Does necessity have an exceptional basis in international law?

Looking at international law, the concept of necessity is of extreme importance. It can be considered a rule that regulates the circumstances under which the abrogation of such an obligation is excused. It means that a State can escape its responsibilities. According to the ILC “necessity” in article 25 denotes exceptional cases where “the only way a state can safeguard an essential interest threatened by a grave and imminent peril is, for the time being, not to perform some other international obligations of lesser weight or urgency”. However, it has to be noticed that a state must accomplish the conditions narrowly defined in article 25. According to the Commentary on the Draft Articles of 2001, this justification is exceptional in a number of respects. The ICJ, for example, highlighted this exceptionality in the Gabčíkovo-Nagymaros case. It stated that: “The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis.” A more recent case is taken in consideration by the author: the German Constitutional Court conducted to a controversial decision, on Argentina, according to which a State cannot invoke a state of necessity vis-à-vis its private creditors to excuse the non-performance of contractual obligations that are governed by domestic law. According to the author the Leaving aside the decision of the German Constitutional Court could be criticized because it did not inquire whether the Argentine default engaged the international responsibility of the country, but instead adopted the dogmatic position that a state of necessity could not be accepted under any circumstances to excuse the non-performance of private law obligations of a State towards its foreign creditors. The author underlines how the general international law defense of necessity poses a very high threshold of satisfaction for debtor States seeking to invoke it in cases of insolvency, but in a policy perspective, necessity is an incomplete tool in dealing with sovereign insolvency. Looking at a practical matter, it is clear that international law remains surprisingly underdeveloped in the field of sovereign insolvency. Necessity remains a residual defense that can acquire significance in sovereign insolvency adjudication. In cases of extreme financial difficulties, States can and should be allowed to seek recourse to it.