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33.3 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Self-Defence
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1 Controversies 1 Controversies
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2 The ILC’s domestication of necessity 2 The ILC’s domestication of necessity
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(a) Necessity and other circumstances precluding wrongfulness (a) Necessity and other circumstances precluding wrongfulness
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(b) Content of the exception (b) Content of the exception
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3 Concluding remarks: some recent necessity cases 3 Concluding remarks: some recent necessity cases
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Further reading Further reading
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35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law
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33.7 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity
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Published:May 2010
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Necessity, previously called ‘state of necessity’ by the ILC, refers to situations where the sole means by which a State, or possibly the international community as a whole, can safeguard an essential interest threatened by a grave and imminent peril, is temporarily not to respect an international obligation protecting an interest of lesser value.1 The interest being thus protected might be one of the State alone, or perhaps, one of the international community as a whole.2 Elevating necessity to the rank of a circumstance precluding wrongfulness, a State, or several States acting together unilaterally, can address an urgent situation which at the time the act in necessity is taken, had not been foreseen by the law. The effect of such a defence is to avoid an overly rigid application of the law in circumstances where there are conflicting values. Whilst the definition of necessity is generally constant both in the literature and in State practice, it is also abstract: neither the ends to be safeguarded by an act in necessity, nor the means by which that act may be effected, are indicated by the rule, except to underline the relative importance of the values at stake. It is also a highly subjective defence, since its application, which is necessarily unilateral, results from a deliberate choice (unlike force majeure) and requires a balancing of the intrinsic values in conflict. The necessity exception thus poses a potential threat to legal stability, a threat which has in the past given rise to abuse.
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