Circumstances Precluding Wrongfulness, and Reparation

In one line

Six circumstances excuse conduct that would otherwise be wrongful; where none applies, the responsible State must stop, must not do it again, and must make full reparation.

In the wording a student can write in an exam: the wrongfulness of an act may be precluded by consent, self-defence, countermeasures, force majeure, distress or necessity, none of which may excuse a breach of a peremptory norm. Where responsibility is established, the responsible State remains under a duty to perform, must cease the wrongful act and offer assurances of non-repetition, and must make full reparation by restitution, compensation or satisfaction, singly or in combination.

The six circumstances precluding wrongfulness

They are not defences in the sense of denying the breach. They are circumstances in which conduct that would otherwise be a breach is not wrongful while they last.

Article 20: consent. Valid consent by a State to the commission of a given act by another precludes wrongfulness in relation to that State to the extent that the act remains within the limits of the consent. Consent given after the act is a waiver, which is different.

Article 21: self-defence. The wrongfulness of an act is precluded if it is a lawful measure of self-defence taken in conformity with the Charter. The content of that is [The Use of Force and Collective Security].

Article 22: countermeasures. Wrongfulness is precluded if the act constitutes a countermeasure taken against the responsible State in accordance with articles 49 to 54, which are set out below.

Article 23: force majeure. The occurrence of an irresistible force or an unforeseen event beyond the control of the State, making it materially impossible in the circumstances to perform. It does not apply if the situation is due, alone or in combination with other factors, to the conduct of the State invoking it, or if the State has assumed the risk.

Article 24: distress. Where the author of the act has no other reasonable way, in a situation of distress, of saving his life or the lives of persons entrusted to his care. A pilot landing without permission to save his passengers is the standard example. The same two exclusions apply.

Article 25: necessity. The narrowest and the most litigated. Necessity may not be invoked unless the act 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. And it may not be invoked if the international obligation excludes it or if the State has contributed to the situation of necessity.

Article 26 is the limit on all six: nothing precludes the wrongfulness of any act which is not in conformity with an obligation arising under a peremptory norm of general international law. No consent, no distress and no necessity excuses genocide.