Necessity Defense and its Effects and Requirements in International Law with Emphasis on Practice of International Courts

Before Gabcikovo-Nagymaros's case in the International Court of Justice, the effects and requirements of the necessity defense which is long-standing in international law were unclear. In this case, the Court declares that the necessity is accepted only in exceptional condition and as the only means of safeguarding an essential interest of the state against a grave and imminent peril. The state must not have contributed to the occurrence of the state of necessity and the act must not have seriously impaired an essential interest of the state towards which the obligation existed. In addition to the International Court of Justice, other international courts, including the International Tribunal for the Law of the Sea and the ICSID, have also dealt with necessity and its effects and requirements. The findings of these courts are the basis of the formulation of necessity in Draft Articles on the Responsibility of States (2001) and Draft Articles on the Responsibility of International Organizations (2011).