State of necessity in international law

Invoked by a good number of States since the 19th century and discussed by several courts and international bodies, the state of necessity has long suffered from a lack of clear, precise and universally recognised legal status in international law. While some jurisdictions saw it as a circumstance precluding wrongfulness, others only admitted it as a circumstance mitigating liability. This difference in treatment has for several years strengthened the position of those who opposed the admission of the state of necessity as a circumstance precluding wrongfulness. However, this situation will be remedied on the one hand by the final adoption on 9 August 2001 by the ILC of the draft articles on responsibility of States for internationally wrongful acts. In this draft, the state of necessity is clearly established as a circumstance precluding wrongfulness subject to the fulfilment of certain very strict and rigorous conditions. On the other hand, the International Court of Justice affirmed in the judgment analysed in this case that the state of necessity is a circumstance precluding wrongfulness recognised by customary international law.