Force Majeure and Necessity in International Law

Meaning

Force majeure and necessity are two distinct circumstances that may preclude the wrongfulness of State conduct under the law of State responsibility.

They are recognised in Articles 23 and 25 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

Both are exceptional doctrines. They do not erase the underlying international obligation; rather, where their strict requirements are satisfied, they may prevent particular conduct from being treated as wrongful in the circumstances.

The basic distinction is:

Force majeure → Performance becomes materially impossible

Necessity → Performance is possible, but violating the obligation is the only way to protect an essential interest from grave and imminent peril

Force Majeure

Meaning

Force majeure refers to a situation in which an irresistible force or an unforeseen event, beyond the control of the State, makes it materially impossible for the State to perform its international obligation.

It is governed by Article 23 ARSIWA.

The emphasis is on impossibility of performance, rather than merely on difficulty, inconvenience or increased expense.

Article 23 ARSIWA

Article 23 provides that the wrongfulness of an act of a State that is not in conformity with an international obligation is precluded where the act is due to force majeure, namely the occurrence of an irresistible force or unforeseen event beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

Essential Elements of Force Majeure

For force majeure to apply, the following elements are important:

Irresistible force or unforeseen event

↓

Beyond the State’s control

↓

Material impossibility of performance

↓

Failure to perform the obligation

↓

Wrongfulness may be precluded

Irresistible Force

The event must be sufficiently powerful or unavoidable that the State cannot reasonably prevent or overcome it.

The State must effectively be confronted with circumstances that it cannot control.

Unforeseen Event

Force majeure may arise from an event that was not reasonably foreseeable in the circumstances.

The event must have a direct connection with the inability to perform the international obligation.

Beyond the Control of the State

The event must be outside the State’s control.

A State cannot normally create the circumstances itself and then rely upon those circumstances as force majeure.

Material Impossibility

This is the central requirement.

Performance must become materially impossible.

It is not enough that performance becomes:

• difficult;
• expensive;
• politically inconvenient;
• commercially disadvantageous; or
• merely more burdensome.

There must be a genuine inability to perform the obligation in the circumstances.

Example of Force Majeure

Suppose State A is under an international obligation to deliver specified emergency assistance to State B through a particular route.

Before delivery can occur, an extraordinary and uncontrollable natural event completely destroys the relevant route and makes delivery through it physically impossible.

If there is no reasonable alternative means of performing the obligation and the requirements of Article 23 are satisfied, State A may potentially invoke force majeure.

Limitations on Force Majeure

Article 23 expressly prevents reliance on force majeure in certain situations.

State’s Own Conduct

Force majeure cannot be invoked if the situation is due, either alone or in combination with other factors, to the conduct of the State invoking it.

A State cannot deliberately or negligently create the situation and then use that situation to escape responsibility.

Assumption of Risk

Force majeure cannot be invoked where the State has assumed the risk of that situation occurring.

This prevents States from relying on a risk that they knowingly accepted as part of their conduct.

Necessity

Meaning

Necessity is another exceptional circumstance precluding wrongfulness.

It applies where a State’s conduct, although inconsistent with an international obligation, is the only way to safeguard an essential interest of the State against a grave and imminent peril, subject to the strict limitations in Article 25.

It is governed by Article 25 ARSIWA.

Unlike force majeure, necessity does not require performance to be physically impossible.

The State may technically be capable of complying with its obligation, but compliance would expose an essential interest to a grave and imminent peril.

Article 25 ARSIWA

Article 25 establishes two principal requirements.

The State must establish that:

• the act was the only way for the State to safeguard an essential interest against a grave and imminent peril; and
• the act did not seriously impair an essential interest of the State or States towards which the obligation existed, or of the international community as a whole.

Article 25 also imposes additional limitations.

Necessity cannot be invoked where:

• the international obligation excludes the possibility of invoking necessity; or
• the State has contributed to the situation of necessity.

Essential Interest

The interest being protected must be essential.

It is not sufficient that the State wants to protect an ordinary political, economic or administrative interest.

Depending upon the circumstances, an essential interest may concern matters such as:

• protection of the State’s fundamental security;
• protection of its population;
• preservation of vital environmental interests;
• other fundamental interests of the State.

