82 Report of the International Law Commission on the work of its fifty-third session (8) In Société commerciale de Belgique,383 the Greek Government owed money to a Belgian company under two arbitral awards. Belgium applied to PCIJ for a declaration that the Greek Government, in refusing to carry out the awards, was in breach of its international obligations. The Greek Government pleaded the country’s serious budgetary and monetary situation.384 The Court noted that it was not within its mandate to declare whether the Greek Government was justified in not executing the arbitral awards. However, the Court implicitly accepted the basic principle, on which the two parties were in agreement.385 (9) In March 1967 the Liberian oil tanker Torrey Canyon went aground on submerged rocks off the coast of Cornwall outside British territorial waters, spilling large amounts of oil which threatened the English coastline. After various remedial attempts had failed, the British Government decided to bomb the ship to burn the remaining oil. This operation was carried out successfully. The British Government did not advance any legal justification for its conduct, but stressed the existence of a situation of extreme danger and claimed that the decision to bomb the ship had been taken only after all other means had failed.386 No international protest resulted. A convention was subsequently concluded to cover future cases where intervention might prove necessary to avert serious oil pollution.387 (10) In the “Rainbow Warrior” arbitration, the arbitral tribunal expressed doubt as to the existence of the excuse of necessity. It noted that the Commission’s draft article “allegedly authorizes a State to take unlawful action invoking a state of necessity” and described the Commission’s proposal as “controversial”.388 (11) By contrast, in the Gabčíkovo-Nagymaros Project case, ICJ carefully considered an argument based on the Commission’s draft article (now article 25), expressly accepting the principle while at the same time rejecting its invocation in the circumstances of that case. As to the 383 Société commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 160. 384 P.C.I.J., Series C, No. 87, pp. 141 and 190; study prepared by the Secretariat (footnote 345 above), para. 278. See generally paragraphs 276–287 for the Greek arguments relative to the state of necessity. 385 See footnote 383 above; and the study prepared by the Sec-retariat (footnote 345 above), para. 288. See also the Serbian Loans case, where the positions of the parties and the Court on the point were very similar (footnote 355 above); the French Company of Venezuelan Railroads case (footnote 178 above) p. 353; and the study prepared by the Secretariat (footnote 345 above), paras. 263–268 and 385–386. In his separate opinion in the Oscar Chinn case, Judge Anzilotti accepted the principle that “necessity may excuse the non-observance of international obligations”, but denied its applicability on the facts (Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65, at pp. 112–114). 386 The “Torrey Canyon”, Cmnd. 3246 (London, HM Stationery Office, 1967). 387 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. 388 “Rainbow Warrior” (see footnote 46 above), p. 254. In Libyan Arab Foreign Investment Company and The Republic of Burundi (see footnote 358 above), p. 319, the tribunal declined to comment on the appropriateness of codifying the doctrine of necessity, noting that the measures taken by Burundi did not appear to have been the only means of safeguarding an essential interest “against a grave and imminent peril”. principle itself, the Court noted that the parties had both relied on the Commission’s draft article as an appropriate formulation, and continued: The Court considers ... 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. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words ... Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met. ... In the present case, the following basic conditions ... are relevant: it must have been occasioned by an “essential interest” of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a “grave and imminent peril”; the act being challenged must have been the “only means” of safeguarding that interest; that act must not have “seriously impair[ed] an essential interest” of the State towards which the obligation existed; and the State which is the author of that act must not have “contributed to the occurrence of the state of necessity”. Those conditions reflect customary international law. 389 (12) The plea of necessity was apparently an issue in the Fisheries Jurisdiction case.390 Regulatory measures taken to conserve straddling stocks had been taken by the Northwest Atlantic Fisheries Organization (NAFO) but had, in Canada’s opinion, proved ineffective for various reasons. By the Coastal Fisheries Protection Act 1994, Canada declared that the straddling stocks of the Grand Banks were “threatened with extinction”, and asserted that the purpose of the Act and regulations was “to enable Canada to take urgent action necessary to prevent further destruction of those stocks and to permit their rebuilding”. Canadian officials subsequently boarded and seized a Spanish fishing ship, the Estai, on the high seas, leading to a conflict with the European Union and with Spain. The Spanish Government denied that the arrest could be justified by concerns as to conservation “since it violates the established provisions of the NAFO Convention [Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries] to which Canada is a party”.391 Canada disagreed, asserting that “the arrest of the Estai was necessary in order to put a stop to the overfishing of Greenland halibut by Spanish fishermen”.392 The Court held that it had no jurisdiction over the case.393 389 Gabčíkovo-Nagymaros Project (see footnote 27 above), pp. 40– 41, paras. 51–52. 390 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432. 391 Ibid., p. 443, para. 20. For the European Community protest of 10 March 1995, asserting that the arrest “cannot be justified by any means”, see Memorial of Spain (Jurisdiction of the Court), I.C.J. Pleadings, Fisheries Jurisdiction (Spain v. Canada), p. 17, at p. 38, para. 15. 392 Fisheries Jurisdiction (see footnote 390 above), p. 443, para. 20. See also the Canadian Counter-Memorial (29 February 1996), I.C.J. Pleadings (footnote 391 above), paras. 17–45. 393 By an Agreed Minute between Canada and the European Community, Canada undertook to repeal the regulations applying the 1994 Act to Spanish and Portuguese vessels in the NAFO area and to release the Estai. The parties expressly maintained “their respective positions on the conformity of the amendment of 25 May 1994 to Canada’s Coastal Fisheries Protection Act, and subsequent regulations, with customary international law and the NAFO Convention” and reserved “their ability to preserve and defend their rights in conformity with international law”. See Canada-European Community: Agreed Minute on the Con-