State of Necessity

by

Sarah Heathcote

• LAST REVIEWED: 02 November 2017
• LAST MODIFIED: 13 January 2014
• DOI: 10.1093/obo/9780199796953-0025

Introduction

State of necessity, now known as “necessity” and codified by Article 25 of the International Law Commission’s (ILC’s) Articles on State Responsibility (ASR), is a circumstance precluding the wrongfulness of an otherwise internationally wrongful act. It is traditionally defined as a situation in which the sole means by which a state can safeguard an essential interest from a grave and imminent peril is to sacrifice another state’s interest of lesser importance. The plea is unavailable where the rule from which derogation is sought precludes its invocation, where the state invoking necessity has contributed to peril’s onset, or where the act to safeguard the essential interest is contrary to a peremptory norm. As traditionally understood, the essential interests safeguarded in necessity are state interests, but the ILC included as progressive development in Article 25 ASR the possibility for a state—or several states acting together unilaterally—to safeguard in necessity an essential interest of the international community as a whole. The ILC’s Draft Articles on the Responsibility of International Organizations (DARIO), now also provides as progressive development for the possibility of an international organization, acting in necessity, to safeguard an essential interest of the international community as whole, subject to the organization having the role of protecting the interest in question as well as the other conditions traditionally associated with state of necessity, as set out above, being met. Indeed, initially the ILC considered that an international organization cannot invoke necessity to safeguard its own essential interest (see the section on the ILC’s Draft Articles on Responsibility of International Organizations).

Points of Controversy

Although international courts and tribunals now generally accept necessity in principle as an autonomous customary rule, until recently a pervasive question has been whether it exists as a distinct category. While, like distress, necessity is a situation of relative impossibility, it differs in that necessity does not pertain to the safeguarding of human life, unless it is a question of safeguarding an entire population. Necessity differs from force majeure in that the latter is a situation of absolute rather than relative impossibility. Moreover, state of necessity must be distinguished from primary rules in necessity’s image such as military necessity within the law of armed conflict, and indeed all those primary rules providing for derogations from the law in situations of emergency, such as self-defense or permissible human rights derogations. State of necessity—and despite its current abbreviated appellation, necessity—is also to be distinguished from necessity as a condition for the application of a rule. Finally, necessity must be distinguished from pure political, ethical, or other need, although as a legal category it is fair to say that Article 25 ASR covers that circumstance albeit under the strictest of conditions. As a distinct concept, the question has also arisen whether necessity has crossed the normativity threshold. Historically, state of necessity was extremely controversial, initially because it was confounded with self-preservation, which advocates maintained was a “fundamental” right of states, premised on natural law and before which all other rights were to cede. Later advocates of necessity would maintain, this time from a positivist perspective, that the law found its limit in necessity situations: it was implicitly understood that no State would agree to the law’s binding nature when a State was in such circumstances. These perspectives and their critiques are reflected in the early literature referenced below. However, necessity’s fortunes would change, starting in 1980 when ILC Special Rapporteur on State Responsibility, Roberto Ago, reconceptualized state of necessity, arguing in Ago 1980 that rather than being a mere expression of the raison d’état, state of necessity was a principle to be associated with a just and equitable application of the law: summum jus, suma injuria. For Ago, were state of necessity cast out the door, it would return through the window; codified, it would be domesticated. ILC members nonetheless considered Ago’s proposition highly controversial; a matter to be returned to during the then Draft Articles’ second reading process. When that time came, the International Court of Justice (ICJ) had handed down its 1997 Gabcikovo-Nagymaros decision (International Court of Justice 1997) in which the Court accepted that, although not applicable to the facts of that case, state of necessity as then provisionally codified by the ILC, was a rule of customary international law; this resulting in today’s majority view that although rare and strictly circumscribed, state of necessity is positive law. The literature is henceforth susceptible of division into, on the one hand, a predominantly skeptical majority prior to 1997, and on the other, a predominantly accepting majority afterwards; even if cases remain, at best, rare in upholding necessity on the facts.

• Ago, Roberto. Addendum to the Eighth Report on State Responsibility. UN Doc. A/CN.4/318/Add.5–7, 29 February, 10 and 19 June 1980. New York: International Law Commission, 1980.

  One of the most important works on necessity, which, as indicated above, marks a significant turning point in the concept’s fortunes.

• International Court of Justice. “Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia): Judgment of 25 September 1997.” ICJ Reports (1997): 7–84.

  As indicated above, one of the most important necessity cases, marking a significant turning point in the concept’s fortunes.