ADAWA: DECLARE THAT IT MAY ADJUDICATE ADAWA’S CLAIM THAT RASASA’S IMPOSITION OF

TARIFFS ON HELIAN PRODUCTS FROM ADAWA VIOLATES THE CHC TREATY, AND THAT ADAWA
IS ENTITLED TO COMPENSATORY DAMAGES REFLECTING THE FINANCIAL HARM IT HAS
SUFFERED TO DATE, SUCH AMOUNT TO BE DETERMINED IN SUBSEQUENT PROCEEDINGS--

RASASA: 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

C.

A. ICJ HAS JURISDICTION OVER ADAWA’S CLAIM. THE ISSUE IS ADMISSIBLE.

 THE SECURITY EXEMPTION CLAUSE IS A JUSTICIABLE QUESTION WHICH IS ADMISSIBLE

BEFORE THE COURT.

The determination of the jurisdiction of the International Court of Justice is not isolated from
public international law, and therefore, as a matter of practice, disputes arising from treaty
interpretation do seek guidance from international courts and tribunals such as the ICJ 1. The ICJ
adjudicated a number of disputes based on security exceptions, the wordings of which are
derived from the security clause found in the GATT 1994.

In Nicaragua v US, the Court pronounced that this exception is an affirmative defense,
and by reason of which the Court had proper jurisdiction. The Court also cited its previous ruling
when it rebutted preliminary objections in Oil Platforms, concluding that the security clause is
not a restriction to its jurisdiction but is an affirmative defense which the defendant can use when
the need arises.2 The same pronouncement was done by the Court in Islamic Republic of Iran v
The United States. The practice of other international tribunals like the European Court of Justice
(ECJ) and the European Court of Human Rights (ECHR) also suggests that security clauses can
be properly adjudicated.3

1
Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R,
adopted 20 May 1996, DSR 1996:I, p 3 p. 17.
2
On 2 November 1992, the Islamic Republic of Iran filed an application instituting proceedings against the United
States of America with respect to the destruction of Iranian oil platforms. The Islamic Republic founded the
jurisdiction of the Court upon a provision of the Treaty of Amity, Economic Relations and Consular Rights between
Iran and the United States, signed at Tehran on 15 August 1955. In its Application, Iran alleged that the destruction
caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil
production complexes, owned and operated for commercial purposes by the National Iranian Oil Company,
constituted a fundamental breach of various provisions of the Treaty of Amity and of international law. Oil
Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Judgment, I C J Reports
1996, p 803.
3
8 Dapo Akande and Sope Williams, ‘International Adjudication on National Security Issues: What Role for the
WTO’ (2002) 43 Virginia Journal of International Law 365, 382.
 Rasasa’s claims fall counter to the above-stated practice in public international. Since the
subject of inquiry is exactly the contents of the CHC Treaty which we find as to have been
violated, the case is a justiciable question which is fit for the Court to be adjudicated.

 THAT THE SECURITY EXCEPTION IS SELF-JUDGING IS AT BEST A MERE SUGGESTION,

AND THEREFORE, NECESSITATES TREATY INTERPRETATION COGNIZABLE BY THE
COURT.

Article 3, No. 10 of the DSU reads as follows, ‘It is understood that requests for conciliation
and the use of the dispute settlement procedures should not be intended or considered as
contentious acts and that, if a dispute arises, all Members will engage in these procedures in good
faith in an effort to resolve the dispute. It is also understood that complaints and counter-
complaints in regard to distinct matters should not be linked.’ The United States took an extreme
view of the said provision, that is, ‘once a WTO member has invoked the security exception in a
WTO dispute, all that the WTO panel seized of the matter may do is recognize that invocation
and make no further findings’. However, this is not so taken in reality.4

Given the disputes adjudicated before the ICJ as mentioned in the preceding argument, it is
most appropriate to conclude that to say that the security exception is self-judging is at best a
mere suggestion.5 That being given, Roger Alford argued that if the security exception is indeed
self-judging in nature, it must be regulated or balanced by invoking it ‘rarely, wisely and in good
faith’.6 Bogdanova supports this by saying that the legislators of the GATT 1994 intended not to
make the said security clause an umbrella provision to justify ‘anything under the sun’.7 Hence,
treaty interpretation is of paramount importance in determining any presence of violation of a
general rule of public international law while invoking the security exception.

