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The Concept of Necessity in International Law and the World Trade Organization
History, Lessons, and Prospects
Series: - World Trade Institute Advanced Studies, Volume: 17
Author:
Like many concepts in international law, the definition of “necessity” varies widely depending on context. The concepts of necessity in different fields of international law can maintain their unique definitions while learning from each other, and thereby achieve coherence. This book presents the evolution of the concept of necessity, and discusses its definitions in nine different fields of international law. Centering customary international law and the law of the World Trade Organization in his analysis, Dr. Senai W. Andemariam examines the potential for interactions and coherence between concepts of necessity in various fields of international law.
Senai W. Andemariam, Ph.D., Maastricht University, is a former judge and now the head of the Department of Law of the College of Business and Social Sciences in Eritrea. He received his LL.B. from the University of Asmara (With Distinction) and his LL.M. from Georgetown University (With Distinction) as a Fulbright Scholar. He has published with journals at Cambridge University Press, Oxford University Press, Taylor and Francis, Routledge, Springer, DeGruyter, Brill and others.
Foreword
Acknowledgments
List of Tables
Acronyms
Introduction
Part 1
History of the Concept of Necessity in Law
1
Evolution of the Concept from the 1st Millennium
bc
to the 20th Century
1.1 Early Period
1.2 Medieval Period (5th to 15th Centuries)
1.3 The Westphalian Concept of Necessity and the Aftermath (17th to 20th Centuries)
2 State and Tribunal Practices until the 1930s
2.1 State Practices
2.2 Tribunal Practices
2.3 Avoiding the Conflation
2.4 Lessons Learned from the State and Tribunal Practices
3 Placing Necessity in the Context of the Relationship between Sovereignty and Treaty Law
3.1 How the Exercise of Powers of Necessity Evolved since the Peace of Westphalia
3.2 Consent as the Binding Element in the Sovereignty-Treaty Obligation Interface
3.3 Lessons from the History, Practices and Presentation of Necessity since the 1st Millennium
bc
Part 2
The Concept of Necessity in International Law
4 Preliminary Issues
4.1 Necessity: A Widely Represented Concept in International Law
4.2 Issues on the Concept of Necessity in International Law
5 The Concept of Necessity in Different Fields of International Law
5.1 The Law of Use of Force
5.2 International Humanitarian Law
5.3 International Environmental Law
5.4 The Law State Responsibility as Codified in the
arsiwa
5.5 International Investment Law
5.6 International Human Rights Law
5.7 International Criminal Law
5.8 The Law of Responsibility of International Organizations as Codified in the
dario
5.9 Lessons Learned from the Experiences with the Concepts of Necessity in Different Fields of International Law
6 The Role of International Courts and Tribunals in Developing the Concept of Necessity in Customary International Law
6.1 General Notes
6.2 The
pca
6.3 The
pcij
6.4 The
icj
6.5 The
itlos
6.6 Other International Tribunals
6.7 Lessons Learned from the Contributions of Various International Courts/Tribunals on the Development of the Concept of Necessity in International Law
Part 3
The Concept of Necessity in
wto
Law
7 History of the Drafting of the Necessity Defense Provisions in the General and Security Exceptions of the
gatt
1994/
gats
7.1 Pre-
gatt
1947 Trade Agreements and Treaties Containing General Exceptions-Like Provisions
7.2 The US-UK Discussions for Post-Second World War International Trade Rules
7.3 The Drafting of the General and Security Exceptions in the London-New York-Geneva-Havana Meetings (1946–1948)
8 Evolution of the Interpretation of the Concept of Necessity in the General and Security Exceptions of the
gatt
(1947 and 1994) and the
gats
8.1 General Observations on the Nature and Practice of the General Exceptions
8.2 Interpreting the Term ‘Necessary’ in the General Exceptions
8.3 The Concept of Necessity in the Security Exceptions
9 The Concept of Necessity in Other
wto
Agreements, the
tbt
,
sps
and
trips
Agreements in Particular
9.1 Textual Presence of the Term (Concept of) Necessity
9.2 General Background on the
tbt
and the
sps
Agreements
9.3 The Concepts of Necessity in the
tbt
and the
sps
Agreements
9.4 Comparing the Interpretations of Necessity in the General Exceptions of the
gatt
1994/
gats
, the
tbt
Agreement and the
sps
Agreement
9.5 Necessity under the
trips
Agreement
9.6 Has a ‘
wto
Law Concept of Necessity’ Emerged?
