Wednesday, November 18, 2009
In a unanimous resolution adopted a day after a UN human rights expert reported that political disputes were still impeding the return of over 117,000 people displaced by the fighting, the 15-member body stressed that “a comprehensive and coordinated return of refugees and displaced persons throughout the region continues to be crucial to lasting peace.”
EUFOR assumed peacekeeping responsibilities in 2004 from a stabilization force led by the North Atlantic Treaty Organization (NATO) and the resolution welcomed the EU’s increased engagement in Bosnia and Herzegovina as well as NATO’s continued engagement.
“The primary responsibility for the further successful implementation of the Peace Agreement lies with the authorities in Bosnia and Herzegovina themselves,” the Council said, stressing that the continued willingness of the international community and major donors to help politically, militarily and economically in reconstruction efforts depended on the parties’ compliance.
It authorized Member States to take all measures to defend the EUFOR and NATO presence and to assist both organizations in carrying out their missions. It also recognized the right of both EUFOR and the NATO presence to defend themselves from attack or threat of attack.
The Council also underlined the need for the parties’ full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), which is trying the alleged perpetrators of the Balkan conflicts of the 1990s on charges of war crimes, including genocide and crimes against humanity.
Tuesday, November 17, 2009
The United States has taken a first step toward reengagement with the International Criminal Court (ICC). U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp annnounced yesterday in Nairobi, Kenya that the U.S. would participate as an observer in the Eighth Session of the ICC's Assembly of States from November 18-26 in The Hague. This will be the first time the U.S. has participated in ICC meetings since 2001. According to a press release by the United Nations Association (UNA):
"State Department Spokesman Ian Kelly confirmed the decision and specified that "there will be an interagency delegation comprising of State Department and Defense Department officials, which will allow us to advance, use and engage all the delegations in various matters of interest to the U.S." This week's session is an important preparatory meeting for next year's Review Conference which will deal with important issues of interest to the US, including possible amendments dealing with war crimes and activating the Court's jurisdiction over the crime of aggression. If the US had not decided to attend, it would have missed out on an important opportunity to share its views and shape the agenda for the Review Conference."
The European Union (EU) Foreign Ministers voted yesterday in favor of Albania's request for official candidate status, following a similar vote by the 27 EU ambassadors at a meeting in Brussels last week. Next, the European Commission must decide whether Albania is ready to begin membership talks. Some of the concerns to be addressed are corruption, drug trafficking, organized crime and money laundering, as well as the need for a more independent judiciary and freedom of the press. Membership negotiations are likely to take several years and will require substantial economic and political reforms.
Recently, U.S. District Court Judge Huck of the Southern District for Florida rejected an action to enforce a $97 million judgment against Dow Chemical Co. and Dole Food Co. obtained from a Nicaraguan court in the case of Sanchez Osorio v. Dole Food Co., S.D. Fla., No. 07-22693-CIV (10/20/09). The suit had been filed by 150 Nicaraguan agricultural workers who alleged that their exposure to the pesticide dibromochloropropane left them sterile. In reaching its decision, the District Court had unusally strong words about the lack of due process and independence in Nicaraguan courts. The Court described the special Nicaraguan law enacted specifically for plaintiffs' claims as providing: "disparate treatment of defendants [which] is fatally unfair and discriminatory, fails to provide the minimum level of due process to which all foreign defendants are entitled, and is, therefore, incompatible with the requirements of due process of law under theunder the Florida Recognition Act." The Court further held that the legal regime set up by Nicaraguan law in this case "does not comport with the “basic fairness” that the “international concept of due process” requires. . . It does not even come close. “Civilized nations” do not typically require defendants to pay out millions of dollars without proof that they are responsible for the alleged injuries. . .Civilized nations do not target and discriminate against a handful of foreign companies and subject them to minimum damages so dramatically out of proportion with damage awards against resident defendants.” In conclusion, the Court stated: The evidence before the Court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process. It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law. . .As a result, the law under which this case was tried stripped Defendants of their basic right in any adversarial proceeding to produce evidence in their favor and rebut the plaintiffs' claims. Finally, the judgment was rendered under a system in which political strongmen exert their control over a weak and corrupt judiciary, such that Nicaragua does not posses a “system of jurisprudence likely to secure an impartial administration of justice.”
