Durante la primera semana de marzo de este año se llevarán a cabo en Bogotá, y casi de manera simultánea, las rondas orales del Philip C. Jessup International Law Moot Court y del ELSA Moot Court Competition on WTO Law.
En el caso del Jessup, la Universidad del Rosario será la sede de las rondas nacionales del concurso. El evento tendrá lugar los días 3 – 4 de marzo. Las audiencias comenzarán el día jueves 3 a las 8:00 am. Serán cuatro rondas preliminares (cada una con dos audiencias en simultánea), que terminarán con la ronda cuarta el sábado 4, a las 9:00 am. A las 11:30 am del sábado se conocerán los finalistas de las rondas nacionales y se conocerán los resultados del concurso en Derecho Internacional 2017 organizado por ACCOLDI (para más información, click acá).
De esta manera, la audencia final será el mismo sábado 4 a las 3:00 pm.
El compromis de este año se denomina The case concerning the Sisters of the Sun, between the Federation of the Clans of the Atan (Applicant) and the Kingdom of Rahad (Respondent) (descargar acá o ver al final de esta nota). Toda la información del caso y del concurso se encuentra en la página de ILSA, la organizadora del Jessup: click acá.
Por su parte, ELSA Moot Court Competition on WTO Law tendrá sus rondas regionales (All America Regional Round) entre los días 1 y 5 de marzo. El concurso tendrá lugar en la Universidad de los Andes. Después del acto de instalación el día 1 de marzo, las audiencias comenzarán el jueves 2 a las 8:00 am y se extenderán hasta el sábado 4. Los horarios de las audiencias serán: 8:00 am y 11:00 am. El mismo sábado 4 serán las rondas semifinales, comenzando a las 9:00 am y la audiencia final tendrá lugar en la tarde.
El caso de este año lleva por nombre The CHIMEHA FTA between Chilo, Meco and Haito (descargar acá o ver al final de esta nota). Toda la información del caso y del concurso se encuentra en la página de ELSA, la organizadora del concurso: click acá.
Como es costumbre, en estos concursos participan las universidades colombianas con una tradición fuerte en Derecho Internacional: Rosario, La Sabana, Andes y Javeriana, entre otras. A ellas y a todos los participantes les deseamos muchos éxitos!
INTERNATIONAL COURT OF JUSTICE
BETWEEN THE FEDERATION OF THE
CLANS OF THE ATAN (APPLICANT)
AND THE KINGDOM OF RAHAD (RESPONDENT)
TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE
THE DIFFERENCES BETWEEN THE PARTIES
CONCERNING THE SISTERS OF THE SUN
jointly notified to the Court on 12 September 2016
COUR INTERNATIONALE DE JUSTICE
ENTRE LA FÉDÉRATION DES TRIBUS DE L’ATAN (DEMANDERESSE)
ET LE ROYAUME DE RAHAD (DÉFENDERESSE)
VISANT À SOUMETTRE À LA COUR INTERNATIONALE DE JUSTICE
LES DIFFÉRENDS QUI OPPOSENT LES DEUX PARTIES
CONCERNANT LES SŒURS DU SOLEIL
notifié conjointement à la Cour le 12 septembre 2016
ADDRESSED TO THE REGISTRAR OF THE COURT:
The Hague, 12 September 2016
On behalf of the Federation of the Clans of the Atan and the Kingdom of Rahad, and in accordance with Article 40(1) of the Statute of the International Court of Justice, we have the honor to transmit to you an original of the Special Agreement for submission to the International Court of Justice of the Differences between the Applicant and the Respondent concerning the Sisters of the Sun, signed in The Hague, The Netherlands, on the twelfth day of September in the year two thousand sixteen.
|Her Excellency Cheva Visier
Ambassador of the Federation of the Clans of the Atan to the Kingdom of The Netherlands
|His Excellency Ned Karol
Ambassador of the Kingdom of Rahad to the Kingdom of The Netherlands
SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE
BY THE FEDERATION OF THE CLANS OF THE ATAN
AND THE KINGDOM OF RAHAD
ON THE DIFFERENCES BETWEEN THEM
CONCERNING THE SISTERS OF THE SUN
The Federation of the Clans of the Atan (“the Applicant”) and the Kingdom of Rahad (“the Respondent”) (hereinafter “the Parties”);
Considering that differences have arisen between them concerning the Sisters of the Sun and other matters;
Recognizing that the Parties have been unable to settle these differences by direct negotiations;
Desiring further to define the issues to be submitted to the International Court of Justice (“the Court”) for resolution;
In furtherance thereof the Parties have concluded this Special Agreement:
The Parties submit the questions contained in the Special Agreement (together with Corrections and Clarifications to follow) (“the Case”) to the Court pursuant to Article 40(1) of the Court’s Statute.
It is agreed by the Parties that the Federation of the Clans of the Atan shall appear as Applicant and the Kingdom of Rahad as Respondent, but such agreement is without prejudice to any question of the burden of proof.
- The Court is requested to decide the Case on the basis of the rules and principles of international law, including any applicable treaties.
(b) The Court is also requested to determine the legal consequences, including the rights and obligations of the Parties, arising from its Judgment on the questions presented in the Case.
- Procedures shall be regulated in accordance with the applicable provisions of the Official Rules of the 2017 Philip C. Jessup International Law Moot Court Competition.
(b) The Parties request the Court to order that the written proceedings should consist of Memorials presented by each of the Parties not later than the date set forth in the Official Schedule of the 2017 Philip C. Jessup International Law Moot Court Competition.
(a) The Parties shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.
(b) Immediately after the transmission of any Judgment, the Parties shall enter into negotiations on the modalities for its execution.
In witness whereof, the undersigned, being duly authorized, have signed the present Special Agreement and have affixed thereto their respective seals of office.
Done in The Hague, The Netherlands, this twelfth day of September in the year two thousand sixteen, in triplicate in the English language.
Her Excellency Cheva Visier His Excellency Ned Karol
Ambassador of the Federation Ambassador of the Kingdom of Rahad
of the Clans of the Atan to the to the Kingdom of The Netherlands
Kingdom of The Netherlands
THE CASE CONCERNING THE SISTERS OF THE SUN
Atania / Rahad
- Applicant, the Federation of the Clans of the Atan (“Atania”), and Respondent, the Kingdom of Rahad (“Rahad”), are neighboring states that occupy the Nomad Coast. The Nomad Coast, characterized by arid and semi-arid lands, is bounded to the north by the Great Garnet Desert and is otherwise surrounded by the Emerald Ocean.
