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3 Yale Hum. Rts. & Dev. L.J. 1 (2000)

handle is hein.journals/yhurdvl3 and id is 1 raw text is: Article State of Necessity as a Justification for Internationally Wrongful Conduct Roman Boedt CONTENTS I. IN TRODU CTION ................................................................................... 1 II. HISTORICAL DEVELOPMENT OF THE CONCEPT OF NECESSITY: FROM SELF-PRESERVATION TO ESSENTIAL INTEREST ............ 4 A. The Early Doctrine of Necessity: A State's Right to Self- P reservation ........................................................................... 4 B. The Modern Necessity Doctrine: A State's Excuse in the Name of an Essential Interest .......................................... 7 III. THE CONCEPT OF NECESSITY EMBODIED IN ARTICLE 33 OF THE ILC's DRAFT ARTICLES OF STATE RESPONSIBILITY ..................... 12 A. The Meaning of Essential Interest in the Context of A rticle 33 ............................................................................... 15 B. The Meaning of Grave and Imminent Peril in the Context of Article 33 ............................................................ 16 C. The Requirement that the Act be the Only Means Available to the State to Safeguard its Interest .................. 16 D. The Balancing Requirement ............................................. 18 IV. APPLICATION OF THE CONCEPT OF NECESSITY TO JUSTIFY A t Associate Legal Officer, United Nations, International Criminal Tribunal for Rwanda. B.A. 1987, Lawrence University; J.D. 1995 (with honor), DePaul University; L.L.M. 1998 (International Law), University of Cambridge; L.L.M. 1999 (Justice Harlan Fiske Stone Scholar), Columbia University. The author was formerly Associate Legal Protection Officer of the United Nations High Commissioner for Refugees. The views expressed in this article are solely those of the author acting in his personal capacity and do not represent the views of the United Nations. I am greatly indebted to Professor Oscar Schachter for discussing with me necessity, asylum, and many other questions of international law and practice.

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