executions directly challenge the state‘s desired presentation of capital punishment as quick, clean

and

painless,

and

raise

questions

about

the

defendant‘s

suffering.97Botched executions are prompting a fundamental rethink of the methods used, but arguably the discussion goes beyond this, thereby challenging the operation of the death penalty itself. Opponents of the death penalty will argue that no method of execution can be devised that avoids all 93

Michael L. Radelet, Examples of Post-Furman Botched Executions, DEATH PENALTY INFORMATION CENTER, (March 27, 2014), 94 415 F. Supp. 2d 1037 (N.D. Cal. 2006) 95

Katie Fretland, Clayton Lockett writhed and groaned. After 43 minutes, he was declared dead, THE GUARDIAN,April 30, 2014. 96

AUSTIN SARAT, GRUESOME SPECTACLES: BOTCHED EXECUTIONS AND AMERICA'S DEATH PENALTY (Stanford University Press 2014). 97

Id.

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risk of unnecessary pain, while proponents will seek to persuade the court that a different cocktail of drugs will work in an acceptably humane manner.98 The recent stayed execution in Missouri by lethal injection of Russell Bucklewwas undeniably influenced by the execution of Clayton Lockett. His lawyers claimed he could suffer a painful and prolonged death due to the rare congenital disorder he suffers which causes vascular tumors. There is a danger of impeding the circulation of the injection of chemicals, thereby violating his Eighth Amendment rights.99The high court‘s unusual stance with regards to Bucklew‘s case can perhaps be regarded as a landmark decision, marking one of the rare occasions in which an execution has been stayed. Significantly, this may signify ‗the possibility that the court is joining others in intensifying scrutiny of the death penalty‘. 100 However, these unique risks mean that the courts may treat this as an isolated incident, diminishing hope of similar findings in future cases. Moreover, Antonio Ginatta, a US advocacy director at Human Rights Watch, highlights the ‗short-term memory problems‘ with regards to botched executions, which clearly explains their long history.101 Once the collective outrage over Lockett‘s death subsided, the lethal injection practice resumed. Indeed, in Florida on the 18th June 2014, the execution of John Ruthell Henry marked

98

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 124 (Oxford University Press 2008). 99

Ed Pilkington, US Supreme Court grants stay of execution to Russell Bucklew, THE GUARDIAN,22 May, 2014. 100 Tim Walker, Firing squad or poison gas: America hunts for new death penalty, THE INDEPENDENT, 25 May, 2014. 101 Tierney Sneed, America Returns to the Lethal Injection Status Quo With 3 Executions in 24 Hours, US NEWS,19 June, 2014.

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the third execution in a 24-hour period since Lockett‘s death.102 This is a fierce suggestion that little is about to change, and botched executions will continue unabated. Scarcity of drugs A ‗veil of secrecy‘permeates the law surrounding the lethal injection, with many questioning the origins of drugs used in executions. In 2011, the Drug Enforcement Administration seized stockpiles of sodium thiopental in several states, citing ‗questions about how the drug was imported‘.103 Missouri, rather than disclosing its drugs and suppliers, have invoked state statutes limiting public access to correctional procedure. 104 Such secrecy has prompted The Guardian, Associated Press and the three largest Missouri newspapers to file a lawsuit regarding the alleged right of access to know ‗the type, quality and source of drugs used by a state to execute an individual in the name of the people‘ under the First Amendment.105 The drugs used in lethal injections have become increasingly scarce after the EU introduced a ban on their export to USstates where the death penalty remains in operation via the Commission Implementing Regulation (EU) No 1352/2011. The Regulation concerns the trade of certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. Indeed, ‗the Union disapproves of capital punishment in all circumstances and works towards its universal 102

Id.

103

John Ericson, Botched Execution Shows Perils Of Lethal Injection Drug Shortage, 1 NEWSWEEK GLOBAL, (May 30, 2014). 104

Id.

105

Ed Pilkington & Jon Swaine, Guardian challenges lethal injection secrecy in landmark Missouri lawsuit, THE GUARDIAN, 15 May, 2014.

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abolition‘.106 In December the EU adopted a new control on the export of certain drugs usable in execution by lethal injection. As a result, exporters need to seek appropriate permission to export to any destination outside the EU short and intermediate acting barbiturate anaesthetic agents, such as amobarbital, pentobarbital and secobarbital. The EU-wide measures have been introduced collectively in order to ensure that controls imposed by individual EU member states cannot be circumvented by the movement of drugs across the EU.107 Dieter claims that this shortage is ‗another nail in the coffin of the death penalty‘.108 However, while this ban and subsequent shortage has significantly slowed the rate of executions, as an unintended consequence it has led states to experiment with untested drugs, often from unidentified and unregulated pharmacies. In addition to this, numerous alternative execution methods are currently being considered. In March 2015 Gary Herbert signed legislation to restore use of the firing squad as a method of execution in Utah if the necessary drugs for lethal injection could not be obtained within 30 days of a scheduled execution109. Missouri are debating the return of the gas chamber. Although relatively under researched thus far, there is a possibility of introducing a new method of death by nitrogen gas. This arguably adheres to the Eighth Amendment as ‗the condemned prisoner would detect no abnormal sensation breathing the odourless, tasteless gas, and would not undergo the painful

106

Commission Implementing Regulation (EU) No 1352/2011

107

Gov.uk, Guidance: Control on torture goods GOV.UK, (January 15, 2014), https://www.gov.uk/controls-on-torture-goods 108

Tim Walker, Firing squad or poison gas: America hunts for new death penalty, THE INDEPENDENT, May 25, 2014. 109 Katie McKellar, Herbert signs firing squad alternate for executions into law, KSL, March 23, 2015.

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experience of suffocation, which is caused by a build-up of carbon dioxide in the bloodstream, not by lack of oxygen‘.110

FOURTEENTH AMENDMENT Under the Fourteenth Amendment, the state shall not ‗deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws‘.111 Issues concerning a violation of the Fourteenth Amendment can be raised with regard to discrimination on the basis of race, gender and age. Indeed, arguably the increased fragility of the American death penalty, both politically and legally, is rooted less in abstract moral dissatisfaction with the punishment than in pragmatic concerns regarding its administration.112The momentum towards restriction and restraint has been propelled by perceptions about the inability of states to implement the death penalty in an accurate, nonarbitrary, and efficacious manner.113Indeed, perhaps the most obvious objection to the death penalty relates to the fallibility of the justice system – there are potential mistakes to be made at every step of the process. In legal systems appeals operate as a safeguard – an ability to correct wrongs, yet the death penalty brutally removes this opportunity, making the possibility of killing an innocent person a very real possibility. Unsurprisingly, history

110

Tom McNichol, Death by Nitrogen, SLATE, (Slate.com, (May 22, 2014), http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/death_by_nitrogen_ gas_will_the_new_method_of_execution_save_the_death_penalty.html. 111 U.S. Const. amend. XIII. 112 Carol S. Steiker& Jordan M. Steiker, No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code, 89 Texas Law Review 353, 364 (2010). 113 Id.

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reveals a pattern of errors, worsened by the width of discretion granted to the prosecution, opening the doors to decisions based upon discrimination. Race Race and geography are major factors in the supposedly arbitrary imposition of the penalty. For instance, if the victim is white, and if the defendant is from a southern state, the death penalty is more likely to be imposed. Such discriminatory factors derive from the width of the discretion granted to the prosecution. Arguably this cannot be tolerated due to thecomplete finality of the sentence,114 as recognized by the court in Turner v Murray115. However, personal characteristics of the victim and emotional evidence relating to the impact of the crime were declared admissible in Payne v Tennessee,116 despite the fact that this does not reveal anything about the moral culpability of the defendant or his guilt. Instead, it simply runs the risk that emotion will provide the basis for the jury‘s decision, as opposed to logical reasoning.117 Race was again at the forefront inMcCleskey v. Kemp118. Despite the ‗unparalleled statistical evidence that the death penalty in Georgia was being applied in a racially influenced manner‘119, the Supreme Court heldthat racial disparities would not be recognized as a constitutional violation of ‗equal protection of the law‘ unless intentional racial discrimination against the

114

MATTHEW LIPPMAN, CRIMINAL PROCEDURE 556(Sage, 2010). 476 U.S. 28 (1986). 116 501 U.S. 808 (1991). 117 MATTHEW LIPPMAN, CRIMINAL PROCEDURE 610(Sage, 2010). 118 481 U.S. 279 (1987). 119 A E Bynam, Eighth and Fourteenth Amendments – The Death Penalty Survives 78 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 1106 (1988). 115

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defendant could be shown.120Justice Powell contended that the jury system was a safeguard against racial prejudice.121But the Eighth Amendment requires an examination of the risk that a death penalty was arbitrarily and capriciously imposed.122The court was sharply divided.123 Justice Brennan argued that the irrationality in capital sentencing has long been condemned in the Court's Eighth amendment jurisprudence. The rejection of McCleskey's evidence sent a disturbing message to a society that had formally repudiatedracism.124 Furthermore, the violation of the Fourteenth Amendment was central to Justice Blackmun‘s dissent. With reference to the ‗alarming‘125 Baldus study, he argued that racial discrimination is fundamentally at odds with our constitutional guarantee of equal protection.‘ Amongst other findings, the Baldus study found that the odds of being executed were 4.3 times greater for defendants who killed white individuals than for defendants who killed black individuals.126Bynam argues that racial bias still exists; it is the Court's duty to eradicate it to the best of its ability.127 Juveniles In April 1999, the United Nations Human Rights Commission passed a resolution supporting a worldwide moratorium on executions. The resolution

120

Death Penalty Curricula for High School, MICHIGAN STATE UNIVERSITY COMM TECH LAB AND DEATH PENALTY INFORMATION CENTER, http://deathpenaltycurriculum.org/. (last updated, 2001). 121 A E Bynam, Eighth and Fourteenth Amendments – The Death Penalty Survives 78 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 1090 (1988). 122 Id. at 1109. 123 Id. at 1084. 124 Id. 125 Id. at 1107. 126

DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI, EQUAL JUSTICE AND THE DEATH PENALTY (Boston: Northeastern University Press, 1990). 127

Id. at 1118.

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calls on countries that have not abolished the death penalty to restrict its use, including not imposing it on juvenile offenders and limiting the number of offenses for which it can be imposed.128In Roper v Simmons129 it was held that the execution of those who had committed offences as juveniles was unconstitutional, and declared international norms and practices as ‗significant confirmation of the Court's determination that the penalty is disproportionate punishment for offenders under 18‘.130This displays a further restriction of the pool of suspects susceptible to the operation of the death penalty. Mental retardation While the Supreme Court has determined that executing mentally retarded people is cruel and unusual, it has left it up to the states to determine whether a particular inmate qualifies as mentally retarded. Consequently, mentally retarded inmates are still being executed due to a lack of uniform guidelines and standards. In 1989, the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment in Penry v. Lynaugh,131and was instead a mitigating factor to be considered during sentencing. Atkins v. Virginia132 can be regarded as a landmark ruling in its finding that executing mentally retarded individuals amounts to a violation of the Eighth Amendment. The court cited the worldwide condemnation of the practice of executing the mentally retarded

128

as laid down in the UN

Death Penalty Curricula for High School, MICHIGAN STATE UNIVERSITY COMM TECH LAB AND DEATH PENALTY INFORMATION CENTER, http://deathpenaltycurriculum.org/. (last updated, 2001). 129 543 U.S. 551 (2005). 130 Id. 131 492 U.S. 302 (1989). 132 536 U.S. 304 (2002).

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safeguards among its reasons for deciding that it should now be regarded as ‗cruel and unusual punishment‘.133 Arguably the US is paternalistic in its adoption of the death penalty in its removal of those who pose a threat to the remainder of society. However, ironically it gives the defendant no chance for reform, which is particularly harmful when the defendant is a juvenile or suffering from mental retardation. Capital punishment has a retributive basis only so long as it is viewed as something which the subjects freely chose as their course of action. As crime began to be viewed as something which may be beyond the control of the subject, its appropriateness simultaneously decreased.134 Indeed, this appears to be encapsulated in the remarks of Burkett – if the crime is regarded as a symptom of an abnormal mental condition, and there is an absence of guilt, the imposition of the death penalty will thereby be regarded as immoral.135 The recent case of Hall v Florida136 revisits theissue discussed in Atkins v. Virginia137. The judgment illustrates the continuing tension among the justices with regards to the application of the ‗evolving standards of decency that mark the progress of a maturing society‘.138 Kennedy argued against the imprecision of using IQ as a measure of intellectual disability – it ‗is a condition, not a number.‘139 Perhaps this is an illustration of the trajectory towards abolition. However, one must be wary in reaching such conclusions 133

Id. STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 208(Harvard University Press 2002). 135 Id. at 211. 136 Hall v. Florida (docket number 12-10882)" SCOTUS blog. 27 May 2014. 137 536 U.S. 304 (2002), 138 Id. 139 Id. 134

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as the decision was reached by a very slim majority at 5-4, meaning there could easily be a shift in direction when a subsequent case reaches the Supreme Court. These prejudices have raised a multitude of concerns regarding their adherence to human rights. Human Rights The death penalty is the ultimate, irreversible denial of human rights; it is the premeditated and cold-blooded killing of a human being by the state.140 Even as early as the 18th Century Beccaria argued that if the state were to resort to killing in order to enforce its will, it would legitimize the very behaviour which the law sought to repress, namely the use of deadly force to settle disputes.141 The American Civil Liberties Union believes that the state should not give itself the right to kill human beings, especially when it kills with premeditation and ceremony, in an arbitrary and discriminatory manner.142Human rights law is founded upon the recognition of the inherent dignity and the equal and inalienable rights of all people, yet capital punishment is so cruel and final that such rights cannot be reconciled with the death penalty.143 Abolition is an ideal step, yet if this ideal is not achieved and the administration of the death penalty continues, the prisoner must experience minimal pain and suffering.144Indeed, this is encapsulated in the International Covenant on Civil and Political Rights and the Convention 140

Amnesty USA, Death Penalty, AMNESTY INTERNATIONAL http://www.amnestyusa.org/our-work/issues/death-penalty/international-death-penalty (last updated, 2016). 141

C B Beccaria. An Essay on Crimes and Punishments, (London, 1767), p10

142

Hugo A. Bedau, The Case Against the Death Penalty, AMERICAN CIVIL LIBERTIES UNION https://www.aclu.org/capital-punishment/case-against-death-penalty (last updated December 11, 2012). 143 HumanRights Watch, So Long as They Die : Lethal Injections in the United States, HUMAN RIGHTS WATCH (April 2006) http://www.hrw.org/node/11414/section/2, 272. 144 Id.

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against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the US is part of. While neither treaty prohibits capital punishment, prohibitions against torture and cruel, inhuman, or degrading punishment apply to the manner in which executions are carried out.145 International death penalty trends are unmistakably towards abolition. Use of the death penalty worldwide has been increasingly curtailed in international law,146 illustrated by the aforementioned ban on drugs used in the lethal injection procedure. As the death penalty has dwindled in many countries, this has drawn even greater criticism to the US system.147The topic even divides the US, with some states abolishing the death penalty and others limiting its applicability by narrowing the class of those potentially subject to it during the trial.148The United Kingdom provides a good example of how long and tortuous the road to abolition can be. The key executions of Timothy Evans, Derek Bentley and Ruth Ellis,149 invoked strong senses of public sympathy and undoubtedly contributed to the eventual abolition of the death penalty in 1965. According to the Gallup poll of 2014, 60% of the US public are in favour of the death penalty and 35% opposed to it, making it the lowest level of support in over 40 years.150 Nevertheless, this still means that nearly 2/3 of the population are supporting its continuance.

145

Id.

146

Amnesty USA, Death Penalty, AMNESTY INTERNATIONAL http://www.amnestyusa.org/our-work/issues/death-penalty/international-death-penalty (last updated, 2016). 147 STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 242(Harvard University Press 2002). 148 LINDA E. CARTER, ELLEN S. KREITZBERG AND SCOTT W. HOWE, UNDERSTANDING CAPITAL PUNISHMENT LAW1 (LexisNexis, 2012). 149 Id. 150 Gallup poll, Death Penalty (May, 2014), http://www.gallup.com/poll/1606/DeathPenalty.aspx

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Pressure has mounted on the US, often imposed by the European Courts. Indeed, ‗a perfect storm is now swirling around capital punishment in America, and it is a storm that Europe has had a strong hand in creating‘.151 In Öçalan v Turkey,152 the European Court of Human Rights (ECHR) noted that capital punishment in peacetime had come to be regarded as an unacceptable form of punishment which was no longer permissible under Article 2 of the ECHR, guaranteeing the right to life. The ECHR thus endorses the view that capital punishment amounts to a form of inhuman treatment which can ‗no longer be seen as having any legitimate place in a democratic society‘.153 The importance of the right to life is undeniable - it precedes everything. Pressure is also imposed by other countries in their refusal to cooperate with those that support the death penalty whenever extradition is required, as illustrated in the case of Soering v United Kingdom and Germany.154Furthermore, in Vinter and others v UK,155 the ECHR held that, ‗for a life sentence to remain compatible with Article 3, there must be both a prospect of release and a possibility of review‘.156This therefore ‗represents a clear steer towards a rehabilitative rationale‘.157 The EU and the Member States are opposed to the death penalty and accordingly aim for its universal abolition, which would thereby contribute to the enhancement of human dignity and the progressive realisation of 151

James Gibson & Corinna B. Lain, Europe taught America how to end the death penalty. Now maybe it finally will, THE GUARDIAN,May 5, 2014. 152

(2005) 41 EHRR 45 985 ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 27 (Oxford University Press 2008). 154 161 Eur. Ct. H.R. (ser. A) (1989). 155 [2012] ECHR 61 156 Id. at para 110 157 Claire Overman, Vinter v UK and Whether Life Should Mean Life, OXFORD HUMAN RIGHTS HUB(July 10, 2013), http://ohrh.law.ox.ac.uk/vinter-v-uk-and-whether-lifeshould-mean-life/ 153

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human rights. The abolition of the death penalty is also now a pre-condition for membership of the Council of Europe, displaying how deep the commitment to its abolition is. The US has not embraced the aspiration embodied in Article 6 of the ICCPR and UN Resolutions to abolish the death penalty, with their refusal becoming ‗one of the greatest obstacles to the acceptance of the view that this ultimate penalty inherently and inevitably violates human rights‘158. Indeed, if the US continues to execute individuals in a cruel and inhumane fashion, ‗we're no different than those lying on that gurney‘.159 Whilst liberal judges in the US have welcomed the consideration of international standards, this has resulted in backlash from the right wing. Arguably this is embodied in the theory of ‗American Exceptionalism‘, which refers to the uniquely free nature of the US, founded upon democratic ideals and personal liberty.160Calabresi emphatically states that ‗America is an exceptional nation, with an exceptional people and an exceptional role to play in the world‘.161 Therefore, recognition of this leads one to question the practicality and wisdom of foreign ideas being imposed on the US.162

CONCLUSION To conclude, an analysis of the history of methods adopted in capital punishment reveals that the US has progressed little since the 19th Century – 158

ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 35 (Oxford University Press 2008). 159 160

Leslie Marshall, Lethal Injection Questions, U.S. NEWS, April 30, 2014. Ian Tyrrell, What is American exceptionalism?, http://iantyrrell.wordpress.com/. 2009.

161

Steven G. Calabresi, A Shining City on a Hill: American Exceptionalism and the Supreme Court‟s Practice of Relying on Foreign Law, 86 B U L Rev. 1335, 1337 (2006). 162

Id.

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procedures remain barbaric, inhumane and cruel. Recent focus has been on the lethal injection and its constitutionality with reference to the ‗cruel and unusual punishment‘ clause embodied in the Eighth Amendment. In light of evidence regarding the use of neuromuscular blocking agents, the experimentation with untested drugs and most significantly, clear evidence of executions using lethal injection going visibly wrong, the barbaric process must indeed be abolished. The firm belief of Dr.Zivot, an anaesthesiologist, must be considered - ‗if capital punishment is to go on, it must set aside lethal injection, for it is time for that method to suffer its own execution‘.163Arguably the battle to find an appropriate constitutional method should come to an end. Instead, states should appeal to the arguments advanced by Justice Brennan and Marshall over forty years ago in Furman164that the death penalty is unconstitutional regardless of the way in which it is carried out. States should follow in the footsteps of many European countries and opt for its abolition.Moreover, the fallibility of the justice system, compounded by the complete finality of the death penalty means that the Fourteenth Amendment must be upheld in order to guarantee the equal treatment of every individual within the law. It is thereby vital that prejudices continue to be eradicated so that no defendant is at greater risk of being placed on the gurney simply due to his race, age or intellectual capacity. Capital punishment clearly does not have a place in modern society. Perhaps the recent stayed execution in Missouri can be regarded as a landmark case, and will hopefully prompt greater scrutiny of execution methods adopted by states, and ultimately a considerationof the value of capital punishment itself. 163

Joel B. Zivot, The Slippery Slope From Medicine to Lethal InjectionTIME (May 2, 2014) http://time.com/86310/the-slippery-slope-from-medicine-to-lethal-injection/.

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34

408 U.S. 238 (1972).

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Comparative Analysis of IPR-Antitrust Regimes & Special Insight into Parallel Trade and Patent Pools Neeati Narayan1

INTRODUCTION Competition law and Intellectual Property Rights (hereinafter referred to as ―IPR‖) mesh in concert through the financial side of novelty. IPR fortification is a strategic contrivance meant to promote improvement, which profit consumers by way of advancement of enhanced goods and services. Competition law, on the other end of spectrum, has been deemed as fundamental method in limiting market deformations, penalizing anticompetitive schemes, precluding monopoly and abuse of monopoly and providing wider choices and better qualities. Hence, it regulates the monopolistic power enshrined within IPRs so as to make sure that it not exceedingly extended to the detriment of competitive forces and consumers. IPRs are completelyexposed togeneric antitrust doctrinesasan owner is bestowed with the independence of decision in a competitive scenario and has the leeway to contract according to personal inclinations. This

1

Student of BBA LLB at Symbiosis Law School, Pune (India). The author can be reached at narayan.neeati@gmail.com.

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phenomenon of individual selection and preference is the purpose of restraints of competition. Hence, antitrust law, while it has no bearing on the existence of the IPRs and related ownership rights, functions to regulate the implementation of IPR in appropriate and legal bounds which are innately present in the domain of selectiveness granted through the rights over intellectual properties. The Agreement on Trade related aspects of Intellectual Property Rights (hereinafter referred to as ―TRIPS”) stipulates that presence of cartel phenomenonwithin ambit of IPR should not generateobstruction to business and commerce. Article 8.2 of TRIPS directs that suitablemethods are compulsory to be undertaken to avert misuse of such intellectual assets by owners and topreventprocedures which unfairly confine and curb trade or negatively influence intellectual transfer. The conditions of TRIPS have been often put under purview of several trials in the past decade and their respectiveelucidations have been based on assorted instancesspecific to each exclusive and particular case. National jurisdictions have promulgated their own sets of rules and regulations which differ on several grounds and shall be introspected by virtue of this paper.

