Distress is one of six circumstances precluding wrongfulness codified in the International Law Commission's 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Under Article 24, a state's non-compliance with an international obligation is not wrongful if the author of the act "has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care."
Distress differs from related defenses in important ways:
- Unlike force majeure (Article 23), distress involves a choice, but one in which compliance would sacrifice human life.
- Unlike necessity (Article 25), distress protects individual lives rather than an essential interest of the state itself.
- Unlike self-defence (Article 21), it does not require a prior armed attack.
The classic factual scenarios involve aircraft entering foreign airspace without authorization due to bad weather or mechanical failure, and ships seeking refuge in foreign ports. The 1990 Rainbow Warrior arbitration between New Zealand and France discussed distress at length, finding that France could not rely on it to justify removing its agents from Hao atoll because the medical situation, while serious, did not strictly require the specific breach of the bilateral agreement.
Article 24 contains two important limits. Distress cannot be invoked if (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the state invoking it; or (b) the act in question is likely to create a comparable or greater peril. The defense also does not extinguish the underlying obligation — it merely suspends wrongfulness while the situation persists, and compensation for material loss may still be owed under Article 27.
ARSIWA is not a treaty but was commended to states by UN General Assembly resolution 56/83 (2001) and is widely cited by international courts and tribunals as reflecting customary international law on many points.
Example
In the 1990 Rainbow Warrior arbitration, France argued distress to justify repatriating its agents from Hao atoll for medical reasons, but the tribunal rejected the claim as not strictly necessary.
Frequently asked questions
No. Force majeure (ARSIWA Article 23) involves an irresistible force making compliance materially impossible, while distress (Article 24) involves a choice made to save human lives.
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