J U R I D I C U M
Force majeure, distress, and necessity
- COVID-19
Elsa Pettersson
VT 2021
JU600G Självständigt juridiskt arbete, 15 högskolepoäng Examinator: Jesper Ekroth och Joakim Nergelius
Handledare: Rigmor Argren Antal ord i brödtext: 14 920
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Abstract
States are as a starting point always responsible for their own internationally wrongful acts towards other States. Acts or omissions made by a State must constitute a breach of an interna-tional obligation and be attributable to the State in question in order for the conduct to be inter-nationally wrongful. However, this is not State responsibility in its full sense. States can through the circumstances precluding wrongfulness shield themselves from responsibility for a while.
The global society is currently suffering under an abnormal situation, the COVID-19 pan-demic, and there are circumstances precluding wrongfulness that aims at supervening events. These circumstances are force majeure, distress, and necessity. A State cannot rely on a plea of force majeure to shield itself from responsibility for its non-performance of an international obligation due to the pandemic. The situation is a bit different when it comes to a plea of dis-tress. A State can possibly rely on a plea of distress in relation to the pandemic to shield itself from becoming responsible for not performing an international obligation. The plea of distress is dependent on the circumstances in each individual situation if it is to work or not. Same goes for a plea of necessity. It can be used by a State to shield itself from responsibility due to its addressing of the pandemic, but it is dependent on circumstances in each specific case.
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Abbreviations/Acronyms
AJIL – American Journal of International Law
ARSIWA – Draft Articles on Responsibility of States for Internationally Wrongful Acts CIL – Customary International Law
CTSCZ – Convention on the Territorial Sea and the Contigious Zone HM – Her Majesty
ICJ – International Court of Justice
ICJ Statute – the Statute of the International Court of Justice
ICSID – International Centre for Settlement of Investment Disputes ILC – International Law Commission
Iran-USCTR – Iran-United States of America Claims Tribunal ITLOS – International Tribunal for the Law of the Sea
PCIJ – Permanent Court of International Justice
SARS-CoV-2 – Severe acute respiratory syndrome coronavirus 2 UK – United Kingdom
UN – United Nations
UNCLOS – United Nations Convention on the Law of the Sea UNGA – United Nations General Assembly
UNRIAA – United Nations Report of International Arbitral Awards UNTS – United Nation Treaty Series
US – United States of America
VCLT – Vienna Convention on the Law of Treaties WHO – World Health Organization
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Table of Contents
1 Introduction ... 5
1.1 Background ... 5
1.2 Purpose and research question ... 6
1.3 Method and material ... 6
1.4 Limitations ... 8
1.5 Disposition ... 9
2 State Responsibility ... 9
2.1 General principles and elements of State responsibility ... 10
2.1.1 States responsibility for their own conduct ... 10
2.1.2 Internationally wrongful act ... 11
2.1.3 International law governs the internationally wrongful act ... 12
3 Circumstances precluding wrongfulness of the act ... 12
3.1 General information ... 13
3.2 Force majeure as a circumstance precluding wrongfulness ... 14
3.2.1 Article 23 ARSIWA: Force majeure ... 14
3.2.2 Three conditions for force majeure ... 15
3.3 Distress as a circumstance precluding wrongfulness ... 17
3.3.1 Article 24 ARSIWA: Distress ... 17
3.3.2 Scope of distress ... 17
3.4 Necessity as a circumstance precluding wrongfulness ... 19
3.4.1 Article 25 ARSIWA: Necessity ... 19
3.4.2 Conditions for necessity ... 21
4 Analysis ... 22
4.1 State responsibility and circumstances precluding wrongfulness ... 22
4.2 Force majeure ... 23 4.3 Distress ... 24 4.4 Necessity ... 26 5 Conclusions ... 27 6 Bibliography ... 29 6.1 Legislation ... 29 6.2 Cases ... 29 6.3 UN Documents ... 31 6.4 Command Papers ... 31 6.5 Other documents ... 31 6.6 Books ... 31 6.7 Journals ... 32
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6.8 Website ... 32 6.9 Newspaper articles ... 32 6.10 Speeches ... 33
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1 Introduction
1.1 BackgroundIn the international context State responsibility is the corollary of the principle that States are equally sovereign.1 ‘… [T]he sovereignty of the State is confronted with the equally sovereign
status of other States, and responsibility is the is the inevitable regulatory mechanism through which that conflict is mediated and the rights of each State may be opposed to those of all others’.2 That a State’s internationally wrongful acts entails the responsibility of that State is a
basic principle in international law.3
For State responsibility to arise there must be an internationally wrongful act that is attribut-able to the State and constitutes a breach of an international obligation.4 But State responsibility in its full sense requires circumstances precluding wrongfulness to be paid attention to.5 For
States, circumstances precluding wrongfulness functions like a shield against well-founded claims of internationally wrongful acts.6 The circumstances precluding wrongfulness: force
majeure, distress and necessity concerns supervening events that affects States’ possibility of
performance of its international obligations.7
Events that take place in society that render a State incapable of fulfilling their international obligations toward other States is not a new phenomenon. It can be an economic crisis, as the economic hardship in Argentina in the beginning of 2000 that turned into a crisis in 2001.8 Social and political unrest as in the Iran revolution in the late 1970s.9 Environmental emergen-cies such as a tsunami that affects a State’s nuclear plant which leads to the State not being able to comply with an international obligation of theirs to provide nuclear power to other States. A tsunami can also affect the agriculture and render a State incapable of complying with an inter-national trade agreement of crops. It can also be internal or interinter-national conflicts. 10 ‘These ‘abnormal’ events, which in the past affected primarily and almost exclusively the states in which they occurred, today could (and almost invariably do) affect the interests and rights of foreigners and foreign states alike’.11
The international society are experiencing such an abnormal event right now. It all started on 31 December 2019 when the World Health Organization (WHO) China Country Office re-ceived information about cases of pneumonia of unknown cause in Wuhan.12 This disease is
1 International Law Commission (ILC), Documents of the twenty-fifth session including the report of the
Com-mission to the General Assembly, Yearbook of the International Law ComCom-mission (1973, Vol. II, Part 1) United Nation (UN) Doc. A/CN.4/SER.A/1973/Add.1, p. 177, para. 2.2.
2 Alain Pellet, ‘The Definition of Responsibility in International Law’ in James Crawford, Alain Pellet, Simon
Olleson and Kate Parlett (eds.) The Law of International Responsibility (Oxford University Press, 2010) p. 4.
3 James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) p. 50–51. 4 ibid p. 93.
5 ibid p. 50. 6 ibid p. 274–275.
7 Federica I. Paddeu, ‘A Genealogy of Force Majeure in International Law’ in, The British Year Book of
Interna-tional Law (Oxford University Press, Vol. 82, Iss. 1, 2012), p. 394.
8 Sempra Energy International v. Argentina (Sempra Energy) (Award) 28 September 2007, International Centre
for Settlement of Investment Disputes (ICSID) Case No. ARB/02/16, pp. 27 and 32, paras. 106 and 122.