The Special Court for Sierra Leone transferred its detention center to the Sierra Leone National Prison Service this week. The handover of the detention center in Freetown is the latest step in the completion of the mandate of the Special Court for Sierra Leone, which delivered its last judgment inside the country in October. Last month, the eight prisoners convicted and held by the SCSL were transferred to Rwanda to serve their sentences. The remaining trial, involving former Liberian president Charles Taylor, continues at The Hague, where it was moved for security reasons. That trial is taking place in the same building as the International Criminal Court.
The Special Court for Sierra Leone is an independent tribunal established jointly by the Sierra Leonean Government and the UN in 2002. It is mandated to try those who bear the greatest responsibility for atrocities committed in Sierra Leone after 30 November 1996.
In his report to the General Council on 17 November 2009, WTO Director-General Pascal Lamy said that the upcoming WTO Ministerial Conference would not be a negotiating session but would be “a platform for ministers to review the functioning of this house,” including the Doha Round, and an occasion “to send a number of strong signals to the world with respect to the entire WTO waterfront of issues - from monitoring and surveillance to disputes, accessions, Aid for Trade, technical assistance and international governance." Click here to read more.
Monday, November 16, 2009
Pace Law School Professor of Law, Thomas McDonnell, has just published a timely new book entitled, "The United States, International Law, and the Struggle Against Terrorism." The book discusses a variety of critical legal issues that arise out of the United States' response to international terrorism. It analyzes actions taken by the Bush Administration during the "war on terror" for compliance with international law. Different chapters highlight specific topics of interest such as torture, indefinite detention, habeas corpus, the right to a fair trial, racial profiling, and the conflicts in Iraq and Afghanistan. Professor McDonnell addresses the tension that all modern democracies face in trying to balance national security with respect for individual rights and demonstrates why the United States' responses to terrorism thus far must be rejected and new approaches adopted that are consistent with international law.
The book is published by Routledge. For more information or to order the book, click here.
The Somali Government and the African Union force in the country need more help on land to fight piracy in the waters, Secretary-General Ban Ki-moon says in a new report to the U.N. Security Council. Mr. Ban noted that the expanding maritime presence by Member States is playing a critical role in stabilizing the situation in the Gulf of Aden. But at the same time, he calls for an integrated approach that would strengthen the capacities of the Somali Transitional Federal Government (TFG) and the African Union Mission in Somalia (AMISOM) on land. The approach should include further development of law and security institutions to complement the ongoing peace process in the strife-torn nation, including for the investigation and prosecution of those suspected of acts of piracy and armed robbery at sea.
(Adapted from a UN Press Release)
(Adapted from a UN Press Release)
The American Branch of the International Law Association (ABILA) is cosponsoring the University of Nebraska College of Law's Second Annual Space and Telecommunications Law Conference on November 19-20, 2009. The theme for this year's conference is "Space, Telecommunications, & Cyber Law in the Transatlantic Arena: Comparison, Competition, & Cooperation."
This conference will be held at the Washington Court Hotel, 525 New Jersey Avenue in Washington, D.C.The first day of the conference (Nov. 19) will focus on telecommunications law issues and the second day of the conference (Nov. 20) will focus on space law.
For more information, contact Virginia Uzendoski (vuzendoski2 [at] unl.edu)
Hat tip to Houston Putnam Lowry
Friday, November 13, 2009
The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia cut four years off the 33-year sentence imposed on a former Bosnian Serb army general who commanded much of the siege of Sarajevo.
Dragomir Milosevic (who is not related to the former Serbian leader Slobodan Milosevic) was convicted in 2007 by the International Criminal Tribunal for the former Yugoslavia. He was found guilty on five counts of murder, inflicting terror and committing inhumane acts during a campaign of sniping and shelling, which resulted in the injury and death of a large number of civilians in the Bosnian capital during the second half of the 1992-1995 siege.
