International law, Sixth edition
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International Law MALCOLM N. SHAW
Rainbow Warrior arbitration
119 noted that three conditions were required to be satisfied in order for this defence to be applicable to the French action in repatriating its two agents: first, the existence of exceptional circum- stances of extreme urgency involving medical and other considerations of an elementary nature, provided always that a prompt recognition of the existence of those exceptional circumstances is subsequently obtained from the other interested party or is clearly demonstrated; secondly, the re-establishment of the original situation as soon as the reasons of emer- gency invoked to justify the breach of the obligation (i.e. the repatriation) had disappeared; thirdly, the existence of a good faith effort to try to 111 Yearbook of the ILC, 1979, vol. II, p. 133. 112 ILC Commentary 2001, p. 183. 113 82 ILR, pp. 499, 551. 114 Ibid., p. 553. 115 ILC Commentary 2001, p. 189. This would not apply if the situation of distress is due wholly or partly to the conduct of the state invoking it or the act in question is likely to create a comparable or greater peril, article 24(2). 116 See above, p. 541. 117 Yearbook of the ILC, 1979, vol. II, p. 134 and ILC Commentary 2001, pp. 189–90. 118 Yearbook of the ILC, 1979, vol. II, pp. 133–5. 119 82 ILR, pp. 499, 555. 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 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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