Roman Boed


In this Article I examine the concept of necessity as an excuse or

justification for a State's breach of an international legal obligation

from a practical and theoretical perspective. I will show that while the

concept of a state of necessity as understood by the International Law

Commission (ILC) and the International Court of Justice (ICJ) may be

applicable in respect of non-fulfilment by States of human rights

obligations, the balancing test in the provisionally-adopted text of

article 33 of the ILC's Draft Articles on State Responsibility6 is designed

to weigh inconsistent interests of two States rather than interests of a

State against interests of a community of States and is thus ill-suited

for the context of erga omnes and multilateral obligations that human

rights norms entail. As a consequence, necessity, as expressed in the

current text of article 33, could too easily allow a State to excuse its

non-compliance with international human rights obligations in

situations of threat to an essential interest of the State. That is to say,

by way of a practical example, that a State could close its borders to a

large-scale influx of asylum-seekers and excuse its non-compliance with

its international duty not to expose asylum-seekers to the risk of

persecution by asserting that the influx would threaten an essential

State interest, such as the preservation of internal order and security.