410 / 536
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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.