Whether an interest is “essential” depends upon the circumstances and the nature of the obligation involved.

Grave and Imminent Peril

The danger must be both:

Grave

and

Imminent

A minor or speculative risk is insufficient.

The peril must represent a serious threat to the essential interest, and it must be sufficiently immediate rather than merely hypothetical or remote.

The “Only Way” Requirement

This is one of the most important limitations under Article 25.

The State must demonstrate that violating the obligation was the only way available to safeguard the essential interest.

If there was another reasonably available lawful means of dealing with the danger, reliance on necessity becomes difficult to sustain.

Thus:

Necessity is not simply the best option.

It must be the only way.

No Serious Impairment of Another Essential Interest

Even where a State faces a grave and imminent peril, its response cannot seriously impair an essential interest of:

• the State to which the obligation is owed;
• another State concerned; or
• the international community as a whole.

This creates a balancing limitation on the doctrine.

A State cannot protect its own interest by seriously destroying another equally essential interest.

State Must Not Have Contributed to the Situation

A State cannot normally invoke necessity where it has contributed to the situation of necessity.

This prevents a State from deliberately or culpably creating the dangerous situation and then using that situation to justify conduct that would otherwise breach international law.

Gabčíkovo-Nagymaros Project

The leading case on necessity is Gabčíkovo-Nagymaros Project (Hungary/Slovakia), decided by the ICJ in 1997.

Hungary relied, among other arguments, upon a state of necessity to justify its failure to perform certain treaty obligations concerning a joint river project.

The ICJ treated necessity as a doctrine subject to strict conditions.

The Court examined requirements including:

• an essential interest;
• a grave and imminent peril;
• the conduct being the only means available;
• the absence of a contribution by the State invoking necessity.

The case is therefore the principal authority for understanding Article 25 ARSIWA and necessity.

Force Majeure vs Necessity

This is one of the most important distinctions for examinations.

Force Majeure	Necessity
Article 23 ARSIWA	Article 25 ARSIWA
Performance becomes materially impossible	Performance remains possible
Caused by an irresistible force or unforeseen event	Based on protection of an essential interest
Event must be beyond State’s control	State faces grave and imminent peril
Focus is on inability to perform	Focus is on need to protect an essential interest
No reasonable possibility of overcoming the event in the circumstances	Conduct must be the only way to safeguard the interest
State must not have caused the situation	State must not have contributed to the situation
Example: physical impossibility caused by extraordinary external event	Example: exceptional action taken to protect an essential State interest

Easy Memory Trick

Force Majeure = “I cannot.”

Necessity = “I must, because there is no other way.”

Force Majeure vs Distress

Force majeure is also different from distress under Article 24.

Force Majeure	Distress
Article 23	Article 24
Makes performance materially impossible	Concerns saving human lives
Usually involves an external irresistible force or unforeseen event	Situation of immediate danger to persons
Focuses on inability to perform	Focuses on the absence of another reasonable way to save life
State conduct is affected by external circumstances	Conduct is undertaken to save the life/lives of persons

Necessity vs Distress

Necessity	Distress
Article 25	Article 24
Protects an essential interest of the State	Protects human life
Requires grave and imminent peril	Requires a situation of distress
Conduct must be the only way	There must be no other reasonable way of saving life
Broader State-level doctrine	Primarily concerned with persons in danger

Necessity vs Self-Defence

These doctrines should not be confused.

Self-defence under Article 21 ARSIWA concerns a lawful defensive response to an armed attack in conformity with the UN Charter.

Necessity under Article 25 concerns protection of an essential interest against a grave and imminent peril.

Self-Defence	Necessity
Article 21 ARSIWA	Article 25 ARSIWA
Triggered by armed attack	Triggered by grave and imminent peril
Connected with Article 51 UN Charter	General circumstance under ARSIWA
Defensive use of force	May involve conduct inconsistent with an international obligation
Necessity and proportionality are important	“Only way” and protection of essential interest are central

Relationship with Jus Cogens

Neither force majeure nor necessity can be used to override an obligation arising from a peremptory norm of general international law (jus cogens).