- Atania is a newly-industrializing state located in the eastern two-thirds of the Nomad Coast. As of 1 January 2015, Atania had a population of just over 22 million. Seventy-five percent of the GDP of Atania is based on the extraction and exportation of hydrocarbons; the country’s other major sources of revenue are tourism and grain exports. In January 2010, the country’s GDP was US$102 billion, although by January 2016, it had fallen to US$80 billion.
- The Kingdom of Rahad, a constitutional monarchy, occupies the western third of the Nomad Coast. The current Queen, Teresa Savali II, has executive authority to command the nation’s armed forces, to convene and dissolve the national parliament, and to appoint and dismiss government ministers. Rahad’s largest export is natural gas. Rahad’s GDP in January 2016 was estimated at US$11 billion. According to the February 2014 census, its population was 3.5 million.
- The Greater Inata Aquifer (“the Aquifer”) is the largest underground source of fresh water in the Nomad Coast and is one of the largest aquifers in the world. People of the Nomad Coast have relied upon discharge from the Aquifer for many generations, but a definitive map of the Aquifer itself was not produced until 1990.
- The Kin Canyon Complex (“the Complex”) is a group of three canyons cut by long-extinct rivers straddling the border between Atania and Rahad. The Complex covers approximately 300 square kilometers. The canyons that constitute the Complex are located at the deepest part of a greater wadi system. Each is over four kilometers deep, consisting largely of layers of brightly colored sandstone and limestone. Among the many historic sites located within the Complex is a walled fortress known as “the Stronghold,” an architecturally and archaeologically significant assembly of ancient dwellings and ceremonial structures. Also of great interest to archeologists and tourists is the Sunrise Mesa, a freestanding sandstone butte approximately 160 meters tall positioned 250 meters north of the Stronghold. When the rising sun strikes it, the butte appears to sparkle with red light. Two of the three canyons are within the borders of Atania; the third canyon and the Sunrise Mesa are within the territory of Rahad.
- First settled in the Neolithic Era, the Kin Canyons are a rich source of archaeological treasures. The Complex was described in a 2015 issue of National Geographic magazine as “a continuing source of some of the most fascinating insights into early human civilizations.” Critical archeological discoveries within the Complex include terracotta figurines, flint axes, and jewelry all dating from between 10,000 and 5,000 BCE.
- The people of both Rahad and Atania descend from the Atan, the original inhabitants of the Complex. When the rivers that carved the canyons dried up more than 3,000 years ago, most of the Atan inhabitants migrated to coastal regions and separated into 17 clans. One of the clans, Clan Kin, remained in the Complex and provided for the protection of the Canyons, which they venerated as the birthplace of their ancestors.
- According to legend, in 500 CE, Teppa, a warrior of the Clan Kin, uncovered a plot by a warlord, Ifan the Desert Fox, to invade the Nomad Coast. To defend the Kin Canyons, Teppa persuaded all 17 Atan clans to stand together against Ifan’s raiders, and under her leadership, the united clans defeated the invaders. Humbled by his defeat, Ifan offered his life to Teppa. Teppa forgave Ifan, raised the Ruby Sipar, a ceremonial shield laden with jewels, and declared peace. Teppa died a hero. Her exploits were the subject of poetry, and her image was featured in pottery, mosaics, and coinage of the era.
- In recognition of her pivotal role in saving the sacred canyons and uniting the people of the Nomad Coast, the Kin honored Teppa’s memory by establishing “the Sisters of the Sun,” an order of women dedicated to protecting and preserving the culture and traditions of the Kin. Although much of their history has been lost through the ages, the Sisters of the Sun continue to serve as social and cultural leaders within Kin society and as mediators in local disputes. The members wear miniature replicas of the Ruby Sipar around their necks as a symbol of their loyalty to the Sisters and to the founder of the order.
- After initial hostile contact with European explorers in the late eighteenth and early nineteenth centuries, the 17 Atan clans held a peaceful ceremonial gathering in 1863. Anticipating future contact with other nations and in an attempt to unite in perpetuity, 16 of the clans elected to enter into the republican federation, Atania, which still exists today. Clan Rahad chose to remain independent and established the Kingdom of Rahad. Permanent boundaries between the two states were established at the gathering.
- The Kin lived in the Complex until the formation of the two new states, when they migrated to lands east of the Complex in Atania. They remain largely culturally and politically isolated from the rest of Atanian society, avoiding modern technology and living off the land through farming, hunting, and gathering. As of 1 January 2013, the Kin accounted for 98% of subsistence farmers in Atania.
- For centuries, the original Ruby Sipar was believed to have been lost forever. In 1903, Dr. Gena Logres, an archaeologist from the University of Atanagrad, conducting an excavation in the Complex within the territory of Atania, discovered what appeared to be the original Ruby Sipar featuring more than 100 precious gems surrounding a large sun made entirely of rubies. Dr. Logres took the object to the University of Atanagrad, where it was placed on public display. Subsequent archaeological research confirmed its authenticity.
- In 1990, Atania and Rahad jointly proposed that the Complex be included on UNESCO’s World Heritage List as a cultural and natural heritage property. The joint proposal included a two-kilometer “buffer zone,” extending from the edge of the Complex in all directions. The World Heritage Committee accepted the proposal and listed the Kin Canyon Complex as a mixed heritage site on 2 May 1994. In 1996, the Ruby Sipar, identified as “on loan from the University of Atanagrad,” was moved to a newly constructed Cultural Center on the Atanian side of the Complex. The Complex and the Cultural Center have drawn on average 350,000 visitors each year.
- As a result of record low rainfall, the entire Nomad Coast experienced sustained drought conditions in each year from 1983 to 1988. Both Atania and Rahad were forced to import water from other countries at great expense. In order to reduce its reliance on imported water, Rahad permitted the drilling of wells on public land for private, agricultural, and commercial use.
- In 1988, the Rahadi Ministry of Water and Agriculture hired a team of hydrologists from Alberta, Canada to map the sources of its subterranean fresh water. Using ground-penetrating radar, the hydrologists conducted the first in-depth study of the Greater Inata Aquifer. Their initial report, published in 1990, included a detailed map and concluded that the Aquifer covered more than 274,000 square kilometers within the Nomad Coast, of which 65% was located in Rahad and 35% in Atania. The Ministry then commissioned the hydrologists to undertake a more in-depth study to monitor the recharge rate and salinization of the Aquifer over the next 10 years.
