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.
"State of Necessity as a Justification for Internationally Wrongful Conduct,"
Yale Human Rights and Development Law Journal: Vol. 3
, Article 1.
Available at: https://digitalcommons.law.yale.edu/yhrdlj/vol3/iss1/1