ABUSE OF DOMINANT POSITION: THE INDIAN INTERPRETATION Section 4 of the Competition Act (hereinafter referred to as the ―Act‖)2 states that an enterprise shall not indulge in abuse of its dominant position. The

2

The Competition Act of India, 2003 published as law in the Gazette of India on April 1, 2003.

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section covers the instances of this act of abuse and as such, the definition of a dominant position has been prescribed by the Indian law as a position of strength, enjoyed by an enterprise in the relevant market, which enables it to operate independently of market forces or affects its competitors or consumers or the relevant market in its favour. We find that the Indian law has gone a step ahead from the European and Australian laws wherein unlike merely judicial decisions or quasi-judicial directions morphing the definition thereto, a specific statutory provision exists and enumerates the structural interpretation of ―dominant position‖. The instances include (a) imposing unfair or discriminatory conditions or prices in purchase or sale of goods and services3, (b) limiting their production (in terms of goods) or provision (in terms of services) or their market or their technical development and progress4, (c) indulging in practices resulting in denial of market access5, (d) concluding contracts subject to acceptance by other parties of supplementary obligations which by their nature or according to commercial usage, have no connection with the subject of such contracts6, or (e) using this position in one relevant market to enter into, or foster, other relevant market7. The word ‗abuse‘ is not defined in the Act itself8 but reference can be made to the relevant paragraph of the Competition Policy Report 9, an attempt to 3

Section 4(2)(a)(i) and (ii) of The Competition Act.

4

Section 4(2)(b)(i) and (ii) of The Competition Act .

5

Section 4(2)(c) of The Competition Act .

6

Section 4(2)(d) of The Competition Act .

7

Section 4(2)€ of The Competition Act .

8

ADIP. TALATI&NAHARS.MAHALA, COMPETITION ACT, 2002: LAW PRACTICE AND PROCEDURE77 (1st ed. 2006).

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highlight the possible acts or circumstances of this anti-competitive practice.According to this report, charging unfair prices, restriction on quantities, markets and technical development would be included within the ambit of such illegal acts. Here, an insight into the recent Ericson-Intex spat as adjudicated by the Delhi High Court over Competition Commission of India (hereinafter referred to as ―CCI‖) interference. After the brief perusal of facts, a critical analysis of prevalent laws needs to be undertaken. The Patents Act10bestowslegalfortification for mercantile misuse of patents to its owner. Section 3(5) of the Act offers exclusion in form of anticompetitive agreements and visibly indicates that nothing contained in Section 3 of the Act shall confine ―the entitlement of any person to control any contravention or to enforceacceptable provisions, as may be essential for defending any of his rights.‖ However, that does not mean that owners of protected IPRs can impose any specification under the sun. CCI can investigate into the ―equanimity and fairness‖ of the terms imposed in their covenants. In the current legal tussle, should it be established that Ericsson‘s comprehensive patent licensing agreements with prejudiced non-disclosure terms and differing terms of royalty with different parties would have a known and widespread adverse effect on competition and market welfare to the extent of abuse of dominant position, the High Court of Delhi should allow the CCI to make due investigations and adjudication in the matter. 9

Competition Commission of India.Report of the High Level Committee on Competition Policy and Law.India, 2004. 10

The Patents (Amendment) Act, 2005, published as law in the Gazette of India on April 5, 2005,Prior to these amendments, the Patents Act, 1970 (Act No. 39 of 1970) was also amended by the Patents (Amendment) Act, 1999 and the Patents (Amendment) Act, 2002 in order to comply with TRIPS mandates.

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Furthermore, discriminatory behaviour and any other exercise of market power leading to the prevention, restriction or distortion of competition would be integrated. The fine line between mere defending of respective market position or share and the anti-competitive practices of predatory pricing and other evils should be drawn carefully as it is still nascent analysis and hence, a slippery slope.

US ANTITRUST LAWS The Sherman Act, 189011 specifies12 the penalty for when a person monopolises or attempts to monopolise or combines or conspires with other persons, any part of trade or commerce across USA: (a) Fine not exceeding $ 10,000,000 in case of a corporation; or (b) Fine not exceeding $ 350,000; or (c) imprisonment not exceeding three years; or (d) both. The Clayton Act, 191413 specifies14 the discrimination in prices, services, or facilities with reference to price selection of customers, payment or acceptance of commission, favouring purchasers and knowingly inducing discriminatory price. The burden of proof, by virtue of this statutory direction, is on the person who has been charged with a violation of regulatory framework to rebut the prima facie case of such discrimination.

11

Sherman Antitrust Act, 15 U.S.C. §§ 1–7.

12

Id. at § 2.

13

Clayton Act, 15 U.S.C. §§ 12–27.

14

Id. at § 13(2).

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The Federal Trade Commission Act, 191515 within Section 45 deems unfair methods of competition to be unlawful and prescribes the methods to be utilised by the Commission to prevent such methods and establishes the jurisdiction of this Commission and methods of review thereon. Furthermore, size of the firm does not immediately determine the existence of an illegal framework, as the Doctrine of Rule of Reason16 established under the US Antitrust law specifies examination of circumstances surrounding the formation of a set combination under purview. Size alone is not an offence, but its conscious acquisition and use could put it beyond the antitrust pale17.

EUROPEAN SCENARIO The Treaty establishing the European Community (hereinafter referred to as the ―Treaty‖) within Articles 81 and 86 applies to commercial undertakings in European Union (hereinafter referred to as ―EU‖) entrusted with the operation of services of general economic interest 18 wherein the rules relating to competition shall be applied judiciously, so as to not obstruct the performance of allocated tasks or affect the development of trade.

15

Federal Trade Commission Act, 15 U.S.C §§ 41-58.

16

See Standard Oil Co. of New Jersey v. United States, 1911 221 U.S. 1; United States v. United States Steel Corp., 1920 251 U.S. 417; United States v. Alcoa, 1945 148 F.2d 416; and United States v. American Tobacco Co., 1969 221 US 106. 17

United Shoe Machinery Corp. v. United States, 1968 US 451; California Computer Products Inc. v. IBM, 1911 613 F.2d 727; Berkey Photo Inc. v. Eastman Kodak Company, 1980 603 F. 2d 263. 18

Article 86 of the Treaty Establishing the European Community (Consolidated Version) Rome Treaty, Official Journal C 325, 24/12/2002 P. 0033 - 0184.

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Reference is to be made to the provisions of the U.K. Competition Act19 wherein Section 18 gives a specific reference to and mandate against abuse of dominant position. Most instances are similar to that of its Indian statutory counterpart, giving rise to belief that the Indian legislation owes its genesis to the U.K. Act. However, instances of limitation of market access and the clause of relevant market are absent from the U.K. Legislation. The definition of dominant position also excludes the usage of the relevant market phenomenon. Classic economists object to the ability of the monopolist to pursue goals other than production and distribution of goods and services that customers are prepared to pay for with a minimum of resources.20

JUDICIAL INTERPRETATION BY EUROPEAN COURT OF JUSTICE This section investigates the definition of dominant position morphed by virtue of judicial pronouncements in the European Union. In Hoffmann La Roche v. Commission21, the Court of Justice (hereinafter referred to as the ―ECJ‖) reiterated the definition propagated by it in United Brands v. Commission22 as the position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors. 19

U.K. Competition Act, 1998published as law in the Gazette on November 9, 1998.

20

Valentine Korah, Concept of a Dominant Position within the Meaning of Article 86, C. M. L. REV. 405, 401-420 (2013). 21

Hoffmann La Roche & AG v. Commissionof the European Communities1979 E.C.R. 461.

22

United Brands v. Commission of the European Communities1978 E.C.R. 207.

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Distinction has been made between this anti-competitive practice from parallel courses of conduct which are only akin to the presence of oligopolies and their market interaction.23 Such distinction has not been revealed by virtue of the Indian counterparts due to the fact that the European market is far wider and diverse than Indian markets and as such, phenomenon of oligopoly exists in bigger clusters around that holistic region. Market share approach in terms of definition of a dominant position and abuse thereto is stressed upon in French, German and United States law. As the European laws and directives do not give a deep insight into market power and dominant position, the ECJ has made judicial examination of existence of a common set of factors which define the same24. This includes a large market share and related stability, volume of production, scale of supply, position of strength and geographical market25. The Court has been rightly concerned to analyse the relevant market but the attention has been directed towards the need for a definition, rather than on a critical analysis thereto.

CHINA‟S ANTI-MONOPOLY LAW China‘s Anti-Monopoly Law (hereinafter referred to as ―AML‖) provide similar sets of provisions for determination of dominant market position in terms of relevant market, competitor dependency control of raw material purchasing market. 23

Id. at 38.

24

Id.

25

Id. at 20.

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The market concerns against AML include the potential application to the use of IPR needing more clarity as provisions relating to dominant position were alleged to be evasive in nature. Article 17, which attempts to cataloguebehaviour analogous to so-called "illegal acts" by those with market power under U.S. antitrust law, fails to define adequately the specific types of conduct that will be considered abuses of a dominant position.26 Even though this set of law derives its genesis from the U.S. Antitrust laws, Article 17 requires firms to provide valid reasons for refusing to trade with a third party, which is inconsistent with U.S. law. This refusal to deal has been deemed to be anti-competitive27 in nature by the ECJ and Commission and hence, this statutory provision is inconsistent with its counterparts. Article 55 stipulates the regulatory framework for intersection between IPR and competition law but it offers no guidance regarding what conduct may abuse IPR. Better lucidity is requisite to guarantee that owners of IP rights will not be punished for simply carrying out their rights. In dearth of such clarification, IPR owners may fear the obligation of compulsory licensing (or obligatory disclosure of industrial data) as an endorsement for a discovery of misuse based on a simple refusal to license IP or application of conditions in IP licenses that are subsequently established to be unfair.28 This approach is inconsistent with U.S. law where, although IP holders have experienced mounting antitrust inspection over time, in general, they are free to decline dealing with others or to insert conditions into licenses.

26

J. Stephen Hariss and Rodney Ganske, Monopolisation and IP Abuse Provisions of China's AML: Concerns and Proposals, 46 A.B.A. ANTITRUST L.J.(2008). 27

Eleanor M. Fox, A Tale of Two jurisdictions and an Orphan Case: Antitrust, Intellectual Property, and Refusal to Deal, 28 FORDHAM INT'L L.J. 952 (2005). 28

Id. at 28,29.

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The AML is furthermore, taciturn on penalty for contravention of Article 55 and should elucidate the consequences of an abuse of IP rights. For example, the Article should clarify whether such consequences include nullification of the rights or compulsory licensing.

CANADIAN LAWS AND IPR-COMPETITION TUSSLE Even though the stipulation of monopolization, contained in Section 2 of the U.S. Sherman Act, is not present, per se, in Canadian statutory provisions, the condition does have distributed counterparts under Canada's Competition Act29. Sections 75 and 79 of the Competition Act which respectively address refusals to deal and abuse of dominance, encompass much of the exclusionary conduct Section 2 seeks to preclude. A review of the authorities under those sections reveals that U.S.‘s expansive approach, circumscribing the activities of monopolists, is reflected in Canadian competition law.30 However, as a second side to this approach, acceptance and implementation of US influenced approach to Sections 75 and 79 of the Competition Act has noteworthy consequences for competition law in Canadian jurisdiction.31 Two inferences are of primary importance. Firstly, Canada's extensive implementation approach with respect to denials to transact, generally, exists 29

Canada Competition Act, 1985 (Act 34 of 1985).

30

Jeffrey Brown, Paul Collins, The Aspen Case from a Canadian Competition Law Perspective, 73 A.B.A.ANTITRUSTL.J.(2005). 31

Shawn Neylan, Vicky Eatrides& Kevin Rushton, It's Not Easy Being Dominant: The Limits on the Ability of a Dominant Firm to Compete, PROFESSIONAL DEVELOPMENT PROGRAM LECTURE SERIES: CANADA'S COMPETITION REGIME (2006).

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in sheer disparity to its far more constricted approach to obligatory licensing of IPRs. Secondly, the jeopardy exists that an extensive tactic to denials to transact and abuse of dominance will inflict unnecessary and limiting restrictions on the capability of prevailing enterprises to vie, thereby reducing rather than encouraging competition. Hence, using an illustration, a one-sided denial by an enterprise to allow an IPR to a rival, and nothing more, would not breach provisions of Section 79, even though the certain and direct consequence would be considerable reduction or deterrence to competition. Sub section 5 of this statutory provision was utilised by the Tribunal in the Tele Direct decision fordeclining an assertion that the refusal to allow certain trademarks related to telephone indexes was anti-competitive.32

INTERPLAY OF THE TWO BRANCHES OF LAW The impact of IPR on competition and hence, the internal market calls for an intrinsic examination33. At the most basic level, the owner of the intellectual property has the right to exclude certain acts by potential competitors such as manufacturing and importing infringing products, as well as to impose certain obligations on contracting parties to such transactions, such as a possible limitation on the field of use.

32

Director of Investigation and Research v. Lele- Direct Publications Inc., 1997 73 C.P.R. (3d) 1. 33

Rosa Greaves, Article 86 of the E.C. Treaty and Intellectual Property Rights, HERCHEL SMITH LECTURE SERIES (1998).

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Competition rules, it has been stated by the ECJ in Consten and Grundig v. Commission34, apply in cases where the owner of IPR uses his exclusive rights to distort competition within the internal markets or abuses a dominant market position. In terms of barriers to entry, the phenomenon of exclusive rights conferred by other relevant legal provisions comes into the analytical landscape. This is the area of interaction between the differing ideologies behind IPR and competition law. The ECJ in Parke Davis v. Probel35, Deutsche Grammophon v. Metro36 has stressed that patents and related rights act as barriers to entry and the right holder enjoys a dominant position, dependant on the absence of close substitutes. It is pertinent to note here that an entity might hold a dominant position according to differing approaches but that has no bearing on the legality of such position, unless a clear cut or constructive case of abuse has been made against that enterprise.37 The existence and normal use of IPR, otherwise safeguarded by Articles 36 and 222 of the Treaty do not equate to a dominant position or abuse thereof. The burden of proof, in case of the EU judicial system, is on the body alleging the anti-competitive practice, not on the IPR owner, and the owner must be shown to be able to impede the maintenance of effective competition in a substantial part of common market.

34

Consten and Grundig v. Commission,Cases 56 & 58/64 1966 E.C.R. 299.

35

Parke Davis v. Probel,1968 E.C.R. 55.

36

Deutsche Grammophon v. Metro,1971 E.C.R. 487.

37

United Brands v. Commissionof the European Communities, 1978 E.C.R. 207.

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In the Parke Davis case38, it was stated that the phenomenon of an IPR attracting the sanctions within Article 86, depended on commercial realities of fixing prices and terms, existence of several licenses restricting competition (such as right of refusal to license which is the crux of copyrights) and the presence of substitutes in market. Further introspection was made into trying to bring out the difference between ―proper‖ and ―improper‖ usage, wherein the latter is the condition prohibited by law, evidenced by demanding excessive royalty39, dominant undertaking taking over a competitor40 or an absolute refusal to license41. Placing belief on the Treaty rule on abuse of a dominant position42, prescribed within Article 82, the ECJ took the view in Magill and IMS43 that in ―specific and extraordinary conditions IPR holders may be required to permit license to erstwhile firms, thusindicating that the primary sanction attached to IPR, i.e., the right to exclude, may bebrought under limitations prescribed by EC competition rules‖.44 Such extraordinary situations may crop up where the denial to license cannot be independently warranted and would eradicate all rivalry in a marketplace

38

United States v. Parke, Davis & Co. 1960 362 U.S. 29.

39

Eurofix-Bauco v. Hilti, Commission Decision 1988 O.J. (L 065).

40

Id. at 18.

41

Microsoft Corp. v Commission, 2007 ECR II-3601.

42

Damien Geradin, Pricing Abuses by Essential Patent Holders, 76 A.B.A. ANTITRUST L.J.(2009). 43

Radio TelefisEireannIndep. Television Publ'ns Ltd. v. Comm'n (Magilt), 1995 E.C.R. 174; IMS Health Co. OHG v. NDC Health Co., 2004 E.C.R. 1-5039. 44

Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, GUIDANCE PAPER SERIES (C 45/02 2009).

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for novel merchandise not presented by the IPR owner, but for which consumer demand remains. In its March 2004 Decision45, the European Commission placed belief on the view propounded by this case law in order to permit Microsoft to license its interoperability information to its other players in the downstream market for work-group server.46 Licensing agreements are extensively deemed to be pro-competitive47. They characteristically profit both the licensees and licensors. The proprietor gainsknowledge of novel know-how, which can be utilised by it to improvise the industrialized procedures or in the alternative implant in its merchandise to augment their functionalities. Thereafter,the licensor derivesprofits from thepreliminary research and developmentpayments that can be devoted in the invention of new equipment, which will consequently lead to supplementary proceeds, hence facilitatingcreation and sustenance of a virtuous circle of novelty. Introspecting into differing approaches to this subject matter, it must be noted that demanding and imposing elevated,and to some extent unwarranted and excessive, prices is wholly lawful and permitted under the U.S. antitrust regime.

45

Damien Geradin, Pricing Abuses by Essential Patent Holders, 76 A.B.A. ANTITRUST L.J. (2009). 46

Radio TelefisEireannIndep. Television Publ'ns Ltd. v. Comm'n (Magilt),1995 E.C.R. 1-74; IMS Health Co. OHG v. NDC Health Co., 2004 E.C.R. 1-5039. 47

European Commission. Study onGuidelines on the Application of Article 81 of the EC Treaty to Technology Transfer Agreements. (2004).

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It was noted by Hon‘ble Justice Scalia48, that ‗mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system. The opportunity to charge monopoly prices-at least for a short period-is what attracts "business acumen" in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.‘ Under EU laws where, even in the existing fact of lack of exclusionary legal agenda, the fact of imposition of unfair charges may be capable ofsignifying an abuse of a dominant position, a circumstance which is of dissimilar nature when compared to other regimes. Article 82 (a), which forbids prevailing firms from enforcing inequitable purchase or selling prices or other unfair trading circumstances, has been used at some juncture by the Commission49 to control prices under the measure of policy justifications.

PHARMACEUTICAL SECTOR: PHENOMENON OF PARALLEL TRADE Parallel trade is defined as resale of commodities between nations withoutthe sanction of the IP owners, whose rights areassociated with those commodities.50

48

Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 2004 540 U.S. 398.

49

British Leyland v. Commission, 1986 E.C.R. 3263; General Motors v. Commission 1975 E.C.R. 1367. 50

Margaret Kyle, Parallel Trade in Pharmaceuticals, 2INT‘L ANTITRUST L.J. (2008).

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Fluctuations in both commercedirectives and IPRis capable of affecting the legality of parallel trade,which will have a subsequent ‗domino-like‘ effect on the product market strategies of IP intensive firms, for instance pharmaceutical makers. The U.S. does not stand alone in giving thought to possible modifications in the legitimacy of parallel trade; other countries holding a similar foothold such as Switzerland, Australia and New Zealand have also mulled over possible revision of their policies. Furthermore, developing countries are likely to face this legal tussle in the impending times as well since parallel imports is progressing steadily into the controversial zone of the trade sector.51 This paper outlines the different approaches to this phenomenon in several countries. Tactical rejoinders by pharmaceutical firms to parallel trade have fiddled and made reasonable, the impact of price of this difference based trade, but hasled to raising many eyebrows in the scattered yet aligned field of IPR and competition law. European Union While the phenomenon of parallel trade in pharmaceutical sector remains unsanctioned in mostcountries and jurisdictions, it is now permitted within the EU as it is in alignment to their agenda for constructing a specific and single marketplace for pharmaceutical product in this regional jurisdiction. Some other facets of this agenda include consolidating rules for the approval of novel drugs and uniform acceptance and circulation of the Euro currency.

51

Id.at5.

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In particular, Article 28 of the EuropeanCommunity (EC) Treaty bans most actions that would inhibit the freemovement of goods between member states52 but Article 30 provides for some exceptions. For instance, the owner of a trademark may confine re-sale of a product which has been imported and bearing his trademark, provided that thefundamental wrapping has beensignificantly modified. Judicial decisions propounded by ECJ in the last 2-3 decades have utilised and incorporated the tenet of unrestrictedpassage of commoditieswithin the EU to introduce a scheme of ―society baseddrainage or exhaustion‖ of rights related to patents and other forms of IPR, mostly copyrights and trademarks. To sum up, the EU has institutedthis framework in terms of legal agenda, which determines that once a firm has disseminated a particular drug in the business market of any EU nation, it will notthwart the trade of that particular drug in the EU region as being conducted by any other enterprise by challenging or alleginginfringement of patent rights or trademarks, under most circumstances. Courts in EU have continually opined that vertical concurrence betweendistributors and manufacturers that forbid the phenomenon of parallel exports violateArticle 8153.However, even if fact remains that supply restraintsto restrain parallel trade arepermissible under Article 81, there prevailsthe question of whether theyare tantamount to an abuse of dominant position envisaged within Article 82.This is still a grey area in the EU legal framework. 52

Id. at 6.

53

Grundig-Consten, OJ 161/2545 1964; GERO-fabriek, OJ L16/8 1977; Johnson & Johnson, OJ L377/16 1980.

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United States of America As a rule of general jurisdiction, the U.S. does not permit parallel trade inpharmaceuticals, however no judicial decision has ruled specifically on the issueof national vs. international exhaustion of IPR.54 The US judicial decisionshave holistically respected and protected the privileges of patent owners to contain resale or parallel imports oftheir commodities, though that is not always the case. In Curtiss Aeroplane & Motor Corp. v.United Aircraft Eng‘g Corp.55,the US Circuit court opined that since the owner of IPRhad unequivocally not outlawed or barred resale into the U.S. by its licensee, the patentowner could not prevent parallel trade. After an intrinsic introspection into the legislative and executive policy framework, it can be deduced that U.S. has mulled overagreeing to the phenomenon of parallel trade in pharmaceutical sectoron numerous instances in the last decade.56 Other Countries In Asia,nations are more open toparallel trade, more so in terms of copyrights and trademarks, even whenguidelines have been unstablein the previous years. Japan formerly made use ofdoctrine of ―international exhaustion‖ in copyright, but modified the legal framework in 2005to prohibit parallel imports of music CDs.

54

R. Eisenberg, Patents, Product Exclusivity, and Information Dissemination: How Law Directs Biopharmaceutical Research and Development, 72 FORD. L. REV. 477 (2003). 55

Curtiss Aeroplane & Motor Corp. v. United Aircraft Eng'g Corp., 1920 266 F. 71.

56

Abbott Labs. & Geneva Pharm., Inc., FTC Docket Nos. C-3945, 3946 (May 22, 2000); Hoechst Marion Roussel, Inc. &Andrx Corp., FTC Docket No. 9293 (Mar. 16, 2000).

