Document:- A/CN.4/318/Add.5-7 Addendum - Eighth report on State responsibility by Mr. Roberto Ago, Special Rapporteur - the internationally wrongful act of the State, source of international responsibility (part 1) Topic: State responsibility Extract from the Yearbook of the International Law Commission:- 1980,vol. II(1) Dowloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations STATE RESPONSIBILITY [Agenda item 2] DOCUMENT A/CN.4/318/ADD.5-7 Addendum to the eighth report on State responsibility, by Mr. Roberto Ago* The internationally wrongful act of the State, source of international responsibility {part 1) (concluded) {Original: French] \29 February, 10 and 19 June 1980\ CONTENTS l'aKe Abbreviations 13 Explanatory note: italics in quotations 13 Chapter Paragraphs V. CIRCUMSTANCES PRECLUDING WRONGFULNESS {concluded) . 1-124 14 5. State of necessity 1-81 14 Article 33 81 51 6. Self-defence 82-124 51 Article 34 124 70 ABBREVIATIONS C.N.R. Consiglio Nationale delle Ricerche (Italy) GATT General Agreement on Tariffs and Trade I.C.J. International Court of Justice I.C.J. Pleadings I.C.J., Pleadings, Oral Arguments, Documents I.CJ. Reports I.C.J., Reports of Judgments, Advisory Opinions and Orders ILA International Law Association IMCO Inter-Governmental Maritime Consultative Organization OAS Organization of American States P.C.I.J. Permanent Court of International Justice P.C.I J., Series A P.C.I.J., Collection of Judgments (through 1930) P.C.I.J., Series A/B Judgments, Orders and Advisory Opinions (from 1931) P.C.U., Series C —Nos. 1-19 P.C.I.J., Acts and Documents relating to Judgments and Advisory Opinions given by the Court | through 19301 —Nos. 52-88 P.C.I.J., Pleadings, Oral Statements and Documents [ from 19311 S.I.O.I. Societa Italiana per TOrganizzazione Internazionale (Italy) EXPLANATORY NOTE: ITALICS IN QUOTATIONS An asterisk inserted in a quotation indicates that, in the passage immediately preceding the asterisk, the italics have been supplied by the author of the present report. * Sections 5 and 6 of chapter V of the eighth report were presented by Mr. Ago, former Special Rapporteur, after his resignation from the Commission. They complete document A/CN.4/318 and Add. 1-4, which is reproduced in Yearbook ... 1979, vol. II (Part One), p. 3. 13 14 Documents of the thirty-second session CHAPTER V Circumstances precluding wrongfulness (concluded)1 5. STATE OF NECESSITY obligation of their State. We observed that in what for us is the well-founded opinion of the majority of those 1. In section 4 of this chapter (force majeure and few writers who have considered the question, such a fortuitous event), we had occasion more than once to case may be said to resemble force majeure,* since the refer to "state of necessity" (e'tat de necessite). The external circumstances at work are usually the same purpose, of course, was not to determine then and and their effect is to make it relatively, if not absolutely there the meaning and scope of that concept, but rather impossible to act in conformity with the international to define, through contrast, the contours and limits of obligation. Although the conduct actually engaged in the concepts then being considered. In paragraph 103, by those concerned is not entirely involuntary as in for instance, we showed that in the most typical case of cases where it is materially and absolutely impossible force majeure (where an unforeseen and unavoidable to comply with the international obligation, it is external circumstance, an irresistible "force" beyond voluntary more in theory than in practice, since the the control of the subject taking the action, makes it element of volition is "nullified" by the situation of materially impossible for that subject to act in distress of the persons taking the action. This is not the conformity with an international obligation), the case when Governments, seeking justification for their conduct actually adopted, which as such constitutes an conduct, invoke a "state of necessity". The "necessity" act of the State, is an absolutely involuntary action. then invoked is a "necessity of State". The alleged Similarly, in paragraph 104, we observed that in what situation of extreme peril does not take the form of a may be considered a typical case of what is known as threat to the life of individuals whose conduct is "fortuitous event" (where an unforeseen external attributed to the State, but represents a grave danger to circumstance makes it impossible for the person whose the existence of the State itself, its political or economic act is attributed to the State to realize that his conduct survival, the continued functioning of its essential is different from that required by an international services, the maintenance of internal peace, the