神戸学院法学第34巻第４号 (2005年４月)

State of Necessity in International Law :

A Study of International Judicial Cases

Takuhei YAMADA*

CONTENTS
INTRODUCTION
1. THE NEPTUNE CASE (1797)
2. THE FUR SEAL CASE (1893)
3. THE COMPANY GENERAL OF THE ORINOCO CASE (1905)
4. THE FRENCH COMPANY OF VENEZUELA RAILROADS CASE (1905)
5. THE RUSSIAN INDEMNITY CASE (1912)
6. CASE CONCERNING THE PAYMENT OF VARIOUS SERBIAN LOANS ISSUED IN FRANCE
(1929)
7. THE OSCAR CHINN CASE (1934)
8. THE
 COMMERCIALE DE BELGIQUECASE (1939)
9. THE CORFU CHANNEL CASE (MERITS) (1949)
10. CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF AMERICA IN
MOROCCO (1952)
11. CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY (MERITS) (1960)
12. THE RAINBOW WARRIOR CASE (1990)

* Associate Professor, Faculty of Law, Kobe Gakuin University, Japan.

Thanks are due to Ms Mika Hayashi, Mr Arnold Pronto, Ms
Ronen, Ms
Suzannah Linton, Ms Fernanda Millicay, Ms Clare da Silva and Miss Katie
Hargreaves for reading the draft and making a number of helpful suggestions.
But responsibility for the text (with any surviving errors) rests entirely upon
the author.

(1203) 107
 神戸学院法学 第34巻第４号

13. THE LAFICO AND THE REPUBLIC OF BURUNDI CASE (1991)

14. THE
-NAGYMAROS PROJECT CASE (1997)
15. THE FISHERIES JURISDICTION CASE (1998)
16. THE M/V “SAIGA” CASE (NO. 2) (1999)
17. LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED
PALESTINIAN TERRITORY, ADVISORY OPINION (2004)
CONCLUDING REMARKS

INTRODUCTION

In August 2001, the International Law Commission (ILC) adopted its

“Draft Articles on Responsibility of States for Internationally Wrongful
(１)
Acts .” In December 2001, the United Nations General Assembly adopted
Resolution 56/83, which “commend[ed the articles] to the attention of Gov-
(２)
ernments”.
It is true that articles adopted by the ILC can “have a direct influence on
(３)
the content of the law.” However, its articles are not of themselves binding
legal documents, and the adoption thereof does not always mean that all pro-
visions stipulated therein reflect customary international law, or will defi-
nitely encourage the progressive development of international law. The
extent to which a provision reflects customary law or will have an influence
on the content of international law needs to be answered with careful con-

(１) Draft Articles on Responsibility of States for Internationally Wrongful Acts,

in Report of the International Law Commission on the work of its fifty-third ses-
sion, A/56/10 (2001) (hereinafter 2001 REPORT).
( ２ ) Responsibility of States for internationally wrongful acts, A/RES/56/83
(2001), para. 3.
( ３ ) IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 12 (6th ed.
2003) .; see also R.Y. Jennings, Recent Developments in the International Law
Commission : Its Relation to the Sources of International Law, 13 INT’L & COM
.L.Q.397 (1964).

108 (1204)
 State of Necessity in International Law
(４)
sideration.
Among the provisions in the ILC’s articles on State responsibility, those
relating to necessity are no doubt to be considered with great care, in view
of the fact that “[t]he existence and limits of a plea of necessity has given
(５)
rise to a long-standing controversy among writers .” Quite a few writers
have been opposed to or sceptical about the existence of the exception of
necessity to State responsibility. This is especially because of its potential
for abuse as a pretext for wrongful conduct. Professor James Crawford, who
was the Special Rapporteur in the ILC and drafted article 25, admitted that
(６)
the provision is “perhaps the most controversial of the draft articles.”
The exception of necessity, nevertheless, was adopted in the ILC’s arti-
cles. The provision is as follows :

Article 25 Necessity
1. Necessity may not be invoked by a State as a ground for precluding
the wrongfulness of an act not in conformity with an international ob-
ligation of that State unless the act :
(a) Is the only way for the State to safeguard an essential interest
against a grave and imminent peril ; and
(b) Does not seriously impair an essential interest of the State or
States towards which the obligation exists, or of the international
community as a whole.
2. In any case, necessity may not be invoked by a State as a ground

(４) See David D. Caron, The ILC Articles on State Responsibility : The Para-
doxical Relationship between Form and Authority, 96 AM. J. INT’L. L. 867
(2002).
(５) 2001 REPORT 201.
(６) [1999] 1 Y. B. INT’L L. COMM’N 140.

(1205) 109
 神戸学院法学 第34巻第４号

for precluding wrongfulness if :

(a) The international obligation in question excludes the possibility
of invoking necessity ; or
(b) The State has contributed to the situation of necessity.

Furthermore, even in a state of necessity, the wrongfulness of any act which

is not in conformity with an obligation arising under a peremptory norm of
(７)
general international law is not precluded (article 26). Moreover, article 27
(b) lays down a reservation as to the question of compensation for material
(８)
loss caused by the conduct.

These articles raise a number of fundamental questions. To what extent

do articles 25, 26 and 27 reflect customary international law? To what ex-
tent will they be able to encourage the progressive development of interna-
tional law? Has the adoption of these articles succeeded in overcoming a
range of opposite or sceptical opinions?
This paper will, as part of a comprehensive study into these questions, ex-
amine international judicial cases. Many of them (cases 1

8, 10, 12

15)
have been mentioned during the discussion on the exception of necessity in
the ILC. In the rest of the cases (9, 11, 16, 17), as well, the issue of a state

(７) Article 26 (Compliance with peremptory norms) : “Nothing in this chap-

ter precludes the wrongfulness of any act of a State which is not in conformity
with an obligation arising under a peremptory norm of general international
law.”
(８) Article 27 (Consequences of invoking a circumstance precluding wrong-
fulness) : “The invocation of a circumstance precluding wrongfulness in accor-
dance with this chapter is without prejudice to : (a) Compliance with the
obligation in question, if and to the extent that the circumstance precluding
wrongfulness no longer exists ; (b) The question of compensation for any ma-
terial loss caused by the act in question.”

110 (1206)
 State of Necessity in International Law

of necessity has been or could have been discussed. Due to limitations of

space, I am not concerned in this paper with a study of State practice which
will be dealt with in a forthcoming paper.
An objection could be raised that judicial cases are not formal sources of
international law. However, in some instances at least they are regarded as
authoritative evidence of the state of the law. A coherent body of jurispru-
(９)
dence will naturally have important consequences for the law. As a result,
an overview of the jurisprudence is a useful exercise.
Before proceeding to the investigation, there is a point which needs to be
clarified. The main issue in respect of the doctrine of necessity is whether
it can be acknowledged as a “general” exception which can be invoked with-
out regard to different essential interests and international obligations in
question. Professor Ian Brownlie, one of critics of the doctrine, states that
(10)
“necessity as an omnibus category probably does not exist.” It follows that,
while denying the existence of a general exception of necessity, he does not
necessarily deny that there can be special rules of the state of necessity
which will be applied in cases where particular types of interests or interna-
tional obligations are in question. There are a wide range of “essential in-
terests” and “international obligations” in international law. Thus, in look-
ing at judicial cases, we must draw attention not only to whether a state of
necessity was invoked in a given case but also whether it was intended to
be the general exception.
(11)
1. THE NEPTUNE CASE (1797)

The Neptune, which was on a voyage from Charleston on the east coast

(９) BROWNLIE, supra note 3, at 19.

(10) Ibid., at 448.
(11) JOHN
OHN B BASSETT MOORE
ASSETT M OORE, ,4 4HISTORY
HISTORYAND DIGEST
DIGEST
AND OF THE INTERNATIONAL
INTERNATIONAL
OF THE

(1207) 111
 神戸学院法学 第34巻第４号

of the U.S. to Bordeaux, was seized by Great Britain. The vessel, partly
loaded with rice, was brought to London, where proceedings were begun
against her in the High Court of Admiralty. This court ordered that the
cargo be sold to the British Government. The question of the value of the
cargo was referred to the registrar and merchants, before whom the claim-
ant demanded the amount that the cargo would have brought at Bordeaux at
the time it probably would have arrived there, had it not been seized. The
registrar and merchants, however, allowed only the invoice price, together
with a mercantile profit of 10 percent. For compensation for the loss occa-
sioned by this allowance the claimant applied to the board of commissioners
under article 7 of the Jay Treaty, estimating his loss as the difference be-
tween what he was allowed and what would have been the net value of the
cargo at Bordeaux. The British Government resisted this claim on the
grounds that the seizure was lawful, provisions being, under the circum-
stances of the case, liable to be treated as contraband of war ; and that at any
rate its conducts were justified by “necessity” since Great Britain had been
(12)
threatened with a scarcity of the seized articles.
With regard to the defence of necessity, William Pinkney, the American
commissioner, stated that :

“I shall not deny that extreme necessity may justify such a measure. ...
We are told by Grotius that the necessity must not be imaginary, that
it must be real and pressing, and that even then it does not give a right

ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 3843
3885
(1898). This case was cited in Roberto Ago, Addendum to the Eighth Report on
State Responsibility, A/CN.4/318/ADD.5
7, [1980] 2 Y. B. INT’L L. COMM’N
(Part 2) (hereinafter AGO REPORT) 34.
(12) MOORE, supra note 11, at 3843
3844.

112 (1208)
 State of Necessity in International Law

of appropriating the goods of others until all other means of relief con-
sistent with the necessity have been tried and found inadequate.
Rutherforth, Burlamaqui, and every other writer who considers this
(13)
subject at all will be found to concur in this opinion.”

In addition, he held that, assuming a state of necessity existed in Britain for

the seizure of the cargo, the British Government could have pre-empted the
cargo only upon giving the neutral traders as much as they would have
(14)
earned in the port of original destination . In other words, he found that
Great Britain was still obligated to pay a certain amount of compensation
(15)
even on the supposition that the plea of necessity was accepted.
Similarly, Christopher Gore, another American commissioner, quoted
Grotius’ view on necessity :

“[T]he necessity must be really extreme to give any right to another’s

goods ; second, that it should be requisite that there should not be the
like necessity in the owner ; third, when absolute necessity urges us to
(16)
take, we should then take no more than it requires.”