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New Zealand, in contrast, liberalizedparallel trade of copyrighted products in 1998. However, New Zealand along with Japan and Australian regimes, make exceptions for products subject to price controlsabroad, which is typically the case in pharmaceuticals.57 Switzerland

demarcates

internationallyexhausted.

Until

copyrights 2008,

Swiss

and law

trademarks applied

as

‗national

exhaustion‘ to patents.With the exception of pharmaceuticals, Swiss marketplace and policy framework now use a system ofregional exhaustion (with the European Economic Area) for patent rights.

PATENT POOLS A direct evidence of the net-net abuse effect of the dominant position is the visually manifested and specific phenomenon of patent pools. They are primarily agreements between multiple patent owners to license their patents in a mutual or third party manner. Patent pools have been in the passive warzone arena from both policy and economic viewpoint. At one instance, patent pools may have encouraging effects on marketplace competition and improvement. Through the process of sharing IPR, enterprises may develop novel products and reduce their contracting expenditure.58

57

Department of Health and Human Services.Report on Prescription Drug Importation. (Dec. 21, 2004). 58

Robert P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, Berkley L. R. (Aug., 1999), https://www.law.berkeley.edu/files/pools.pdf.

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On the other end of the spectrum, under certain conditions, patent pools might make available an opportunity for possibly anti-competitive conduct as in the case of any cooperation among rival enterprises, they entail an underlying risk of collusive behaviour. In other words, a patent pool may be regarded as a cartel. A patent pool may take the form of a joint venture, created by two or more patent holders for the purpose of sharing their intellectual property rights.59 However, both in the EU and in the US, competition authorities have acknowledged the precompetitive advantages of such mechanism, and clearance has been granted to most ofpatent pooling projects. For instance, US competition authorities, recognised that patent pools ‗provide competitive benefits by integratingcomplementary technologies, reducing transaction costs, clearing blockingpositions, and avoiding costly infringement litigation‘.60 In the Department of Justice deliberation over the Phillips Electronics and Sony collusion in terms of joint licensing of patents essential for DVD technology, it was held that the patent pool was not anti-competitive in nature because the inherent technology was not coming under the purview of unfair trade practice.61 A similar stance was taken by Taiwan Fair Trade Commission when they prima facie approved a DVD patent pool formed by

59

Ian Hargreaves, Digital Opportunity: A review of Intellectual Property and Growth (Independent Report hosted by UK Government website, 2011), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/32563/iprevie w-finalreport.pdf. 60

Department of Justice and Federal Trade Commission. Study onAntitrust guidelines for the licensing of intellectual property. (1995). 61

Department of Justice Notification 2120 http://www.justice.gov/atr/public/press_releases/1998/2120.htm.

54

of

1998,


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LG Electronics, Inc, Pioneer Corporation, Koninklijke Philips Electronics NV and Sony Corporation.62

CONCLUSION Inter alia, there is assortment of distinctive antidotes where the use (or refusal to use) an IPR averts or decreases competition excessively. The most possible and significant of these remediesfor present purposes, is the granting of compulsory IPR licenses (other than for trademarks) or, if compulsory licensing is deemed insufficient, revocation or expungement of a patent, trademark, or integrated circuit topography. The legal mechanisms across the globe should be streamlined into a uniform category because of differing stances or degrees of antitrust regulation give rise to a grey area especially in terms of patent pools, parallel trade in pharmaceutical sector. A uniform approach for intrinsic aspects of trade collusions should be undertaken by legislative bodies.

62

Ling Fan &CC Wang, TFTC approves DVD patent pool formed by LG, Pioneer, Philips

and

Sony,

ASSOCIATION

OF

CORPORATE

COUNSEL

(2008),

http://www.lexology.com/library/detail.aspx?g=f99a4d05-a874-4dc0-bfe5-4d58beb6a5a3.

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Do Military and Special Tribunals violate, or at the very least, compromise on, the Right to Fair Trial? Zariya Mushtaq1

INTRODUCTION “In societies that profess some respect for law, suspects are apprehended and brought to fair trial. I stress „suspects‟.” – Noam Chomsky. The right to fair trial is guaranteed in all countries having a strong commitment to the rule of law. This right of fair trial incorporates a number of principles, including the presumption of innocence until proven guilty, right to appeal, right to an impartial tribunal and right to a public hearing etc.2 Despite the fact that this right is one of the most historical rights 3

codified in a number of international conventions and domestic

constitutions4, it gets negated most of the times, especially during trials held 1

Student of BA.LLB. at Shaikh Ahmad Hassan School of Law, Lahore University of Management Studies, Lahore (Pakistan). 2

Lawyers Committee for Human Rights, What is a Fair Trial 16 (2000); Lewis F. Powell Jr., The Right to a Fair Trial (1965); Office of the High Commissioner for Human Rights, The Right To A Fair Trial: Part I – From Investigation To Trial (2012); Guide on Article 6 (European Court of Human Rights 2013); George P. Fletcher, With Justice for Some: Victims' Rights in Criminal Trials (1995). 3

Human Rights Review, Article 6: The Right to a Fair Trial 224 (2012).

4

International Convention for Civil and Political Rights, art. 14; Universal Declaration of Human Rights, art.10; European Convention for the Protection of Human Rights and

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under military and special tribunals. Since these tribunals are established to administer speedy justice, they often undermine the significance of the right to a fair trial. This paper will discuss the right to fair trial under the major international conventions, and how this right is neglected in Pakistan, and even in the U.S, upon administration of justice through military courts. Moreover, it will present some recommendations at the end of the paper, including the compliance of domestic laws with international treaties and principles of fair trial, guaranteeing the pre-trial and post-trial rights of the accused, and improvements in the evidentiary threshold.

HISTORY OF RIGHT TO FAIR TRIAL The basic principles that are enshrined in the right to fair trial can be traced back to the Law of the Twelve Tables- Lex Duodecim Tabularum.5The Law of Twelve Tables is the foundational legislation on the right to fair trial. 6It was written back in 455 B.C. by the Roman Republic, embodying the principle of equality among all the parties.7 It also included the right to ‗have all the parties present at a hearing‘8 and prohibition against offering of bribes

Fundamental Freedoms, art.6; The African Charter on Human And Peoples‘ Rights, art.7; American Convention on Human Rights, art.8; U.S. Const. amend. VI; Const. of Pakistan, art. 10A. 5

The first three rules were published in 455 B.C. and the remaining two were published in 449 B.C. 6

H. F Jolowicz & Barry Nicholas, Historical introduction to the study of Roman law 108 (1972). 7 8

Table 9, Law 1. Table 2, Law 1.

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to the government/judicial officers.9 These principles can all be found in modern jurisprudence and are essential for the administration of a fair trial.10 The next major document in this particular arena was Magna Carta Libertatum.11 The English nobility coerced King John to sign on this declaration back in 1215, which became the basis for later developments that were introduced in the trial process.12 According to the provisions of Magna Carta Libertatum, no person shall be dealt with but according to the provisions of the law. The declaration stated that: ―No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.‖13 All contemporary fundamental rights were clearly formulated in these two ancient legislations. Courts of the modern times, and drafters of constitutions, expounded upon the Magna Carta Libertatum in order to articulate certain rights, including the right to equal protection before the law, eradication of arbitrary detention, writ of habeas corpus and trial by a jury.14

9

Table 9, Law 3.

10

F. Powell Jr., The Right to a Fair Trial (1965); Lawyers Committee for Human Rights, What is a Fair Trial 16 (2000); Office of the High Commissioner for Human Rights, The Right To A Fair Trial: Part I – From Investigation To Trial (2012). 11

Ann Lyon, Constitutional History of the UK 39 (2003).

12

Judge Patrick Robinson, The Right to a Fair Trial in International Law, 35 Berkeley Journal of International Law (2009). 13

Magna Carta, available at http://www.constitution.org/eng/magnacar.html.

14

William Sharp McKechnie, Magna Carta. A Commentary on the great Charter of king John (1905); see E.g. U.S. Const. amend. IV.

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Another major legislation that included the right to fair trial is the Treaty of Arbroath, 1320. In this letter was enshrined the right to equality, which was later on borrowed by a number of developing democracies, including British empire and France.15 In modern times, this right to equality treasures a promise that all parties to a particular case will be given equal voice, in the form of fair trial.16 It was not up until the 18th century when the law on right to fair trial was restructured and codified. The United States (U.S.) adopted this right in 1791 through the 6thConstitutional Amendment. It allowed a person accused of a crime the right: i) to a speedy trial by an independent and impartial jury, ii) to be told the reasons and causes of his arrest, iii) to be able to call upon the witness in his/her favor, and iv) to confront the witnesses who are against him.17 The US Supreme Court, while interpreting the Amendment, stated that all trial proceedings should be carried out in a fair manner.18 The Court further declared that fairness is not an absolute concept.19Fairness in a trial, the Court opined, is the basic concept of justice.20 All these principles can be found in the jurisprudence of present time, referring to the right to defend oneself, the right to be heard, the right to have an impartial tribunal, and subjugation to the rule of law. 15

Mitchison Rosalind, A History of Scotland 38-55 (2002).

16

Stefan Trechsel, Human Rights in Criminal Proceedings 94-95 (2005).

17

U.S. Const. amend. VI.

18

Callan v. Wilson, 127 U.S. 540 (1888); Natal v. State, 139 U.S. 621 (1891); District of Columbia v. Clawans,

300 U.S. 617 (1937); Bloom v. Illinois, 391 U.S. 194 (1968); United States v. Nachtigal, 507 U.S. 1 (1993); Lewis v. United States, 518 U.S. 322 (1996) 19

Synder v. Massachusetts, 291 U.S. 97 (1934)

20

ibid.

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RIGHT TO FAIR TRIAL AND INTERNATIONAL LAW A number of international conventions and covenants provide for the right to fair trial. One of the most significant ones among them is Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of United Nations in 1948.21 Article 10 of the Declaration states: ―Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.‖22 This principle has also beenadopted under European Convention for the Protection of Human Rights and Fundamental Freedoms. The convention was adopted in 1950. Article 6 of the convention grants an accused the right to be heard within a reasonable time period.23 The Article further makes it clear that the proceedings should be in the language that the defendant understands. In addition, the convention also entitles the accused to have legal assistance at all times.24 Discourse on the right to fair trial remains incomplete without some discussion of the International Covenant on Civil and Political Rights, (ICCPR). ICCPR was adopted in 1966, and by the end of the year 1976, around 164 States had ratified it. Newly emerged independent States also ratified this convention, reflecting its true spirit. Article 14 of the ICCPR

21

Resolution 217A of the General Assembly adopted on December 10, 1948, in the UDHR.

22

ibid.

23

European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6. 24

ibid.

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provides for the minimum rights that an accused enjoys while he is on trial.25 It has been decades now but the Human Rights Committee continues to clarify and interpret the scope of this Article.26 This Article bestows certain rights upon the accused including:(i) the right to fair hearing by an impartial, independent and competent tribunal, (ii) presumption of innocence until proven guilty, (iii) communication of the nature and cause of arrest, (iv) availability of a counsel with sufficient time for the preparation of defense, (v) no undue delays in the hearing and trial, (vi) examination of witnesses, (vii) right to prevent double jeopardy, (viii) right to appeal and review. Last but not the least, the African countries also adopted a charter; The African Charter on Human and Peoples‘ Rights- enshrining the right to fair trial. The Charter was signed back in 1981. Article 7 of the charter codified the principles regarding the right to fair trial. The principles include the right to have an impartial tribunal, presumption of innocence until proven guilty, trial within a reasonable time period and right to appeal. Although this charter does not explicitly mention other components of fair trial, but the provisions are to be interpreted keeping in mind the provisions of important international conventions, including UDHR and ICCPR.27 Is Fairness Absolute? It is important to discuss the concept of fairness before discussing the right to fair trial under customary international law. The dictionary meaning of 25

International Convention on Civil and Political Rights, art 14.

26

Wolf v. Panama Communication No 289/1988 (UNHRC) and Thomas v. Jamaica Communication No 272/1988 (UNHRC). 27

Article 7 of the Charter has to be read together with Article 60, which makes it clear that the provisions of UDHR and other conventions of UN have to be applied while interpreting the Charter.

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‗Fairness‘ is to be equitable or just.28 A process does not have to be perfect in order to be categorized as fair. Fairness of a process is what Lord Diplock states in his much celebrated judgment, ―the fundamental human right not to a legal system that is infallible, but to one that is fair.‖29 Therefore, what fairness in a trial essentially means is not the assurance that the trial was perfect, but, that the accused had been given a fair chance to defend himself against the allegations put to him.30

RIGHT TO FAIR TRIAL UNDER CUSTOMARY INTERNATIONAL LAW In order for a rule to become customary international law, a wide spread state practice together with some opiniojuris is needed.31It is undisputable that right to fair trial has gained the status of customary international law, for there exists prevalent state practice with opiniojuris. Whether this right has gained the status of jus cogens32 is still a matter of controversy. According to the provisions of ICCPR, certain rights can be derogated from in times of emergencies. Article 4(2), however, clearly states that Articles 6, 7, 8, 11, 15, 16, and 18 cannot be suspended even in times of emergencies. As it does not include article 14, which deals with the right to fair trial, it can 28

10th Edition of Concise Oxford Dictionary.

29

Maharaj v. A.G. of Trinidad and Tobago1 All ER 411 (1977).

30

See Prosecutor v. Slobodan Milosevic Case No. IT 02-54International Criminal Tribunal for the former Yugoslavia (ICTY), 16 June 2004, available at: http://www.refworld.org/docid/47fdfb590.html. 31

Federal Republic of Germany v. Denmark Rep 3 (ICJ 1969), the court stated that in order for a rule to gain the status of customary international law, it should be widely and extensively practiced by States. 32

Overriding principles of international law from which no derogation is possible.

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be concluded that right to fair trial can be suspended in times of emergencies. Since right to fair trial is a derogatory right, the question that arises is whether this right enjoys the status of jus cogens. Note here that the prohibition against torture, right to life and prohibition against slavery have gained the status of jus cogens.33 The statutes and provisions on theright to have a fair trial, on the other hand, are still ambiguous. Since Article 14 is not included in the list of non-derogable rights, it poses a challenge to the claims of jus cogens made in favor of this right.34 Right to fair trial has become so significant that States rarely derogate from it.35 Even when they do suspend this right, they invariably show that the procedures and tribunals that are adopted enjoy the status of being fair under those difficult circumstances.36 It is due to these practices of States that suggest that the right to fair trial should not be derogated from, except in extreme cases.37

HOW DO MILITARY AND SPECIAL TRIBUNALS DIFFER FROM TRADITIONAL JUDICIAL SYSTEM? One of the criticisms against military tribunals is that they negate the right of defendant to have a fair trial. Military tribunals are governed by the State 33

European Convention treats the right to fair trial in a similar manner as that of ICCPR. American Convention on Human Rights and European Convention do not list the right to fair trial under non-derogable rights in times of emergencies. 34

Gideon Boas, International Criminal Procedure 138 (2011).

35

Judge Patrick Robinson, The Right to a Fair Trial in International Law, 35 Berkeley Journal of International Law (2009). 36

ibid.

37

ibid.

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military and they have a low threshold of evidence. 38Judges are mostly appointed by the army commissioners. One of the major reasons as to why these tribunals violate the right to fair trial is the presumption of guilt unless proven otherwise.39 Under international law, the defendant is held to be innocent until proven guilty; military tribunals, on the other hand, hold the defendant under scrutiny unless he proves himself to be innocent.40 Speedy trials under military tribunals are held in secrecy, most of the times, providing little or no route for an appeal or review.41It must be noted here that the secret procedure followed and the presumption of guilt made, in the case of military tribunals, are against the very principles of fair trial.

RIGHT TO FAIR TRIAL IN PAKISTAN Pakistan is one such country where the local laws provide for a right to a fair trial. Article 10A of the Constitution of Pakistan states: ―For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.‖42 Although the Constitution of Pakistan provides for right to fair trial, it also states that provisions relating to the traditional judicial system will not be applicable on trials being held under other military or special tribunals.43 38

Jennifer Elsea, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court 17 (2009). 39

ibid.

40

Richard Allen Green, Analysis: Military Tribunals, BBC News, http://news.bbc.co.uk/2/hi/americas/1701789.stm (last visited Feb 8, 2016). 41

ibid.

42

Const. of Pakistan 1973, art. 10A (emphasis added)

43

ibid.

64

2006,


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Article 175 of the Constitution of Pakistan was amended on January 7th, 2015 via the 21stAmendment,44 thus allowing the military courts to try civilians involved in certain crimes pertaining to religion. 21st Amendment It was after the Peshawar tragedy on December 16, 2014, that the public raised huge hue and cry for the establishment of military courts in Pakistan, for the reasons that the traditional courts had failed in the administration of justice. As said by the great philosopher Cicero, ―in times of war, the law falls silent.‖45 The Government of Pakistan established military tribunals by introducing the 21stAmendment in the Constitution of Pakistan. According to Article 1(3) of the Twenty-First Amendment Act, 2015, the Amendment will remain in force for a period of two years, after which it shall be considered repealed.46 Through 21stmendment, the government included 4 new laws in the First Schedule of the Constitution of Pakistan, namely: The Pakistan Army Act, 1952;47 The Pakistan Air Force Act, 1953;48 The Pakistan Navy Ordinance, 1961;49 The Protection of Pakistan Act, 2014.50

44

Const. of Pakistan 1973, amend. XXI.

45

Babar Sattar, Death Squad as Justice, Dawn News, 2014, http://www.dawn.com/news/1153700/death-squad-as-justice (last visited Feb 8, 2016). 46

ibid.

47

(XXXXIX of 1952)

48

(VI of 1953)

49

(XXXV of 1961)

50

(X of 2014)

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It is important to mention here that Article 8(1) and (2)51 do not apply to the laws included in the First Schedule. Trials held under these new entries that have been added to the First Schedule will not have to maintain the same level of threshold of evidence as trials held under traditional courts. This Amendment will have horrible consequences, for the trial of any person ―who claims or is known to belong to any terrorist group or organization using the name of religion or a sect,‖52under the Protection of Pakistan Act, Air Force Act, Navy Act and Army Act cannot be checked on the touchstone of the fundamental rights‘ provisions of the Constitution. What it essentially means is that right of fair trial and safeguards related to trial under a regular court proceeding will not be available to the accused. It is not the first time that Pakistan has introduced military tribunals. They have always existed in Pakistan; however, 21stAmendment has extended their jurisdiction to a specific category of civilians. Starting off with the history of these tribunals, the country introduced Suppression of Terrorist Activities (Special Courts) Act, 1975 under the leadership of Zulfiqar Ali Bhutto in 1972.53 An Anti-Terrorism Act (ATA) was later on introduced in 1997 under the Premiership of Nawaz Sharif.54 Trials held under these acts

51

Article 8(1) of the Const. of Pakistan ―Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.‖ Article 8(2) of the Const. is a prohibitory clause: ―The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.‖ 52

Const. Of Pakistan, 1973, amend. XXI.

53

Suppression of Terrorist Activities (Special Courts) Act, 1975.

54

Anti-Terrorism Act, 1997.

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were not declared invalid; Supreme Court of Pakistan upheld the convictions.55 It, however, suggested some amendments in order to bring the acts in conformity with the right to fair trial and due process. IrshadHasan Khan, Chief Justice Supreme Court, in the case Mehram Ali v. Federation of Pakistan, stated: ―I would add a note of caution that sacrifice of justice to obtain speed disposition of cases could hardly be termed as ―justice‖. A balance ought to be maintained between the two commonly known maxims,‗justice delayed is justice denied‘ and ‗justice rushed is justice crushed‘. I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice.‖56 The court suggested certain Amendments in the Act in order to improve the evidentiary requirements, impartiality of court and right to appeal. The government incorporated these amendments into the ATA on October 24, 1998. Where the Supreme Court previously held that the trials under ATA were valid, it repealed the sentences awarded by the Military Courts in a later judgment, and declared the trials of civilians by the Military Courts under the Ordinance of 1977 to be unconstitutional.57 The court held: ―…we are of the view that Ordinance No.XII of 1998 as amended up to date in so far as it allows the establishment of Military 55

Mehram Ali v Federation of Pakistan, PLD 1998 SC 1445.

56

ibid.

57

LiaquatHussain v Federation of Pakistan, PLD 1999 SC 504.

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Courts for trial of civilians charged with the offences mentioned in Section 6 and the Schedule to the above Ordinance is unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti-Terrorist Courts.‖58 Opponents of the 21stAmendment were of the view that the subjection of civilians to Pakistan Army Act, 1952,59 will affect the right to fair trial. The proponents, on the other hand, were of the opinion that 21stAmendment will enable speedy trials against members of terrorist organizations. Various petitions were filed in the Supreme Court of Pakistan, challenging the establishment of military courts through 21stAmendment. The Supreme Court rendered its decision on August 05, 2015 whereby it upheld the establishment of military courts with a majority of 11-6. The Chief Justice, Nasir-ul-Mulk, validated the establishment of military courts for the trials of members of terrorist organizations. The majority, however, held that any decision taken by the military courts will be ―subject to judicial review on the grounds of corum non judice, being without jurisdiction or suffering from mala fide.60 The dissent, however, relied on an earlier judgment of the Supreme Court61which stated that ―the argument that the military tribunal will ensure prompt punishment as an example for others overlooks the disadvantages of military trial and underestimates the 58

ibid.

59

Pakistan Army Act 1952, s 2(1).

60

The judgment has not been reported in a law journal as of yet. It is available online though. Page 88, Para 73 http://jang.com.pk/pdf/Const.P.12of2010.pdf. 61

LiaquatHussain v Federation of Pakistan, PLD 1999 SC 504.

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importance of a trial by an ordinary civil court.‖62 The dissent further wrote that ―permitting the trials of civilians by military is altogether a different matter and if this is permitted it would render the entire Fundamental Rights‘ Chapter an illusion.‖63 The interesting fact to note is that the majority judgment upheld the establishment of military courts, but at the same time, it kept the trials under the jurisdiction of Supreme Court by providing for corum non judice and mala fide. One can argue that if the Supreme Court was to keep the trials under its control, it might as well have allowed the trial to go on in a regular Anti-Terrorist Court. At least, this way, the accused would have been granted presumption of innocence. What is even more surprising to note here is the fact that only 2 cases have been decided by these military courts since the latest amendment.64 If justice was to be provided at this speed, the parliament might as well have relied on the regular judicial system, for the speedy trial argument seems to have failed here.

MILITARY TRIBUNALS IN THE UNITED STATES OF AMERICA It is pertinent to mention here that democracies like the U.S. have also introduced military tribunals at some point in time, despite having a fair trial provision in the country‘s Constitution.65In fact, the United States has had a long history of using military commissions for the trials of prisoners of war 62

The judgment has not been reported in a law journal as of yet. It is available online though. Page 881, Para 52 http://jang.com.pk/pdf/Const.P.12of2010.pdf. 63

ibid P. 886, Para 59.