Part 4
The Interaction between the Concepts of Necessity in Customary International Law and
wto
Law
10 The Interface between Customary International Law and
wto
Law
10.1 Contextualizing the Relationship
10.2
wto
Law in the Universe of International Law
10.3 The Two-Way Relationship between
wto
law and International Law
11 Rules on Interfacing the Concepts of Necessity in
wto
Law and Other Fields of International law
11.1 Rules and Practices of Interoperability
11.2 Interoperability in the Context of the Current Crisis of the
wto
Dispute Settlement System
11.3 Contrasting the Concepts of Necessity in
wto
Law and
cil
12 The Exercise of Interfacing the Concepts of Necessity in
wto
Law and
cil
12.1 Grounds for Considering Interoperability
12.2 Potential Interoperability
Conclusion and Final Remarks
Bibliography
Index
Acknowledgments
List of Tables
Acronyms
Introduction
Part 1
History of the Concept of Necessity in Law
1.1 Early Period
1.2 Medieval Period (5th to 15th Centuries)
1.3 The Westphalian Concept of Necessity and the Aftermath (17th to 20th Centuries)
2 State and Tribunal Practices until the 1930s
2.1 State Practices
2.2 Tribunal Practices
2.3 Avoiding the Conflation
2.4 Lessons Learned from the State and Tribunal Practices
3 Placing Necessity in the Context of the Relationship between Sovereignty and Treaty Law
3.1 How the Exercise of Powers of Necessity Evolved since the Peace of Westphalia
3.2 Consent as the Binding Element in the Sovereignty-Treaty Obligation Interface
3.3 Lessons from the History, Practices and Presentation of Necessity since the 1st Millennium
Part 2
The Concept of Necessity in International Law
4 Preliminary Issues
4.1 Necessity: A Widely Represented Concept in International Law
4.2 Issues on the Concept of Necessity in International Law
5 The Concept of Necessity in Different Fields of International Law
5.1 The Law of Use of Force
5.2 International Humanitarian Law
5.3 International Environmental Law
5.4 The Law State Responsibility as Codified in the
5.5 International Investment Law
5.6 International Human Rights Law
5.7 International Criminal Law
5.8 The Law of Responsibility of International Organizations as Codified in the
5.9 Lessons Learned from the Experiences with the Concepts of Necessity in Different Fields of International Law
6 The Role of International Courts and Tribunals in Developing the Concept of Necessity in Customary International Law
6.1 General Notes
6.2 The
6.3 The
6.4 The
6.5 The
6.6 Other International Tribunals
6.7 Lessons Learned from the Contributions of Various International Courts/Tribunals on the Development of the Concept of Necessity in International Law
Part 3
The Concept of Necessity in
7 History of the Drafting of the Necessity Defense Provisions in the General and Security Exceptions of the
7.1 Pre-
7.2 The US-UK Discussions for Post-Second World War International Trade Rules
7.3 The Drafting of the General and Security Exceptions in the London-New York-Geneva-Havana Meetings (1946–1948)
8 Evolution of the Interpretation of the Concept of Necessity in the General and Security Exceptions of the
8.1 General Observations on the Nature and Practice of the General Exceptions
8.2 Interpreting the Term ‘Necessary’ in the General Exceptions
8.3 The Concept of Necessity in the Security Exceptions
9 The Concept of Necessity in Other
9.1 Textual Presence of the Term (Concept of) Necessity
9.2 General Background on the
9.3 The Concepts of Necessity in the
9.4 Comparing the Interpretations of Necessity in the General Exceptions of the
9.5 Necessity under the
9.6 Has a ‘
Part 4
The Interaction between the Concepts of Necessity in Customary International Law and
10 The Interface between Customary International Law and
10.1 Contextualizing the Relationship
10.2
10.3 The Two-Way Relationship between
11 Rules on Interfacing the Concepts of Necessity in
11.1 Rules and Practices of Interoperability
11.2 Interoperability in the Context of the Current Crisis of the
11.3 Contrasting the Concepts of Necessity in
12 The Exercise of Interfacing the Concepts of Necessity in
12.1 Grounds for Considering Interoperability
12.2 Potential Interoperability
Conclusion and Final Remarks
Bibliography
Index
Scholars, students, institutes, and practitioners of international law; members and support staff of WTO dispute settlement organs and other relevant international tribunals.