Sei sulla pagina 1di 5

ADAWA’S CLAIM THAT RASASA’S HELIAN TARIFFS VIOLATE THE CHC TREATY

FALLS OUTSIDE THE COURT’S JURISDICTION OR IS INADMISSIBLE; IN THE


ALTERNATIVE, THE IMPOSITION OF THE TARIFFS DID NOT VIOLATE THE CHC
TREATY.

I. ICJ has no jurisdiction.

 Neither Adawa nor Rasasa accepted the Court’s compulsory jurisdiction under
Article 36(2) of the Statute.1 Proceedings were already underway before the
Dispute Settlement Body.2

In some pre-WTO cases, there had not been a hard and fast rule as to whether or not the
invocation of the security clause should be immediately adjudicated outside of the WTO. 3
However, Article 6 of the DSU states that Members have a right to resort to dispute settlement
before panels whenever a dispute cannot be resolved through consultation.4 It is within the
discretion of the Dispute Settlement Body (DSB) to decide to establish a panel, but since all
Members are within the jurisdiction of the DSB, when the decision is not to establish a panel, the
complaining Member must not contend.5

In the instant case, proceedings were already commenced before the Dispute Settlement
Body.6 It was even Adawa who formally requested consultations with us, but due to the failure to
resolve the dispute amicably, pursuant to the Dispute Settlement Understanding (DSU) of the
WTO, resort to settlement before the DSB is the proper remedy to take.7 This is bolstered by the
fact that neither Adawa nor Rasasa accepted the Court’s compulsory jurisdiction under Article
36(2) of the Statute. Therefore, it was not proper for Adawa to invoke the CHC treaty in order
merely to raise the jurisdiction of the Court.

1
Commpromis, 8.
2
Compromis, 58.
3
See supra Section Ill(A).
4
Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, art. 6, para. 2, WTO
Agreement, Annex 2, available at http://www.wto.org (last visited Oct. 28, 2002) [hereinafter DSU].
5
Id. art. 6, para. 1.
6
Compromis, 58.
7
Compromis, 45.
II. The case is not admissible before the Court.

 It is panels who are entitled to clarify the existing provisions of the covered
agreements ‘in accordance with customary rules of interpretation of public
international law’.

We do not object to the general rule of interpretation of treaties which states, ‘A treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.’8 Indeed, since
legislators intended not to allow the security exception to justify ‘anything under the sun’,9
panels deemed it necessary to review the text in order to declare its true character. For instance, a
panel once concluded that ‘text, context and object and purpose as well as good faith - are to be
viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied
in a hierarchical order’.10 It has been a practice for panels to settle disputes involving treaty
interpretation involving trade law, as in the given case.

Here, as mentioned, proceedings were already commenced before the Dispute Settlement
Body.11 In response to the need to inquire into the propriety of the security clause as a
justification for the imposition of the tariffs, it was proper for Adawa to request consultations
with Rasasa but due to the failure to settle amicably, pursuant to the Dispute Settlement
Understanding (DSU) of the WTO.12 This is a clear invocation of the jurisdiction of panels rather
than the Court.

III. Imposition of tariffs on Helian products does not violate the CHC treaty.

i. The tariffs were lawful protections of its essential security interests.13

The International Law Commission’s (ILC) Draft Articles on State Responsibility (Articles
20-25) lays out the circumstances where there can be lawful breach of international obligations,

8
Article 31, Vienna Convention.
9
World Trade Organization, ‘WTO Analytical Index: Guide to WTO Law and Practice, Article XXI - Security
Exceptions’ accessed 28 November 2018 p. 600.
10
Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January
2000, DSR 2000:II, p 815 301 para 7.22.
11
Compromis, 58.
12
Compromis, 45.
13
Compromis, 58.
such as consent, self-defence, countermeasures, force majeure, distress, and necessity. Article 25
specifically states: “1. Necessity may not be invoked by the State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that State unless the
act: (a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; (b) Does not seriously impair an essential interest of the State or States towards
which the obligation exists, or of the international community as a whole.” The ILC explained
when necessity would arise; “the plea for necessity arises where there is an irreconcilable
conflict between an essential interest on the one hand and an obligation of the state invoking
necessity on the other.”14 It can be inferred from several cases that necessity has been invoked as
a ground to justify lawful breach of international obligation to promote such interests as
environmental protection, preservation of State sovereignty, and the safety of a State’s
population.

