RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA, PUNJAB

The Project Submitted in Fulfilment of B.A.L.L.B. (Hons.), Fifth

Semester

TOPIC:
Justification and excuse in the law of State Responsibility

Submitted to: Submitted by:

Dr. Sukhwinder Kaur Virk Priyansh Sharan
Roll no. 15021
Group – 3
B.A.L.L.B (Hons.) 3rd Year
 Contents: -

Introduction: - ................................................................................................................ 3

Development of the Rules for Justification and Excuses: - ........................................... 5

Internationally wrongful act and state responsibility: - ................................................. 7

Justification and Excuses: - ......................................................................................... 10

Consent: - ................................................................................................................. 10

Self-defence: - .......................................................................................................... 11

Countermeasures in respect of an internationally wrongful act: - ........................... 11

Force majeure: - ....................................................................................................... 12

Distress: - ................................................................................................................. 13

Necessity: -............................................................................................................... 14

Bibliography: - ............................................................................................................. 16

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 Introduction: -

International law is a legal system derived from states. This also follows from the
formal sources of law: it is states which conclude international treaties in the sense of
the Vienna Convention on the Law of Treaties;1 and it is state practice, combined with
opinio juris which forms customary international law.

International treaties can be of various kinds. They can be bilateral, multilateral or

indeed so multilateral that they are virtually universal. They can regulate something
quite technical and specific, such as the construction of a system of locks on a river in
the border area between two states, or establish something as complex as the UN, or
the European Union (EU). Treaties between states can thus create international
organisations and other legal creatures with their own organs which can also make
autonomous decisions, such as the UN Security Council.

Once a treaty is signed, the states are expected to abide by them and do everything in
their power to fulfil the terms of the agreement or treaty. This is thought to be the
responsibility of the state and thus is aptly named, State Responsibility.

The law of state responsibility is said to be secondary in nature because it regulates the
consequences of a breach of a legal obligation, while it does not determine whether or
not there has been a breach of the underlying primary norm.

Wrongfulness is identified under the primary norm—in this case originating in treaty
law—and once this has been established, the law of state responsibility is used to
determine the consequences of wrongfulness.

However, it is possible that the act which is done was done out of some necessity or
any other reason due to which the state considerers itself justified in performing an act
contrary to the treaty. These are known as justifications and excuses in the law of state
responsibility.

1
Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331, Art. 1.

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Justifications and excuses have developed in various legal systems as defences for
wrongful acts. In international law, defences appear in the ILC Articles on State
Responsibility.

Justifications are legally authorised exceptions to the primary norm. If a prima facie
wrongful act can be justified, it is not wrongful.

Excuses are defences for acts that are deliberately wrongful but, in the particular
circumstances, may be seen as the choice of the lesser evil.

Excuses do not preclude wrongfulness but only mitigate against responsibility for a
wrongful act. The use of force that is excused but not justified, therefore, cannot be
taken as state practice relevant for an emergence of a customary justification. The
excuses/justifications typology preserves the strength of the prohibition of the use of
force but acknowledges certain mitigating circumstances where force is used illegally.

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 Development of the Rules for Justification and Excuses: -

State responsibility is a cardinal institution of international law. It results from the

general legal personality of every State under international law, and from the fact that
States are the principal bearers of international obligations and thus are responsible for
their fulfilment or breach.2

Thus, it was necessary that some sort of protocol or system was created to regulate and
define the breaches for state responsibilities. Likewise, it was also necessary that a
compilation or list for the justifications and excuses are also produced.