64

As told by Justice (R) AamerRaza in the Civil Procedure Class at LUMS.

65

U.S. Const. Amend. VI.

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as well as civilians. It was during the American Revolution that the U.S. tried a British Major, John Andre, by a military commission.66The Major was hanged to death on the charges of spy activities and conspiracy. In 1812, these tribunals were once again used to try the British spies.67 It was not until the Civil War that military tribunals started trying civilians and Native Americans.68 Before the War, military commissions were mostly used to try the enemy spies. However, it was during the Civil War that these tribunals tried and sentenced civilians, including some democratic politicians.69 The use of military tribunals had often been debated upon with great criticism among the legal fraternity and civilian population of the U.S.70 The debate has been discussed and reiterated over decades in the legislative branches of the United States. Key politicians both in the Republican and Democrat base have aired their views on the usage of military tribunals within the United States and their effects on the society at large. According to the critics, the accused did not have any appellate remedies whatsoever except through a Presidential appeal, and hence, the rights of accused were in a jeopardy. Luckily, the Supreme Court of the U.S., in a landmark case, Ex Parte Milligan, ruled that the trial of civilians by military tribunals was unconstitutional where the accused had access to the regular courts.71 The court further opined that even when the writ of habeas

66 67

Louis Fisher, Nazi saboteurs on trial 485 (2003). Curtis A Bradley & Jack L Goldsmith, Foreign relations law 266 (2003).

68

Jonathan W White, Abraham Lincoln and treason in the Civil War 465 (2011).

69

ibid.

70

Frank L Klement, Dark Lanterns: Secret Political Societies, Conspiracies, and Treason Trials in the Civil War (1984). 71

Ex Parte Milligan, 71 U.S 2 (1866).

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corpus is suspended, citizens could not be tried or executed by the military tribunals. The tribunals could only go as far as holding the suspects.72 The much celebrated decision of the Supreme Court, however, was overruled in a later case, where the court denied the writ of habeas corpus to eight Germans who were captured during World War II for espionage and sabotage, and were tried by military commission.73 The Supreme Court held that the trial was valid, for these Germans were ―plainly within the ultimate boundaries of the jurisdiction of military tribunals, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform — an offense against the law of war. Those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.‖74 Another landmark case in this regards was decided in 1944 when the court upheld an order made by the executive branch of the country allowing the detention of Japanese Americans during World War II in the internment camps.75This case is extremely significant in this discussion. As explained, the rule of law is central to the functioning of a democratic society. It highlighted that any kind of legal restriction that would deteriorate any civil rights of a minority group, in this case, the United States citizens of Japanese descent, will be scrutinized vigorously. Interestingly however, the court did make an allowance for public policy needs; in essence, if a public policy

72

ibid.

73

Ex parte Quirin, 317 U.S. 1(1942).

74

ibid.

75

Korematsu v. United States, 323 U.S. 214 (1944).

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consideration necessitates such a restriction then this would be a legal and adequate restriction on such rights. The U.S. not only used military commissions for the trials of country‘s civilians, politicians and prisoners of war, but it also occasionally used these commissions to administer ―justice‖ to foreign war criminals held in the U.S. administered territories.76It is astonishing how the country denied justice to these foreigners through traditional courts on the basis that U.S. courts could not provide service to their custodians, and hence, were unable to try them.77 Coming to somewhat recent examples of setting up military tribunals, the latest one would be when President George W. Bush, in order to fight the war against terrorism, introduced a new military order whereby military tribunals were authorized to try civilians. The order could be applied not only to the members of Al-Qaeda but it could also be extended to all persons ―who have engaged in, aided, or conspired to commit international terrorist acts against the United States or its citizens.‖78 Under that order, the Secretary of Defense, had the duty to establish military commissions in order to conduct trials for persons accused of terrorism. This order of George W. Bush covered the convictions of civilians as well. Although the order asked the commission to administer ―full and fair trial,‖79 the law was declared to

76

Johnson v. Eisentrager, 339 US 763 (1950).

77

ibid.

78

Andrew Costly, Military Tribunals Constitutional Rights Foundation, http://www.crfusa.org/america-responds-to-terrorism/military-tribunals.html(last visited Feb 8, 2016). 79

ibid Para 3.

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be invalid under the light of local laws as well as international conventions that U.S. had signed and ratified on right to fair trial.80 The US Supreme Court, while declaring the military order of George W. Bush to be unconstitutional, mentioned that the right to have a fair trial is the fundamental right of every person. It cannot be derogated form, except in cases of emergency, and since U.S. had declared no such emergency, it could not introduce the order. The court further stated that although the order asked the tribunals to conduct the trials in a fair manner, but the very fact that these trials were being conducted by a military tribunal, and not a traditional court and jury system, challenged the fairness of the trial.81 In a latter judgment, the Supreme Court of U.S. allowed the writ of habeas corpus to a detainee held in a military camp in Guantanamo Bay. 82 The court stated that right to habeas corpus was a fundamental right, ensuring the right to fair trial. Kennedy, J.was adamant that constitutional law provided that enemy combatants had the right to habeas corpus. He also reiterated that nothing could replace this as there was no alternative, which would suffice. The basis of the constitution signified that one of the anchors of liberty is the enjoyment and freedom from unlawful restraint and therefore it was decisive that this right was not limited in any sense. If the congress decides to suspend this right, it has to offer a parallel right in order to ensure that right

80

Hamden v. Rumsfeld, 548 U.S. 557 (2006) Point 4 ―The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.‖ 81

Hamden v. Rumsfeld, 548 U.S. 557 (2006).

82

Boumediene v. Bush, 553 U.S. 723 (2008).

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to fair trial is not compromised.83 Military tribunals are still very much the reality in the U.S., especially for the detainees of Guantanamo Bay.84

RECOMMENDATIONS Every person is entitled to the right to fair trial. The practice and ancient history of this right lead one to conclude that this is one of the most important fundamental rights. The widespread practice of this right makes it clear that right to fair trial has gained universal acceptance and recognition. Most of the countries have incorporated this right in their legal systems. Similarly, this right has been integrated into a number of international conventions and treaties. It has also become a rule of customary international law, with many viewing it as a principle of general international law. Military courts have a low threshold for justice, and hence, the right to fair trial is likely to get compromised in such tribunals. Courts have to remain impartial while administering justice.85 Formation of military tribunals is allowed at times of emergency, which means that countries can establish special tribunals in extreme cases. In order to make sure that these tribunals do not violate the right to fair trial guaranteed to a country‘s citizens, governments should ensure that the principles of fair trials are incorporated into the trials conducted under military tribunals. Governments should try to include i) the right to habeas corpus, ii) the right to be tried by a competent, 83

ibid.

84

David Jenkins, Amanda Jacobsen & Anders Henriksen, The Long Decade 146 Para 2 (2014). 85

Judge Patrick Robinson, The Right to a Fair Trial in International Law, 35 Berkeley Journal of International Law (2009).

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independent and impartial tribunal, iii) application of the principles of international humanitarian law to the operations of military courts, iv) compliance of military prisons with international standards and their accessibility to domestic and international inspection bodies, v) nonimposition of death penalty for offences committed by person under the age of 18, pregnant women or persons suffering from mental or intellectual disabilities. The fairness of a trial is assessed through 3 basic criterions: a) Domestic laws of the country; b) International law on right to fair trial codified in a number of conventions; and c) Customary international law.86 A country should make sure that trials conducted under special tribunals fulfill these three basic criterions. Right to fair trial includes pre-trial rights, rights during hearing and post-trial hearing,87 which means that a government should have a proper system for registration of accusations, conveyance of accusations to the accused, and a proper hearing with presumption of innocence. The major problem with military tribunals and special tribunals is that they provide for no or very little appellate remedies. Countries conducting trials under special tribunals should provide for proper appellate forums.

86

Lawyers Committee for Human Rights, What is a Fair Trial?16 (2000).

87

ibid.

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Moreover, the accused should be presumed innocent until proven guilty. In case of Pakistan, accused tried under military laws do not enjoy this presumption.88 The country should amend its Army Act, 1952, or to very least, should try doing so for trials of civilians.89 Presumption of innocence means: ―The burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.‖90 It is pertinent to mention here that this presumption has now been included in the Statute of the International Criminal Tribunal for the former Yugoslavia (article 21 clause, 3), Statute of the International Criminal Tribunal for Rwanda (article 20 clause, 3) and the Statue of International Criminal Court (article 66, clause 1). Countries conducting trials under military or special tribunals should try incorporating this presumption in their respective Acts. Moreover, States that have established military tribunals should try to improve the evidentiary tools.91 Evidentiary requirements in certain 88

Army Act, 1952.

89

PhelimKine, Pakistan‘s dangerous anti-terrorism law, The Express 2014http://tribune.com.pk/story/737975/pakistans-dangerous-anti-terrorism-law visited Feb 8, 2016).

Tribune, (last

90

General Comment No. 13 (Article 14), in UN Compilation of General Comments, 124 para 7. 91Justice Maqbool Babar, Improving the Criminal Justice System-Response to terrorism Sja.gos.pk, http://www.sja.gos.pk/JAS/seminar/speeches/Js.MaqboolBaqarRizvi.pdf (last visited Feb 8, 2016).

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countries, including Pakistan, are very low. The government needs to employ latest tools of evidence, including the use of electronic and latest equipment together with forensic evidence.92 Proponents of military and special tribunals argue that such tribunals are the need of hour. Where governments have the power to create such tribunals, they should be careful while administering justice through these tribunals, for sometimes they can bring injustice to the accused. No matter how extreme the circumstances are, they can never justify the administration of justice to one person- in this case the victim- on behalf of another- the accused. It was this importance of human life that made Caesar stop at the bridge of Rome when a little boy came between his convoy and the Persian forces. The commander asked, ―Is Rome worth one good man‘s life?‖93 Caesar replied, ―No.‖ Perhaps this is time governments of today‘s age also realize this truth.

92

Ibid 3.

93

Martin M Winkler, The fall of the Roman Empire (2009).

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Foreign intervention in Syria: A Humanitarian or Hegemonic Approach? Erika Kasba & Nikhil Kumar1

INTRODUCTION: HISTORY OF SYRIA BEFORE 2011 Syria had a tumultuous history and has been in a state of perpetual chaos since the Ottoman Empire disintegrated. Sectarian tendencies within Syria prevented the spirit of nationalism from unifying the people comprising of diverse groups ranging from Alawis, Druses, Ismailis, etc2. Post the collapse of the Ottoman Empire, the West felt the need to fill the power vacuum in Syria and hence the French occupation of Syria. However, there had never been a power vacuum in Syria as the varied factions within the Syrian civil society had always been at loggerheads and they had existed for long in ―unity‖ in the Ottoman Empire due to a weak regime3. Syria was never bereft of the boon or a bane that came to be the Western civilization which continued to percolate into Syrian society through media, Christian missions, Hollywood, etc4. An off shoot of this Western influence was the development of a nationalist sentiment among the Syria people. 1

Students of School of Law, Christ University, Bangalore (India)

2

DON PERETZ, THE MIDDLE EAST TODAY 370 (1978).

3

Miller, Joyce Laverty, The Syrian Revolt of 1925, 8(4) IJMES, (1977) 545-563.

4

Salem,Elie,Syrian Aspirations and Realities, 11(4) INTERNATIONAL JOURNAL, (1956) 261-269.

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However, these national aspirations suffered three major setbacks; firstly, the Turks brutally repressed the Syrian nationalist movement cooling the relations between the two5. Secondly, after falsely promising to grant independence to Arab countries after the Great War, Britain, France and Russia entered into the Sykes-Picot agreement which recognized each others‘ right to administer territory in the region. Lastly, the Palestine conflict of 1948 was the last setback to Syria‘s nationalist movement. The Arab-Israeli war of 1948 resulting in Arab defeat was a shocking humiliation of their national pride6. This led to a period of political instability and chaos in the country with military coups taking place successively. Col.Husni al-Za‘imousted Shukri al-Quwatly, the President of the Syrian Republic gained massive popular support leading him to be elected President7. Col. Sami al-Hinnawi led another coup in 1948-49 but was toppled himself due to a coup by Col. Adib Shishakli8 who continued to remain in power until he was deposed with popular uprisings in 19549. Hafiz al-Assad became the President of Syria due to a military coup in November 197010. His repressive regime control came to fore with the brutal massacre of around 10,000 Sunni protestors instigated 5

Duggan,Stephen P. The Syrian Question, 11(4) THE JOURNAL OF INTERNATIONAL RELATIONS, (1921) 571-588.

6

Supra note 3.

7

SYRIA TIMELINE: (1920-1960) — FROM FRENCH MANDATE TO MERGER WITH EGYPT (Jun 8, 2013) available at http://m.thehindu.com/news/international/syria-timeline19201960-from-french-mandate-to-merger-with-egypt/article3609575.ece/ (last visited Nov 28, 2015).

8

Supra note 6.

9

SYRIA PROFILE-TIMELINE (Dec 9, 2015), available athttp://www.bbc.com/news/world-middle-east-14703995 (last visited Nov 28, 2015).

10

Guiora,Amos N.,Interventionin Libya, Yes, Intervention in Syria, No: Deciphering the Obama Administration, 44(1) CASE W. RES. J. INT'L L., (2011) 251-276.

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by the Muslim Brotherhood in 1982 who were revolting against the regime 11. Tolerance of Iraqi insurgents by Syria irked the United States which ostracized the country and threatened it with ―regime change‖12 due to complex politics relating to territorial issues with Israel. Meanwhile, Israel also took conciliatory measures at the behest of the United States which believed that ―Syria was a linchpin to peace in the Middle East‖13. With the end of the Lebanese Civil War, the Tai‘f Agreement of October 22, 1989 was entered into to establish Syria‘s dominant role in Lebanon which was to continue till the 2005 assassination of the then Lebanese Prime Minister Rafik Hariri14. Syrian support of the United States in the Gulf War was also another pivotal moment in Syria-US relations15.

SYRIAN REVOLT OF 2011 Syrian President Bashar-al-Assad succeeded his father in July 2001 and marked a change from his predecessor‘s policies by adopting a stronger stand in the Arab-Israeli conflict. The premier focused on Syria‘s economic development and improved ties with Jordan and Turkey16. However, his 11

Ibid.

12

Perthes,Volker,The Syrian Solution, 85(6) FOREIGN AFFAIRS, (2006) 33-40.

13

Ibid.

14

Salloukh,Bassel,Syria and Lebanon: A Brotherhood Transformed, 236 MIDDLE EAST REPORT, (2005) 14-21.

15

SYRIA TIMELINE: (1961 TO DATE) — FROM BA‘ATH TAKEOVER TO THE UPRISING (December 4, 2014), available at http://www.thehindu.com/news/international/article3609596.ece (last visited Nov 30, 2015).

16

Perthes,Volker, Syrian Regional Policy under Bashar al-Asad: Realignment or Economic Rationalization? 220 MIDDLE EAST REPORT, (2001) 36-41.

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policies failed to find favour with the Syrian people with the suppression of dissent and increase in rampant corruption in the country. Even before 2006, conflict in Iraq had begun seeping into the country with Syrian youth being radicalized to take up Jihad in Iraq. Increasing flow of Iranian money to buy property around the Ummayad Mosque in Damascus had the Sunni majority in Syria concerned about the growing influence of Shias in the region. Syria saw a Damascus Spring in 2001 when hopeful of the President Assad, several activists demanded civil and democratic reforms in the country, which ended soon afterwards17. The Syrian uprising began in 2011 as an offshoot of the Arab Spring already occurring in the Middle East demanding that Assad step down as President. With brutal repression of the conflict, the uprising gained global attention after Red Cross deemed the revolt a Civil War in 2012 meaning that International Humanitarian law would now be applicable18.

FORMATION OF REBEL GROUPS The Syrian society consisting of ―schismatic sects‖ had never coalesced and increasing prosperity of the minority Alawi sect left many disgruntled, increasing contempt. Upon the brutal repression of protests in Syria, rebel groups were formed which gained support among the deprived majority and other sects increasingly making the conflict sectarian in nature19. Free Syrian 17

Supra note 14.

18

SYRIA IN CIVIL WAR, RED CROSS SAYS (Jul 15, 2012), available at http://www.bbc.com/news/world-middle-east-18849362 (last visited December 8, 2015).

19

Ruys,Tom,The Syrian Civil War and the Achilles„heel of the Law of Non-International Armed Conflict, 50 STAN. J INT'L L., (2014)247-280.

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Army formed out of the defected military officers from Syria‘s Army is the single largest armed opposition group20. Looking to gain a foothold in the crisis brewing in Syria, Abu Bakr al-Baghdadi, the head of Al-Qaeda in Iraq, sent one of his trusted aides Joulani to form Nusrat Front in Syria to fight against the government. Eventually, a fight broke out between Baghdadi and Nusrat Front when he ought to merge the two and the Islamic State was formed21. ―Combatant privilege‖ is enjoyed in international and non-international armed conflict sunder the III Geneva Convention which protects the combatants from prosecution for being part of a hostile group22. However, the same privilege is not enjoyed by other armed groups (not part of the State‘s armed forces) in a non-international armed conflict, who may even be sentenced to death, international law notwithstanding23. Thus rebel groups in Syria have no cause to follow the International humanitarian law guidelines since capture by the Assad regime will spell doom for them and not grant them any protection under International Law. Those who are indeed captured by Syrian forces are tortured in detention and often killed24.

20

Spyer,Jonathan, Defying a Dictator: Meet the Free Syrian Army, 175(1) WORLD AFFAIRS, (2012) 45-52.

21

UNDERSTANDING AND COUNTERING IS (Jul8, 2015), available http://www.thehindu.com/opinion/lead/stanly-johny-article-understanding-andcountering-islamic-state-militias/article7396020.ece (last visited Nov 29, 2015).

22

See Geneva Convention Relative To The Treatment Of Prisoners Of War Of 12 August 1949.

23

PROTOCOL II ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, United Nations Human Rights, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolII.aspx (last visited Dec 12, 2015).

24

‗HOW I WAS TORTURED IN A SYRIAN JAIL' (Dec 5, 2015), available at http://www.bbc.com/news/magazine-35005825 (last visited Dec 28, 2015).

82

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SYRIAN GOVERNMENT‟S TRANSGRESSIONS IN SYRIA Bashar al-Assad‘s government is responsible for blood-curdling human rights casualties on its own citizens. Even during the regime of Hafiz alAssad, a widely peaceful demonstration was crushed by slaughtering thousands protesting against the repressive regime in 1982. NGOs have investigated and unearthed shocking human rights violations by the Syrian Government while the President denies knowledge of any such brutalities25. Reports show the torture inflicted upon the detainees, usually members of Opposition of the Government who often suffer a gruesome end at the hands of the Armed Forces of the State26. The Syrian government is responsible for thousands of deaths of innocent civilians and destruction of their property which is prohibited under Resolution 2444 of the UN General Assembly27. Violence towards civilians and general cruelty towards them is prohibited under Article 4 of the II Additional Protocol28.Reports of usage of sarin gas by the Syrian Government against the rebel groups highlight the blatant violation of the

25

UNCOVERING HUMAN RIGHTS ABUSES IN SYRIA (Oct 23, 2015), available at https://www.amnesty.org/en/latest/news/2015/10/uncovering-human-rights-abuses-insyria/ (last visited Dec 10, 2015).

26

IF THE DEAD COULD SPEAK-MASS DEATHS AND TORTURE IN SYRIA‘S DETENTION FACILITIES (Dec 16, 2015),available at https://www.hrw.org/report/2015/12/16/if-dead-could-speak/mass-deaths-and-torturesyrias-detention-facilities (last visited Dec 12, 2015).

27

UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 2444, available at http://daccess-ddsny.un.org/doc/RESOLUTION/GEN/NR0/244/04/IMG/NR024404.pdf?OpenElement(last visited Dec 9, 2015).

28

Supra note 22.

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Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Technique29.

UNLAWFUL FOREIGN INTERVENTION IN SYRIA By arming and funding the Syrian rebels there has been unlawful intervention into Syrian affairs clearly violating Articles 2(4) of the UN Charter which states that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” In the case of Military and Paramilitary activities in and against Nicaragua 30, the court held that ―the arming and training of contras can certainly be said to involve the threat or use of force against Nicaragua‖. Even using covert Intelligence agencies to provide such assistance is deemed illegal since it is a State instrument31.

29

United Nations Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, Art.1.

30

SeeCase Concerning Military And Paramilitary Activities In And AgainstNicaragua, 1986 ICJ 14.

31

Schmitt, Michael N., Legitimacyversus Legality Redux: Arming the Syrian Rebels, 7 J. NAT'L SECURITY L. & POL'Y, (2014) 139-159.

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CONTRAVENTION OF INTERNATIONAL HUMANITARIAN REGIME BY REBEL GROUPS Rebel groups like the Islamic State of Iraq and Syria have been ruthless in the armed conflict with scant regard for the humanitarian law regime. Brutal torture and execution of Prisoners of War, summary executions of civilians under its regime and kidnapping and extortion from civilians are horrific violation of Common Article 3 of the Geneva Conventions of 1949. Members of the Armed Forces captured by the rebel groups are Protected Persons under Article 13 and entitled to protection and care under Article 12 of the I Geneva Convention32. The rebel groups operating in Syria are responsible for the most violations under the III Geneva Convention33. There is ample evidence in the media highlighting the treatment of rebel groups of the prisoners of war captured in Syria. Horrific videos of execution and torture violate Articles 12 to 16 of the III Geneva Convention to the fullest extent.

ARGUMENTS IN FAVOUR OF FOREIGN INTERVENTION IN SYRIA According to J.L. Holzgrefe, intervention may be defined as 窶付he threat or the use of force across state borders by a state(by group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the

32

Geneva Convention For The Amelioration Of The Condition Of The Wounded And Sick In Armed Forces In The Field Of 12 August 1949.

33

Supra note 21

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permission of the state within whose territory force is applied‖34. It is also true that the existence of humanitarian intervention is entrenched so deep into the internal law regime that only its limits are to be ascertained and not the existence of the concept itself35. 1. To decimate Islamic State: The Islamic State has been gaining a stronghold over Syria and Iraq and has caused millions of people to be displaced from their homes and thousands of fatalities as well. Despite the much touted principle of non-intervention, this is a humanitarian crisis which calls for a united response from the global powers to end the menace.Uneducated unemployed youth in Syria disillusioned by the state of their nation and are more prone to radicalization, especially since the salary of an average Islamic State fighter is quite lucrative as well36. Islamic State is infamous for its horrendous execution methods which violate the basic principles of International Humanitarian law including the IV Geneva Convention which prohibits any kind of violence to life and person which includes murder, torture, cruel treatment, etc.37The Islamic Caliphate has also been trafficking women and children by thousands causing widespread abuse and violence against women and children in sheer

34

J.L. HOLZGREFE & ROBERT O. KEOHANE, HUMANITARIAN INTERVENTION 18 (2003).