In the instant case, it has been appropriate for our part to invoke the CHC treaty in order for
the Court to review the same if it was properly applied in accordance with the terms of reference
between Adawa and Rasasa.

 ASSUMING ARGUENDO THAT THE SECURITY CLAUSE JUSTIFIED VIOLATIONS OF THE

CHC TREATY, IT DOES NOT DENY THE COURT’S COMPETENCE TO ADJUDICATE IT.

4
Voon, Tania. American Society of International Law. 2019. Pp. 45-50.
5
Roger Alford, The Self-Judging WTO Security Exception, 3 utah l. rev. 697, 758. 2011.
6
Ibid.
7
World Trade Organization, ‘WTO Analytical Index: Guide to WTO Law and Practice, Article XXI - Security
Exceptions’ accessed 28 November 2018 p. 600.
 The security clause as worded in the GATT 1994 is more or less similar with those of
regional trade agreements which have been subjects of some disputes decided by the ICJ.8 Said
provision is comprised of exceptions specifically referred to in paragraphs (a), (b), and (c) of
Article XXI. And the general rule of treaty interpretation which states that ‘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’, makes it necessary to review
such an elaborate wording of the security clause. The necessity of contextual reasoning of the
whole treaty with consideration not only as to the text but also on the object and purpose of the
treaty supports its justiciable nature.

The dispute between Nicaragua and the United States (1986) proved the justiciability of
adjudicating the security clause,9 wherein the panel who assumed jurisdiction on the matter
acknowledged that its withdrawal from examining said provision was not due to its non-
justiciability, but because its terms of reference explicitly prohibited it from doing so. And if the
dispute between the European Communities and Yugoslavia in 1992 was resolved on other
grounds apart from the validity of a security exception, the latter was not excluded still from the
panel’s review.10 Therefore, whether or not the security exception is a proper defense by Rasasa,
it is justiciable and a proper subject of adjudication before the Court.

 THERE IS NO RULE YET AS TO WHETHER OR NOT THE APPLICATION OF THE RULES OF

STATE RESPONSIBILITY CAN BE PREVENTED, BY ENTERING INTO AN AD HOC
AGREEMENT THAT THEIR DISPUTE SHALL BE GOVERNED ONLY BY THE DISPUTE
SETTLEMENT UNDERSTANDING ENTERED INTO BY THE WTO MEMBERS (JUSTICE
FLORENTINO P FELICIANO. LECTURE SERIES. INTERPRETATION OF TREATIES: THE
EXPERIENCE OF THE APPELLATE BODY, WTO.)

B. IMPOSITION OF TARIFFS ON HELIAN PRODUCTS VIOLATES CHC TREATY.

 AN INTERPRETATION OF THE CHC TREATY READILY SUGGESTS A VIOLATION OF ITS

PROVISIONS THROUGH THE IMPOSITION OF TARIFFS ON HELIAN PRODUCTS.

8
‘We would agree with the European Communities that it may be appropriate for panels to look to the practice of
international tribunals for inspiration, particularly in situations where the WTO agreements, GATT/WTO
jurisprudence or practice provide no useful guidance.’ Panel Reports, European Communities – Measures Affecting
the Approval and Marketing of Biotech Products, WT/DS291/R, Add1 to Add9 and Corr1 / WT/DS292/R, Add1 to
Add9 and Corr1 / WT/DS293/R, Add1 to Add9 and Corr1, adopted 21 November 2006, DSR 2006:III, p 847 para.
7.1663.
9
United States - Trade measures affecting Nicaragua, Report by the Panel (unadopted), Doc L/6053, 13 October
1986.
10
The proceedings were suspended because of the uncertain legal status of the Federal Republic of Yugoslavia.
 Article 31 of the Vienna Convention, which is the general rule of interpretation of treaties
states that, ‘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’.11
This has been further elaborated by panels and the Appellate Body by pronouncing 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’.12 This
process is called “contextual reasoning”, wherein certain elements need to be considered in order
to determine the true character of the treaty. These elements include ‘immediately surrounding
words, other sentences of the same paragraph of a provision, other paragraphs in a provision, the
title of a provision, immediately adjacent articles, other articles in the same part of the treaty, or
other articles in other parts of the treaty’.13