Likewise, John Trumbull, the fifth commissioner, expressed a similar opin-

ion, stating :

“The necessity which can be admitted to supersede all laws and to dissolve
the distinctions of property and right must be absolute and irresistible,

(13) Ibid., at 3873.

(14) Ibid., at 3874
3875.
(15) ANTONIO CASSESE, INTERNATIONAL LAW 256 (2nd ed., 2005).
(16) MOORE, supra note 11, at 3856.

(1209) 113
 神戸学院法学 第34巻第４号

and we cannot, until all other means of self-preservation shall have

been exhausted, justify by the plea of necessity the seizure and applica-
(17)
tion to our own use of that which belongs to others.”[italics added]

Here, these three commissioners seem to have accepted the principle of

the state of necessity with several strict conditions. Yet, we should not
overlook that the so-called “right of self-preservation” was also introduced.
This is not necessarily identical to the positivist legal concept of necessity
as provided for in article 25 of the ILC’s Articles on State Responsibility.
The difference is especially manifest in the opinion of Trumbull, declaring
that a state of necessity “can be admitted to supersede all laws.”
(18)
2. THE FUR SEAL CASE (1893)

British fishery ships were seized by the United States in the high seas of
the Bering Sea.
In its written argument, the United States Government asserted that the
seizures, which it claimed to have made for the purpose of protecting its fur
seal industry, could be justified by “self-defense”. It asserted :

“that the right of self-defense on the part of a nation is a perfect and

paramount right, to which all others are subordinate ... ; and that wher-
ever an important and just national interest of any description is put in
peril for the sake of individual profit by an act upon the high sea, even
though such act would be otherwise justifiable, the right of the individ-

(17) Ibid., at 3884.

(18) U.S. GOVERNMENT PRINTING OFFICE, FUR SEAL ARBITRATION : PROCEEDINGS
OF THE TRIBUNAL OF ARBITRATION, CONVENED AT PARIS, 16 VOLS (1895). This
case was cited in AGO REPORT 27
28.

114 (1210)
 State of Necessity in International Law

ual must give way, and the nation will be entitled to protect itself
against the injury, by whatever force may be reasonably necessary, ac-
cording to the usages established in analogous cases. ... All rights of
(19)
self-defense are the result of necessity.”

In the view of the U.S., “the right of self-defense” is based upon a threat
to an important and just national interest, not upon either a preceding armed
attack or any other wrongful act. In this respect, the scope of “self-defense”
invoked here is much wider than what is provided for in article 51 of the UN
(20)
Charter, and seems to be comparable to the so-called “right of self-preser-
(21)
vation” which had been claimed mainly by natural law theorists. In fact, the
United States argued that the law of nature was one of the sources of inter-
(22)
national law.
In contrast, as can be seen from the hearings, the President of the
Tribunal criticized the doctrine asserted by the United States.

The U.S. Counsel : “It was simply an exercise of self-defensive power,

standing upon the principle of necessity, and limited by the principle of

(19) 9 U.S. G OVERNMENT P RINTING O FFICE, supra note 18, at 140
144.
(20) Article 51 states that : “Nothing in the present Charter shall impair the in-
herent right of individual or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be imme-
diately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter
to take at any time such action as it deems necessary in order to maintain or
restore international peace and security.”
(21) AGO REPORT 28.
(22) 9 U.S. GOVERNMENT PRINTING OFFICE, supra note 18, at 8.

(1211) 115
 神戸学院法学 第34巻第４号

necessity. ... I refer to the case of the Caroline. ... A celebrated instance
in history was the seizure by Great Britain of the Danish fleet in the
harbour of Copenhagen.”
The President : “Do you not think that all of that takes us out of this
sphere of law and right?”
The U.S. Counsel : “Not at all. We are right within the sphere of law
and right.”
The President : “I do not think the whole world generally considers it
(23)
so.”

In the end, the tribunal rejected the plea, holding that :

“[T]he United States has not any right of protection or property in the
fur-seals frequenting the islands of the United States in Behring Sea,
(24)
when such seals are found outside the ordinary three-mile limit.”

The doctrine of right of self-preservation invoked by the United States

was criticized and rejected by the tribunal. Its rejection of the doctrine is
made particularly explicit in the fact that a motion proposed by two Ameri-
(25)
can judges was voted down by the rest of judges. The motion attempted to
add to the end of the judgment quoted above the following reservation :
“beyond the rights that all nations have under the international law, in re-
spect of self-protection and self-defense.”

(23) 12 U.S. GOVERNMENT PRINTING OFFICE, supra note 18, at 245

246.
(24) 1 U.S. GOVERNMENT PRINTING OFFICE, supra note 18, at 78.
(25) JOHN BASSETT MOORE, 1 HISTORY AND DIGEST OF THE INTERNATIONAL
ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 919
920
(1898).

116 (1212)
 State of Necessity in International Law

(26)
3. THE COMPANY GENERAL OF THE ORINOCO CASE (1905)

A French company, the Company General of the Orinoco, obtained from

the Venezuelan Government concessions to exploit minerals and develop
transport networks. Much of the area covered by the concession contracts,
however, had been claimed by Colombia, which had grounds for considering
it part of its territory. To make matters worse, the boundary question,
which for a long time had been a matter of diplomatic controversy between
these two countries, had been submitted to the arbitration of the King of
Spain, and was pending at the time of the concessions being signed. Against
this background, the Colombian Government strongly protested against the
granting of the concessions and demanded the return of the area concerned.
Wishing to avert the danger of severe conflict with Colombia, the Vene-
zuelan Government decided to rescind the contracts. Then the liquidators
of the company presented their claim through the Government of France be-
fore the France-Venezuela Mixed Claims Commission constituted under the
protocol signed at Paris on 19 February 1902, claiming indemnity to the sum
of 7,616,098.62 francs. Since the commissioner for France and the commis-
sioner for Venezuela found themselves in serious disagreement, the claim
was reserved for the consideration of the umpire.
The umpire, Frank Plumley, stated as follows :

(26) Company General of the Orinoco case (1905), 10 Reports of International

Arbitral Awards [hereinafter R.I.A.A.] 184
285. This case has been cited in
AGO REPORT 29
30 .; Report of International Law Commission on the work of its
thirty-second session (5 May - 25 July 1980), A/35/10 (1980) (hereinafter 1980
REPORT), 40 .; James Crawford, Second Report on State Responsibility : Adden-
dum, A/CN.4/498/ADD.2 (1999) (hereinafter CRAWFORD REPORT), para.277,
footnote 518.

(1213) 117
 神戸学院法学 第34巻第４号

“As the Government of Venezuela, whose duty of self-preservation rose

superior to any question of contract, it had the power to abrogate the
contract in whole or in part. It considered the peril superior to the ob-
ligation and substituted therefor the duty of compensation.”[italics
(27)
added]

and, as to the particular situation in this case, observed that :

“Every day that the contract was continued it was more or less a men-
ace to the peaceful relations then existing between those two countries.
That which had been held as a valued enterprise, a boon to Venezuela,
for the reasons stated had become a serious national danger. ... These
contracts then became a source of constant annoyance to the admini-
stration at Caracas and of menace to the internal security and welfare
of the State. ... It is not strange with all the cumulative reasons therefor
that the Republic of Venezuela became very weary over the situation
which its contracts had created or permitted, or that it sighed for relief
(28)
therefrom at whatever cost.”

Here, we notice that the umpire recognizes the reasons for the rescission
on the part of Venezuela.
On the other hand, he notes that it was the Venezuelan Government’s
“grave error” - by permitting the company to enter into possession of the
litigated areas - that caused the crisis, whereas there has been no fault on
the part of the company. He then held that :

(27) Company General of the Orinoco, supra note 26, at 280.

(28) Ibid., at 281
282.

118 (1214)
 State of Necessity in International Law

“A careful study of the events connected with this Governmental act,

and of those which followed, reveals nothing which in any degree light-
ens the responsibility ... it was easily susceptible of proof that the re-
spondent Government could not sustain its contention that it was
(29)
without fault in the premises ...”

The umpire finally found that Venezuela was responsible for the rescis-
sion of the concessions and was obliged to pay compensation which was sub-
stantially the value of the concession at that time on the grounds that the
Government had contributed to the occurrence of the crisis.
However, it should be stressed that he mentions that, in general, the duty
of self-preservation in order to avert a national danger could rise superior to
any question of contract. In other words, the umpire implies that the Gov-
ernment would not have been responsible, unless it had contributed to the
occurrence of the crisis.
As in the Neptune case, the concept of “self-preservation” was raised by
the umpire. Again, it is debatable whether this is identical to the positivist
concept of necessity in positive law as provided for in article 25 of the ILC’s
articles.

4. THE FRENCH COMPANY OF VENEZUELA RAILROADS CASE

(30)
(1905)

A French company obtained a concession contract from the Government

of Venezuela. The Government thereby conceded to the company rights to
build railroads. However, as a result of the emergence of revolutionary

(29) Ibid., at 282
283.

(30) French Company of Venezuela Railroads case (1905), 10 R.I.A.A. 285
355.
This case has been cited in AGO REPORT 24 .; 2001 REPORT 198.

(1215) 119
 神戸学院法学 第34巻第４号

movements and the outbreak of civil war, the company had suffered a wide
range of damage from the troubled conditions. The umpire Plumley denied
the responsibility of Venezuela for part of the damage, namely the economic
loss which was caused by failure to pay the debt to the company. He stated
that :

“The claimant company was compelled by force majeure to desist from

its exploitation in October, 1899 ; the respondent Government, from
the same cause, had been prevented from paying its indebtedness to
the claimant company. The umpire finds no purpose or intent on the
part of the respondent Government to harm or injure the claimant com-
pany in any way or in any degree. Its acts and its neglects were caused
and incited by entirely different reasons and motives. Its first duty was
to itself. Its own preservation was paramount. Its revenues were prop-
erly devoted to that end. The appeal of the company for funds came to
an empty treasury, or to one only adequate to the demands of the war
(31)
budget.”

