WON the CHC treaty was violated / WON the treaty falls outside the jurisdiction of the ICJ

9. Responsibility of States for Internationally Wrongful Acts (2001) appears in Yearbook of the
International Law Commission, 2001, vol. II (Part Two). BY THE UN

 Article 2

Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

 Article 12

Existence of a breach of an international obligation

There is a breach of an international obligation by a State when an act of that State is not in conformity
with what is required of it by that obligation, regardless of its origin or character.

 Article 13

International obligation in force for a State

In act of a State does not constitute a breach of an international obligation unless the State is bound by
the obligation in question at the time the act occurs.

 Article 23

Force majeure

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is
precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation. (To Counter what ADAWA WANTS POINT 1&2)

2. Paragraph 1 does not apply if:

(a) the situation of force majeure is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or

(b) the State has assumed the risk of that situation occurring.

 Article 24

Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is
precluded if the author of the act in question has no other reasonable way, in a situation of distress,
of saving the author’s life or the lives of other persons entrusted to the author’s care. (To Counter
what ADAWA WANTS POINT 1&2)

2. Paragraph 1 does not apply if:

(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of
the State invoking it; or

(b) the act in question is likely to create a comparable or greater peril. (THIS GOES IN FAVOR TO ADAWA;
FIND COUNTER)

 Article 25

Necessity

1. Necessity may not be invoked by a 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;
(To Counter what ADAWA WANTS POINT 1&2)

in conection to this:

According to a report published by the Rasasan Helian Growers Association (RHGA), a prominent
industry group based in Botega, beginning in October 2016 Rasasa’s share of the global Helian
market had declined sharply relative to that of other States in the Region. The RHGA expressed
alarm that Rasasan Helian processors had increasingly begun to purchase their raw material from
Adawan Helian farmers in lieu of Rasasan suppliers, who had been unable to meet their

Helian pollen requirements. The RHGA’s report concluded, “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.”

and

(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 ESSENTIAL GOAL BEING in ARTICLE 3 of CHC
TREATY:

To facilitate the development and health of the Helian industry, (DEVELOPMENT AND HEALTH) ???
the Member States agree to impose no customs duties on Helian products, as well as goods that
are primarily or exclusively used in the harvesting or processing of the Helian hyacinth, which
originate from the territory of a Member State.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness

if:

(a) the international obligation in question excludes the possibility of invoking necessity; or (EXPRESS in
the TREATY??? OR NOT????)

(b) the State has contributed to the situation of necessity.

(XXXXXXXXXXXXXXX) Impossing Tariff is not an internationally wrongful act

11. ICJ 1997 CASE CONCERNING THE GABC~KOVO-NAGYMAROSPROJECT (HUNGARY/SLOVAKIA) Treaty

of 16 September 1977 concerning the construction and operation of the GabCikovo-Nugymaros Systenz
of Locks (TREATY SUCCESSION

1. Hungary and Slovakia had a special agreement: Treaty on the Construction and Operation of the
Gabtikovo-Nagymaros Barrage System (HUNGARY BEING RASASA and Slovakia Being ADAWA)
o Bearing in mind that the Slovak Republic is one of the two successor States of the Czech
and Slovak Federal Republic and the sole successor State in respect of rights and
obligations relating to the Gabeikovo-Nagymaros Project

In its Commentary, the Commission defined the "state of necessity" as

being
"the situation of a State whose sole means of safeguarding an essen-
tial interest threatened by a grave and imminent peril is to adopt conduct not in conformity with what is required
of it by an interna- tional obligation to another State" (ibid., para. 1)

It concluded that "the notion of state of necessity is . . . deeply rooted in general legal thinking" (ibid, p. 49, para. 31).
51. The Court considers, first of all, that the state of necessity is a
ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an
international obliga-
tion. It observes moreover that such ground for precluding wrongfulness
can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it
explained that it had opted
for a negative form of words in Article 33 of its Draft
"in order to show, by this formal means also, that the case of invoca- tion of a state of necessity as a justification
must be considered as
really constituting an exception - and one even more rarely admis- sible than is the case with the other
circumstances precluding wrong- fulness . . ." (ibid, p. 51, para. 40).
Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined
conditions which must be cumula- tively satisfied; and the State concerned is not the sole judge of whether those
conditions have been met.
52. In the present case, the following basic conditions set forth in
Draft Article 33 are relevant: it must have been occasioned by an "essen-
tial interest" of the State which is the author of the act conficting with
one of its international obligations; that interest must have been threat-
ened by a "grave and imminent peril"; the act being challenged must have been the "only means" of safeguarding that
interest; that act must
not have "seriously impair[ed] an essential interest" of the State towards
which the obligation existed; and the State which is the author of that act
must not have "contributed to the occurrence of the state of necessity".
Those conditions reflect customary international law.

he Commission, in its Commentary, indicated that one should not, in

that context, reduce an "essential interest" to a matter only of the "exist-
ence" of the State, and that the whole question was, ultimately, to be
judged in the light of the particular case (see Yeurbook of the Internu-
tionul Luiv Commission, 1980, Vol. I I , Part 2, p. 49, para. 32); at the
same time, it included among the situations that could occasion a state of necessity, "a grave danger to . . . the
ecological preservation of al1 or
some of [the] territory [of a State]" (ibid, p. 35, para. 3); and specified,
with reference to State practice, that "It is primarily in the last two
decades that safeguarding the ecological balance has come to be con-
sidered an 'essential interest' of al1 States." (Ibid., p. 39, para. 14.)

The Court recalls that it has recently had occasion to stress, in the fol-
lowing terms, the great significance that it attaches to respect for the envi- ronment, not only for States but also for the
whole of mankind:

"the environment is not an abstraction but represents the living

space, the quality of life and the very health of human beings,
including generations unborn. The existence of the general obliga-
tion of States to ensure that activities within their jurisdiction and
control respect the environment of other States or of areas beyond national control is now part of the corpus of
international law relat-
ing to the environment." (Legality of the Threut or Use of Nuclear Weapons, Advisoty Opinion, I. C.J. Reports
1996, pp. 241 -242,
para. 29.)

54. The verification of the existence, in 1989, of the "peril" invoked by Hungary, of its "grave and imminent" nature,
as well as of the absence of
any "means" to respond to it, other than the measures taken by Hungary
to suspend and abandon the works, are al1 complex processes.

argument on the state of necessity could not convince the Court unless it was at least proven that a
real, "grave" and "imminent" "peril" existed in 1989 and that the measures taken by Hungary were the
only possible response to it