JL Austin in a paper in the Meeting of the Aristotelian Society in London, in 1956

outlined two different approaches to defending a wrongful act:

“In the one defence, we accept responsibility but deny that it was bad; in the other, we
admit that it was bad but don’t accept full, or even any, responsibility. The first is a
justification, the second one is an excuse.”3

An act can be wrongful prima facie, but the applicable law can provide for a
justification which precludes wrongfulness. Excuses are different. They cannot
preclude wrongfulness of an act, but under some circumstances the wrongdoer will be
excused from responsibility for the wrongdoing. The act itself will, however, remain
wrongful.4

In international law, the concept of defences is found in the rules on state responsibility.
The topic of state responsibility was one of the first 14 areas provisionally selected for
the International Law Commission's attention in 1949.5 When the ILC listed the topic
for codification in 1953, "state responsibility" was distinguished from a separate topic

2
James Crawford, Max Planck Encyclopedia of Public International Law [MPEPIL]
3
J.L. Austin, ‘A Plea for Excuses: The Presidential Address’, Proceedings of the Aristotelian Society
(1956-1957)
4
K. Greenwalt, ‘The Perplexing Borders of Justification and Excuse’, 84 Col LR (1984)
5
Report to the General Assembly, 1949 Yearbook of the International Law Commission

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on the "treatment of aliens", reflecting the growing view that state responsibility
encompasses the breach of an international obligation.6

In 1995, the United Nations General Assembly adopted a resolution, telling the
Commission to make progress on the state responsibility articles and other long-
pending projects. Finally, in August 2001, The ILC adopted the Draft Articles on the
Responsibility of States for Internationally Wrongful Acts.

Within this, they included the definition of wrongful acts committed by states in
international law, the meaning of state responsibility and what it implies, and the
consequences of a breach of the same.

6
1949 Year Book of the International Law Commission 46, 49-50, UN Doc. A/CN.4/SER.A/1949

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 Internationally wrongful act and state responsibility: -

Article 1 of the Draft Articles states:

Every internationally wrongful act of a State entails the international responsibility of

that State.

This is the basic principle underlying the articles as a whole, which is that a breach of
international law by a State entails its international responsibility. An internationally
wrongful act of a State may consist in one or more actions or omissions or a
combination of both. Whether there has been an internationally wrongful act depends,
first, on the requirements of the obligation which is said to have been breached and,
secondly, on the framework conditions for such an act.7

This principal has been upheld by the international courts in multiple cases. The PCIJ
in the case of Phosphates in Morocco, stated that:

“When a State commits an internationally wrongful act against another State

international responsibility is established immediately as between the two States.”8

ICJ has also applied the principle on several occasions, for example in the Corfu
Channel case9, in the Military and Paramilitary Activities in and against Nicaragua
case10.

Thus the term “international responsibility” in article 1 covers the relations which arise
under international law from the internationally wrongful act of a State, whether such
relations are limited to the wrongdoing State and one injured State or whether they
extend also to other States or indeed to other subjects of international law, and whether

7
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful
Acts, November 2001, Supplement No. 10 (A/56/10)
8
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28
9
Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 23.
10
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J.Reports 1986, p. 14, at p. 142, para. 283, and p. 149, para. 292.

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they are centred on obligations of restitution or compensation or also give the injured
State the possibility of responding by way of countermeasures.11

Article 2 deals with the concept of Wrongful act of a state. It states:

There is an internationally wrongful act of a State when conduct consisting of an action

or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

These two elements were specified by the PCIJ in the Phosphates in Morocco case. The
Court linked the creation of international responsibility with the existence of an “act
being attributable to the State and described as contrary to the treaty right[s] of another
State”.12

Article 3 states:

The characterization of an act of a State as internationally wrongful is governed by

international law. Such characterization is not affected by the characterization of the
same act as lawful by internal law.

This means that the act must be wrongful in the eyes of International law. It is not
effected by the municipal laws of any member countries. ICJ has referred to and applied
the principle on multiple occasions. In the Reparation for Injuries case, it noted that:

“as the claim is based on the breach of an international obligation on the part of the
Member held responsible, the Member cannot contend that this obligation is governed
by municipal law.”13

Chapter 2 of the Articles talks about the attribution of the wrongful act. Article 4 states
that the wrongful act can also be attributed to the organs of the state if they exercise
power and are recognized by the state.

11
H. Kelsen, Principles of International Law, 2nd ed., R. W. Tucker, ed. (New York, Holt, Rinehart and
Winston, 1966)
12
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10, at p. 28
13
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports
1949, p. 174, at p. 184.