The umpire refers to various grounds for non-responsibility. As a result,

it seems that the decision admits of multiple interpretations. On the one
hand, he mentions the paramount importance of self-preservation. It gives
the impression that the decision is based on the right of self-preservation
which was dismissed in the Fur Seal case. On the other hand, he refers to
force majeure and goes on to mention “no purpose or intent,” in other words,
the absence of subjective elements of responsibility. This deserves more
than a passing notice, since, in the first half of the twentieth century, there

(31) French Company of Venezuela Railroads, supra note 30, at 353.

120 (1216)
 State of Necessity in International Law

were many judicial decisions in which subjective elements such as intention,

negligence or lack of due diligence were considered definite grounds for
(32)
responsibility.
Accordingly, whichever interpretation is sounder, it is difficult to draw the
conclusion that the decision supports the exception of a state of necessity as
provided for in article 25 of the ILC’s articles.
(33)
5. THE RUSSIAN INDEMNITY CASE (1912)

The Ottoman Government was obligated to repay its debt to Russia under
article 5 of the Treaty of Constantinople, concluded on 27 January and 8
February 1879, which brought to an end the war between the two countries.
To justify its delay in paying the debt, the Government invoked, among sev-
eral reasons, the fact that it had been in an extremely difficult financial situa-
(34)
tion, which it described as force majeure.
With regard to the exception of force majeure, the Permanent Court of
Arbitration stated as follows :

L’exception de la force majeure, 



en


 ligne, est oppos-
able en droit international public aussi bien qu’en droit

; le droit
international doit s’adapter aux 
 

politiques. Le Government




Russe admet



 que l’obligation pour un Etat



les 

peut 


si l’existence 
 de l’Etat vient

(32) See Takuhei Yamada, Force majeure and Distress in the International Law
Commission’s Articles on State Responsibility, 32 KOBE GAKUIN HOGAKU (KOBE
GAKUIN UNIVERSITY LAW REVIEW) 261 (2002). (Japanese)
(33) The Russian Indemnity case (1912), 11 R.I.A.A. 421
447. This case has
been cited in AGO REPORT 22
23 .; 1980 REPORT 36 .; CRAWFORD REPORT
para.277, footnote 518 .; 2001 REPORT 197.
(34) Russian Indemnity, supra note 33, at 439.

(1217) 121
 神戸学院法学 第34巻第４号


en danger, si l’observation du devoir international est ... self
(35)
destructive. 


However, the tribunal rejected the plea, by continuing :

Il serait manifestement 



d’admettre que le payement (ou la

conclusion d’un emprunt pour le payement) de la somme relativement
minime d’environ six millions de francs due aux indemnitaires russes
aurait mis en 
 l’existence de l’Empire Ottoman ou gravement
conpromis sa situation

 
ou 


. L’exception de la force
majeure ne saurait donc 
accueillie.

Although the tribunal finally rejected the plea in the light of the relevant
facts in this case, it obviously accepted the exception of force majeure in
principle. Furthermore, taking account of the condition stated in the deci-
sion - 
si l’existence de l’Etat vient

en danger, si l’observati
on du devoir international est ... self destructive
, the concept of force majeure
(36)
mentioned here is to be, as the ILC rightly points out, considered more like

(35) Ibid., at 443

(36) “[T]he Ottoman Government, to justify its delay in paying its debt to the
Russian Government, invoked ... the fact that it had been in an extremely dif-
ficult financial situation, which it described as “force majeure” but which was
more like a state of necessity.” (2001 REPORT 197.) In the ILC’s view, force
majeure differs from a situation of necessity (article 25) because an act of a
State which would otherwise be internationally wrongful is involuntary or at
least involves no element of free choice. (2001 REPORT 183.) Article 23 (Force
majeure) states that :
“1. The wrongfulness of an act of a State not in conformity with an interna-
tional obligation of that State is precluded if the act is due to force majeure, that
is the occurrence of an irresistible force or of an unforeseen event, beyond the

122 (1218)
 State of Necessity in International Law
(37)
the exception of the state of necessity.

6. CASE CONCERNING THE PAYMENT OF VARIOUS SERBIAN LOANS

(38)
ISSUED IN FRANCE (1929)

The French Government, which had taken proceedings on behalf of its

creditor nationals, maintained that the Kingdom of the Serb-Croat-Slovene
was obliged to pay the sums due to the creditors of the Serbian loans on the
basis of the gold franc.
To justify its non-payment, the Serb-Croat-Slovene State asserted a wide
range of situations, one of which was the economic crisis caused by the First
World War, stating :

c’est le cas de la force majeure qui 


le 


de son obligation
raison de 






il se trouve de la remplir, lorsque cette





 provient d’un fait 


et dont il n’est pas responsable;
le type de la force majeure


ce que les Anglais appelent l’act of
God. Dans tous les droits, le cas de guerre est la circonstance qui
(39)
domine le plus la 


des individus.
”

control of the State, making it materially impossible in the circumstances to

perform the obligation.
2. Paragraph 1 does not apply if : (a) The situation of force majeure is due, ei-
ther alone or in combination with other factors, to the conduct of the State in-
voking it ; or (b) The State has assumed the risk of that situation occurring.”
(37)   
also stated that
[e]n  

, comme le montre Cavaglieri, il

s’agit ici 


de 


de    

que de la force majeure.L.CAVARE, LE

DROIT INTERNATIONAL PUBLIC POSITIF, 2e  ., t.II, 428 (1962).
(38) Case concerning the Payment of Various Serbian Loans Issued in France,
1929 P.C.I.J. (Series A.) No. 20. This case has been cited in AGO REPORT 24

25 .; 2001 REPORT 198.
(39) Oral Argument of  P.C.I.J., Series C, No. 16
III, 211.

(1219) 123
 神戸学院法学 第34巻第４号

It then regarded the situations in question as force majeure, describing itself

as the following :
la malheureuse Serbie, qui a subi plusieurs invasions, qui
a soutenu trois guerres successives, qui a 
victime de 




formi-
dables, qui a 

des flots de sang, dont toute la jeunesse a 
 

et
(40)
qui ploie sous une charge




sans 



.
Although it described the economic crisis as force majeure, the assertion
also looks like that of a state of necessity, in that it is due to its strong con-
cern about the danger to its essential interests.
In contrast, France argued against the plea in the light of the facts in this
case. Yet it did not protest the principle of force majeure invoked by the
(41)
Serb-Croat-Slovene State.
The Permanent Court of International Justice (PCIJ) addressed the ques-
tion as to whether the economic crisis caused by the First World War could
release the Serb-Croat-Slovene State from its obligation. It stated :

“Force majeure - It cannot be maintained that the war itself, despite its
grave economic consequences, affected the legal obligations of the con-
tracts between the Serbian Government and the French bondholders.
The economic dislocations caused by the war did not release the debtor
(42)
State ...”

The Court concluded that the economic crisis caused by the war did not
release the Serb-Croat-Slovene State from its obligation to pay the debts.
Since it did not go into detail about the grounds, it is not clear whether the
(43)
Court accepted the doctrine asserted by the Serb-Croat-Slovene. Thus, the

(40) Ibid., at 214.

(41) Oral Argument of Basdevant, P.C.I.J., Series C, No. 16
III, 259
260.
(42) Serbian Loans, supra note 38, at 39
40.

124 (1220)
 State of Necessity in International Law

decision seems to admit of two interpretations. One is that the Court re-
jected the doctrine, considering that it was impossible for any economic cri-
sis caused by a war, however grave it was, to release a State from its debts.
The other is that the Court did not deny the doctrine asserted by the Serb-
Croat-Slovene, although it rejected the plea in the light of the facts in this
case ; that is to say, the obligation to pay the debts could have been ex-
empted if a genuinely extreme economic crisis had existed.
Yet, even if the latter is sounder, it is not necessarily obvious whether the
Court addressed a “general” exception, which can apply to failures of obliga-
tions other than debts. In fact, both the parties and the Court appear to have
focused on the particular issue, namely the question of debt exemption. In
particular, the Serb-Croat-Slovene State just argued that
c’est le cas de la
force majeure qui 

le 



de son obligation
, but did not mention any
obligations other than debts.
(44)
7. THE OSCAR CHINN CASE (1934)

In the course of 1930 and 1931, the severe commercial depression which
prevailed throughout the whole world seriously affected trade in the Belgian
Congo. The sharp fall of the prices obtained for produce from the area in the
European markets necessitated an immediate reduction in the net price of
the produce. The Belgian Government came to the conclusion that this re-
duction in the cost price must be effected, firstly, by a reduction of the ex-
penses of transportation and handling, and, secondly, by a diminution of the
(45)
overhead charges of colonial producers. For this reason, the Government

(43) See also Case Concerning the Payment in Gold of the Brazilian Federal
Loans Issued in France, 1929 P.C.I.J. (Series A.) No. 21, at 120.
(44) The Oscar Chinn case, 1934 P.C.I.J. (Series A./B.) No. 63. This case has
been cited in AGO REPORT 30
31 .; 1980 REPORT 41 .; 2001 REPORT 198.

(1221) 125
 神戸学院法学 第34巻第４号

sent a communication to various companies whose tariffs it was in a position

to control, ordering them to reduce the tariffs on transport and the handling
charges. At the same time, it informed them that the losses caused by the
reductions would be reimbursed.
According to the United Kingdom, one of its subjects, Oscar Chinn, had
been harmed by the measures in question. It stated that these measures
had created a “de facto monopoly” of fluvial transport in the Congo, which
was contrary to the principles of “freedom of navigation,” “freedom of trade”
and “equality of treatment” provided for in articles 1 and 5 of the Convention
(46)
of Saint-Germain-en-Laye of 10 September 1919.
The PCIJ rejected the argument of the United Kingdom, finding that the
conduct of the Belgian Government was not in conflict with its international
(47)
obligations towards the United Kingdom. Therefore, the question of neces-
sity was not addressed by the Court.
The question, however, was considered in the individual opinion of Judge
Anzilotti. Unlike the Court, he asserted that the conduct of Belgium was un-
lawful, and addressed the question as to whether it could be justified be-
cause of the exception of a state of necessity. He stated as follows :

“The situation would have been entirely different if the Belgian Gov-
ernment had been acting under the law of necessity, since necessity
(48)
may excuse the non-observance of international obligations.”