The Appeals Chamber ruled that, “whereas the evidence cited in the Trial Judgement does not support a finding that Milosevic planned and ordered the sniping incidents, his command responsibility for having failed to prevent and punish the said crimes committed by his subordinates has been established beyond reasonable doubt.”
The Chamber upheld the majority of the Trial Chamber’s convictions for ordering the shelling of the civilian population in Sarajevo during the 15-month period, while also granting his appeal in part and reducing his sentence from 33 to 29 years’ imprisonment.
The Prosecution’s request that Mr. Milosevic, who is in his late sixties, be sentenced to life imprisonment was dismissed in its entirety.
Radovan Karadzic boycotted the first three days of his trial at the International Criminal Tribunal for the Former Yugoslavia. He claimed that he needed extra time to prepare his defense of the 11 war crimes charges against him. Karadzic is representing himself at trial, and the request for additional time (he asked for 11 months) has been seen simply as a delaying tactic. Last week the ICTY trial judges appointed legal counsel to represent Karadzic. He has now appealed that order to the Appellate Chamber of the ICTY.
Thursday, November 12, 2009
Nigeria recently became a party to the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Here's an update on the status of ratifications of the U.N. Convention on the Law of the Sea and its related agreements.
- There are 159 parties to the 1982 U.N. Convention on the Law of the Sea. The most recent countries to join as parties were Switzerland (May 1, 2009) and the Dominican Republic (July 10, 2009).
- There are 137 parties to the Agreement Relating to the Implementation of Part XI of UNCLOS. The most recent countries to join as parties were Switzerland (May 1, 2009) and the Dominican Republic (July 10, 2009).
- There are 77 countries to the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. The most recent countries to join as parties are Tuvalu (February 2, 2009), Indonesia (September 28, 2009), and Nigeria (November 2, 2009).
Wednesday, November 11, 2009
The New York Times reported yesterday that top Blackwater officials approved payment of approximately $1 million in bribes to Iraqi officials to silence their criticism after Blackwater security guards were accused of fatally shooting 17 Iraqis in 2007. If the allegations are proven, the payments are likely to violate the Foreign Corrupt Practices Act (FCPA), which prohibits corruptly making payments or giving anything of value to foreign officials for the purpose of influencing an act of that foreign official. Blackwater allegedly feared that the Iraqis would refuse to renew Blackwater's operating license in Iraq and force Blackwater to leave the country, jeopardizing its contracts with the U.S. government that were worth hundreds of millions of dollars. A grand jury in North Carolina, where Blackwater's headquarters are located, is investigating. According to Transparency International, a nonprofit organization that tracks corruption worldwide, Iraq was one of top three most corrupt countries in the world in 2008.
Tuesday, November 10, 2009
Yesterday, the U.S. Supreme Court heard oral arguments in a consolidated case regarding whether it is cruel and unusual punishment within the meaning of the Eighth Amendment to the U.S. Constitution to sentence a juvenile to life in prison without the possibility of parole. The two cases are Graham v. Florida, No. 08-7412, in which Terrance Graham was sentenced to life for armed burglary at age 16 and a probation violation at age 17, and Sullivan v. Florida, No. 08-7621, in which a 13-year-old was sentenced to life in prison for the rape of an elderly woman.
