Boston University School of Law

 

On the Use and Abuse of Necessity in the Law of State Responsibility

Robert D. Sloane

106 American Journal of International Law 447 (2012)
Boston University School of Law Paper 11-16

 

Abstract

Article 25 of the International Law Commission’s Articles on State Responsibility defines necessity as a general “circumstance precluding wrongfulness” in the law of state responsibility. It has been adopted rapidly and almost uniformly, but with scant independent analysis, as a putative codification of international custom. This essay argues that with reference to the ILC mandate, the definition reflects far more “progressive development” than “codification” of general international law. It also questions the definition’s advisability, coherence, and normative appeal in theory and practice.

 

JEL Codes: K10, K19, K33

Keywords: Necessity, Articles on Responsibility of State fo Internationally Wrongful Acts, State Responsibility, Investor-State Arbitration, Law of Nations, Choice of Evils, International Law Commission (ILC), Internaitonal Tribunals, International Arbitration

 

Please see the final version of this piece, which is published in Volume 106, No. 3, of the American Journal of International Law (July 2012), also available for direct download here: http://www.bu.edu/lawlibrary/facultypublications/PDFs/Sloane/Necessity_AJIL_%202012.pdf .

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Suggested Citation:

Robert D. Sloane, "On the Use and Abuse of Necessity in the Law of State Responsibility," American Journal of International Law, forthcoming.

Robert D. Sloane Contact Information

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

rdsloane@bu.edu

Phone: (617) 358-4633

Fax: (617) 353-3077

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