20 Jan YEAR IN REVIEW 2020: INTERNATIONAL LAW
Cases on China Due To The Virus
- The coronavirus pandemic has affected every nation in the country and the number of deaths caused by the virus continue to affect millions across the globe. One of the main causes for the uncontrollable spread of this virus is the fact that China did not alert the World Health Organisation in time about the spread of this virus within its domestic precinct and travellers continued to travel to and from China carrying the virus with them.
- The world holds China accountable for the spread of this deadly virus and every country wants China to pay for the damage that it has caused. Some countries are trying to hold China accountable by suing the country in its domestic courts.
- Missouri became the first US State to sue China, alleging that Beijing suppressed information, arrested whistle blowers and denied the contagious nature of coronavirus that led to the loss of lives and caused “irreparable damage” to countries globally
- Filed in the US District Court for the Eastern District of Missouri, the lawsuit was filed by Missouri Attorney General Eric Schmitt against the Chinese government, the ruling Chinese Communist Party, and other Chinese officials and institutions.
- The lawsuit alleges that during the critical weeks of the initial outbreak, the Chinese authorities deceived the public, suppressed crucial information, arrested whistle blowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment (PPE), causing a global pandemic that was unnecessary and preventable.
- The lawsuit seeks relief on one count of public nuisance, one count of abnormally dangerous activities, and two counts of breach of duty. Remedies could include civil penalties and restitution, abatement of the public nuisance, cessation of abnormally dangerous activities, punitive damages and more.
- Not only in the U.S., but even lawyers from India are filing petitions in International courts in order to hold China accountable. Mumbai-based lawyer Ashish Sohani filed a petition in the International Criminal Court (ICC) in the Netherlands, suing the Chinese premier Xi Jinping and four other officials for criminal negligence, wilful suppression of information and “treason against humanity”. The petition asks for compensation to be paid to the Indian government.
- Another petition was filed was Dr Adish Aggarwala, President of International Council of Jurists (ICJ) and the author of Narendra Modi: A Charismatic & Visionary Statesman, also filed an email complaint with the United Nations Human Rights Council alleging that the virus was China’s conspiracy at “biological warfare”.
Signing of Rcep – Implications For International Trade And India
- Described as the “largest” regional trading agreement to this day, RCEP was originally being negotiated between 16 countries — ASEAN members and countries with which they have free trade agreements (FTAs), namely Australia, China, Korea, Japan, New Zealand and India.
- The purpose of RCEP was to make it easier for products and services of each of these countries to be available across this region. Negotiations to chart out this deal had been on since 2013, and India was expected to be a signatory until its decision last November.
- However, India decided to exit discussions over “significant outstanding issues”. Its decision was to safeguard the interests of industries like agriculture and dairy and to give an advantage to the country’s services sector. According to officials, the current structure of RCEP still does not address these issues and concerns. RCEP also lacked clear assurance over market access issues in countries such as China and non-tariff barriers on Indian companies.
- There are concerns that India’s decision would impact its bilateral trade ties with RCEP member nations, as they may be more inclined to focus on bolstering economic ties within the bloc. The move could potentially leave India with less scope to tap the large market that RCEP presents —the size of the deal is mammoth, as the countries involved account for over 2 billion of the world’s population.
- Given attempts by countries like Japan to get India back into the deal, there are also worries that India’s decision could impact the Australia-India-Japan network in the Indo-Pacific. It could potentially put a spanner in the works on informal talks to promote a Supply Chain Resilience Initiative among the three.
- The RCEP is expected to eliminate a series of tariffs on imported products for the member nations in the coming 20 years. The agreement also includes rules on intellectual property, telecommunications, financial and professional services, and e-commerce . Under RCEP, member nations would be treated equally. It would also incentivise companies in member nations to look at the trade region for suppliers.
Guyana Venezuela Border Disputes
- The history of the border dispute between Guyana and Venezuela can be traced back to the 1890s when Guyana was still a British colony and the UK and Venezuela both claimed certain territory. An international tribunal of arbitrators from the UK, the US and Russia drew boundaries for Venezuela and the former colony of British Guiana in 1899.