As many readers of this blog will recall, the U.S. Supreme Court has frequently turned to international and foreign law to inform its Eighth Amendment jurisprudence. The Court's use of foreign and international law in this area can be traced to Trop v. Dulles (1958), where the Supreme Court said that it must look to “evolving standards of decency” in assessing whether a particular punishment is cruel and unusual within the meaning of the Eighth Amendment. In the most recent case involving cruel and unusual punishment for juveniles, Roper v. Simmons (2005), the U.S. Supreme Court held that imposition of the death penalty on juveniles violates the Eighth Amendment because offenders under 18 are less responsible for their crimes than adults, partly because they are less mature and more vulnerable to peer pressure. In coming to that conclusion, Justice Kennedy, writing for the majority, referred to the fact that the U.S. is the only country in the world that officially sanctions the death penalty for juveniles. In support of the international law ban on the death penalty for juveniles, Justice Kennedy cited to U.N. Convention on Rights of the Child (CRC), the International Covenent for Civil and Political Rights (ICCPR), the American Convention on Human Rights, and the African Charter on Rights and Welfare of the Child. Justice O'Conner dissented in Roper, but allowed for the proper use of international and foreign law: “This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the values of a maturing society.” While American law is “distinctive,” “this Nation’s evolving understanding of human dignity is neither wholly isolated from nor inherently at odds with, the values prevailing in other countries.” By contrast, Justice Scalia’s dissent argued that the meaning of the Eighth Amendment should not be determined by the views of five Members of the Court and “like-minded foreigners.” He accused the majority of not listening to the views of American citizens and instead allowing the views of the international community to take center stage. While admitting that the U.S. shares a common legal heritage with the
A sentence of life imprisonment without the possibility of parole for juveniles does appear to be condemned by the international community. In a 2005 joint report issued by Amnesty International and Human Rights Watch, these human rights organizations contended that the United States stands virtually alone in the world in allowing juveniles to be sentenced to life in prison without the possibilty of parole. By 2009, a group of human rights organizations wrote in a letter to the Committee on the Elimination of Racial Discrimination that "no other country in the world has imposed this sentence on juvenile." Such a practice is probihited under article 37 of the CRC, but the U.S. has yet to ratify that treaty. Article 14 of the ICCPR, to which the U.S. is a party, requires that the age of a youth be taken into account in criminal procedures. Questioning during yesterday's oral argument suggested that some of the justices may be more willing to require the age of the offender to be taken into account in sentencing rather than imposing an across-the-board ban on life sentences without parole for juveniles.
Whether the U.S. Supreme Court will consider international law and foreign law and practice in its decision is an open question. Both Chief Justice Roberts and Justice Alito have joined the Court since Roper v. Simmons and both expressed views during their confirmation hearings that were not particularly favorable to the use of foreign and international law in constitutional interpretation. Likewise, Justice Sotomayor is new to the Court and her views are somewhat unclear. She stated during her confirmation hearings that the justices should not rely on foreign law as precedent, but has stated elsewhere that justices should be open to good ideas that come from foreign sources, suggesting that she does see a role for foreign and international law in constitutional interpretation. (And Justice O'Conner, who was favorably disposed to the use of foreign and international law in this context, has since left the bench.)
Monday, November 9, 2009
The Prosecutor of the International Criminal Court (ICC) has announced that he will ask the tribunal to open an investigation into the deadly post-election violence in Kenya in December 2007 and January 2008.
Luis Moreno-Ocampo, speaking after a meeting this week in Nairobi with President Mwai Kibaki and Prime Minister Raila Odinga, said he would make a formal request to the ICC next month.
"There is a reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constitute crimes against humanity under the ICC''s jurisdiction," he said yesterday.
Article 7 of the Rome Statute, under which the ICC operates, defines a crime against humanity as "a widespread or systematic attack directed against the civilian population."
Mr. Moreno-Ocampo said Mr. Kibaki and Mr. Odinga, who agreed to serve in a power-sharing administration following the vio
lence, had promised to cooperate with any investigation.
The ICC also announced yesterday that it has assigned three judges to a pre-trial chamber to deal with the Kenyan issue.
Ethnic violence engulfed the East African country after disputed elections at the end of 2007 and, following an inquiry, former UN Secretary-General Kofi Annan submitted sealed materials about possible crimes to Mr. Moreno-Ocampo earlier this year.
Under the ICC''s complementarity principle, the tribunal only intervenes if there are no national proceedings against those responsible for the crimes.
Once Mr. Moreno-Ocampo makes a formal request to the ICC''s pre-trial chamber, the court can agree to allow a case to go ahead, reject it or ask for more information.
In a press release yesterday the prosecution said that "ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes.
"These three tracks would complement each other. Kenyans could provide an historic example for the world in how to address and prevent massive crimes."
The ICC is an independent, permanent court that investigates and prosecutes persons accused of genocide, crimes against humanity and war crimes. It is based in The Hague in the Netherlands.
Today marks the 20th anniversary of the fall of the Berlin Wall.
