Necessity and the law of state responsibility : a contextual approach

Abstract

This study assesses the application of necessity as a circumstance precluding wrongfulness in international law. The basic idea of necessity is that a state may breach international law when so acting constitutes the sole means of safeguarding an essential interest threatened by a grave and imminent peril. Necessity is thus a powerful weapon that curtails the bindingness of international law by creating an exception to it. Currently the most influential conception of necessity is reflected in Article 25 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. Article 25 has been frequently invoked by states to justify their breach of international law, but its exact contours have not been clarified, rendering this important legal doctrine in an undesirable state of uncertainty. This study is one endeavor to elaborate the meaning of Article 25 and provide some analytical tools for international law practitioners who are constantly faced with task of applying necessity to concrete cases. This study situates necessity in the law-politics debate, and phrases the fundamental question concerning necessity as one of how (“the means”) sovereign states can protect their vital interests (“the end”). There exist two contrasting sides to the question. On the one hand, states have historically exihibited the tendency to control their own vital interests to the exclusion of third party determination based on interntional law. On the other hand, international law has gradually evolved towards greater control over sovereign activity that even measures aimed at protecting vital sovereign interests are not immune from legal constraints. This ambivalence is well embraced in this study to exert considerable influence on the interpretation of Article 25. It is argued that the meaning of Article 25 should not be determined in a uniformed manner but contextually, with the specific circusmtnaces of the case taken in consideration. Accordingly, the semantic meaning of Article 25 is based on objective reasonableness, as is developed by the International Court of Justice in the Whaling in the Antarctica case. This study applies this approach to ascertain the meaning of both the constitutive and restrictive elements of necessity under Article 25. It finds that reasonableness has become the thread tying the key components of necessity. Specifically, “the end” is to be determined on the basis of a reasonable connection between the interest alleged and the self-preservation of the state while “the means” is to be ascertained by the cost or inconvenience caused by the possible alternative means and the nexus between the means and the end. By engaging a thorough study of necessity, this project treads on one of the fundamental questions concerning international law: the proper scope of sovereignty and the relationship between sovereignty and international law. These are eternal questions that have lived on for centuries and for which no easy answer can be given. However, they are particularly relevant for today’s world, where both the backlash against and of sovereignty are presented. In such a time of change, reasonableness, rather than a clear-cut approach, may be the ultimate way out.