Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation (International Litigation in Practice, 3)

States invoke economic crises and security threats to justify treaty non-compliance. The most dramatic recent examples of this phenomenon include "necessity" defences in international investment law; "emergency" derogations in international human rights treaties; "exceptions" for non-conforming measures in international trade law; and doctrinal misapplications of necessity in jus ad bellum and jus in bello. Necessity and National Emergency Clauses is the first to trace the doctrine's genealogy from medieval Christian and Islamic religious history to post-Westphalian practices, the International Law Commission's codifications, and modern treaty formulations. Recognizing the doctrine's thematic linkage with the State's sovereign right to delimit international obligation, the volume proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses within specialized treaty regimes. This volume is intended for law students, legal scholars, arbitrators, international judges, and other international law practitioners interested in deriving interpretive solutions to treaty controversies on the doctrine of necessity. Diane Desierto was awarded the 2010-2011 Ambrose Gherini Prize, the highest prize awarded in the field of International Law by Yale Law School, for her JSD dissertation, upon which this book is based. Contents Acknowledgments Preface Chapter One Introduction: Necessity and Treaty Obligations A. Necessity as a Historical Assertion of Sovereignty B. The Interpretive Problem for Necessity Clauses in Specialized Treaties: Refocusing Law-Appliers’ Analytical Lens C. Rejecting a Baseline Definition of Necessity when Interpreting Necessity Clauses in Specialized Treaties: Narrow Agreement on Codification, Normative Explosion, and ‘Systemic Integration’ D. Plan of Discussion and Research Methodology Chapter Two The Doctrine of Necessity in Municipal and International Legal Orders A. Necessity in Municipal Legal Orders 1. “Constitutional” Necessity 1.1. “Constitutional necessity” in the Common Law: The United States 1.2. “Constitutional necessity” in the Civil Law: Germany 2. “Criminal Law” Necessity B. Necessity in the International Legal Order 1. Necessity in the Law of International Responsibility 2. Necessity in International Criminal Law 3. Necessity Clauses in Specialized Institutional Treaties C. Difference and Deference: Analyzing Interactions between ‘Municipal’ Necessity and ‘International’ Necessity Chapter Three The Historical Genesis of Necessity Doctrine: A Conceptual Descriptive A. Before International Law: Medieval “Necessity” in the Age of Religious Empire B. ‘Reason of State’: ‘Necessity’ as the Right of the Sovereign C. From “Reason of State” to “Self-Defence”: Necessity as the State’s Right to Self-Preservation D. From “Right” to “Essential Interest”: Necessity in ILC ASR Article 25 vis-à-vis Modern Treaties of International Law E. Rethinking Necessity: Modern International Institutional Treaty Regimes as “Institutional Normative Order” Chapter Four Substantive and Methodological Issues in Interpreting Necessity Clauses in Treaties: A Proposal A. Common Policy Objectives in Designing Necessity Clauses B. Substantive Issues in Necessity Clauses 1. Field of Application 2. Semantic Content 3. Compliance Consequences C. Methodological Issues in Necessity Clauses 1. Reviewability 2. Selection of Interpretive Sources Chapter Five Economic and National Security Emergencies: Necessity Clauses in International Investment Law and International Trade Law A. ‘Emergency’ Typologies 1. “Security” Emergencies: Indicators from Security Experts 2. “Economic” Emergencies: Indicators from Economists 3. “Security” Emergencies and “Economic” Emergencies in Classical International Law Jurisprudence on State Responsibility B. Emergencies in International Investment Law vis-à-vis International Trade Law 1. The Functions of “Broad” and “Narrow” Necessity Clauses: Surveys from the UNCTAD and the OECD 2. Reviving “Necessity as Justification”: The Argentine Cases at ICSID 3. Applying the Chapter IV Proposal: Policy Objectives, Substantive and Methodological Issues for Law-Appliers 3.1. Policy objectives for designing necessity clauses in international investment agreements 3.2. Substantive issues for law-appliers 3.2.1. Field of application 