The Invocation of Necessity in International Law

An Analysis of the UK Government's Defence of the Northern Ireland Protocol Bill under International Law

“…80 The vagueness and the largely subjective nature of the concept of essential interest 81 means that a great emphasis is typically placed on demonstrating the gravity and imminence of the peril threatening the interests 82 . The requirement of gravity, which is often equated to any peril that negatively affects the essential interest 83 , is used to ensure that minor harms caused to an essential interest are not covered by the necessity defence 84 . The requirement that the peril be imminent is understood to mean that the peril must be more than a mere theoretical possibility.…”

Netherlands Yearbook of International Law Volume 41, 2010

“…While they may protect the state against an otherwise well-founded accusation of wrongful conduct, they do not strike down the obligation, and the underlying source of the obligation, that the primary rule is not affected by them as such. 69 In the view of many authors the Gabcikovo-Nagymaros case appears to be something of a paradox: on the one hand, the Court unconditionally supported the principle of the stability of treaties and the view that all the grounds for the invocation of the termination of treaties must be treated with caution 70 ; on the other hand, it acknowledged that a state has a wide range of defences (in this case the state of necessity) exculpating it from responsibility for the breach of a treaty . 71 See e.g., Agius 2009, p. 74. 65 This question was raised in the Rainbow Warrior arbitration, where the Arbitral tribunal upheld the distinction between the law of treaties and the law of state responsibility: the law of treaties was applied for determining the continuing existence of the treaty and the law of state responsibility was applied for determining the consequences of breaching the treaty.…”