10 Defences and justifications : In certain circumstances, a breach of an international obligation imputable to a state may not give rise to international responsibility. Chapter V of the ILC’s Draft Articles, Part I indicates a number of circumstances which will ‘preclude wrongfulness’ and thus provide a defence to international claims. State responsibility will not arise in the following situations:

doi:10.4324/9781843143802-87

Chapter

ABSTRACT

Article 33 State of necessity 1 A state of necessity may not be invoked by a state as a ground for precluding

the wrongfulness of an act of that state not in conformity with an international obligation of the state unless: (a) the act was the only means of safeguarding an essential interest of the

state against a grave and imminent peril; and (b) the act did not seriously impair an essential interest of the state towards

which the obligation existed. 2 In any case, a state of necessity may not be invoked by a state as a ground for

precluding wrongfulness: (a) if the international obligation with which the act of the state is not in

conformity arises out of a peremptory norm of general international law; or

(b) if the international obligation with which the act of the state is not in conformity is laid down by a treaty which, explicitly or implicitly, excludes the possibility of invoking the state of necessity with respect to that obligation; or

(c) if the state in question has contributed to the occurrence of the state of necessity. (Yearbook of the International Law Commission, 1980, Vol II, Part 2 at p 34.)

In its Commentary, the Commission defined the ‘state of necessity’ as being: The situation of a state whose sole means of safeguarding an essential interest threatened by a grave and imminent peril is to adopt conduct not in conformity with what is required of it by an international obligation to another state (ibid, para 1.)

It concluded that ‘the notion of state of necessity is ... deeply rooted in general legal thinking’ (Ibid, p 49, para 31). 51 The Court considers, first of all, that the state of necessity is a ground

recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft:

In order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness ... (ibid, p 51, para 40).