On the Use and Abuse of Necessity in the Law of State Responsibility
Robert D. Sloane
Boston University - School of Law
March 28, 2011
106 American Journal of International Law 447 (2012)
Boston Univ. School of Law Paper No. 11-16
Article 25 of the International Law Commission’s Articles on State Responsibility defines necessity as a general “circumstance precluding wrongfulness” in the law of state responsibility. It has been adopted rapidly and almost uniformly, but with scant independent analysis, as a putative codification of international custom. This essay argues that with reference to the ILC mandate, the definition reflects far more “progressive development” than “codification” of general international law. It also questions the definition’s advisability, coherence, and normative appeal in theory and practice.
Keywords: Necessity, Articles on Responsibility of State of Internationally Wrongful Acts, State Responsibility, Investor-State Arbitration, Law of Nations, Choice of Evils, International Law Commission (ILC), International Tribunals, Intermnational Arbitration
JEL Classification: K10, K19, K33Accepted Paper Series
Date posted: March 30, 2011 ; Last revised: October 15, 2012
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