Volume 3 Contents

Articles
1. State of Necessity as a Justification for Internationally Wrongful Conduct by Roman Boed
   
   Can the safeguard of essential state interests, such as national development, social stability, non-interrupted provision of essential services or environmental protection, ever legally justify a State's violation of internationally protected human rights? United Nations legal officer Roman Boed warns that current understandings of the doctrine of necessity in international law could justify such a breach. Developed by Grotius in the seventeenth century, the concept of a "state of necessity" as a valid justification for breach of international legal obligations has been applied by international tribunals through the centuries and has recently been codified by the International Law Commission (ILC) in article 33 of its Draft Articles of State Responsibility. Premised on a balancing test between the individualized interests of two states, article 33 permits the invocation of necessity where an essential interest of a State is faced with grave and imminent peril, the essential interest outweighs the interest of a third-party State in non-breach, an no other means of safeguarding the essential interest is available. Boed argues that the current construction of draft article 33 skews the necessity balancing test in favor of breach where human rights are involved by misrepresenting the multilateral or erga omnes character of such obligations. While "necessity" may function as a legitimate "safety value" for protecting States' essential interests in the context of discrete breaches of international human rights law in the mid-twentieth century demands the reformulation of the necessity calculus to better account for the community interest in safeguarding human rights. Applying the necessity balancing test to a practical example of a State closing its borders to a large-scale influx of asylum-seekers, Boed demonstrates that the necessity doctrine, as understood by the ILC and the International Court of Justice, could be used to absolve a State of responsibility for breach of its international duty of non-refoulement. To avoid - or at least substantially limit - this and similar outcoumes, Boed urges the adoption of a proposed change to draft article 33 that would preclude resort to the necessity doctrine where erga omnes and multilateral human rights obligations established for the protection of the general interest are involved. Such a reformulation, Boed argues, is essential to prevent perverse outcomes in international human rights law and to bring the doctrine of necessity up to date with contemporary international law, which increasingly contains multilateral and erga omnes obligations. Boed concludes that such a reformulation must be accompanied by efforts to develop international burden-sharing mechanisms that allow the entire community of States to assist individual States to comply with their international obligations without harm to their essential interests. Human rights and development may thus be pursued complementarily, with one never justifying breach of the other.
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2. Toward the African Court on Human and Peoples' Rights: Better Late than Never by Nsongurua J. Udombana
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3. Guatemala's Peace Accords in a Free Trade Area of the Americas by Gus Van Harten
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   New Developments
4. The World Bank's Draft Comprehensive Development Framework and the Micro-Paradigm of Law and Development by Richard Cameron Blake
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5. Debt Relief in 1999: Only One Step on a Long Journey by Eric A. Friedman
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