35

PETER MALANCZUK, HUMANITARIAN LEGITIMACY OF THE USE OF FORCE 10(1993).

INTERVENTION

AND

THE

36

WAR WITH ISIS: ISLAMIC MILITANTS HAVE ARMY OF 200,000, CLAIMS SENIOR KURDISH LEADER (Nov 16, 2014), available at http://www.independent.co.uk/news/world/middle-east/war-with-isis-islamic-militantshave-army-of-200000-claims-kurdish-leader-9863418.html (last visited Dec 14, 2015).

37

Geneva Convention Relative To The Protection Of Civilian Persons In Time Of War Of 12 August 1949, Art.3.

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derogation of Article 27 of the IV Geneva Convention and the Convention on the Rights of Child38. As is being reported repeatedly, the Syrian Army seems incapable of effectively pushing back the Islamic State and other rebel groups in the region. The Islamic State has been able to bring the Assad regime to its knees and therefore it would require a complex strategy to decimate it, since six million Syrians are still under its control. Resolution 2718 of the Security Council states that military strength and law enforcement measures will not be effective by themselves39. Therefore, co-operation among nations is of prime importance if one is to curb this menace. 2. To capture and try Assad as a war criminal by toppling the present regime:The Syrian Government has been accused of gross human rights violations in Syria which partly, led to the widespread support for rebels in Syria. The people of Syria are incapable of changing the government as was seen during the brutal repression of protestors in 2011. Torture of detainees kept illegally by the Government runs contrary to the III Geneva Convention which provides for humane treatment of Prisoners of War40. Chapters II to IV of the III Geneva Convention highlight the basic requirements of a Prisoner of War providing for accommodation, food, clothing, medical attention and hygiene. 38

CONVENTION ON THE RIGHTS OF THE CHILD, United Nations Human Rights, available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (last visited Dec 18, 2015).

39

UNITED NATIONS SECURITY COUNCIL RESOLUTION 2178, available at http://www.un.org/en/sc/ctc/docs/2015/SCR%202178_2014_EN.pdf (last visited Dec 20, 2015).

40

Supra note32.

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3. Stop refugee crisis and restore stability in the region:The refugee crisis began since 2011 when the country descended into chaos with the State brutality and fear of persecution from rebel groups forcing people to flee in thousands. This sudden exodus has affected the economies of neighboring countries like Lebanon, Jordan, and Turkey as well. The exodus is only swelling as it reaches the shores of Europe with the countries divided on how to handle the sheer volume of incoming refugees. 4. Helping Syrian people in self-determination: The Syrian unrest began with a demand for civil liberties and democratic reforms in Syria. Foreign intervention can aid the people to establish a democratic government after decimation of the Islamic State. Upon withdrawal, a new regime can be ushered into the nation to maintain peace and stability in the region. However, the Occupying Force must also work according to guidelines set for conduct of Occupying Powers under IV Geneva Convention including refraining from forcibly transferring the residents of Occupied Territories, take proper steps for adequate care and protection of Children, not compel the residents to enlist into manual labour, among others41. 5. Destruction of ancient monuments by Islamic Stateaffecting world heritage: The Islamic State recently reduced the Temple of Baalshamin in the Syrian site of Palmyra to rubble amongst other relics42. Hague Convention for Protection of Cultural Property 41 42

Supra note 36. HERE ARE THE ANCIENT SITES ISIS HAS DAMAGED AND DESTROYED (Sept 1, 2015), available at http://news.nationalgeographic.com/2015/09/150901-isis-destructionlooting-ancient-sites-iraq-syria-archaeology/ (last visited Dec 22, 2015).

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requires the parties to a non-international armed conflict to follow the minimum provisions laid down43.Destruction of such relics is a collective loss to the common heritage of mankind and has also been specifically prohibited under the II Additional Protocol of 197744.

ARGUMENTS AGAINST FOREIGN INTERVENTION IN SYRIA Foreign intervention is nothing short of involvement in the internal affairs of another country and violating the sovereignty of that nation45. It might also be seen as a measure of imperialism, primarily since States use humanitarian intervention as a foreign policy tool to fulfill the broader interests of their State like need for natural resources, countering a growing regional power, et al. The United States and Russia (formerly the Soviet Union) have often been at loggerheads and followed the doctrine of foreign intervention to counter the growing influence of other in the Middle East much like Afghanistan in January 198946. 1. Right to self-determination of people without external aid: It might also be argued that self-determination does not always ask for foreign intervention. As has mostly been seen in the case of under developed nations, foreign intervention in a humanitarian crisis is

43

See 1954 Hague Convention for the Protection of Cultural Property, Art. 19(1).

44

Supra note 21 at Art. 16.

45

RICHARD PIERRE CLAUDE &BURNS H. WESTON,HUMAN RIGHTS IN THE WORLD COMMUNITY 307(1992).

46

KYLIE BAXTER & SHAHRAM AKBARZADEH,US FOREIGN POLICY IN THE MIDDLE EAST: THE ROOTS OF ANTI-AMERICANISM89 (2008).

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more often than not a mere extension of a developed nation‘s foreign policy to further its own interest. 2. Principle of non-intervention: The principle of non-intervention in international law prohibits the interference into another State‘s affairs while respecting a State‘s sovereignty. The UN Charter states that intervention is legal only if either done by the sanction of the United Nations or in self-defense under Article 51 of the UN Charter47. Additionally due to the lack of either of the two conditions, a clear case for foreign intervention is not made out. 3. Foreign intervention has bad precedent in Libya, Iraq and Afghanistan: Foreign intervention has seen a bad precedent in many countries which are still struggling with the aftermath of the humanitarian intervention that befell them.As mentioned before, it is rarely that foreign intervention has been done with the right motivations. Often it is to further a nations‘ own interests 48.As has been seen in Afghanistan, Iraq, Libya, etc it becomes quite difficult to rehabilitate the residents after foreign intervention. There were enormous reports of exploitation of locals by the United States personnel in Iraq49.

47

See United Nations Charter 1945, Art 2(4).

48

Engle,Dr. Jur. Eric, Humanitarian Intervention and Syria, 18 BARRY L. REV.(20122013) 129-165.

49

THE NEXT TORTURE REPORT: PHOTOGRAPHS SHOW US TROOPS ABUSING AND SEXUALLY HUMILIATING PRISONERS ( Dec 15, 2014), available at http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11295035/The-nexttorture-report-photographs-show-US-troops-abusing-and-sexually-humiliatingprisoners.html (last visited Dec 22, 2015).

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CONCLUSION The Syrian Civil War has seen the death and destructions of thousands of its own people with millions fleeing their homeland leaving behind all their worldly possessions for a better future in the ‗West‘. The war in Iraq and Syria has transformed majorly into a complex war theatre with growing confusion about the loyalties of parties. Covert support by States to the rebels has also complicated the situation giving sectarian hues to an already violent unrest50. The refugee crisis seen in Syria has been the largest in the present century with more than four million refugees registered with the UNHCR51. The Syrian government is now too feeble to effectively protect its citizens without foreign aid. This is not to say that the present Assad regime has not conducted brutal repression of its own people. The sheer complexity of the conflict in Syria precludes one from proposing a cut-and-dried solution to this conflict that has torn the region apart. However, foreign intervention is just and humanitarian with Syria in dire need of the same. However, global powers need to make sure that they are on the same side of the conflict and not engaging one another through proxy war replaying past failures of diplomacy.

50

SYRIA CRISIS: WHERE KEY COUNTRIES STAND (Oct 30, 2015), available at http://www.bbc.com/news/world-middle-east-23849587 (last visited Dec 25, 2015).

51

SYRIA REGIONAL REFUGEE RESPONSE (Dec 17, 2015), athttp://data.unhcr.org/syrianrefugees/regional.php (last visited Dec 25, 2015).

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How Far Does the English Legal System Go To Address the Issue of Gender Equality? Charles H.W. Mak1

INTRODUCTION Equality Law is now an established and thriving academic discipline. Equality laws have traditionally been legitimated and founded on grounds that the laws further the encouragement of autonomy and the liberal goals of state neutrality and individualism.2 Therefore, there has been a heated debate concerning the problem of inequalities throughout the centuries. This essay will analyze whether the English legal system does enough to address inequalities between individuals and groups. Some commentators assert that the existing English legal system does enough to tackle the problem of inequalities. To a large extent, the author agrees with the viewpoint made by those commentators. The Equality Act 2010 stipulates the existence of several protected characteristics3, and this essay will mainly focus on pregnancy and maternity, and how this Act helps to address the problem of inequality with respect to this characteristic.

1 2 3

LLB Candidate, University of Sussex, United Kingdom. Sandra Fredman, Discrimination law pp.1-26 (2011). Equality Act 2010, s. 4

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This essay is mainly divided into two parts, which are work cases and nonwork cases. In the work cases section, it examines how employment laws protect a woman during the period of her pregnancy and/or maternity leave. Moreover, in the non-work cases section, this essay includes the provision of services, higher education, good and facilities and the provision of recreational or training facilities. In each case, the essay will assess to what extent the English legal system tackles the inequalities and maternity discrimination in the employment field. Furthermore, this essay will apply feminist views in order to analyze how the English legal system deals with inequalities. Finally, this essay will provide some suggestions for potential reformation of how the English legal system protects women who are pregnant or maternity leave.

WORK CASES There are mainly three sources of law in the English legal system which protect women from receiving unfavourable treatments on the grounds of pregnancy, related illnesses and maternity in the work-cases: they are legislation (i.e. Equality Act 2010); European Law, e.g. the Pregnancy Directives4; and Common Law. The Equality Act, 2010 Firstly, the Equality Act, 2010 provides protections against direct discrimination and victimization on the grounds of pregnancy and maternity throughout the whole employment relationship. The primary legislation of

4

Directive 92/85, OJ [1992] 348/1.

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United Kingdom employment equality law is the Equality Act, 2010. Pregnancy and maternity discrimination can be claimed only in respect of acts occurring or decided upon during the ―protected period‖, which begins ―when the pregnancy begins‖.5 Furthermore, the medical scholarship of Professor Drife provides evidence that ―pregnancy‖ begins ―when [the] pregnancy test is positive, some ten to fourteen days after conception‖. 6 With reference to the pregnancy discrimination, to a large extent, the Equality Act, 2010 does enough to protect most pregnant women from being discriminated against. This is because the Act makes it unlawful that a person discriminates against a woman during the ―protected period‖, which means that a person cannot treat her ―unfavourably‖ because of the pregnancy7. Also, the employer cannot dismiss, demote, or discipline a woman because of her pregnancy and maternity leave under the Act. Further, the Act protects a woman against being disciplined or dismissed because she is not capable to do her job due to her pregnancy for health and safety reasons; or she requires taking time off for attending ante-natal classes. Therefore, to a large extent, the Act could protect women against pregnancy discrimination. In regards to the maternity discrimination, the Act makes it unlawful for employers to treat a woman unfavourably because of compulsory, ordinary or additional maternity leave8, which may occur at anytime. Also, the Act protects a woman against being disciplined or dismissed because she asked

5 6

Equality Act 2010, s. 18(6) James O Drife& Brian Magowan, Clinical obstetrics and gynaecology p.417 (2004).

7

Equality Act 2010, s.18 (2)(a)

8

Ibid, s. 18(3)-(4)

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to take maternity leave or she is on maternity leave. Therefore, to a large extent, the Act can protect women from maternity discrimination. In terms of the discrimination about the breast-feeding or illness suffered as a result of pregnancy, to a large extent, the Act protects a woman against being treated less favourably because she is breast-feeding9. Moreover, the Act requires a man to be accountable to take special treatment to a woman in connection with pregnancy or childbirth10. Common Law Beyond the statutory mechanisms provided in the Equality Act 2010, there are some judicial precedents which can be applied in order to protect those women on the grounds of pregnancy and maternity. In terms of the pregnancy discrimination, as far as I am concern, there are mainly two significant cases concerning this type of discrimination. The first case is Parry v Creative Diversity Residential Care Ltd 11; in this case, the Employment Appeal Tribunal (EAT) held that an employer could not force a pregnant woman to resign by destroying or seriously damaging the relationship of trust and confidence between them. The second significant case that is concerned with pregnancy discrimination is Haynes v (1) Neon Digital (Document Solutions) Ltd (2) Stevens (3) Fleming12 In this case, the EAT found that an employer cannot harass or discriminate against their pregnant employee by making offensive comments, as those comments will

9

Ibid, s. 13(6)(a)

10

Ibid, s. 13(6)(b)

11

[2012] ET/1303517/12

12

[2012] ET/1501563/10

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create an environment that is intimidating, hostile, degrading, humiliating or offensive. For example, it will be likely to constitute pregnancy discrimination when an employer makes a comment about the size of the employee‘s breast, which linked to her potential pregnancy. Therefore, common law is more likely to do enough in protecting women from pregnancy discrimination. In regards to the discrimination concerning the breast-feeding or illness suffered as a result of pregnancy and maternity discrimination. In Lyons v DWP Jobcentre Plus13 the EAT held that employer cannot treat their employee unfavorably because of her pregnancy-related illness. In terms of the maternity discrimination, the Rees v Apollo Watch Repairs Plc14 showed that the employer couldn‘t dismiss an employee during her maternity leave. European Law Where the national legislation and case law cannot do enough to protect those pregnant women, the claimant can apply to the European law for protecting their rights15. There are mainly four directives that they can apply in their claim, they are the Recast Directive16; the Pregnancy Directive17; the Parental Leave Directive18; and the Goods and Services Directive19. Some commentators may claim that the existing English legal system cannot fully

13

[2014] UKEAT/0348/13/JOJ

14

[1996] 3 C.M.L.R. 297

15

Danosa v LKB Lizings SIA [2010] Eq. L.R. 48, para. 34-36

16

Directive 2006/54, OJ [2006] L204/23.

17

Directive 92/85, OJ [1992] 348/1.

18

Directive 2010/18, OJ [2010] L68/13.

19

Directive 2004/113, OJ [2004] 373/37.

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protect surrogate mother‘s rights. However, to a large extent, the European Law can equalize the result for the pregnant surrogate mother; it affords little protection to the non-pregnant mother. In terms of the pregnancy discrimination, European Law will protect the surrogate mother because the pregnancy is ―hers‖. Therefore, the right of a surrogate mother is the same as a normal mother. Furthermore, in Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG20 the Court of Justice of the European Communities (Grand Chamber) applied the directive on sex discrimination in employment21 and held that an employer cannot discriminate against an employee who are undertaking In Vitro Fertilization (IVF) treatment but is not yet carrying an unborn child. In terms of maternity discrimination, European Law protects from maternity discrimination against a surrogate mother, but it does not go further so as to protect the non-pregnant mothers who bring up babies born through surrogacy agreements..In the judgments in CD22 and Z23, the court took the view that the Pregnant Workers Directive‘s24 protection of maternity leave can only apply where the same woman becomes pregnant, gives birth and then takes maternity leave as regards a new born baby (or babies). Therefore, while the existing European law protects women who undergo in vitro fertilization as well as pregnant surrogate mothers, it does not do enough to protect those mothers who have babies born through a surrogacy agreement. 20

[2008] 2 C.M.L.R. 27

21

Directive 76/207/EEC

22

C.D. v S.T. [2014] C-167/12

23

Z. v A Government department, The Board of management of a community school [2014] C-363/12 24

Directive 92/85/EC

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NON-WORK CASES Section 17 of the Equality Act 2010 addresses discrimination in non-work cases, stipulating that the protected characteristic of pregnancy and maternity is applicable to four parts of the Act: services and public functions, premises, education, and association.25In terms of education in particular, the act protects women with the above characteristics by making it unlawful for the administration of a Higher Education Institution (HEI) to discriminate against or victimize a person because she has the above characteristics. 26In practice, this means the act protects women who are pregnant from being excluded by those HEIs on the grounds of that characteristic. Moreover, HEIs need to have appropriate arrangements in order to ensure that a woman is not treated less favourably because she is breastfeeding. 27Furthermore, there are directives of the European Union which offer some protection to women with the above characteristics such as the Goods and Services Directive28. Therefore, to a large extent, the black letter law of the statutes seemingly does enough to address the inequalities for pregnancy and maternity in higher education. However, despite the provisions of the act, HEIs can and have created regulations which comport with the act, but present a significant burden to pregnant and maternal women. For example, imagine that a pregnant student at Sussex has an incoming deadline and suddenly experiences an issue that requires medical consultation. If she 25

Equality Act 2010, s. 17

26

Ibid, part 6

27

Ibid, s. 13

28

Directive 2004/113, OJ [2004] L373/37.

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misses the deadline and previously informed the university of her pregnancy, she may be bar from receiving credit because it is considered a long-term condition29. This absurd result is reflective of the flaws in enforcement of equality law. Secondly, in regards to the provision of services, goods and facilities, to a large extent, the English legal system does enough to address the inequality problems concerning pregnancy and maternity. The Equality Act 2010 prohibits direct discrimination against or victimization of a person (pregnant and maternal) who is seeking access to or is accessing a service. The act requires those institutions to ensure that the terms of the service will not exclude those people who want to access or accessing those services. Thirdly, in terms of the provision of recreational or training facilities, to a large extent, the English legal system does enough to protect women against victimization and direct discrimination on the grounds of pregnancy or maternity. The Equality Act 2010 makes it unlawful that those recreational or training facilities cannot exclude women who are pregnant to access them. For example, a sport center cannot reject a pregnant woman‘s application for using its facilities because of her pregnancy.

FEMINIST APPROACH I would like to apply different feminist views for analyzing the inequality situation. Throughout the centuries, there are different feminist philosophers of law, such as Rhode and Minow, who have published research concerning 29

University of Sussex Examinations and Regulations Handbook 2013-2014, s. 2.7.6 (iii)(b)(3)

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issues of equal treatment between men and women. The main challenge that those feminist philosophers faced is whether and how to recognize certain differences without deepening stereotypes, reinforcing detrimental customs, promoting sexist socialization, or incurring backlash3031. One of the significant concepts aroused by those feminists is about ―dilemmas of difference‖32, where addressing an inequality (be it through legislature or otherwise) reinforces that inequality, but ignoring the inequality also exacerbates the problem. There is a tremendous difference between men and women, mostly on the ground that men are not capable of facing discrimination on the grounds of pregnancy. When legislators take this difference into account, they are faced with two options: either provide some remedy for the hardship of pregnancy, e.g. maternity leave, or ignore the difference. By making some laws for equal treatment through maternity leave, a literally unequal treatment will be instantiated. This is because those laws aimed at equalizing the treatment between women and men will provide some extra benefits to women that men do not have. However, if legislators ignore the difference, the inequality remains without remedy. The exacerbation of difference resulting from each decision is termed the ‗dilemma of difference.‘33 Therefore, there is no way to achieve absolute equality on the grounds of the differences such as these. Furthermore, under the liberal feminism, women should be treated the same way as men under the English legal system. However, the existing laws that 30

Martha Minow, Making all the difference p.49 (1990).

31

Deborah L Rhode, Speaking of sex p.242 (1997).

32

Minow, op.cit, pp.19-49.

33

Martha Minow, Learning to Live with the Dilemma of Difference: Bilingual and Special Education, 48 Law and Contemporary Problems 157 (1985).

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concern pregnancy and maternity bring men and women on a collision course. This is because men cannot enjoy those privileges that women can enjoy and there is no comparator is required for pregnancy and maternity discrimination,

because

pregnancy

is

a

unique

situation

for

34

women. Therefore, it is not possible to achieve an absolute equality in the society since there is a significant difference between men and women.

SUGGESTION FOR LAW REFORM Although the existing English legal system covers many of the possible pregnancy related scenarios, there are some aspects that the legal system cannot cover in its current state, especially the protection for women who suffered from pregnancy-related illness and maternity leave discrimination due to surrogacy. To a small extent, the English legal system does not do enough to address the inequality problems for women on the grounds of pregnant and maternity discrimination. Therefore, there are some suggestions that can be made for reforming the law. Firstly, in regards of the pregnancy-related illness discrimination, Newman asserted that Equality Act 2010 does not cover the indirect discrimination for the protected characteristic of pregnancy35. If a pregnant woman were dismissed because of she took too many toilet breaks, she has to claim based on sex discrimination rather than pregnancy and maternity discrimination. 34

Dekker v StichtingVormingscentrumVoor Jong Volwassenen (VJV- Centrum) Plus

[1992] I.C.R. 325 35

Darren Newman, Are comparators necessary in direct discrimination claims?, Equality

Opportunities Review pp.20-21 (2010).

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Therefore, it will create hurdle for those claimants who want to claim against their employer for being discriminate indirectly. The suggestion for the law reform is that the Equality Act can be amended for protects women against the indirect discrimination for the protected characteristic of pregnancy. Secondly, Newman also suggested that the existing legal system only protects women who suffered from pregnancy-related illness (as a direct result of the pregnancy) rather than illness (the result of a series of circumstances which has pregnancy at its root), e.g. psychological illness36. Therefore, the law should reform in a way such that the government maintains a list of those illnesses that may be suffered by those women during and as a consequence ofpregnancy. Thirdly, in Caledonia Bureau Investment and Property v Caffrey37, the EAT notified that the Parliament should create an express provision extending the special protection relating to pregnancy and maternity so as to cover postnatal depression. Thus, those women who suffer from postnatal depression can be protected if the Parliament amends the Equality Act 2010. Moreover, as mentioned, in the judgments in CD38 and Z39, the court held that the Pregnant Workers Directive40 that the maternity leave cannot be apply for those mothers who having babies born through surrogacy

36

Darren Newman, Tribunal to consider ‗reason why‘, 232 Equality Opportunities Review

p.30 (2012). 37

[1998] IRLR 110

38

C.D. v S.T. [2014] C-167/12

39

Z. v A Government department, The Board of management of a community school [2014] C-363/12 40

Directive 92/85/EC

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agreement. Therefore, the law should be reformed by an express provision protecting mothers with babies born through surrogacy agreement, so that they may also enjoy maternity leave.

CONCLUSION In conclusion, a literal construction of statutes could result in the conclusion that the English legal system does enough in address inequality problems for the protected characteristic of pregnancy in both work cases and non-work cases. It takes in mainly three ways, which are the Equality Act 2010, common law and European law. However, in a significant capacity, the existing legal system does not do enough to protect some women who with the protected characteristic of pregnancy, a number of situations can arise where the remedies available are limited by the specificities of circumstance; the distance between the act of Parliament and everyday occurrences creates a number of gaps in protection. For example, the current state of law cannot ensure that those mothers who have babies born through a surrogacy agreement have the right to have a maternity leave. Therefore, a law reform ought to be implemented so as to furnish the existing English legal system towards the creation of a more equal society. One of the aims of law is helps us to protect society and make sure that we can deal with equality. As women have been in the workforce and higher education for a substantial period of time, any legal formulation of ‗equality‘ must engage with the real circumstances and eventualities faced by women.