- On the first UN World Water Day, 22 March 1993, Queen Teresa and the Atanian President, Alexander Vhen, appeared together at a ceremony in Atanagrad, the Atanian capital, to recognize and celebrate the importance of water to all peoples. In a nationally-televised address, the Rahadi Minister of Water and Agriculture said:
The people of Rahad today join our Atanian neighbors and the world in recognizing the importance of water to all who live on the Nomad Coast. In honor of this World Water Day, Rahad promises to make every reasonable effort to preserve and protect the shared fresh water resources of our Nomad Coast and to ensure their equitable use. Future generations must be assured that they will never be denied access to these valuable, unique resources, on which life and prosperity depend, and without which we cannot survive.
The Minister’s Atanian counterpart responded with a message communicating the “appreciation of the Atanian people for this neighborly gesture of cooperation and brotherhood.”
- In a speech on the 5th World Water Day in 1998, UN Secretary General Kofi Annan recalled the Rahadi Minister’s statement:
Rahad’s commitment to preserve and protect the water resources it shares with Atania and to make sure that they are used equitably is a testament to the inspiration that lies behind the UN World Water Day. The world might well emulate this model of cooperation. Recognition must be universal that human dignity, indeed human survival, cannot be assured without access to fresh and clean water.
- In 2000, the follow-up report from the team of hydrologists found that the Aquifer contained approximately 35 cubic kilometers of extractable fresh water. The report indicated that the major deposit of the Aquifer’s waters occurred more than 10,000 years ago; because of the arid climate of the Nomad Coast, the recharge rate of the Aquifer is negligible, and any water extracted from it would not be replenished for many generations.
- Drought conditions returned to the region, beginning in 1999 and continuing to the present day, with record-low rainfall recorded throughout the Nomad Coast. In 2001, meteorologists in the Atanian State Weather Service reported that there had been a 1.6-degree Celsius average temperature increase throughout the Nomad Coast during the period 1970 to 2000. The head of the Service repeatedly expressed concern that “the combined impact of these meteorological and climatological changes on fresh water sources in the Nomad Coast is likely to result in a long-term shortage of water for the peoples of both Rahad and Atania.”
- In her annual birthday address on 16 June 2002, Queen Teresa stated that it was her government’s desire to improve access to the waters of the Aquifer, to ensure that the needs of the Rahadi people could be met. She described the Aquifer as “a fundamental natural resource of our country,” and declared that, “as a developing nation suffering the effects of extreme drought and climate changes, Rahad has the right and indeed the obligation to seek out ways of using that resource to sustain our people.” On the next day, she formally directed the Inata Logistic and Scientific Association (“ILSA”), a Rahadi government-funded scientific organization, to study the feasibility and long-term effects of directly tapping the Aquifer to meet Rahad’s domestic need for water.
- ILSA released its report on 17 January 2003. It concluded that, in light of projected consumption, growth and development, completely ending Rahad’s reliance on imported water and re-establishing self-sufficiency would require an alternative supply of approximately 1.2 cubic kilometers of water per year. Extraction of water from the Aquifer at this rate would deplete its total extractable fresh water reserve in approximately 30 years. The report was subjected to blind independent peer review before being accepted for publication in the International Journal of Hydrology. The study noted that, because the Kin Canyons were located near the Aquifer, care would need to be taken to ensure that any depletion of the Aquifer waters did not harm the structural integrity of the Complex.
- On 2 February 2003, Queen Teresa made a televised appearance to the nation, setting out her plans to address the increasingly serious water crisis in Rahad. Among other things, she announced:
Our nation is confronted with a very grave dilemma, and I want all of our people to understand how your government is proposing to deal with it. We simply do not have enough water to sustain our farmers, who grow our food and provide our sustenance, and there is no obvious solution to this problem that is economically viable and practically possible. None, that is, except one. I am today ordering the Bureau of the Interior to begin implementation of a comprehensive program to extract water from the Greater Inata Aquifer. I certainly realize that this is a short-term solution. If we exhaust the Aquifer, we risk bankrupting our future generations. But we must do something. All of our people are affected by this crisis. So we will explore means of taking life-giving water from the Aquifer so long as drought conditions continue, and so long as we have no other way of preserving the life and culture of the great Rahadi nation.
- President Vhen responded by thanking the Queen for her remarks but noting his ongoing concern about the “equitable division of the waters of the Inata Aquifer,” and “the integrity of the Kin Canyon Complex, which is of enormous cultural and economic importance to both countries.” President Vhen reminded the Rahadi government of its obligation to respect the commitment it made on 22 March 1993, “when carrying out any plan to tap the largest source of fresh water on the Nomad Coast for its own exclusive domestic use.” He concluded, “unless and until my Government is assured that any Rahadi extraction of Aquifer waters will not negatively affect our use of the shared resource, we must express our serious concerns about the potential dangers that this unilateral action may provoke.” He called on the Queen to stop plans to tap the waters of the Aquifer immediately and to seek alternative sources.
- The Bureau of the Interior prepared a plan for a network of 30 pump wells located in Rahad’s northern territories to be connected by a subterranean pipeline system (“the Savali Pipeline”), which would provide a reliable source of water to Rahad’s farmlands and natural gas industry. Given the concerns about its potential impact on the Complex, Rahad submitted the Savali Pipeline plan to the World Heritage Committee on 30 September 2004.
- The Committee’s decision on the submission, published on 12 July 2005, “note[d] with concern” potential issues regarding possible subsidence of lands superjacent to the Aquifer, and “strongly urge[d] Rahad to ensure that the proposed Savali Pipeline project develops and implements targets for improving the conservation of the Kin Canyon Complex, and that all plans, policies, and proposals potentially affecting it demonstrate that they will make a positive contribution to the achievement of those targets without risking harm to sites of outstanding universal value.”
- Working to comply with the decision of the World Heritage Committee, Rahad limited drilling for the extraction of water to areas more than 15 kilometers outside of the Complex’s buffer zone. The Savali Pipeline project was completed on 20 February 2006, and pumping from the Aquifer began. Since 2006, 70% of the water was used for agriculture and 22% by the natural gas industry (the remaining 8% went to a variety of other uses). The Savali Pipeline continues, as of the date of this Special Agreement, to pump water from the Aquifer at a consistent rate of 1.2 cubic kilometers per year.
- In 2009, Atanian farmers in the region south of the Complex reported that wells, springs, and small streams were drying up, and land that had been rich and arable five years earlier was becoming dry and difficult to farm. Alarmed by the loss of important farmland, the Atanian Ministry of Water and Agriculture commissioned an international panel of climatologists, geologists, and hydrologists to determine whether the changing hydrology of the region was the result of the Savali Pipeline project.