obligation), it is the fact that the conduct is not in survival of a sector of its population, the preservation conformity with the international obligation, if not the of the environment of its territory or a part thereof, conduct itself, which is also quite involuntary and etc.4 The situation may or may not be due to a sudden unintentional. On the other hand, in paragraph 102 we unforeseen external event; it may also be the fore- stated that in cases where the excuse for the State's seeable but unavoidable consequence of factors which action or omission is a state of necessity, the have long been present. The State organs then called "voluntary" nature of the action or omission and the upon to decide on the conduct of the State are "intentional" aspect of the failure to conform with the definitely not in a situation likely to nullify the element international obligation are not only undeniable, but of volition. To be sure, they decide what course of also a logical and inherent part of the excuse given. conduct is to be adopted to deal with the abnormal This is so, of course, whatever the objective evaluation situation of peril facing the State of which they are the of such an excuse. responsible organs, but their free will is in no way impaired. The conduct engaged in will therefore stem 2. In the preceding section,2 we also mentioned the from a deliberate choice, fully conscious and voluntary criteria for differentiating between the situations in every respect. Obviously, then, there is a marked usually envisaged when the term "state of necessity" is difference between the concept we are now considering used and situations which, in different respects, but and all those that were considered in the preceding more superficially than concretely, could be considered section within the general framework of "force comparable to a state of necessity. We referred to majeure". cases where the irresistible external circumstance (also at work here), while not materially forcing those acting 3. Once these points have been made concerning the on behalf of the State to engage, quite involuntarily, in distinction to be drawn between the concepts of state conduct conflicting with the requirements of an of necessity, force majeure and, a fortiori, fortuitous international obligation of that State, nevertheless puts event, there is hardly any need to add that it is even them in a position of such "distress" that the only way they can avert tragedy for themselves—and possibly 3 We think it useful again to highlight this conviction, because those who may be placed in their charge—is by acting there are those, like L. Buza ("The state of necessity in in a manner not in conformity with an international international law", Ada juridica Academiae Scientiarum Hungaricae, (Budapest, Akademiai Kiado, 1959) vol. I, pp. 213-214) who include in the category of "state of necessity" 1 For the first part (sections 1-4) of Chapter V, see cases where only the members of organs acting on behalf of the Yearbook... 1979, vol. II (Part One), pp. 27 et seq., document State find themselves in a situation of distress. A/CN.4/318andAdd.l-4. 4 These are examples of what is often invoked in this context as 2 Ibid., pp. 48-49 and 59 et seq., paras. 103, 129 et seq. "essential" or "particularly important" interests of the State. State responsibility 15 easier to draw such a distinction between the other of self-defence has other, more immediate goals than "circumstances" considered earlier. There is obviously that of imposing on the State with which it is at no similarity between the case in which a "state of variance a "sanction" for the wrongful act committed necessity" is invoked as the alleged circumstance against it, although it may also seek that end precluding the wrongfulness of an act of the State that subsequently. Its immediate and basic aim is to protect is not in conformity with an existing international itself from the aggression and its effects, to thwart the obligation towards another State and the case in which purpose of the aggression. Without wishing to antici- what is invoked as that circumstance is the "consent" pate by making at the current stage the points which will of the latter State to the commission of the act in 5 be made later, we shall confine ourselves here to the question. In a way, a State which claims to be taking observation that there are no similarities between action against another State because it finds itself in a self-defence and state of necessity in this case. state of necessity thereby indicates that it did not seek Admittedly, the State acting in self-defence is seeking the consent of the other State in question, or that such to avert a danger threatening its existence; but this is a consent, if sought, was not granted.