State of Necessity as a Justification for Internationally Wrongful Conduct

Abstract

In this Article I examine the concept of necessity as an excuse or\njustification for a State's breach of an international legal obligation\nfrom a practical and theoretical perspective. I will show that while the\nconcept of a state of necessity as understood by the International Law\nCommission (ILC) and the International Court of Justice (ICJ) may be\napplicable in respect of non-fulfilment by States of human rights\nobligations, the balancing test in the provisionally-adopted text of\narticle 33 of the ILC's Draft Articles on State Responsibility6 is designed\nto weigh inconsistent interests of two States rather than interests of a\nState against interests of a community of States and is thus ill-suited\nfor the context of erga omnes and multilateral obligations that human\nrights norms entail. As a consequence, necessity, as expressed in the\ncurrent text of article 33, could too easily allow a State to excuse its\nnon-compliance with international human rights obligations in\nsituations of threat to an essential interest of the State. That is to say,\nby way of a practical example, that a State could close its borders to a\nlarge-scale influx of asylum-seekers and excuse its non-compliance with\nits international duty not to expose asylum-seekers to the risk of\npersecution by asserting that the influx would threaten an essential\nState interest, such as the preservation of internal order and security.