9 Anaconda-Iran Inc. v. Iran et al. (Anaconda-Iran) (Interlocutory Award) (1986) No. ITL-65-167-3 Iran-United
States of America Claims Tribunal (Iran-USCTR), p. 9, para. 18 and Sedco Inc. v. National Iranian Oil Company and the Islamic Republic of Iran (Final Award) (1987) No. ITL-309-129-3 Iran-USCTR, p. 16, para. 19.
10 Paddeu, pp. 383 and 463. 11 ibid p. 383.
12 ‘Pneumonia of unknown cause – China’ (Disease outbreak news, 5 January 2020)
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caused by the virus severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and is called COVID-19. At this moment of writing the number of global cases of COVID-19 amounts to 166 438 026 and the number of deaths globally is 3 449 399.13 States have taken different
measures in their effort of addressing this virus that was declared a pandemic 11 March 2020.14 States have gone into lockdown as in the United Kingdom (UK).15 States have declared states of emergencies. E.g., Spain16 and Malaysia17. But States have also determined travel bans18 and quarantines19. Is this abnormal situation, that is COVID-19, enough for States to use as a de-fence for not performing other international obligations?
1.2 Purpose and research question
The purpose of this essay is to examine whether States can shield themselves from responsibil-ity for non-performance of their international obligations due to the COVID-19 pandemic. This purpose includes examining if States can rely on force majeure, distress, and necessity as a shield against becoming responsible for not fulfilling their international obligations.
The essay will examine this research question:
- Which of force majeure, distress and necessity can a State rely on as a defence for not fulfilling its international obligations due to the COVID-19 pandemic?
1.3 Method and material
To reach the purpose of this essay the doctrinal method was used. It is a study de lege lata and therefore it does not aim to examine the effects and purpose of the applicable law. It is debated whether arguments de lege ferenda are suitable for a doctrinal study. Usage of de lege ferenda arguments are considered legitimate as long they are an elongation of the de lege lata analysis without becoming too political in nature.20
13 Ensheng Dong, Hongru Du and Lauren Gardner, ‘An interactive web-based dashboard to track COVID-19 in
real time’ (2020) 20 (5) The Lancet <https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(20)30120-1/fulltext> accessed 23 May 2021.
14 Tedros Adhanom Ghebreyesus, WHO Director-General, ‘Media briefing on Covid-19’ (WHO
Director-Gen-eral’s opening remarks at the media briefing on COVID-19, Geneva, 11 March 2020) <https://www.who.int/di- rector-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> accessed 13 April 2021.
15 Boris Johnson, UK Prime Minister, ‘Prime Minister’s address to the nation: 4 January 2021’ (Prime Minister
Boris Johnson’s address to the nation on coronavirus, 4 January 2021) <https://www.gov.uk/govern-ment/speeches/prime-ministers-address-to-the-nation-4-january-2021> accessed 13 May 2021.
16 Ministerio de la Presidencia, Disposición 3692, Boletín Oficial del Estado (14 March 2020, No. 67). 17 Rebecca Ratcliffe, ‘Malaysia declares Covid state of emergency amid political turmoil’ The Guardian
(Lon-don, 12 January 2021) <https://www.theguardian.com/world/2021/jan/12/malaysia-declares-covid-state-of-emer-gency-amid-political-turmoil> accessed 13 May 2021.
18 See e.g., Aubrey Allegretti, ‘England puts 12 destinations on Covid ‘greenlist’ for trips from 17 May’ The
Guardian (London, 7 May 2021) <https://www.theguardian.com/world/2021/may/07/trips-abroad-for-people-in-england-to-be-allowed-from-17-may> accessed 13 May 2021 and Christopher Knaus, ‘Australia limits flights from India as Covid cases increase in hotel quarantine’ The Guardian (London, 22 April 2021)
<https://www.theguardian.com/australia-news/2021/apr/22/western-australia-calls-for-temporary-ban-on-travel-lers-from-india-after-hotel-quarantine-covid-outbreak> accessed 13 May 2021.
19 Shannon McMahon, ‘How 9 destinations around the world enforce mandatory quarantines’ The Washington
Post (Washington, 2 February 2021) <https://www.washingtonpost.com/travel/2021/02/02/quarantine-hotels-mandatory-covid/> accessed 13 May 2021.
20 Claes Sandgren, Rättsvetenskap för uppsatsförfattare – Ämne, material, metod och argumentation (4th edn,
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The basis for the choice of material used is the recognized legal sources of international law mentioned in article 38 of the Statute of the International Court of Justice (ICJ Statute).21 These
sources divide into primary and secondary sources of law. International conventions (treaties), international custom and general principles of law are primary sources. Judicial decisions and the teachings of experts are secondary sources.22
In this essay the keystone source is the ILC’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). ARSIWA consists of fifty-nine articles on State re-sponsibility accompanied by commentaries made by the ILC.23 In line with the ILC’s recom-mendation ARSIWA were annexed in a United Nations General Assembly (UNGA) resolution where the articles were recommended to governments. There were no predictions of future ad-aptation of the articles as a convention.24 The articles in ARSIWA are, though not yet a binding source of international law, frequently referred to and refined by courts. A large part of, or the whole ARSIWA are in general considered to constitute a codification of customary interna-tional law (CIL).25 E.g., in Noble Ventures Inc. v Romania where reference to ARSIWA were made and the tribunal said: ‘While those Draft Articles are not binding, they are widely regarded as a codification of customary international law’.26
ARSIWA is the framework of State responsibility and is not concerned with the rules that set up the obligation.27 There is a division of primary and secondary rules of international law that Roberto Ago formulated as the ILC’s second Special Rapporteur.28 Primary rules are those
that create obligations that may yield responsibility if breached. Secondary rules, in this case ARSIWA, lay down the consequences that come from breaching of primary rules.29 Within the matter of State responsibility the distinction of primary and secondary rules is unclear. Criticism of the distinction has been stated. E.g., that the secondary rules on State responsibility practi-cally have no use and that ARSIWA itself does not consistently apply the distinction of primary and secondary rules. Even in regard of the criticism there is no clarity of an alternative to the primary and secondary rule distinction. This distinction also has its advantages. E.g., since the secondary rules on State responsibility are of general nature, they can be developed without having to affect the primary rules. The rules in ARSIWA only need to be formulated in a way that covers the various possibilities of the primary rules.30
At this point it is suitable to state that the rules on State responsibility are separated from the law of treaties. The Vienna Convention on the Law of Treaties (VCLT)31 is concerned with the primary rules that create obligations, whether a treaty obligation is in force for a State and what that means. The rules on State responsibility deal with consequences of a breach of an already
21 Statute of the International Court of Justice (adopted 17 December 1963, entered into force 31 August 1965)
33 United Nation Treaty Series (UNTS) 993 (ICJ Statute), art. 38.
22 Anders Henriksen, International Law (Oxford University Press 2017) p. 23.
23 ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts (Report of the International
Law Commission on the work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10 (ARSIWA) at pp. 26–142.