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GMO Labeling Measures under WTOâ€&#x;s Trade Law: a Jurisprudential Inquiry Namit Bafna1

INTRODUCTION Scientific advancement in biotechnology has changed the way world population consumes food. Increased used of Genetically Modified Organism (GMOs) and Genetically Modified Food (GMFs) in agriculturally dominated industries has raised numerous concerns among various stakeholders such as consumers, producers, health industry, environmental groups and governmental departments. Among the plethora of issues, trade related issues forms one of the major concerns for the international community as it determines the working of demand-supply equilibrium for GMO/GMFs at the international level. One of the major hindrances to the free flow of GMO/GMFs is labeling requirements which some members chose to require on food products which contain genetically modified ingredients. Such requirements are not uniform and vary from member to member, as each relies on different risk assessments of GMO/GMFs.2These differences in turn have produced sharp 1

Student at Jindal Global Law School, Soniapat, Delhi NCR (India)

2

Richard Stewart, GMO Trade Regulation and Developing Countries, 321 (N.Y.U Public Law and Legal Theory, Working Paper No. 165, 2009)

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trade conflicts, dividing the world trading community into two power groups. Where members, such as, United States and Canada support anti-labeling regimes; members, such as, European Union, Japan and South Korea supports strong labeling regime. (Also known as ‗US – EU debate‘ or ‗The North Atlantic Divide‘3) With such differing regulations it becomes difficult for developing members such as India and Africa to incline towards one side of the divide, as they would end up losing market hold to the other side.4 In such a case any major policy initiation from them would call for an in-depth study of labeling regimes in WTO jurisprudence and those prevailing in US and EU. This will help in determining the legality of labeling regimes and for an amicable settlement of potential future GMO – related trade dispute.5 As the whole debate revolves around ‗Consumer‘s Right to Know‘ it shall be pertinent to look for its sources in WTO jurisprudence. Once that is done, it shall be relevant to determine if such a right constitutes valid justification for mandatory labeling requirements. Till date, there has been no complain about GMO labeling at the WTO level, and within the WTO regime there are no agreements that specifically regulate labeling of GMOs. However, some provisions of the GATT, SPS Agreement and TBT Agreement have some relevance to the issue of GMO

3

Id. at 326

4

See, Michelle K. McDonald, International Trade Law and the U.S – EU GMO Debate: Can Africa Weather This Storm?, 32 Georgia Journal of International and Comparative Law, 503 – 535 (2004) (gives various solutions and alternatives for Africa) 5

See, Daniel Schramm, The Race to Geneva: Resisting the Gravitational Pull of the WTO in the GMO Labeling Controversy, 9 Vermont Journal of Environmental Law, 94 – 127 (2008) (gives a detailed account of legal arguments on which EU could base a jurisdictional defense in a potential future GMO trade dispute)

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product labeling, and thus constituting differing GMO labeling regimes. In addition to various instruments, several WTO cases such as US – Tuna II and US - COOL provide scope for persuasive evidence for determining whether the consumer‘s right to know can serve as a sole justification for mandatory labeling requirements under WTO rules. Most basic source could be found in Article XX of GATT 1994, which provides ten exceptional situations wherein a member can justify restrictive measures in imported products. Among them, a demand for mandatory labeling of imported GMO foods could most closely be found in exception related to human, animal or plant life or health and one which is related to the conservation of exhaustible natural resources.6 Protection of human and animal health could further be protected by the SPS and TBT Agreement. A member can use SPS Agreement to justify its labeling requirement if the labeling measure is adopted based on the argument of potential health risk and is directly related to food safety. However such should not be maintained without sufficient scientific evidence and shall not be applied in a manner which would constitute a disguised restriction on international trade. Nevertheless, if the relevant scientific evidence is insufficient, member can provisionally adopt an SPS measure to prohibit imports of certain items or require mandatory labeling of products, enabling the labeling of GM foods or food containing GM ingredients.7 However, such is limited to provisional period, making SPS Agreement not a strong source for the consumer‘s right

6

Arthur E. Appleton, The Labelling of GMO Products Pursuant to International Trade Rules, 8 N.Y.U Environmental Law Journal, 566 – 578 (2000) 7

Li Du, GMO Labeling and the Consumer‟s Right to Know: A Comparative Review of the Legal Bases for the consumer‟s Right to Genetically Modified Good Labeling, 8 McGill Journal of Law and Health, 4 – 38 (2014).

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to know.8Also, GMO represents an alternative to conventional production process and do not necessarily involve additives that possess threat to human, animal or plant life. However it remains open to the test of science.9 The members then can resort to TBT Agreement as it is not as stringent as SPS Agreement. The TBT Agreement allows a member to use technical regulations to protect human health or safety, animal or plant life or health. However, such technical regulations (mandatory labeling and ―standard‖ would refer to voluntary labeling regime) should not have been prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade and it shall not be more trade restrictive than necessary to fulfill a legitimate objective, taking account of the risks non – fulfillment would create. The WTO Appellate Body in its decision in the US – COOL10 dispute noted that the determination of the ―legitimacy‖ of a measure‘s objective should be based on an independent and objective assessment that considers the measure‘s design, architecture, structure, legislative history, as well as its operations, following which it held that providing consumers with 8

See, Jacqueline Peel, A GMO by Any Other Name… Might be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement, 17 The European Journal of International Law, 1009 – 1031(2006) (gives a detailed analysis of extended scope of SPS Agreement by EC – Biotech dispute and its implication on GMO trading. Although not directly related to labeling per se, but it gives an holistic account of the Agreement and its scope which is important to understand labeling issues under the agreement) 9

RAJ BHALA, INTERNATIONAL TRADE LAW: INTERDISCIPLINARY THEORY AND PRACTICE 1447 (3rd ed. 2014) 10

United States – Certain Country of Origin Labeling (US – COOL). See generally, United – States Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (US – Tuna II); Alliance for Bio Integrity v. Shalala 116 F Supp (2d) 116 at 170 (DC Cir 2000); International Dairy Foods Association v. Boggs 622 F (3d.) 628 at 634 (6th Cir.)

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information as to origin is not to be expressly found in the Agreement but it can be put under the objective of prevention of deceptive practices, which is specially expressed in both Article 2.2 of TBT Agreement and Article XX (d) of GATT, 1994. Following the reasoning, subsequent issue that could be raised is whether providing consumers with information on a specific type of issue such that related to GMO can also be linked to the objective of prevention of deceptive practices? Given that there is no established evidence supporting the existence of material differences between GM and non – GM foods the provision of information to consumers as to whether their foods are genetically modified or contain GM ingredients is not likely to be deemed a ―legitimate objective‖ as we lack scientific evidence confirming that GM foods are either materially different from non – GM foods or pose any known harms or higher risk to human and animal health and safety. Therefore, it can be safely stated that the consumer‟s right to know appears to be unavailable under the WTO system as sufficient basis for mandatory GMO labeling. However, to cater the need of increasing demand for information about GM foods from consumers and environmental groups, a few alternative solutions can be taken into consideration. They are implementation of a voluntary labeling regime and relaxation of ―process/product distinction‖ wherein, it is believed that only the product related information should be provided to the consumers and not the process based, as it helps to moderate market demand in cases where unregulated consumer choice could lead to socially undesirable outcomes.11 Such outcomes may occur either because individuals suffer from certain informational and cognitive deficiencies that 11

See, Douglas A. Kysar, Preference for Process: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harvard Law Review, 526 – 642 (2004)

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impair their ability to comprehend process information accurately, or because interest groups have strong incentives to exploit public perceptions of manufacturing process for private purposes. With this in mind, the process/product distinction seems to have been misused by its proponents by questioning the authority of an importing member to ban or label products that are developed using processes deemed objectionable by its citizens and to narrow the constitutional provisions which provides are manufactures to disclose process information or to face legal challenges for disclosing false or misleading process information. Therefore, once this distinction is relaxed, consumer‘s right to know can be possibly incorporated into the WTO jurisprudence.

INTERNATIONAL TRADE LAW ENQUIRY The question of whether the consumer's right to know can be accepted as a stand-alone justification for mandatory GMO labeling in relevant international law regime is significant for the amicable settlement of potential future GMO-related trade disputes. It requires an inquiry into international food labeling institutions which establishes international food safety standards, Biodiversity convention and various WTO Agreements. Codex Alimentarius was created in 1963 by two UN organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO).12 The Codex Committee on Food Labeling (CCFL) is the main body

12

See, Sami Shubber, The Codex Alimentarius Commission under International Law, 21 The International and Comparatively Law Quarterly, 631-655 (1972); Codex Alimentarius, Codex Timeline, http://www.codexalimentarius.org/about-codex/codex-timeline/en/ (accessed on 26th Oct., 2015 at 12:34 AM); Saul Halfon, Confronting the WTO:

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under the Codex Alimentarius Commission which is responsible for preparing drafting provisions on labeling applicable to all foods. Although these guidelines are voluntary but they are accepted by the WTO as a reference in trade disputes.13It is only in 2011 during the 39th session of CCFL, that a consensus was reached on voluntary labeling of GMOs vide Compilation of Codex Texts Relevant to the Labeling of Food Derived from Biotechnology.14 However it neither endorses the labeling of GM Food products nor creates any new obligation but requires conformity with existing Codex texts.15 The Cartagena Protocol on Biosafety to the Convention on Biological Diversity16 is the first ever multilateral treaty to deal exclusively with safe handling, transportation and use of living modified organism derived from modern biotechnology.

The Protocol creates three types of information

sharing mechanism. Firstly, vide Article 20 it creates Information Sharing and Biosafety Clearing – House mechanism for exchange of scientific, technical, environmental and legal information. Secondly, Communication of Information mechanism which is established for advanced information and thirdly, LMO identification which is based on labeling regime in Article 18.

Intervention Strategies in GMO Adjudication, 35 Science, Technology and Human Value, 307 – 329 (2010). 13

Corinna Hawkes, Nutrition Labels and Health Claims: The Global Regulatory Environment , 06 (2004), http://apps.who.int/iris/bitstream/10665/42964/1/9241591714.pdf (accessed on 26th Oct., 2015 at 11:14 AM) 14

Codex Committee on Food Labeling, Reference Number CAC/GL/76-2001

15

See, Jack A. Bobo, Two Decades of GE Food Labeling Debate Draw to an End- Will Anybody Notice?, 48 Idaho Law Review, 251 – 264 (2012) 16

UN Doc. UNEP/CBD/ExCOP/1/3, available at: https://www.cbd.int/doc/?meeting=excop01 (accessed on 26th Oct., 2015 at 01:11 PM)

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After many rounds of debates, it was agreed that each party shall clearly identify LMOs by using "may contain" or "contains" labeling and by ensuring they are intended for direct use as food or feed or for processing, but not for intentional introduction into the environment.17 However, this does not extend to consumer products from which it can be concluded that under the Cartagena Protocol, rationale for mandating labeling requirements on LMOs are not based on protecting the consumer's right to know, but primarily for ensuring conservation and sustainable use of biological diversity and protecting human health. With respect to WTO, there has been no dispute, no agreement or no law which has direct linkage with GMOs. However, certain agreements such as TBT, SPS and GATT have indirect connection with trade in GMO and certain case laws have direct enunciations with consumers Right to Know. The GATT can be applied through two ways. Firstly, it strives for equal treatment of imported goods through application of non-discrimination principles, violation of which shall provide scope for legitimate complaint. But, in the case of GMO/GMF, there would be no discrimination, as a proper reading of Article III (4)18 makes clear that GMO/GMF and traditional foods are not ―like‖ products.The logic is that genetic modification creates a 17

MOP 3 decision BS – III/10, Handling, transport, packaging and identification of living modified organisms: Para 2 (a) of Article 18. Available at: https://www.cbd.int/decision/mop/default.shtml?id=11066 (accessed on 26th Oct., 2015 at 01:36 PM) 18

― The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.‖

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completely new product, and can be distinguished from the traditional product. Secondly, Article XX provides for ten exceptions which allow members to deviate from its general obligations under the agreement. Out of these ten exceptions, Article XX (b) which provides for deviation on ground ―necessary to protect human health animal or plant life or health‖ and Article XX (g) which provides deviation for ―conservation of exhaustible natural resources‖ relates to GMO/GMF trade. However, none of them directly relates to consumer‘s right to know. The practice had been to construe exceptions narrowly in favor of trade. Therefore it can be construed that mandatory labeling is not available under GATT. More specific is the SPS Agreement. It acknowledges that WTO members have right to use certain trade – restrictive sanitary measures where necessary for the protection of human, animal or plant life or health. Definition in Annexure A of the Agreement includes ―labeling requirements directly relating to food safety‖. Therefore a member may use the SPS Agreement to justify its labeling requirements if they are based on potential health risk.19However such labeling requirements must be based on sufficient scientific data and should be applied to the extent to necessary to protect human, animal or plant life or health and should not be applied in manner which would act as a restriction on international trade.20 Many members on the other hand may also opt for The TBT Agreement to avoid stringent SPS Agreement. TBT Agreement sets up principles for

19

Robert Cunningham, The ABC of GMOs SPS & the WTO: An Analysis of the Application of the Agreement on Sanitary and Phytosanitary Measures within the context of Biotechnology and International Trade, 9 Southern Cross University Law Review, 36 (2005) 20

See, Article 2.2 and 2.3 of SPS Agreement.

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assessing technical barriers to trade, requiring that technical regulations not be applied in a manner that would constitute arbitrary or unjustifiable discrimination or a disguised restriction on international trade. 21The debates revolves around the question whether GMO/GMF and traditional food falls under the same category and therefore are like products? One side of the debate contents that the exclusive fact that there are proteins from foreign genes makes their physical characteristics very different. That is, the very reason that they are bio-engineered makes them have different physical characteristics, as they also get patent protection making them unlike products. This holds true particularly for second generation GMO/GMF, which undergo multiple gene transplants.22 While the other side of the debate revolves around the contention that GMO/GMF are substantially equivalent to traditional foods of the same type. They have almost all of the same characteristics, indeed all of the key characteristics, and are simply enhanced.

RELAXATION OF PROCESS/PRODUCT DISTINCTION The wave of globalization heavily influenced consumer product markets. Super markets now offer products whose very existence was out of sight from an average consumer‘s imagination.23 The ever-increasing complexity of geopolitics and inter – dependence of economies has changed the face of 21

LI DUI, Supra note 06 at 36.

22

For more information on gene process, See, Food and Agriculture organization of UN, The Process of Genetic Modification http://www.fao.org/docrep/006/y4955e/y4955e06.htm (accessed on 26th Oct., 2015 at 06:33 PM) 23

OECD, CONSUMER POLICY TOOLKIT (2010), available http://www.oecd.org/berlin/45710126.pdf (Accessed on 11/03/2015 at 1:11 PM)

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consumer market, making it more dynamic and sophisticated. Such goods may also reflect production history that bears imprints of countless economic actors from across the globe, which are enmeshed in a complicated web of economic interdependence.24Consumers however are not confronted by these consequences. This leads to a stronger formalization of process/product distinction. Such formalization is supported by academic and industrial proponents of process/product distinction. This can be better understood by few examples. (1) The labeling of GM food products has been criticized by scholars who doubt the ability of consumers to appreciate the environmental, health and safety benefits of new technology.25(2) Environment product labeling schemes and environmentally motivated trade measures has been criticized by the scholars. They claim that such activities rather than protecting the environment, they destruct it.26(3) The efforts to avoid child labour by developed nations are criticized by harm the children whom they seek to avoid exploitation.27 Similar criticism follows for sweat shop labeling.28

24

KYSAR, Supra note 10 at 536

25

Karen A. Goldman, Labeling of Genetically Modified Foods: Legal and Scientific Issues, 12 Georgetown Environmental Law Review, 717 (2000) 26

See, Laura Valentini&Vesta Spa Venice,Environmental Quality Provision and ecolabeling: Some Issues (World Trade Organization Working Paper No. ERSD – 2005 – 02, 2005) https://www.wto.org/english/res_e/reser_e/ersd200502_e.htm; Sanford E. Gaines, Process and Production Methods: How to Procure Sound Policy for PPM – Based Trade Measures?, 27 Columbia Journal of Environmental Law, 384 – 421 (2002). 27

See, JagdishBhagwati, Afterword: The Question of Linkage, 96 American Journal of International Law, 126 – 145 (2002) (Bhagwati argues that mere threat d a ban on products using child labor led to the discharge of female children who were often forced into prostitution by destitute parents); See generally, Jamelle H. Dillee& David A. Levy, Child Labor, Trade and Investment: Towards Harmonization of International Law, 91 American Journal of International Law, 663 – 696 (1997); ShimaBaradaran& Stephanie Barclay, Fair Trade and Child Labor, 43 Columbia Journal of Human Rights Law Review, 2 – 58 (2011)

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The belief that process preferences lead to unintended consequences or that consumers choices could lead to socially undesirable outcomes is led by two underlying concerns. Firstly, that individuals are ill – positioned to recognize and resolve the tradeoffs entailed by modern production processes in a globally integrated, technology rich economy. Secondly, individuals are vulnerable to exploitation by factions that manipulate process-related concerns in service of their private interests.29 The process/product distinction has been invoked to question the authority of an importing nation to ban or label products that are developed using process deemed objectionable by its citizens; to rationalize ignoring overwhelming consumer support for mandatory labeling of food products that contain genetically engineered ingredient; and to narrow the constitutional conditions under which states may force manufacturers to disclose process information or to face legal challenges for disclosing false or misleading process information.

CONCLUSION: THE LABELING DEBATE The ultimate debate boils down to the debate of pros and cons of GMO labeling; to determine the moot question ―whether GMO/GMF should be labeled or not?” The most important argument for GMO labeling is the consumer‘s right to know. Many consumers feel that they have a right to know what they are eating and how the products they eat are produced. 28

See, Drusilla K. Brown, The Effects of Multinational Production on Wages and Working Conditions in Developing Countries (The National Bureau of Economic Research Working Paper No. 9669, 2003), http://www.nber.org/papers/w9669 29

KYSAR, Supra note 10 at 539

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Another argument is that, consumers with health considerations need to know what they are consuming; a possible extension of right to heath.30 Other argument is that GMO labeling is environmentally beneficial because it makes it easier for consumers to base consumption decisions on environmental factors associated with particular products.31 Environmental issues are of profound concern to many consumers, and these concerns, whether GMO-related or not, must not be minimized.32Lastly, there may be ethical, moral or religious concerns apart from its impact on developing countries, mainly concerns of food security.33 While on the other hand, there are underlying trade and business proponents arguing against GMO labeling. They fear that labeling will increase consumer suspicion, making GMO products less attractive. Some go to an extent to view labeling as a means of discouraging the development of a new and promising technology. Another concern involves the expenses, both

30

See, World Health Organization and World Trade Organization, WTO Agreements and Public Health (2002), https://www.wto.org/english/res_e/booksp_e/who_wto_e.pdf 31

Many commentators argue that precautionary principle can be extended to health hazards. However, precautionary principle poses an inherent problem as its conciliation with international trade regime is still questionable. Given the general acceptance and use of precautionary principle, WTO cannot afford to ignore its significance anymore, else the very discipline that are indented to establish minimum standards for the regulation of risk diverging from good practice standards established outside the trade context comes into danger. Apart from that, it also poses risk of distorting regulatory decision – making even in areas that have no adverse implication for international trade. Therefore, it is desirable to reconcile potentially competing public policies with the goals of trade liberalization through the vehicle of the dispute settlement process. See generally, David A. Wirth, The World Trade Organization Dispute Over Genetically Modified Organisms:The Precautionary Principle Meets International Trade Law, 37 Vermont Law Review, 1153 – 1188 (2013). 32

ARTHUR, Supra 568

33

Nuffield Council on Bioethics, The Use of Genetically Modified Crops in Developing Countries, http://www.conacyt.gob.mx/cibiogem/images/cibiogem/comunicacion/publicaciones/Nuffiel d_Council-GMOs-for-dev-countries.pdf

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direct and indirect of GMO labeling and the cost implications for non-GMO products that may result from the labeling of successful GMO products. Many business leaders oppose GMO labeling due to its perceived implications for the international trading system or regime. 34 In addition, many WTO members object to the use of labeling to influence foreign production processes, technical regulations, and standards. From the above legal exploration, it can inferred that a universal acceptance of the consumer's right to know for GMO labeling has not been achieved, either in domestic law or in international law. Policy instruments are fragmented with varying treatment of GM products. For instance, the EU GMO labeling law recognizes the consumer's right to know as sufficient justification for a mandatory labeling regime. However, this in itself does not guarantee consumers‘ real choice at the point of purchase due to limited GM foods availability in the EU market. Also an increasing number of challenges by scientists make the case that EU policy politically driven rather than on genuine health concerns.

This fragmentation is true at that the international level also, as the applicable international instruments do not recognize the consumer's right to know as a permissible exclusive basis for a GMO labeling regime. The Codex Alimentarius'sPrinciples for the Risk Analysis of Foods Derived from Modern Biotechnology and its 2011 Compilation regard health and safety concerns as the determinative factors for implementing mandatory GMO 34

C. Ford Runge& Lee Ann Jackson, Labeling, Trade and Genetically Modified Organism (GMOs): A Proposed Solution (Centre for International Food and Agricultural Policy, 1994) http://www.iatp.org/files/Labeling_Trade_and_Genetically_Modified_Organi.htm

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labeling. The Cartagena Protocol, in keeping with its status as an international environmental treaty, targets conservation and sustainable use of biological diversity, as well as the protection of human health. Thus, it does not provide authority for member states to require a special labeling measure for LMOs exclusively based on the consumer's right to know. Under the WTO system, the consumer's right to know is not included in the exceptions under Article XX of the GATT, the SPS Agreement insists on scientific justifications for any measures adopted by member states, therefore it will not permit a mandatory GMO labeling regime grounded solely in the consumer's right to know without any supporting scientific evidence. The TBT Agreement allows member states to use technical regulations to fulfill a legitimate objective. However, the obstacles to a mandatory labeling measure do not necessarily mean that there are no alternative methods for catering to the increasing demand for information about GM foods from consumers and environmental groups. In practice, commercial self-adjustments carried out by many companies in the US and Canada suggest that, even without a mandatory federal GMO labeling regime, greater transparency from manufacturers and retailers can be achieved through voluntary labeling and removing the product/process distinction.

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Liquidated Damages as a “Cap” on Liability in International Trade Contracts Shaylla Azmi Shabbir1

INTRODUCTION: THE CURRENT LAW ON LIQUIDATED DAMAGES The Starting Point In order to divulge in to this analysis further it is important look at the number one authority on contract law, we must look at Chitty on Contracts which explains the money that is payable to a claimant in the event of a breach: ―Where the parties to a contract agree that, in the event of a breach, the contract-breaker shall pay to the other a specified sum of money, the sum fixed may be classified by the courts either as a penalty (which is irrecoverable) or as liquidated damages (which are recoverable). (…) The clause is enforceable if it does not exceed a genuine attempt to estimate in advance the loss

1

Solicitor, London, United shaylla.shabbir@gmail.com

119

Kingdom.