- The panel released a study in June 2010 that concluded that operation of the Savali Pipeline had caused a permanent lowering of the water table in the region. As a result, discharge from the Aquifer could no longer provide a sufficient natural source of water for Atanian agriculture. The study found that 20% of what had been Atanian farmland could no longer be farmed, and that within 10 years an additional 30% would be lost if extraction continued at the same rate.
- President Vhen addressed the findings in a Parliamentary speech given on 6 July 2010, in which he said:
Not long ago, our Rahadi neighbors agreed that the waters of the Greater Inata Aquifer are a shared resource. It is with great sadness that we must now observe the plundering of this resource to benefit economic interests in Rahad, with scant regard for the harm they are doing to the people of Atania. The destruction of our farmland has already cost Atania more than US$300 million annually in the loss of food and other agricultural products. If this terrible trend continues, these losses will double in 10 years. We must implore the government of Rahad to stay true to its commitment to ensure the equitable use of shared water in the Nomad Coast, and to end the disastrous pipeline experiment.
- Meanwhile, by late 2010, foreign tourists began posting photographs on Twitter and Instagram using the hashtag #kincanyonscrumbling. These images showed what appeared to be environmental degradation in remote sections of the Complex. On 4 February 2011, President Vhen ordered a panel of geologists to investigate the veracity of the images. Weeks later, the geologists unanimously agreed that there had been clear structural degradation of the Canyons and the Stronghold within Atania. They attributed the problem to subsidence due to depletion of the Aquifer, but offered no opinion regarding whether continued extraction would lead to further damage. On 1 June 2011, The Atanian Herald reported that two Bhutanese tourists had barely escaped falling into a massive sinkhole that appeared when a busy pathway in the Complex collapsed. The Atanian government’s website announced that sections of the Complex were being closed to visitors immediately to ensure their safety.
- President Vhen sent a communiqué to the UNESCO World Heritage Committee on 7 July 2011, requesting that the Complex be added to the List of World Heritage in Danger “due to the impact of the Savali Pipeline.” Annexed to President Vhen’s message were the results of the geologists’ investigation.
- At its 37th conference in Saint Petersburg in June 2012, the UNESCO World Heritage Committee granted President Vhen’s application and added the Kin Canyon Complex to the List of World Heritage in Danger.
- Following the Committee’s decision, President Vhen requested a meeting with Queen Teresa to propose “the immediate suspension of Savali Pipeline operations until the situation, including potential hazards, may be better understood.” The Queen declined the invitation, and on 19 July 2012 the Palace issued a press release:
We respect the cultural heritage of the Kin Canyon Complex that we share with our Atanian brothers and sisters, and for that matter with all of humanity. Our pumping of waters from the Aquifer is being conducted in accordance with the highest possible standards of care, in conformity with our obligations as stewards of this marvelous treasure. We voluntarily commit to undertake regular studies of the long-term impact of this project on the region in general and on the Complex in particular. But we have no intention of surrendering our sovereign right to develop the natural resources with which our territory is blessed.
- Faced with the continued loss of farmable land due to the absence of water seepage from the Aquifer, the Atanian government determined that additional water needed to be allocated to agricultural production. On 28 September 2012, the Atanian Parliament enacted the 2012 Water Resource Allocation Program (WRAP) Act, which set a quota on water supplied by the Atanian Public Water Works (a government agency) to every household, farm, and business in Atania, to be in effect from 1 January 2013 until further notice. The Water Works was ordered to provide the government with quarterly reports of water consumption.
- Under the WRAP Act, all farming operations were also required to purchase licenses to utilize public water. WRAP offered license exemptions for farms that sold more than US$75,000 worth of crops per year. Nearly 86% of farming operations in Atania qualified for this exemption. Licenses were made available for purchase online or at local WRAP offices. The WRAP Act empowered the Bureau of Agriculture to prosecute anyone who used over-quota water and farming operations that failed to obtain licenses under Atanian Criminal Code provisions for “theft of public property.”
- Fewer than 5% of Kin farmers applied for licenses before the end of 2012, as required by law. The Bureau of Agriculture investigations also showed that in the first two quarters of 2013, more than 80% of Kin households and farms used water in excess of their quotas. In July 2013, all violators were sent notification of their failure to comply with WRAP.
- In August 2013, in accordance with the WRAP Act, the Department of Justice began the prosecution of two Kin farmers for use of over-quota water and failure to obtain a license. Both defendants asserted that their cultural traditions prevented them from seeking permission from the state to make use of natural resources. They also argued that the law discriminated against the Kin because it favored profit-generating farms, either because they qualified for an exemption or because they were able to pay for licenses. The two defendants were convicted of theft of public property and were ordered to pay a fine. Neither complied, and both were thereafter sentenced, in accordance with provisions of the applicable Criminal Code, to prison terms of five years. Although the Department of Justice distributed flyers across Kin lands publicizing the results of the trials and warning that more prosecutions might follow, over the following four months there was neither a noticeable increase in the number of licenses purchased nor a detectable decrease in the overall consumption of water in Kin areas.
- In October 2013, the Atanian Parliament amended the WRAP Act to provide that farms using water in violation of the Act were subject, in addition to the existing criminal penalties, to the termination of their state-controlled water supply. Invoking those procedures, by the end of 2013, the government of Atania cut off water to the majority of farms in Kin lands.
- United Nations Food and Agriculture Organization (“FAO”) Director-General José Graziano da Silva condemned the effects of WRAP in a speech to the General Assembly on 2 February 2014. He described numerous reports received from Kin villages in Atania claiming that small farmers whose water supplies had been terminated for failure to comply with WRAP and therefore had to abandon farming had no other means of securing sufficient food and were suffering severe deprivation. Dr. Graziano implored the government of Atania to stop the denial of access to water and to provide assistance to Kin villagers already affected by the changes to the water rights regime in the country.
- On 28 June 2014, the International Federation of the Red Cross and Red Crescent released a report entitled “It’s a WRAP: Starvation and Illness among the Kin.” Based on six months of interviews and surveys of Kin villagers by IFRC staff in the region, the report found rapidly rising rates of food-deprivation-related illnesses such as scurvy and beriberi among the Kin population. It also indicated that, of the 1.1 million Kin then living in Atania, more than 500,000 were undernourished. The report confirmed the FAO’s conclusion that the termination of the Kin’s water supply was depriving them of the ability to continue the traditional farming that had been their primary source of sustenance.
