The Use and Abuse of Necessity and Black Swans

April 4th, 2011

An interesting piece on SSRN titled On the Use and Abuse of Necessity in the Law of State Responsibility. While I do not usually dabble in international law, it is interesting to note how black swan doctrines, and actions out of “necessity” emerges in tehes contexts. Here is the abstract:

In an era of crises (economic, environmental, humanitarian, and even existential), the defensive plea of necessity has become a growth industry in the law of state responsibility, spurred in part by the publication of Article 25 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. Recorded incidents suggest that necessity has been raised more times in the past three decades than in the preceding three centuries – in diverse fields ranging widely across the landscape of contemporary international law. Yet recent scholarship focuses almost exclusively on necessity’s role in the distinctive (lex specialis) context of investor-state arbitration. This is understandable because of its significance to recent disputes in the field. But it is also regrettable, for it has to some extent eclipsed more fundamental questions that should be asked about the very concept of necessity in international law, which characteristically lacks the effective institutions and comparatively high degree of normative consensus that enable states to regulate necessity, consistent with the rule of law, in national law.

This Article, first, analyzes the historical evidence for Article 25, which purports to codify the customary definition of necessity; second, argues on the basis of this evidence that at least in terms of the ILC’s formal mandate, Article 25 reflects far more “progressive development” than it does “codification”; third, clarifies several of the most troubling conceptual and institutional problems that necessity raises in general international law – that is, outside of the confines of a treaty regime or other lex specialis; and finally, inquires into the continuing viability, value, and appropriate analysis of necessity in the contemporary international legal order.

I argue, in part, that the modern plea of necessity should rest on foundations that differ fundamentally from those of the existential conception inherited from the law of nations, which privileged the “very existence” of the state qua state. Article 25 modifies, but also builds upon, this partly anachronistic pedigree by borrowing concepts from national criminal law. The often incongruous transposition of these concepts obscures what almost invariably proves to be the real question raised by necessity in the law of state responsibility: who – which state, states, or other international actors – should bear the loss? A categorical answer would be neither plausible nor desirable. International law should instead contextualize the inquiry and candidly consider the competing policies and values at stake in the diverse scenarios in which necessity has been, or foreseeably might be, pled. The lodestar of this inquiry should no longer be the formerly paramount “natural” right of states to preserve themselves; it should be a transparent recognition of the difficult tradeoffs required by the – sometimes mutually exclusive – global policies, social interests, and human rights recognized by contemporary international law.