Circumstances Precluding Wrongfulness

Meaning of Circumstances Precluding Wrongfulness

Under the law of State responsibility, conduct that would ordinarily amount to a breach of an international obligation may, in certain exceptional situations, not be considered wrongful.

These situations are known as circumstances precluding wrongfulness.

They are dealt with in Articles 20–27 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

The basic idea is:

Normally wrongful conduct + recognised legal circumstance = wrongfulness may be precluded

However, these circumstances are exceptional and cannot be used freely by States to avoid their international obligations.

Circumstances Recognised under ARSIWA

ARSIWA recognises six principal circumstances precluding wrongfulness:

Article	Circumstance
Article 20	Consent
Article 21	Self-defence
Article 22	Countermeasures
Article 23	Force majeure
Article 24	Distress
Article 25	Necessity

Article 26 is also extremely important because none of these circumstances can justify conduct that violates an obligation arising under a peremptory norm of general international law (jus cogens).

Article 27 deals with the consequences of invoking these circumstances.

Article 20 – Consent

Under Article 20 ARSIWA, valid consent by a State to the commission of a particular act by another State precludes the wrongfulness of that act in relation to the consenting State, to the extent that the act remains within the limits of that consent.

Conditions of Valid Consent

Consent must be:

• valid
• given by the State concerned
• directed towards the particular conduct
• within the authority of the State’s competent representatives
• limited to the scope of the consent actually given

The conduct must also remain within the limits of that consent.

Example

State A permits State B to enter its territory temporarily for a specific military exercise.

If State B enters the territory for the authorised exercise, State A ordinarily cannot characterise that particular entry as a violation of its territorial sovereignty.

But if State B uses the permission to conduct an entirely different military operation, it has gone beyond the consent.

Important Point

Consent does not provide a general licence to violate international law.

It only precludes wrongfulness to the extent that the conduct falls within the valid consent.

Article 21 – Self-Defence

Article 21 ARSIWA provides that the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

Self-defence is therefore connected directly with the UN Charter framework.

The principal Charter provision is Article 51 of the UN Charter, which recognises the inherent right of individual or collective self-defence in response to an armed attack.

Conditions of Self-Defence

Self-defence must comply with the requirements of international law, including:

• existence of an armed attack in circumstances where the right of self-defence arises;
• necessity;
• proportionality;
• compliance with applicable rules of international law.

Nicaragua v United States

In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), the ICJ examined the customary international law of self-defence and emphasised the importance of the requirements of necessity and proportionality.

The case is one of the most important authorities for understanding self-defence under international law.

Important Point

Article 21 does not make every act described by a State as “self-defence” lawful.

The measure must actually constitute lawful self-defence under the applicable international rules.

Article 22 – Countermeasures

Under Article 22 ARSIWA, the wrongfulness of an act of a State that does not conform to an international obligation owed to another State is precluded when and to the extent that the act constitutes a lawful countermeasure taken against that other State.

Countermeasures are therefore a response to a prior internationally wrongful act by another State.

Purpose of Countermeasures

The principal purpose of countermeasures is to induce the responsible State to:

• comply with its international obligations,
• cease the wrongful conduct where appropriate, and
• fulfil its obligations of reparation.

They are not intended to constitute punishment.

Conditions for Lawful Countermeasures

The rules governing countermeasures are developed principally in Articles 49–54 ARSIWA.

Important requirements include:

• there must generally be a prior internationally wrongful act by the target State;
• countermeasures must be directed against the responsible State;
• they must be proportionate;
• certain obligations cannot be affected;
• countermeasures must generally be preceded by a demand for compliance and relevant procedural steps;
• they must cease when the responsible State complies with the relevant obligations.

Example

State A unlawfully seizes State B’s property in violation of an international obligation.

State B may, subject to the strict rules governing countermeasures, take otherwise unlawful measures against State A to induce compliance.

The countermeasure does not become a general permission to violate international law.

Article 23 – Force Majeure

Article 23 ARSIWA deals with force majeure.