- On 17 July 2014, Carla Dugo, one of the elders of the Sister of the Sun, chained herself to a flagpole in the plaza outside the President’s residence in Atanagrad. She told reporters that she was engaging in a hunger strike to protest “the Atanian government’s persecution of the Kin” through what she called “the theft of our water, our food, and our way of life.” She also called on her fellow Sisters to “stand together” and “remember Teppa, and the true meaning of the Sipar that we proudly wear.” Within two weeks, over 5,000 Sisters of the Sun, hundreds of Kin, and their supporters had congregated in the plaza.
- The protest was widely reported in international media, which noted that numerous public buildings and other structures, including the seat of the Parliament, had been tagged with hand-painted Sipar symbols. Many international human rights NGOs tweeted messages of solidarity with the Sisters of the Sun. Thousands of demonstrators and onlookers began to assemble in the plaza and the immediate vicinity. Sisters led protesters to form human chains across major roads into the city, blocking traffic and preventing employees from entering municipal offices. Sister Dugo spoke with reporters at the scene and used the media spotlight to raise her Sipar, invoking “the memory of Teppa,” calling on all Sisters of the Sun and the entire Clan Kin to “stand together against the persecution of our people” by the government. Other speakers, all of whom wore or carried replicas of the Ruby Sipar, called for “stronger and more resolute action until our representatives listen to our cries.” The crowds refused orders to disperse, and on 2 August 2014, the mayor of Atanagrad described conditions in his city as “chaotic, unsanitary, dangerous, and entirely unsustainable.”
- On 5 August 2014, President Vhen issued the following order:
The ongoing unrest and the seditious protests led by the Sisters of the Sun can no longer be tolerated. The untenable situation in our capital city requires that the Government take drastic action to preserve law and order for all of our citizens. Therefore, I am today deploying armed police to assist government officials working to maintain peace and to permit all of our people the opportunity to live their lives without disruption. We respect the history of the Sisters and are mystified by their apparent decision to sacrifice their peaceful traditions to promote social disorder and mistrust of the Government. The Ruby Sipar, once a symbol of respect and even veneration that represented the united cultures of our nation, has come to identify and to provoke disruptive elements within Atania. It must be banned. We can no longer accept its public display. All Ruby Sipar Pendants worn or carried in public shall be confiscated and destroyed by agents of law enforcement.
- Following this order, Atania removed the Ruby Sipar from public display in the Complex Cultural Center and placed it in storage.
- Following President Vhen’s announcement, Atanian police cleared the plaza, arresting more than 800 Sisters of the Sun and Kin protesters. They were charged with disturbing the peace and violating orders to disband. The remaining demonstrators were driven from the plaza with tear gas and rubber bullets; no deaths or serious injuries were reported. The police seized all of the Sipar Pendants worn by the Sisters.
- In the following days, Sisters of the Sun throughout Atania publicly expressed what they called their “outrage over the ongoing treatment of the Kin and the government response to peaceful protests.” The Ministry of the Interior claimed that in many areas, demonstrations blocked roads, interfered with local businesses, and disrupted regular social activities, although again, there were no reports of deaths or serious injuries. Atanian police arrested more than 100 Sisters of the Sun and 900 other Kin demonstrators across the country over the following days. Hundreds remain in prison as of the date of this Special Agreement.
- In early September 2014, Rahadi Immigration Department agents reported that as many as 100,000 Kin had crossed into Rahad over the previous two weeks. The Argentine daily newspaper La Nación, which had sent a correspondent to interview members of Clan Kin, reported that while most of those crossing the border identified “fear of arrest” as their motivation, a substantial number claimed to be fleeing starvation.
- On 18 September 2014, the Rahadi Parliament enacted the Kin Humanitarian Assistance Act (KHAA). The preamble noted that the Kin crossing into Rahad “were facing the desperate plight of people forced to escape hardship and persecution in their homeland.” KHAA provided that Kin identified as Sisters of the Sun and their family members were deemed to be fleeing persecution and were therefore entitled to all of the rights and privileges of refugees under Rahadi immigration law. All other Kin entering Rahad were permitted to apply for refugee status, to be determined on a case-by-case basis. Because of the volume of applications and other circumstances, including the unavailability of adequate funding, Rahad anticipated at least a 24-month period until it could begin review of those applications.
- KHAA ordered that the Government, in cooperation with the United Nations High Commissioner for Refugees, establish three temporary camps in which all Kin entering the country were to be housed “until other arrangements can be made or until they deem it safe to return to their homeland.” As of the date of this Special Agreement, of the approximately 800,000 Kin who crossed the border into Rahad, 21,000 were found to be Sisters of the Sun, and an additional 134,000 their family members; refugee status was provided to all of those individuals. Applications for refugee status of other Kin remain pending as of the date of this Special Agreement.
- During intake interviews of a group of Kin at one of the camps on 3 October 2014, Rahadi border patrol agents encountered Carla Dugo. She told the agents that, a few days earlier, she had entered the Kin Canyon Complex Cultural Center in Atania under cover of darkness and removed the original Ruby Sipar from the vault in which it had been stored. She declined to provide more details (including the names of Center employees who she claimed had helped her) but told the border personnel that she had taken the treasure “to ensure its protection from destruction,” and because “it belongs with the Kin, wherever we are.” Sister Dugo voluntarily turned over the Sipar to the border agents, who delivered it to the Rahadi Ministry of Culture.
- The Rahadi Minister of Culture, Sophia Casa, notified her counterpart in Atania that she was in possession of the Ruby Sipar and that, given that its public display had been prohibited by President Vhen, it would be “inappropriate” for it to be returned. The Atanian Minister replied that the refusal to return the Sipar demonstrated “a blatant disregard for the cooperative relationship shared by our two states and a clear violation of international law.”
- On 3 November 2014, Ms. Casa formally rejected the request for repatriation of the Sipar, which she described as the lawful property of Rahad. She said:
Atania has publicly declared the Sipar to be a symbol of sedition and those who wear it to be enemies of the state. The campaign to eradicate all vestiges of the Sipar is incompatible with any claim to its ownership. We will keep this priceless treasure where it will be available to all who wish to see it, and we will treat it with the respect and veneration that it deserves.
- By August 2015, the International Rescue Committee, which had been invited by Rahad to monitor conditions at the camps, reported that the number of Kin in Rahad exceeded the capacity of the facilities created to receive them, and that national infrastructure “was being stretched beyond the breaking point.” The reports described sporadic power outages in 85% of the country lasting for more than four hours at a time, and reduced access to clean water for more than 150,000 Rahadi families, as well as the Kin in the camps. Members of the Rahadi Parliament introduced legislation to repeal the KHAA.