However, these circumstances are never without limitations. One such limitation is that the
peril sought to be prevented by its invocation must be grave and imminent. “Essential state
interest” means vital interest, such as “political or economic survival, the continued functioning
of its essential services, the maintenance of internal peace, the survival of a sector of its
population, the preservation of the environment of its territory or a part thereof, etc.”15 What
constitutes essential security interest is dependent on the facts of each respective case.

Secondly, “the conduct in question must not seriously impair an essential interest of the other
state or states concerned, or of the international community as a whole.” Thirdly, necessity must
not “exclude wrongfulness of a nonconforming measure where the international obligation in
question explicitly or implicitly excludes the plea of necessity.” And lastly, “necessity may not
be used as an excuse if the responsible state has contributed to the situation of necessity.”16

In the instant case, we imposed the tariffs as lawful protections of our essential security
interests. We have said that, “Rasasa must take steps to protect and promote the wellbeing of our
own Helian growers, ensuring their survival, and that of our citizens who depend on them, is a

14
International Law Commission, Draft Articles on State Responsibility, Commentary (2) to Article 25 in
http:/untreaty.un.org.ilc/texts/instruments/English/ commentaries/9_6_2001.pdf
15
Documents of the Thirty-Second Session (1980), 2 Y.B. Int’l L. Comm’n 14, U.N. Doc. A/ CN.4/SER.A/1980/Add.1
(Part 1).
16
ILC Commentaries para. 17.
vital matter of national security.”17 Such conditions as to cause or threaten serious injury to
domestic producers in a territory of like or directly competitive products are present. Moreover,
the conduct of Rasasa does not fall within any of the limitations for the invocation of a plea for
necessity.

Firstly, the aspects being affected by Adawa’s acts as reported by the Rasasan Helian
Growers Association (RHGA) constitute political and economic survival, the maintenance of
internal peace, and the survival of a sector of our population which are our vital interests which
have been prejudiced by the acts of Adawa. Secondly, our imposition of the tariffs did not
prejudice any other neighboring states. Thirdly, the CHC treaty does not exclude the plea of
necessity whether explicitly or implicitly, but instead even contains a security clause.18 Lastly,
Rasasa has not contributed to the situation of necessity as can be inferred from the facts of the
case. The imposition of the tariffs was indeed proper as a lawful protection of security interests.

ii. The particular action by Rasasa of imposing the tariffs falls within the emergency
action on imports of particular products.19

Article XIX on Emergency Action on Imports of Particular Products of the GATT 1994
states, among others, that, “(a) If, as a result of unforeseen developments and of the effect of the
obligations incurred by a contracting party under this Agreement, including tariff concessions,
any product is being imported into the territory of that contracting party in such increased
quantities and under such conditions as to cause or threaten serious injury to domestic
producers in that territory of like or directly competitive products, the contracting party shall be
free, in respect of such product, and to the extent and for such time as may be necessary to
prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or
modify the concession.” This provision is known as the safeguard provision and has been present
since the creation of the GATT 1947 and has been maintained by GATT 1994.

17
Compromis, 44.
18
Compromis, Annex B, Article 22 (b), CHC Treaty.
19
Article XIX, GATT 1994.
In the present case, such conditions as to cause or threaten serious injury to domestic
producers in that territory of like or directly competitive products are present as with the report
of the Rasasan Helian Growers Association (RHGA), a prominent industry group based in
Botega, that Rasasa’s share of the global Helian market had declined significantly in comparison
to that of its neighboring States, that Adawan Helian farmers having been unable to meet their
Helian pollen supplies; its conclusion that, “if current trends continue, many Rasasan Helian
farms will collapse in five to ten years, with catastrophic effects for the Rasasan economy and
Rasasan society in general.”20

IV. Rasasa is not entitled to pay compensatory damages to Adawa.

i. There has been no decision rendered by the WTO on the allowance of damages as
compensation for violation of state responsibility.21

Whether the rules on state responsibility may be applied to the relationship of these parties,
may the member of the country whose rights have been impaired go to WTO and ask, for
instance, damages? Can it invoke state responsibility? There is no decision that has been
rendered about this. Not because of lack of any occasion, but only because partly the member
parties avoid to explicitly raise this out of fear of the consequences of saying an objective yes or
no about it. It is termed as “systemic inadequacies” outside formal dispute settlements in Geneva.

20
Compromis, 30.
21
Justice Florentino P Feliciano, Confidentiality of International Arbitration.