Even so, he noted that Belgium had not pleaded the exception, and observed

(45) Oscar Chinn, supra note 44, at 72.

(46) Ibid., at 81
82.
(47) Ibid., at 89.
(48) Ibid., at 113.

126 (1222)
 State of Necessity in International Law

that, even if it had, the Court would not have found that the economic crisis
in this case was as serious and imminent as to constitute a state of neces-
sity. However, he obviously acknowledged the exception of necessity in
(49)
principle.
(50)
8. THE SOCIETE COMMERCIALE DE BELGIQUECASE (1939)

There had been two arbitral awards requiring the Greek Government to
pay a sum of money to a Belgian company in repayment of a debt contracted
with the company. As the Greek Government was tardy in complying with
the awards, the Belgian Government applied to the PCIJ for a declaration
that the Greek Government, by refusing to carry out the awards, had vio-
(51)
lated its international obligations.
The Greek Government, while not contesting res judicata of the arbitral
awards, stated in its defence that its failure to comply with them was due not
to any unwillingness but to the country’s serious budgetary and monetary
situation which it described as

une 






 




de sa
(52)



un cas de force majeure.It also claimed that, in this case,

[i]l ne
(53)
s’agit donc ni d’un refus ni d’un acte fautif.Furthermore, Jean Youpis, the
Counsel for the Greek Government, in his oral argument, invoked an inter-
national judicial decision (the Russian Indemnity case), State practice and

(49) The view in his individual opinion was expressed in his textbook in which
he stated that a state of necessity is one of circumstances precluding respon-
sibility. DIONISIO ANZILOTTI, 1 COURS DE DROIT INTERNATIONAL 505
517 (traduit
par Gilbert Gidel, 3e  . 1929) (1927).
(50) The
commerciale de Belgiquecase, 1939 P.C.I.J. (Series A./B.)
No. 78, 160
190. This case has been cited in AGO REPORT 25
26 .; 1980
REPORT 37
38 .; CRAWFORD REPORT para.277, footnote 518 .; 2001 REPORT 198.
(51) AGO REPORT 25 .; 1980 REPORT 37 .; 2001 REPORT 198.
(52) Counter-Memorial of the Greek Government, P.C.I.J., Series C, No. 87, 100.
(53) Ibid.

(1223) 127
 神戸学院法学 第34巻第４号

several writers’ opinions in support of his argument that, in the case of ex-
treme financial crisis, the obligation of full payment of debts can be ex-
(54)
empted on the grounds of force majeure. What is more, the concept of force
(55)
majeure is, in his view, identical to a “state of necessity.”
In view of the above-mentioned Greek argument, the Court should have
addressed the exception of force majeure or state of necessity before judging
whether a breach of the obligations existed. However, the Court ended up
not addressing the question, since the Belgian Government had changed the
application in the middle of the procedure and, in the end, had only re-
quested the declaration of res judicata of the arbitral awards, not a breach of
the obligations. The Court, therefore, did not mention anything about either
(56)
force majeure or state of necessity.

However, it should be pointed out that, although the Belgian Government

(57)
argued against the Greek Government’s plea in light of the facts concerned,
it admitted the principle of state of necessity. It stated :

Dans une savante 


sur la question de la force majeure au regard
des obligations des 

, M.Youpis exposait hier qu’un 
n’est pas
tenu de payer sa dette si, en la payant, il devait compromettre ses serv-

(54) Oral Argument of Youpis, P.C.I.J., Series C, No. 87, 206
207.
(55) He asserted :
C’est la 
 de la force majeure,   
 par une
autre formule, et on sait qu’il y a des  
 et des auteurs qui expriment la
  par le terme :
  de  
. Si la terminologie  
, tout
le monde est pourtant d’accord sur le sens et la  de la 
 
; tous
estiment que    n’encourt aucune     
 s’il se trouve
dans une situation pareille.ibid., at 209.
(56)

commerciale de Belgique supra note 50, at 160
179.
(57) Oral Argument of Sand, P.C.I.J., Series C, No. 87, 234
260.

128 (1224)
 State of Necessity in International Law

ices publics essentiels. Sur le principe ainsi



, le Gouvernement
(58)
belge serait sans doute d’accord.

Even so, we need to doubt whether both parties regarded a state of ne-
cessity as a general exception which could be applied in urgent situations
other than financial crises or to failures of international obligations other
than debts. In fact, Youpis limited the discussion to the issue concerning pe-
cuniary obligations of States. He mentioned : 
propos de la force majeure,
je voudrais 




quelques





relativement la doctrine
et la jurisprudence internationale, surtout en ce qui concerne la force
(59)
majeure 



aux obligations 




des 



(60)
9. THE CORFU CHANNEL CASE (MERITS) (1949)

On 22 October 1946, two British cruisers and two destroyers proceeded

northward through the North Corfu Strait. The two destroyers struck mines
in Albanian waters and were gravely damaged. Three weeks later, on 12/13
November, the North Corfu Channel was swept by British minesweepers
(61)
and 22 moored mines were cut.
In the second part of the Special Agreement, the following question is
submitted to the International Court of Justice (ICJ) :

(2) Has the United Kingdom under international law violated the sov-
ereignty of the Albanian People’s Republic by reason of the acts of the
Royal Navy in Albanian waters on the 22nd October and on the 12th and

(58) Ibid., at 236.

(59) Youpis, supra note 54, at 204.
(60) Corfu Channel case, Judgment of April 9th, 1949 : I.C.J. Reports 1949, p. 4
(61) Ibid., at 12
13.

(1225) 129
 神戸学院法学 第34巻第４号
(62)
th
13 November 1946 and is there any duty to give satisfaction?

While observing that the passage in October was innocent, the ICJ, as re-
gards the sweeping operation in November, rejected the defence of Great
(63)
Britain : the doctrine of self-help.
Likewise, Judge Krylov also rejected the argument of Great Britain to jus-
tify the operation, pointing out :

“It should be observed that the British argument on this point, i.e.,
their defence of the alleged right of self-help - which is nothing else but
intervention - relied on assertions which have already been outstripped
by the further development of international law, especially since the
ratification of the Charter of the United Nations. Since 1945, i.e., after
the coming into force of the Charter, the so-called right of self-help,
also known as the law of necessity (Notrecht), which used to be upheld
by a number of German authors, can no longer be invoked. It must be
regarded as obsolete. The employment of force in this way, or of the
(64)
threat of force, is forbidden by the Charter (para. 4 of Art. 2).”

Furthermore, Judge Azevedo, not in respect of the sweeping operation,

but the passage in October, was of the opinion that the situation in question
(65)
was not considered “a state of necessity.”
What is immediately apparent in these extracts is that the Court rejected
the doctrine of self-help, and Judge Krylov goes on to deny “the law of ne-

(62) Ibid., at 26.

(63) Ibid., at 35.
(64) Ibid., at 76
77.
(65) Ibid., at 109

130 (1226)
 State of Necessity in International Law

cessity (Notrecht)” which, in his view, is another denomination of the right

of self-help. Thus, they appear to have denied the exception of the state of
necessity.
However, we must not forget that Great Britain invoked the doctrine of
self-help for the purpose of justifying its navy’s sweeping operation which
would otherwise be considered an unlawful threat or use of force. Likewise,
it is important to bear in mind that the Court and Judge Krylov rejected the
plea mainly because conducts contrary to article 2 paragraph 4 of the United
(66)
Nations Charter should not be justified by the plea of necessity. In other
words, they did not necessarily deny that the principle of a state of necessity
could apply to international obligations other than article 2 paragraph 4 of
the Charter. In addition, as mentioned above, Judge Azevedo did not deny
the exception of state of necessity in principle.

10. CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED

(67)
STATES OF AMERICA IN MOROCCO (1952)

By a decree of 30 December 1948 of the French authorities in the

Moroccan Protectorate, import regulations introduced in 1939 was restored.
As a result, imports not involving an official allocation of currency were sub-
jected to a system of license control. But these import regulations did not
apply to France or other parts of French Union. Imports from France and
other parts of the French Union into the French zone of Morocco were free.

(66) Article 2IV states : “All Members shall refrain in their international rela-
tions from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.”
(67) Case concerning Rights of Nationals of the United States of America in
Morocco, Judgment of August 27th, 1952 : I.C.J. Reports 1952, p. 176. This case
has been cited in AGO REPORT 31
32 .; 1980 REPORT 41
42.

(1227) 131
 神戸学院法学 第34巻第４号

The United States maintained that this discrimination in favour of France

(68)
contravened its treaty rights.
In its Judgment of 27 August 1952, the ICJ held that the import controls
were contrary to the Treaty between the United States and Morocco of 1836
and the General Act of Algeciras, on the grounds that they involved dis-
(69)
crimination in favour of France against the United States.
Although the Court did not consider the question of the state of necessity,
the parties addressed it.
France alleged that, due to the serious shortage of foreign currency
against the background of the financial and currency crisis, it had been com-
pelled to prevent an outflow of foreign currency by exports. France argued
that the defence of l’ordre public could be an exception to the principle of
economic liberty without any inequality. L’ordre public was, in its view, de-
fined as le maintien de la



, de la 




et de la

 
publiques,
being different from the theory of l’ordre public in private international law.
In its view, it is international law, especially international practice, that de-
(70)
fines the meanings and the limits of l’ordre public invoked here.
The U.S. Government protested the argument, stating :

“[T]he theory of ordre public advanced in the argument is of a charac-

ter so arbitrary as to clearly command its repudiation both as a general
principle of international law and as a principle of specific application in
this particular case.

