798
i n t e r nat i o na l l aw
obtain the consent of New Zealand according to the terms of the 1986
Agreement.
120
It was concluded that France had failed to observe these
conditions (except as far as the removal of one of the agents on medical
grounds was concerned).
Article 25 provides that necessity may not be invoked unless the act was
the only means for the state to safeguard an essential interest against a
‘grave and imminent peril’ and the act does not seriously impair an essen-
tial interest of the other state or states or of the international community as
a whole. Further, necessity may not be invoked if the international obliga-
tion in question excludes the possibility or the state has itself contributed
to the situation of necessity.
121
An example of this kind of situation is pro-
vided by the
Torrey Canyon
,
122
where a Liberian oil tanker went aground
off the UK coast but outside territorial waters, spilling large quantities of
oil. After salvage attempts, the UK bombed the ship. The ILC took the
view that this action was legitimate in the circumstances because of a state
of necessity.
123
It was only after the incident that international agreements
were concluded dealing with this kind of situation.
124
The Tribunal in the
Rainbow Warrior
case took the view that the de-
fence of state necessity was ‘controversial’.
125
However, the International
Court in the
Gabˇc´ıkovo–Nagymaros Project
case considered that it was
‘a ground recognised in customary international law for precluding the
wrongfulness of an act not in conformity with an international obli-
gation’, although it could only be accepted ‘on an exceptional basis’.
126
The Court referred to the conditions laid down in an earlier version of,
and essentially reproduced in, article 25 and stated that such conditions
must be cumulatively satisfied.
127
In
M/V Saiga
(
No. 2
), the International
120
See above, p. 779.
121
See ILC Commentary 2001, p. 194.
122
Cmnd 3246, 1967. See also below, chapter 15, p. 900, note 322.
123
Yearbook of the ILC
, 1980, vol. II, p. 39. See also the
Company General of the Orinoco
case,
10 RIAA, p. 280.
124
See e.g. the International Convention Relating to Intervention on the High Seas in Cases
of Oil Pollution Casualties, 1969.
125
82 ILR, pp. 499, 554–5. The doctrine has also been controversial in academic writings: see
Yearbook of the ILC
, 1980, vol. II, part 1, pp. 47–9. See also J. Barboza, ‘Necessity (Revisited)
in International Law’ in
Essays in Honour of Judge Manfred Lachs
(ed. J. Makarczyk), The
Hague, 1984, p. 27, and R. Boed, ‘State of Necessity as a Justification for Internationally
Wrongful Conduct’, 3
Yale Human Rights and Development Journal
, 2000, p. 1.
126
ICJ Reports, 1997, pp. 7, 40; 116 ILR, p. 1. See also
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