Wrongfulness may be precluded when an act is caused by an irresistible force or an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

Essential Requirements

Force majeure generally requires:

Irresistible force or unforeseen event

↓

Beyond the State’s control

↓

Material impossibility of performance

↓

Failure to perform the obligation

If these requirements are satisfied, wrongfulness may be precluded.

Example

A State is legally required to provide assistance to another State but an extraordinary natural event completely destroys the only means through which the assistance can physically be delivered.

If the event genuinely makes performance materially impossible and satisfies Article 23, the State may invoke force majeure.

When Force Majeure Cannot Be Invoked

Article 23 excludes reliance on force majeure where:

• the situation is due to the conduct of the State invoking it; or
• the State has assumed the risk of that situation occurring.

Force Majeure vs Necessity

These are often confused.

Force majeure: Performance is materially impossible.

Necessity: Performance is possible, but necessary to protect an essential interest against a grave and imminent peril.

Article 24 – Distress

Under Article 24 ARSIWA, wrongfulness may be precluded where the author of the act has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.

The provision is primarily concerned with situations where human life is immediately at risk.

Conditions

The State must establish that:

• the person responsible for the conduct was acting in a situation of distress;
• there was no other reasonable way of saving life;
• the conduct was directed towards saving life;
• the circumstances did not result from the State’s own conduct in the relevant circumstances.

Example

An aircraft is forced to land in another State’s territory because continuing the flight would endanger the lives of everyone aboard.

The emergency landing may otherwise technically violate territorial rules, but the circumstances may fall within the principle of distress.

Distress vs Necessity

Distress	Necessity
Primarily concerns saving human lives	Concerns protection of an essential State interest
Usually involves immediate danger to persons	Involves grave and imminent peril to an essential interest
Article 24	Article 25
Focus is on the person/persons in danger	Focus is on the State’s essential interest

Article 25 – Necessity

Article 25 ARSIWA is one of the most carefully restricted circumstances precluding wrongfulness.

A State may invoke necessity only when the conduct:

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

Conditions for Necessity

The main requirements can be remembered as:

Essential interest

Grave and imminent peril

Only way

No serious impairment of another essential interest

Necessity Is Exceptional

Necessity is not available simply because compliance with an international obligation is:

• inconvenient,
• expensive,
• politically difficult, or
• contrary to a State’s ordinary interests.

The threshold is deliberately high.

Additional Restrictions

Under Article 25, necessity cannot be invoked where:

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

Gabčíkovo-Nagymaros Project

In Gabčíkovo-Nagymaros Project (Hungary/Slovakia), the ICJ examined Hungary’s reliance on the state of necessity.

The Court treated necessity as a strictly limited doctrine and considered requirements including the existence of an essential interest, grave and imminent peril, and whether the conduct was the only means available.

Exam point:
The case is a leading authority on Article 25 / necessity.

Article 26 – Compliance with Peremptory Norms

Article 26 ARSIWA establishes an important limitation:

Nothing in Chapter V of the Articles precludes the wrongfulness of any act which is not in conformity with an obligation arising under a peremptory norm of general international law.

In other words, a State cannot rely upon the circumstances in Articles 20–25 to justify violating a jus cogens obligation.

Examples of Jus Cogens Norms

The precise content of jus cogens continues to develop, but examples commonly recognised in international law include prohibitions against:

• genocide,
• slavery,
• torture,
• aggression in the relevant sense,
• racial discrimination/apartheid.

Importance

Article 26 creates a higher-level limitation on the circumstances precluding wrongfulness.

No consent, self-defence, countermeasure, force majeure, distress or necessity can justify conduct contrary to a peremptory norm.

Article 27 – Consequences of Invoking a Circumstance

Article 27 clarifies that invoking a circumstance precluding wrongfulness does not necessarily eliminate every legal consequence.

In particular, it does not prejudice:

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

Therefore, preclusion of wrongfulness should not automatically be understood as meaning that every possible consequence disappears.

Circumstances Precluding Wrongfulness vs Breach

These concepts should be distinguished carefully.