24 UNGA Res 56/83 (12 December 2001) para. 3–4.
25 Crawford, State Responsibility: The General Part, p. 43–44.
26 Noble Ventures Inc v Romania (Award) 12 October 2005, ICSID Case No. ARB/01/11, p. 69 para. 69. 27 Crawford, State Responsibility: The General Part, p. 64.
28 ILC, Documents of the twenty-second session including the report of the Commission to the General
Assem-bly, Yearbook of the International Law Commission (1970, Vol. II, Part 2) UN Doc. A/CN.4/SER.A/1970/Add. 1 (Part 2), p. 306.
29 Henriksen, pp. 127–128.
30 Crawford, State Responsibility: The General Part, p. 65.
31 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
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existing obligation.32 In article 55 ARSIWA there is a rule about lex specialis. 33 The rules on State responsibility in ARSIWA do not apply if there are special rules of international law that govern it instead, but that special rule has to state to what extent more general rules apply or do not apply.34
In relation to article 38 in the ICJ Statute the scholarly contributions of the ILC constitute a secondary source of international law that is used as a subsidiary means for determining rules of law.35 The primary purpose of the ILC is to develop and codify international law.36 This is what ARSIWA is, a codification of custom and a promotion of the progressive development of international law on the matter of State responsibility. The form of ARSIWA is treaty-like alt-hough it is not a treaty. However, this gives the articles an aura of authority altalt-hough it is merely a source of international law with a similar authority as the work of highly qualified publicists.37 Of this discussion the conclusion is that using ARSIWA with accompanying commentaries is justified although it is a heavily debated subject. The discussion on the subject is finalised with a statement made by Professor James Crawford in his role as Special Rapporteur for the ILC.
[U]nlike some other texts which have to be embodied in a convention if they are to have legal effect, there is no reason in principle why a declaration on State responsibility or some similar instrument could not become part of the droit acquis. The law of State responsibility operates at an international level and does not require to be implemented in national legisla-tion. States, tribunals, and scholars will refer to the text, whatever its status, because it will be an authoritative text in the field it covers. The draft articles have already been frequently cited and have had a strong formative effect even as drafts.38
In this essay precedence from the courts that apply ARSIWA (e.g., Permanent Court of In-ternational Justice (PCIJ) and InIn-ternational Court of Justice (ICJ)) were also used. These are secondary sources of law according to article 38 in the ICJ Statute.39 Judicial decisions only have binding force between the parties of the case and in relation to that specific case.40 How-ever, judicial decisions have an interpretative value.41 The method of using relevant court judge-ments as an interpretative tool have a stance according to article 38(1d) in the ICJ Statute.42 Other sources used in the essay are doctrine from authors well versed in the field of international law and more specifically in the law on State responsibility.
1.4 Limitations
This essay is not concerned with the rules that gives States international obligations, the primary rules. The focus lies on responsibility and not whether a State has a legitimate obligation due to a treaty. Rules on State responsibility are of secondary nature and this is where the focus of the essay lies.43
States are not the only ones that have obligations under international law. Other actors such as international organizations have international obligations. The purpose of this essay is to
32 Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Gabčíkovo-Nagymaros Project)
(Judgement) [1997] ICJ Rep 7, p. 35, para. 47.
33 ARSIWA, p. 30, art. 55.
34 ARSIWA, p. 140, part IV, paras. 55.2 and 3. 35 ICJ Statute, art. 38 (1d).
36 Henriksen, p. 33.
37 David D. Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and
Authority’ (2002) 96 American Journal of International Law (AJIL) 857, p. 867 and 872–873.
38 James Crawford, ‘Fourth report on State responsibility, by Mr. James Crawford, Special Rapporteur’ (2001)
UN Doc A/CN.4/517/Add.1, p. 7 para. 25.
39 ICJ Statute, art. 38. 40 ibid art. 59. 41 Henriksen, p. 31. 42 ICJ Statute, art. 38(1d). 43 Henriksen, p. 127–128.
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examine State responsibility, States, and their organs, and therefor responsibility of interna-tional organizations, and private individuals are subjects left out of the essay. Likewise, respon-sibility of international organizations and private individuals are not part of the scope of ARSIWA.44
This essay does not touch upon the matter of shared responsibility of States. Shared respon-sibility of States concerns coercion of another State, direction, or control over the commission of an internationally wrongful act and aid or assistance in the commission of an internationally wrongful act, see ARSIWA.45 This matter is excluded from the essay because of lack of space and the main purpose of the essay is to examine circumstances precluding wrongfulness.
The question of who that can invoke a breach of international law and consequences of a State being responsible for a breach is excluded from this essay. These matters are not part of the essay because they do not have any substantive value to the essay’s purpose which is ex-amining circumstances precluding wrongfulness.
There are six circumstances that a State can rely on to preclude wrongfulness of its act. These are: consent, self-defence, lawful countermeasures, force majeure, distress, and necessity.46 Subject to examination in this essay are force majeure, distress, and necessity. Excluded from this essay are consent, self-defence, and lawful countermeasures because they are not plausible to relate to the States inability to perform their obligations due to the COVID-19 pandemic.
State responsibility is only discussed on a general level in terms of general principles and what that needs to be fulfilled for State responsibility to arise and circumstances precluding wrongfulness becoming relevant. This is because the focus of the essay lies on force majeure, distress, and necessity. A deep dive into the entire State responsibility is space consuming as it is a large area to cover. Thus, it is only described on a general level to keep the focus on force majeure, distress, and necessity.
1.5 Disposition
After this introductory chapter, a description of general principles and elements of State respon-sibility is provided in broad terms in chapter 2. Chapter 3 dives deeper into the circumstances precluding wrongfulness, the defences. First the concept is introduced and then focus lies on force majeure, distress, and necessity. Chapter 4 provide the analysis of the essay where each of the defences are examined in relation to the COVID-19 pandemic. In chapter 5 the conclu-sions made are presented and the purpose and research question of the essay answered.
2 State Responsibility
This chapter describe State responsibility in very general terms. The chapter examines gen-eral principles of State responsibility and the conditions that must be fulfilled for an act to be considered internationally wrongful. In order for using circumstances precluding wrongfulness based on the COVID-19 pandemic to shield the State from its responsibility to even come into question there have to exist an internationally wrongful act of that State. Thus, the conditions described in this chapter must be fulfilled.