The

author

can

be

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which the claimant would be likely to suffer from a breach of the obligation in question.‖2 Inevitably and plainly, if a clause provides a genuine pre estimate of loss which would be due in the event of a breach, it is clearly a liquidated damages clause. However, the analysis does not end here. The clause, in order to stand must be construed further and therefore the key consideration is whether the clause us a genuine attempt to accurately the loss that is likely to be suffered if there is a breach. If a clause is placed in a contract in order to punish the party in breach is the most important question. The conclusion, to then draw is that the difference between a penalty clause and the liquidated is therefore down to the intent of the parties. The passage from Chitty goes on to state that if ―the clause is not void as a penalty; it is enforceable irrespective of the loss actually suffered.‖3 Inevitably if the sum that is specified in the contract in the event of a breach exceeds the loss suffered, the party can still rely on the clause. If however a clause examined and is in turn a penalty clause, a party cannot rely on this clause to recover the sum. He may only recover the amount to which he would have been entitled had the contract not contained the penalty clause.4 The burden is on the balance of probabilities and lies on the party seeking to

2

Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26171. 3

Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26171. The same observation is made by Professor McKendrick: ―the sum stipulated in the liquidated damages clause is the sum recoverable, even though that sum is greater or smaller than the loss which has actually been suffered‖ (see McKendrick, Contract Law, para 21.5). 4

Jobson v Johnson [1989] 1 WLR 1026 at p.1038.

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escape liability to show that the clause is a penalty clause. The burden is not on the other party to justify that the provision is a not a penalty clause. I will now turn to consider in more detail the English courts‘ approach to liquidated damages and penalty clauses.

THE DUNLOP RULE The question whether a sum stipulated for in a contract is a penalty or liquidated damages is a question of law.5 The courts have formulated a number of rules to determine whether a clause is penal (and therefore unenforceable). The classic statement of the law is set out in the opinion of Lord Dunedin in Dunlop Pneumatic Tyre Company v New Garage and Motor Company Ltd.6, in which he raised three key propositions and also suggested various ―tests‖ to assist the court‘s task of construction.

THE DEVELOPMENT OF THE APPROACH TO CONSTRUCTION Murray v Leisureplay, the Court of Appeal examined the relationship between liquidated damage clauses and penalty clauses. The court rules that a clause that requires a defendant employer to pay an employee a sum of a year‘s salary if there is a wrongful termination was not enforceable as this was a penalty. The profound Arden LJ made the ruling in this case. In the judgment the main case which cited was Cine Bes Filmcilik Ve Yapim Click 5

Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para.26-173, citing Sainter v Ferguson (1849) 7 CB 716 at p.727. 6

[1915] AC 79 at pp.86-88.

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v United International Pictures,7 and this was referred to as a useful and succinct statement of the law in this area8. The Lord Dunedin gave a clear explanation of the law in this area and added that the construction of a clause in a contract is to be judged at the time the contract was made and not at the time of breach. He offered a test that might prove ―helpful or even conclusive‖, these: a) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid … This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable (…) is probably more interesting than material. c) There is a presumption (but no more) that it is penalty when ―a single lump sum is made payable by way of compensation, on the

7

[2003] EWCA Civ 166. This was not a case in which the courts had to decide whether a clause was enforceable as liquidated damages or void as a penalty. It was a summary judgment application and the court simply had to decide whether there was a triable issue. 8

[2005] EWCA Civ 963 at para. 38.

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occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage. d) On the other hand: It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost impossibility. On the contrary, that is just the situation when it is probable that preestimated damage was the true bargain between the parties.9 The notion of penalty has received a lot of attention tin cases to date, one of the most pivotal judgments in regards to this is the judgment of Colman J in Lordsvale Finance Plc v. Bank of Zambia: ―Whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.‖ Two more important conclusions to draw are that when the courts are looking at commercial contracts between parties of equal bargaining power, the courts are willing to uphold liquidated damages clauses10. The second is that the courts appear to be adopting what Treitel terms a ―broader approach‖ to construction, which means that the court no longer looks to whether the 9

[2005] EWCA Civ 963 at para. 38.

10

This ―reluctance to find clause penal‖ is noted in Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26-172.

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main function of the clause in question was to compensate the deprived party or deter from breach.11Alongside this, a clause that makes allowances fro extra payments to be made by a party can also be enforceable if it was commercially justifiable even though it was not a pre-estimate of loss. Predisposition to uphold liquidated damages clauses in commercial contracts As mentioned, above, the courts willingness to uphold liquidated damage clauses between parties of equal bargaining power. The concept was first seen in Philips Hong Kong Ltd. v The AG of Hong Kong12, which discussed that the power to strike out a penalty clause is hampering the concept of freedom of contract‘. The justification for letting parties on a n equal footing decide their own contractual terms was in order to give parties the power to decide what they felt was suitable for their circumstances. In Alfred McAlpine Capital Projects v. Tilebox, the judge made (among others) the following observation: ―…the courts are predisposed, where possible, to uphold contractual terms which fix the level of damages for breach. This predisposition is even stronger in the case of commercial contracts freely entered into between parties of comparable bargaining power.‖13

11

Treitel, The Law of Contract para. 20-139: ―While the rule against penalties continues to apply, and it is still necessary to ask, at least in the first instance, whether the clause in question amounted to a genuine pre-estimate of loss, the courts have emphasised that they should adopt a ―broader approach‖. 12

(1993) 61 BLR 49.

13

At para. 48.

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THE “BROADER APPROACH” TO CONSTRUCTION The broader approach to assessing liquidated damages clauses is in relation to the predominant function of a clause if to compensate for or deter from breach. The second (related) element to the ―broader‖ approach‖ which emerges from some of the recent cases is that a clause will not necessarily be struck down as a penalty even if it was not a genuine pre-estimate of loss, if its inclusion in the contract was ―commercially justifiable‖, or not ―oppressive‖.14

This development began in the Lordsvale case (which,

again, is referred to in para. 15 of the extract from Mance LJ‘s judgment in the Cine case above) and was initially seen in cases involving clauses that impose a higher rate of interest on a party who has defaulted. As Chitty notes, it ―seems that the courts will uphold default interest clauses provided that the increased rate of interest is not commercially unreasonable‖.15 Lordsvale involved two facility agreements between the defendant back and the claimant syndicate.

The agreements provided that, in the event of

default, the defendant had to pay additional interest (consisting of certain costs to the lenders for participating in the loan, a margin of 1.5% and an additional 1%). The defendant failed to repay advances under the facility agreements as they fell due. The court found that there was no reason why a contractual provision, the effect of which was to increase the consideration payable under an contract on the occurrence of a default, should be struck down as a penalty if the increase could be explained as commercially justifiable and its dominant purpose was not to deter the other party from 14

This development is noted in Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26-171. 15

Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26182.

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breach.16 The court considered that provision for a ―modest‖ rate of increase in the interest rate would not be struck down as a penalty. 17

The

predominant function of the additional rate of 1% was not considered to be in terrorem of the defaulting party. The court found that the increase was: ―(…) consistent only with an increase in the consideration for the loan by reason of the increased credit risk represented by a borrower in default‖.18 Later cases involving higher interest rates triggered by default have followed this ―commercial justification‖ approach.19 However, it can also be seen outside the context of default interest. The Court of Appeal decision in Murray v Leisureplay, which involved a contract of employment, is key in this respect.20 The claimant, employed as a chief executive director of the defendant company, had a service agreement under which he was entitled to a year‘s notice.

The agreement also provided that if the employer

wrongfully terminated by giving too little or no notice, the employee would be entitled to a year‘s salary, pension and other benefits in kind. The judge at first instance found this clause constituted a penalty on the basis that it failed to take account or make any allowance for mitigation from other 16

Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, at pp. 763H-764A.

17

Ibid, at p. 767B-E.

18

Ibid, at p. 767E.

19

In Taiwan Scot Co Ltd v The Masters Golf Co Ltd [2009] EWCA Civ 685 at para. 17, the Court of Appeal held that a rate of 15% was not penal: ―It was a rate agreed by two commercial concerns in the economic circumstances of the time and should not be lightly set aside.‖ Similarly, in North Shore Ventures Limited v Anstead Holdings Inc [2010] EWHC 1485 (Ch), the court found that an increase in the interest rate from 15 to 20% on default was justifiable and did not represent a penalty (see paras. 234-239). (N.B. This case was reversed on other grounds [2011] EWCA Civ 230, [2012] Ch. 31). 20

[2005] EWCA Civ 963.

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employment during the one year period. The Court of Appeal reversed that decision. The basis on which the Court of Appeal judges reached the conclusion that the clause was not a penalty, however, differs slightly. Arden LJ focused on comparing the amount of liquidated damages with the amount of common law damages. If there was a discrepancy, it would need to be justified.21 McGregor considers that she adopted the ―conventional approach‖ to construction.22

(However, note that Arden LJ did suggest that, when

performing the comparison exercise, ―market expectations‖ could be taken into account.)23 Buxton LJ on the other hand thought that this ―comparison‖ approach was ―rigid and inflexible‖.24

He preferred Dunlop test a) of

―extravagance and unconscionability‖ and found that neither the literal wording nor the spirit of that test applied on the facts (especially given that the penalty was imposed on the employer rather than the employee).25 Therefore it is very easy to conclude that the influence of the Murray ruling has had a great impact on the way clauses have been interpreted.In General Trading Company (Holdings) Ltd v Richmond Corporation Ltd, the judge found that the writing off of 90% of the consideration for the purchase of shares where the seller had failed to procure a loan guarantee was not penal.26The particular circumstances of the case was such that the clause was commercially justifiable as it did not amount to a form of oppression and it 21

See para. 54 et seq.

22

McGregor on Damages, 18th edition, para. 13-020.

23

At para. 70.

24

At para. 111.

25

At para. 112.

26

[2008] EWHC 1479 (Comm).

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was negotiated and freely entered in to between parties who were on equal footing. A similar case arose in the instance of Steria Limited v Sigma Wireless Communications Limited confirmed that there should be a considerable amount of discrepancy between the level damages provided for in the clause and the actual loss that has been sustained. The influence of Murray has been profound; however the main authority in this area is still the Dunlop case27. The Murray case has just further clarified the Dunlop principles. The Murray principles allow for a greater and broader attitude to be applied to the interpretation of liquidated damage clauses. There was also a greater emphasis on a more commercially friendly approach.

CONCLUSION It is very difficult to locate authority to support the position that liquidated damages clauses, by their very nature, operate to limit or ―cap‖ the breaching party‘s liability. After a thorough investigation into precedents, I was not able to find a direct statement to this effect in the case law. However, key propositions in the academic texts are evident, which derive support from the case law. These arise in the context of cases where the sum stipulated is disproportionately

27

Murray v Leisureplay[2005] EWCA Civ 963 at para.44, where Arden LJ acknowledged the ―continued usefulness of the authoritative guidance given by Lord Dunedin in Dunlop‖.

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small in relation to the loss likely to be suffered, which Chitty describes as ―under liquidated damages‖.28 In a section of his book entitled ―Limitations of liability by way of liquidated damages‖, McGregor likens such under liquidated damages clauses to clauses limiting liability, stating: ―A small agreed sum of this type is indeed akin to a clause limiting the extent in damages of a party‘s liability; it differs from such a clause only in that it does not represent a ceiling beyond which the recoverable damages cannot rise but forms the exact amount that may be recovered even if in the result the actual damage is less than the stipulated figure.‖29 The conclusion therefore leads to the simple connotation that, by way of liquidated damage clauses, parties will deliberately have agreed that the financial loss sustained should be recoverable. Parties are free to decide what they feel is suitable as long as it does not amount to a penalty. These trends clearly demonstrate the ―no less but no more‖ principle underlying liquidated damages.

28

Chitty on Contracts (31st edition, incorporating First Supplement), Volume 1, para. 26189. 29

McGregor on Damages, 18th edition, para. 13-089.

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Role for Sanctions in the WTO: Case for Developing Countries Pallavi Khanna1

INTRODUCTION In today‘s world, the political landscape is changing at a fast pace. The advent of globalisation and the changing economic patterns have led to a shift in policies and reshaped the approach of countries towards each other. Though the essence of global harmony lies in cooperation between all states, gradually, the thirst for power and domination has manifested in the form of competition and consequently given rise to antagonism between nations. This is clearly witnessed in the ways countries trade with each other. Though theoretically international trade was to be done through mutual cooperation, keeping in mind interest of all, especially the poor nations, the reality are not as perfect as one would assume to be. The power imbalances in the world have caused some countries to be subordinated by the others even in the way they trade. The larger economies have been attempting to control the trading practices of weaker nations and in turn regulate the way the former develop and they exercise this control in subtle ways such as denial of aid or by enforcing sanctions which are legitimate means of ensuring compliance with rules of world trade and hence cannot be assigned the negative connotation 1

BA.LLB. (Hons.) Candidate at the National Law School of India University, Bangalore, India. The author can be reached at pallavikhanna093@gmail.com.

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of ‗arm twisting‘. The absence of a level playing field is evident through a number of disputes which show how the developing nations have to constantly fight the oppression of the developed countries in order to protect and promote their legitimate interests. The literature studied almost unanimously reveals that though the World Trade Organisation (hereinafter referred to as ―WTO‖) was hoped to liberalise trade and help in growth of developing economies, it has been unable to achieve this goal on account of the deficient circumstances of the developing world and power play in the global economy. The scholars whose works have been studied have definitely acknowledged the importance of tools like sanctions to ensure compliance with WTO rules so that trade liberalisation can be achieved, but they have not been shy to admit that sanctions have also been misused by powerful countries to command adherence or perpetuate their dominance over other countries. In fact, many articles have highlighted disputes where the use of sanctions has been challenged and have critically examined them in light of need for compliance and preservation of sovereignty. The changing equation of the North and South is also traced by analysis of the factors which created distrust between the two spheres of global trade. Though the status of developing countries at the WTO during different phases has been reviewed, the focus is more on their participation now than it was earlier. The issues of linking trade to labour and environment issues have also garnered immense academic coverage given the rising concerns for worker rights and environment health in today‘s world. It was interesting to note that while scholars have been cautious in discussing the debate around these issues, an Indian scholar pointed out that the US media depicted the developing countries‘ opposition to labour standards as antagonism towards western values or as attempts of 131


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the elite to continue exploiting labour and even as a tool to use cheap labour in the guise of competitive advantage.2 It is obvious that it is scholars from the developing world who have condemned the social clause and highlighted the implicit subordination of weaker nations but there has been consensus on the fact that there are loopholes inherent in the system and in the global economy because of which the developing countries have been unable to control the discrimination. However, in light of increased membership at the WTO and rapid economic growth, there has been optimism amongst academics about the fact that the developing world has become a key player in the global economy and it seems there is potential for the bias or armtwisting to end.

THE WORLD TRADE ORGANIZATION (WTO) The WTO is a special intergovernmental institution which brings together all negotiations that took place under the GATT (General Agreements on Tariffs and Trade) and the new WTO pacts and links them under a single WTO dispute settlement system. All WTO members are required to conform to rules of all these agreements and those of GATT as well. The WTO has a broader mandate than GATT since it includes new areas such as services, Intellectual Property Rights and agriculture in its agreements. It was a product of the Uruguay Round (1986-1994). The geopolitical changes such as a need of shared global values and shift towards economic integration, liberalisation and cooperation led to the emergence of the WTO. Thus the 2

S. Gopal, American Anti Globalisation Movement: Re-examining Seattle Protests, 36(34), ECONOMIC AND POLITICAL WEEKLY, 3226, 3228 (2001)

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WTO came into being as a global regime founded on formal rules that were to govern the complex trade flows, provide a forum for negotiations, supervise dispute settlement and monitor trade policy.3

LIMITATIONS OF WTO The WTO influences economic policies in a manner to promote trade liberalisation. However it has its limitations. Firstly, though the WTO is the chief platform of liberalising trade, it is not the only way this can be done. Some countries like Chile, New Zealand, and Mexico have reformed their trade policies and undertaken measures such as tariff reductions outside the ambit of the WTO multilateral negotiations. Secondly, global deliberations cause delays in enactment of desirable policies due to the prerequisite of international consensus and thus the benefits that the policy could have generated at the time are often lost. Thirdly, trade liberalisation is often confused with framing of rules of international trade and it is possible that the WTO codifies and institutes a bad trade policy as well. 4

FUTURE OF THE WTO The future of WTO is unsteady because members modify its agenda to suit their selfish interests. While some would want to broaden its scope to include 3

A. Lanozska, Emergence of the New Actors within the World Trading System: Developing Countries and the Future of Multilateralism, 33(4), INTERNATIONAL JOURNAL OF POLITICAL ECONOMY, 43, 45 (2003-04) 4

D.A. Irwin, Do We Need the WTO, 19(3), CATO JOURNAL, 351, 353, 354(2000)

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more trade issues under its ambit in order to further liberalise more sectors, moving at a fast pace in order to do so would make it hard to soak in the effect of previous policies and to conserve the enthusiasm for future negotiations. It would also result in making agreements for everything and not necessarily liberalise but regulate more of our economy. The WTO should concentrate on making trade across borders free and not keep broadening its scope in a hurry to adopt more issues. Some parties such as the developed countries also attempt to incorporate concerns like labour standards and environment regulations in the WTO agenda in order to regulate the development of developing countries and such unnecessary linking of these issues with trade liberalisation just burdens the WTO further.5

DEVELOPING COUNTRIES AT THE WTO Through the Uruguay Round, though developed countries were successful in getting what they wanted, i.e. inclusion of services and IPR, what they had promised to the developing countries i.e. equal access to multilateral trade, textiles, and agriculture were not easily achieved in practice. This forms the initial basis of discord between the developed and developing world. The developing countries felt that opening themselves to areas that the developed countries desired made their domestic domain vulnerable to interference. They feared that bringing more issues under the ambit of the WTO would lead to increased protectionism and the developed countries might use the trade agreements as an instrument for suspending concessions to poor

5

Supra note 9, at 354-356.

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countries under the guise of protection of worker‘s rights or environment and the developing country was not sure of its capability to meet the environment or labour standards set by the developed nations.6 The second cause of friction can be attributed to the consensus based decision making which requires consent of all members on any issue and this becomes difficult in light of the increased membership.7 The developing countries raised these concerns and also suggested trade reforms in agriculture, tariffs, subsidies, regional trade. A primary demand of the developing countries was that there should be flexible provisions to promote trade interests of developing countries for instance, extended transition periods, technical and financial aid, greater market access, special treatment in relation to subsidies, etc. for developing countries. However, the developed countries ignored the interest of developing countries leading to breakdown of negotiations8. Though the WTO as a legal entity was hoped to be isolated from power dynamics in world trade and at the time of its creation the developing world believed it would prevent the powerful developed nations from taking unilateral sanctions or participating in trade wars, it was soon realised that there were tensions between the developed and developing world. However, the developing countries have become powerful trading agencies and are learning how to use the trade regime to their advantage.9

6

Supra note 8, at 48-51.

7

Supra note 8, at 52

8

Supra note 8, at 54-56

9

Supra note 8, at 57

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The opposition of developing countries cannot be regarded as being anti imperialistic as much as it may be seen as being pro domestic economy. The Seattle debate consisted of various governments pushing their own agenda to get as much advantage possible for domestic production and maximise market access to other states while protecting its own vulnerable sectors. For instance, while India lobbied for its business interests, countries like the US proposed environment and labour standards, which if violated should be punished through trade sanctions.10 Though the WTO aims to promote open trade without barriers to facilitate movement of goods across nations, and some countries have been able to industrialise to the level they have only with the help of some kind of protection for their domestic industries from foreign competition, barriers tend to hamper development due to technological backwardness, producing lower quality of goods at high prices, etc. Hence for developing countries which are export oriented, market access is crucial and thus they opt for trade liberalisation. They, however feel that they are being forced by developed countries to remove import barriers which the developed nations themselves continue to have in place.11 In spite of there being a number of complaints by developing countries against the WTO, given that a large percentage of members of the WTO are now developing countries, they would be able to improve the working of the

10

R. Hensman, World Trade and Workerâ€&#x;s Rights: To Link or Not to Link, 35(15), ECONOMIC AND POLITICAL WEEKLY, 1247, 1248-1249(2000) 11

Supra note 15, at 1250-51.

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system to their advantage if they all work collectively for ensuring more democratic decision making and transparency. 12

THE NORTH – SOUTH DIVIDE The North –South antagonism can be traced to the early 1970s when the developing countries of the UNCTAD (United Nations Convention on Trade and Development) coalesced into G-77 to demand a new international economic order in light of concerns that the international trading system was subjecting developing nations to poverty and economic exploitation and thus price supports and technological transfers were needed in developing countries. The economic tyranny of the North resurfaced at Cancun, the only difference being that now the South at the WTO demanded unilateral trade concessions, compensation from the developed countries. The failure of the Cancun meet was attributed to the North South divide with the North condemning the agriculture and manufacturing tariffs of the Southern economies which themselves also opposed the agriculture subsidies of the North and their demands for inclusion of new issues.13 The North South divide goes further. The North has witnessed an enhanced protectionism towards the imports from the South more so when the South increases its presence in the manufacturing sphere. The developing countries cannot retaliate individually and this makes the WTO sanctions less credible to developing countries. The developing countries‘ access to markets of

12

Supra note 15, at 1251.

13

C.R. Sevilla, The WTO‟s North- South Conflict: A Dangerous New(Old) International Economic Order, 74(4), THE NATIONAL INTEREST, 121, 122 (2003-04)

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export goods in the North is threatened by the environment/labour standards that the South is expected to comply with while exporting. Also, the North does not open trade in areas that the developing countries value the most such as agriculture/ textile, etc. Thus protectionist tendencies of the North need to be curtailed and developing countries through the WTO should be encouraged towards free trade by regulating its discretion in trade policies. The WTO can be a credible commitment device by the threat of sanctions or removal of Most Favoured Nation status. 14

SANCTIONS A significant issue arising in the WTO pertains to compliance with the rulings of the dispute settlement board and the Appellate body. As per the WTO rules, when a defending party does not implement the decision of the Appellate Body, the complaining party is authorised to retaliate through trade sanctions. Not only is this sanction harmful to both parties, but its ability to enforce compliance is not certain either.15 ‗Sanction‘ is usually used to describe an act of coercion, backed by approval of the international community that is employed as a response to a breach of duties by a scofflaw nation. Hence it is a means to regulate the behaviour of governments.16 Dispute settlement at the WTO allows the use of sanctions

14

S.M. Murshed, When Will WTO Membership Signal Commitment to Free Trade by A Developing Country, 19(2), JOURNAL OF ECONOMIC INTEGRATION, 316, 316-319 (2004) 15

B.P. McGivern, Seeking Compliance with WTO Rulings: Theory, Practice and Alternatives, 36(1), THE INTERNATIONAL LAWYER, 141, 141 (2002) 16

S. Charnovitz, Rethinking WTO Trade Sanctions, 95(4), THE AMERICAN JOURNAL OF INTERNATIONAL LAW, 792, 794 (2001)

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against a member nation flouting the rules of the WTO. It is fruitful in strengthening WTO rules and ensuring they are adhered to but also gives rise to envy from nations which are sanctioned, thus diluting the benefits which may accrue from free trade.17 The power of sanctions has also resulted in increasing the status of WTO among international organisations. Sanctions are used as a means to display outrage and placate the injured party. Plaintiffs can go ahead and implement sanction after receiving approval of the WTO and do not need a bilateral agreement with the party complained against like in the case of compensation. Given that the Dispute Settlement Understanding is the deciding authority to supervise sanctions, the interest of the target country is not ignored while allowing or denying sanctions. The defending governments also benefit from sanctions because they can use it to overcome domestic political opposition it may be facing.18 Though sanctions are appreciated for being a tool to enforce trade rules, they sound a little absurd since the WTO was instituted to liberalise trade and sanctions go against the basic principle of free trade. The problem with sanctions is that they are employed at a punitive rate which might end up hindering trade in the product in controversy. Retaliation may not give adequate relief to the complaining party if it is denied market access by another country and restricting imports from the opposing party does not solve the problem of the complaining party sufficiently. Moreover tariffs

17

Supra note 21, at 792.

