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

A. ICJ HAS NO JURISDICTION OVER ADAWA’S CLAIM. THE ISSUE IS NOT ADMISSIBLE.

 PROCEEDINGS WERE ALREADY UNDERWAY BEFORE THE DISPUTE SETTLEMENT BODY.1

Article 62 of the Vienna Convention states that, “1. A fundamental change of circumstances which
has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty
unless: (a) The existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent
of obligations still to be performed under the treaty. The said provision partakes of a political question.
In a case, the United States once argued that ‘panels are deprived of the right to conduct an inquiry into
the security exception.’2 Even further, Bogdanova elaborated this statement by stating that ‘the essence
of the ‘political question’ doctrine is that courts cannot adjudicate some claims due to their political
nature and therefore courts must dismiss such claims for lack of jurisdiction without reaching the
merits.’ In the instant case, the ground used by Rasasa to justify its imposition of the tariffs on Helian
products imported by Adawa falls squarely within the security clause. It is a political question rather
than a justiciable one that has properly been lobbied already before the Dispute Settlement Body.3

 THE PARTICULAR ACTION BY RASASA OF IMPOSING THE TARIFFS FALLS WITHIN THE
EMERGENCY ACTION ON IMPORTS OF PARTICULAR PRODUCTS.4

Article XIX on Emergency Action On Imports Of Particular Products of the GATT 1994 states 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.

1
Compromis, 58.
2
‘Russia – Measures Concerning Traffic in Transit (DS512), Third-Party Oral Statement of the United States of
America’ (n 17); ‘Russia – Measures Concerning Traffic in Transit (DS512), Third Party Executive Summary of the
United States’ (n 20); ‘Russia – Measures Concerning Traffic in Transit (DS512), Responses of the United States of
America to Questions from the Panel and Russia to Third Parties’ (n 20).
3
Compromis, 58.

4
Article XIX, GATT 1994.
  THERE HAS BEEN NO DECISION RENDERED BY THE WTO ON THE ALLOWANCE OF DAMAGES AS
COMPENSATION FOR VIOLATION OF STATE RESPONSIBILITY.5

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
because they are afraid of the consequences of saying an objective yes or no about it. It is termed as
“systemic inadequacies” outside formal dispute settlements in Geneva.

Article XXVIII bis

Tariff Negotiations

1. The contracting parties recognize that customs duties often

constitute serious obstacles to trade; thus negotiations on a reciprocal and

mutually advantageous basis, directed to the substantial reduction of the

general level of tariffs and other charges on imports and exports and in

particular to the reduction of such high tariffs as discourage the

importation even of minimum quantities, and conducted with due regard

to the objectives of this Agreement and the varying

needs of individual contracting parties, are of great importance to the

expansion of international trade. The CONTRACTING PARTIES may

therefore sponsor such negotiations from time to time.

5
Justice Florentino P Feliciano, Confidentiality of International Arbitration.