- The territory demarcation worked in Britain’s favour. Guyana’s allotment had abundant natural resources. Venezuelan officials immediately claimed that the agreement was unfairly influenced by collusion between the British and Russian arbitrators. This resulted in tumultuous relations between Guyana and Venezuela throughout the 20th century. This dispute was attempted to be settled in 1966 through a plan known as the Geneva Agreement. This agreement delegated bodies which could intervene in the controversy.
- The agreement, however was unable to lead to a resolution, but in 1970, a 12-year moratorium was negotiated on Venezuelan efforts to reclaim the territory.
- Tensions between Venezuela and Guyana remained stable until 2013. The Venezuelan Navy seized a Guyanese ship surveying for oil in disputed maritime territory. Guyana then secured a contract with ExxonMobil to drill in the contested zone. This controversy reignited border arguments. Under the 1966 agreement, the ensuing dispute was to be heard by the UN secretary-general. When negotiations failed again, Guyana brought the issue to the ICJ. In taking the case to the ICJ, Guyana looks to authorize the division of the area with Venezuela.
- The dispute was taken to the International Court of Justice (ICJ) in 2018. Venezuela did not participate in the hearing that was held on June 30, 2020, arguing that the ICJ did not have jurisdiction.
- On December 15, 2020 the ICJ ruled that it has jurisdiction to intervene in this historic boundary dispute between Venezuela and Guyana. As the case goes forward, it will focus on the legitimacy of the treaty of arbitration that led to the 1899 arbitral award.
Vodafone- India Arbitration Award Rendered Against India Worth Billions And The Recent Award Against India In The Cairn Treaty Arbitration
- The most highly criticized retrospective Tax regime of India which took effect in the year 2012, resulted in the Investment Treaty Cases against India – Vodafone International Holdings BV v. The Republic of India also known as the Vodafone case and Cairn case.
- Both these cases have been ruled in the favor of the foreign Investors.
- In the Vodafone case, the permanent Court of Arbitration held that the imposition of taxation through a retrospective amendment of the domestic tax regime in India, is violative of “fair and equitable treatment” which was essentially under the Bilateral Investment Agreement (BIT) between India and Netherlands.
- However, the government of India is again trying to challenge the International Arbitration ruling which is in favor of the Vodafone Group that quashed the Income Tax Department’s retrospective demand of rupees 22,100 crores.
- On 25th September the Permanent Court of Arbitration (PCA) Article 4(1) of the Bilateral Investment Treaty between India and Netherlands and also warned India that the failure to comply with it would result in ‘International Responsibility’. This decision resurrects the 2012 decision of the SC and also shows that India was not able to present the case well before PCA.
- In the case of Cairn v. The Republic of India, it was held that India had failed to give regards to its obligations in the Bilateral Investment Treaty of 1994 between India and UK. India is supposed to compensate Cairn for its breaches according to the International Arbitral Tribunal.
- The award became public on December 23, 2020 and it was a unanimous decision of the Tribunal that awarded Cairn damages of US $1.2 billion plus interest and costs, which is almost up to $1.4 billion.
- The Indian government said that it would study the arbitration award and will take into consideration all possible options and will then come to a conclusion as to what has to be done and what course of action is to be undertaken.
- According to many critics, challenging the award might hurt investor confidence and the flow of foreign funds to India.
Largest Antitrust Suit to Be Instituted Against Google In The Us To Break Up Their Monopoly
- In the month of October 2020, the Department of Justice along with 11 Attorney Generals filed a Civil Antitrust Lawsuit against Google in US District Court for the District of Columbia.
- This was primarily done, in order to stop Google from unlawfully maintaining monopolies with the help of anticompetitive and exclusionary practices.
- These practices were seen in the search and search advertising markets and were usually done to remedy the competitive harms.
- Google is the most used search engine in the US and it played the same game of monopolies two decades ago.
- On top of that, Google pays Apple $10 billion a year to feed its search traffic and make itself the default search engine on Safari.
- According to Google “This lawsuit would artificially prop up lower-quality search alternatives, raise phone prices, and make it harder for people to get the search services they want to use.”
- Google has been accused of abusing its market power and for being involved in a variety of anticompetitive practices to maintain and extend its monopoly which would severely affect new innovators in the market as predicted by Attorney General William Barr.
