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date: 03 June 2020

Abstract and Keywords

This article explores the historical development of the necessity and force majeure doctrines. It focuses on the development of the International Law Commission's (ILC) project on State Responsibility, which culminated in the ILC's adoption of draft articles, including articles on the state of necessity and force majeure. It discusses in detail the elements of a necessity defence primarily through the lens of five recent cases. It examines the possibility of States' raising treaty-based defences on the grounds of ‘essential security interests’ or maintaining ‘public order’. It details the elements of a force majeure defence and addresses whether exculpatory provisions should be viewed as self-judging. This article explores the effects of a successful invocation of a necessity or force majeure defence, including whether compensation is due in the event of a successful plea. A concluding section assesses the state of the jurisprudence and outlines some of the open questions future tribunals will confront in necessity and force majeure cases.

Keywords: force majeure, International Law Commission, defence, jurisprudence, public order

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