- On 13 October 2015, The Rahadi National Times published a front-page article reporting that of the thousands of Kin migrants who had qualified for refugee status and were being resettled into urban centers, some were engaging in petty crime, while others were sleeping in the streets, apparently unable to acclimate to the culture of Rahad. The article quoted numerous Rahadi citizens who expressed concern about the social and economic costs of attempting to integrate the Kin into their new society. Dismissed by government spokesmen as “xenophobic exaggeration,” the Times article was cited by members of the Rahadi Parliament urging repeal of the KHAA and the revisiting of what they called “the Kin question.”
- After extensive debate, on 17 December 2015, Parliament adopted the Border Protection Act (BPA), whose preamble recited, in relevant part:
It is the opinion of Parliament that the Kin crisis and the burden it has placed upon our society and economy have been caused by internationally wrongful acts of the Atanian state including the gross mistreatment of the Kin in their homeland. Parliament therefore humbly requests that Her Majesty’s Government pursue all available means to achieve three objectives: (a) negotiating a cessation of the causes of the massive emigration of Kin from Atania; (b) devising a plan for the safe relocation of those Kin who do not qualify for refugee status; and (c) obtaining financial compensation from the government of Atania for the massive costs our nation has had to bear as a result of our humanitarian response to the influx of the Kin.
- In her keynote address at the annual meeting of an international NGO the following month, Queen Teresa directly addressed the issues raised by the Parliament:
Recently, our Parliament requested that I endeavor to obtain compensation for the economic burdens that the Kin are placing on Rahad’s economy. I have instructed my Government to engage in discussions with Atania, whose treatment of the Kin has given rise, over the past few years, to a mass migration of members of that Clan into our country. When their legal and moral obligations are not sufficient to compel states to treat their citizens with respect, it is improper for them to shift the economic consequences of such policies onto neighbors willing to provide shelter to people fleeing their homelands, in order to forestall even more serious catastrophes. This is a moment for political vision and bravery, and for insisting upon the sharing of humanitarian burdens.
- On 18 January 2016, the Rahadi Ambassador to Atania submitted to the Atanian Foreign Ministry a memorandum itemizing expenditures associated with running the camps, relocating and integrating the Kin, and repairing damage to national infrastructure, all of which was said to be accruing. The list included particular costs claimed to have been caused by the influx, such as provision of food, sanitation, basic health and municipal services (including security services), building the camps, access to clean water, connections to the power grid, and road maintenance and construction. Deducting contributions provided to Rahad by foreign aid programs and international organizations, the net total was US$945,000,000, and the memorandum demanded compensation in that amount as well as for expenses continuing to accrue. Later that day, a spokesman for the Atanian Foreign Ministry, during a weekly press conference, acknowledged the memorandum, but dismissed it as “unprecedented, inconsistent with international law, and unworthy of a reply.”
- At the suggestion of the Secretary General of the United Nations, the governments of Atania and Rahad convened high-level discussions of the Kin issue in March 2016. The discussions quickly revealed to both parties that the crisis was part of a much larger dispute concerning all of the issues set out in this Special Agreement. In April 2016, the parties agreed to refer all of these matters to this Court.
- Atania and Rahad are both members of the United Nations, and are parties to the Statute of the International Court of Justice; the Vienna Convention on the Law of Treaties; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the 1972 World Heritage Convention; and the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol). Atania is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which Rahad has signed with ratification still pending in Parliament. Neither state has made any reservations, declarations, or understandings with regard to any of these treaties other than Atania’s declaration regarding the 1970 UNESCO Convention referenced below.
- Upon its ratification of the 1970 UNESCO Convention, Atania deposited the following declaration with the Director-General of UNESCO:
The properties designated as “of importance for archaeology, prehistory, history, literature, art or science,” in accordance with Article 1 of the Convention, include, without limitation, the following:
- All Atan archaeological objects regardless of material or value, dating from the year 1900 CE or before;
- All Atan paintings, drawings, water-colors, pastels, photographs, and pictures more than 50 years old and worth more than US$10,000; and
- All original Atan sculptures, bas-reliefs, engravings, and all copies thereof produced by the same process as the originals, made before 1900, regardless of their value. None of the above-referenced works may be removed from the territory of the Federation of the Clans of the Atan without an export license to be issued by, and according to regulations promulgated in the name of, the Ministry of Culture.
- Applicant, the Federation of the Clans of the Atan, respectfully requests that this Court adjudge and declare that:
- Extraction of water from the Aquifer violates international obligations undertaken by Rahad and constitutes an inequitable use of a shared resource;
- The Savali Pipeline operations violate Rahad’s international obligations with respect to the Kin Canyon Complex and therefore must cease;
- Rahad must immediately return the Ruby Sipar to Atania, its lawful owner; and
- Atania owes no compensation to Rahad for any costs incurred related to the Kin migrants.
- Respondent, the Kingdom of Rahad, respectfully requests that this Court adjudge and declare that:
- Rahad’s extraction of water from the Aquifer does not violate Rahad’s international legal obligations governing the proper use of shared resources;
- Rahad’s Savali Pipeline operations do not violate any legal obligations relating to the Kin Canyon Complex;
- Rahad is entitled to retain possession of the Ruby Sipar; and
- Atania must compensate Rahad for all direct and indirect expenses incurred and accruing as a result of accepting members of Clan Kin fleeing from Atania.
The CHIMEHA FTA between Chilo, Meco and Haito
- Chilo, Meco and Haito are Members of the World Trade Organization (WTO), and they all produce both agricultural and industrial products. Chilo and Meco are developing countries, and Haito is a least developed country (LDC).
- Chilo and Meco each have an advanced agricultural sector, comprising bovine meat, wheat, soya, coffee and bananas – the production of each of these goods is mainly exported. In the area of agricultural goods, Haito mainly produces bananas and coffee, and about 50% of its production is exported.
- Chilo, Meco and Haito are not self-sufficient in the production of certain agricultural products and, therefore, they import such agricultural products to cater to the diverse and sophisticated tastes of their populations.
- In 2015, on most of those imported agricultural products, the applied import tariffs maintained by Chilo, Meco and Haito varied between 30% and 40% ad valorem, and, on average, the applied rates were at least 20% below the bound rates. A few products were subject to tariff rate quotas (TRQs), either most-favoured-nation (MFN) or country-specific TRQs.
