Studies On The Legal Issues Of Invoking The Necessity To Exempt National Responsibility

In the early days,the theoretical circles held a negative attitude towards whether the Necessity can be used as the defense basis for the exemption of state responsibility for a long time to prevent the Necessity from being abused by some countries.Necessity,as one of the circumstances precluding the wrongfulness of state acts,may be invoked by the parties to assert an exemption from state responsibility under specified circumstances with the consideration and adoption of the Draft Articles on Responsibility of States for Internationally Wrongful Acts（hereinafter referred to as the Draft Articles on State Responsibility）in article 25 of chapter V,"Circumstances for the Discharge of wrongful Acts",by the International Law Commission at its fifty-third session in 2001.Necessity refers to the necessary actions taken by the state to deal with or eliminate this crisis when its essential interest are grave and imminent in danger.From the concept and legal basis of state responsibility exemption,this paper focuses on the Necessity according to which state responsibility is exempted.The essentials of the Necessity are analyzed one by one and the main legal practice is sorted out to study the legal issues related to the Necessity.In an emergency where state responsibility is exempted,objective conditions need to be met at the same time,that is,the interests to be protected are the essential interest of the state concerned,grave and imminent danger exist,the action taken in violation to international obligations is unique,and the essential interest of the object of the obligation shall not be seriously harmed.Studies on legal issues involves: First,whether social emergencies are within the scope of Necessity.Social emergencies that can be classified into Necessity are characterized by urgency in situation,uniqueness in solutions,and priority in interests protected through summing up the characteristics of social emergencies in the general sense and combing the existing disputes about the classification of social emergencies into Necessity.In addition,suggestions for resolving disputes are put forward.Second,for the situation where the parties can choose to invoke Necessity or Force Majeure to defend.For the defense reasons chosen by the state concerned to be supported,this paper aims that guidance on the defense situations for the parties in specific cases can be provided through clarifying the legal nature,criteria,and consequences of emergency and Force Majeure.In addition,the legal advice on how to choose Necessity or Force Majeure to defend in the case of concurrence is put forward to provide some help for the parties according to the characteristics of Necessity or Force Majeure.Third,to ensure that Necessity was not abused by powerful states,set stricter applicable standards for the invocation of Necessity than for other situations.Except as expressly provided for in article 25,no emergency shall be invoked as a defense against humanitarian intervention by the international community.Moreover,it has been agreed that the Military Necessity is not a Necessity.