44 ARSIWA, p. 30, arts. 57 and 58. 45 ibid p. 27, arts. 16–18.
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2.1 General principles and elements of State responsibility 2.1.1 States responsibility for their own conduct
One of the core principles of State responsibility is that every State is internationally responsible for their own conduct in relation to their own obligations under international law, article 1 ARSIWA. This principle underlies all the other articles in ARSIWA.47 This is a well mentioned
principle by the Courts. PCIJ noted it in e.g., the S.S. “Wimbledon” case where Germany was considered responsible for wrongfully refusing a French ship passage.48 The ICJ have applied the principle numerous times. E.g., in the Corfu Channel case49 and in the Military and
Para-military Activities in and against Nicaragua case50. The term ‘internationally wrongful act’ used in article 1 ARSIWA51 and throughout the articles covers a State’s conduct that is wrongful whether the conduct consists of an act, or omission.52
Acts and omissions can be invoked in combination. There is no obvious difference between the two types of conduct, they are both as regularly invoked. However, an omission can be harder to isolate from other circumstances that have relevance to the determination of State responsibility.53 E.g., in the Corfu Channel Case where a squadron of British warships were
damaged by mines in Albanian waters. Albania that knew of the existence of the mines in the Corfu channel did not do anything to attempt to prevent the disaster. The court held that there was sufficient basis for holding Albania responsible because of their omission of their interna-tional obligations which included notifying third States of the minefields existence and warning the British warships.54 An omission is more than only an inaction or a not doing by the State. The omission only become significant where the State is legally obligated to act and does not do so.55
A States internationally wrongful act can give rise to new legal relations under international law. What sort of new legal relation depends on the circumstances in that case. The new inter-national legal relations are included in the interinter-national responsibility.56
State responsibility is not only concerned with bilateral situations (the responsible State and the injured State inter se). Multiple States or the international community as a whole can in cases be subject to a State’s international wrongful act.57 The ICJ took a first step towards this
view in the Barcelona Traction case. That a State can have obligations erga omnes is recognized by the ICJ in this case. Obligations erga omnes are obligations owed towards all. From this comes the distinction between obligations toward another State and obligations toward the whole international community.58 This view has recurred in other later cases from the ICJ, e.g., East Timor case.59 The articles in ARSIWA covers both bilateral situations and the broader perspective of obligations towards the international community or multiple States.60
47 ARSIWA, p. 32, part I, ch. I, para. 1.1.
48Case of the S.S. “Wimbledon” (Judgement of 17 August 1923) 1923,PCIJ, Series A No. 1, p. 30. 49 The Corfu Channel Case (UK v Albania) (Corfu Channel) (Merits) [1949] ICJ Rep 4, p. 23.
50 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America (US))
(Merits) [1986] ICJ Rep 14, p. 142, para. 283.
51 ARSIWA, p. 26, art. 1.
52 Crawford, State Responsibility: The General Part, p. 49. 53 ARSIWA, p. 35, part I, ch. I, para. 2.4.
54 Corfu Channel, p. 12 and 22–23.
55 Tony Honoré, Responsibility and Fault (Oxford: Hart 2002) p. 47. 56 ARSIWA, pp. 32–33, part I, ch. I, paras. 1.1 and 3.
57 ibid p. 33, part I, ch. I, para. 1.4.
58 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Barcelona
Traction) (Judgement) [1970] ICJ Rep 3, p. 32, para. 33.
59 Case Concerning East Timor (Portugal v Australia) (Judgement) [1995] ICJ Rep 90, p. 102, para. 29. 60 ARSIWA, p. 33, part I, ch. I, para. 1.4.
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2.1.2 Internationally wrongful act
Article 2 in ARSIWA establishes two conditions that are required for conduct of a State to be considered as an internationally wrongful act of that State.61 Firstly, conduct consisting of an act or omission needs to be attributable to the State under international law. Secondly, the con-duct must constitute a breach of an international obligation of that State. This article, article 2, also provides the structure for upcoming ARSIWA articles. The articles on circumstances pre-cluding wrongfulness (articles 20 – 25 ARSIWA) encompasses the international responsibility of States in its full sense.62
For conduct (act or omission) to be characterized as an internationally wrongful act the con-duct first have to be attributed to a State.63 The concept of attribution is the process of estab-lishing if conduct of a State’s organs or entities is an act of that State that in turn can lead to responsibility of that State.64 This process of attribution is a normative process. It is not enough
that there is a casual link between the conduct and the State. Attribution of conduct is to be made in accordance with criteria set up by international law. The process of attribution is sep-arated from characterizing conduct as internationally wrongful. Establishing that a specific con-duct is attributable to a State is a separate operation that does not say anything about e.g., the legality of the conduct.65 Attribution is needed because States cannot act themselves.66 ‘States can only act by and through their agents and representatives’.67 However, a State is in
interna-tional law considered to be one legal unity. The State is the subject of internainterna-tional.68
The conduct that is attributable to the State must also constitute a breach of an international obligation of the State in question. This is the second condition of whether there exists an in-ternationally wrongful act of a State.69 An international obligation in regard of State
responsi-bility covers both treaty and non-treaty obligations.70 In Rainbow Warrior the Court held that State responsibility arises by any violation that a State makes to any obligation. The origin of the obligation does not matter for the sake of State responsibility.71 When determining whether conduct attributed to a State is a breach of that State’s international obligations the focus lies on the primary rules that establishes the obligation in question. It is those primary rules that is subject to interpretation and that is to be applied in each case.72 Thus the determination is made by comparing the conduct as it in fact was exercised by the State and what the primary rule establishing the obligation requires.73 A breach of an international obligation exist if there is non-conformity between the State’s conduct and what the international obligation requires.74
61 ARSIWA, p. 26, art. 2.
62 Crawford, State Responsibility: The General Part, pp. 50 and 94. 63 ARSIWA, p. 26, art. 2(a).
64 Crawford, State Responsibility: The General Part, pp. 113–114. 65 ARSIWA, pp. 38–39, part I, ch. II, para. 4.
66 ibid p. 35, part I, ch. I, para. 2.5.
67 German Settlers in Poland (German Settlers) (Advisory Opinion) 1923, PCIJ, Series B No. 6, p. 22. 68 ARSIWA, p. 35, part I, ch. I, para. 2.6.
69 ARSIWA, p. 26, art. 2(b).
70 ARSIWA p. 35, part I, ch. I, para. 2.7.
71 Case concerning the difference between New Zealand and France concerning the interpretation or application
of two agreements concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior affair (New Zealand v France) (Rainbow Warrior) (Arbitration Tribunal) (1990) XX United Nations Report of International Arbitral Awards (UNRIAA) 215, p. 251, para. 75.