For my faculty colleagues teaching international law, this is also a reminder that we'll have to soon start telling our students that there was such a thing as the Berlin Wall, and that Germany was once divided into the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany). I remember teaching a class recently where none of the students knew who Nelson Mandela was . . . .
Saturday, November 7, 2009
The International Criminal Court announced this week that the war crimes trial of Jean-Pierre Bemba Gombo will begin in April 2010. Mr. Bemba, the former Congolese Vice President, faces charges for alleged crimes committed in the Central African Republic (CAR) between October 2002 and March 2003, including rape, murder and pillaging.
Judges at the Hague-based ICC found that Mr. Bemba had the “necessary criminal intent” when in 2002 he ordered his armed group, the Mouvement de libération du Congo (MLC), into CAR to back up embattled leader Ange-Félix Patassé.
According to the Court, MLC fighters committed war crimes and crimes against humanity on that mission, with Mr. Bemba “effectively acting as military commander.”
He was transferred to the ICC in July 2008 after being arrested by Belgian police. In September, the Court decided that Mr. Bemba will remain in custody until the start of his trial, reversing an earlier decision to grant him temporary conditional release.
The situation in CAR is one of four – along with Darfur, DRC and Uganda – currently under investigation by the Prosecutor of the ICC, an independent, permanent court that tries persons accused of genocide, crimes against humanity and war crimes.
Friday, November 6, 2009
We've just received the following press release from the United Nations:
General Assembly President Ali Treki today urged Israel and the Palestinians to heed the body’s call to conduct credible investigations into charges that both sides were guilty of serious human rights violations during the conflict in the Gaza Strip at the start of the year.
Mr. Treki noted that the 192-member Assembly yesterday adopted a resolution on the report of the United Nations fact-finding mission on the Gaza conflict, which found that Israeli forces and Palestinian militants had committed serious war crimes and breaches of humanitarian law, possibly amounting to crimes against humanity, during the conflict in December 2008 and January 2009. Assembly resolutions are non-binding.
“This vote was an important declaration against impunity, it was a call for justice and accountability,” Mr. Treki told reporters in New York, calling for both the Israelis and Palestinians to carry out independent inquiries within three months as required in the resolution.
“While the General Assembly has fulfilled its responsibility and will remain seized over the matter, it is vital that all concerned now devote efforts to implement the resolution and ensure follow up,” he added.
Mr. Treki also voiced pleasure at the “smooth” and cooperative discussions in the General Assembly on the Goldstone report, as well as recent reports from the International Court of Justice (ICJ), the International Criminal Court (ICC) the International Atomic Energy Agency (IAEA).
Yesterday, the International Criminal Tribunal for the former Yugoslavia issued its "Decision on Appointment of Counsel and Order on Further Trial Proceedings" in the case of defendant Radovan Karadžić. Last week, Karadžić refused to be present at the commencement of his trial because he felt he needed several more months to prepare. The Trial Chamber proceeded with the prosecution's opening statement and then adjourned the case to hold a hearing on Wednesday regarding appointment of counsel and future trial proceedings. In the end, the Chamber gave Karadžić most of what he wanted – a delay into next year (trial to resume in March) and the continued right to represent himself. The Chamber further ruled that stand-by counsel will be appointed.
On the surface, the decision seems to be in the best interests of justice and effective at maintaining the integrity of the proceedings. In the first place, the Tribunal avoided the unseemly result of continuing the trial without the defendant in the courtroom and no attorney in his stead. At the same time, the right of self-representation, which the Tribunal considers "fundamental," albeit not absolute, has been respected and preserved. The defendant, as requested, has been given additional time to prepare and stand-by counsel has been appointed – if Karadžić remains obstructive in March, counsel will be ready to take over.
On closer inspection, however, the decision appears quite flawed. For one, the timing seems suspect. Over the past year, there have been ominous signs concerning Karadžić's pre-trial preparation. For example, Karadžić has openly devoted significant pre-trial time and resources establishing the existence of a supposed July 1996 agreement with former American special envoy Richard Holbrooke granting him immunity from prosecution, despite its marginal value based on court rulings. Moreover, as the Trial Chamber noted in its decision:
[The] Accused . . . gave some indication that he intends, in the course of his defense, to 'correct' what has been adjudicated by this Tribunal in prior cases concerning other accused persons, which is something he has stated during status conferences held during the pre-trial stage, and show who was responsible for 'the outbreak of the war.' The Trial Chamber reiterates that the Accused's task is only to address the allegations in the indictment against him, and to challenge the evidence brought by the Prosecution in support of those allegations, and that he should be focusing his preparation accordingly. He cannot reasonably claim to require many more months to prepare for trial when his preparation includes matters that are not, and will not be, the subject of the trial.