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Article 5 says the same when the act is done by a person authorised by the state. In both
these cases, the state will be responsible for their acts and can be held in breach of State
responsibility.

9
 Justification and Excuses: -

Chapter 6 of the articles give circumstances and situations under which a normally
wrongful act will not be considered to be wrongful and thus will not incur the liabilities.
These are known as the Justifications and Excuses precluding wrongfulness in the law
of state responsibility.

Consent: -

Article 20 states:

“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.”

Under this principle, consent by a State to particular conduct by another State precludes
the wrongfulness of that act in relation to the consenting State, provided the consent is
valid and to the extent that the conduct remains within the limits of the consent given.
This means that if a state consents, whether implicitly or explicitly, to the act of another
state, even if that act would normally be considered to be wrongful, that act will not be
considered to be a wrongful act in that situation.

An example of this is the Savarkar case where the arbitral tribunal considered that the
arrest of Savarkar was not a violation of French sovereignty asFrance had implicitly
consented to the arrest through the conduct of its gendarme, who aided the British
authorities in the arrest.14

In circumstances where the consent of a number of States is required, the consent of

one State will not preclude wrongfulness in relation to another. Further, it will be
necessary to show that the conduct fell within the limits of the consent.15

14
UNRIAA, vol. XI (Sales No. 61.V.4) (1911)
15
Customs Régime between Germany and Austria, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 41

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Self-defence: -

This is given in Article 21, which reads:

“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.”

The ICJ in the case of Legality of the Threat or Use of Nuclear Weapons case stated:

Article 51 of the Charter of the United Nations preserves a State’s “inherent right” of
self-defence in the face of an armed attack. Thus, a State exercising its inherent right
of self-defence as referred to in Article 51 of the Charter is not, even potentially, in
breach of a treaty of International law.16

Self-defence may justify non-performance of certain obligations other than that under
Article 2, paragraph 4, of the Charter of the United Nations, provided that such non-
performance is related to the breach of that provision.

This defence however is not absolute. For example, it doesn’t include issues relating to
international humanitarian law and human rights obligations. These include The
Geneva Conventions for the protection of war victims and the Protocol Additional to
the Geneva Conventions.

Human rights treaties contain derogation provisions for times of public emergency,
including actions taken in self-defence. 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.17

Countermeasures in respect of an internationally wrongful act: -

This is given in Article 22:

“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

16
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996
17
Ibid.

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constitutes a countermeasure taken against the latter State in accordance with
chapter II of Part Three.”

In certain circumstances, the an internationally wrongful act committed by one State,

may justify another State injured by that act to take non-forcible countermeasures in
order to procure its cessation and to achieve reparation for the injury.18

In the Gabˇcíkovo-Nagymaros Project case, ICJ accepted that countermeasures might

justify otherwise unlawful conduct “taken in response to a previous international
wrongful act of another State and directed against that State”, provided certain
conditions are met.19

When actions are taken in accordance to Article 22, the underlying obligation is not
terminated. It is only suspended for the time being. Further, these actions are only
justified against the state which committed the wrongful act in the first place. They can
cannot be used as an excuse to commit a wrongful act to a third state. Such was given
in the Cysne case.20

Force majeure: -

Article 23 reads:

“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.”

This is not applicable if:

(a) the situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or

18
Ibid.
19
Gabˇcíkovo-Nagymaros Project, ICJ GL No 92
20
Portuguese Colonies case (Naulilaa incident), UNRIAA, vol. II (Sales No. 1949.V.1)

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(b) the State has assumed the risk of that situation occurring.

For force majeure to arise three elements must be met:

(a) the act in question must be brought about by an irresistible force or an unforeseen
event;

(b) which is beyond the control of the State concerned; and

(c) which makes it materially impossible in the circumstances to perform the obligation.

Such an event may be because of natural or physical event or human intervention, or

some combination of the two. Force majeure does not include circumstances in which
performance of an obligation has become more difficult or situations brought about by
the neglect or default of the State concerned.21

Distress: -

Article 24 reads:

“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.”