72 ARSIWA, p. 54, part I, ch. III, para. 2.
73 Crawford, State Responsibility: The General Part, p. 217. 74 ARSIWA, p. 47, part I, ch. III para 12.2.
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2.1.3 International law governs the internationally wrongful act
Article 3 in ARSIWA stipulates another principle and it is that internal law has no effect on the characterization of an act of a State as an internationally wrongful one.75 This principle emerges in 1872 in the Alabama arbitration.76 There are two elements to this principle. First, it does not matter if the act violates the State’s own internal law. It is the State’s international obligations that is of importance when characterizing an act or omission of that State as internationally wrongful. Secondly, a State cannot rely on the fact that their action is legal under their internal law to get away from the characterization of that act as internationally wrongful. This principle applies to all of a State’s internal laws and regulations no matter of the authority and level of the law and regulation. The characterization of an act or omission as internationally wrongful is only governed by international law.77 Article 3 in ARSIWA is described well by the ILC in their commentaries to ARSIWA:
[F]irst, that the characterization of State conduct as internationally wrongful is governed by international law, and secondly by affirming that conduct which is characterized as wrongful under international law cannot be excused by reference to the legality of that conduct under internal law.78
The first element of article 3 ARSIWA comes to light in the Polish Nationals case where the PCIJ states that it is a general accepted principle that a State can only invoke international law and international obligations in relation to another State. The State cannot rely on invoking their own constitution or the other State’s constitution in a dispute between them.79 The second
ele-ment of article 3 ARSIWA is also recognized in cases from the Courts. E.g., in the ELSI case it was stated that compliance with international law is a different question from compliance with internal law. A breach of a treaty obligation may be lawful in a State’s internal law and some-thing that is unlawful according to the internal law of a State may be lawful in international law.80
There is no exception from article 3 ARSIWA in the cases where international law requires the State’s to conform with the provisions in their internal law. It is still international law that govern if a State’s conduct is internationally wrongful unaffected by internal law. In those cases where international law requires the State to conform to their internal law the State’s compli-ance with the internal law is a relevant part to the question of international responsibility. How-ever, the internal law is only important and relevant because the international law made it so.81
3 Circumstances precluding wrongfulness of the act
This chapter dives deeper into the circumstances precluding wrongfulness of an internation-ally wrongful act and thus show State responsibility in its full sense. Force majeure, distress, and necessity are each described in detail. This is to provide a foundation for whether the COVID-19 pandemic can be used as a basis for a State’s plea in its pursuit to shield itself from responsibility for non-performance of international obligations.
75 ARSIWA, p. 26, art. 3.
76 Alabama Claims Arbitration (United States of America v Great Britain) (1872) 1 Moore Intl Arbitrations 495 77 ARSIWA, pp. 36 and 38, part I, ch. I, paras. 3.1 and 9.
78 ibid p. 38, part I, ch. I, para 3.8.
79 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory
(Advi-sory Opinion) 1932, PCIJ, Series A/B, No. 44, p. 24.
80 Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) (Judgement) [1989] ICJ
Rep 15, p. 51, para. 73.
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3.1 General information
Conduct of a State that is not in conformity with that State’s international obligations can be excused through the circumstances precluding wrongfulness. It is a way for the State that has conducted the wrongful act or omission to shield themselves from another State’s valid claim that the act is wrongful.82
ARSIWA’s articles on circumstances precluding wrongfulness of the act is of general char-acter. The articles apply to any internationally wrongful act of a State without concern of the origin of the obligation that the State has breached. It can be a breach of an international obli-gation arising from a treaty, general international law, or anything else that creates international obligations. That the rules on circumstances precluding wrongfulness in ARSIWA is of general application means that if otherwise is stated somewhere else they are not applied. 83 This is e.g.
relevant in relation to article 55 in ARSIWA about lex specialis. The more special rule is prior-itised. If a treaty contradicts ARSIWA, the treaty applies instead.84 None of the circumstances precluding wrongfulness in ARSIWA can be relied upon to justify or excuse conduct that breaches an obligation risen from a peremptory norm of general international law (jus cogens norm).85
The State’s international obligation is not necessarily terminated or suspended by the claim of circumstances precluding wrongfulness. The obligation continues to exist, but the State is excused for their non-performance of the obligation for as long as the circumstance continues.86
This is illustrated in the Gabčíkovo-Nagymaros Project case. Hungary and Slovakia had concluded a treaty about the constructions of dams and other projects on a river that bordered both States.87 Hungary suspended the work at Nagymaros and Dunakiliti and later abandoned
the project at Nagymaros. Negotiations between the States were held at this time and did not solve the problem and Hungary then terminated the treaty.88 The Court found that Hungary’s action is to be interpreted as unwillingness to follow some of the provisions in the treaty that establish the cooperation of the Gabčíkovo-Nagymaros Project. Hungary’s conduct made it im-possible to finish the work of the project. Hungary invoked a state of necessity to justify their breach of international obligations put upon them by the treaty.89 The Court found that even if
Hungary were in a state of necessity that was linked to their performance in accordance with the treaty, they could not rely on that to justify their actions since they helped causing the state of necessity.90It is also observed by the Court that a state of necessity is not a valid ground for termination of a treaty. Necessity can only be used to excuse the State from its responsibility if that State has failed to implement the treaty. The treaty is ineffective for as long as the state of necessity exists and when it ceases to exist the obligations in the treaty are to be complied with again unless the parties agree to terminate the treaty.91
Another case that illustrates this is the Raibow Warrior case. France had failed to comply with obligations they had under a treaty with New Zealand. It was stated by the tribunal that both customary Law of Treaties and customary Law of State Responsibility were of relevance and applicable in the case. If the treaty between France and New Zealand still was in force were to be determined by the Law of Treaties. But for as long as the treaty still is in force matters
82 ARSIWA, p. 71, part I, ch. V, para. 1.
83 Crawford, State Responsibility: The General Part, p. 277. 84 ARSIWA, p. 30, art. 55.
85 ibid p. 28, art. 26.
86 ARSIWA, p. 71, part I, ch. V, para. 2.
87 Gabčíkovo-Nagymaros Project, p. 14, para. 15. 88 ibid pp. 22–24, paras. 22–23.
89 ibid p. 36, para. 48. 90 ibid p. 43, para. 57. 91 ibid p. 60, para. 101.
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concerning circumstances precluding wrongfulness and remedies for a breach of an interna-tional obligation are to be determined by the Law on State Responsibility.92
This is not only the situation when it comes to treaty obligations. It is similar in regard of non-treaty obligations. In all of these situations, termination of the obligation is not a subject covered by the Law on State responsibility.93 In article 27(a) ARSIWA there is a rule stating
that: ‘The invocation of a circumstance precluding wrongfulness in accordance with this chap-ter is without prejudice to: (a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists …’.94 This means that the
con-duct whose wrongfulness was precluded by one of the circumstances is to cease and that this can happen for a while and then gradually performance of the obligation will start again. This article is a without prejudice clause which means that the same facts in a situation can both justify the wrongfulness being precluded and an obligation’s termination.95
The articles on circumstances precluding wrongfulness in ARSIWA do not cover jurisdic-tional questions and the admissibility of the claim. These articles do also distinguish from the requirements of the obligation that need to exist for wrongfulness of an act to be able to arise. Those requirements are often stipulated by the obligation. Burden of proof and evidence related regards is not cover by the articles on circumstances precluding wrongfulness in ARSIWA. The burden of proof, onus, of claiming State responsibility does in principle lie on the claimant in bilateral disputes. But it is different when it comes to situations where the wrongful act has been attributed to a State and that State seek to escape responsibility through a circumstance preclud-ing wrongfulness. Then the burden of proof falls upon the State that invokes a circumstance precluding wrongfulness. 96
Force majeure, distress and necessity as circumstances precluding wrongfulness ‘address the occurrence of supervening events which affect the continued performance of the state’s international obligations.97
3.2 Force majeure as a circumstance precluding wrongfulness 3.2.1 Article 23 ARSIWA: Force majeure
‘1. The wrongfulness of an act of a State not in conformity with an international 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 control of the State, making it mate-rially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring’.98
Force majeure is a situation where the State cannot perform their obligations because of material impossibility due to an irresistible force or unforeseen event that is out of the State’s control. There is no distinction made between obligations, a defence of force majeure applies to them all.99 The term force majeure is French and translate in English to superior force. Force
