CYIL Vol. 7, 2016

KATARÍNA CHOVANCOVÁ CYIL 7 ȍ2016Ȏ getting the reader familiarized with the aforementioned cases’ sketchy outcomes, a definition of the act of necessity may be helpful. Generally, the act of necessity is conducted by the defendant on the basis of expression of his free will and as such violates up to certain extent the claimant’s right. According to Sykes, 24 “The act is done to avert some harm that threatens the defendant’s or a third party’s interests and that emanates from a source other than the plaintiff.” Within the realm of the customary international law, the concept of necessity stands among force measure 25 and distress, 26 which together with the triad composed of consent, 27 self-defence and countermeasure other circumstances, guarantee preclusion of the wrongfulness of the state’s conduct in international law, embedded in Articles 20-25 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“the ILC Draft Articles”). Unlike in cases of force majeure , 28 there is no superior force militating beyond the state’s control. 29 Similarly, by invoking necessity under Article 25 ILC Draft Articles, a distressed state is not breaking the law by saving a life, because there is no other way to achieve this noble goal. In addition, although it may be broadly perceived in treaty law as one assertion of the state’s police power when exigent circumstances call for it, 30 necessity should not be ironed with the countermeasure, addressed in Art 22 of the ILC Draft Articles either. 31 It is quite obvious that there are two concepts of 24 SYKES, A.: Economic “Necessity” in International Law, op. cit. , p. 298. 25 International Law Commission , Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 23, U.N. Doc. A/56/10 (2001). 26 Ibid ., see art. 24(1). 27 Ibid ., see art. 20, 21, 22. 28 See in detail BRUNNER, CH.: Force Majeure and Hardship under General Contract Principles: Exemption for Non-performance in International Arbitration , Vol. 8, Kluwer Law International, The Hague, 2008, pp. 263-320. Brunner has stressed the requirement of impossibility of the state obligation’s performance due to an event which is beyond the state’s control or due to some human intervention. In contrast to invocation of the CIL necessity defence, the wrongful conduct of the state, which is excused by Article 23 of the ILC Draft Articles is involuntary. 29 See ILC Draft Articles, op. cit , see art. 23(1). 30 The doctrine of the state’s police power has currently its stable expression in BITs and FTAs in carve- out clauses that set up the scope of the state’s police power in its relationship with foreign investors. PELLET, A., MARJOSOLA, H.: Chapter 32: Police Powers or the State’s Right to Regulate in KINNEAR, M., FISCHER et al. (ed.): Building International Investment Law , op. cit ., pp. 447-462. 31 See a polemic analysis of three NAFTA cases, in which an unsuccessful defence was based on countermeasures. VAN ZIMMEREN, MCRAE E.: Chapter 35: Countermeasures and Investment Arbitration, op. cit ., pp. 495-504. Comparing arguments, put forward by the defendant in Cargill v. Mexico, ADM v. Mexico and the Corn Products v. Mexico dispute, both authors assume that the invocation of the doctrine of countermeasures was excluded due to the doctrine itself, not because of the existing rights of investors toward the host state in the international investment law. With respect to the possibility of the investor’s home state as a third party in investment arbitration, see the concurring opinion in Corn Products International, Inc. v. United Mexican States , Decision on Responsibility and Separate Opinion of A. F. Lowenfeld, ICSID Case No. ARB(AF)/04/01, 15 January 2008.

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