Distress does not occur if:

(a) the situation of distress is due, either alone or in combination with other factors, to
the conduct of the State invoking it; or

(b) the act in question is likely to create a comparable or greater peril.

Article 24 deals with the specific case where an individual whose acts are attributable
to the State is in a situation of peril, either personally or in relation to persons under his

21
Secretariat (Yearbook 1978, vol. II (Part One) document A/CN.4/315)

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or her care. The article precludes the wrongfulness of conduct adopted by the State
agent in circumstances where the agent had no other reasonable way of saving life.

This is different from Force majeure, as here the act is not involuntary. It was does with
the knowledge and intent to do a wrongful act, however there was no other way at the
time.

This is usually done in cases of aerial or maritime breach of boundaries. For example,
on two occasions, United States military aircraft entered Yugoslav airspace without
authorization and were attacked by Yugoslav air defences. The United States
Government protested the Yugoslav action on the basis that the aircraft had entered
Yugoslav airspace solely in order to escape extreme danger.22

Necessity: -

The term “necessity” (état de nécessité) is used to denote those exceptional cases where
the only way a State can safeguard an essential interest threatened by a grave and
imminent peril is, for the time being, not to perform some other international obligation
of lesser weight or urgency.

Article 25 states:

“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:

(a) is the only way for the State to safeguard an essential interest against a grave
and imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards
which the obligation exists, or of the international community as a whole.”

22
O. J. Lissitzyn, “The treatment of aerial intruders in recent practice and international law”, AJIL, vol.
47, No. 4 (October 1953)

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Unlike consent (art. 20), self-defence (art. 21) or countermeasures (art. 22), it is not
dependent on the prior conduct of the injured State. Unlike force majeure (art. 23), it
does not involve conduct which is involuntary or coerced. Unlike distress (art. 24),
necessity consists not in danger to the lives of individuals in the charge of a State
official but in a grave danger either to the essential interests of the State or of the
international community as a whole.

It arises where there is an irreconcilable conflict between an essential interest on the

one hand and an obligation of the State invoking necessity on the other. These special
features mean that necessity will only rarely be available to excuse non-performance
of an obligation and that it is subject to strict limitations to safeguard against possible
abuse.23

Necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking

necessity; or

(b) the State has contributed to the situation of necessity.

An example of the doctrine of necessity would be the case of Torrey Canyon.

In March 1967 the Liberian oil tanker Torre Canyon went aground on submerged rocks
off the coast of Cornwall outside British territorial waters, spilling large amounts of oil
which threatened the English coastline. After various remedial attempts had failed, the
British Government decided to bomb the ship to burn the remaining oil. This operation
was carried out successfully.

The British Government did not advance any legal justification for its conduct, but
stressed the existence of a situation of extreme danger and claimed that the decision to
bomb the ship had been taken only after all other means had failed. This was largely
accepted by the world community and no objections were raised.24

What is of paramount importance to see here, is that the act done was the only way
available to the state and that the act was absolutely necessary to prevent further harm.25

23
Jahrbuch des Völkerrechts, vol. III (1916)
24
The “Torrey Canyon”, Cmnd. 3246 (London, HM Stationery Office, 1967).
25
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998

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 Bibliography: -

Books:

1. Malcom N. Shaw, International Law, 7th ed. (2014) Cambridge University Press

2. Yearbook of the International Law Commission, 2001, vol. II, Part Two

Dictionaries:

1. Black’s Law Dictionary 9th ed. (2009)

Online Resources:

1. Vidmar, Jure, The Use of Force and Defences in the Law of State Responsibility
(June 15, 2015)
2. Boed, Roman (2000) "State of Necessity as a Justification for Internationally
Wrongful Conduct," Yale Human Rights and Development Journal: Vol. 3: Iss.
1, Article 1.

Statutes:

1. International Law Commission, Draft Articles on Responsibility of States for

Internationally Wrongful Acts, November 2001

2. United Nations, Charter of the United Nations, 24th October 1945

3. Vienna Convention on the Law of Treaties, 23rd May 1969

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