Suchergebnisse

The defences available to an agent accused of wrongdoing can be considered as justifications (which render acts lawful) or excuses (which shield the agent from the legal consequences of the wrongful act). This distinction is familiar to many domestic legal systems, and tracks analogous notions in moral philosophy and ordinary language. Nevertheless, it remains contested in some domestic jurisdictions where it is often argued that the distinction is purely theoretical and has no consequences in practice. In international law too the distinction has been fraught with controversy, though there are increasing calls for its recognition. This book is the first to comprehensively and thoroughly examine the distinction and its relevance to the international legal order. Combining an analysis of State practice, historical, doctrinal and theoretical developments, the book shows that the distinction is not only possible in international law but that it is also one that would have important practical implications

The defences available to an agent accused of wrongdoing can be considered as justifications (which render acts lawful) or excuses (which shield the agent from the legal consequences of the wrongful act). This distinction is familiar to many domestic legal systems, and tracks analogous notions in moral philosophy and ordinary language. Nevertheless, it remains contested in some domestic jurisdictions where it is often argued that the distinction is purely theoretical and has no consequences in practice. In international law too the distinction has been fraught with controversy, though there are increasing calls for its recognition. This book is the first to comprehensively and thoroughly examine the distinction and its relevance to the international legal order. Combining an analysis of state practice, and historical, doctrinal and theoretical developments, the book shows that the distinction is not only possible in international law but that it is also one that would have important practical implications.

Abstract
The primary rules of international law do not permit states to resort to force for humanitarian purposes. Some scholars have thus attempted to rely on the secondary rules of state responsibility to find a legal basis for forcible humanitarian intervention. In particular, three claims can be identified: that humanitarian intervention is justified; that the state intervening for humanitarian purposes is excused; and that the consequences arising from the intervention for the state acting for humanitarian purposes ought to be mitigated. All three arguments rely either on the defence of necessity, cast as a justification or as an excuse, or on necessity-like reasoning, as the basis for mitigation. This article takes these three claims and draws out the implications of each both within and beyond the law of responsibility. In so doing, this article shows how each of the three arguments is more problematic and less straightforward than it appears at first and that, ultimately, none can provide an adequate legal basis for humanitarian intervention. The legality of humanitarian intervention must be found in the primary rules regulating the use of force in international relations and not in the secondary rules of state responsibility.

Abstract
This comment assesses the approach to the reach of defences beyond the international legal person(s) who is (or are) the author(s) of the internationally wrongful act articulated in Guiding Principle 5 of the Guiding Principles on Shared Responsibility in International Law. It will focus on three main points: (1) whether the choice in respect of the reach of defences in Principle 5 is justifiable for the international legal order; (2) the reach of defences in cases of coercion, where the coerced party may benefit from a defence due to the coercion (in the form of a force majeure defence); and (3) the 'blindspot' in the Guiding Principles in relation to defences of accessories, in particular where the conditions for accessorial liability are defined broadly as in the case of Principle 6 on aid and assistance.

Abstract
Investment tribunals have fleshed out the requirements of the defence of necessity in Article 25 of the Articles on State Responsibility. This article considers the impact of necessity in international investment law and in general international law. The decided cases of the early twenty-first century have revealed three difficulties in Article 25 and in the defence of necessity. First, rather than assessing necessity from the vantage point of the State invoking necessity, they assess it ex post with hindsight bias. Second, the standard of proof required to demonstrate the existence of a grave and imminent peril is infeasible for many situations of risk and uncertainty. Third, the 'only way' criterion is not only unduly strict and virtually impossible to prove, but is wholly unrealistic for macro-level crises, such as pandemics or financial crises. To account for these difficulties, tribunals should avoid hindsight bias, especially with respect to 'grave and imminent peril' and the 'only way' criterion. The defence of necessity is a blunt instrument and has not afforded States a significant 'safety valve'. As a result, States have begun to reconsider the substantive standards in investment treaties and to include internal exceptions in their investment treaties.

AbstractThis Essay considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored—creating legal uncertainty. This Essay reviews how pandemics as biological and social events end, considers how international bodies have approached the end of emergencies, and assesses what this might mean for adjudicators deciding on the end of the SARS-Cov-2 pandemic and related public health emergency.