State responsibility ness. It has been invoked by States and has been dealt with by a number of international tribunals. In these cases the plea of necessity has been accepted in principle, or at least not rejected. (4) In an Anglo-Portuguese dispute of 1832, the Portuguese Government argued that the pressing necessity of providing for the subsistence of certain contingents of troops engaged in quelling internal disturbances had justified its appropriation of property owned by British subjects, notwithstanding a treaty stipulation. The British Government was advised that: the Treaties between this Country and Portugal are [not] of so stubborn and unbending a nature, as to be incapable of modification under any circumstances whatever, or that their stipulations ought to be so strictly adhered to, as to deprive the Government of Portugal of the right of using those means, which may be absolutely and indispensably necessary to the safety, and even to the very existence of the State. The extent of the necessity, which will justify such an appropriation of the Property of British Subjects, must depend upon the circumstances of the particular case, but it must be imminent and urgent.374 (5) The “Caroline” incident of 1837, though frequently referred to as an instance of self-defence, really involved the plea of necessity at a time when the law concerning the use of force had a quite different basis than it has at present. In that case, British armed forces entered United States territory and attacked and destroyed a vessel owned by United States citizens which was carrying recruits and military and other material to Canadian insurgents. In response to the protests by the United States, the British Minister in Washington, Fox, referred to the “necessity of self-defence and self-preservation”; the same point was made by counsel consulted by the British Government, who stated that “the conduct of the British Authorities” was justified because it was “absolutely necessary as a measure of precaution”.375 Secretary of State Webster replied to Minister Fox that “nothing less than a clear and absolute necessity can afford ground of justification” for the commission “of hostile acts within the territory of a Power at Peace”, and observed that the British Government must prove that the action of its forces had really been caused by “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”.376 In his message to Congress of 7 December 1841, President Tyler reiterated that: This Government can never concede to any foreign Government the power, except in a case of the most urgent and extreme necessity, of invading its territory, either to arrest the persons or destroy the property of those who may have violated the municipal laws of such foreign Government.”377 The incident was not closed until 1842, with an exchange of letters in which the two Governments agreed that “a strong overpowering necessity may arise when this great principle may and must be suspended”. “It must be so”, 374 Lord McNair, ed., International Law Opinions (Cambridge University Press, 1956), vol. II, Peace, p. 232. 375 See respectively W. R. Manning, ed., Diplomatic Correspondence of the United States: Canadian Relations 1784–1860 (Washington, D.C., Carnegie Endowment for International Peace, 1943), vol. III, p. 422; and Lord McNair, ed., International Law Opinions (footnote 374 above), p. 221, at p. 228. 376 British and Foreign State Papers, 1840–1841 (London, Ridgway, 1857), vol. 29, p. 1129. 377 Ibid., 1841–1842, vol. 30, p. 194. 81 added Lord Ashburton, the British Government’s ad hoc envoy to Washington, “for the shortest possible period during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits imposed by that necessity”.378 (6) In the Russian Fur Seals controversy of 1893, the “essential interest” to be safeguarded against a “grave and imminent peril” was the natural environment in an area not subject to the jurisdiction of any State or to any international regulation. Facing the danger of extermination of a fur seal population by unrestricted hunting, the Russian Government issued a decree prohibiting sealing in an area of the high seas. In a letter to the British Ambassador dated 12 February (24 February) 1893, the Russian Minister for Foreign Affairs explained that the action had been taken because of the “absolute necessity of immediate provisional measures” in view of the imminence of the hunting season. He “emphasize[d] the essentially precautionary character of the above-mentioned measures, which were taken under the pressure of exceptional circumstances”379 and declared his willingness to conclude an agreement with the British Government with a view to a longer-term settlement of the question of sealing in the area. (7) In the Russian Indemnity case, the Government of the Ottoman Empire, to justify its delay in paying its debt to the Russian Government, invoked among other reasons the fact that it had been in an extremely difficult financial situation, which it described as “force majeure” but which was more like a state of necessity. The arbitral tribunal accepted the plea in principle: The exception of force majeure, invoked in the first place, is arguable in international public law, as well as in private law; international law must adapt itself to political exigencies. The Imperial Russian Government expressly admits ... that the obligation for a State to execute treaties may be weakened “if the very existence of the State is endangered, if observation of the international duty is ... self-destructive”.380 It considered, however, that: It would be a manifest exaggeration to admit that the payment (or the contracting of a loan for the payment) of the relatively small sum of 6 million francs due to the Russian claimants would have imperilled the existence of the Ottoman Empire or seriously endangered its internal or external situation.381 In its view, compliance with an international obligation must be “self-destructive” for the wrongfulness of the conduct not in conformity with the obligation to be precluded.382 378 Ibid., p. 195. See Secretary of State Webster’s reply on page 201. Ibid., 1893–1894 (London, HM Stationery Office, 1899), vol. 86, p. 220; and the study prepared by the Secretariat (see footnote 345 above), para. 155. 380 See footnote 354 above; see also the study prepared by the Secretariat (footnote 345 above), para. 394. 381 Ibid. 382 A case in which the parties to the dispute agreed that very serious financial difficulties could justify a different mode of discharging the obligation other than that originally provided for arose in connection with the enforcement of the arbitral award in Forests of Central Rhodopia, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1405 (1933); see League of Nations, Official Journal, 15th Year, No. 11 (part I) (November 1934), p. 1432. 379