(68) Rights of Nationals of the United States of America in Morocco, supra note
67, at 183.
(69) Ibid., at 181
186.
(70) Oral Argument of Reuter, I.C.J. Pleadings, Morocco Case (France v.
U.S.A.), Vol. II, 194.

132 (1228)
 State of Necessity in International Law

The theory of ordre public advanced in the Reply is not a coherent

and organized theory. The Reply does not even attempt to indicate its
meaning in some general sense ; much less does it attempt to suggest
the limits of its application. ... The theory of ordre public advanced by
the Reply simply purports to vest arbitrary justifications with the char-
acter of legitimacy.
It is hardly necessary to point to the threat to the stability of interna-
tional relations which is implicit in this concept of l’ordre public.
Besides being an innovation, the theory is a negation of the whole in-
ternational treaty structure, since it permits States to avoid treaty obli-
gations through the simple expedient of selecting, if not creating, a
given internal condition and claiming that compliance with the obliga-
tion would create a danger, actual or threatened, to the amorphous
(71)
whole known as l’ordre public. ...”

At the same time, the French Government also argued l’exception de

force majeure, invoking the decision of the Russian Indemnity case. It stated
three requirements for the exception -

















par rapport




qui invoque force majeure, et contrainte qui 










(72)
son obligation - and concluded that these had been met in this case. As re-
gards the argument of force majeure, the U.S. Government did not protest
the principle and just maintained that the situation in this case had not con-
(73)
stituted a situation of force majeure.

(71) Rejoinder Submitted by the Government of the United States of America,

I.C.J. Pleadings, Morocco Case (France v. U.S.A.), Vol. II, 99.
(72) Reuter, supra note 70, at 182
183.
(73) Oral Argument of Adrian Fisher, I.C.J. Pleadings, Morocco Case (France
v. U.S.A.), Vol. II, 241.

(1229) 133
 神戸学院法学 第34巻第４号

As has been noted, with reference to the financial and currency crisis in
question, France invoked the exceptions of ordre public and force majeure.
As regards the former, the United States categorically denied it, saying that
it could be a threat to the stability of international relations. As regards the
latter, while saying that the conditions for the exception of force majeure had
not been met in the particular case, it did not question the existence of the
principle.
It should, however, be stressed that the concept of force majeure invoked
by France is not necessarily the same as what was invoked in the Russian
Indemnity case. In the present case, France attached importance to







and 
 




. This view is literally more similar to the concept of
force majeure provided for in Article 23 (see footnote 36) of the ILC’s arti-
(74)
cles adopted in 2001 than the state of necessity.

11. CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY

(75)
(MERITS) (1960)

In the Application, the Government of Portugal stated that its territory in

the Indian Peninsula included two enclaves surrounded by the territory of
India, Dadra and Nagar-Aveli. It asserted that Portugal was the holder of a
right of passage between its coastal territory (Daman) and the enclaves, and
between each of the latter. In July 1954 the Government of India prevented
Portugal from exercising that right of passage and Portugal was thus placed
in a position in which it became impossible for it to exercise its rights of sov-
(76)
ereignty over the enclaves.

(74) See Yamada, supra note 32, at 289.

(75) Case concerning Right of Passage over Indian Territory (Merits), Judgment
of 12 April 1960 : I.C.J. Reports 1960, p. 6.
(76) Ibid., at 9.

134 (1230)
 State of Necessity in International Law

According to the Indian Government, there had been hostility toward the
Portuguese authorities on the part of a population. It contended that sus-
pension of all passage became necessary in view of the abnormal situation
which had arisen in Dadra and the tension created in the surrounding Indian
territory. It stated in 1954 :

“This tension is bound to increase if Portuguese officials are permitted

to go across Indian territory .... The passage of these officials across
Indian territory might also lead to other undesirable consequences in
view of the strong feelings which have been aroused by the repressive
actions of the Portuguese authorities. In these circumstances, there-
fore, the Government of India regret that they cannot entertain the de-
mand of the Portuguese authorities for facilities to enable them to send
a delegation from Daman to Dadra and Nagar-Aveli across Indian terri-
(77)
tory.”

In the view of India, the refusal of passage was necessary in order to safe-
guard its interest against a peril. It might be argued that this argument is
based on the idea of a state of necessity.
The ICJ held that the conduct of India had been lawful, stating :

“In view of the tension then prevailing in intervening Indian territory,

the Court is unable to hold that India’s refusal of passage to the pro-
posed delegation and its refusal of visas to Portuguese nationals of
European origin and to native Indian Portuguese in the employ of the
Portuguese Government was action contrary to its obligation resulting

(77) Ibid., at 45.

(1231) 135
 神戸学院法学 第34巻第４号

from Portugal’s right of passage. Portugal’s claim of a right of passage

is subject to full recognition and exercise of Indian sovereignty over the
intervening territory and without any immunity in favour of Portugal.
The Court is of the view that India’s refusal of passage in those cases
was, in the circumstances, covered by its power of regulation and con-
(78)
trol of the right of passage of Portugal.”

Having taken into account the tension which had been arising, the Court
found the rejection of passage lawful. However, the Court held so, not be-
cause the rejection was justified on the grounds of a certain circumstance
precluding wrongfulness, but because it was within the Indian sovereign
right. In the Court’s view, the right of passage included a number of intrin-
sic restrictions since it was exercised in Indian territory. This view was ad-
mitted by the Portuguese Government. Portugal did not dispute Indian
sovereignty over the territory, through which transit must be effected, and
admitted that the passage remains subject to the regulation and control of
(79)
India . Based on that understanding, the Court held that the rejection in
question, which was due to the concern about the tension, was within India’s
competence to restrict the right of passage. Therefore, it did not need to
(80)
consider the question of a certain exception, such as a state of necessity.

(78) Ibid.
(79) Ibid., at 28.
(80) I am indebted to the discussion on the case by Hugh Thirlway, The Law
and Procedure of the International Court of Justice 1960
1989 Part Seven, 66
BRIT.Y.B.INT’L L. 70

71 (1995). He observed that :

“[T]he Court held that ‘in view of the tension then prevailing in Indian terri-
tory’ ... , India’s action was not ‘action contrary to its obligation resulting from
Portugal’s right of passage’. There is an obvious affinity between this reason-
ing and the hypothesis of a state of necessity mentioned in Article 33 of the

136 (1232)
 State of Necessity in International Law

(81)
12. THE RAINBOW WARRIOR CASE (1990)

In 1985, French agents sabotaged and sank the vessel Rainbow Warrior in
harbour in New Zealand. The UN Secretary-General was asked to mediate,
and his ruling in 1986 provided, inter alia, for French payment to New
Zealand and the transfer of two French agents to an isolated French military
base outside of Europe, where they were to stay for three years and not to
leave without the mutual consent of the two Governments. However, both
the agents were repatriated to France before the expiry of the three years
without the consent of New Zealand. France argued that the acts had been
due to urgent reasons.
The arbitral tribunal, in addressing the question as to whether the urgent
reasons could justify the French measures, examined three of the circum-
stances precluding wrongfulness provided for in the ILC Draft Articles on
State Responsibility on first reading - force majeure (Article 31), distress
(Article 32) and state of necessity (Article 33). While finding force majeure
as established under customary international law, the tribunal, in respect of
the doctrines of distress and necessity, stated :

“The [ILC’s] report also distinguishes with precision the ground of

justification of Article 32 from the controversial doctrine of the state of

ILC Draft Articles [on first reading] as a circumstance precluding wrongful-

ness ... But the Court’s reasoning was that on a proper interpretation of the ob-
ligation itself, no breach had occurred ... [This is] a question of determination
whether there had been a breach of an international obligation at all, rather
than ascertaining whether such a breach, although committed, was excused by
a situation of necessity.”
(81) Rainbow Warrior (New Zealand v. France), 82 I.L.R. 499
590 (1990).
This case has been cited in CRAWFORD REPORT para.283 .; 2001 REPORT 198.

(1233) 137
 神戸学院法学 第34巻第４号

necessity dealt with in Article 33. Under Article 32, on distress, what
is “involved is situations of necessity” with respect to the actual person
of the State organs or of persons entrusted to his care, “and not any
real ‘necessity’ of the State.” On the other hand, Article 33, which al-
legedly authorizes a State to take unlawful action invoking a state of ne-
cessity, refers to situations of grave and imminent danger to the State
as such and to its vital interests. This distinction between the two
grounds justifies the general acceptance of Article 32 and at the same
time the controversial character of the proposal in Article 33 on state
(82)
of necessity.

Furthermore, citing a passage from a paper written by Eduardo

de
(83)



who was the President of the Tribunal at this case, the Tribunal
continued :

“[There is] no general principle allowing the defence of necessity.

There are particular rules of international law making and a scope en-
tirely outside the traditional doctrine of state of necessity. Thus, for in-
stance, vessels in distress are allowed to seek refuge in a foreign port,
even if it is closed... In these cases - in which adequate compensation
must be paid - it is not the doctrine of the state of necessity which pro-
vides the foundation of the particular rules, but humanitarian considera-
tions, which do not apply to the State as a body politic but are designed
(84)
to protect essential rights of human beings in a situation of distress.”

(82) Rainbow Warrior, supra note 81, at 554.

(83) Eduardo
de  
  , International Responsibility, in MANUAL OF
INTERNATIONAL LAW ( ed.) 543 (1968).
(84) Rainbow Warrior, supra note 81, at 554
555.

