International law, Sixth edition
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International Law MALCOLM N. SHAW
Force majeure has long been accepted as precluding wrongfulness,
106 although the standard of proof is high. In the Serbian Loans case, 107 for example, the Court declined to accept the claim that the First World War had made it impossible for Serbia to repay a loan. In 1946, following a number of unauthorised flights of US aircraft over Yugoslavia, both states agreed that only in cases of emergency could such entry be justified in the absence of consent. 108 Article 23 of the ILC Articles provides for the preclusion of wrongfulness where the act was due to the occurrence of an irresistible force or of an unforeseen event beyond the control of the state, making it materially impossible in the circumstances to perform obligation. 109 In the Gill case, 110 for example, a British national residing in Mexico had his house destroyed as a result of sudden and unforeseen action by opponents of the Mexican government. The Commission held that failure to prevent the act was due not to negligence but to genuine inability to take action in the face of a sudden situation. The emphasis, therefore, is upon the happening of an event that takes place without the state being able to do anything to rectify the event or avert its consequences. There had to be a constraint which the state was 104 See ILC Commentary 2001, p. 345. 105 Ibid., p. 349. 106 See e.g. Yearbook of the ILC, 1961, vol. II, p. 46 and ILC Commentary 2001, p. 183. 107 PCIJ, Series A, No. 20, 1929, p. 39. See also the Brazilian Loans case, PCIJ, Series A, No. 20, 1929, p. 120; 5 AD, p. 466. 108 Yearbook of the ILC, 1979, vol. II, p. 60 and ILC Commentary 2001, pp. 189–90. This example would cover both force majeure and distress (discussed below). Note also that article 18(2) provides that stopping and anchoring by ships during their passage through the territorial sea of another state is permissible where rendered necessary by distress or force majeure. See also article 14(3) of the Convention on the Territorial Sea and Contiguous Zone, 1958. 109 However, this principle does not apply if the situation of force majeure is due wholly or partly to the conduct of the state invoking it or the state has assumed the risk of that situation occurring, article 23(2). See also Libyan Arab Foreign Investment Company v. Republic of Burundi 96 ILR, pp. 279, 318. 110 5 RIAA, p. 159 (1931); 6 AD, p. 203. s tat e r e s p o n s i b i l i t y 797 unable to avoid or to oppose by its own power. 111 In other words, the conduct of the state is involuntary or at least involves no element of free choice. 112 The issue of force majeure was raised by France in the Rainbow Warrior arbitration in 1990. 113 It was argued that one of the French agents repatri- ated to France without the consent of New Zealand had to be so moved as a result of medical factors which amounted to force majeure. The Tri- bunal, however, stressed that the test of applicability of this doctrine was one of ‘absolute and material impossibility’ and a circumstance render- ing performance of an obligation more difficult or burdensome did not constitute a case of force majeure. 114 Article 24 provides that wrongfulness is precluded if the author of the conduct concerned had no other reasonable way in a situation of distress of saving the author’s life or the lives of other persons entrusted to his care. 115 This would cover, for example, the agreement in the 1946 US–Yugoslav correspondence that only in an emergency would unauthorised entry into foreign airspace be justified, 116 or the seeking of refuge in a foreign port without authorisation by a ship’s captain in storm conditions. 117 The difference between distress and force majeure is that in the former case there is an element of choice. This is often illusory since in both cases extreme peril exists and whether or not the situation provides an oppor- tunity for real choice is a matter of some difficulty. 118 The Tribunal in the Download 7.77 Mb. Do'stlaringiz bilan baham: |
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