State of Necessity as a Justification for Internationally Wrongful Conduct
dc.contributor.author | Boed, Roman | |
dc.date | 2021-11-25T13:34:58.000 | |
dc.date.accessioned | 2021-11-26T11:51:13Z | |
dc.date.available | 2021-11-26T11:51:13Z | |
dc.date.issued | 2014-02-18T09:50:41-08:00 | |
dc.identifier | yhrdlj/vol3/iss1/1 | |
dc.identifier.contextkey | 5025841 | |
dc.identifier.uri | http://hdl.handle.net/20.500.13051/5809 | |
dc.description.abstract | 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. | |
dc.title | State of Necessity as a Justification for Internationally Wrongful Conduct | |
dc.source.journaltitle | Yale Human Rights and Development Law Journal | |
refterms.dateFOA | 2021-11-26T11:51:13Z | |
dc.identifier.legacycoverpage | https://digitalcommons.law.yale.edu/yhrdlj/vol3/iss1/1 | |
dc.identifier.legacyfulltext | https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1014&context=yhrdlj&unstamped=1 |