Traditional Non-Acceptance of the General Emergency Exception in International Law

Abstract

Domestic laws in many countries provide for general emergency exceptions, such as the defence of necessity in criminal law. In international law, however, the doctrine of the general emergency exception has long been criticised. This criticism is understandable, given its potential for abuse as a pretext for wrongful conduct in the decentralized international society that lacks objective adjudicating organs.

It may sound paradoxical, but it is due to the structure of the international society that emergency exceptions are required. Specifically, emergency exceptions are expected to operate to ensure the rule of law in cases of emergency. It is a fact that State emergencies can occur, and the maxim ‘summum ius, summa iniuria’ applies not only to domestic laws but also to international law. Without emergency exceptions in international law, States in emergencies may, especially from the realist point of view, choose inevitably to make light of or ignore international legal rules that prohibit dealing with appropriate situations. In this case, there is a danger that the maxim ‘Necessitas non habet legem’ will turn into reality. The absence of emergency exceptions would not cause their abuse, but might bring about a more serious problem: a disregard of international law by States in emergencies. For this reason, emergency exceptions are indispensable to keep them willing to remain regulated by international law. In other words, the existence of emergency exceptions would contribute to ensuring the international rule of law. From this view, apparently, a remarkable example of the development of emergency exceptions is Article 25 (‘Necessity’) of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The article sets forth the necessity defence as one of the causes precluding wrongfulness. Before that time, in 1997, the International Court of Justice(ICJ), referring to the previous draft, Article 33, stated in the Gabčíkovo-Nagymaros Project case: ‘[T]he state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation.’

On the other hand, given the history of severe criticism for the doctrine of the general emergency exception in international law, I worry about this current trend. The primary reason why the general emergency exception has been criticised is the potential for abuse. The most effective way to deter abuse of a legal norm or concept is to establish objective adjudicating organs to provide thoughtful interpretations. However, these organs have not been sufficiently established under the existing circumstances of international society. Given this reality, I feel there is a need to pay careful attention to Article 25, which is formulated as the ‘general’ rule applicable to basically every international obligation. The need for emergency exceptions does not mean immediately and inevitably the need for the ‘general’ defence of necessity.

On the basis of these thoughts, I will, in this article, examine whether the general defence of necessity had been established as a customary rule of international law prior to the ICJ Gabčíkovo-Nagymaros Project case.

Keywords: state responsibility, necessity, causes precluding wrongfulness

JEL Classification: K33