3.2.2. Semantic content 3.2.3. Compliance consequences 3.3. Methodological issues for law-appliers 3.3.1. Reviewability 3.3.2. Selection of interpretive sources 4. The Future of Necessity Clauses in International Investment Law Chapter Six States of Emergency in International Human Rights Treaties A. Derogation through Emergency Clauses in International Human Rights Treaties B. Institutional Interpretative Communities within the International Human Rights Treaty Regime: Institutional Perspectives on Derogations Clauses or Limitations Clauses 1. Derogation under the ICCPR 2. Limitations Clauses under the ICESCR and CRC C. Applying the Chapter IV Proposal: Policy Objectives, Substantive and Methodological Issues for Law-Appliers 1. Substantive Issues for Law-Appliers 1.1. Field of application 1.2. Semantic content 1.3. Compliance consequences 2. Methodological Issues for Law-Appliers 2.1. Reviewability 2.2. Selection of interpretive sources Chapter Seven Misapplying Necessity: Recent Proposals in Jus Ad Bellum and Jus in Bello A. From Classical Just War Theory to the Modern Jus Ad Bellum Β. The Debate on Unilateral Humanitarian Intervention 1. “Illegal Intervention” 2. “Legal Exceptions” 3. “Extra-Legality” 4. Summary: International Law Approaches to Unilateral Humanitarian Intervention C. A Critique on Misapplication: The Proposal to Use the International Law of Necessity аs а Second-Order Rule for Apparent Breaches of Jus Ad Bellum D. Wartime Necessity: Contemporary Jus in Bello and “Humanitarian Necessity” 1. The Inapplicability of Necessity under the Law of International Responsibility to Jus in Bello Breaches 2. “Humanitarian Necessity”: A Critique on the Attempted Revival of the Classical Usage of Necessity through Jus in Bello 2.1. Fidelity to international institutional design and purposes 2.2. Internal consistency of legal reasoning Chapter Eight Conclusion: Necessity, Sovereignty, and Treaty Interpretation Selected Bibliography Subject Index "Necessity and National Emergency Clauses is the first to trace the doctrine's genealogy from medieval Christian and Islamic religious history to post-Westphalian practices, the International Law Commission's codifications, and modern treaty formulations. Recognizing the doctrine's thematic linkage with the State's sovereign right to delimit international obligation, the volume proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses within specialized treaty regimes. This volume is intended for law students, legal scholars, arbitrators, international judges, and other international law practitioners interested in deriving interpretive solutions to treaty controversies on the doctrine of necessity. Diane Desierto was awarded the 2010-2011 Ambrose Gherini Prize, the highest prize awarded in the field of International Law by Yale Law School, for her JSD dissertation, upon which this book is based." -- Publisher's website Desierto is affiliated with the International Court of Justice, teaches international law, and advises Philippine government agencies. She received a highly esteemed prize from Yale Law School for the JSD dissertation upon which this book is based. Her study begins with an introduction to necessity and treaty obligations. Following chapters discuss the doctrine of necessity in municipal and international legal orders and its historical genesis, a proposal for interpretation of necessity clauses in treaties, international investment and trade law, human rights treaties, and misapplications of necessity. Annotation ©2012 Book News, Inc., Portland, OR (booknews.com) The Doctrine Of Necessity In Municipal And International Legal Orders -- The Historical Genesis Of Necessity Doctrine : A Conceptual Descriptive -- Substantive And Methodological Issues In Interpreting Necessity Clauses In Treaties : A Proposal -- Economic And National Security Emergencies : Necessity Clauses In International Investment Law And International Trade Law -- States Of Emergency In International Human Rights Treaties -- Misapplying Necessity : Recent Proposals In Jus Ad Bellum And Jus In Bello. By Diane A. Desierto. Includes Bibliographical References And Index. Unveiling the complex dynamic between State sovereignty and necessity doctrine as historically practiced in international political relations, this book proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses in specialized treaty regimes