Circumstances precluding wrongfulness

Consequences of invoking a circumstance precluding wrongfulness

Circumstances precluding wrongfulness in the law of State responsibility

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to

Albania's responsibility was original and not derived from the wrongfulness of the conduct of any other State.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if

(a) Compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists

This should be considered carefully, because the circumstances precluding wrongfulness do not directly affect (suspend or abrogate) the treaty itself, but rather serve as a justification or excuse for non performance while the circumstance in question subsists. Hence, the relevance of circumstances precluding wrongfulness in the law of State responsibility to situations of treaties in armed conflict should be viewed with caution.

The next report of the Special Rapporteur will address questions relating to (1) circumstances precluding wrongfulness, and (2) responsibility of States for the internationally wrongful acts of international organizations.

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations.

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

25(1) ( Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless ).

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act

This study does not discuss consent (article 20) or compliance with peremptory norms (article 26) because there would appear to be little occasion for these remaining two circumstances precluding wrongfulness to become relevant to armed conflict.

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.

Generally speaking, her delegation shared the Special Rapporteur's approach to both the substantive issues and the drafting of the articles, and considered that one of its main concerns, namely, Part One, Chapter V (Circumstances precluding wrongfulness), had been dealt with appropriately.

In conclusion, many of the provisions regarding circumstances precluding wrongfulness in the International Law Commission's articles on the responsibility of States for internationally wrongful acts raise issues somewhat similar to the question of the effect of armed conflict on treaties.

The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.

It is that State which commits an internationally wrongful act, although in the case of coercion wrongfulness could be excluded, while the other State is held responsible not for having actually committed the wrongful act but for its causal contribution to the commission of the act.

In that regard, her delegation was pleased to note that article 26 (Compliance with peremptory norms) provided that Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care.

The chapter on circumstances precluding wrongfulness in the International Law Commission's articles on the responsibility of States for internationally wrongful acts codifies several doctrines which could also apply with regard to treaties during armed conflict, including self defence (article 21), countermeasures (article 22), force majeure (article 23), distress (article 24) and necessity (article 25).

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

Second, the International Law Commission stated in its commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts that although the inherent right to self defence may justify non performance of certain treaties, as to obligations under international humanitarian law and in relation to non derogable human rights provisions, self defence does not preclude the wrongfulness of conduct.

Yet the Commission's commentary on those articles is very clear that all such circumstances do not annul or terminate the obligation rather they provide a justification or excuse for non performance while the circumstance in question subsists. Thus, the articles on circumstances precluding wrongfulness constitute a body of law dealing with responsibility for non performance, not a law of treaties dealing with the status of treaties.