138 (1234)
 State of Necessity in International Law

The Tribunal accepted the doctrine of distress, the scope of which seems
(85)
to be broader than the ILC’s view. In contrast, it should be stressed that it
categorically rejected the doctrine of necessity adopted by the ILC.
(86)
13. THE LAFICO AND THE REPUBLIC OF BURUNDI CASE (1991)

The Libyan Arab Republic and the Republic of Burundi concluded an

agreement in 1975 which established the Libyan Arab Republic - Burundi
Holding Company (HALB). HALB’s objective was to invest in companies
(87)
operating within certain sectors of the Burundi economy. This agreement
provided that “the assets of the Company [HALB] shall not be the subject
of nationalization, confiscation, sequestration nor any other measure capable
of infringing the rights of the shareholders or limiting the ability of the
(88)
Company to achieve its objects. (article 15, paragraph 1 ) In 1978 HALB
started its investment programme. Investments were either held directly
by HALB or by its two subsidiaries ACC and AGRIBAL. In 1981 Libya
transferred its shareholding in HALB to the Libyan Arab Foreign Invest-
(89)
ment Company (LAFICO).

(85) The ILC rightly pointed out that : “[t]he Tribunal in the Rainbow Warrior
arbitration appeared to take a broader view of the circumstances justifying a
plea of distress, apparently accepting that a serious health risk would suffice.
The problem with extending article 24 to less than life-threatening situations
is where to place any lower limit.” 2001 REPORT 192.
(86) The LAFICO and the Republic of Burundi case, 96 I.L.R. 279
333 (1994).
The original text is French. See Affaire LAFICO /
 du Burundi, Sentence
arbitrale du 4 mars 1991, 1990 Revue belge de droit international 517
562.
This case has been cited in CRAWFORD REPORT para.284, footnote 542 .; 2001
REPORT 198.
(87) LAFICO, 96 I.L.R., supra note 86, at 282.
(88) Ibid., at 314.
(89) Ibid., at 283.

(1235) 139
 神戸学院法学 第34巻第４号

On 5 April 1989 Burundi decided to break off diplomatic relations with

Libya, expel all Libyan nationals residing in Burundi and prohibit all Libyans
from entering the territory of Burundi. As a result, the Director-General of
HALB and the Director-General of ACC, who were Libyan citizens, were
required to leave Burundi within forty-eight hours of the expulsion order.
On 28 May 1989, a meeting was held between representations of LAFICO
and the Government of Burundi. During the meeting, LAFICO expressed
its desire that HALB be allowed to continue its activities, whereas Burundi
indicated that it wished HALB to be put into liquidation. On 17 June 1989,
(90)
LAFICO and Burundi agreed to take the matter to arbitration.
The reason why the Government of Burundi took the measure is shown
in the following note issued by the Government. It said that the course of
action was taken since ...

“for some time the diplomatic personnel of the Peoples’ Bureau in par-
ticular, and all Libyan nationals resident in Burundi in general, have
been participating in activities of destabilization putting the peace and
(91)
internal and external security of the Republic of Burundi in danger.”

As just quoted, the Government of Burundi argued that the measure had
been a means to safeguard itself against the danger to internal peace and se-
curity. In what legal frameworks did the arbitral tribunal consider the argu-
ment?
First of all, the tribunal considered the question as to whether the expul-
sion order was a breach of a rule of customary international law. It stated :

(90) Ibid.
(91) Ibid., at 300.

140 (1236)
 State of Necessity in International Law

“The Tribunal does not deny the right of every State to expel an alien
who represents a threat to its security, subject to certain conditions
being fulfilled, in particular those mentioned by the Government of
Burundi itself. It is also undeniable that in such matters States enjoy a
wide margin of discretion. ... Expulsion constitutes an act affecting an
alien as an individual. This is logical because the assessment by the
competent authorities of the threat to public order or national security
(92)
must be made in relation to the behaviour of the individual concerned.”

The first thing that one notices is that the tribunal acknowledged a right of
every State to expel an alien who represented a threat to its security.
Therefore, in the tribunal’s view, expulsion due to a state of necessity can
be justified by the particular right of expulsion established under customary
international law. At the same time, the tribunal expressed that the assess-
ment by the competent authorities of the threat to public order or national
security had to be made in relation to the behaviour of the individual con-
cerned. Therefore, collective expulsion of foreigners simply because of
their particular nationality is prohibited. Based on the principle, the tribunal
found the expulsion order contrary to customary international law on the
grounds that it had been issued to Libyan nationals simply because of their
nationality. It follows that, if the Government had expelled a particular alien
causing danger to its peace and security, the measure would have been
found consistent with its right under customary international law. In any
case it would not matter whether the general rule of state of necessity ex-
ists in international law. In that sense, the same feature as shown in the
case concerning Right of Passage over Indian Territory can be seen in this

(92) Ibid., at 311.

(1237) 141
 神戸学院法学 第34巻第４号

case.
On the other hand, with regard to the question as to whether Burundi’s
measure was a breach of article 15 of the 1975 Agreement, the tribunal con-
sidered whether the measure could be justified by force majeure (article 31
of the ILC Draft Articles on State Responsibility on first reading) or a state
of necessity (article 33). The tribunal took the view that the former provi-
sion reflects customary international law, although finding that the condi-
tions provided for in article 31 had not been met in the present case. As to
the latter, the tribunal stated that :

“It is not desired here to express a view on the appropriateness of

seeking to codify rules on “state of necessity” and the adequacy of the
concrete proposals made by the International Law Commission, which
has been a matter of debate in the doctrine. Even supposing that such
an article could govern the international obligations of Burundi, it
should be noted that the various measures taken by that State against
the rights of the shareholder LAFICO do not appear to the Tribunal to
have been the only means of safeguarding an essential interest of
Burundi against a grave and imminent peril, especially since the two
Libyan employees in question do not appear to have constituted such a
(93)
peril.”

It cannot be emphasized too strongly that the tribunal deliberately avoids

making an appraisal of article 33 in view of the fact that the doctrine laid
down therein has been a problem under debate. It just states that, whatever
the appraisal of the provision is, Burundi’s measure cannot be found lawful,

(93) Ibid., at 319.

142 (1238)
 State of Necessity in International Law

since the conditions provided for in the article had not been fulfilled in this
(94)
case.
(95)
14. THE
 -NAGYMAROS PROJECT CASE (1997)

In 1989, Hungary suspended and subsequently abandoned completion of

the construction and operation of the



-Nagymaros barrage system
provided for in the Budapest Treaty of 16 September 1977, alleging that it
entailed grave risks to the Hungarian environment and the water supply of
(96)
Budapest . To justify its conduct, Hungary relied essentially on “state of
ecological necessity,” while expressly acknowledging that, in any event,
such a state of necessity would not exempt it from its duty to compensate
(97)
its partner . In contrast, Slovakia denied that there had been any kind of

(94) Before this case, Salmon, the president of the tribunal, critically explored
the content of Article 33 of the ILC Draft Articles on State Responsibility on
first reading in the following paper. Jean J.A. Salmon, Faut-il codifier 

 de
 
en droit international?, in ESSAYS IN INTERNATIONAL LAW IN HONOUR
OF JUDGE MANFRED LACHS (J.MAKARCZYK ed.) 235
270 (1984).
(95)   -Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Re-
ports 1997, p. 7. This case has been cited in CRAWFORD REPORT para.284.; 2001
REPORT 199
200.
(96)  
  -Nagymaros Project, supra note 95, at 35
36.
(97) Ibid., at 39 .; Oral Argument of Crawford, CR97/4, Wednesday 5 March
1997, para.36 (p. 25). He stated that “[a]s to the financial interests, the first
point to note is that these amounts were capable of adjustment and compensa-
tion. Loss of money as such is rarely an essential interest for the purposes of
the defence of necessity. The whole point of compensation is to make up for
such losses, the risk of which anyway is inherent in an investment. The ILC
Draft Articles explicitly envisage compensation in situations of necessity, and
Hungary was from the start prepared to negotiate such compensation within
the framework of the Treaty. ... So it was not a question of reparations for
wrongful conduct but compensation for a failed investment. Czechoslovakia
had a legitimate interest in compensation, and in any negotiations would no

(1239) 143
 神戸学院法学 第34巻第４号
(98)
“ecological state of necessity” in this case either in 1989 or subsequently.
With respect to the doctrine of the state of necessity, the ICJ, first of all,
stated as follows :

“The Court considers, first of all, that the state of necessity is a ground
recognized by customary international law for precluding the wrongful-
(99)
ness of an act not in conformity with an international obligation.”

Furthermore, referring to article 33 of the ILC Draft Articles on State Re-

sponsibility on first reading, the Court enumerates the following five condi-
tions which, in its view, reflect customary international law : (1) it must
have been occasioned by an “essential interest” of the State which is the
author of the act conflicting with one of its international obligations ; (2) in-
terest must have been threatened by a “grave and imminent peril” ; (3) the
act being challenged must have been the “only means” of safeguarding that
interest ; (4) that act must not have “seriously impair[ed] an essential in-
terest” of the State towards which the obligation existed ; and (5) the State
which is the author of that act must not have “contributed to the occurrence
(
)
of the state of necessity.”
The Court then proceeded to a consideration of the facts in this case.
While the Court acknowledged that the first condition was met, it found the
second, third and fifth conditions unfulfilled and finally concluded that the
()
acts of Hungary were not justified by the exception of necessity.

doubt have sought more than Hungary had initially implied was on offer.” ; see
also Oral Argument of Sands, CR97/5, Thursday 6 March 1997, para.7 (p. 67),
para.16 (p. 70).
(98)
 -Nagymaros Project, supra note 95, at 37.
(99) Ibid., at 40.
(100) Ibid., at 4041.

144 (1240)
 State of Necessity in International Law

What is more, Hungarian Judge Herczegh gave a noteworthy point of view

on the question of the state of necessity. He stated :

“[T]he party in question will be released from the consequences of the

violation of international law, since it acted in a state of necessity. The
state of necessity is a circumstance which exonerates from responsibil-
ity : in other words, it exonerates the author of the unlawful act from
(
)
that international responsibility.”