Clearly, the Tribunal was on notice during the pre-trial phase that Karadžić would not likely be ready for trial in October. So that was the time to appoint stand-by counsel. With a little foresight and initiative, the Tribunal could have accomplished months ago what it did yesterday – preserve and respect the right of self-representation while giving an attorney time to prepare for trial should the defendant choose to engage in obstruction tactics on the eve of trial (and it could have communicated with that attorney in the interim to gain a more objective assessment of the pace of pre-trial preparations).
Instead, the Tribunal delayed and was inexplicably caught flatfooted. And given the time pressures (especially in light of the Tribunal's completion strategy), it granted what amounts to less than a four-month extension. But the defendant had previously stated he needed an additional eight months to prepare (two months ago he asked for a ten-month continuance). In effect, the Tribunal halved his requested extension, which seems at cross-purposes with its other efforts to appear fair. Moreover, given the case's complexity and its voluminous body of evidence, it seems difficult to imagine that less than four months (to March 1st) will be sufficient for appointed counsel to prepare. Perhaps the Chamber could have split the difference and accorded the defendant and his counsel at least a six-month continuance.
And if the Tribunal had ample warning that Karadžić would be boycotting his trial, why did it have the prosecution deliver its opening statement last week? If it had an inkling it would likely delay the proceedings another few months, what was the point of getting underway and then disrupting the flow of trial? Wouldn't it have made more sense to hold yesterday's hearing first? On many levels, the Tribunal's handling of this mess smacks of judicial incompetence.
It is not as if such issues are new to the Tribunal. Slobodan Milošević exploited his right to represent himself by delaying the proceedings until the Tribunal was forced to appoint him counsel late in his four-year trial. In the meantime, so much time had elapsed that he died before a verdict and was thus able to evade final justice. And the Tribunal has been dealing with obstruction tactics during the ongoing two-year-old trial of Vojislav Šešelj, who also serves as his own attorney. At least in those cases Milošević and Šešelj were trained as lawyers. There is no good reason why the Karadžić Trial Chamber (and the Pre-Trial Judge for that matter) should have been asleep at the switch during the pre-trial phase in this case.
In the pantheon of due process rights, self-representation is not at the apex. No less, it must be counterbalanced with the public's right to a speedy and fair trial. In this instance, the Tribunal should have been much more vigilant and far less deferential in the lead-up to yesterday's decision. The Hague's high-profile Balkan defendants understand quite well that justice delayed is justice obstructed and they rightly roll the dice that it will be justice denied. It is difficult to excuse the Tribunal's judicial wing when it serves as an unwitting accomplice to that strategy.
By the time the WTO Dispute Settlement Body (DSB) celebrates its 15th "birthday" in January, it will have handled more than 400 trade disputes. The DSU came into existence in January 1995, meaning that this January 2010 will mark its 15th "birthday." Recently, Canada requested consulations with the European Communities over the importation and marking of seal products, invoking the WTO's dispute settlement processes for the 400th time in its history. "This is surely a vote of confidence in the system which many consider a role model for the peaceful resolution of disputes in other areas of international political or economic relations," said WTO Director-General Lamy in a press release. Since the WTO DSB was created, it has received an average of 27 disputes per year, with a high of 50 in 1997 and a low of 11 in 2005. The two most frequent users of the system are the trading giants, the United States and the European Communities; however, developing countries have been complainants in 45% of the cases, demonstrating that they too are using the system. Of the 153 members of the WTO, 58 have been either complainants or respondents before the DSB. Slightly less than half of all the cases filed have gone to litigation, with the rest being resolved through bilateral negotiations before a dispute settlement panel was established.