Both the Rule and the Exception: The Concept of a Legal Dilemma and the Survival of the State

The paper considers whether there can be legal states of affairs that are both the rule and the exception or, in other words, whether there can be situations where the rule and the exception are superimposed upon each other so that neither the rule nor the exception singularly controls the legal classification of a given situation although both the rule and the exception continue to apply. The paper attempts to show that such situations can exist and that such situations can have a very distinct and useful legal function. The argument is illustrated with reference to the International Court of Justice’s 1996 Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons and, in particular, with reference to the notion of the ‘survival of the State’ as a ground of self-defence as discussed in the Advisory Opinion.