What the passage makes clear at once is that he regarded a state of neces-
sity as circumstance precluding responsibility, not wrongfulness as provided
for in the ILC’s articles. Then he proceeded to a consideration of the situa-
tions in this case. First of all, he distinguished suspension and abandonment
of the works at Nagymaros and suspension of the works at Dunakiliti. He
()
then considered each situation separately.
As to the former, in his opinion, the requirements for state of necessity
were met in this case, and responsibility is precluded.
As to the latter, he admitted that the ecological risks might not have been
as imminent as in the former case, and the measure of suspension had im-
paired the economic interests of Czechoslovakia. On the other hand, he ob-
served that Hungary’s anxieties about the ecological risks should not be
taken lightly, whereas the interests of Czechoslovakia were of a financial na-
ture and easy to compensate. Furthermore, he added that the measure of
suspension was undoubtedly provisional, and the installations at Dunakiliti
had been maintained in good condition by Hungary. Taking account of these

(101) Ibid., at 4146.

(102) Ibid., at 183.
(103) Ibid., at 183 189.

(1241) 145
 神戸学院法学 第34巻第４号

facts, in respect of suspension of the works at Dunakiliti, he concluded as

follows :

“Although the circumstances prevailing on that site do not entirely re-

lieve Hungary of its responsibility, they do nonetheless provide some
(
)
mitigation which the Court should have taken into account.”

From this point of view, he voted for paragraph 2D of the judgment which
()
held that both States were obliged to compensate.

As shown above, relying entirely on the provision of the state of necessity

(article 33) in the ILC Draft Articles on State Responsibility on first read-
ing, the Court accepted that a state of necessity is a circumstance precluding
wrongfulness under customary international law. Certainly, this decision
might have been facilitated by the fact that, in this case, the Parties had been
in agreement in considering that the existence of a state of necessity must
()
be evaluated in the light of the criteria laid down in article 33 . Yet it is
epoch-making that the Court expressly and assertively regarded a state of
necessity as “a ground recognized by customary international law for pre-
cluding the wrongfulness of an act not in conformity with an international
obligation.”
At the same time, it is interesting that Judge Herczegh classified a state
of necessity as a circumstance precluding or mitigating responsibility. In his
view, the degree of responsibility would be decided by taking account of
relevant facts and reflected in the amount of compensation.

(104) Ibid., at 189.

(105) Ibid., at 83.
(106) Ibid., at 39.

146 (1242)
 State of Necessity in International Law

()
15. THE FISHERIES JURISDICTION (SPAIN V. CANADA) CASE (1998)

On 9 March 1995, the Estai, a fishing vessel flying the Spanish flag and
manned by a Spanish crew, was intercepted and boarded some 245 miles
from the Canadian coast, in the Northwest Atlantic Fisheries Organization
(NAFO) Regulatory Area, by Canadian Government vessels. The vessel
was seized and its captain was arrested on charges of violations of the
Coastal Fisheries Protection Act and its implementing regulations. On 10
March the Canadian Government stated that “[t]he Estai resisted the ef-
forts to board her made by Canadian inspectors in accordance with interna-
tional practice” and that “the arrest of the Estai was necessary in order to
(
)
put a stop to the overfishing of Greenland halibut by Spanish fishermen.”
Before the ICJ, the Canadian Government, in addition to arguing the lack
of jurisdiction of the Court, with a view to justifying its actions, also asserted
that :

“[T]he background to the legislation was the fisheries crisis of the

early 1990s. Canada had faced the successive collapse of one after an-
other of the commercial fish stocks off its Atlantic coast. ... Faced with
a conservation crisis, and unfortunately unable to persuade all States in-
volved to control their vessels, the Canadian Government felt com-
pelled to take special measures to conserve the fisheries. ... Since
diplomatic approaches had failed to prevent this unilateral EU action,
Canada felt compelled to take emergency actions to prevent the over-

(107) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judg-

ment, I.C.J. Reports 1998, p. 432. This case has been cited in CRAWFORD
REPORT para.285 .; 2001 REPORT 200 201.
(108) Fisheries Jurisdiction, supra note 107, at 443.

(1243) 147
 神戸学院法学 第34巻第４号

fishing of Greenland halibut by Spain and Portugal. ... Despite Canada’s

continued efforts to address the conservation crisis in co-operation with
all States concerned, it had become clear that Spanish and Portuguese
vessels were prepared to far exceed even the quotas allocated by
NAFO. ... Canada therefore felt compelled to enforce its conservation
and management measures against Spanish vessels in the NAFO
(
)
Regulatory Area.”

In contrast, Spain mentioned that “Canada even suggest[ed] the exis-

tence of a kind of state of environmental necessity or of also environmental
preventive self-defence,” and asserted :

“As regards the suggestion of a hitherto unheard of preventive self-

defence, or of a conservationist state of necessity, said in fact to be cir-
cumstances precluding wrongfulness, that has nothing to do with
Articles 33 [State of necessity] and 34 [Self-defence] of the draft of
()
the International Law Commission ... .”

The Court held that it had no jurisdiction to adjudicate upon the dispute
brought before it on the grounds that it came within the terms of the reser-
vation contained in paragraph 2 (d) of the Canadian declaration of 10 May

(109) Oral Argument of Blair Hankey, 11 June 1998, CR 98/11, paras.73 77.,
I.C.J. Pleadings, Fisheries Jurisdiction (Spain v. Canada) 516 517.
(110) Oral Argument of
 

 15 June 1998, CR 98/13, para.6.,
I.C.J. Pleadings, Fisheries Jurisdiction (Spain v. Canada) 567. Furthermore,
Spain invoked as precedent for its argument the decision of the Fur Seal case
in which, as well as in this case, the capture with the purpose of the fisheries
regulation had been in question and the plea by the captor had been rejected.
(ibid.)

148 (1244)
 State of Necessity in International Law

1994. Therefore, it did not proceed to the merits and arguments such as
that of a state of necessity. However, as quoted above, although Spain did
not approve of the argument of the state of ecological necessity, it implicitly
approved of the principle of a state of necessity as provided for in article 33
of the ILC Draft Articles on first reading. All Spain wanted to assert is that
ecological protection not be covered by the principle of the state of neces-
(
)
sity. Therefore, both States approved of the principle of the state of neces-
sity itself, although they were in disagreement concerning its scope.
()
16. THE M/V “SAIGA” CASE (No. 2) (1999)

On 28 October 1997 Guinean patrol boats arrested off the coast of West
Africa the oil tanker M/V “SAIGA” flying the flag of Saint Vincent and the
Grenadines. Guinea claimed that the M/V “SAIGA” was engaged in smug-
gling activities off its coast when arrested. To justify the exercise of its ju-
risdiction in the exclusive economic zone (EEZ), Guinea asserted the
following right as one of “other rules of international law (UNCLOS Article
58 paragraph 3)” :

(111) In the sixth committee of the U.N. General Assembly, the Spanish delega-
tion agreed with the Special Rapporteur and the Commission on maintaining
the restrictive character of recourse to the state of necessity set forth in arti-
cle 33 of the 1996 draft. Nonetheless, he wished to draw attention to the ref-
erence to the Fisheries Jurisdiction (Spain v. Canada) case, discussed in para-
graph 285 of the 2nd report of the Special Rapporteur. In that case, the arrest
of a Spanish vessel on the high seas and by force, in his view, could in no way
be justified by the state of necessity, and the case in question should not be
mentioned in the commentary on article 33. (The Sixth Committee, Summary
record of the 21st meeting, on Friday 29 October 1999, A/C.6/54/SR.21, para.21.)
(112) The M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea),
ITLOS, judgment of 1 July 1999, 38 I.L.M. 1323 (1999).

(1245) 149
 神戸学院法学 第34巻第４号

“Guinea alleged that it has an inherent right to protect itself against un-
warranted economic activities in its exclusive zone that considerably af-
(
)
fect its public interest.”

As evidence, Guinea invoked the argument of Great Britain in the Corfu

Channel case : that the British minesweeping operation in the Albanian ter-
ritorial waters was justified as an act of self-help. It asserted that, although
the Court had rejected the British argument in the light of the particular
facts, it had not denied the argument in principle. It then continued that
“the same principle has been recognized as the doctrine of necessity in gen-
eral international law,” and invoked the provision of the “state of necessity”
proposed by the Special Rapporteur Roberto Ago in his eighth report on
()
State responsibility to the ILC.
Having divided these Guinean arguments into that of “public interest” or
“self-protection” and that of “state of necessity,” the Tribunal rejected the
first plea on the grounds that :

“In the view of the Tribunal, recourse to the principle of “public inter-
est”, as invoked by Guinea, would entitle a coastal State to prohibit any
activities in the exclusive economic zone which it decides to character-
ize as activities which affect its economic “public interest” or entail
“fiscal losses” for it ... this would be incompatible with the provisions
of articles 56 and 58 of the Convention regarding the rights of the
()
coastal State in the exclusive economic zone.”

(113) Republic of Guinea, Counter-Memorial, 16 October 1998, para.112.

(114) Ibid.
(115) The M/V “SAIGA” (No. 2), supra note 112, at 1351.

150 (1246)
 State of Necessity in International Law

As to the latter plea, the Tribunal, referring to the judgment of the G/N
Project case and article 33 of the ILC Draft Articles on first reading, rejected
it. It pointed out that :

“No evidence has been produced by Guinea to show that its essential
interests were in grave and imminent peril. But, however essential
Guinea’s interest in maximizing its tax revenue from the sale of gas oil
to fishing vessels, it cannot be suggested that the only means of safe-
guarding that interest was to extend its customs laws to parts of the ex-
(
)
clusive economic zone.”

The Tribunal addressed the issues of right of self-preservation and state of

necessity. As regards the former, the Tribunal took the negative view. On
the other hand, as regards the latter, it held that the conditions laid down in
the judgment of the G/N Project case, in which the provision of state of ne-
cessity in the ILC Draft Articles had been accepted as rule of customary in-
ternational law, were not met in this case. However, the Tribunal approved
of the principle of the state of necessity itself.

17. LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN

THE OCCUPIED PALESTINIAN TERRITORY, ADVISORY OPINION
()
(2004)

On 10 December 2003 the UN Secretary-General officially communicated

to the ICJ the decision taken by the General Assembly to submit the ques-
tion set forth in its resolution, adopted on 8 December 2003 at its Tenth

(116) Ibid., at 1352

(117) Legal Consequences of the Construction of a Wall in the Occupied Palestini-
an Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136.