92 Rainbow Warrior, pp. 244 and 251, paras. 62 and 75.
93 Crawford, State Responsibility: The General Part, pp. 281–282. 94 ARSIWA, p. 28, art. 27(a).
95 Crawford, State Responsibility: The General Part, p. 282. 96 ARSIWA, p. 72, part I, ch. V, paras. 7–8.
97 Paddeu, p. 394.
98 ARSIWA, p. 27, art. 23. 99 Paddeu, pp. 394 and 458.
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majeure differs from distress (article 24 ARSIWA100) and necessity (article 25 ARSIWA101) because in a situation of force majeure the State’s act is ascribable to a circumstance beyond its control.102 It ‘is involuntary or at least involves no element of free choice’.103
3.2.2 Three conditions for force majeure
Article 23 para. 1 ARSIWA formulates three conditions that needs to be met for a situation of force majeure to preclude wrongfulness of a State’s conduct. 1. The act or omission of the state must be the result of an irresistible force or unforeseen event. 2. The irresistible force or un-foreseen event must be beyond the State’s control. 3. The situation must make it materially impossible for the State to fulfil their obligation. Are these three conditions fulfilled and the provisos in article 23(2) ARSIWA is not applicable, the State’s conduct is precluded of wrong-fulness for as long as the force majeure situation continues.104 The first proviso in article 23(2a)
ARSIWA states that article 23(1) does not apply if ‘(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it’.105 This proviso indicates that there is a requirement of causality between force majeure’s three conditions.106 However, for article 23(2a) to apply the force majeure situation must exist be-cause of the States conduct and the State’s role in the situation must be substantial . It is not enough that the State has contributed to the situation of material impossibility and the force majeure situation. This makes it possible for conduct States made that did not contribute to the non-foreseeability of the situation and that was made in good faith to not have an effect on the circumstance precluding wrongfulness.107 The second proviso in article 23(2b) ARSIWA states that article 23(1) does not apply if ‘(b) the State has assumed the risk of that situation occur-ring’.108 The State can have accepted this risk through the terms of the obligation breached, by
its own conduct or by a unilateral act. When a State has accepted that it is responsible for a certain risk it cannot rely on a claim of force majeure to avoid that responsibility.109
That there is an irresistible force means that the State were faced with a constraint that they could not, by own means, avoid or oppose. An unforeseen event is an event that the State could not foresee, and the event is not of the foreseeable sort.110 These are two types of occurrences that render the State unable to react, they are uncontrollable. Occurrences of irresistible force because of their strength and unforeseen events because of their unexpectedness.111 The occur-rence that is irresistible or unforeseen and is out of the State’s control must be connected to the material impossibility of performance by the State.112Thus, there is a requirement of a casual link between the situation of force majeure and the material impossibility that follows it.This casual link is constituted by the event’s characteristics and the State’s conduct and it must be adequate with the situation’s exigency.113
100 ARSIWA, p. 27, art 24. 101 ibid p. 28, art 25.
102 Crawford, State Responsibility: The General Part, p. 295. 103 ARSIWA, p. 76, part I, ch. V, para. 23.1.
104 ibid p. 76, part I, ch. V, para. 23.2. 105 ARSIWA, p. 27, art.23(1) and art, 23(2a).
106 Crawford, State Responsibility: The General Part, p. 300. 107 ARSIWA, p. 78, part I, ch. V, para 23.9.
108 ARSIWA, p. 27, art. 23. and art. 23(2b). 109 ARSIWA, p. 78, part I, ch. V, para 23.10. 110 ibid p. 76, part I, ch. V, para. 23.2. 111 Paddeu, p. 394.
112 ARSIWA, p. 76, part I, ch. V, para. 23.2.
113 Sandra Szurek, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Force
Majeure’ in James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (eds.) The Law of International Re-sponsibility (Oxford University Press 2010), p. 478.
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Occurrences (irresistible forces or unforeseeable events) that can render material impossi-bility for a State’s performance of their obligations can be due to natural or physical events. This can be earthquakes, harsh weather, floods and more. Human intervention can also be the cause of these occurrences.114 This was the case in Kelley v. Mexico where human intervention came in the form of military forces.115 Material impossibility because these of these occurrences
can also arise because of an insurrection.116 As it was stated in the Anaconda-Iran case: ‘It can indeed be concluded that at least by … 5 December 1978 the conditions in Iran had ripened into a force majeure situation. As stated by the Tribunal in other cases, “[b]y De-cember 1978, strikes, riots and other civil strife in the course of the Islamic Revolution had created classic force majeure conditions at least in Iran’s major cities. By ‘force majeure’ we mean social and economic forces beyond the power of the state to control through the exercise of due diligence”’.117
Material impossibility can also stem from natural/physical and human factors in combina-tion.118
What that really is material impossibility is hard to discern.119 But it does not cover mere negligence.120 E.g., France and Germany that both negligently bombed Swiss towns during World War I and the two States dismissed and punished the aviators that dropped the bombs and paid indemnities.121 Thus, it is not a material impossibility if it arises from negligence even if it was accidental and not intended by the State. The fact that it has become harder for the State to perform its obligations due to a crisis of economic or political nature is also not con-sidered to be materially impossible.122 This was stated by the Court in the Serbian Loans case where the grave economic consequences of World War I was seen to not have an effect on legal obligations between the Serbian Government and French bondholders.123 It was as well held by the Tribunal in the Sempra Energy case that the performance of an obligation that has become more difficult due to political or economic crises is not covered by force majeure.124
The threshold for material impossibility of performance in regard of force majeure in ARSIWA is not as high (even if it is considerably difficult to reach) as it is in article 61 VCLT which concerns treaty-termination based on supervening impossibility of performance.125 For termination or suspension of a treaty article 61 VCLT require ‘the permanent disappearance or destruction of an object indispensable for the execution of the treaty’.126 In the Rainbow
War-rior case the Tribunal held that force majeure requires ‘absolute and material impossibility’.127 This view of absolute impossibility is notwithstanding and thus the bar is set lower than abso-lute.128
114 ARSIWA, p. 76, part I, ch. V, para. 23.3.
115 E.R. Kelley (United States of America) v. United Mexican States (1930) 4 UNRIAA 608, p. 608. 116 ARSIWA, p. 76, part I, ch. V, para 23.3.
117 Anaconda-Iran, p. 20, para. 47.
118 Crawford, State Responsibility: The General Part, p. 298
119 James Crawford, Brownlie’s Principles of Public International Law (edn. 9, Oxford University Press 2019) p.
549
120 Crawford, State Responsibility: The General Part, p. 298
121 ILC, Documents of the thirtieth session (excluding the report of the Commission to the General Assembly,
Yearbook of the International Law Commission (1978, Vol. II, Part 1) UN Doc. A/CN.4/SER.A/1978/Add.1 (Part 1), p. 125, paras. 255–256.