- Moreover, Google has also been accused of monopolizing the digital advertising market and on the contrary google called the US Government’s case “Deeply flawed” and said that it would result in poor quality search options and would also result in the raise of phone prices.
- As for the Legal World in the US, they consider this suit against Google, as a form of revival in the Antitrust Law in the US and regard it to play a very important role in the 21st century which will ensure fair competition.
- As for the users, the legal battle is predicted to go on for years and people would still use Google but in the longer run we will be able to see more search options on mobile phones and device makers would be asked to add a setup option which will allow them to choose from different search options and set it as default search engine, something similar which happens in the EU too.
India’s Ban on Tiktok And Other Chinese Companies and the change in the FDI Policy
- On 29 June, the Indian Ministry of Electronics and IT (“MEIT”) released a press note (“Blocking Order”), announcing that it had banned 59 mobile applications based out of China (“Chinese Apps”) under Section 69A of the Information Technology Act 2000. The Indian government stated that it was banning these apps developed by Chinese firms over concerns that these apps were engaging in activities that threatened “national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India”.
- Among the apps that India’s Ministry of Electronics and IT has ordered to ban include ByteDance’s TikTok, which counts India as its biggest overseas market.
- In doing so, the Government of India made certain changes in the FDI rules and altered them to state that entities in countries sharing a land border with India will now have to seek government approval before investing in India. The government said that the revised set of rules would prevent “opportunistic takeovers or acquisitions of Indian companies due to the COVID-19 pandemic.”
- Investment in India can be routed through two methods- automatic route, which doesn’t require any government permission whatsoever, and the government route, for which one needs the approval of authorities. However, with the new FDI norms kicking in, any Chinese company wanting to invest in an Indian entity will require permission from the government.
- The curbs which were already in force for investments from Pakistan and Bangladesh, will extend to entities where Chinese citizens have “beneficial ownership” to ensure that the restrictions are not circumvented by routing investments via Hong Kong, Singapore or ither countries.
- Investments from China are considered to be a risk as many of the Chinese entities are controlled by the Communist rulers in Beijing through a web of opaque linkages. And such Chinese entities may move in to take up Indian companies which were doing well until the pandemic made them relatively cheap and tempting targets. Such linkages make investments from China a risk against the security establishment.
Unconstitutionality of Gender Studies Ban- Romania
- In a majority decision, the Constitutional Court of Romania has struck down a legislative amendment that effectively banned the subject of gender studies in university education as unconstitutional.
- Article 7(1)(e) of the impugned amendment was introduced earlier this year to amend Article 7 of the National Education Law No. 1/2011. The amendment prohibited any discussion in educational institutions of the “gender identity theory,” which it described as any “theory or opinion that suggests gender as a concept that is different than the biological sex”. Therefore, the provision was aimed at banning any discourse suggesting “gender” (now widely accepted to be a social construct) as different from “biological sex.”
- The bill was originally proposed by a centre-right Popular Movement Party, the party of former President Traian Basescu and adopted last June. This ban was supported by the Social Democratic Party, PSD, and its breakaway Pro Romania party. However, most legislators from the centrist USR party and from the ethnic Hungarian Democratic Union of the Hungarians in Romania voted against it.
- Human rights organizations condemned the bill as discriminatory and violative of the Romanian Constitution as well as various international commitments including freedom of thought and expression and the right to education. It was especially seen as catastrophic for transgender and gender-diverse persons, since it pressed for denial of gender as distinct from a person’s biological sex.
- The bill, if passed, would have erased gender studies from the curriculum and would have prevented social workers, counsellors and NGOs from discussing gender identity issues and extending support to transgender persons.
- The Constitutional Court of Romania ruled that banning gender studies in Romanian educational system was unconstitutional and therefore annulled the law. The law was declared unconstitutional in response to an action initiated by the current centre-right president, Klaus Iohannis, who argued that a blanket ban imposed “a stereotype/cliché regarding the results of research on some theories/opinions”. Iohannis also argued that the ban was a contravention of “individual freedom of consciousness” and affected “freedom of thought and opinion”. He added that “the educational system should be open to ideas, opinions and values, and the state should abstain from adopting legislative solutions” that were liable to be interpreted as attacks on personal convictions.