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On the Use and Abuse of Necessity in the Law of State Responsibility

106 American Journal of International Law 447 (2012)

Boston Univ. School of Law Paper No. 11-16

Posted: 30 Mar 2011 Last revised: 15 Oct 2012

Robert D. Sloane

Boston University - School of Law

Date Written: March 28, 2011

Abstract

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, K33

Suggested Citation

Sloane, Robert D., On the Use and Abuse of Necessity in the Law of State Responsibility (March 28, 2011). 106 American Journal of International Law 447 (2012); Boston Univ. School of Law Paper No. 11-16. Available at SSRN: https://ssrn.com/abstract=1797926

Robert D. Sloane (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
1404G
Boston, MA 02215
United States

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