New Approaches to the State of Necessity in Customary International Law: Insights from WTO Law and Foreign Investment Law – Vol. 19 No. 3-4

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Author: Alberto Alvarez-Jiménez*

Published: December 2009

Categories of Disputes
Investment Disputes

Description: Both the International Court of Justice (“ICJ”) in the Case Concerning The Gabcikovo-Nagymaros Project (Hungary/Slovakia), and the International Law Commission (“ILC”) in its commentaries to its Articles on State Responsibility have pointed out that the requirements for the successful invocation of the defense of necessity embodied in Article 25 of the ILC’s Articles on State Responsibility (“ILC’s Articles”) need to be interpreted narrowly in order to prevent the abuse of this provision and the ensuing effect of justifying wrongful international acts. The result is that Article 25 is a provision the availability of which to States seems very limited, even in extreme circumstances.

There are, however, other approaches to necessity that are being developed in international law that differ from the traditional one of customary international law. On the one hand, WTO law, although for a different type of “necessity,” has developed an approach that is more lenient and that makes GATT necessity exceptions available to WTO Members to justify unlawful measures pursuing values other than trade, without generating the abuse of such exceptions. On the other hand, foreign investment law has fashioned another approach regarding Article 25 that responds to the particularities of investor/State disputes. It is strict, like that of the ICJ in the sense that the defense of necessity is not available to States even when they face crises of significance, but does not leave States to bear all the risk of such proven crises. In addition to illustrating the new approaches to necessity in international law, this article shows how the WTO model can also be deployed in the interpretation and application of Article 25, without creating the conditions for its abuse.

The article is divided into five parts. The first part analyzes Article 25 on the basis of its interpretation by the ICJ and the ILC. The second part illustrates the approach adopted by the WTO Appellate Body (“AB”) regarding the necessity exceptions in the WTO. The third part presents the results of the disputes stemming from Argentina’s crisis of 2000 and the main approach to Article 25 that investor/State tribunals have created to resolve such conflicts. The fourth part shows how the WTO model can be transplanted to the interpretation of Article 25 and be applied by courts and investor/State tribunals. Finally, the fifth part provides the conclusions of the article.

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*Colombian lawyer. Doctor of Laws. University of Ottawa.