Normally:

International obligation exists

↓

State conduct is attributable

↓

Conduct is inconsistent with obligation

↓

Breach

But where a valid circumstance precluding wrongfulness applies:

Conduct inconsistent with obligation

↓

Recognised circumstance applies

↓

Wrongfulness is precluded

The circumstances therefore operate as exceptions to wrongfulness, subject to their strict conditions.

Circumstances Precluding Wrongfulness vs Excuse

There is an important conceptual distinction.

A circumstance precluding wrongfulness does not necessarily mean that the State’s conduct was ideal or that the underlying obligation disappeared.

Rather, the circumstances may prevent the conduct from being treated as wrongful for the relevant period and circumstances.

This is why Articles 20–27 must be read carefully alongside the underlying primary obligation.

Comparison of All Circumstances

Article	Circumstance	Core idea
20	Consent	Valid consent removes wrongfulness within its scope
21	Self-defence	Lawful self-defence under the UN Charter
22	Countermeasures	Lawful response to another State’s prior wrongful act
23	Force majeure	External event makes performance materially impossible
24	Distress	No reasonable alternative to save lives
25	Necessity	Only way to protect an essential interest from grave and imminent peril
26	Jus cogens limitation	No justification for violating a peremptory norm
27	Consequences	Invoking the circumstance does not necessarily eliminate all consequences

Important Cases

Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

Key principle: Necessity is subject to strict requirements and cannot be invoked merely because compliance with an obligation has become difficult.

Exam use: Article 25 and the doctrine of necessity.

Military and Paramilitary Activities in and against Nicaragua

Key principle: Self-defence must comply with the requirements of international law, particularly necessity and proportionality.

Exam use: Article 21 and self-defence.

United States Diplomatic and Consular Staff in Tehran

The case demonstrates the importance of international obligations concerning diplomatic and consular relations and State responsibility for violations of those obligations.

Exam use: State responsibility and breach; useful for understanding the broader framework in which circumstances precluding wrongfulness operate.

Easy Flowchart for Examination

Conduct of State

↓

Conduct appears inconsistent with an international obligation

↓

Is a circumstance precluding wrongfulness applicable?

↓

Consent? → Article 20

Self-defence? → Article 21

Countermeasure? → Article 22

Force majeure? → Article 23

Distress? → Article 24

Necessity? → Article 25

↓

Does the conduct violate jus cogens?

Yes → Article 26 prevents reliance on these circumstances

↓

If valid circumstance applies

↓

Wrongfulness is precluded

↓

Consider Article 27 and other applicable consequences

Quick Revision

• Circumstances precluding wrongfulness are contained in Articles 20–27 ARSIWA.
• Article 20 — Consent
• Article 21 — Self-defence
• Article 22 — Countermeasures
• Article 23 — Force majeure
• Article 24 — Distress
• Article 25 — Necessity
• Article 26 — Jus cogens limitation
• Article 27 — Consequences of invoking the circumstances
• Consent must be valid and within its scope.
• Self-defence must comply with the UN Charter and international law.
• Countermeasures respond to a prior internationally wrongful act.
• Force majeure involves material impossibility of performance.
• Distress concerns situations involving the saving of lives.
• Necessity requires an essential interest, grave and imminent peril, and the conduct being the only way to safeguard that interest.
• A State cannot invoke these circumstances to justify violation of a jus cogens norm.
• Gabčíkovo-Nagymaros is the leading case on necessity.
• Nicaragua v United States is a leading case on self-defence.

Conclusion

Circumstances precluding wrongfulness form an important part of the law of State responsibility because they recognise that conduct which would ordinarily violate an international obligation may, in exceptional circumstances, not be treated as wrongful.

However, these doctrines are narrow exceptions, not general defences available whenever a State finds compliance difficult. The strict requirements attached to consent, self-defence, countermeasures, force majeure, distress and necessity reflect the importance of maintaining the binding character of international obligations.

For examinations, the central framework is:

Articles 20–25 → Six circumstances

Article 26 → Jus cogens limitation

Article 27 → Consequences

Gabčíkovo-Nagymaros → Necessity

Nicaragua → Self-defence