Part II Substantive Issues, Ch.12 Emergency Exceptions:
Andrea K Bjorklund
Edited By: Peter T Muchlinski, Federico Ortino, Christoph Schreuer
- Damages — Customary international law — Development — Peremptory norms / ius cogens — Responsibility of states — Circumstances precluding wrongfulness — Compensation
This chapter begins by exploring the historical development of the necessity and force majeure doctrines. It focuses in some detail on the development of the International Law Commission's project on State Responsibility, which culminated in the ILC's adoption of draft articles, including articles on the state of necessity and force majeure. Section 2 explores the elements of a necessity defence. Section 3 examines the possibility of States' raising treaty-based defences on the grounds of ‘essential security interests’ or maintaining ‘public order’. Section 4 details the elements of a force majeure defence, a largely historical enquiry as force majeure has not played a leading role in recent investor-State jurisprudence. Section 5 addresses whether exculpatory provisions should be viewed as self-judging. Section 6 explores the effects of a successful invocation of a necessity or force majeure defence, including whether compensation is due in the event of a successful plea. A concluding section assesses the state of the jurisprudence and outlines some of the open questions future tribunals will confront in necessity and force majeure cases.