Clarifying the Concept of Circumstances Precluding Wrongfulness (Justifications) in International Law

Abstract

This paper seeks to clarify the concept of circumstances precluding wrongfulness in international law which, according to Ian Brownlie, is a concept that 'had never been properly worked out' by the ILC during its work on the Articles on State Responsibility. Indeed, it is not infrequent to find in the case-law and the literature diverse, and often contradicting, explanations of this concept and its effects.

Two misunderstandings which are recurrent in international law are especially troubling:

(i) the notion that justified conduct is nevertheless a 'breach' of international law; and

(ii) the qualification of justified conduct as 'non-wrongful' or 'unlawful with precluded wrongfulness', and variations thereof.

The paper first elucidates the concept of circumstances precluding wrongfulness and its relation with the notions of breach, internationally wrongful act, and excuse. It then considers the operation of these circumstances by means of two different models for the representation of reasoning with justifications: one based on deductive reasoning and the other on dialogic reasoning. The paper concludes that justified conduct does not constitute a breach of international law and that it must be qualified as lawful.

Keywords: circumstances precluding wrongfulness, justifications, excuses, defences, state responsibility, primary and secondary rules