From a general purview of the provisions of the CHC treaty, its purpose can be inferred from
Article 1 which states that ‘The Member States of this Community solemnly pledge their
everlasting commitment to the sustainable cultivation of the Helian hyacinth’.14 This provision
explains the presence of ‘other paragraphs in a provision’ such as Article 3 which explicitly
prohibited the imposition of tariffs on Helian imports.15 It, then, follows that any violation of said
provision is also a violation of the aforementioned purpose of the treaty. The adverse effects of
Rasasa’s move to violate the CHC Treaty by imposing the said tariffs, which the CHC Treaty
sought to prevent, could readily be seen in the situation of Adawan farmers losing ‘more than
€10 million in revenue through the end of the studied period in October 2018 as a result of
declining sales to processors in Rasasa,’.16

 THE GROUNDS USED FOR THE IMPOSITION OF THE TARIFFS DID NOT MEET THE
STANDARDS SET BY INTERNATIONAL LAW FOR ALLOWING WITHDRAWAL FROM A
TREATY PROVISION (ARTICLE 62, GATT).

 THERE IS NO RULE YET AS TO WHETHER OR NOT THE APPLICATION OF THE RULES OF

STATE RESPONSIBILITY CAN BE PREVENTED, BY ENTERING INTO AN AD HOC
AGREEMENT THAT THEIR DISPUTE SHALL BE GOVERNED ONLY BY THE DISPUTE
SETTLEMENT UNDERSTANDING ENTERED INTO BY THE WTO MEMBERS.

11
‘Vienna Convention on the Law of Treaties, Article 31(1).1155 U.N.T.S. 331, 8 I.L.M. 679, Entered into Force Jan.
27, 1980.’
12
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.
13
Graham Cook, A Digest of WTO Jurisprudence on Public International Law Concepts and Principles (First
published, University Press 2015) 15.4 Context – Article 31(1)
14
Compromis, Annex B.
15
Compromis, 43.
16
Compromis, 46.
C. ADAWA IS ENTITLED TO COMPENSATORY DAMAGES.

 THE CONCEPT OF ‘PUNISHMENT’ DOES NOT GENERALLY APPEAR IN PUBLIC

INTERNATIONAL LAW. COMPENSATORY DAMAGES ARE RECOGNIZED AS A REMEDY
FOR RESULTING FINANCIAL HARM.17
 COMPENSATORY DAMAGES ARE A PROPER REMEDY FOR FINANCIAL HARM CAUSED
TO MEMBERS IN DISPUTES BEFORE THE ICJ.

Several articles have been written criticizing compensation as an implementation

procedure in the DSU.18 We may have claimed that monetary remedy is “not typically awarded
by WTO Panels,”19 but it cannot be denied that throughout the GATT period, compensation has
been indeed awarded by panels to financially harmed Members.20 Assuming arguendo that the
WTO indeed has jurisdiction over the case, it still supports the argument that although not
typically awarded by panels, compensation, as a matter of practice, has been used to compel
compliance from respondent Members.21 In the present case, there was unjustifiable breach of
Rasasa’s commitment to the provisions of the CHC Treaty, specifically in maintaining a bound
rate of zero on Helian products. Compensatory damages are proper.

17
‘State Responsibility: Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful
Acts Adopted by the Drafting Committee on Second Reading’, U.N. GAOR Int’l L. Comm’n, 53d Sess., U.N. Doc.
A/CN.4/L.602/Rev.1 (2001).
18
Mercurio, B. Why compensation cannot replace trade retaliation in the WTO dispute settlement understanding.
W o r l d T r a d e R e v i e w, 8 : 2 , 1 – 2 4. 2009.
19
Compromis, 57.
20
United States–Measures Affecting Imports of Softwood Lumber from Canada, 41 B.I.S.D. 413–15 (1993).
21
Ibid.