Is State of Necessity a Principle of Customary International Law? (Est-ce que L'état de nécessité est un principe de droit international coutumier?) (French)
Author(s): Sarah Heathcote
This article argues that State practice does not sustain the assertion, increasingly prevalent in judicial decisions and arbitral awards since 1997, that state of necessity is a principle of customary international law. Nor indeed is it 'spontaneous' law as ILC Special Rapporteur Roberto Ago had insinuated. Moreover, a considerable difficulty in establishing a customary rule of necessity is that its well established formulation is highly abstract (neither the ends to be safeguarded by its invocation, nor the means to achieve those ends, are specified by the purported rule); whilst its manifestations can only relate to specific and tangible ends. Consequently, how can one know whether a concrete situation is one premised on, and accepted as an application of, an abstract rule of necessity, or instead is premised on, or accepted as, a manifestation of an emerging or existing specific rule of exception relative to particular situations? Thus both State practice and logic indicate that necessity remains de lege ferenda; though a material source (or extra-legal inspiration) for particular rules of exception. This may well be the case in respect of an emerging exception of financial necessity.
Research theme: International Law