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State responsibility: circumstances precluding wrongfulness*

Published online by Cambridge University Press:  07 July 2009

S.P. Jagota
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Extract

State responsibility is a subject of international law folklore. Its importance and contribution to the promotion of the rule of law among the world community of states is well known. Its codification and development has, however, gone on at its own stately gait, even at the International Law Commission where it has been considered since 1955.

Type
Symposium on State Responsibility and Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law
Information
Netherlands Yearbook of International Law , Volume 16 , December 1985 , pp. 249 - 277
Copyright
Copyright © T.M.C. Asser Press 1985

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References

1. League of Nations, Final Act of the Conference, Doc. C 228. M.115, 1930, V, p. 17.

2. Ibid., Doc. C 75, M. 69, 1929, V, pp. 160–2 (for text of questions or points), pp. 125–33 (for replies of governments and “Bases of Discussion”), and Doc. C 75(a), M. 69(a), 1929, V, pp. 2–22 (for replies of Canada and the USA).

3. ILC Yearbook 1958 vol. 2 pp. 50–5.

4. Ibid., (1961) vol. 2 pp. 43–4.

5. Ibid., p. 48. Article 26, paragraph 4 read as follows: “4. In the determination of the nature and measure of the reparation, the fault imputable to the injured alien and any of the other circumstances described as extenuating circumstances in Art. 7, para. 4, of this draft shall be taken into account”

6. A/CN.4/318/Add. 1–7.

7. ILC Yearbook 1979 vol. 2 part 1 p. 30.

8. Id. 1979 vol. 2 part 2.

9. Ibid., p. 112, para. 11.

10. Ibid., para. 12.

11. Ibid., para. 17.

12. Ibid., p. 115, para. 22.

13. A/CN.4/L.311, No. 13, 9 April 1980 (Topical summary of the discussion held in the Sixth Committee of the General Assembly during its thirty-fourth session, prepared by the Secretariat), pp. 50–1.

14. ILC Yearbook 1979 vol. 2 part 2, p. 116, para. 3.

15. Ibid., p. 121, para. 23.

16. A/CN.4/L.311, No. 13 (Topical Summary), pp. 52–3.

17. A/CN.4/342 (10 April 1981), p. 4.

18. For text, see Fifth Report of the Special Rapporteur, A/CN.4/380 (4 April 1984), and Corr. 1 (28 May 1984), and the Report of the International Law Commission on the Work of its Thirty-sixth Session — 7 May - 27 July 1984, pp. 238–40.

19. A/CN.4/315 (“Force majeure” and “fortuitous event” as circumstances precluding wrongfulness, survey of State practice, international judicial decisions and doctrine — Study prepared by Secretariat), ILC Yearbook 1978 vol. 2 part 1, pp. 61–227.

20. A/CN.4/318/Add. 4, ILC Yearbook 1979 vol. 2 part 1, pp. 47–66.

21. Id. vol. 2 part 2, pp. 122–133.

22. Ibid., p. 123, para. 6

23. Ibid., p. 132, para. 36.

24. Ibid., p. 133, para. 40.

25. Ibid., para. 41.

26. Ibid., p. 125, para. 12 and other examples of cases and State practice in paras. 12–18.

27. Ibid., para. 19.

28. Ibid., para. 23.

29. A/CN.4/L.311, No. 13 (Topical Summary), pp. 52–3.

30. A/CN.4/351/Add. 3 (6 May 1982), p. 3.

31. A/CN.4/342 (10 April 1981), p. 4.

32. The specific cases cited in the International Law Commission's Commentary relate to instances of violation of air space and of the territorial sea of a foreign State, such as the entry into airspace of Yugoslavia in 1946 by military aircraft of the United States, and the entry of the British naval vessels in Icelandic territorial waters on 10–11 December 1975, and arguments relating thereto invoking distress (Ibid., p. 134, paras. 4–6). The provisions of the Conventions on the law of the sea, marine pollution and dumping relevant to distress have also been cited (Ibid., para. 7).

33. Ibid., pp. 135–136, paras. 8–11.

34. Ibid., p. 136, footnote 695.

35. Ibid., pp. 135–6, para. 11.

36. A/CN.4/L.311, No. 13 (Topical Summary), p. 53.

37. A/CN.4/351/Add. 3 (6 May 1982), p. 3.

38. ILC Yearbook 1980 vol. 2 part 2 pp. 34–52.

39. Ibid., p. 35, para. 3.

40. Ibid., p. 49, para. 32.

41. In the Russian Indemnity case, 1912, the Permanent Court of Arbitration rejected the plea of necessity for Turkey's non-payment of debt to Russia on the ground that the conditions relating thereto had not been met. Ibid., p. 36, para. 7.

In the dispute between Belgium and Greece, 1939, before the Permanent Court of International Justice, the parties agreed in principle to the doctrine of necessity, but the Court noted that it was not within its mandate to declare whether the Greek Government was justified in not executing the arbitral awards in question: Ibid., pp. 37–38, paras. 10–12.

42. In the case of Properties of the Bulgarian minorities in Greece (League of Nations Commission of Enquiry, 1926), the view was taken that Greece could take over property of the Bulgarian nationals in Greece in order to provide immediate shelter to the Greek refugees from Turkey, but on payment of compensation to the affected Bulgarian nationals: Ibid., pp. 38–39, para. 13.

43. E.g., The “Torrey Canyon” incident, March 1967, leading to the release of massive quantities of oil in the area of the sea outside the UK's territorial sea, and the British Government's bombing of the ship in order to burn up the oil remaining on board. The Commission adds in the Commentary that “even if the shipowner had not abandoned the wreck and even if he had tried to oppose its destruction, the action taken by the British Government would have had to be recognised as internationally lawful because of a state of necessity”; Ibid., p. 39, para. 15.

A State may have to take extremely urgent action beyond its frontier to protect from fire a forest covering both sides of the frontier: Ibid., p. 40, para. 16

44. In the Company General of the Orinoco case, the French-Venezuelan Mixed Claims Commission accepted the annulment of the French concession by Venezuela on the ground that the area in question was claimed by Colombia, but the French Company was entitled to compensation by Venezuela: Ibid., p. 40, para. 17. For other cases, including the Right of Nationals of the United States of America in Morocco, 1952, and the Wimbeldon, see paras. 18–21.

45. In many cases, the Commission's Commentary said: “the existence — usually spurious — of a “state of necessity” was alleged in order to justify either the annexation by a State of the territory or part of the territory of another State, or the occupation and use, for purposes of war, of the territory of a State which had been neutralised by a treaty concluded before the outbreak of war between some of the parties to the treaty, or of the territory of a State which had declared its neutrality in a war between other States: in short, actions all of which consist, in one way or another, of an assault on the very existence of another State or on the integrity of its territory or the independent exercise of its sovereignty”: Ibid., p. 43, para. 22 and cases cited therein.

The Commission was conscious of the abuse and said that such acts will, in Art. 33 drafted by the Commission, be covered by the exception of jus cogens and come within the meaning of the term “aggresion”, and recalled that under Art. 5, para. 1 of the Definition of Aggression adopted by the United Nations General Assembly on 14 December 1974, “No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression”: Ibid., para. 22.

The Commission, however, did not take a united position on the question whether Art. 2, para. 4 of the United Nations Charter excluded the plea of necessity for any use of force in the territory of another State, even if this did not amount to aggression and was a limited action both in duration and the means employed, and was motivated by the existence of grave and imminent danger to the State, to some of its nationals or simply to human beings and the foreign State concerned was either unwilling or unable to take appropriate remedial action: Ibid., paras. 23 and 24.

46. Referring to the “necessity of war” or “military necessity” in relation to international humanitarian law, the Commission said that “a State cannot invoke a state of necessity if that is expressly or implicitly prohibited by a conventional instrument.” This has also been expressly added as an exception to necessity in Art. 33: Ibid., pp. 45–47, paras. 27–28.

47. Ibid., p. 49, para. 33.

48. Ibid., para. 35.

49. Ibid., para. 37. See also supra n. 45.

50. Ibid., p. 51, para. 38.

51. Ibid., p. 50, para. 36.

52. A/CN.4/L.326 - 5 February 1981 (Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its thirty-fifth session, prepared by the Secretariat), pp. 35–38.

53. A/CN.4/342 (10 April 1981), p. 4.

54. A/CN.4/351/Add. 1 (6 April 1982) and A/CN.4/351/Add. 2 (16 April 1982).

55. A/CN.4/342/Add. 2 (29 June 1981), p. 3.

56. A/CN.4/351/Add. 3 (6 May 1982), p. 3.

57. A/CN.4/318/Add. 7, p. 18.

58. ILC Yearbook 1980 vol. 2 part 2, p. 58, para. 18.

59. Ibid., pp. 58–59, para. 19 and footnotes thereto.

60. Ibid., para. 20.

61. Ibid., p. 59, para. 21 and footnotes thereto.

62. Ibid., para. 21.

63. Ibid., p. 60, para. 22.

64. Ibid., para. 23.

65. A/CN.4/L.326, supra n.52 (Topical Summary), pp. 38–41.

66. A/CN.4/342/Add. 2 (29 June 1981) - Mongolia; A/CN.4/351/Add. 1 (6 April 1982) - USSR; A/CN.4/351/Add. 2 (16 April 1982) - Byelorussian SSR.

67. A/CN.4/351 (1 March 1982), p. 10.

68. Report of the International Law Commission on the Work of its thirty-sixth Session — 1 May - 27 July 1984, p. 242, para. 361.

69. Ibid., para. 362.

70. ILC Yearbook 1980 vol. 2 part 2, p. 61, para. 29.