- In its WTO Schedule of Concessions on goods, Chilo has a bound MFN TRQ for coffee, comprising a 30% ad valorem duty for a first in-quota of 70 tonnes of its imports, with out-of- quota imports being subject to a 90% ad valorem duty. The in-quota is allocated on a first-come- first-served basis to all exporters of coffee from WTO Members. Last year the in-quota was essentially used by exports from Aga (a neighbouring country, also WTO Member) and Meco. Note, however, that pursuant to a previous confidential agreement between Meco and Chilo, Meco benefitted from a preferential rate of 5% ad valorem duty for the first 70 tonnes of coffee exported to Chilo, and from an out-of-quota preferential duty of 60% ad valorem. With respect to coffee, Meco has a bound MFN import tariff of 25% ad valorem and Haito has a bound MFN import tariff of 70% ad valorem.
- Chilo and Meco also produce several finished and semi-finished industrial products, mainly underwear, cosmetics and electronic products, most of which are exported. Haito produces parts and components for bicycles and roller-skates, also mainly for export.
2 THE CHIMEHA FTA
- In 2015, Chilo, Meco and Haito concluded a trilateral trade agreement called the “CHIMEHA Free Trade Agreement” (CHIMEHA FTA) which entered into force on 1 January 2016, and has been incorporated by each country into its domestic law. Chilo, Meco and Haito have reported to the press that the CHIMEHA FTA covers “substantially all the trade” between them, and all WTO Members seem to agree with them.
- This CHIMEHA FTA includes the following Chapters:
2.1 Chapter I – Duties on agricultural products
- Chapter A provides that duties on all agricultural goods must be reduced from their current MFN applied levels (on average between 30% and 40% ad valorem ) to 10% ad valorem by 2050. However, for TRQs, in-quota tariff duties are to be reduced by 50% by 1 January 2025, and out- of-quota tariff duties are to be reduced to 60% by the same date.
2.2 Chapter II – Duties on industrial products
- Chapter II provides that tariff duties on all industrial goods (including finished and semi- finished goods) must be reduced to 5% by 2020. However, import tariff duties on all electronic goods shall be maintained below 15% ad valorem, which is in fact the applied tariff level that has been in place for the last 5 years. (Note that for most of those electronic goods the bound MFN import tariffs were above 35% ad valorem).
2.3 Chapter III– Basic rights and obligations
- Chapter III contains general provisions and includes the following text in Article 303: “Articles III, XI, XII, XVIII, XX and XXI of the GATT 1994 are applicable mutatis mutandis as part of this FTA.”
2.4 Chapter IV – Anti-dumping
- Chapter IV contains the following provision in Article 404:
“Reciprocal Exemption from the Application of Anti-dumping duty Law:
- As of the date of entry into force of this FTA each Party agrees not to apply its domestic anti-dumping laws and regulation to goods of the other Parties. Specifically:
(i) no Party shall initiate any anti-dumping investigations or reviews with respect to goods of the other Parties;
(ii) each Party shall terminate any ongoing anti-dumping investigations or inquiries in respect of such goods;
(iii) no Party shall impose new anti-dumping duties or other measures in respect of such goods; and
(iv) each Party shall revoke all existing orders levying anti-dumping duties in respect of such goods.
- Each Party shall amend, and publish, as appropriate, its relevant domestic anti-dumping law in relation to goods of the other Parties to ensure that the objectives of this Article are achieved.”
2.5 Chapter V – Environment
- According to Chapter V, the parties may initiate dispute settlement proceedings under Chapter VIII if certain listed multilateral environmental agreements (MEAs) with trade components (such as CITES and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal) are not complied with. In addition, each of the parties agrees to provide a 0% import duty on 51 specified “green goods”, if these products originate in a party to the FTA or in a WTO Member that is considered by the three parties to be a “Green accredited party” because it also offers, to the CHIMEHA FTA parties, 0% tariffs duties on the same 51 green goods (for example solar panels, wind-turbines and biodiesel).
2.6 Chapter VI – Special and Differential Treatment (S&DT)
- All parties agree to promote the development of all developing countries. A set of special and differential treatments directed at Haito has been introduced in the FTA. Chapter VI contains an Article 606 stating:
“Considering Haito’s status as LDC, and with a view to assisting its economic diversification, Chilo and Meco shall reduce their import tariffs on all imports from Haito to zero within the first 3 years after the entry into force of this FTA, with the exception of tariffs and TRQs on coffee.”
2.7 Chapter VII – Trade in services
- Chapter VII contains a long positive list of services covered by this free trade agreement to which the national treatment obligation (as defined in GATS Article XVII) and market access obligation (GATS Article XVI) are applicable.
2.8 Chapter VIII – Dispute settlement
- The FTA contains a dispute settlement mechanism (DSM) for settling disputes between FTA parties. This FTA DSM is fairly similar to that of the WTO (the DSU), but it contains some different provisions. Notably, (i) there is a possibility for retroactive financial compensation when parties agree, (ii) there is a requirement that the FTA panel assesses the trade effects and the nullification of benefits caused by the measure found inconsistent with the FTA, and (iii) there is no appeal procedure provided under the FTA DSM.
- In addition, Chapter VIII regulates the settlement of disputes under the WTO and the FTA. It states in Article 808:
“Relationship to Dispute Settlement under the WTO:
- Subject to this Article, disputes regarding any matter arising under both this FTA and the WTO Agreement, may be settled in either forum at the discretion of the complaining Party only.
- Before a Party initiates a dispute settlement proceeding in the WTO against another
Party on grounds that are substantially equivalent to those available to that Party
under this FTA, that Party shall notify the responding Party and any other FTA Party of its intention. If another FTA Party wishes to have recourse to dispute settlement procedures under this FTA regarding the matter, it shall inform promptly the (initial) notifying Party and those other Parties shall consult with a view to reaching consensus on the forum to be used. If the Parties cannot agree, the dispute normally shall be settled under this FTA.
- In any dispute concerning:
(a) measures taken in the context of balance-of-payment problems; or
(b) a measure adopted or maintained by a Party to protect its human, animal or plant life or health, or to protect its environment, and
where the responding Party requests in writing that the matter be considered under this FTA, the complaining Party must, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this FTA.”