(1247) 151
 神戸学院法学 第34巻第４号

Emergency Special Session, for an advisory opinion. The question was the
following :

“What are the legal consequences arising from the construction of the
wall being built by Israel, the occupying Power, in the Occupied Pales-
tinian Territory, including in and around East Jerusalem, as described
in the report of the Secretary-General, considering the rules and prin-
ciples of international law, including the Fourth Geneva Convention of
1949, and relevant Security Council and General Assembly resolu-
(
)
tions?”

The Court found the construction illegal on the grounds that the conduct
contradicted several obligations under customary international law and trea-
()
ties to which Israel is a party. In addition, it went on to consider the ques-
tion as to whether the conduct could be justified by the exception of a state
of necessity. With regard to this issue, it observed that :

“As the Court observed in the case concerning the



-Nagy-
maros Project (Hungary/Slovakia), “the state of necessity is a ground
recognized by customary international law” that “can only be accepted
on an exceptional basis” ; it “can only be invoked under certain strictly
defined conditions which must be cumulatively satisfied ; and the State
concerned is not the sole judge of whether those conditions have been
met” (I.C.J. Reports 1997, p. 40, para. 51). One of those conditions was
stated by the Court in terms used by the International Law Commis-
sion, in a text which in its present form requires that the act being chal-

(118) Ibid., at 141.

(119) Ibid., at 181 194.

152 (1248)
 State of Necessity in International Law

lenged be “the only way for the State to safeguard an essential interest
against a grave and imminent peril” (Article 25 of the International Law
Commission’s Articles on Responsibility of States for Internationally
Wrongful Acts ; see also former Article 33 of the Draft Articles on the
International Responsibility of States, with slightly different wording in
the English text). In the light of the material before it, the Court is not
convinced that the construction of the wall along the route chosen was
the only means to safeguard the interests of Israel against the peril
(
)
which it has invoked as justification for that construction.”

The Court concluded that, in this case, the conditions for a state of necessity
had not been fulfilled. However, we should notice that it recognized the
principle of the state of necessity in article 25 adopted by the ILC in 2001
as a rule of customary international law.

CONCLUDING REMARKS

The study of international judicial cases in this paper leads to the follow-
ing three remarks.

First, in respect of the doctrine of the state of necessity, no coherent body

of jurisprudence can be found in international judicial cases prior to the early
1990s.
On the one hand, the doctrine was affirmed in the Russian Indemnity case,
and that decision was cited by the parties in subsequent cases (the




commerciale de Belgiquecase and the case concerning Rights of Nationals of
the United States of America in Morocco). Moreover, in the Corfu Channel

(120) Ibid., at 195.

(1249) 153
 神戸学院法学 第34巻第４号

case, while the ICJ dismissed the plea of the U.K. to justify its navy’s opera-
tion, the Court (also Judge Krylov and Judge Azevedo) did not deny the
principle of necessity as a defense against conduct not in conformity with in-
ternational obligations other than article 2 paragraph 4 of the U.N. Charter.
On the other hand, the doctrine was categorically dismissed in the Rain-
bow Warrior case. Furthermore, in the LAFICO case, the arbitral tribunal,
in respect of the question as to whether Burundi’s measure was a breach of
article 15 of the 1975 Agreement, deliberately avoided making an appraisal
of the ILC provision of state of necessity in view of the fact that the doctrine
laid down therein had been a problem under debate.
In addition, it is doubtful whether, in the rest of the cases, the courts and
the tribunals have supported the doctrine of the state of necessity. The doc-
trine of the right of self-preservation was mentioned in the Neptune case and
the Company General of the Orinoco case. This doctrine of self-preservation
is not necessarily identical to the positivist legal concept of necessity as pro-
vided for in article 25 of the ILC’s Articles and was criticized in the Fur Seal
case and the M/V “SAIGA” case (No. 2). In the French Company of Vene-
zuela Railroads case, the umpire denied responsibility on the grounds of
absence of the subjective element for responsibility or the right of self-
preservation. In the case concerning the Payment of Various Serbian Loans
Issued in France, it is not necessarily obvious whether the Court addressed
a “general” exception which can apply to failures of obligations other than
debts.
Moreover, in the case concerning Right of Passage over Indian Territory,
although the danger to internal security was in question, the doctrine of
state of necessity was not discussed since the Court found the rejection of
passage was within the Indian sovereign right. Nor was the doctrine dis-
cussed in respect of the question concerning the expulsion order in the

154 (1250)
 State of Necessity in International Law

LAFICO case, in which the tribunal found that the question of expulsion due
to a state of necessity was covered by the particular rule of expulsion estab-
lished under customary international law.
Among individual opinions of judges and the parties’ arguments, Judge
Anzilotti clearly, in the Oscar Chinn case, recognized the general exception
of state of necessity. Yet, in the


commerciale de Belgiquecase, I
doubt whether both parties regarded a state of necessity as a general excep-
tion which could be applied in situations other than financial crises or to fail-
ures of international obligations other than debts. In addition, in the case
concerning Rights of Nationals of the United States of America in Morocco,
both parties appear to have discussed, not the doctrine of state of necessity,
but the exception of force majeure which was afterwards provided for in ar-
ticle 23 of the ILC’s articles adopted in 2001.

Second, it follows from the preceding observations that, especially since

1997 and the judgment of the G/N Project case, there has been a definite ten-
dency for international courts and tribunals to regard the exception of the
state of necessity as a rule of customary international law.
This tendency is shown in the M/V “SAIGA” case (No. 2) and the Advi-
sory Opinion on Legal Consequences of the Construction of a Wall in the Occu-
pied Palestinian Territory. In the Fisheries Jurisdiction (Spain v. Canada)
case, as well, the parties were in agreement concerning this principle.
It goes without saying that this acceptance is a result of the ILC’s work.
The fact that the decision on the question of the state of necessity in the
G/N Project case was invoked by the ILC results in “[a]n intriguing “feed-
(
)
back loop” between the ILC and the ICJ” with respect to the doctrine of the

(121) To borrow Professor Bederman’s phrase. David Bederman, Counterintuit-

ing Countermeasures, 96 AM. J. INT’L. L. 818, 822 (2002).

(1251) 155
 神戸学院法学 第34巻第４号
(
)
state of necessity.

(122) In connection with interdependence between the ICJ and the ILC, another
question will arise as to the scope of “an essential interest” to be safeguarded
against a grave and imminent peril. Article 33 of the ILC Draft Articles on first
reading had provided “an essential interest of the State,” whereas the refer-
ence to “of the State” was dropped in article 25 adopted in 2001. It shows that
not only interests of a State but also interests of its people as well as of the in-
ternational community as a whole are covered by the rule. (2001 REPORT
202.) However, in the G/N Project case, the ICJ cited article 33 on first read-
ing, stating that, in customary international law, an interest to be safeguarded
by the exception of a state of necessity is an essential interest of a State. While
the Court mentioned the importance of environmental protection for the whole
of mankind, it clearly embraced the idea of limiting the interests to be safe-
guarded to those of States. It stated :

“The Court has no difficulty in acknowledging that the concerns expressed by

Hungary for its natural environment in the region affected by the
  
Nagymaros Project related to an “essential interest” of that State, within the
meaning given to that expression in Article 33 of the Draft of the International
Law Commission.” [italics added] (
  
 -Nagymaros Project, supra note
95, para.53.)

At the very least, the Court did not recognize that a State could invoke the ex-
ception of a state of necessity against environmental harm which was not ex-
pected to reach the State’s territory at all. In addition, in the Fisheries Juris-
diction (Spain v. Canada) case, the Spanish Government, while approving of
the content of article 33 on first reading, protested the argument that a state
of ecological necessity was within the scope of the article. This also suggests
that the scope of the interests to be safeguarded may be limited.
It is true that decisions in future judicial cases might be influenced by the
new provision - article 25 - to the effect that invocation of a state of necessity
by a State in the case concerning environmental harm altogether outside the
State’s territory is accepted. (In the advisory opinion on Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ did
not pay attention to this problem since the interest in question was only Isra
el’s.) However, in view of the history of abuse of this doctrine, which has been

156 (1252)
 State of Necessity in International Law

Finally, a State which relies on the exception of state of necessity can still
have an obligation to pay compensation for actual loss suffered by others.
In the G/N Project case, the Court noted that Hungary had expressly ac-
knowledged that a state of necessity would not exempt it from its duty to
compensate its partner. Judge Herczegh classified a state of necessity as a
circumstance precluding or mitigating responsibility. Even when a state of
necessity exists, an obligation to provide a certain amount of compensation,
in his view, can be imposed in some circumstances on the grounds that the
(
)
state of necessity only mitigates part of responsibility. Furthermore, in the
Neptune case, although the doctrine of right of self-preservation was in ques-
tion, one of American commissioners, William Pinkney, mentioned an obli-
gation to pay compensation.

This paper has been considering international judicial cases. Other neces-

one of main reasons for criticism, the question still remains as to the expan-
sion of the scope of “an essential interest.” The Austrian delegation to the
sixth committee pointed out that the deletion of “of the State” entailed major
consequences as it broadened the article’s scope of application, and the
changes in wording of article 33 should be examined carefully in view of their
far-reaching effects and the potential for abuse. (The Sixth Committee, Sum-
mary record of the 22nd meeting, on Monday 1 November 1999, A/C.6/54/SR.22,
para.16.)
(123) Professor Crawford pointed out that, although a State might invoke neces-
sity as a reason for its action, there was no reason for it to require the other
innocent State to bear the costs. (supra note 6, at 174.) He stated that, as for
state of necessity, a State which invoked a state of necessity ought to bear the
financial consequences, at least to the extent that was equitable or appropriate.
He therefore argued very strongly that, at least in cases where circumstances
precluding wrongfulness were an excuse rather than a justification, i.e. those
which might be classified as cases of circumstances precluding responsibility,
the Draft Articles should expressly envisage the possibility of compensation.
(ibid., at 143.)

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sary study such as that of State practice will be dealt with in the forthcoming
paper.

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