State responsibility, necessity and human rights

Abstract

As far as the topic of ‘necessity and human rights’ is concerned, considerations informed by necessity mainly play a role as grounds for restricting or derogating from human rights on the basis of primary norms contained in international human rights treaties, rather than on the basis of the secondary necessity norm set out in Article 25 of the ILC Articles. The arguably exhaustive treatment of necessity-informed restrictions and derogations in those treaties largely precludes invocation of the general defence of necessity under the law of State Responsibility. Indeed, the drafters have already factored in necessity when drafting human rights treaties. In so doing, they have incorporated necessity into the law itself as a justification for limitations to human rights, thereby excluding reliance on a broader concept of necessity outside this framework. Beyond the human rights treaties, for that matter, States are very hesitant to invoke necessity as an excuse, as this would amount to admitting that their conduct was in fact unlawful (although excusable). Apart from that, ‘human rights’ may possibly qualify as an ‘essential interest’ excusing non-compliance with non-human rights related international law obligations, but it can be said that the notion of jus cogens may be a more potent tonic to set aside ‘incompatible’ lesser norms of international law. © 2011 Stichting T.M.C. Asser Instituut, The Hague, and the author.