Tο 1936, η Ελλάδα η ΕΛΛΑΔΑ αρνήθηκε να συνεχίσει την εξυπηρέτηση του δανείου που είχε συνάψει με τη βελγική τράπεζα Societe Commerciale de Belgique.Η κυβέρνηση του Βελγίου προσέφυγε στο Διεθνές Δικαστήριο του Διεθνούς δικαίου, που είχε ιδρύσει η Κοινωνία των Εθνών, κατηγορώντας την Ελλάδα ότι αθετεί τις διεθνείς της υποχρεώσεις. Η Ελλάδα απάντησε ότι αδυνατεί να εκπληρώσει τις δανειακές της υποχρεώσεις, διότι δεν μπορεί να θέσει σε κίνδυνο την κατάσταση του Λαού και της χώρας! Στο υπόμνημά της, η Ελληνική κυβέρνηση έλεγε:.............
.........“Η Κυβέρνηση της Ελλάδος, ανήσυχη για τα ζωτικά συμφέροντα του Ελληνικού λαού και για τη διοίκηση, την οικονομική ζωή, την κατάσταση της υγείας και την εσωτερική και εξωτερική ασφάλεια της χώρας, δεν θα μπορούσε να προβεί σε άλλη επιλογή. Όποια κυβέρνηση κι αν ήταν στην θέση της, θα έκανε το ίδιο” (Yearbook of the International Law Commission, 1980,)Το Διεθνές δικαστήριο το 1938 δικαίωσε την Ελλάδα, δημιουργώντας νομικό προηγούμενο, στο οποίο μάλιστα το 2003 στηρίχθηκε η Αργεντινή και ο πρόεδρος της, Νέστωρ Κίχνερ, ο οποίος επέλεξε να διαγράψει μονομερώς το μεγαλύτερο μέρος του δημοσίου χρέους της χώρα του, αντί να την υποδουλώσει στο ΔΝΤ!
Yearbook of the International Law Commission, 1980
"""
In the light of the replies received, the Preparatory
Committee made a distinction, in the Bases of
discussion drawn up for the Conference, between
repudiation of debts and suspension or modification of
debt servicing. It stated with regard to the latter:
A State incurs responsibility if, without repudiating a debt, it
suspends or modifies the service, in whole or in part, by a
legislative act, unless it is driven to this course by financial
necessity. (Basis of discussion No. 4, second para.)123
(10) This same question has also been considered
repeatedly in connection with disputes referred to
international tribunals. The most interesting example is
the dispute between Belgium and Greece in the Societe
Commerciale de Belgique case. Here, there had been
two arbitral awards requiring the Greek Government
to pay a sum of money to the Belgian company in
repayment of a debt contracted with the company in
question. As the Greek Government was slow in
complying with the award, the Belgian Government
applied to the Permanent Court of International
Justice for a declaration that the Greek Government,
in refusing to carry out the awards, was in breach of its
international obligations. The Greek Government,
while not contesting the existence of the obligations,
stated in its defence that its failure thus far to comply
with the arbitral awards was due not to any unwillingness
but to the country's serious budgetary and
monetary situation.124(11) In its counter-memorial of 14 September 1938,
the Greek Government had already argued that it had
been under an "imperative necessity" to "suspend
compliance with the awards having the force of res
judicata". "A State has a duty to do so", it observed,
"if public order and social tranquillity, which it is
responsible for protecting, might be disturbed as a
result of the carrying out of the award, or if the normal
functioning of public services might thereby be
jeopardized or seriously hindered".125 It therefore
denied having "committed a wrongful act contrary to
international law" as alleged by the plaintiff, and
concluded that:
The Government of Greece, anxious for the vital interests of
the Hellenic people and for the administration, economic life,
health situation and security, both internal and external, of the
country, could not take any other course of action; any Government
in its place would do the same.126This argument is taken up again in the Greek
Government's rejoinder of 15 December 1938. Having
regard to the country's serious budgetary and monetary
situation, the Government stated:
In these circumstances, it is evident that it is impossible for the
Hellenic Government, without jeopardizing the country's
economic existence and the normal operation of public services,
to make the payments and effect the transfer of currency that
would be entailed by the full execution of the award . . .".127
But the most extensive development of the issue of
excuse of necessity is to be found in the oral statement
made by the counsel for the Greek Government, Mr.