122 ARSIWA, pp. 76–77, part I, ch. V, para. 23.3.
123 Case Concerning the Payment of Various Serbian Loans Issued in France (Judgement) 1929, PCIJ, Series A
No. 20, pp. 39–40.
124 Sempra Energy, p. 71, para. 246. 125 ARSIWA p. 77, part I, ch. V, art. 23.4. 126 VCLT, art. 61.
127 Rainbow Warrior, p. 253, para. 77.
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Force majeure can in some cases be a component of a primary obligation, e.g., article 18(2) in the United Nations Convention on the Law of the Sea (UNCLOS) 129 and article 14(3) in the
Convention on the Territorial Sea and the Contigious Zone (CTSCZ)130. This is not a problem since the primary and secondary rules can coexist.131
3.3 Distress as a circumstance precluding wrongfulness 3.3.1 Article 24 ARSIWA: Distress
‘1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril’.132
Article 24 ARSIWA aims at situations where the acts conducted by a State agent or organ in a situation of peril (either for that person’s life or the life of other persons under their care) is attributable to the State. The rule on distress provides States a way to preclude the wrongful-ness of an agent of the State’s conduct where the agent did not have any other reasonable way to save human life. The nationality of the other persons subject to the rule does not matter, however there must be a special relation between the other persons and the State organ or agent. The rule does not cover more general situations of emergency, in those situations, necessity is more suitable.133
Article 24 ARSIWA does also include two provisos. The first one in article 24(2a)134 is the
same as in the first proviso for force majeure, article 23(2a)135. However, the proviso in article 24(2b)136 is different. This proviso relates to the fact that there should be no other reasonable way for the State to act. Thus, if the act that is required to save life likely creates a peril that is comparable or graver than that that already exists the act cannot be precluded on the basis of distress. E.g., landing with an aircraft carrying explosives because of an emergency might not qualify for distress to preclude wrongfulness.137
3.3.2 Scope of distress
Distress differs from force majeure in two instances. Firstly, distress precludes wrongfulness of acts that are voluntary. The agent had no other option but to act. Force majeure on the other hand is involuntary as it requires material impossibility. Secondly, the rule on distress concerns
129 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16
Novem-ber 1994) 1833 UNTS 397 (UNCLOS), art. 18(2).
130 Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10
September 1964) 516 UNTS 205 (CTSCZ), art. 14(3).
131 Crawford, State Responsibility: The General Part, p. 300. 132 ARSIWA, p. 27, art. 24.
133 ARSIWA, p. 78, part I, ch. V, para. 24.1 and 7. 134 ARSIWA, p. 27, art. 24.
135 ibid p. 27, art 23. 136 ibid p. 27, art 24.
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a specific type of act committed by individuals. It is of importance to have this in mind because different circumstances in the case may lead to either distress or force majeure.138 This can be illustrated with an example of aviation incidents between the US and Yugoslavia in 1946. There were a couple of incidents where American airplanes were forced into Yugoslav airspace by rough weather. These planes had been shot at and aviators killed and wounded by Yugosla-via.139 In a note to the Yugoslav Chargé d’affaires the US Acting Secretary of State stated that:
‘No American planes have flown over Yugoslavia intentionally without advance approval of Yugoslav authorities, unless forced to do so in an emergency. I presume that the Govern-ment of Yugoslavia recognizes that in case a plane and its occupants are jeopardized, the aircraft may change its course so as to seek safety, even though such action may result in flying over Yugoslav territory without prior clearance’.140
When an act of changing the course of the plane is voluntary it falls outside force majeure’s scope but might be within the scope of distress.141 Another point to state is that the same rules
that mentions force majeure as a primary rule in the maritime treaties142 also allows for
dis-tress.143 Most of the instances when claims of distress has been made relates to maritime and airspace incidents, but it is not limited to those instances.144
Rainbow Warrior is an example of this. A treaty concluded between France and New Zea-land was breached when the French government ordered the removal of two agents from a French military facility on the Island of Hao too early. The agents were transferred to the mili-tary facility because of problems arising from the Rainbow Warrior affair.145 France made claims that their actions were justified on reason of distress and that it would preclude the wrongfulness of France’s conduct. This claim was based on varied reasons for the two agents. Major Mafart because of bad health, Captain Prieur because she was pregnant and needed care for that reason. Also, her father was dying in cancer and she had a desire to see him. The Tri-bunal found that three conditions had to be met for France’s conduct to be justified. Those conditions were: 1. ‘The existence of very exceptional circumstances of extreme urgency in-volving medical or other considerations of an elementary nature, provided always that a prompt recognition of the existence of those exceptional circumstances is subsequently obtained from the other interested party or is clearly demonstrated’146, 2. Re-establishment of its compliance
with the treaty as soon as the invoked situation of emergency were gone, 3. A good faith effort to obtain New Zealand’s consent. The Tribunal found that the circumstances regarding Major Mafart were enough to exclude responsibility for the conduct in relation to him. This was not the case of Captain Prieur and France’s responsibility on that part was not excluded.147
The Tribunal in Rainbow Warrior extended article 24 ARSIWA to include situations that is not life-threatening although the limit of the article is situations where there is human life at
138 Crawford, State Responsibility: The General Part, p. 301. 139 ILC Ybk 1978/II/part 1, p. 103, paras. 143–144.
140 ibid p. 103, para. 145.
141 Crawford, State Responsibility: The General Part, pp. 301–302. 142 UNCLOS, art. 18(2) and CTSCZ, art. 14(3).
143 Crawford, State Responsibility: The General Part, p. 302. 144 ARSIWA, p. 79, part I, ch. V, para. 23.4.
145 Rainbow Warrior, p. 226, paras. 13–14. 146 ibid p. 255, para. 79.
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stake.148 With extending the scope of the article, as the Tribunal did, comes a problem, where is a lower limit reasonable placed. There is no reason to extend the scope of article 24 ARSIWA this way because there are other circumstances that is available for situations that is not life-threatening.149
Article 24 ARSIWA’s strictness is mitigated by the fact that there should be no other rea-sonable way for the agent or the State to act. This requirement is put up to create flexibility in the choices of action the State agent or organ have when it comes to saving lives. The article does only preclude the wrongfulness of the conduct to the extent it is necessary to ward off the life-threatening situation. This means that the State or its agent is not relieved from the require-ment of compliance with other obligations such as e.g., notifying relevant authorities of arri-val.150
3.4 Necessity as a circumstance precluding wrongfulness 3.4.1 Article 25 ARSIWA: 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 obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and immi-nent 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 for precluding wrong-fulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity’.151
Article 25 ARSIWA aims at situations where the State’s only option is to not perform an-other international obligation of theirs (that is of lesser importance or urgency) because of the need to safeguard an essential interest that is under a threat of grave and imminent peril. In those cases, the wrongfulness of the State’s conduct can be precluded on necessity.152 A plea
of necessity does not depend on prior conduct of the State that has been injured as it does in the cases of consent (article 20 ARSIWA153), self-defence (article 21 ARSIWA154) and counter-measures (article 22 ARSIWA155). This plea involves voluntary conduct which differs from
conduct in a force majeure (article 23 ARSIWA156) situation that is involuntary. It is also dif-ferent from distress (article 24 ARSIWA157) which concern threat to human life. Necessity aims at situations where an essential interest of the State or the entire international community is in grave danger.158
148 Rainbow Warrior, pp. 254–263.
149 ARSIWA, pp. 79 – 80, part I, ch. V, para. 24.6. 150 ibid p. 80, part I, ch. V, paras. 24.6 and 8. 151 ARSIWA, p. 28, art. 25.
