Article 25 Articles on Responsibility of States for Internationally Wrongful Acts

Abstract

The defence of necessity permits a State to act in a manner incompatible with its international obligations provided the relevant primary rule does not exclude it. The defence of necessity is a lesser-evils based justification. It precludes the wrongfulness of a State’s conduct to reduce net harm, by protecting an essential interest from grave harm at the cost of breaching an obligation of lesser weight or urgency. The ILC and the case-law of international tribunals, corroborate the customary status of the defence of necessity.

Necessity is a strict defence. Tribunals have interpreted it as such. Because of the exceptional circumstances that give rise to the defence of necessity, it has featured infrequently in dispute settlement. Indeed, despite several invocations in recent (but also earlier) times, this defence has almost never succeeded. Most States have so far classified this defence as a justification rather than an excuse (they invoke the defence to argue that their conduct is, all things considered, permissible).

The defence requires fulfilment of 5 conditions: (i) no exclusion by relevant primary rule; (ii) a grave and imminent peril; (iii) the identification and weighing of essential interests; (iv) the ‘only way’ to safeguard the interest in peril; and, (v) non-contribution to the situation of necessity.

Keywords: Necessity, state responsibility, financial crises, circumstances precluding wrongfulness

JEL Classification: K33