Article 26 ARSIWA provides that nothing in the chapter on circumstances precluding wrongfulness precludes the wrongfulness of conduct that is not in conformity with an obligation arising under a peremptory norm.

Therefore:

Force majeure ≠ justification for violating jus cogens

Necessity ≠ justification for violating jus cogens

Temporary Nature

The circumstances recognised under Articles 23 and 25 do not necessarily permanently eliminate the underlying international obligation.

They operate in relation to the specific circumstances and conduct for which their requirements are satisfied.

Once the relevant circumstances cease, the State may again be required to perform the underlying obligation.

Consequences of Invoking These Doctrines

The invocation of force majeure or necessity does not automatically mean that every legal consequence disappears.

Article 27 ARSIWA provides that invocation of a circumstance precluding wrongfulness is without prejudice to:

• compliance with the obligation in question once the circumstance has ceased; and
• the question of compensation for any material loss caused by the act.

Thus, preclusion of wrongfulness and absence of every possible consequence are not necessarily the same thing.

Simple Flowchart

Force Majeure

International obligation

↓

External irresistible force / unforeseen event

↓

Beyond State’s control

↓

Material impossibility of performance

↓

No State-created situation / no assumed risk

↓

Wrongfulness may be precluded

Necessity

International obligation

↓

Essential State interest

↓

Grave and imminent peril

↓

Violation is the only way to safeguard the interest

↓

No serious impairment of another essential interest

↓

State has not contributed to the situation

↓

Wrongfulness may be precluded

Important Case

Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

Key principle: Necessity is an exceptional and strictly limited doctrine.

Exam relevance: Article 25, essential interest, grave and imminent peril, only means available, and contribution to the situation.

Nicaragua v United States

The ICJ’s judgment in Military and Paramilitary Activities in and against Nicaragua is principally important for the law of self-defence, rather than Articles 23 or 25 specifically.

It can therefore be used to distinguish self-defence from necessity when answering a broader question on circumstances precluding wrongfulness.

Quick Revision

Article	Rule	Key phrase
23	Force majeure	Material impossibility
24	Distress	Saving human lives
25	Necessity	Only way to protect an essential interest
26	Jus cogens	No justification for violating peremptory norms
27	Consequences	Preclusion does not necessarily remove every consequence

Force Majeure

Article 23

• irresistible force or unforeseen event;
• beyond State’s control;
• material impossibility;
• State must not have caused the situation;
• State must not have assumed the risk.

Necessity

Article 25

• essential interest;
• grave and imminent peril;
• conduct is the only way;
• no serious impairment of another essential interest;
• obligation does not exclude necessity;
• State has not contributed to the situation.

Key Exam Points

• Force majeure is governed by Article 23 ARSIWA.
• Necessity is governed by Article 25 ARSIWA.
• Force majeure is based on material impossibility of performance.
• Necessity is based on protection of an essential interest.
• Necessity requires a grave and imminent peril.
• Under Article 25, the conduct must be the only way to safeguard the essential interest.
• A State cannot rely on force majeure if the situation is due to its own conduct or if it assumed the risk.
• A State cannot invoke necessity if it contributed to the situation of necessity.
• Article 26 prevents these circumstances from justifying violations of jus cogens.
• Article 27 addresses the consequences of invoking a circumstance precluding wrongfulness.
• Gabčíkovo-Nagymaros Project is the leading case on necessity.
• Remember the simplest distinction: Force majeure = impossibility; Necessity = exceptional need.

Conclusion

Force majeure and necessity are important but narrowly confined exceptions within the law of State responsibility. Force majeure addresses situations in which an external and uncontrollable event makes performance of an international obligation materially impossible. Necessity, by contrast, applies where a State faces a grave and imminent peril to an essential interest and violating the obligation is the only way to safeguard that interest.

Neither doctrine provides a general escape from international obligations. Their strict conditions, together with the limitations imposed by Articles 23–27 ARSIWA, ensure that they remain exceptional.

The most important distinction for examinations is:

Force majeure → “Performance is impossible.”

Necessity → “Performance is possible, but this is the only way to protect an essential interest from grave and imminent peril.”