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Necessity and National Emergency Clauses : Sovereignty in Modern Treaty Interpretation
Author
Title
Necessity and National Emergency Clauses : Sovereignty in Modern Treaty Interpretation.
ISBN
9789004218536
900421853X
Published
Leiden : BRILL, 2012.
Physical Description
1 online resource (432 pages)
Notes
3.1. Policy objectives for designing necessity clauses in international investment agreements.
Summary
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.
Other formats
Print version: Desierto, Diane A. Necessity and National Emergency Clauses : Sovereignty in Modern Treaty Interpretation. Leiden : BRILL, ©2012
Format
Books
Language
English
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 Orders1. "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 DescriptiveA. 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 ProposalA. 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 Experts2. "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.
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