3 NOTIFICATION OF CHIMEHA FTA TO THE WTO
- Chilo informed all WTO Members of the detailed features of the CHIMEHA FTA and, on 1
January 2016, unilaterally notified it to the WTO under Article XXIV:7(a) of the GATT 1994 and
Article V:7(a) of the GATS. In its notification Chilo refers to paragraph 3 of the WTO 2006
Transparency Mechanism Decision, which requires that “notification be made before the application of preferential treatment between the parties”. However, Meco and Haito are surprised by this notification and believe that the agreement should rather be notified pursuant to the GATT Enabling Clause, because it was concluded by two developing countries and one LDC. Accordingly, Meco and Haito jointly submit a notification on 1 March 2016 to the WTO Committee on Trade and Development (COMTD) pursuant to paragraph 4(a) of the GATT Enabling Clause. The WTO Secretariat staff tried, unsuccessfully, to persuade Chilo, Meco and Haito to file a single notification to the WTO.
4 HAITO’S BALANCE-OF-PAYMENT (BOP) QUOTAS AND THE INCREASING TENSIONS BETWEEN THE PARTIES TO THE CHIMEHA FTA
- Due to a serious BOP problem, Haito introduced a system of import quota restrictions on 1
March 2016. According to this system, imports of all products are limited to the amount exported to Haito in the preceding year (i.e. by March 2015). In its notification to the WTO BOP Committee, Haito invoked Article XVIII:B of the GATT 1994 to justify its measure. All exports from all WTO Members, including those from Meco and Chilo, are subject to Haito’s BOP quota restriction scheme.
- This created severe tensions between the parties to the CHIMEHA FTA.
- Chilo and Meco considered that their exports to Haito should be exempted from such a BOP import restriction since they are entitled to preferential treatment pursuant to the FTA. Chilo argued that if Haito failed to remove its BOP import restrictions – at least with respect to imports
from Chilo – it will have to initiate WTO dispute settlement proceedings. Haito asserted that only the FTA dispute settlement mechanism can be used for initiating a dispute concerning a BOP measure implemented within the FTA.
- Chilo responds by stating that an FTA cannot modify the fundamental right of WTO Members to access the WTO dispute settlement system. Chilo also states that the MFN application of Haito’s BOP scheme across all WTO Members, including the parties to the CHIMEHA FTA, is WTO- inconsistent. Unless the BOP-scheme is removed, Chilo will initiate a dispute before the WTO Dispute Settlement Body (DSB).
5 CHILO’S COMPLAINTS TO THE WTO DISPUTE SETTLEMENT SYSTEM
- Chilo decided to initiate WTO dispute settlement consultations against Haito. After the confidential consultation meeting, the FTA parties rushed to the press and reported the following points which were, by no means, exhaustive of the arguments that could be raised with respect to Chilo’s complaints and Haito’ defences.
- Chilo claimed that the BOP import restrictions imposed by Haito constitute internal restrictions that should be eliminated within an FTA pursuant to Article XXIV:8 of the GATT 1994. Haito responded that, in principle, BOP import restrictions must be applied on an MFN basis and that exempting the FTA parties from such BOP safeguard would be contrary to the WTO principle of “parallelism”; Haito was even able to refer to some excerpts from the EC – Banana III jurisprudence in this regard. In addition, Haito points to the fact that the only internal restrictions allowed within an FTA are those mentioned within the parentheses included in paragraph 8(b) of Article XXIV of the GATT 1994.
- Haito added that, since this FTA was notified under the Enabling Clause, FTA parties can make use of all related flexibilities under the Enabling Clause, including exceptions to MFN, especially when the provisions of the Enabling Clause are more flexible than those of Article XXIV of the GATT 1994.
- Chilo responded, first, that only Article XXIV of the GATT 1994 could potentially be invoked since the CHIMEHA FTA was notified first pursuant to Article XXIV of the GATT 1994. However, Chilo added that Haito cannot successfully invoke either Article XXIV of the GATT 1994 or the Enabling Clause because several provisions of the CHIMEHA FTA are inconsistent with basic rules of the WTO, including the conditions of Article XXIV of the GATT 1994. For example, the period for phasing out internal duties among the FTA parties; the obligation not to use anti-dumping duties against imports from FTA parties; the discriminatory levels of the coffee TRQs in favour of the parties to the CHIMEHA FTA; and the complete elimination of all tariffs on products imported from Haito only, appear not to meet the basic conditions for a WTO-consistent FTA. Haito expressed its surprise that Chilo was challenging the WTO-consistency of the FTA they had just concluded and accused Chilo of acting in bad faith in using the WTO dispute settlement mechanism to mount such a challenge.
- Finally, Chilo argued that the zero tariff scheme on the list of green goods applicable only to the parties to the CHIMEHA FTA and to a few other WTO Members is inconsistent with Article I of the GATT 1994 and is not justified by Article XXIV of the GATT 1994. Haito responds inter alia that favouring free-trade of green goods is essential in the combat against climate change.
6 CLAIMS IN CHILO’S PANEL REQUEST TO THE DSB AND CIRCULATED TO WTO MEMBERS
- After unsuccessful consultations, Chilo submitted a request for the establishment of a panel to the DSB, containing the following claims:
- The BOP quota restrictions applicable to all imported products are inconsistent with
Articles XI, XII XVIII, and Article XXIV:8(b) of the GATT 1994;
- The reduction of the TRQs on agricultural products provided for in Chapter I of the CHIMEHA FTA (i.e. the reduction by 50% of the in-quota tariff level, as well as the reduction by 60% of the tariff level applicable for the out-of-quota), are inconsistent with Article XIII of the GATT 1994;
- The S&DT provisions of Chapter VI of the CHIMEHA FTA in favour of Haito are inconsistent with Article I:1 of the GATT 1994 and the Enabling Clause;
- The provisions of Chapter V of the CHIMEHA FTA providing zero import tariffs to listed green goods from parties of the CHIMEHA FTA and a few other WTO Members are inconsistent with Article I:1 of the GATT 1994;
- The provisions of Chapter IV of the CHIMEHA FTA on anti-dumping are inconsistent with Article 9.2 of the WTO Anti-dumping Agreement.
7 NOTE FROM THE CASE-AUTHOR
For strategic reasons, claims, defences and arguments relating to the “substantially all the trade” references in Article XXIV:8(b), are not to be raised or developed by the participants in their written or oral submissions. In addition, the participants are not be expected to provide any economic discussion or assessment under Article XXIV:5, since they were not provided with any data. They should nonetheless know the legal test. Moreover, claims, defences and arguments relating to Article XX of the GATT 1994 to justify any of the potential inconsistencies invoked in this dispute, are not to be raised or developed by the participants in their written submissions. Finally, the participants should assume that the CHIMEHA FTA does cover substantially all the trade. The participants should also assume that Haito does face real balance-of-payment (BOP) problems and has imposed effective BOP import restrictions.