CIRCUMSTANCES

PRECLUDING
WRONGFULLNESS
 Responsibility of States for Internationally Wrongful
Acts – Circumstances Precluding Wrongfulness

In domestic law, there may be circumstances that help justify behavior that would
otherwise be illegal.

International law: a number of circumstances that can be invoked by a state to justify

wrongful behavior.

ARSIWA’s general heading: ‘Circumstances Precluding Wrongfulness’

Important to note: the circumstances merely preclude wrongfulness; are justifications for
wrongful acts in certain circumstances – do not make the original obligation go away.
 Responsibility of States for Internationally Wrongful
Acts – Circumstances Precluding Wrongfulness

Good faith or error of fact or law are not recognized as CPWs in international law – a
State always acts under risk if it ignores relevant facts or legal entitlements
(ignorantia facti vel juris nocet)

States can adopt further CPWs under particular international law, i.e., notably in
treaties. This is covered by the lex specialis clause of Article 55

This is the case of article 103 of the UN Charter, which gives primacy to the
obligations assumed under the UN Charter over obligations flowing from any other
international agreement in case of conflict. Consequently, the breach of the obligation
under that other treaty is cured by the operation of article 103 of the Charter between
members of the UN
 Responsibility of States for Internationally Wrongful Acts –
Circumstances Precluding Wrongfulness

In the ILC’s Articles on State Responsibility - six circumstances ‘preclude wrongfulness’
(Articles 20 – 26 ILC’s Articles on State Responsibility):
 Consent - right to compensation remains

 Necessity - right to compensation remains

 Force majeure - right to compensation remains

 Self-defense – no right to compensation remains

 Distress - right to compensation remains

 Countermeasures - no right to compensation remains.

 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Consent

• The ancient rule volenti non fit injuria (no injury is done to he who consents). The consent is normally a
unilateral act of the consenting State.
• This CPW invoked frequently in the context of exceptions to the territorial inviolability of the State.
• Consent given through agreements or ad hoc legal acts: unilateral declarations.
• Consent can be given in advance or during the conduct; if it is given after the termination of the conduct,
consent does not operate as a CPW but rather as a renunciation of a claim for reparation (waiver of
claims).
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Consent

• The wrongful conduct must remain within the ambit of the consent given.

• Consent may also be withdrawn at any moment and without any formal requirements.

• Consent must be valid. Thus, no coercion must be exercised on the consenting State
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Self Defense

• Article 21 ARSIWA – Self-defense: The wrongfulness of an act of a State is precluded if the act
constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations.

• Article 51 UNC – Self-defense: Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international peace and security.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures

Countermeasures (CM) are acts or omissions in breach of some international legal

obligation of the State
BUT
Justified under international law because they respond to a previous IWA committed by
the targeted State.

Aim? – to bring the originally law-breaking State back on track.

 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Counter Measures

• In a decentralized system – CM – the classic remedy for a ‘wronged State’ (Sometimes still
referred to as ‘non-forcible reprisals.’)

• Dealt with extensively in Art 49-53 ILC-ASR.

 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Counter Measures

• If the conditions for a CM are met – the state taking the CM is not responsible for it –
What are the conditions? (A.49 – A.53)

• the state aggrieved by a lawful CM cannot itself take lawful CM against the CM it
faces.

• In case of excess or non-fulfillment of the conditions of CM, the action taken in excess
is an IWA and triggers responsibility.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Counter Measures

Air Services Case

• America and France
• Background/Facts?
• The case involved a dispute between the United States and France regarding an Air Services
Agreement that they had signed on 27 March 1946. The United States alleged that France had violated
the agreement by imposing certain restrictions and charges on U.S. airlines operating in France. The
United States claimed that these actions were in breach of the bilateral agreement.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Counter Measures

Air Services Case

• “all counter-measures must, in the first instance, have some degree of equivalence with the
alleged breach; this is a well-known rule...It has been observed, generally, that judging the
"proportionality" of counter-measures is not an easy task and can at best be accomplished by
approximation…it is essential, in a dispute between States, to take into account not only the
injuries suffered by the companies concerned but also the importance of the questions of
principle arising from the alleged breach.”
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures

Corn Products v. Mexico

• Facts: High Fructose Corn Syrup (HFCS) is a sweetener made from yellow corn and used in the food and
beverage industry, where it competes directly with sweeteners made from sugar cane. By the mid-1980s,
HFCS was the sweetener most commonly used in soft drinks in the US and Canada, having gained a
competitive advantage over sweeteners made from sugar because it was less expensive and easier to use
(i.e. it was supplied in liquid versus solid form). By the early 1990s, CPI had established itself as a major
producer and supplier of HFCS to the soft drink industry in the US and Canada. After NAFTA entered
into force, CPI expanded its operations and began producing and supplying HFCS to the Mexican soft
drink industry through CPIng.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures

Corn Products v. Mexico

• HFCS began displacing sugar as a sweetener in the Mexican soft drink

industry, Mexico and Mexican sugar producers were in a dispute with the
US over access to the United States’ sugar market. Mexican government
and Mexican sugar producers argued that the US was restricting the
importation of Mexican sugar into the US market in violation of its
obligations under NAFTA.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures

Corn Products v. Mexico

• Attempting to resolve this dispute, Mexico invoked the dispute-settlement

machinery under Chapter 20 of NAFTA, but was unable to resolve its
disagreement with the US. Mexico maintained that the US violated its NAFTA
obligations by effectively frustrating the operation of the Chapter 20 mechanism.
Subsequently, Mexico amended its excise tax legislation in 2001. The effect of
those amendments was to impose a tax of 20% on any drink which used HFCS
as a sweetener.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures

Corn Products v. Mexico

• Mexico’s countermeasures defense - the tribunal noted “…that, in the context of [a
NAFTA Chapter 11] claim, there is no room for a defense based upon the alleged
wrongdoing not of the claimant but of its State of nationality…” As a result, the
tribunal, in a majority and separate opinion, held that Mexico could not invoke such a
defense within the context of an investor-state dispute.
• This decision reflects the difficulty states often have when attempting to do so. Indeed,
it appears that states will have particular difficulty using countermeasures as a defense
against claims made by foreign investors.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Counter Measures
Conditions

• Countermeasures may only be taken to induce compliance.

• Countermeasures must not affect obligations dealing with human rights, the
prohibition on the use of force, or the peremptory norms of international law.
• All countermeasures taken must be proportionate.
• Countermeasures must stop when the internationally wrongful act ceases.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Counter Measures

• Countermeasures adopted by non-injured States.

• Permissible but law very uncertain.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Force Majeure

• The remaining three circumstances precluding wrongfulness – force majeure, distress and necessity – all
denote cases where, at least in some sense, a state is compelled to commit an act that does not conform
with an international obligation.
• But as the term force majeure (literally, ‘superior force’) implies, it differs from those other two
circumstances in that the state’s act is due to something beyond its control. That is to say: it is essentially
involuntary.
• States often invoke it in interstate cases as a principle of customary international law, and analogous
doctrines exist in domestic legal systems.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Force Majeure

• Article 23(1), which has been described as ‘narrow and strict’ compared
with past formulations of force majeure, requires three elements to be
satisfied:
• the occurrence of an irresistible force or of an unforeseen event,
• beyond the control of the State,
• making it materially impossible in the circumstances to perform the obligation.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS

Force Majeure

i. “occurrence of an irresistible force or of an unforeseen event”

The adjective ‘irresistible’ qualifying the word ‘force’ emphasizes that there must
be a constraint which the State was unable to avoid or oppose by its own means. To
have been ‘unforeseen’ the event must have been neither foreseen nor or an easily
foreseeable kind. Further the ‘irresistible force’ or ‘unforeseen event’ must be
causally linked to the situation of material impossibility, as indicated by the words
‘due to force majeure . . . making it materially impossible’.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Force Majeure

ii.“beyond the control of the State”

iii.“making it materially impossible in the circumstances to perform the obligation”
‘materially impossible ’ means. It might result from a natural event: a flood, earthquake or
drought or weather that forces aircraft into foreign airspace. The impossibility might also result
from human intervention. In Gould Marketing, the Iran–US Claims Tribunal said that by force
majeure it meant ‘social and economic forces beyond the power of the state to control through
the exercise of due diligence’. And in Anaconda-Iran it confirmed that ‘strikes, riots, and other
civil strife in the course of [the Iranian] Revolution had created classic force majeure
conditions’.
 RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS –
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Distress

• Distress is distinct from force majeure in two ways.

• First, it precludes the wrongfulness of voluntary acts. Whereas force majeure requires material
impossibility, (in distress the author of the act has no real choice than to breach an obligation)

• Second, it deals with a specific type of act by individuals.

 Responsibility of States for Internationally Wrongful Acts –
Circumstances Precluding Wrongfulness

Necessity
 The state of necessity can be invoked under precise conditions, laid down in Article 25 of the International
Law Commission’s Articles on State Responsibility. It traditionally indicates the existence of a situation in
which the sole means by which a State can safeguard an essential interest from grave and imminent peril
is by violating international law.
 Responsibility of States for internationally wrongful
acts – Circumstances Precluding Wrongfulness

Rainbow Warrior Case

Background/Facts?
Defenses claimed by France?
Material Breach?
Duration of Breach?