152 ARSIWA, p. 80, part I, ch. V, para. 25.1. 153 ARSIWA, p. 27, art. 20.
154 ibid p. 27, art. 21. 155 ibid p. 27, art. 22. 156 ibid p. 27, art. 23. 157 ibid p. 27, art. 24.
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This shows that a plea of necessity is rarely available for States to excuse their non-perfor-mance of international obligations.159 The exceptional character of article 25 ARSIWA is em-phasized by the fact that the article is formulated in the negative. Rather than authorizing a plea of necessity it restricts it.160 However, there is substantial authority to the use of necessity in international jurisprudence.161 See e.g., the Société commerciale de Belgique162 and Torrey Canyon163. In Rainbow Warrior on the other hand the Tribunal were sceptical to the subject of necessity. It describes the article on necessity in ARSIWA as allegedly authorizing a State that acts unlawful to invoke necessity. The Tribunal also describes the doctrine regarding necessity as being controversial.164
Article 25 ARSIWA include two provisos that are absolute. Thus, if a proviso is applicable a State’s plea of necessity is absolutely excluded.165 Article 25(2a) ARSIWA aims at situations
where the primary international obligation itself excludes invocation of a plea of necessity.166 This can be the case e.g., in situations of military necessity.167 The proviso in article 25(2b)
ARSIWA168 resembles those of distress (article 24(2a) ARSIWA)169 and force majeure (article
23(2a) ARSIWA)170. Distress and force majeure are excluded if they exist due to the conduct of the State. A plea of necessity is excluded if the State has contributed to the situation.171 In the Gabčíkovo-Nagymaros Project case Hungary could not rely on a plea of necessity as a defence against its breach of a treaty obligation because it had helped to create the situation.172
It is also required that ‘the contribution to the situation of necessity must be sufficiently sub-stantial and not merely incidental or peripheral’.173 Thus, a plea of necessity was denied in the
CMS Gas Transmission case. Argentina was in an economic crisis that had political and social complications as well. The Tribunal held that Argentina’s contribution to the crisis had been sufficiently substantial. Argentina was found to have contributed to the crisis and emergency through its governmental policies and the shortcomings of those policies and therefor Argentina was not relieved of its international responsibility.174
159 ARSIWA, p. 80, part I, ch. V, para. 25.2.
160 Crawford, State Responsibility: The General Part, p. 306. 161 ARSIWA, p. 81, part I, ch. V, para 25.3.
162 Société commerciale de Belgique (Judgement of 15 June 1939) 1939, PCIJ, Series A/B No. 78. 163 London, Her Majesty’s (HM) Stationery Office, The ”Torrey Canyon” (CMND 3246, 1967) 164 Rainbow Warrior, p. 254 para. 78.
165 Sarah Heathcote, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility:
Ne-cessity’ in James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (eds.) The Law of International Re-sponsibility (Oxford University Press 2010) p. 498.
166 ARSIWA, p. 28, art. 25(2a).
167 Crawford, State Responsibility: The General Part, p. 315. 168 ARSIWA, p. 28, art. 25(2b).
169 ibid p. 27, art. 24(2a). 170 ibid p. 27, art. 23(2a).
171 Crawford, State Responsibility: The General Part, p. 313. 172 Gabčíkovo-Nagymaros Project, p. 46, para. 57.
173 ARSIWA, p. 84, part I, ch. V, para. 25.20.
174 CMS Gas Transmission v. Argentina (Award) 12 May 2005, ISCID Case No. ARB/01/8, pp. 18 and 95–96,
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3.4.2 Conditions for necessity
Article 25(1a) ARSIWA contain three conditions. It has to regard an essential interest; it must be against a grave and imminent peril and it must be the only means for the State.175 All
circumstances are relevant when deciding if an interest is essential. It can be an essential interest of the State and its nationals as well as an essential interest of the whole international commu-nity.176 In the Fisheries Jurisdiction case this subject was touched upon even though the ICJ found that it had no jurisdiction over the dispute. Canada’s Coastal Fisheries Protection Act 1994 provides that the straddling stocks on the Grand Banks of Newfoundland are threatened with extinction and that Canada can take whatever urgent action that is necessary to prevent the stocks from further destruction. A Spanish vessel was seized, and its master arrested by Canada because of violations of the earlier mentioned Act. Canada argues that this conduct was neces-sary to stop the overfishing of the Greenland halibut.177
The second condition that needs to be satisfied is that the essential interest must be threatened by a grave and imminent peril. ‘The peril has to be objectively established and not merely ap-prehended as possible. In addition to being grave, the peril has to be imminent in the sense of proximate’. The peril thus has not yet happened.178 In the Gabčíkovo-Nagymaros Project case
the Court held that when a State invokes necessity the peril must be certain and inevitable.179 The third condition is that the conduct taken by the State must be the only way to safeguard the essential interest from the threat of grave and imminent peril. If there are other lawful measures available, even if they are less convenient and more costly, these are to be chosen instead of the unlawful one.180 The subject of the only way has been discussed in quite recent cases. In the Gabčíkovo-Nagymaros Project case the Court found that Hungary’s conduct of suspension and abandonment was not its only available way to safeguard the essential interest.181 This was also discussed in /M/V ‘Saiga’ where Guinea claimed to protect was ‘maximizing its tax revenue from the sale of gas oil to fishing vessels’.182 The Tribunal found that Guinea had not showed
any evidence that its essential interest was under grave and imminent peril and it cannot therefor be suggested that the conduct of Guinea (extension of customs laws to the exclusive economic zone) was the only way for it to safeguard the essential interest. 183
In article 25(1b) ARSIWA another requirement is set out. It requires the State’s conduct to not seriously impair an essential interest of the other State/States concerned or an essential in-terest of the whole international community. Thus, the acting State must take into consideration the other State/States interest.184
175 Crawford, State Responsibility: The General Part, p. 307. 176 ARSIWA, p. 83, part I, ch. V, para. 25.15.
177 Fisheries Jurisdiction Case (Spain v Canada) (Judgement) [1998] ICJ Rep 431, pp. 440, 443 and 468, paras.
15, 19–20 and 89.
178 ARSIWA, p. 83, part I, ch. V, paras. 25.15–16. 179 Gabčíkovo-Nagymaros Project, p. 42, para. 54. 180 ARSIWA, p. 83, part I, ch. V, para. 25.15. 181 Gabčíkovo-Nagymaros Project, p. 43, para. 55.
182 /M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (Judgement of 1 July 1999) International
Tribunal for the Law of the Sea (ITLOS) Reports 1999, 10, p. 56, para. 135.
183 ibid p. 56, para. 135.
