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This Month in International Law - January 2019

US-EU trade deal back on track?

EU trade chief Cecilia Malmstrom indicated that Brussels is eager to negotiate toward a zero-tariff industrial trade deal with the United States. The talks would cover imported American cars, but Europe’s refusal to incorporate U.S. agricultural exports into the negotiations remains a major sticking point. Bernd Lange, chair of the European Parliament’s trade committee, dismissed the talks as “a concept to de-escalate” tensions unlikely to “lead to a result.”

Brexit negotiations do not impact host state status in Dublin III Regulation (Refugee Regulation)

The UK’s pending withdrawal from the European Union does not negate its responsibilities under the so-called Dublin Rules, which authorize member states to return asylum seekers to their point of entry.

France, Germany, and UK unveil payments mechanism to facilitate trade with Iran

The Instrument for Supporting Trade Exchanges (INSTEX) will enable European entities to buy Iranian goods directly, bypassing the U.S. financial system and avoiding U.S. sanctions. In response, the U.S. embassy in Berlin warned of “severe consequences.”

International Criminal Court acquits Laurent Gbagbo, former Côte d'Ivoire president, on crimes-against-humanity charges

The ICC said that the prosecution had not met its burden of proof regarding Gbagbo’s role in fomenting post-election violence in 2010-2011. Gbagbo has been conditionally released to Belgium, pending a possible appeal.

Central African Republic: Former militia leader transferred to International Criminal Court
France has transferred custody of Patrice-Edouard Ngaissona to the ICC. Mr. Ngaissona, a member of African football’s top governing body, reportedly led “anti-balaka” attacks on Muslims in 2013-2014. The accusations include murder, torture, and recruitment of child soldiers.

The demise of arbitration under intra-EU bilateral investment treaties ("BITs")

In a declaration acknowledging the Court of Justice of the European Union’s Achmea decision, 22 member states conceded that intra-EU BIT arbitration clauses violate EU law and that arbitral tribunals no longer have jurisdiction over BIT claims.

ECJ Advocate General: EU-Canada investor rules are lawful

The rules are part of the Comprehensive Economic and Trade Agreement (CETA), in force since 2017. The Advocate General insists that the challenged provisions leave ECJ supremacy intact, rejecting criticism to the contrary. It remains to be seen whether the ECJ will follow his opinion.

Five new non-permanent UN Security Council members begin their two-year terms

Belgium, Dominican Republic, Germany, Indonesia, and South Africa began their tenure as non-permanent members of the Security Council on January 1st. For Germany, this two-year period will bring about an increased stature on the world stage, alongside an opportunity to bring the link between climate change and conflict within the mandate of the Security Council.

ECJ rules Austria’s Good Friday holiday discriminatory

Austrian law had permitted members of only four Christian sects – the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church, and the United Methodists – to take paid leave on the Friday before Easter. The court deemed the special treatment “direct discrimination on grounds of religion.”

Preliminary ECJ opinion limits right to be forgotten to EU-accessible domains

An ECJ advocate general, citing the need to balance privacy with information access, said that a search engine operator like Google must “ensure full and effective de-referencing within the EU” but need not “carry out that de-referencing on all the domain names of its search engine.” Google is disputing a fine imposed by French regulators for failure to remove an individual’s name from all its domains.

Japan and Hong Kong agree to collaborate on international arbitration and mediation
A memorandum of cooperation concluded last month commits the parties to exchange information, conduct training for individuals and institutions, and organize forums and seminars, with the ultimate goal of facilitating “development of services for international arbitration and mediation in their respective jurisdictions.”

UN Security Council establishes monitoring mission for Yemen truce

The UN Mission to support the Hodeidah Agreement (UNMHA) will consist of up to 75 observers and will monitor the warring sides’ adherence to a commitment to halt hostilities in Hodeidah, redeploy forces from the city and its ports, and conduct prisoner exchanges. Both the Houthi rebels and the government have alleged multiple violations of the ceasefire since its signing in December.

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