III. Imposition of tariffs on Helian products violates the CHC treaty.

i. Primary rules (which in this case is the CHC treaty) must govern over secondary
rules in treating the propriety of the application of a security clause.

Since necessity has also been analyzed as a potential justification for a breach of international
criminal responsibility1, the facts of each case must always be inquired into along with the law,
and not equate both just because they “share a common name.”2 Sloane pointed out two factors
why necessity has been customarily invoked as a defense: the widespread perception of an
imminent crisis or risk, and the abovementioned Article 25 of the Articles on Responsibility of
States for Internationally Wrongful Acts (Articles on State Responsibility) by the International
Law Commission (ILC). However, since the provision on the allowance of a plea for necessity in
the Articles on State Responsibility does not govern a specific subject matter, it is considered as
merely a secondary rule. Consequently, it would be dangerous to invoke a mere secondary rule
to justify an internationally wrongful act at the cost of breaching an otherwise “primary rule”.
Even the ILC has not yet promulgated the ASR as an immediate multilateral treaty, and admits
that certain provisions therein are still controversial.3 As a consequence, it has been criticized
that application of Article 25 is merely a “presumed” customary defense.4

Before the ASR was promulgated and published, when the ICJ declared the rationale of a
“substantially similar draft” of the present provision on necessity, it cited no authority from
which it drew such a statement.5 It neither presented any relevant practice nor opinion juris to
support such a presumption.

1Jens David Ohlin, The Torture Lawyers, 51 HARV. INT’L L.J. 193 (2010); Gabriella Blum, The Laws of War and the “Lesser Evil,”
35 YALE J. INT’L L. 1 (2010); Christopher P. DeNicola, Comment, A Shield for the “Knights of Humanity”: The ICC Should Adopt a
Humanitarian Necessity Defense to the Crime of Aggression, 30 U. PA. J. INT’L L. 641 (2008).

2 Sloane, R. On the use and abuse of necessity in the law of state responsibility. P. 448. Vol. 106:447.

3Report of the International Law Commission on the Work of Its Fiftieth Session, UN GAOR, 53d Sess., Supp. No. 10, para. 224,
UN Doc. A/53/10 (1998) [hereinafter Fiftieth Session Report].

4 Caron, supra note 30, at 873.

5 Gabcˇı´kovo-Nagymaros Project, supra note 24, para. 51.

 In the present case, Rasasa invokes the security clause as a ground to justify its breach of
international obligation. However, to do so clearly tramples upon the primary rule (the CHC
treaty) governing between the contracting parties. Absent any standard to immediately apply the
necessity provision in line with the security clause, Rasasa must obey what it has agreed with the
other parties under the CHC treaty, most specifically the non-imposition of tariff rates on Helian
products.

ii. Even arguendo that the security clause can be invoked the imposition of the tariffs is
an improper application of such provision.

Rasasa invokes the security clause as a ground to justify its breach of international
obligation, specifically raising necessity under Article 25 of the International Law Commission’s
(ILC) Draft Articles on State Responsibility as its main basis. The provision states, among
others, that “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.” Furthermore, the ILC mentioned in its comments that “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.”6 These specific parts of the necessity
provision in line with the security exception have certain weaknesses which are crucial to note.

It must be noted, on one hand, that there has not been a particular definition of “essential” so
that resort to the facts of the case is most appropriate.7 On the exclusiveness of the measure, on
the other hand, if there are other steps which are still available to be taken to protect a State’s
interests, such must be exhausted first before resorting to the application of a plea for necessity.
For instance, in Gabcikovo, the ICJ found that there were other means available to Hungary in
order to protect its essential interest aside from its suspension and abandonment of the project. It
can be inferred from the case that the solutions proposed by the Court did not evoke any hard-
and-fast rule applicable to all international disputes of a similar subject, but was dependent on

6International 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

7 Second Report on State Responsibility: Addendum, Int’l L. Comm’n, 51st Session, at 30, U.N. Doc. A/CN.4/498/Add.2 (1999).
the welfare of all involved parties. At best, the Court considered such actions as “provisional
solutions.”8

Here, Rasasa considered imposition of the tariffs9 as a remedy, and eventually enforced such
action without even previously proposing and availing provisional solutions it could have agreed
with Adawa. This action by Rasasa falls short of the condition required under the plea for
necessity, the very ground it uses to support its security exception justification.

8 Gabcˇı´kovo-Nagymaros Project, para. 59-61.

9 Compromis, 33 and 43.