18

Supra note 21, at 812-814

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imposed in retaliation will increase costs for consumers and business in the complaining nation19 They are discriminatory in nature when only some governments are targeted. For instance even in the Hormones case, there was not a blanket ban on all EC countries but only some countries were selected.20 Trade restrictions also violate the basic human right of engaging in commercial business. It also ignores the fact that it is the individual who voluntarily trades with others and not state. Thus it may be irrelevant for the trading parties whether their country is a party to the WTO rules or not; however, the WTO interferes in the trade between individuals as well. This argument may be challenged on the grounds that it is the state asking for sanctions on behalf of its citizens and hence such action is legitimate but when it affects interest of consumer, then its validity can well be doubted.21 Sanctions were initially perceived to be a preferred alternative to coercion and war, but they have attracted a lot of criticism in the recent past on account of being misused. It is well known that the US has used economic sanctions as a ploy against countries that have not conformed to its sensibilities. Such unilateral sanctions greatly disadvantage the economically weak countries that rely on nations such as the US for foreign aid and even the politically unstable. In some cases sanctions are politically motivated and 19

Supra note 20, at 152, 153.

20

In the meat hormone case, there were complaints against restrictions imposed by the EC on imports of meat that was produced with the help of growth hormones. It was held that the ban on meat was against the WTO agreement on Sanitary and Phytosanitary Measures. Here also the EC was given reasonable time to comply by the DSB but since it did not do so, the US and Canada suspended tariff concession and immediately imposed duties on some EC products. 21

Supra note 21, at 809-812

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may be imposed for petty things just to appease the electorate and pressure groups. Thus such unilateral sanctions can have a bad influence on the economy imposing such sanctions by denying their markets in other countries, creating imbalances in trade, causing unemployment and distorting foreign policy.22 Financial sanctions in the form of restricting flow of funds from the International Monetary Fund and World Bank, stalling financial aid, freezing foreign financial assets are more persuasive in making the target government modify its policies. If the items that are subject to sanctions are easily available or domestically produced, then sanctions would not be very useful. For instance, the prohibition on arms in retaliation to the issue of apartheid in South Africa resulted in creation of a large self sufficient and exporting weapons industry.23 Sanctions have been imposed primarily to induce compliance in a number of cases such as the Bananas case where the banana import regime was inconsistent with the WTO rulings and hence the US and Ecuador were allowed to go ahead with retaliatory sanctions which were provisionally lifted after a provisional settlement. In the Hormone Case also the US suspended concessions and imposed duties on some agricultural imports from EC in retaliation of the EC ban on hormone treated beef which was in violation of WTO principles.24

22

C. Satapathy, Trade Sanctions and Other Barriers to Free Trade, 34(51), ECONOMIC AND POLITICAL WEEKLY, 3583, 3584 (1999) 23

Supra note 27, at 3584.

24

Supra note 20, at 145

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The WTO sanctions exert pressure on defaulting governments. Exporters facing retaliatory sanctions in complaining nations translate into restriction on access to markets there and hence these exporters might force the government to settle disputes. When bilateral relationship of governments start getting distorted due to commercial discord between two countries, it will automatically generate political pressure to resolve the matter. Also, giving an explanation to all WTO members for not complying will also be a factor motivating compliance. 25 The WTO should however re examine using retaliatory trade sanctions and seek alternate modes of compliance. Compensation in the form of increased market access to the defendant may be useful when there is lack of consensus on appropriate compensation. Imposing fines on defending party may also be a substitute for sanctions. 26 Collective retaliation was first proposed in the 1960s under GATT when developing countries claimed they do not have the capability of inflicting effective retaliation on large economies of developed countries. However this raises concerns of such kind of action exceeding the WTO authorised retaliation and governments would also be apprehensive of imposing sanctions which may jeopardise their own economic interest for the sake of resolving an unrelated commercial dispute.27 Some go on to suggest that punitive sanctions and not just those matching the level of harm suffered by a complaining party should be imposed, but

25

Supra note 20, at 153

26

Supra note 20, at 155

27

Supra note 20, at 155, 156

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this is not allowed under the WTO. However this would be a powerful way of deflecting harm that retaliatory sanctions may cause to the complainant.28

CONSTRAINTS OF THE DEVELOPING WORLD Though the term ‗developing country‘ is used frequently, its meaning is not defined under the WTO agreement. Hence, the classification of a developing country is done in an ad hoc manner. The term ‗developing country‟ suffers from ambiguity because there is no international consensus on it as the term is used in different contexts for different purposes. This has also lead to tension for example, the US and EU which both have their own standards of developing nations for their national preference programme, have refused to acknowledge countries like Singapore, Hong Kong, etc. as developing countries.29 The participation of developing countries in the WTO is far greater than it was under the GATT. This has given rise to the need to recognise their political power as they comprise a majority of membership of WTO. Though the developing countries are keen to implement a rule based system to benefit and protect the weaker countries, they continue to believe that developed countries are not honouring their promise of giving preferential treatment such as increased market access in specific areas, flexibility in

28

Supra note 20, at 156

29

M.Matsushita et al, THE WORLD TRADE ORGANISATION : LAW, PRACTICE AND POLICY, 374-375 (2002)

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meeting WTO commitments and assistance for capacity building of developing nations.30 Though theoretically, the developing countries are supposed to get preferential treatment in terms of lenient obligations with longer grace periods, etc. in order to safeguard their interest and afford them greater trade opportunities; in practice, they are victims of many disputes initiated by the developed countries. However, even when a developing country has legitimate complaints against a developed country‘s trade practices, it will not be easy for the developing country to raise such concerns. It will have to take into account a number of considerations before attempting to approach the WTO regarding this. Disputes at the WTO are expensive and unaffordable for the developing countries. Hence the developing country may not bring it up and this would in effect not make third parties aware of such a situation. In such cases, it would be preferable for the developing country to enter into bilateral negotiations with the other country. The only disadvantage being that the opposite party‘s knowledge about the financial weakness of the complainant may not yield concession. Such circumstances cause under representation of the poor developing countries in the WTO dispute settlement forum and legitimate issues may not be brought to the forefront.31 Developing countries still believe it is advantageous for their economic growth if they are members of the WTO. The relationship between the developed and the developing countries remains tense since the latter hopes

30

Supra note 34, at 378.

31

K. Iida, Is WTO Dispute Settlement Effective?, 10(2), GLOBAL GOVERNANCE, 207, 216 (2004)

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for a greater degree of preferential treatment than what the developed nations have extended to them. Traditionally, developing countries were eager for special access for their exports while proposing restrictions on imports and some traces of such policy continues even though they have become more open to trade. The linking of environment and labour to trade is viewed as restrictive on exports by the developing countries. Even though the developing countries form a huge chunk of the WTO, they do not play a very crucial role in most WTO ventures due to paucity of administrative capacity to wholly take part in WTO organisational structures. The inability of developing countries to wholly participate at all stages of negotiation or dispute resolution at the WTO also undermines the legitimacy of the system. If this issue is adequately addressed, then developing countries would have a more significant role in the WTO.32

DISPUTE SETTLEMENT SYSTEM (DSS) The DSS was hailed as being beneficial to the smaller developing and least developed countries because it would equip them with the necessary bargaining power against more powerful nations. However they have not been active participants in the DSS and this fuels concerns of whether they are actually gaining anything from it. The developing nations hoped that the setting up of the Dispute Settlement System would balance the unilateral measures they faced but it turned out to be a tool for enhancing the hegemony of developed nations. The structure of the DSS is biased in favour of the developed countries in terms of composition, location of the WTO

32

Supra note 34, at 389.

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headquarters and the language of the WTO, i.e. English which is the native language of most of the developed members.33 The developing countries contend that the WTO is an imbalanced institution designed to reinforce the existing power structures and they hold the lack of flexibility in the core terms of the WTO responsible for widening the gap between the developed and developing nations. Article 27(2) of the DSU which allows special legal assistance to developing countries and Article 24 which discourages members from employing dispute settlement against the least developed countries is seen as an acknowledgement of the power imbalance.34 There are a number of constraints preventing the developing countries from taking advantage of the WTO dispute settlement system. The system is criticised for being complicated and costly because when governments are unable to employ effective internal legal advisers they have to resort to external legal aid which is very costly and private industries do not give adequate financial support to the government. The smaller stakes in trade and the lesser budgets of developing countries make it difficult to meet these costs.35 The high costs can be attributed to the multiple levels of dispute settlement under the WTO. For instance, unlike the developed countries, the developing 33

D.N Goyos, The Threat Posed by WTO to Developing Countries, 35(1), THE COMPARATIVE AND INTERNATIONAL LAW JOURNAL OF SOUTHERN AFRICA, 52, 58 (2002) 34

B. Manning & S. Ragavan, The Dispute Settlement Process of the WTO: A Normative Structure to Achieve Utilitarian Objectives, 79(1), UKMC LAW REVIEW, 1, 5 (2010) 35

H. Nottage, Developing Countries in the WTO Dispute Settlement System (GLOBAL ECONOMIC GOVERNANCE WORKING PAPER), 5 (2009)

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countries have rarely initiated disputes under the SPS Agreement (Agreement on Application of Sanitary and Phytosanitary Measures) on account of lack of technical expertise needed for it even though most of the exports of developing countries are agricultural products; it is this Agreement which seeks to ensure that trade policies on animal and plant products are not used as cloaked attempts to restrict international trade.36 The DSS has provisions to solve cost related constraints and under Article 27.2 of the DSU, the WTO is to extend additional legal aid to developing countries but it has not been fruitful. However, setting up of the Advisory Centre on WTO law which though independent of the WTO, gives legal advice and technical expertise to developing countries in dispute settlement proceedings at no cost or highly subsidised price, has been effective since it is funded by contributions from developed and developing countries37 A significant concern of the developing countries with respect to the DSS is that they are unable to enforce positive orders against the powerful scofflaw members. This is because even though the DSU authorises retaliation against non compliance in the form of suspending trade concessions and obligations, the developing countries have smaller domestic economies and are incapable of imposing significant economic losses(through raised tariffs for imports from non complying nations) on the larger WTO members to pressurise them to conform. Moreover, such suspensions turn out to be more harmful to the developing country. Thus developing countries propose use of other measures such as compensation, collective retaliation, etc.38 Apart from 36

Supra note 40, at 4.

37

Supra note 40, at 6.

38

Supra note 40, at 6.

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this, the inability of developing countries to recognise trade barriers, fears of retaliation of developed countries in development assistance, lengthy proceedings, trade under unenforceable preferential rules, etc are some of the other hindrances faced by developing countries.39 Developed countries, however, are better equipped than developing countries to handle lengthy proceedings with high costs. Since the EU and US are one of the largest economies, they account for most of the disputes at the WTO and hence hire a number of experts and have in house personnel specialised in handling WTO disputes.40 Legal assistance can be extended by either allowing free or discounted legal advice to developing countries or by enabling the developing country complainants

to

recover

the

expenses

from

the

opposite

party.

Reimbursement of legal expenditure would help and enable them to contract external legal assistance. Monetary compensation for violation of WTO rules is also a possible remedy. If these cannot be implemented then the procedures should be made cheaper and mediation or even institution of a small claims centre with simple procedures can help.41

LABOUR AND ENVIRONMENT STANDARDS Labour and environment support groups are concerned that the WTO is taking the form of an uncontrolled world government. They have started 39

Supra note 40, at 11-15.

40

G.N. Horlick, The WTO and Developing Countries, 100, PROCEEDINGS OF THE ANNUAL MEETING (AMERICAN SOCIETY OF INTERNATIONAL LAW), 220, 220 (2006) 41

Supra note 45, at 223.

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perceiving it to be a powerful organisation that seeks to satisfy interest of the wealthy corporate that are gaining from the market access WTO allows. Those opposing the WTO fear that their national sovereignty to enact domestic laws is threatened by the WTO‘s mantra that governments should not deviate from their WTO commitments. However, this fear has been challenged by those who say that the WTO uses its power to discourage invasion of national sovereignty.42 For instance, in the Beef Hormone case, the US challenged the EU regulations that restricted US beef produce(claiming that beef produced from cows given artificial hormones was risky for health) from EU markets on the grounds that it violated WTO rules and negotiations entered into by EU and US. The WTO‘s authorization permitting US to retaliate by increasing tariffs on milk/cheese products of some EU countries when it did not alter its regulations gave rise to concerns of national sovereignty being threatened. However, this concern might be unwarranted since the WTO authorised retaliation only up to a limited extent, and without its supervision, the US might have retaliated in an unfair manner in order to pressurise EU to modify its domestic law.43 Many industrialised states have made attempts to link market access of their countries with the social policies of others. Through a social clause containing a set of standards, countries would be allowed to increase import tariffs on products of those countries not meeting the set standards. In the US Shrimp Turtle case also, non installation of turtle extraction devices as

42

K. Bagwell & R. Staiger, National Sovereignty in the World Trading System: Labour, Environment and the WTO,22(4), HARVARD INTERNATIONAL REVIEW, 54, 54 (2001) 43

Supra note 47, at 55.

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required by the US resulted in the US restricting imports of shrimps from India and other countries.

The issue which arose was whether it was

legitimate for a country to employ trade sanctions to compel another country in absolutely different circumstances to comply with its established standards. The appellate body rules against the US. However in order to enhance the competitiveness of domestic products in international markets, countries might compromise on their labour and environment standards. The social clause, apart from resulting in ceding national sovereignty in the guise of propagating sound labour and environment policies, also draws an unreasonable linkage between domestic standards of one country with the punitive tariffs of another and hence mandates the developing nations to adopt a minimum set of standards. 44 Trade unions are interested in linking trade with rights of workers since in the absence of this, all production tends to get shifted to areas where labour laws are weak and this pressurizes other countries to be lenient with rights of workers as well in order to be attractive as an investment market. However, developing nations argue that labour rights are not related to trade and hence should not form a part of trade agreements. But this is challenged on account of the intrinsic involvement of labour in the production process. The developed countries arbitrarily use labour standards to stop importing from developing countries. Objections to trade sanctions imposed on nations where these rights are not respected can also be raised when it is impossible to certainly determine the prime culprit which may not always be the government but organisations like IMF or World Bank which curtail

44

Supra note 47, at 56, 57.

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government expenditure and this in turn leads to poverty, unemployment, etc.45 Sanctions do not encourage developing nations to undertake environment friendly decisions. Critics of the WTO opine that the organisation hinders legitimate attempts of some countries to phase out imports of products that violate the environment by upholding challenges to environmental protection. For instance in the tuna dolphin case, pre WTO panels had set aside the ban imposed by US on imports of tuna trapped by nets that unintentionally also trapped dolphins. Though this was not formally adopted and hence did not form legal precedent, environmentalists condemned this decision for threatening the environment. In another case, the WTO held that US was wrong in blocking imports of Venezuelan and Brazilian gasoline on grounds of it violating its clean air policies. This decision also attracted similar criticism from environmentalists although the appellate body had upheld the legitimacy of clean air law but only rejected the restriction since it subjected foreign suppliers of gasoline to harsher yardsticks than those applicable to domestic suppliers. In the famous shrimp turtle dispute as well, it was ruled that the US was wrong in blocking shrimp imports from countries that did not need fishing fleets to employ devices needed to protect sea turtles but when the US regulations were challenged later on by Malaysia, the WTO supported the US and reiterated the importance of sustainable development as one of its goals.46

45

Supra note 15, at 1252.

46

M.M. Weinstein and S. Charnovitz, The Greening of the WTO, 80(6), FOREIGN AFFAIRS, 147, 151-152 (2001)

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The appellate body rulings in the Shrimp dispute ignores the significance of market access in helping developing countries acquire necessary resources for implementation of policies or generation of income. Thus though the US sought to impose unilateral sanctions for conserving sea turtles, ironically, it is not a party to the Kyoto Protocol where humanitarian issues are at stake, this gives rise to the image of a powerful north using unilateral measures to compel the weaker south to accept the environmental agreements but not subject itself to constraints which go against its interest. Thus sanctions compel third world to accept such agreements and the power structure prevents them from ensuring compliance of powerful economies.47 A proposal to make the WTO more environment sensitive is the incorporation of a precautionary principle which would allow countries to block imports dangerous for health, environment etc. This may increase vulnerability to protectionism, health/environment fanaticism. Thus, instead, allowing for legal room to set high standards in case of uncertain risks might be a better alternative.48 Trade sanctions have the risk of giving rise to protectionism but they may also be the only tool of instituting core standards of labour to protect interest of workers and those human rights that have to be upheld across boundaries but they must be put in force after negotiations. 49

47

B.S. Chimni, WTO and Environment: Legitimisation of Unilateral Trade Sanctions, 37(2), ECONOMIC AND POLITICAL WEEKLY, 133, 137-138 (2002) 48

Supra note 51, at 152-154.

49

A. T. Guzman, Trade, Labor, Legitimacy, 91(3), CALIFORNIA LAW REVIEW, 885, 886 (2003)

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Actions against nations violating core standards need not be in the form of sanctions. Penalties may be imposed in the form of embargo or fines or withholding financial aid. Also, just because trade sanctions are preceded by international negotiations, it does not justify taking away a state‘s sovereign right to decide whether it wants to be a part of that arrangement or not.

CONCLUSION The researcher concludes that the hypothesis that structure of the WTO is heavily biased in favour of developed nations stands true. The developing economies on the other hand are still struggling to get their rights recognised and to safeguard their interest. Some inherent weaknesses of the developing nations such as lack of adequate financial and technical resources, insufficient stake in the global market reduce their bargaining power against developed nations and this causes them to ultimately settle at a compromise that is unfair. The powerful countries are very cleverly using social clauses to protect their economies under the veil of environment concerns or worker rights. Neglecting the interest of the developing economies has created further resentment against the North which has not honoured its promises to the growing economies but has secured their cooperation to satisfy their own economic interest. The developing nations have so far been submitting to the strictures imposed by the powerful countries which exert their strong economic and political influence on the decision making of the WTO. The bias of the WTO has only increased the chasm between the developed and developing world. The economies of the developing world are fragile and are impacted tremendously by any adverse decision of the WTO, the exposure has grown with the widening ambit of the WTO. 153


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The developing nations need to work out a defence mechanism against the hegemony of the richer and consequently more assertive members of the WTO. The developing nations need to have a larger role in the negotiations at WTO; they need to unite to be more effective in the decision making. They should use their larger numbers and votes and ensure that WTO works fairly. The developed world is strategising to increase the subjects which fall under the purview of the WTO, this is an exercise aimed at controlling the economic growth of the developing world. This presents a new challenge which must be effectively countered by presenting a united front and by being more vocal at the WTO conclaves. Meek submission or indifference may prove severely detrimental in the long run. Therefore active interest, meaningful engagement, well preparedness, tough negotiating skills, resolute will and unity shall help counter the adverse decisions of the WTO and also enable the developing countries to use WTO more effectively. The WTO, on its part needs to provide a fair and equal platform to all member nations where disputes can be resolved judiciously and the principles of liberal trade are promoted to strengthen and promote global economy.WTO needs to salvage its reputation hit by the charges of power politics and consequent biased decisions favouring the powerful and richer nations. This connivance can have serious economic implications and political repercussions apart from influencing the trust factor of the developing world. The WTO can redeem this lost trust by the promise of more comprehensive negotiations in the future and provide a level playing field for the same. This has to be substantiated by action for mere posturing will not suffice now. The endeavour on its part should be to create a congenial environment which facilitates the flow of trade and inspires trust. A larger responsibility, in fact is of the developed world which needs to be 154


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more compassionate towards the poorer nations and not seek to stall their growth by vengeful sanctions and unfair economic policies as in the case of textiles and agriculture. This, of course requires political intent, the use of social and environmental issues to create barriers for Southern economies need to be curtailed. This inequity and chasm needs to be bridged by the WTO. This can be resolved by a more transparent and accountable system which is fair, encourages dialogue and envisages development of all member nations while promoting fair trade. The onus is not only with the WTO; the developing nations should work in solidarity and rise above their selfish interests to counter the dominance of the rich nations at such forums. WTO, which is almost a global government, has to be a democratic body where all members are treated equally and fairly. The trade goals should not overshadow the development of the weaker economies. Economic solutions and fair trade practices can emerge in a non confrontational atmosphere, where cooperation and healthy competition replace retaliatory approach and unfair trade and political policies. Global powers are not expected to make radical changes but a strong signal by WTO can send the right message to these nations. Obstructive trade practices will not be tolerated and neither would the developing economies be subjected to ‗arm twisting‘ tactics-this needs to be assertively conveyed to the developed nations. Economic sanctions may be a deterrent for defaulting countries but alternate solutions and methods need to be found. Also, the Dispute Settlement mechanism needs to be made more approachable and economical for developing countries The researcher has restricted the scope of the project to some core issues which have been extensively studied such as sanctions, problematic relations 155


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between the north and south, obstructions faced by the developing world in world trade, etc. Given constraints of space, the researcher hasn‘t presented done sufficient analysis of the perspective of the developed world and the paper may be regarded as minutely biased in this regard. A detailed examination of the growth and importance of the WTO has been avoided as well in order to concentrate on the primary debate of sanctions in the WTO and the stance of the developing world in the global economy.

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VOLUME 2

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157

NILS Law Review (Vol. II) by The Network for International Law Students  

The second volume of the flagship law journal of The Network for International Law Students - NILS Law Review. This volume constitutes of a...

NILS Law Review (Vol. II) by The Network for International Law Students  

The second volume of the flagship law journal of The Network for International Law Students - NILS Law Review. This volume constitutes of a...

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