Youpis, on 16 and 17 May 1939. After reaffirming the
principle that contractual commitments and judicial
decisions must be executed in good faith, Mr. Youpis
went on to say:
Nevertheless, there occur from time to time external circumstances
beyond all human control which make it impossible
for Governments to discharge their duty to creditors and their
duty to the people; the country's resources are insufficient to
perform both duties at once. It is impossible to pay the debt in full
and at the same time to provide the people with a fitting
administration and to guarantee the conditions essential for its
moral, social and economic development. The painful problem
arises of making a choice between the two duties; one of them
must give way to the other in some measure: which?
Doctrine and the decisions of the courts have therefore had
occasion to concern themselves with the question . . .
Doctrine recognizes in this matter that the duty of a
Government to ensure the proper functioning of its essential
public services outweighs that of paying its debts. No State is
required to execute, or to execute in full, its pecuniary obligation if
this jeopardizes the functioning of its public services and has the
effect of disorganizing the administration of the country. In the
case in which payment of its debt endangers economic life or
jeopardizes the administration, the Government is, in the opinion
of authors, authorized to suspend or even to reduce the service of
debt.128The counsel for the Greek Government then proceeded
to a detailed analysis of the doctrine and judicial
decisions, in which he found full confirmation of the
principle he had stated. In the hope of making that
principle more easily acceptable—although he may
also have had other intentions—he first referred to it as
"the theory of force majeure"\ but he added that
"various schools and writers express the same idea in
the term 'state of necessity'". He continued:
Although the terminology differs, everyone agrees on the
significance and scope of the theory; everyone considers that the
debtor State does not incur responsibility if it is in such a
situation.129
The respondent Government was thus enunciating, in a
particularly well-documented manner and as being
absolutely general in scope, the principle that a duly
established state of "necessity" constituted, in inter-
national law, a circumstance precluding the wrongfulness
of State conduct not in conformity with an
international financial obligation and the responsibility
which it would otherwise engender. It is important to
note that so far as recognition of that principle is
concerned, the applicant Government declared itself
fully in agreement. In his statement of 17 May 1939,
the counsel for the Belgian Government, Mr. Sand,
stated as follows:
In a learned survey . . . Mr. Youpis stated yesterday that a
State is not obliged to pay its debt if in order to pay it it would
have to jeopardize its essential public services.
So far as the principle is concerned, the Belgian Government
would no doubt be in agreement.130Indeed, the Belgian counsel was not contesting even
factually the point that the financial situation in which
the Greek Government found itself at the time might
have justified the tragic account given by its pleader.
The points on which he sought reassurance were the
following: (a) that that Government's default on its
debt was solely on factual grounds involving inability
to pay, and that no other reasons involving contestation
of the right of the creditor entered into the
matter; and (b) that inability to pay could be
recognized as justifying total or partial "suspension" of
payment, but not a final discharge of even part of the
debt. In other words, it had to be recognized that the
wrongfulness of the conduct of the debtor State not in
conformity with its international obligation would
cease to be precluded once the situation of necessity no
longer existed, at which time the obligation would
again take effect in respect of the entire debt. From
that standpoint, the position of the Belgian Government
is particularly valuable for the purpose of
determining the limit to the admissibility of the excuse
of necessity.
(12) The Court itself noted in its judgment of 15 June
1939 131 that it was not within its mandate to declare
whether, in that specific case, the Greek Government
was justified in not executing the arbitral awards.
However, by observing that in any event it could only
make such a declaration after having itself verified the
financial situation alleged by the Greek Government
and after having ascertained the effect which the
execution of the awards would have, the Court showed
that it implicitly accepted the basic principle on which
the two parties were in agreement.132
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