On the Use and Abuse of Necessity in the Law of State Responsibility
106 American Journal of International Law 447 (2012)
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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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
Phone: (617) 358-4633
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This draft can be also found at the link below: