Rough Draft- Please do not cite, quote, or otherwise rely upon this

draft, including footnotes. Comments appreciated. Contact author for

permissions, corrections and clarifications: kanwar@nyu.edu.

The Politics of Necessity

Discourses and Doctrines of Exception in International Law

VIVEK (VIK) KANWAR

NEW YORK UNIVERSITY SCHOOL OF LAW

Draft: September- December 2006

The Politics of Necessity

Discourses and Doctrines of Exception in International Law

ACKNOWLEDGEMENTS

GENERAL INTRODUCTION:

SCOPE OF THE STUDY

CHAPTER ONE

THE TAMING OF NECESSITY :

FROM ―VACANT IMPERATIVE‖ TO SALUS POPULI

CHAPTER TWO

INTERNATIONAL EMERGENCY GOVERNANCE :

DOCTRINES OF NECESSITY

CHAPTER THREE

THE UNCERTAIN APPLICABILITY OF MODERN NECESSITY DOCTRINES :

COMPLEX DEROGABILITY AND EXTRA-TERRITORIALITY

CHAPTER FOUR

THE EXCEPTION IN EXTREMIS :

REMNANTS OF THE ―VACANT IMPERATIVE‖ IN INTERNATIONAL LAW

BIBLIOGRAPHY

ACKNOWLEDGEMENTS

I wish to thank my colleagues in the JSD Program at New York University School of Law and the

Institute for International Law and Justice‘s Program in the History and Theory of International

Law (2001-2006). I reserve particular respect and gratitude for my dissertation committee,

Professors Benedict Kingsbury, Martti Koskenniemi, and David Garland. Thanks are also due to

the various professors who allowed me to attend their courses during my doctoral studies:

Andrew Arato, Eyal Benvenisti, Simon Chesterman, Jean L. Cohen, the late Jacques Derrida,

John Ferejohn, Thomas Franck, Clayton Gillette, David Golove, Mikhail Iampolski, Janos Kis,

Mattias Kumm, Ernesto Laclau, Chantal Mouffe, Pasquale Pasquino, Avital Ronnell, Michel

Rosenfeld, Andras Sajo, Jeremy Waldron, J.H.H. Weiler, Allen S. Weiss, and to the conveners of

the following colloquia at NYU: ―Law and Philosophy‖ (Ronald Dworkin, Jurgen Habermas, and

Thomas Nagel), ―Globalization and its Discontents‖ (Benedict Kingsbury, Richard Stewart, and

Eleanor Fox), ―Law and Security‖ (Stephen Holmes, Richard Pildes, Noah Feldman, and David

Golove), and ―Rethinking the Table of Contents of International Law‖ (J.H.H. Weiler) as well as

the numerous speakers at these colloquia. The substance of my research benefited from

presentations, often of timely and unpublished work, by Giorgio Agamben, Phillip Alston, Judith

Butler, Antonio Cassese, Alan Dershowitz, Yoram Dinstein, Costas Douzinas, Derek Jinks,

Karen Knop, Sanford Levinson, Yigal Mersel, Bruce (―Ossie‖) Oswald, Gerry Simpson, David

Sloss, Peter Sloterdijk, and various members of the worldly but intimate intellectual network that

stretches between David Kennedy‘s European Law Research Center at Harvard Law School and

Anne Orford‘s Institute for International Law and Humanities at the University of Melbourne.

Thanks to the editors at Critical Sense and the International Journal of Constitutional Law (I-

CON) for help with articles arising out of this project. For providing specific comments on past

drafts, valuable research materials, or important institutional assistance, special thanks are due to

David Bederman, Noa Ben-Asher, Nathaniel Berman, Robin Celikates, James Cockayne, Robert

Dufresne, the late Joan Fitzpatrick, Kirsty Glover, David Golove, Peter Goodrich, Shelly Grizim,

Oren Gross, Janet Halley, Emily Hartz, Stephen Humphreys, Joy Kanwar, Fiona Kennedy, Nico

Krisch, Mattias Kumm, Geoff Kurtz, Nomi Claire Lazar, Sanford Levinson, Cade Mosely,

Abdul-Karim Mustapha, Tzvika Nissel, the late Paul Piccone, Cesare P.R. Romano, Yair Sagy,

Roy Schondorf, Eran Shamir-Boer, Ruti Teitel, Arun Thiruvengadam, the Torge family, the

Ward-Blum residence, the Wednesday Circle, Joseph Weiler, and Katie Young. All errors and

omissions remain my own. Thanks to my friends and colleagues at the Center for Constitutional

Rights, the Hauser Global Law School Program at NYU, the Center on International Cooperation

at NYU‘s Faculty of Arts and Sciences, and the Westerfield Program at Loyola University New

Orleans for providing me some productive and rewarding distractions during the years of my

writing. Finally, this dissertation is dedicated to the friends and family who have graciously

excused my various obsessions and absences during its writing, particularly to the two people

who most deserve its conclusion, my wife Lacey Torge and our daughter Zazie Diya Kanwar-

Torge.

GENERAL INTRODUCTION:

SCOPE OF THE STUDY

1. “Necessity”: From Politics, Polemics, and Discourses to Doctrines

Though this is a study of legal doctrines of necessity, those in international law in

particular, this dissertation‘s title— a reversal of Carl Schmitt‘s ―Necessity of Politics‖1 — retains

the term politics to lay emphasis on a particular aspect of necessity: its contentious character and

the difficulty of its closure in legal terms. In 1980, Professor Roberto Ago of the International

Law Commission (ILC) concluded a comprehensive study on doctrines of ―necessity‖ in the field

of state responsibility by saying that the concept of ―necessity‖ is so rooted in the international

community that even if it is ―driven out the door‖ it will inevitably ―return through a window.‖2

Here, Ago is not saying with Schmitt that ―whether the extreme exception can be banished from

the world is not a juristic question,‖3 but rather that jurists ignore necessity or ―the exception‖ at

their peril; whether or not it can be banished, it ought to at least be tamed. Indeed doctrines of

necessity have been a constitutive part of international law since the time of Grotius, but they

have also always raised the anxiety of the destabilization of international law. In the classical

period, these doctrines— often attached to notions of salus populi (public safety or collective

self-preservation)— provided grounds for excuse from obligations between states in the laws of

peace, war, and neutrality, though their expression in the idiom of natural law made their limits

1 Carl Schmitt, The Necessity of Politics: An Essay on the Representative Idea of the Church and

Modern Europe (E.M. Codd, trans) Sheed & Ward (1931). For Carl Schmitt (1888-1985), an influential

illiberal thinker, the existence of an emergency or ―state of exception‖ is viewed as a trigger for the

assertion of sovereignty. In a way, the mere reversal of terms from the original title can be seen as a

synecdoche for this work as a whole, hinting at the deep contingency of so many essentialized tropes in

Schmitt: the ―exception‖, the ―enemy‖, the ―sovereign‖, the homogeneity of ―political community‖ and

above all ―necessity‖ itself. The prominence of the word ―politics‖ in the title is acceptance of the

Schmittian suggestion that emergency belongs to irreducibly political and not juridical decision, but simply

a recognition that that the terms of debate are polemical and dangerous, but also contested and open. 2 Ago Report A/CN.4/318/Add.5-7 ―Addendum - Eighth report on State responsibility by Mr.

Roberto Ago, Special Rapporteur the internationally wrongful act of the State, source of international

responsibility (part 1)‖ Excerpted from the Yearbook of the International Law Commission, available at

(http://www.un.org/law/ilc/index.htm). (Hereinafter ―Ago Report‖). 3 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. George

Schwab, Cambridge, MA, 1988), p. 7.

uncertain. In historical terms, it is often difficult to look back and discern whether various

invocations of necessity were intended to be legally binding or politically expedient.

Even today, the debates over various doctrines of necessity concern the legal character

and status of the doctrines as well as the possibility of legal constraints on their exercise. Over

the past five years, in the so-called ―global war on terror,‖4 we have seen in practice notions of

necessity justify forms of violence that evade legal classification or reduce accountability, even as

nearly every area on international law has been evoked to attempt to provide doctrinal closure to

unstable areas of ―necessity.‖ In modern international law, there are four main contexts where

doctrines of necessity are raised:

(1) General Law of Inter-State Relations: Doctrines of necessity as an excuse or

exception in the general law of treaties and state responsibility;

(2) General Law on the Use of Force: Notions of self-defense based in customary law and

the Charter of the United Nations;

(3) International Humanitarian Law: Considerations of military necessity in the law of

armed conflict; and

(4) Human Rights Law: ―necessity‖ as a threshold for the derogation of treaty-based

human rights obligations during national states of emergency.5

Though each is rooted in a ―vacant imperative‖ of necessity, none of these leges specialis

surrenders the legal character of their doctrines to the kind of extra-legal critique posed by

political realists that international law is inapplicable in exceptional danger. Instead, over time,

each of these doctrines has developed in ways to decrease deference to states‘ freedom of action

in situations of claimed ―necessity.‖ This has resulted in doctrinal ―taming‖ or ―closure‖ and also

differentiation of doctrines within international law. This development from vague pre-legal

discourses of necessity to legal doctrines is what I refer to in this dissertation as the ―taming of

necessity.‖ Historically, this has involved a series of redescriptions of necessity that move it from

4 It is not surprising that states experiencing states of emergency, whether through formal doctrines

or contingent decisions, often attempt to exit from obligations under international law. Nor is it a novel

insight to say that emergency situations have trans-border effects. However, recent experience shows us

that there are actually transnational processes, including some based in international law that rather than

restraining emergency measures, but also facilitate them. In this context, it has also been viewed as a for the

entry into multilateral agreements, Security Council resolutions, covert agreements, extraordinary

renditions, bi-lateral establishment of undocumented ―black sites‖ for terror suspects, and less formal

transmission of copycat legislation spreading new kinds of emergency measures across borders. The

interpenetration of international phenomena and emergency powers is further complicated when the

application of humanitarian law, human rights law, and the law of state responsibility –already at unease

with each other— become selectively folded into constitutional court decisions, or when domestic anti-

terrorist measures are considered by international courts and tribunals. 5 The best historical account of this period is found in A.W. Brian Simpson, Human Rights at the

End of Empire, taking up the development of derogation clauses in the HRC and ECHR.

a vacant imperative, categorical in form, toward principles that are conditional on positive values

such as self-preservation (salus populi). In each case, as doctrines were tamed, clarified and

differentiated, they became linked to particular legal thresholds, identifiable sources of distress,

and protected interests. (See ―FIGURE 1‖ below).

F IGURE 1: Doctrines of Necessity in Modern International Law6

DOCTRINE OF

NECESSITY

PARTIES PROTECTED INTEREST SOURCE OF

DISTRESS Actor invoking

necessity

“Injured”

actor

Use of Force

(―Self-Defense‖)

State A State B Self preservation of State A State B

Law of State

Responsibility

(e.g. ―State of

Necessity‖)7

State A State B ―safeguard an essential interest

against a grave and imminent

peril‖ (Art. 25)

(invoked to protect a wide

variety of interests (e.g.,

environment)

Need not rise to self-

preservation. (not ―right‖)

Internal or

External,

broadly

construed.

Need not

impute

State B.

Treaty law (e.g. ―Rebus Sic

Stantibus”)

State A State B Extraordinary circumstances –

not necessarily self

preservation. (+ not in the case

of borders)

Internal or

External.

Human Rights

Law

(―Public

Emergency‖)

State A Nationals of

State A or

persons under

its jurisdiction.

National interests of State A

and its nationals; subject to

procedural and substantive

limitations.

Internal

International

Humanitarian

Law

(―Military

Necessity‖)

State A Nationals of

state B or

persons under

its control.

Security interests of State A

must be weighed against

humanitarian considerations.

External

Understood as doctrines, invocations of ―necessity‖ are expected to perform certain

functions: providing analogies, techniques and principles that can be traced to accepted sources of

international law, aid in their application, and to provide formal constraint rather than simply

evacuating the law. In a sense, then, the various doctrines of necessity in international law

regimes are analogous to the legally recognized ―exceptions‖ familiar in domestic law. For

6 I wish to thank my colleague Eran Shamir-Boer for developing a similar chart as a respondent

to my paper in Fall 2005. I modeled this and subsequent charts on his. 7 See Figure B for other ―Circumstances Precluding Responsibility‖ under the Draft Articles on

State Responsibility).

example, the canons of state responsibility and treaty interpretation tend to treat necessity like

exceptions in tort and contract law; derogation and limitations in human rights law treat necessity

like ―constitutional‖ exceptions; and finally humanitarian law (jus in bello) and the use of force

(jus ad bellum)— particularly the cluster of doctrines called ―self-defense‖— directly evoke the

domestic analogy of criminal law excuse and justification.8 Thus, necessity—once a vacant

imperative and then a general principle of law (salus populi)—takes on the more particular

characteristics of specific doctrines.

Along with this doctrinal elaboration and differentiation, ―necessity‖ travels some

distance from political will and simple deference. In modern jus ad bellum, self-defense is

understood more strictly as an exceptional circumstance for collective self-preservation and not a

―right‖ stricto sensu. In peacetime, doctrines for excluding wrongfulness were further specified

(duress, force majeure, necessity, and fortuitous events, and the defense of jus cogens), and

became both clearer and more demanding, and even though the ―state of necessity‖ that

descended from Grotius no longer required a link to self-preservation, but also less strict

protected interests, it codified a series of cumulative conditions was to prevent justification of

egregious violations of international law; ―military necessity‖ became linked to proportionality in

the law of war came to impose more burdens the claimants than it had traditionally; and finally,

along with other procedural hurdles, only the strictest standard of necessity was sufficient to

trigger a derogation from human rights obligations, and even then some rights remained non-

derogable. Taken together, these doctrines were elaborated so that there should be no gaps in

international law, not even on the question of its derogation.

2. States of Emergency and other “Mixed States” of Application

International lawyer Sir Gerald Fitzmaurice described the doctrine of necessity as a

―rather back-handed doctrine, since it is founded on the maxim that necessity knows no law, but

one to which international law does, nevertheless, within pretty stringent limits, afford

recognition.‖9 The deep structural duality of necessity doctrines, between their stringent limits

(formalism or ―closure‖) and their basis in antinomic discourses (contingency or ―rupture‖) is

also evident in the contexts in which they are raised. If international law traditionally recognized

8 Incorporate public law paradigm? Such a paradigm concerns the power of the State. In

constitutional law it is the power (and responsibilities) of the State vis-à-vis its own citizens; in

international law it is the power (and responsibilities) of the State vis-à-vis other States. Necessity has

always operated in both spheres, even where it has been treated as a strictly contractual doctrine. 9 Cite to Fitzmaurice, ILC.

claims of necessity without seeing much need to elaborate upon them, this was because of the

entrenched presumptions of positivism: ―internal‖ states of necessity involved subjects (a state‘s

own nationals) that were afforded only limited protections in international law, and ―external‖

states of necessity typically involved armed confrontations, in which states pushed aside legal

considerations. Therefore, the elaboration of necessity doctrines only took place in marginal

situations that defied simple classification: ―mixed states‖ (status mixtus) between war and

peace,10

between internal and external,11

and even today situations teetering on fulcra between

protected and unprotected statuses, penal and administrative realms, and between constitutional

constraints and prerogative powers.

I argue that if there is a principle that has transformed over time to help mediate these

unstable borders, it is the principle of self-preservation (salus populi). Today, two regimes in

particular— HRL and IHL— remain tethered to principles of self-preservation and between them

attempt to sort out different kinds of ―mixed states‖ between war and peace, between internal and

external. Recently, the persistence of acting ―according to necessity‖ in state practice, and its

migration between internal and external levels, has been visibly linked to the phenomenon of

states of emergency. The case was made in another report—this one empirical— which should be

read alongside Ago‘s doctrinal review. According to a well cited section of this report submitted

by Leandro Despuoy, the UN‘s Special Rapporteur on States of Emergency in the late 1990s:

…between January 1985 and May 1997, some 100 States or territories - in other words,

over half the Member States of the United Nations - have at some point been de jure or

de facto under a state of emergency. The fact that during the same period many have

extended emergency measures or lifted and then reintroduced them, shows that states of

emergency have been proclaimed, extended or maintained in some form much more

frequently in the past dozen years or so…. If the list of countries which have proclaimed,

extended or terminated a state of emergency in the last 12 years, as indicated in this

report, were to be projected onto a map of the world, we would note with concern that

the resulting area would cover nearly three-quarters of the Earth‘s surface and leave no

geographical region unaffected. We would also note that in countries so geographically

far removed, with such dissimilar legal systems, as the United States and China, or

located at such polar extremes as the Russian Federation and Argentina, including such

intensely conflictual regions as the Middle East, the former Yugoslavia and certain

African countries, in all cases, Governments have chosen to adopt de facto (in the case of

the latter countries) or de jure (in the case of the former) emergency measures in order to

10

E.g. the rights of neutral states against trespass. On ―status mixtus,‖ see H.H.G. Post, Some

Curiosities on the Sources of the Law of Armed Conflict Conceived in a General International Legal

Perspective, Netherlands Yearbook of International Law Vol. XXV 83-117 (1994) at 93. By this term I

mean both empirical and conceptual states of emergency also create ―crises of categorization,‖ revealing

the incoherence of previous legal categories. 11

E.g., the rights of detainees in off-shore detention centers.

cope with their successive crises…. A political reading of this original legal map of the

world would tell us that, not only is mankind not living in stable conditions, but there is a

dangerous tendency world-wide for the exception to become the rule.12

The implication of the Rapporteur‘s statement is that states of emergency – whether de jure or de

facto— pose problems not only to the internal political order of nation-states, but also to

international order as a whole. This already represented quite a distance from the traditional view

that states of emergencies were entirely internal application of necessity doctrines. Though the

preponderance of literature demonstrates that the various doctrines of necessity have common

origins in notions of necessity as a ―vacant imperative,‖ and the shadow of this usage remains

possible, I attempt to show how as a general matter the discourse of necessity has been tamed to

facilitate and generate legal tools to regulate different kinds of emergencies. The applicability of

international legal principles to states of emergency and similar forms of civil strife is the furthest

extension of the intervention of international law in regulating claims of necessity.

In short, international law has joined the business of emergency governance. Emergency

governance (as distinct from emergency powers or emergency government) includes all the

standing rules, principles, standards, or institutions that remain effective during a state of

emergency to regulate and moderate the negative effects of the exercise of emergency powers. It

follows then that the resources of emergency governance must reside in enduring bodies that

would survive particular emergencies, such as constitutional courts or, as I focus on here, the

―positive law‖ established by international treaties and developed by courts and commentators.

Those core materials include the most recent jurisprudential discussions of necessity within these

regimes of international law, relying heavily and giving particular attention to the cases and

principles cited in the reports of Leandro Despuoy as Special Rapporteur on States of Emergency

(1985-1997), Roberto Ago‘s Report on Circumstances Excluding Responsibility in State

Responsibility (1980), comprehensive rules in connection with the United Nations system as

contained in General Comments No. 29 and 31 of the UN Human Rights Committee (2001 and

2004), the ILC‘s Draft Articles on the Effect of Armed Conflict on Treaties (2005), the ILC‘s

Report on the Fragmentation of Law (2006), the ICRC‘s recent study on the content of customary

humanitarian law, as well as the ―jurisprudence‖ of the ICJ13

and various human rights bodies as

12

Rapporteur report cite. 13

In the second half of this dissertation I will draw primarily on three recent cases of the ICJ.

Danube Dam case, The Advisory Opinion on the Israeli Security Barrier, and the Nuclear Weapons

Advisory Opinion.

collected in the UNCHR‘s recently published Digest of Jurisprudence of the UN and Regional

Organizations on the Protection of Human Rights While Countering Terrorism (2003), which was

distributed to various inter-governmental organizations in an attempt to coordinate international

legal standards for an intensifying ―global war on terror.‖

3. Methodology

Methodologically, this study is a doctrinal one, albeit ―critical-doctrinal‖ in many

respects. It is doctrinal in the sense that it does not foreground social-scientific or empirical

information, rich as the archive of terror and counter-terror has been over the past five years; it

restricts itself to primary doctrinal materials and to the application to argumentative positions

within international legal discourse. On the other hand, it is ―critical‖ in that alongside the

doctrinal materials it includes a semantic study of necessity and related discourses; this is the

slender edge of a critical wedge to open up the doctrines to appraisal. The critical analysis reveals

in turn a consistent conceptual premise, which is expressed as an oscillation between doctrinal

―closure‖ and ―rupture.‖14

On one hand, as this dissertation describes, there are numerous

instances of the doctrinal closure and the long term development of doctrines of necessity infra

legem. On the other hand, the peculiarly self-deconstructing quality of necessity, its imperative

form, never does away with the possibility of the rupture of these doctrines, revealing necessity

extra and contra legem.15

In a manner analogous to the various discourses and doctrines

discussed in the last chapter, international doctrines of necessity teeter on a fulcrum between

14

The most fundamental version of this antinomy is between doctrinal ―closure‖ or taming and ―rupture‖

or suspension of normality; this image draws upon Mansfield‘s ―taming‖ and ―unleashing,‖ (which draws

in turn upon Alexander Hamilton‘s Federalist 70, on the essential ―energy in the executive‖), but also on

Derrida‘s continual insistence on inassimilable particularities, and to a critical description by Theodor

Adorno. To take only one Derridean example, one might say the normality of the law is potentially

disrupted by a ―dangerous supplement‖ of necessity, See Peter Fitzpatrick, Dangerous Supplements:

Resistance And Renewal In Jurisprudence (1991): ―The supplement provides what is lacking. It serves to

complement and to complete that which is supplemented... But, as Derrida has it, the supplement is also

‗dangerous‘... It is not fully assimilable. It remains outside, challenging the completeness and adequacy of

that which is within.‖ (1-2), Citing Jacques Derrida, Of Grammatology 144-145 (1976). 15

I have adapted this terminology from one historically distinct form of exception (equity) and

applied it to another (necessity). This can be traced to Cicero and Roman commentators of Aristotle‘s

Nicomachean Ethics who elaborated three Aristotelian categories of equity: (1) one is equity infra legem,

within the law. the power to select from one of several possible interpretations of the law so as to achieve

the most equitable result. (2) the second is equity praeter legem; and refers to the use of equity to fill a gap,

supplementing the law; (3) the third is equity contra legem, against the law. (cite) See also Gillian Rose,

The Dialectic of Nihilism: Post-Structuralism and the Law, New York: Blackwell (1984) 14-15. Drawing

on Kant, Gillian Rose claims necessity and equity are flip-sides of equivocal law: equity is ―right without

coercion‖ and necessity is ―coercion without right.‖

doctrinal closure and rupture. (e.g. formalism and contingency, pre-commitment and prudence);

none of these correspond to legal terms of art, but in my view they are descriptive of tendencies,

values, and relationships that are important to this area of law. In some respects, this is a

localization of the kind of rhetorical structure of international law that has already been identified

by certain critical theorists, who have been able to the reduce nature of international law to

similar antinomies.16

In my view, the value of these rhetorical investigations is not that they

identify deep structures, but that they offer strong simplifications, which offer valid insights when

they are applied to particular areas of law. Because they gather concerns cut fresh from the field

of application, these approaches are probably more helpful than dragging along for every

occasion the bulky jurisprudential positions inherited from intellectual history, such as

―naturalism vs. positivism,‖ or ―realism vs. formalism.‖ Instead, this non-historical approach will

demand a more careful exegesis of tensions and strategies underlying the particular dilemmas of

emergency governance at the international level, while remaining abstract enough to capture

repetition.

In my view, strictly doctrinal accounts of necessity—such as Judge Ago‘s treatise-length

report— are perfectly comprehensive and appropriate in terms of the programmatic concerns of

legal codification. Yet such accounts often fall into self-reference and tautology, failing to

identify the very tensions they plainly describe, because their role is restatement and progressive

development rather than self-examination. For this reason, compared to the ubiquity of

―necessity‖ discourses in sibling disciplines—political theory, constitutional law, and

(particularly) international relations— international jurisprudence has under-theorized ―necessity‖

and thus failed to account for fundamental difficulties concerning permeability and abuse of its

doctrinal forms. In contrast, this dissertation begins with a detour through critical and

constitutional theory, to establish the ways ―necessity‖ can be perceived as providing a general

and flexible discourse which, in my view, accounts for both its abuse and its resilience. For this

16

. See generally Martti Koskenniemi, From Apology to Utopia: The Structure of International

Legal Argument (Helsinki: Finnish Lawyers‘ Publishing Co., 1989). In his theoretical writings, Martti

Koskenniemi has cast this dichotomy between closure and rupture, or formalism and contingency at the

international level as one between ―sources‖ and ―sovereignty.‖ Indeed, there is a constant referral between

multiple antinomies; facts/law, and formal/material, ascending/ descending normativity/facticity. See

generally Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument

(Helsinki: Finnish Lawyers‘ Publishing Co., 1989). See also David Kennedy, Thinking against the Box at

page 363. David Kennedy has said although international law can be seen as a series of self-redescriptions,

―international lawyers return repeatedly to two basic axes of philosophical disputation, each with its own

well-developed vocabulary: the relationship law should seek to strike between an international community

and sovereign autonomy and the most effective balance between a more or less formal law.‖

reason, I will begin by investigating various ―discourses‖—extra-legal, philosophical, and

constitutional notions of necessity —that provide analogies for and supplement the core doctrinal

accounts of necessity in international law that follow. In part my description of the malleability of

necessity discourses will also be a performance of them. Ultimately—and though even Grotius

cited the poets—this humanistic and eclectic method is secondary to the material it seeks to

illuminate. The discourses and, more particularly, the doctrines of necessity will be analyzed in

four interrelated chapters, which are summarized below.

4. Chapter Overview

Chapter One begins with a semantic claim about ―necessity‖ and related concepts. The

thrust of that claim is that doctrines of ―necessity‖ derive from a root metaphor which is the

―vacant imperative‖ of necessity. International law doctrines of necessity are preceded and

paralleled by ―arguments from necessity‖ in the fields of logic, ethics, and politics, and

articulated in traditions of state theory and constitutional theory. A preliminary specification of

this imperative, however, shows it to be, almost from the beginning, conditioned on positive

notions of salus populi among theorists of the state between two strong camps. Those who

emphasize material preservation take a state-centered view, grounding the existence of the state in

a pre-legal right to self-preservation, while most theorists who emphasize normative preservation

theories the constitution-centered theories ground the state‘s existence in a normative order,

denying that any pre-constitutional right could exist. Rather than following either of these, the

principle of salus populi as I have described it identifies self-preservation with the population,

which is a hybrid concern between material and normative theories. Finally, the link between

necessity and self-preservation is at a point of uncertainty in international law; even as the

coupling necessity/self-preservation has been largely rejected in general international law, modest

and formal modes of ―self-preservation‖ have entered the idioms of human rights law and

international humanitarian law from diverse quarters, not least of all the political theories of

constitutionalism. In my view, it would be a mistake to reject a protective principle of self-

preservation in international law, both for reasons of systemic coherence as well for the purpose

of apprehending within the law and not outside of it actual violent threats to the lives of states and

populations.

Beginning with Chapter Two, I describe the substantive areas of modern international

law and their attendant doctrines of necessity. There is little left of the notion of ―necessity‖ as an

extra-juridical discourse opposable to the principles of international law. Indeed, each of the

doctrinal forms of necessity— (1) the general laws governing treaty practice and state

responsibility; (2) the customary and Charter-based law governing the use of force; the laws of

armed conflict (IHL); and (4) human rights law (HRL)— seems to deny this. Cutting across these

areas of law, a more general notion of non-derogability is emerging, represented by the category

jus cogens, more controversial in content than in principle. On one hand, as this dissertation

describes, there are numerous instances of the doctrinal closure of necessity and the long term

development of doctrines of necessity infra legem. On the other hand, the peculiarly self-

deconstructing quality of necessity, its imperative form, never does away with the possibility of

the rupture of these doctrines, revealing necessity extra and contra legem. To be sure, legal

doctrines will not foreclose all conflicts and dilemmas. More likely, they will simply generate

new ones. This is the concern of the second half of this dissertation.

Chapter Three takes up in further detail two fields of application of necessity doctrines:

international humanitarian law (IHL) and human rights law (HRL) and identifies three situations

that render applicability of the doctrines uncertain: (1) ―convergence,‖ the simultaneous

application of the two regimes or the identification of common minimum standards, (2) ―lex

specialis,‖ the displacement of one regime of law by the other, and (3) ―extra-territoriality‖— the

applicability of norms from either regime to situations beyond the borders of a state applying the

necessity doctrine. Taken together, these are examples of what I call ―complex derogation,‖

(which contrasts with the ―primitive derogation‖ of the ―law of peace‖ by the ―law of war‖). I will

draw primarily on three recent cases of the ICJ—The Danube Dam case, The Advisory Opinion

on the Israeli Security Barrier, and the Nuclear Weapons Advisory Opinion to interpret applicable

principles of necessity in international law. The complexity of coordinating derogation

procedures against the background of the concerns they are meant to address might undermine

confidence in the coherence of international law, and also the possibility of the doctrinal closure

in favor of more open-ended or self-justifying discourses of necessity. On the other hand, there

remains the peculiarly self-deconstructing quality of necessity: its ―imperative‖ form. This

dissertation, largely critical and theoretical, is based on a series of descriptions of these different

regulatory layers and their potential conflicts. When there are conflicts between different

governance regimes and supremacy seems undecidable, the question of precisely where

competence is located is often situational and therefore unpredictable in advance. These conflicts

are not limited to conflicts between international and constitutional emergency governance, but

also between different international regimes, including the derogation procedures in various

international human rights treaties and humanitarian law, which have developed without

coordination

Finally, in Chapter Four, I return full circle to the questions posed in the first chapter, in

order to situate in legal terms the role of ―state survival‖ in the ICJ‘s Nuclear Weapons Advisory

Opinion (1996). The Nuclear Weapons Advisory Opinion demonstrates an oscillation between

―closure‖ and ―rupture,‖ but possibly goes further by implying both the incompleteness of

international law and recognizing an extra-juridical concept of necessity, raising the specter of an

anomic space and a ―vacant imperative‖ which is, so to speak, large enough to drop a nuclear

bomb through. the final chapter cautions that the doctrinal development doesn‘t seem to preclude

this ―necessity‖ from reappearing and consuming them. The unleashing of undesirable doctrines

is most likely to occur in considering an exception in extremis, where a court or decision-maker is

compelled to reasoning from the point of view of near-extinction. On one reading, the

International Court of Justice in their Nuclear Weapons Case reveals the persistence of extra-legal

notions of ―necessity.‖ My own reading of the court‘s opinion, drawing diverse strands from this

study, is to view it as a novel kind of taming, a ―deferred formalism‖ in which the court

cautiously leaves the door open (as opposed to Ago‘s window) not for a vacant imperative for

states to fill with their will, nor for a deformalized version of an existing doctrine, but for an

effective doctrine that has yet to be completely articulated to tame such a situation.

CHAPTER ONE

THE TAMING OF NECESSITY:

FROM ―VACANT IMPERATIVE‖ TO SALUS POPULI

A. Discourses and Doctrines of Necessity

“Necessity is not an established fact, but rather an interpretation.”

--Friedrich Nietzsche

“So a random set of meanings has softly gathered around the word the way lint collects.”

--William H. Gass, On Being Blue (1976)

1. Necessity as a Root Metaphor and Vacant Imperative

Before we look at the various legal doctrines of necessity, let us illustrate in general terms an

ideal-typical and pre-legal discourse of necessity, which I refer to as a vacant imperative. Beneath

every doctrine of necessity, there remains the trace of a more unqualified usage, one that is not

limited by conditions of any kind. This ―vacant imperative‖ is of course a mythic pure type,

exaggerated here for analytic purposes, but its rhetorical use is often equally unyielding and

categorical.17

This is the sense of necessity that we encounter, reified and personified, in familiar

maxims and adages, some of which border on cliché. Perhaps the most familiar of these is the

maxim ―necessity knows no law.‖ This phrase has uncertain origins, but we can scarcely imagine

its first use was innocent of violence or free of desperation. The theologian Tyndale said, ―Two

things are without law, God and necessity.‖18

The jurist Bracton put this idea slightly more

precisely: ―what is not otherwise lawful necessity makes lawful.‖ When Cicero spoke of the

―law‘s silence amid the clash of arms,‖ or of ―public safety as the supreme law,‖ he was giving

minimal content to this otherwise nebulous constraint or compulsion, giving a use value to a prior

or superior anomy. In this general manner, writers, philosophers, and statesmen have, over the

centuries, formulated and re-formulated the maxim ―necessity requires no law.‖19

Even when the

opposite point is argued, some form of this maxim seems to be well known. Yet, upon inspection,

each of these phrases tells us more about a theory of law than a definition of necessity. If

necessity itself is harder to pin down, that may be because by itself, ―necessity‖ is a vacant

imperative, a marker of absolute urgency empty of any intrinsic content. The characteristic of a

vacant imperative is a lack of specificity. While it is empty, tautological, or circular, it holds a

place for normative force and justification, and will sometimes appear to possess positive

characteristics even in their absence. But necessity is not a source of normativity, but only a

place-holder for proposed action. If, as another adage tells us, ―necessity is the mother of

invention,‖ it is a flexible discourse, hostile to dogma and open to contingency, and ―as needed‖

generative of unexpected conceptual offspring. In my view then necessity is also a weapon in

waiting: polemical, political and always potentially dangerous.

More to the point of this study, necessity provides a root metaphor for various discourses

and doctrines of emergency governance in international law. The characterization of it being

―vacant‖ –an imperative in form and little else— both facilitates the diversity of discourses and

17

I have already used separately the words ―categorical‖ and ―imperative‖ without naming Kant or

the principle that would seems so opposed to the brute violence of ―necessity.‖ Gillian Rose teases this

implication out of the Metaphysical Elements of Justice. Rose asks whether necessity, along with equity,

might be a ―ius aequivocum‖ a right whose status is equivocal or one ―whose voice cannot be heard‖:

―[these are] muffled snatches of the particular; divine Necessity speaks no words, no law‖ because no

words need be spoken while the right of violence is executed. Could this be the practical principle which is

absolute (categorical) and forceful (imperative) but unnamable? Knowing that Kant would not approve, she

muffles the suspicion and leaves it equivocal. Gillian Rose, The Dialectic of Nihilism: Post-Structuralism

and the Law, New York: Blackwell (1984) 15. 18

OED 19

More recent manifestations of this kind of maxim, now focusing on a link between necessity and

mortality are ―the constitution is not a suicide pact,‖ or ―when you‘re dead you don‘t have any rights‖. See

Chapter Four below, particularly the section entitled ―Necessity: Reasoning from the Point of Extinction.‖

doctrines that can be rooted in necessity, and also makes the application of all of these

problematic at times; in colloquial speech and political rhetoric alike, concrete doctrines are often

reduced to the root metaphor. Among the possible terms, I refer to this root metaphor as

―necessity‖ since this term is closest to being a pure imperative; whether it suggests a constraint

or compulsion it simply means ―must.‖ If there was a stable term that connoted this idea, it would

be performative as well as imperative. It would be a ―speech act‖ that potentially ―calls into

existence‖ a situation that would be understood by its intended audience as a demand for

extraordinary action. it implies a demand for action, or a warning of intolerable consequences of

inaction. In part, it informs and even generates many of the concepts that are central to the

operation of law and politics. In truth, the various principles attempt to fill this vacancy—

including self-preservation and raison d‘etat— can be treated as much as concrete referents as

simply posing another layer of emptiness. Why then for the purposes of this dissertation, do I

choose the term ―necessity‖ to describe this originary, mythic, and all-important non-referent?

Why cast other terms—emergency,20

crisis,21

exception, threat, or risk22

— as derivative; as

20

The OED phrases emergency in juridical terms, defining a ―state of emergency‖ as the situation

―wherein the normal constitution is suspended.‖ Declaration of a ―state of emergency‖ brings to foreground

rules or that temporarily suspend pre-existing rules during crises to preserve fundamental values of the

political community. For example, according to the OED the term ―emergency,‖ ―urgent and unforeseen

occurrence‖—from he Latin verb emergere has to do with ―salience‖— to rise up, come out, become

visible. Though this is the root of the English word emergency—an these connotations are more familiar in

the words ―emerge‖ and ―emergence.‖ even today, the fact of an emergency is tied from the beginning to

its perceptibility, its epistemic recognition, and perhaps also its declaration. There is an embedded

imperative here: to recognize an emergency is also to begin to confront it. Emergence connotes that

something be seen, recognized, a depth brought to surface. Emerge is to arise, rise up and out as if from

water by virtue of buoyancy. And that it is previously hidden or sunken, merged, or submerged, a depth. No

one knows for sure why Hobbes named his Leviathan after a biblical sea monster, but the idea of the

concurrent and necessary ―emergence‖ of a sovereign at the time of an emergency may provide the answer.

In this way, Hobbes ties sovereignty to the emergence of the entity that recognizes the emergency; Carl

Schmitt puts it more directly: ―sovereign is he who decides upon the state of emergency.‖ From the

beginning, leaning on its factual basis and epistemic recognition, the term emergency contains a double

helix of threat/response. Like the Greek term kreisis (―crisis‖), it is simultaneously a serious threat and

intervention. It is both a contingency that departs from the familiar norm, and a contingency that forces us

to depart from our norms. An emergency gathers connotations, political and juridical, it slips into other

meanings: it becomes a situation that is analogous, if not identical to war, it overlaps with war, war within

war, war against war, it is urgency incarnate, it is an exception, it is an imperative, and it is ―necessity.‖

There must be an underlying peril, danger, or threat called an emergency before a state of emergency can

be construed. The underlying emergency, which can be called the factual emergency, is a sudden or

unexpected occurrence, state of things, or event. The factual emergency is autonomous from its

recognition and the declaration, but conventionally these things are linked. It is in this sense the proverbial

―falling tree‖ that not only requires us to see or hear it, but also to somehow respond to it as a tree in

distress. The underlying emergency becomes name for both the danger and its response. Although

etymologically, the term ―emergency‖ implies at once the factual emergency and the measures that need to

be taken, it is of course logically and historically possible to describe emergencies that are not responded

to, but even this sense is constrained by the idea that it should have been responded to. The factual

emergencies that will be dealt with in this dissertation are political rather than natural events, and they are

closer in meaning to ―peril, danger, or threat‖ than ―disaster, misfortune, or injustice.‖ Take for example

India. When ordinary Indians today remember the period in the 1970s as ―The Emergency,‖ they do not

remember the underlying reasons for it, the purported crisis that led to it, but only widespread violations of

civil liberties, forced sterilizations, and the fall from grace of an increasingly autocratic leader. In

retrospect, it is the disproportionate response by the government of Indira Gandhi and not the original threat

that is remembered as ―The Emergency.‖ More often, the cause and response are truly conjoined in the

phrase ―The Emergency,‖ the same way private and public violence are conjoined when in Northern

Ireland bystanders speak of ―The Troubles.‖ It is familiar in States of Emergency that this duality should

solidify, threat and response, coupled together as a double helix. 21

The argument from necessity also shapes the concept of crisis. See Reinhart Koselleck, ―Some

Questions Regarding the Conceptual History of ‗Crisis‘‖ in The Practice of Conceptual History: Timing

History, Spacing Concepts (2002); Jurgen Habermas, ―A Social-Scientific Concept of Crisis‖ in

Legitimation Crisis (1973). A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

Not in etymology, but in usage, the term ―crisis‖ shares the duality of emergency, once again bridging the

empirical threat with its epistemic recognition. Like ―critical‖ the etymology of crisis is derived from krino:

―to cut, to select, to decide, to judge; by extension, to measure, to quarrel, to fight… aimed at a definitive,

irrevocable decision.‖ From this, we get a ―situation in necessity of decision.‖ Crisis turns on decision:

(―Point by which to judge... [a] token, sign...to decide.‖ It is ―A vitally important or decisive stage in the

progress of anything; a turning point; also, a state of affairs in which a decisive change for better or worse

is imminent‖ and ―especially to times of difficulty, insecurity, and suspense in politics or commerce‖).‖

Taking in aspects of decision, necessity, predicament, and intervention, crisis is a polyvalent term. Colin

Hay summarizes the term best as a moment of ―decisive intervention.‖ This definition brings in

connotations of decision, urgency, and intervention. In conversational English, crisis implies both the

problem and its answer, though more recently it has come to connote just the problem. One can presumably

―confront,‖ ―avoid,‖ ―prepare for,‖ ―recognize,‖ ―contain,‖ ―exacerbate,‖ ―resolve‖ or even ―profit from‖ a

crisis. In medicine and Greek tragedy, a crisis is a turning point. Jurgen Habermas, ―A Social-Scientific

Concept of Crisis‖ in Legitimation Crisis (1973). Similarly, placed in competent hands, with the term crisis

it is not a pilot or steward, but a doctor intervening to save the ―life of the nation.‖ As we will see in the

next chapter, the ―tragic‖ sense of the turning point is retained and amplified by illiberal intellectuals. In

both emergency and crisis, there is an overlap in use of these concepts with more general uses in

international law, such as ―public emergency‖ and ―humanitarian crisis.‖ There is a vigorous literature

documenting ―international crisis,‖ a category which overlaps only incidentally with internal states of

emergency. There are several problems associated with defining ―crisis.‖ James A. Robinson, ―Crisis,‖ in

3 International Encyclopedia of the Social Sciences 510 (David L. Sills ed., 1968). Keith E. Whittington,

Yet Another Constitutional Crisis?, 43 Wm. & Mary L. Rev. 2093, 2096-98 (2002); The concept of crisis

has been similarly developed within Marxist critical theory. Claus Offe, for example, defines crises "as

processes in which the structure of the system is called into question ... [that] endanger the identity of the

system.‖ These may result either from events that ―lie ‗outside‘ the boundaries determined by the system‖

and thus are "foreign to ... or destructive of that system," or from internally generated events ―that violate

the 'grammar' of social processes.‖ Claus Offe, Contradictions of the Welfare State 36-37 (1984). Similarly,

Jurgen Habermas has developed the concept of crisis as arising "when the structure of a social system

allows fewer possibilities for problem solving than are necessary to the continued existence of the system.

In this sense, crises are seen as ―persistent disturbances of system integration.‖ Jurgen Habermas,

Legitimation Crisis 2 (1975). If, as Habermas wrote, ―Crisis occurrences owe their objectivity to the fact

that they issue from unresolved steering problems,‖ Legitimation Crisis (4), then perhaps international

emergency governance is threatened by a potential ―crisis of crisis management.‖ The steering problems

within an international system of emergency governance can be conceptualized in terms of status but also

in terms of coherence. Crisis often implies or is used synonymously with ―panic, catastrophe, disaster, [or]

violence.‖ In the discipline and vocation called ―crisis management,‖ the term is taken as a situation that

urgently requires an immediate decision.

containing traces of necessity, or merely arguments from necessity? In part, the choice is

arbitrary, but these other terms are less self-referential than necessity— and terms such as

emergency, exception, and crisis, unrelated in etymology in semantic terms converge in where

they are translated into imperatives, where they become ―arguments from necessity.‖ A semantic

study of necessity— rather than a straightforward conceptual history or an etymological study of

the term itself— would suggest what the space that the concept of necessity occupies in its usage,

the meanings it signifies that can be filled or surrogated by other words: e.g., emergency,

exception, or self-defense. Semantics studies not the origins or the development of specific word,

but the significance of signs, ―the laws governing changes in meaning, the choice of new

expressions, the birth and death of idioms.‖23

Here, ―necessity‖ as a particular focus of semantics

22

Necessity qualified in scientific terms in terms of causation, but it is also qualified in discourses

of statistical probability and risk assessment. The concept of crisis was for a time assimilated into an

increasingly technocratic discourse of ―risk.‖ Extraordinary events and threats made salient through vast

social forces (media, government alerts, and public conversation) will overtake C.f. Anthony Giddens,

―Fate, Risk and Security‖ in Modernity and Self-Identity (1991) 109-143. In risk assessment and crisis

management literature, crisis is no longer quite as marked by unpredictability and fatalism than it is by

predictability and manageability. This is parallel to the movement of accident law identified by Habermas

in Between Facts and Norms (1998) 405. In this form, it became distanced from more general issues of

sovereign intervention. However, at least in the short term, there has been a return to the more global and

fatalistic connotations as the field of crisis management paid increasing attention to more global issues of

disaster and risk management since September 11, 2001, including increased attention to international law

and constitutionalism. C.f. The Journal of Contingencies and Crisis Management, whose articles between

September 1997 and 2001, were dominated by technical issues around management issues, whereas after

September 2001 and 2003, all the issues were more international and national security-based. This probably

reflects that international terrorism and other large scale instances of political violence are becoming more

salient as sources of insecurity rational risk assessment. Issues around security (barring economic,

environmental, and other aspects of human development), are disproportionately, For the vast majority of

Americans, it remains true that the chances of dying in a terrorist attack are close to zero. [cite to Foreign

Policy Article here] According to one account, the odds of dying in a terrorist attack are minuscule.

According to the U.S. Centers for Disease Control, ―the odds are about 1 in 88,000. The odds of dying from

falling off a ladder are 1 in 10,010. Even in 2001, automobile crashes killed 15 times more Americans than

terrorism. Heart disease, cancer, and strokes are the leading causes of death in the United States—not

terrorism… People overestimate risks they can picture and ignore those they cannot.‖ Government

warnings and 24–hour news networks make certain dangers, from shark attacks to terrorism, seem more

prevalent than they really are. Yet it makes sense that subtle risk assessment loses its meaning in the most

immediate moment of crisis. the chances of a plane crashing into one tower of the World Trade center were

probably also close to zero and at the moment of impact how does one calculate the likelihood that a

second plane would crash into the second tower only minutes later? The numbers must be put in the context

of the terrorist imagination to create unlikely even outlandish outcomes. 23

Michel Bréal, Semantics: Studies in the Science of Meaning (Essai du sémantique 1895) Engl.

Trans. Mrs. Henry Cust 1900. Bréal, the founder of the discipline in the essay ―Les Lois intellectuelles du

langage‖ (originally published in L'Annuaire de l'Association our l'encouragement des études grecques en

France), defines semantics as ―the laws governing changes in meaning, the choice of new expressions, the

birth and death of idioms, have been left in the dark or have only been casually indicated.‖ He distinguishes

this ―science of meaning‖ from adjacent disciplines such as phonetics and morphology,‖ On the history of

the term semantics, see A. W. Read, 'An Account of the Word Semantics', Word, IV (1948), 78-97.

(contra etymology or philology) need not be called ―necessity‖ to represent the same kind of

claim. Instead it is simply a root metaphor which might be represented by many names in many

languages, traditions, and contexts. So even if the morphology of these terms changes, and

etymologically they are not related in the least, they seem to operate in a similar way, and are tied

together by a string of myths and metaphors.24

adopt the ―argument from necessity.‖ Terms like

crisis, emergency, or exception, which seem to connote contingent demands for action, are not

linked by any root word in any language. Instead they are linked by a root metaphor, and these

other terms, (or even discursively remote concepts like ―sovereignty,‖ ―Sabbath,‖ or ―natural

selection‖) can be seen to appropriate the structure of this ―argument from necessity,‖ adopting

the root metaphor to describe a range of compulsions or constraints. In contrast to the potential

specificity of any of these terms, by itself, “necessity‖ is an imperative vacant empty of any

intrinsic content— to say something is necessary is to say it is imperative— signifying only

urgency, and waiting to be concretized.25

24

There is a thin line between semantic (denotative) and semiotic (connotative) discourses on necessity.

Though I will not investigate the latter in much detail, I recognize that academic discourses and legal

doctrines of necessity have not foreclosed richer symbolic imagery of the exception, and even in scholarly

debates the vacant imperative has been filled with peculiar myths and metaphors, some of which form a

standardized and clichéd repertoire. Political theology (the exception as miracle, constitution as creation) to

political zoology whose menagerie includes (sea monsters, wolves, and tigers. These include metaphors of

sacrifice and divine duress (myths of Abraham at Moriah and Agamemnon at Aulis; presiding over the

sacrifice of their children to ―necessity‖. If god was a gunman, we‘d call it duress; unless faith or hubris

pressed these fathers; still closer to nature than the gun and threat that mother in Styron‘s Sophie‘s Choice

faced a dilemma to sacrifice one of her children at gunpoint); metaphors of constraint and binding (the

straight-jacket, the suicide pact, the social contract, Ulysses tied to the mast, tied hands); metaphors of

contingency (free hands) or engagement (dirty hands) and images ranging from political theology (the

exception as miracle, constitution as creation) to political zoology (sea monsters, wolves, and tigers).

International law has contributed to spatial metaphors drawing on geometry that was earlier a province of

existentialism (vanishing point, black hole, grey zones, limit cases, boundary situations). In literary and

legal contexts, we have also seen figures of expertise (the pilot, the surgeon, [Decision, critical, as an

incision cuts discussion but cuts precisely] Chesterton‘s question: ―the chemist or the grocer?‖), metaphors

of ―oneness‖ and splitting (letter and spirit, the king‘s two bodies, the two voices of the law, Mitra and

Varuna) metaphors of steering (navigating between Scylla and Charybdis, the executive as steering the ship

of state, governing), stealth and deceit (―the Trojan Horse of emergency‖). As a form of political carnival,

the exception is an inversion of power (Agamben, Benjamin), but as a latent Leviathan, it is sovereignty

itself (Schmitt). Images of beheadings, interregnum, perversions, iustitium, the feast of fools, the ban, the

outlaw, the camp). and other recurring images (the balance, blind justice, a veil thrown over the statue of

liberty, ―the ticking bomb‖ There are of course cultural and generational points of reference. In the past

century alone, words like ―carpet-bombing,‖ ―water-boarding‖ or ―window of opportunity‖ are more or less

meaningful as illustrations of necessity to people with different experiences. 25

Important semantic techniques include the identification of differentiation (where synonyms diverge);

the extinction of certain forms (i.e. vanishing mediators); analogy; simplification (to cover more general

patterns); pejorative tendency (e.g. here ―dictatorship‖); and metaphor: (extension from one realm or sense

to another).

It also remains possible that terms that adopt the ―argument from necessity‖ if they retain

the root metaphors also remain tethered to the anomic space opened by the prior concept of

necessity (the ―vacant imperative‖). This appears as an oscillation between ―closure‖ and

―rupture.‖ On one hand, as this dissertation describes, there are numerous instances of the

doctrinal closure of necessity and the long term development of doctrines of necessity infra

legem. On the other hand, the peculiarly self-deconstructing quality of necessity, its imperative

form, never does away with the possibility of the rupture of these doctrines, revealing necessity

extra and contra legem. What is noticeable is that the closure of necessity is a constant project,

indeed it is embedded in countless projects, but at the same time, the reduction of ―necessity‖ into

vacant imperative is available and will sometimes disrupt the smooth functioning of these other

incarnations. In this way, necessity is always potentially a parallel discourse, which does not

intersect with modern doctrines but casts an overlapping shadow.26

Thus my claim in this

dissertation is not that necessity was first in time among these concepts or that any successive

concept completely replaced it. It is a root metaphor that is for some time displaced by ―tamer‖

concepts— self-preservation, proportionality, security, and sometimes even by doctrines termed

―necessity‖— but the genealogical claim here is that the disruptive and exogenous force of this

raw ―necessity‖ never completely disappears. More often, the argument from necessity persists

and haunts its doctrinal offspring. In this view, rather than being confronted by an exogenous

force (politics, violence, or morality), laws of necessity are reduced to a bare imperative, losing

their specificity and history.

2. Discursive and Doctrinal Closure

To political scientists and legal theorists alike, necessity in its ―raw‖ form is a kind of an

anachronism. Yet the space of emergency is one marked by atavism of all kinds, and revivals of

interest in discourses of necessity seem to accompany periods of acute crisis.27

The political

26

Image credit to Wallace Stevens: ―two parallels that meet, if only in the meeting of their shadows.‖ 27

To take only one such period of crisis, ―necessity‖ in international relations work of Carr and

Morgenthau, the international law of Kelsen and Lauterpacht, and constitutionalism were all shaped

implicitly or explicitly in response to the Weimar constitutional crisis. In political and constitutional theory,

these works included Carl Schmitt‘s first study of emergency powers Dictatorship (Die Diktatur) (1921),

Clinton Rossiter‘s Constitutional Dictatorship (1948), Frederick M. Watkins‘s article ―The Problem of

Constitutional Dictatorship‖ (193x), and Carl J. Friedrich‘s lectures (dedicated to Watkins) collected as

Constitutional Reason of State (1957). In each of these, as with Roman dictatorship, the question becomes

whether the usurpation was due to weaknesses in the emergency provision or in spite of their best efforts.

This criticism may be unfair considering that the emergency provision was used 135 times over the 13

theorist Harvey C. Mansfield‘s Taming the Prince: The Ambivalence of Modern Executive Power,

explains the development of executive power as a kind of banalization of the ―primitive and

eternal energies‖ of the ancient dictator or sovereign. While I like Mansfield‘s term ―taming‖ the

site of executive, I believe the aim of his genealogy: to establish in an inextricably essentialist

knot the power, majesty and corruption of executive actors is misplaced. Instead, I argue,

problems of discretion issue as much from the open-textured quality of the discourse itself. It

should not surprise us that acts of discretion resting on a vacant imperative would be open to

abuse. The question that reappears so often is whether necessity can be ―tamed‖ ―kept within

proper bounds‖ in terms of doctrinal closure or whether it inevitably ruptures any attempts at

legal framing. The latter notion is of course a notion of necessity that in its purity is in some sense

prior to practical reason, the process of differentiating what is rational and what is required, what

is compelling beyond competing rational bases. But before practical reason, which can be seen as

the first moment of ―taming,‖ necessity can only be seen as an empty space or as hyperbole.

Yet, even in some of the earliest contexts, the claim of necessity is not purely an

imperative of natural law, leaning instead on factual contingency and incalculability to leverage

its force. In Machiavelli‘s time, there persisted the notion of unalterable laws—of political

practice as much as natural philosophy— that treated as self-evident the relationship between

coercive causal forces (necessitia or fortuna) and prudent responses (virtu). The social and natural

sciences of today have separated the two senses of necessity, that which causes or compels and

that which reacts within a range of constraints. Thus, in the present context, necessity should be

understood not as the ontological constraint or over-determination of nature (―Constraint or

compulsion having its basis in the natural constitution of things; esp. such constraint conceived as

a law prevailing throughout the material universe‖) but rather as within the sphere of human

action, ―the constraining power of circumstances; a condition or state of things compelling to a

certain course of action.‖28

However, in the very form of the imperative, there remains the trace

of a vanishing mediator, the shadow of a concept which might have once negotiated and the

years of the Weimar republic without usurpation or substantial abuse). H.W. Koch, A Constitutional

History of Germany in the Nineteenth and Twentieth Centuries 306-07 (1984). 28

Cite OED. A separate derivation is the sense of ―necessity‖ (not discussed in this section) is what

we think of as ―neediness‖ associated with the constraint of poverty. In terms of metaphors from physics,

we can think of scientific theories of necessity as ―torque‖ (compulsion), neediness as ―inertia‖ (constraint),

and the political sense, which we are working with here as ―force.‖

transition between incommensurable conceptions of necessity before disappearing.29

A common

enough reduction is simply to refer to the gravitational quality of being ―compelled‖ allowing

necessity to operate as an ex ante imperative (―necessity requires it‖) or an ex post justification

(or excuse) (―necessity required it‖).30

So even though we no longer tend to conflate the physics

of necessity with its politics, and while our sophisticated epistemologies should dismiss vacant

imperatives as anachronisms, the space of emergency is one marked by atavism of all kinds, and

it should not be surprising if the arts of rhetoric from time to time slip between causation and

inevitability. To revert to physical analogies, has a force and velocity, but no weight or mass. In

this way, necessity has long been bent in the service of the realm of ―the will‖— spirit, politics,

danger, and war. Even if this vacant imperative can be shaped or filled by positive values such as

self-determination, justice, efficiency and self-preservation, it is available for the diabolical logic

of Milton‘s Satan: ―So spake the fiend, and with necessity/ the tyrant‘s plea excused his devilish

deeds.‖ In her book On Revolution, Hannah Arendt captures this idea:

Necessity, since the time of Livy and through the centuries has meant many things that

we would find quite sufficient to dub a war unjust rather than just. Conquest, expansion,

defense of vested interests, conservation of power in view of new and threatening

powers— all these well-known realities of power politics were not only the causes of

most off the wars in history, they were also recognized as ―necessities,‖ that is, as

legitimate motives to invoke a decision by arms.31

Various definitions of necessity hint at a vanishing mediator that might have at one time made

sense of different modern definitions. When one twentieth century international lawyer took for

granted the common usage that the principle of necessity is where ―the stronger takes rightful

precedence over the weaker‖32

the unarticulated mediating concept concerns will, force, or

prerogatives of power rather than strict self-preservation; it is a definition reminiscent both of

Darwinian survival, and Thucydides famously in Melian Dialogue: ―The strong do what they can;

29

The concept of ―vanishing mediator‖ is associated with the work of the Lacanian critic Slavoj

Zizek. See e.g., Slavoj Zizek, For They Know Not What They Do: Enjoyment as a Political Factor,

London; New York: Verso (1991). 30

According to George Fletcher (insert cite) ―the central distinction between justification and

excuse is that the former attaches to ―warranted‖ action and the latter to ―unwarranted‖ action for which the

actor should not be blamed. Justifications have the effect of modifying the applicable rule; excuses simply

seek to relieve the individual from accountability for violating a rule that remains intact.‖ See also Miriam

Gur-Arye, Should the Criminal law Distinguish between Necessity as a Justification and Necessity as an

Excuse, 102 L. Q. Rev. 71 (1986); Kent Greenawalt, The Perplexing Borders of Justification and Excuse,

84 Colum L. Rev. 1897 (1984); 31

Hannah Arendt On Revolution, (cite from other draft) 32

Bin Cheng uses this definition as one possible definition that has erroneously been taken as the

principle of self-preservation.

the weak suffer what they must.‖33

The persistent possibility that stands in the way of such a

definition is the notion that it must be ―rightful,‖ and this is where the doctrinal closure of the

concept becomes possible. In a formal sense, the taming of necessity has involved the moderation

of the sense of inevitability, and in terms of moral development, the taming has involved a shift

from ―will‖ (aggressive, original force, by choice) to ―preservation‖ (defensive, to repel force,

without alternative).34

Empirically, claims of ―necessity‖ should not be taken as natural or inevitable; they

should be treated with the utmost skepticism. But the concept itself should also be deconstructed.

Is it at base simply a vacant imperative, or is it made complete by some essential, but vanishing

mediator? Arguably, when we engage with concepts such as ―right‖, ―prudence‖,

―proportionality‖ and ―preservation,‖ we are not imposing an external domesticating influence on

the concept but pulling out of necessity certain concepts and connotations that have always been

there. In many early contexts, the sense of necessity is already tempered by techniques of

practical reason, the weighing of factual contingency and at least the attempt at foresight in the

face of relative incalculability. In this way, any connotation of necessity as unbridled force is

excluded from the concept and the maxim ―necessity knows no law‖ –a meta-rule that describes

or supports situations where force may vacate the law— will suddenly seem misguided and

abusive. Instead, we would see that in every historical context, law lends some shape and

33

The Melian dialogue is found in Book V (85-113) of Thucydides History of the Peloponnesian

War. This represents the worldview of some who call themselves political ―realists.‖ It is unapologetically

antinomic, subjugating law to power. The weak Malians argued that their neutrality should be respected

and ―international law‖ guaranteed their right to be neutral, in the Athenian response, Thucydides gives the

words that resonate with modern realists ―right, as the world goes, is only in question between equals in

power. The strong do what they can; the weak suffer what they must.‖ 34

Adorno actually grounds reason in the ego instinct of self-preservation. Dialectic of

Enlightenment–advances the speculative anthropological claim that Western rationality first emerged in

response to threats posed by external nature. Reason originally developed as an organ of adaptation to an

environment perceived as hostile. Adorno stresses the relationship between reason and self-preservation in

his later work as well: ―Ratio came into being in the first place as an instrument of self-preservation, that of

reality-testing.‖ But he also warns that the more uninhibitedly reason ―turns itself into the absolute opposite

of nature and forgets nature in itself, all the more will a self-preservation gone wild regress into nature.‖ In

fact, it is just this regression of self-preservation that accounts for the negative aspects of enlightenment;

self-preservation has ―gone wild‖ because it now unleashes destructive tendencies that threaten the lives of

the very subjects it is meant to preserve. We are no longer obliged to derive these propositions, as did the

natural law theory, from a metaphysically grounded view of human nature. Rather the findings of history,

psychology, sociology, and political science enable us to demonstrate the propositions with a high degree

of probability.‖ Whether it is natural reason, utility, or empirical study, we can accept as a premise that self

preservation is expansive enough a concept to capture the concerns of all people, not because it is proper,

but because it is smart. But also when we desire something we will accept a normative premise suggesting

it is right to do so. Friedrich 1958 at 220.

concreteness to necessity, and every area of law has its own doctrines of ―necessity.‖ We can

repeat in an endless cycle the maneuver of distinguishing one kind of necessity from another. In

the long term development of the term anyway the ―tyrant‘s plea‖ has become moderated— even

juridified— and the movement has been toward contributory notions of necessity rather than

absolutes, conditional and not categorical, and based in the sphere of human action rather than the

natural constitution of things.

Of course, for all those discourses that ―tame‖ or ―normalize‖ necessity—such as those

that fill the vacant imperative with subtle risk assessment or strict juridical requirements—there

are others that backslide toward the categorical or absolute uses. This is evident even within

juridical necessity doctrines. Yet necessity is not just a ―discourse‖ like any other but also

generative of legal doctrines. Roscoe Pound remarked almost fifty years ago that all problems of

jurisprudence are structured by an opposition between rule and discretion, between ―justice

without law‖ and ―justice within law.‖35

In many ways these oppositions Rule and exception,

norm and decision has never ceased to be useful to legal theorists, guiding recent debates on

interpretation, subjectivity, indeterminacy, judicial competence, certainty, deformalization,

justice, morality, and politics, among other familiar jurisprudential problems. The codification of

doctrines of derogability in international law and explicit limitations on constitutional norms are

two examples of exceptions of this sort.36

where ―necessity‖ has been a grounding metaphor for

states of emergency and other extreme tests of constitutional values. In each of these legal

contexts, it is easy enough to keep in mind pre-legal notions of necessity because the application

of necessity usually involves a situation where normativity meets facticity, on other words where

a rule demands an exception.37

Duality of necessity: there is anything we can take for granted

about necessity discourses, it is the continual oscillation either formalism or contingency…

35

Kelsen law based on a basic norm, Schmitt reducible to a factual sovereign‘s decision. 36

Doctrine of State necessity, legal analogies techniques and principles that mediate the accepted

sources of international law. Principles of state responsibility (excuse) conflicts of rights between states.

Juridical basis of derogation clauses. Obligation/necessity Case of suspension Of use (rebus sic stantibus)

Supervening impossibility of performance (article 61, Vienna Convention of Law of States) Doctrines Self

defense Force Majeure Various Names for emergency powers State of siege State of alert State of

prevention of internal war State of suspension of guarantees Martial Law, and Special Powers. 37

The most common synonym for the general juridical category ―state of emergency‖ is ―state of

exception.‖ By itself, exception connotes infrequent application, rather than emergency which also

connotes gravity of a situation. Notion of ―the exception‖ requires particularly rigorous clarification

because it has too often been elevated to the political-theological realm, been imbued with a fierce alterity

or normless negativity, and sometime de-secularized as an equivalent of a miracle. Part of this is conflation

of two senses of ―exceptional‖: (1) ―Norm vs. exception‖, which is a juridical distinction; and (2) the notion

of ―ordinary vs. extraordinary,‖ which is more of a cultural or aesthetic distinction. The first of these— the

3. Necessity and Inevitability: Post -Tragic Discourses

The frontline of taming is to efface inevitability. Judith Shklar describes a bad faith

ideological use of ―necessity‖ as ―imposing a sense of tragic inevitability upon events that are in

fact entirely amenable to purposive human alteration.‖ We are acquainted with the tragic sense of

crisis introduced by Greek tragic drama.38

Consider, for example, Aeschylus‘s Agamemnon

forced to choose between sacrificing his daughter and marooning his troops: ―A heavy doom is

disobedience, but heavy, too, if I shall rend my own child, the adornment of my house, polluting a

father's hands with streams of slaughtered maiden's blood close by the altar. Which of these is

without evils?‖39

Agamemnon‘s actions would have classically been configured as hubris or

hamatia, the dramatic engine for tragic action, but today he could just as easily be refigured as an

existential hero. We have lost the sensibility that these were cautionary tales, (recalling the

more banal definition— is the one that is relevant to us. [―The action of excepting (a person or thing, a

particular case) from the scope of a proposition, rule, etc.; the state or fact of being so excepted. Something

abnormal or unusual; contrasted with the rule‖]. We will discuss later the radicalization of the exception in

the hands of illiberals like Carl Schmitt. (In political-theological terms, the ―exception‖ is a secularization

of the Christian ―miracle,‖ just as ―constitution‖ is a secularization of ―creation.‖) ―The exception in

jurisprudence is analogous the miracle in theology.‖ Carl Schmitt, Political Theology: Four Chapters On

The Concept Of Sovereignty (Cambridge: MIT Press, 1985), 36. Carl Schmitt‘s theory that ―Sovereign is

he who decides [in and upon] the state of exception‖ can be rephrased in Weberian terms as the

―charismatic‖ exceptional: a ―certain quality‖ ―not accessible to the ordinary person.‖ Personal qualities

unique also claim that this person, in extraordinary times will be revealed to be the true sovereign. Anthony

Kronman, Max Weber at p. 67). Another use of ―exceptional‖ implicit here is ―exceptional threat‖ which is

a notion in the international sphere as well. Even with these issues aside, ―exception‖ has become a

notoriously provocative and imprecise term, used to refer to a crisis, its response, or a gap in governance

created by the absence of a sovereign. 38

Some time after I had settled on the title ―The Politics of Necessity,‖ I discovered that in her short

but brilliant book Faces of Injustice (1990), Shklar includes a short subchapter also entitled ―The Politics of

Necessity.‖ It is unclear whether Shklar too had Schmitt in mind. 39

We do not have to wait for Shklar or even Kant to see that actions have moral and legal

consequences, and that we need not choose between tragedy and piety. Aeschylus himself offers one of the

first post-tragic resolutions in favor of legality and responsibility. The same Oresteia trilogy that begins

with Agamemnon‘s sacrifice of Iphigenia, and continues through a cycle of vengeance where his wife

Clytemnestra murders him, and their son Orestes, in turn murders the mother. The tragic cycle finally

closes with a fundamental paradigmatic shift. Whereas the clan of Orestes was driven by imperatives of

the gods‘, the submission to necessity, and competing pieties, none of which could avert tragedy, the end of

Oresteia reflects an exit from irrational religious edicts, and a move toward the rule of law. Divine Athena

divine guardian of the rule of law over vengeance, let us have the rule of law, new divinity, wisdom,

responsibility. The city, represented by Athena and the city‘s gift to humanity is the rule of law. Citizens

participated in governing of the city state. Power resided in offices. Separate the office of the magistrate

from the man, and therefore offices over private passions. From this point of view, the rupture of ethics

based upon existential ―authenticity‖ is the slippage back to existential angst, human order, to rule of law.

This is one reason to reject ―emergency ethics‖ in favor of ―emergency governance.‖ It is better not to leave

necessity to the heart).The appearance of Athena represents the move from ethics to institutions, which is

also the move to doctrines I make here.

irrational ―punishment‖ meted out to Agamemnon and his heirs over the course of the Oresteia,

until the end when Athena swoops in as the deus ex machina, the founding miracle the Rule of

Law disrupts the endless cycle). Instead ethical theorists (at least those who do not subscribe to

utilitarianism) often take the simplified view that ―choice,‖ (mere decision) any choice is a heroic

act. The structure of externality and over-determination paradoxically frees the decision-maker

from an engagement with tragedy, engagement with responsibility. In this way, whether invoked

ex post or ex ante, ethical discourses of necessity continue to justify expediency in terms of

inevitability.40

The sense of tragic inevitability is linked to an overwhelming or immutable nature.

With signature eloquence, Shklar responds: ―In a truly tragic situation there are no good choices,

none. It is so over determined that human agents must be seen as puppets. Nevertheless, because

they are human, they remain responsible for their character and manner of conduct.‖41

In this

context, necessity is revealed as a polemical concept, a man-made ―must.‖

What resonates here is Shklar‘s insight that necessity may be disqualified as arguing

inevitability is not compelled in a physical, logical, teleological, sense, but also that there remains

compelling in the tragic sense, and this is what is open to abuse, especially the necessity of

vindication as a response to a catastrophe.42

Just as in antiquity, when it was sometimes easy to

confuse the distinction between excuse, justification, and glory (with different gods favoring

different actions, he is doomed to commit at once a great wrong and a great right), today we have

the fetishized rhetoric of ―hard cases,‖ ―dirty hands,‖ or even ―boundary situations,‖ replacing

responsibility with a kind of heroic ―engagement‖ whatever the content or outcome of the

decision. I would add to this that there also remains the ―imperative‖ form itself, which leaves

open the possibility of force even without a determinate content.

40

This ―existential‖ discourse (Walzer, Dirty Hands 1970) was a late response not only to the

writings of Sartre and Camus, but also to Hannah Arendt‘s writing on ―the banality of evil,‖ drawing

primarily on Weber‘s vocational ethics, but missing that Weber distinguishes between the ideal of the

existential hero-leader and the ideal of the responsible civil servant, evoking precisely the milieu Walzer

seeks to avoid. ―Choice‖ or ―decision‖ is not the beginning and end of responsibility. More recent writings

in this genre have veered towards utilitarianism (Dershowitz on torture warrants) or draw upon historical

exemplars to bolster constitutional arguments (e.g., Gross and Paulsen haunted by ambivalent figures such

as Lincoln and Jackson, acting with ―dirty hands‖ and at the risk of their souls in the context of real

emergencies), and sometimes assimilating schemes for ex post responsibility to ―authentic‖ but extra-legal

emotions of guilt, remorse, or regret. 41

Faces of Injustice (1990), 42

In a different context, and more critical usage of the term ―closure‖ not in legal doctrine but in

diffuse and often anti-formal attempts at imposing meaning, see my ―Capital Punishment as ―Closure.‖

Today, a demanding sense of public responsibility must reject two kinds of inevitability;

both the lazy normlessness provided by ―necessity‖ as well as passive obedience to norms.43

This

ground has been called ―prudence‖, ―proportionality‖, ―strict necessity‖, among other things, but

each if these have forms more or less hostile to legality. The ethical subconscious of this paper is

guided by this double recognition. But just as religion and moral philosophy held court over these

issues in earlier times, today no situation of violence and normative complexity can exist entirely

outside of legal discourse. Below, I will track the argument from necessity in three separate extra-

legal discourses: logic, ethics, and politics, and show how these differ from legal doctrines.

4. Extra-Legal Necessity Discourses: Logic, Ethics, Politics

I. Law vs. Logic

Unlike ethics and politics which I discuss below, law need not suppress an excess from

logic; instead it appropriates the structure of an ―argument from necessity‖ and particularizes it in

a quasi-logical system of rules that need not be governed by logical techniques. In logical terms,

which can be traced at least to the Greek philosopher Hermagoras, there is a rigorous distinction

between defenses on the basis of fact (―I did not do x‖), law (―what I did was not x‖), or

exception (―I did x, but there were extenuating circumstances‖).44

These arguments are mutually

exclusive, even if lawyers are accustomed to arguing alternatives simultaneously (―assuming in

arguendo‖), but deftly avoiding being caught in what Freud called ―kettle logic‖ (―I did not

borrow your kettle, I returned your kettle, and there never was a kettle‖). Among these, an

argument from necessity, as this kind of exception, is neither based on factual defense nor a

definitional quibble, but typically takes the form of exception (―I did x, but there were

extenuating circumstances‖). This is to say it introduces information, relying not only on the

forcefulness of its own singularity, but more likely on a recognized or plausible counter-rule that

seeks to change the assessment of the wrongfulness of an action. For the lawyer, however, the

logical distinction between fact, law, and exception can be deformalized: ―extenuating

circumstances‖ refer to factual and legal arguments in that an action can offer a reinterpretation of

a fact, and place it in a different relation to a legal category. (―I committed acts amounting to

torture, but I did so under certain legally recognized exceptions; therefore, what I did cannot be

defined as torture‖). While such a statement could be made to conform to logic with some

specification of the source of the definition and whether the exception was a ―justification‖ or

43

Aron (585) 44

Gregory Raymond, Necessity in Foreign Policy at 675.

―excuse,‖ such distinctions tend to break down particularly when the actor is the State, and the

justifications move across the plane of higher and lower morality, shifting legal standards, and

intentional ambiguities between excluding wrongfulness, conforming with responsibilities,

exercising rights, and fulfilling duties.

While— to combine the language of two very different pragmatists— law may ―wish to

have a formal existence,‖ it is still a formalism based on ―experience not logic.‖45

Unlike these

rigorous logical distinctions, the ―argument from necessity‖ can move between categories, if the

purpose is to cast doubt on the law or facts. The role of the exception is only as an analytic

matter, separable from a rule. According to Cass Sunstein, ―It is familiar to find rules that have

explicit or implicit exceptions for cases of necessity or emergency. It is unfamiliar to find rules

without any such exceptions.‖46

An exception likely relies on a parallel set of rules— which might

be moral or pragmatic rather than legal— which poses a demand is permissible, extenuating, and

understandable under extra-legal standards. Or else, an exception is a sub-rule situation where it

is ―legally permissible to act illegally‖ (an exception as an ―excuse‖). Finally the exception might

be a factually rare application of a rule, but internalized within the realm of legality. At a basic

level, the lives of emergency powers are special cases of the existence of rules. We can

analytically separate out three moments of articulation triggered by an empirical emergency. In

the complex statement of a rule that includes both emergency exceptions and limitations to these

exceptions: Firstly, a rule is the articulation of a general and binding norm. (These are ―explicit

rules‖ rather than other rule-like articulations: presumptions, guidelines, standards, factors, or

principles, but the content of the explicit rule may be rights or institutional competences).

Secondly, an exception is a subsequent rule-like articulation (which can take the form of an

explicit rule, presumption, guideline, standard) modifying or governing application of the rule in

particular contingencies, in many cases supported by a claim of necessity. In this sense, an

exception is an alternative norm, a redirection rather than an interruption. Exceptions can be seen

as alternative norms or rules. There applicability can be a matter of more or less controversy.

Finally, an emergency regulation is yet another rule-like articulation modifying, moderating, or

governing application of the exception, particularly where the circumstance triggering the

exception is an emergency. This includes the jurisprudence on the applicability of derogation

45

Cite Fish, Holmes. 46

Cass R. Sunstein Problems With Rules 83 Cal. Law. Rev. 953, 962-963

clauses in particular circumstances.47

Yet, we must remember that this analytic separation is

simply a tool for clarification. The full range of rules is, of course, messier. First, it may be the

case that all rules contain internal exceptions or ―limitations‖ or that rules and exceptions are

often conjoined rather than articulated separately. In practice, however, each of these moments of

articulation could be found either in the original statement of a rule, or in disparate sources.

According to Sunstein, ―a specific exception might well convert the rule with exceptions into a

complex rule or a formula.‖48

Take for example: ―The government may not confiscate private

property, except in the conduct of a war.‖ This is a typical form of coupling a rule and exception.

In fact, the order of articulation can be reversed without affecting the substance of the rule:

―Except in the conduct of a war, the government may not confiscate private property.‖ These

forms might also be occluded by the presence of two norms within a single rule that must be

balanced against each other, each is symmetrically the exception to the other: ―Private property

interests must be balanced against public necessity.‖

Of course, there are also counter-exceptions and secondary norms setting the priority

between different rules and exceptions. In the first case: ―The government may not confiscate

private property, except in the conduct of war. In cases of war, a special hearing will be held after

the cessation of war.‖ For an identifiable third articulation (emergency regulation) to exist, it

must be distinguished in some way from a reversion to the original rule. The presence of a third

articulation is most obvious where it exists in a source separated from the second articulation.

What I have in mind here is the possibility of emergency regulation issuing from the international

rather than constitutional norms. For example, the rule may be present in a statute; the exception

may be present in a constitution; and the emergency regulation is contained in a multilateral

treaty limiting derogation. These insights will come into play when I discuss (see Chapter Three)

―complex derogation‖ in international systems, which often exceeds the logical distinctions

between fact, rule, and exception, often converting one into another.

II. Law vs. Ethics

47

This analytic separation possibly parcels out these articulations as if they were on a timeline, as

well as in a spatial separation of powers. The rule is first in time and corresponds to a normal government;

the exception is second in time and corresponds to the emergency government; and the emergency

regulation is third in time and corresponds to emergency governance. This is an analytic-temporal

distinction such as that which William Scheuerman has recently applied to the liberal democratic separation

of powers (according to which legislative, executive, and judicial powers are realized along different

temporal horizons) William E. Scheuerman, Liberal Democracy‘s Time (first page, cite). 48

Cass R. Sunstein, Problems with Rules 83 Cal. Law. Rev. 953, 962-963

Just as law deformalizes logic, the fields of ethics and politics tend to push toward a less

formal sense of necessity than legal doctrines. Still, legal regulation of necessity is not the only

possible constraining discourse. Parallel movements against inevitability and towards

responsibility can be seen in these other fields. For example we can describe the efforts of moral

philosophers to codify ―emergency ethics‖ as a kind of discursive closure. We have already seen

above some of the metaphors of sacrifice and divine duress derived from myths and tragedies that

moral philosophers will sometimes draw upon to illustrate difficult cases. Necessity as a

justification derives from consequential moral theories, according to which wrongful actions

may be morally deemed by the goodness of their consequences. It justifies the sacrifice of

legitimate interests to protect other interests of substantially higher value. It does not

grant the individual ―a license to determine social utility.‖ It is rather limited to

emergency cases in which there is an imminent and concrete danger to an interest

recognized by the legal system. Many theorists offer ethical and legal theories and some even

blend these. There is not a bright line to be drawn between ethics and law. But, it is the way the

exception is governed, the fact of accountability—when the politician puts bodies at risk, he must

risk his own material circumstances, not simply his soul or his conscience, nor his subjective

virtue. Emergency governance is the assessment of decision rules‖ (guiding the decisions of

officials) rather than ―conduct rules‖ (guiding the conduct of the general public).49

In a manner

parallel to this, and applied to some of the same problems, moral philosophers continue speak of

―emergency ethics,‖ and it is right that they should do so, indeed some areas of law—

international law in particular—are experiencing a ―turn to ethics.‖ But, in my view it is even

more important to specify legal doctrines of necessity, that is to say ―emergency governance.‖

Both law and ethics can be structured on the norm-exception (and by analogy formalism-

contingency) distinction, but the sphere of ethics is based on virtue, not rules, and offers no

reliable way of censuring the violation of standards. Many theorists offer ethical and legal

theories and some even blend these. There is not a bright line to be drawn between ethics and law.

We have choices and our choice is not between tragedy and piety, but between relative formalism

and relative contingency. Formal accountability and not existential responsibility will

demonstrate that we are dealing with law and not simply ethics. Ethics is not a procedure, but a

49

Meir Dan-Cohen, Harmful Thoughts, Essays On Law, Self, And Morality, 37-93(2002). The

Criminal law theorist Meier Dan-Cohen says that in a sense, the law speaks with two voices conflicting

messages in the law, Dan-Cohen refers to the ideal of an ―acoustic separation‖ –imaginary situation where

certain actors only selectively hear one of two sets of messages: either ―conduct rules‖ (guiding the conduct

of the general public) or ―decision rules‖ (guiding the decisions of officials)

series of standardized arguments and objections, which flow in a circular and repetitive fashion.

How different is this from legal rhetoric? In Metaphysics of Morals50

Kant separates a Doctrine of

Right (which pertains to law) from a Doctrine of Virtue (which pertains to ethics). Each provides

a different impetus to conform to duties. The fundamental principle of right is the maximization

of freedom in accordance with the freedom of others, and this principle, according to Kant, is a

priori.51

It is proper to be coerced to do what is in accordance with right because a hindrance to a

hindrance of freedom is right.52

Thus, enforcement plays a central role in Kant‘s theory; it is

coercion and not conscience, society and not the soul, that provides an external reason and

distinctively legal account of right action, and for behaving in accordance with duties. Right can

be embodied in law and when law is in accordance with right, it is just law.53

Formal accountability and not existential responsibility will demonstrate that we are

dealing with law and not simply ethics. But, it is the way the exception is governed, the fact of

accountability—when the politician puts bodies at risk, he must risk his own material

circumstances, not simply his soul or his conscience, nor his subjective virtue. The move to

Athena in the Oresteia is a move to the responsible office, the rule of law, and to law-based

solutions. who the danger and emptiness of ―necessity.‖54

Robert Cover persuasively argued that

50

Immanuel Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge

University Press, 1991). p. 206. References are to the Academy Edition pagination. 51

Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University

Press, 1991). pp. 230-1. 52

Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University

Press, 1991). pp. 231-2. 53

To some, certain kinds of international law simply resemble natural law or moral duties, duties of

right are those which are physically enforceable. Kant. Metaphysics of Morals. Translated by Mary Gregor.

(Cambridge: Cambridge University Press, 1991). p. 311. Kant declares that Doctrine of Right, all further

discussion of man‘s external freedom and the possibility of acquiring rights through the imposition of

external laws revolves around this paradoxical axiom: that the internality of innate freedom only gives rise

to moral laws, rights and duties because of the existence of external relations among individuals who are

already bound to one another by this primordial right. 54

To take only one example from a contiguous field, Robert Cover's classic intellectual history of

antislavery jurisprudence in the United States Justice Accused (1975) showed how necessity was not only

the justification for Lincoln's defense of the Union, but also the quasi-legal justification for the preservation

of the social order of the Southern slaveholding states. Even without reference to moral or natural law

arguments for and against slavery, this important issue was discussed (by judges) and then resolved (by

armies) under the banner of necessity:

[Upon the anti-slavery discourse on racial prejudice] the instability of the doctrines of

natural right and slavery were least satisfactorily resolved. It was resolved by setting up necessity

as a polar counterweight to natural right, To the maxim ―fiat justia‖ the torn master responded

―salus populi superior lex est.‖

This is an example of the inter-penetration of legal and political discourses in a particular

direction, but not of the articulation of doctrines. Despite the fact that common law reasoning in the United

States is not decided by reference to general principles and maxims, but rather to analogies with previous

jurists were structured by these competing discourses: This model of a tug-of war necessity as a

polar counterweight to natural right, To the maxim ―fiat justia‖ the torn master responded ―salus

populi superior lex est.‖ Arguments from justice (here, the natural right of revolution) and

necessity (the preservation of the social order) share a plane of abstractness, and in Cover's

words, a frankly meta-legal character. However, these discourses reappeared in doctrinal forms

and had consequences for how doctrines were argued. This is not so much about legality but level

of generality (what Cover's larger work called the moral-formal dilemma). According to Martti

Koskenniemi, the difference between a turn to formalism and a ―turn to ethics‖ is that the latter

unleashes a kind of contingency or dynamism (―who can, may.‖):

In such a situation, insistence on rules, processes, and the whole culture of formalism

now turns into a strategy of resistance, and of democratic hope. Why? Because formalism

is precisely about setting limits to the impulses - "moral" or not - of those in decision-

making positions in order to fulfill general, instead of particular, interests; because it

casts decision-makers as responsible to the political community; and because it

recognizes the claims made by other members of that community and creates the

expectation that they will be taken account of. Of course, the door to a formalism that

would determine the substance of political outcomes is no longer open.55

This is to restore a notion of necessity strictly inside bounds of acceptability while separating it

from an outside ―abuse‖ or ―arbitrariness,‖ since ethical impulses are just as arbitrary,

particularistic, and transient as any other from the point of view of a legal system. The difference

lies in the impetus to conform to duties. This right is not negative in nature, but positive, the

government is not obligated strictly by morality, but, rather, by the need to sustain itself, which

guarantees the existence of its sovereignty. On the other hand, we can imagine moral theories that

are supportive of legal formalism and legal considerations, not least of all the design of political

institutions in a way that attempts to exclude their abuse,56

or for underlying reasons to be

committed to the legal articulation of rights.57

cases However, see George Fletcher, Romantics at War, (Introduction comments on the common law‘s de

facto use of general principles]. Cover persuasively argued that jurists were structured by these competing

discourses: This model of a tug-of war between the claims of justice and the dictates of necessity was very

much in the minds of jurists who took the slavery issue seriously. Arguments from justice (here, the

natural right of revolution) and necessity (the preservation of the social order) share a plane of abstractness,

and in Cover's words, a frankly meta-legal character. However, these discourses reappeared in doctrinal

forms and had consequences for how doctrines were argued. This is not so much about legality but level of

generality (what Cover's larger work called the moral-formal dilemma). 55

Martti Koskenniemi, ―turn to ethics‖. 56

Ruth Barcan Marcus in ―Moral Dilemmas and Consistency‖ argues that ―…although dilemmas

are not settled without residue, the recognition of their reality has a dynamic force. It motivates us to

arrange our live and institutions with a view to avoiding such conflicts. It is the underpinning for a second-

III. Law vs. Politics

The separation of legal from ethical ―arguments from necessity‖ is one important step in

distinguishing a relatively constrained sense of necessity. Another is to separate legal doctrines

from similar political discourses. Again maintaining the sense of the imperative, inevitability

suffuses the political discourses on necessity with willfulness. Insofar as necessity discourses are

limited, against inevitability and towards responsibility. It is often by political ―prudence‖ rather

than formal-legal constraint.58

Doctrinal identity of necessity depends on it being conditional on a

specific value. However, others use a discourse of ―prudence‖ not as constraining but as enabling,

adopting the argument from necessity. Even if it is called prudence, or political responsibility, he

argument from necessity involves the straitening of circumstances. Political prudence, in harder

or softer forms, will involve recasting a situation where there are limited alternatives into a

situation where there are none at all. It casts a situation that is conditional as categorical, a

practical choice as imperative. In other words, we return to the proposition that necessity is

inherently a polemical concept. As many realists know, it is easier said than done to convert

―necessity‖ into an empirically verifiable phenomenon.

Necessity can be as problematic in the manner of its taming as in remaining without content.

Political realists who objectivize necessity justify it as a valid and verifiable imperative. Political

order regulative principle: that as rational agents with some control of our lives and institutions, we ought

to conduct our lives and arrange our institutions so as to minimize predicaments of moral conflict.‖ Barcan

Marcus in ―Moral Dilemmas and Consistency‖ Journal of Philosophy. Vol. 77, No. 3. March, 1980. p. 121 57

For the vocabulary of human rights, traditional international law provides a (functional) grammar

of positivism, but a sometimes idiomatic and empirically complex one. Rights derive from historical

episodes of argumentation, but most often they precede us. Rights claims can be placed in different

grammatical structures that might or might not make sense to us. Whether constitutional rights obligations

erga omnes, fundamental rights, or non-derogable rights, what were at one time tied to nature are now tied

to different prepositional or relational metaphors (above, inside, below) these can be called ―higher,‖

―core,‖ ―entrenched,‖ or ―fundamental.‖ In this sense, hierarchy is part of a representational system, not

privileged access to the natural world. In international law, ―higher law‖ (as Lauterpacht defended it)

should not be understood as derived from the sky, but in formal relation to other values. Similarly, the

techniques that link constitutions and international law have dome more for the guarantee of rights than

philosophy or religion. That rights can be considered entrenched is due to the proliferation of formal

techniques and resources, and not through the naturalization of rights. Counter-critique, by David Kennedy,

associating human rights vocabulary with legalism: ―The human rights vocabulary, with its emphasis on the

development of law itself, strengthens the tendency of international lawyers more broadly to concern

themselves with constitutional questions about the structure of the legal regime itself rather than with

questions of distribution in the broader society. On the domestic level, we can start with all the things

formalism may not get us.‖ 58

Machiavelli provides a variation on Grotian necessity, though Grotius begins with natural law,

and Machiavelli with individual prudence, his emphasis on the duty of a state to repel danger, reference to

necessity and proportionality in degree of force have a kind of ―formalism.‖

existentialists who subjectivize it make it ineffable and therefore inarguable on different grounds.

Both tendencies— objective and subjective— threaten to import the logic of war into law and

politics. Efforts to balance the normative and empirical aspects necessity have not always been

beneficial. Political realists, above all, have found a consummate purchase in the notion of

necessity. ―There‘s no virtue like necessity,‖ at least none that slides so easily between facts and

values, between ideology and epistemology. In the name of concreteness and facticity, share a

plane of abstractness. Yet, perhaps the most harmful effect of political realism is to import the

logic of war into domestic polity. And where ―values‖ and ―interests‖ are invoked,‖ they are no

more concrete than the discourses of legalists and moralists. Nor is it any more secure as a

foundational discourse. Certainly, politics lies at the beginning of law, the same way violence lies

at the beginning of the state, but from there it is normally excluded. And similarly to the relation

between violence and the state, it should not be assumed that since the laws derive from political

process that they can be easily suspended in the same manner. Rule is primary and secondary

rules, procedures for reaching decisions, and a pedigree of rules, thus it is not a tautological

imperative where he origin of the law can be found in the tautology: "the law is the law"‖59

Politics shares with ethics an obsession with concrete difficulties, but also at times a

vocabulary of abstraction.60

Thus the ―abuse‖ of necessity discourse comes from many

directions. The sense of urgency in invoking ―necessity‖ or ―emergency‖ is not simply shaped by

facts or values, but also by fear, panic, and other inescapably subjective factors. It would seem to

any social scientist that we could separate ―objective necessity‘ from ―perceived necessity.‖ With

―objective necessity‖ we would mean the nature and extent of a threat has been empirically

established, whereas ―perceived necessity‖ would be based on ―subjective‖ impressions.

However, the polemical character of politics obscures this distinction and threat perception has a

59

This is the problem of founding violence. See e.g. Zizek, For They Know Not What They Do:

Enjoyment as a Political Factor. (p. #). (―At the beginning" of the law, there is a certain ‗outlaw‘, a certain

real of violence which coincides with the act itself of the establishment of the reign of the law... The

illegitimate violence by which law sustains itself must be concealed at any price, because this concealment

is the positive condition of the functioning of the law.‖). 60

Right of self-preservation underlies the most important doctrines of necessity. What remains

relatively constant throughout is the concretization of necessity in self-preservation. Generations of

―realists‖ by celebrating ―necessity‖ as concrete and amoral meta-norm, commit two kinds of misdirection

First, they draw attention away from the abstraction of necessity by denigrating the abstraction of natural

law, morality, or legality. A second misdirection is the implication that collective preservation as a state‘s

duty to protect its population, while a perfectly tenable description of reason of state (ethics of

responsibility), has no moral or legal character. See however, Martti Koskenniemi has said of Lauterpacht‘s

Function of Law: EJIL fn 60 Such division ―is, first and foremost, the work of international lawyers

anxious to give legal expression to the State's claim to be independent of law.‖

way of becoming the most ―objective‖ of all measures. Governments (through propaganda, terror

alerts and other communications) manage and often inflate threat perception, and at the same time

respond to polls and other measures to convert the subjective sense of necessity into an ―objective

fact.‖ Most realists accept the blurring between facts and values as an unproblematic issue,

though others celebrate it almost as a guiding meta-norm. In the end, it is not clear where the

imperative for action lies: in the ―actual necessity‖ propelled by a threat, or the arguably ―actual

necessity‖ propelled by public opinion? All of this is aside from the question of how

―objectively‖ the threat relates to the measures being proposed. The background condition of

uncertainty, limited knowledge, and differential evaluation often makes it impossible to separate

out ‗factual‘ claims from politically loaded perceptions. When necessities are politically

contentious, ―it‘s often interpretation all the way down.‖61

When transposed to a legal system, we

expect that norms can be hierarchically ordered, or prioritized in some way, so that conflicts can

be resolved both predictably and justly.

Or else, in political discourses of necessity, the ethical questions are simply removed one

level to particular agents rather than to the rule of law. This is an alternative reading of the arrival

of Athena: here responsibility means prudence, the moral demands on a politician, including

moral risks. This is the image Max Weber offers of the moral politician putting the soul on

balance, though for those on the receiving end of violence it seems a sorry consolation that the

politician feels conflicted or that his soul is in jeopardy. This image of the existential statesman

leads right back to the narration of crises as situations of ―tragic‖ choice.. In contrast, rule of law

aligns the office of responsible agents not with tragic prudence, but with primary and secondary

rules, procedures for reaching decisions, and a pedigree of rules, an exit from foundational

tautologies such as ―necessity demands it,‖ or ―the law is the law.‖ In political notions of

necessity, it is precisely this pedigree that is effaced, and what remains is little more than a place-

61

This is to say of necessity what legal sociologist David Garland has written of ―risk‖ discourse:

―Objective versus subjective [necessity] is a false opposition. The contrast is more often between

different conventions for observation, measurement and evaluation… Because [necessity]

statements carry consequences, the representation of [necessity] is subject to political

manipulation and tendentious presentation. The background condition of uncertainty, limited

knowledge, and differential evaluation often makes it impossible to separate out ‗factual‘ claims

from politically loaded perceptions. When [necessities] are politically contentious, it‘s often

interpretation all the way down.‖

In my view, ―necessity‖ is even more prone to abuse than ―risk,‖ due to its imperative form. Cite

to faculty presentation The Rise of Risk, (publication?).

holder for force and facticity; what E.H. Carr referred to as adapting to the ―irresistible strength of

existing forces and… tendencies.‖62

Legalists and moralists of all stripes today recognize the danger and emptiness of

―necessity,‖ and the false prudence of ―choice‖ or ―decision‖ by whose terms Himmler could

phrase a ―justification‖ for the Holocaust as the result of a ―necessary choice‖: ―The difficult

decision has to be taken to have this people disappear from the earth.‖ 63

This is the horrific limit

case of the polemic of necessity, in which basic imperatives are cloaked but communicable. The

realist tradition, while gathering commitments to scientific precision, has nonetheless inherited

the imperative form of necessity from martial theorists who celebrated the teleology of war and

did not exclude gamesmanship and naked instrumentalism from necessity. Still, contemporary

realism its elasticity makes it amenable to more specific arguments for prudence, watchfulness,

and neutrality, as much as for conflict. It remains the basic worldview of political realists, and

ratified by generations of positivists and legal cosmopolitans as well, that law and politics divide

the world (particularly international relations) in structured ways:

LAW POLITICS

Objective Subjective

Reason Passion

Order Anarchy

Rule Guideline

Constraint Will

Open Hidden

Light Darkness

Past Present

Regularity Anomaly

Rule of Law Reason of State

Idealism Realism

International Law Strategy-Diplomacy

Universality Particularity

Rule-Preservation Self-Preservation

Offer of Resources Avoidance of Restraint

Responsibility Sovereignty

Output Legitimacy Input Legitimacy

Sources Sovereignty

62

E.H. Carr, Twenty Years Crisis at 10. 63

Quote from Ian Kershaw; Hitler Vol. II. (P #). Himmler could phrase a ―justification‖ for the

Final Solution to the S.S.: ―The difficult decision has to be taken to have this people disappear from the

earth.‖

Pre-Commitment Prudence

Normative Instrumental

In this manner, the epistemological heirs of legal positivists and political realists collaborate in

dividing the political from the legal. Realists tend to view political ―necessity‖ (along with will

and capability) as a relatively complete and stable description of international relations, and legal

order as one contingent and temporary arrangement to achieve political ends. Positivists also

separated law from morals and both from politics,64

and deferred to political contingencies, which

was the permanent space in which the content of law is made. All that was necessary of a legal

order was stable categories and conditions such as states, diplomacy and dispute resolution. In

either tradition, necessity becomes an empty box for political interests, and the only question is

whether it has a place in legal discourse at all.

A more creative counter-tradition can be seen with those theorists who efface this

description without assimilating law to politics or either of these to morality. In this tradition,

using visual metaphors, necessity can be placed at the ―vanishing point‖ of legal concepts

(Lauterpacht), or a zone where they ―appear to be outside the pale of the law‖ (Grotius), and in

this way we are meant to perceive that even where it is included in a legal order, necessity is not

―the political‖ (the exterior to the law) or ―the exception‖ (the internal limit recognized by the

law), but approaches that limit. Attempts to mark questions as ―political‖ or ―legal‖ will rarely

evade some re-appropriation by the other sphere of discourse, or settle every possible legal claim

or jurisdiction. Thus more eclectic theorists will tend to view antinomies and divisions as

important analytic distinctions, not opaque or protected spheres, but often incomplete and relative

in terms of reality. Form a pragmatic point of view, instead of speaking of ―legal vs. political,‖

necessity lies in between poles of a mixed political-jurisprudential character, between

―formalism‖ and ―contingency, ‖ so to speak. Formalism and contingency gravitate toward

distinct virtues:

FORMALISM CONTINGENCY

Certainty Flexibility

Deliberation Speed

Uniformity Individualization

Stability Open-Endedness

Security Dynamism

Responsibility Responsiveness

Rule-Preservation Law-Purification

64

But see e.g., Kingsbury (EJIL) on Oppenheim disputing this characterization of positivism.

Pre-Commitment Prudence

―Proper‖ ―Smart‖

Legality Extra-Legality

Input Legitimacy Output Legitimacy

Norm-Sensitivity Fact-Sensitivity

Law Discretion

Tender-Minded Tough-Minded

Pacta Sunt Servanda Rebus Sic Stantibus

This is a more modest, and inter-penetrating or oscillating model of these relations, and even

between discourses and formal doctrines. The particularly prominent situations where it seems

law has a vanishing point: this includes both the theorization of national states of emergency and

the theorization of international law. Doctrines of deference or non-justiciability are familiar in

modern international law, rarely expressed with metaphysical appreciation for ―sovereignty‖ or

the assertion of a vacuum called ―the political.‖ The permeability of the discourse accounts for

the ambiguities of characterization, as with quasi-legal ―necessity‖ or ―self-defense‖ excuses in

the actions of states even before the ban on the use of force.65

In each case, what was being

claimed was something between a strategic imperative and a right,66

and even where necessity

seems to give form to the ―political‖ interests of states, the invocation of necessity (often as a

―natural‖ or quasi-positive law) gives a tone of ―juridical‖ authority to political rhetoric. the

recourse to the ―right‖ or ―political imperative‖ of necessity the case may well arise using

intermediate discourses. Collective self-preservation (salus populi) and reason of state (raison

d‘etat) have long been mediating discourses between formal and contingent expressions of

necessity. in historical terms, it is often difficult to look back and discern whether various

invocations of necessity were intended to be legally binding or politically expedient. In later

chapters, for many of the reasons I have described above, and more reasons that will follow, I will

describe and argue the merits of the transition of necessity discourses from contingent to formal

techniques and doctrines attached to the sources of international law. But even here, an important

value should not be lost, which has historically been expressed in mixed juridical-political

idioms: self-preservation.

65

Examples include the British in the Crimean War, the Allied bombardment of Japanese cities in world

war two, and the 1960 Belgian intervention in the Congo. 66

If these situations were asserted as interpretations of law, and assertion of legal ―rights‖ then they

might have fallen under the development of international law through breach: the exception that changes

the rule. Violation does not automatically invalidate a norm. As Yoram Dinstein points out, ―the criminal

codes of all states are constantly trampled underfoot by countless criminals, yet the unimpaired legal

validity of these codes is universally conceded.‖ Sometimes, however, states must break the law in order to

make new law.

B. Necessity as Self-Preservation (Salus Populi)

1. Introduction

The doctrinal identity of necessity depends on it being conditional on a specific value,

and implicitly or explicitly the baseline for a proper doctrine of necessity is often self-

preservation. In this section, I will describe the shifting relationship and normative priority

between necessity and self-preservation. Theorists from Grotius to Bin Cheng have identified

constrained formal doctrines of necessity with a background principle of ―self-preservation.‖67

Various discourses, particularly in state theory and constitutional theory have gathered around

notions of self-preservation as salus populi, a collective interest that can be articulated as a right

or duty. Attempts to tether necessity to self-preservation or salus populi are always particularistic

and informed by cultural and historical milieus. The particular identification I propose in this

dissertation as proper to modern international law connects legal articulations of necessity (see

Chapter Three) with salus populi, here understood as the collective preservation of entire

populations under the care of the state. I will begin by tracing the earliest notion of necessity in

international law to its direct descendents and comment on its modification and transmission. The

tensions that have always been recognized in discourses of necessity have been commented on

over time, and as international law has provided various kinds of community or order, different

aspects have been emphasized in the doctrines.

2. The Hobbesian-Grotian Tradition of Necessity as Self -Preservation

The history of international law is also filled with efforts to pin down necessity so it

provides more than a tautological or vacant imperative. In grand and foundational terms, the

taming of necessity can be seen as the raison d‘etre at the birth of the international legal order. In

functional terms, it has been tamed internalized in terms of doctrines such as principle of

necessity, self-defense, self-preservation, the margin of appreciation, derogability, and certain

―core‖ aspects of state sovereignty. Early theorists including Grotius and Hobbes provide proto-

juridical models of necessity rooted in self-preservation. In this context, necessity is seen as

―meta-juristic phenomenon‖ or a ―super-right.‖ I have already suggested that the discourse of

emergency has at minimum a commitment to not ―necessity‖ but ―self-preservation.‖

67

On ―general principle‖ of necessity see below. See also (cite) Scott, Vol. II (on classical thinkers);

Rodick (1919); Cheng (1953); Jimenez de Arechaga (1968); ―Stowell (1921); ―Waldock (1952);

Schwarzenberger (1955); Brierly, (ed. Waldock) (1963); Brownlie (1963); Higgins (1963); Allott (1988).

International law has enshrined a generic doctrine or ―general principle‖68

of ―necessity

as self-preservation‖ though this has was at first viewed as fundamental to international law was

increasingly criticized as an attempt to cancel the law, and pushed away from the international

law of peace. It was on this more general concept of necessity/self-preservation that Gentili,

prefiguring an external Hobbesian Leviathan, said provides effective protection of the principle of

―self-preservation‖ and prescribes ―pre-emptive‖ action on the basis of ―fear‖69

and which

Grotius called ―the great protectress of human infirmity‖ while recognizing its tendency to ―break

through all human laws, and all those made in the spirit of human regulations.‖70

The doctrinal

contributions of these theorists are relatively continuous with modern doctrines of self-defense,

countermeasures, and ―state of necessity.‖

Beginning with Grotius we can see a duality of necessity as functional (later became

―state of necessity) and foundational (self-preservation existential notion). As a lawyer, Grotius

was able to conceive of a delimited juridical notion of necessity (the doctrine of necessity), but as

a philosopher, he also based this conception on a broader notion of necessity in human nature, a

―protectress of human frailty‖ (the inherent right of self-preservation). Recent generations of

international lawyers have focused on one or the other of these. In a functional sense, Grotius

certainly recognized a narrow version of necessity constrained by various doctrinal trappings.71

Like later scholars, his examples involved wrongs committed against neutrals by states at war,72

and emphasized the narrowness of the circumstances in which a state would be justified in

invoking a right of necessity to commit otherwise unlawful acts. The influence of this doctrine on

later doctrines is made evident in Burleigh Cushing Rodick‘s The Doctrine of Necessity in

International Law (1928), which properly summarized the Grotian doctrine of necessity (1) there

must be absence of mens rea on the part of one who exercises the alleged right (2) there must be

68

Ian Johnstone, Essay In Honor Of Oscar Schachter: The Plea of "Necessity" in International Legal

Discourse: Humanitarian Intervention and Counter-terrorism, 43 Colum. J. Transnat'l L. 337 2005 69

See D. I. B., book 1, chap. XIV ―De utili defensione‖, Engl. Transl. pp. 61-66. ―Fear‖ and

―defence‖, the combination of the two concepts entitles Gentili to characterize the entire system of the ―just

causes‖ of war as fundamentally based on ―defence‖. 70

Grotius: "Necessity, the great protectress of human infirmity, breaks through all human laws, and

all those made in the spirit of human regulations.‖ Rights of War and Peace, Vol. II, Chap. 2, Par. 7. text,

quoted in Alexander Fuehr, The Neutrality Of Belgium 1915. 71

See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928). 5–6 72

Perhaps the closest use of necessity is the reasoning of war. On external threats there is

resounding agreement on the existence of an international framework for ―laws of war,‖ most famously the

Geneva Conventions and the Hague Regulations. These rules are primarily aimed at the protection of the

civilians who are collateral to intended military targets. Military necessity must be balanced against the

principle of ―proportionality.‖

vital danger; (3) it must be imminent in point of time; (4) consideration must be given to the

equities; and (5) restitution must be given to the injured party.73

Thus the broader connection to

Grotian self-preservation was added by later writers in context of the philosophical

underpinnings. This is kind of a ―takings clause‖ that could not be exercised is situations ―short of

extreme exigency.‖74

The modern doctrines of necessity in international law have been moderated

by framing the plea as a preclusion of wrongful conduct rather than a ―right,‖ adding cumulative

requirements, disaggregating these elements among many separate doctrines, and rejecting the

norm of self-judgment. The concept of state necessity (including self-preservation) continues to

be controversial even as its use is being extended to the context of derogability from human rights

standards during emergencies.

The ―natural law‖ right of necessity/self-preservation is more similar to what Cheng

called ―external applications of necessity‖ and seem today to resemble the ―rights‖ asserted in the

context of self-defense, or in the context of armed conflicts. In the broader sense, Grotius also

referred to the ―right of necessity‖ as the ―right of self-preservation.‖ Grotius formulated self-

preservation in the way we think of excuse of self-defense today:75

It is significant that Grotius

recognized limited ―reason of state‖ thinking in his defense of ―necessity‖ and ―self-preservation‖

applied to inter-state relations, identifying a state‘s ―right of necessity‖ especially in the context

of war.76

The characteristic of Grotian necessity that has fallen out of use is the description of

necessity as the suspension of applicable laws and the ―revival‖ of older laws. This is how he

described the operation of necessity in relation to property ―takings‖ or trespass. The proper

invocation of necessity made it possible to claim that a current law was not in effect, but an older

law such as common ownership of property, or the right of self-preservation, were deemed to be

in effect. Necessity revives the common ownership of property as well as the right of self-

preservation. Natural law as an eternal, underlying law; however, Self-preservation can be

considered an ―underlying‖ right, the communal ownership of property is simply a termination of

theories of property. These were not fundamental and inviolable rights, but rights that had been

held in abeyance under positive law and practice.

73

.Rodick, See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928) at

6. 74

.Grotius, bk. III, ch. VII, para. I. 75

―The Jewish law… no less than the Roman, acting upon the same principle of tenderness forbids

us to kill anyone, who has taken our goods, unless for the preservation of our own lives.‖ 76

Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres at bk. II, ch. II, para. X. (A.C. Campbell trans.,

1901).

Rodick points out that although Grotius should be regarded as the founder of the legal

notion of necessity, Machiavelli pre-dated him by a century and wrote of a doctrine of necessity

in political affairs, taking the Roman republic as his model.77

Machiavelli emphasized the

autonomy of states even more than Grotius did, his statements concerning necessity were actually

quite similar. Though Grotius begins with natural law, and Machiavelli with individual prudence,

emphasis on the duty of a state to repel danger, reference to necessity and proportionality in

degree of force. Emphasis of subsequent realists on necessity as a guiding ethic for Machiavelli,

prudence abroad, and formalism at home. Even those who glorify external war were horrified by

the prospect of internal strife. Arguments from necessity can migrate between international

relations and constitutional issues with relative ease.

Grotius‘s (1583-1645) Natural Law is founded on the instinct of sociability and a duty of

self-preservation. "Necessity, the great protectress of human infirmity, breaks through all human

laws, and all those made in the spirit of human regulations." Hobbes (1588-1679) rejected

Grotius‘s sociability, and bases his theory of ethical obligation on the thesis that human beings

unavoidably desire self-preservation ―by a certain impulsion of nature, no lesse than that whereby

a Stone moves downward.‖ For Hobbes self-preservation is less a duty and more a right.

Meinecke book on reason of state (Pufendorf) and no other founder of international law as

recognizing the centrality of ―reason of state.‖78

Richard Tuck has argued that Grotius‘ natural law theory must be seen in a close

connection with Hobbes insofar as self-preservation was a ‗paramount principle‘ and the ‗basis‘

for a universal morality for both, and because both Grotius and Hobbes had ―associated

skepticism with the principle of self-preservation‖ and thereby created the ―moral basis for

whatever universal morality there was.‖79

Tuck‘s description of Grotius‘ views with regard to

self-preservation, if not basis natural law80

does provide as much to the subsequent development

of ―necessity as self-preservation‖ as any theorist of raison d‘etat. The idea of a state of nature

does play a major role in Hugo Grotius‘ natural law theory, yet unlike Hobbes, Grotius designed

77

(Rodick 7) 78

Meinecke (on Pufendorf) 79

Tuck, p.5- 6. The most important theoretical device for these authors, according to Tuck, is their

use of the ―idea of a state of nature, in which agents defined in minimal terms—that is, possessing an

extremely narrow set of rights and duties—engage in dealings with one another which lead to the creation

of a civil society.‖ 80

R. Shaver has argued that Grotius‘ stance is based not on self-preservation but rather on sociality.

Actually it is a balance between the two that distinguishes Grotian thought.; see R. Shaver, ‗Grotius on

Scepticism and Self-Interest‘, Archiv für Geschichte der Philosophie 78 (1996), pp. 27-47.

this state of nature with rule-based order, invoked from time to time the notion of reviving older

rules of order, an overall pattern of well developed legal rights and duties More capacious. which

can by no means be said to be ‗minimal‘ or ‗extremely narrow‘. One of the most salient

differences between Grotius and Hobbes consists in the picture they respectively draw of the

conditions in the state of nature and the status which self-interest enjoys therein. While according

to Hobbes there is nothing morally wrong with purely self-interested behavior,81

Grotius argues

that acting solely in the pursuit of self-interest is not only morally but also legally wrong in the

state of nature. Hobbes, although admitting some pre-existing moral rules that allow for

everybody‘s limitless freedom in a natural state certainly does not think of them as having any

legal value, a quality that is in his view utterly dependent on the existence of a sovereign. Grotius

left his legacy to both the developers of positive law (international jurisprudence) refiners of

natural law (political theory) of the seventeenth through nineteenth centuries.

On the other hand, Grotius‘ state of nature, in a Ciceronian tradition, provides for rules

with the status of valid legal claims.82

Although not exclusively natural by origin, these claims

enjoy the protection of natural law and can be enforced by every participant in this concept of a

state of nature, (analogous to historical moments, including Cicero‘s reference to the unstable

Roman republic before its fall) as depicted by Ciceronian reference to a ―law which is a law not

written, but created by nature.‖83

Hobbes‘ postulated state of nature is often imagined as a civil

war, even though this term would be premature, even nonsensical, and it is therefore referred to

as a war of ―all against all.‖ In truth, the state of nature is a vanishing point between inter-state

conflict and intra-state conflict. In this context, violence cannot be describes in terms of border,

nor can it be described as legitimate or illegitimate. The solution of the Leviathan is the founding

of a state, but no one has yet come up with a state that can banish or capture all violence. Thus,

many have claimed, in the absence of universal sovereignty, there can only be internal

sovereignty and external anarchy. Perhaps for this reason, since Hobbes it has been our habit to

81

It is a common misunderstanding to impute to Hobbes the view that morality is constituted by the

sovereign. In Hobbes‘ view, the content of morality—which in his case does not rely on regard for other

people‘s interests—can be known even in a state of nature, although it may not be rational to abide by it. 82

These claims differ from Hobbes‘ natural freedom in a way that might be described in terms of

Hohfeld‘s differentiation between ‗claims‘ and ‗privileges‘, Hobbes‘ ‗freedom‘ resembling Hohfeld‘s

privilege (but see Jeremy Waldron, ‗Introduction‘, Theories of Rights, Oxford 1984, p. 6: ‗I think Hobbes

was getting at a slightly different and somewhat stronger idea: the idea that it is perfectly rational for P to

do X and that he cannot be criticized in that regard.‘). See Wesley Hohfeld, Fundamental Legal

Conceptions, New Haven Conn. 1946, p. 36. For an application of Hohfeld‘s analysis to Hobbes see

Malcolm, ‗Hobbes‘s Theory‘, p. 445. 83

De iure praedae: ―non scripta sed nata lex.‖ From Pro Milone. (cite)

conceive of states of emergency in two forms. The first is internal violence or sedition, which is

an uncompleted duty of the Leviathan to quash. The second is war, which is the proper domain of

the Leviathan to fight on behalf of those protected inside the state. Sovereignty implies the

suspension of guarantees in two directions and sovereignty gains a Janus face. Put a different

way, according to Jens Bartelson: ―The classical state domesticated what was foreign to it; it

assimilated all that was alien to it in its prehistory of religious and civil war. To the theoreticians

of state interests, external warfare was as much a royal prerogative as an antidote to the fearful

return of internal unrest.‖84

Following the Hobbesian metaphor to its logical end, there are very few forms of state

violence that would be illegitimate. This all makes sense in an exit from the state of nature.

However, in our subsequent exit from the Hobbesian world-picture, it is not simply forms of

violence (legitimate and illegitimate) that have proliferated, but also new repositories of legality

and legitimacy. Constitutionalism is one such development. International jurisprudence is

another.85

Grotius also referred to the ―right of necessity‖ as the ―right of self-preservation.‖

Grotius formulated self-preservation in the way we think of excuse of self-defense today, which

is to say it excuses a wrongful act—even killing—if the object is preservation of one‘s own life.86

It is significant that Grotius recognized limited ―reason of state‖ thinking in his defense of

―necessity‖ and ―self-preservation.‖ applied this principle to inter-state relations, identifying a

state‘s ―right of necessity‖ (which he also called the ―right of self-preservation‖) especially in the

context of war.87

Liberties, rights, and restrictions on rights, all in the context of the

responsibilities of states during war and peace. Not rooted in notion of liberal individualism or

republican virtue.

The characteristic of Grotian necessity that has fallen out of use is the description of

necessity as the suspension of applicable laws and the ―revival‖ of older laws. This is how he

described the operation of necessity in relation to property ―takings‖ or trespass. The proper

invocation of necessity made it possible to claim that a current law was not in effect, but an older

law such as common ownership of property, or the right of self-preservation, were deemed to be

in effect. Necessity revives the common ownership of property as well as the right of self-

84

Jens Bartelson A Genealogy of Sovereignty at 191. 85

Grotian tradition, Nablusi text, discussing Lieber, Bluntschli, Martens, Lauterpacht. 86

―The Jewish law… no less than the Roman, acting upon the same principle of tenderness forbids

us to kill anyone, who has taken our goods, unless for the preservation of our own lives.‖ 87

Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres at bk. II, ch. II, para. X. (A.C. Campbell trans.,

1901).

preservation. Natural law as an eternal, underlying law; however, Self-preservation can be

considered an ―underlying‖ right, the communal ownership of property is simply a termination of

theories of property. These were not fundamental and inviolable rights, but rights that had been

held in abeyance under positive law and practice.

However, the Grotian concept of necessity has been vastly overplayed in international

law considering its humble beginnings. Grotius‘ original conception was actually quite narrow.88

His examples involved wrongs committed against neutrals by states at war,89

and emphasized the

narrowness of the circumstances in which a state would be justified in invoking a right of

necessity to commit otherwise unlawful acts. Burleigh Cushing Rodick in The Doctrine of

Necessity in International Law (1928) properly summarized the Grotian concept of necessity.

According to Rodick‘s restatement, (1) there must be absence of mens rea on the part of one who

exercises the alleged right (2) there must be vital danger; (3) it must be imminent in point of time;

(4) consideration must be given to the equities; and (4) restitution must be given to the injured

party.90

Thus the broader connection between the doctrine of necessity and the principle of self-

preservation was added by later writers in context of Grotius‘s philosophical underpinnings. This

is kind of a ―takings clause‖ that could not be exercised is situations ―short of extreme

exigency.‖91

The modern doctrine of necessity that has flowed from this has been much broader,

ignoring many of these technical requirements, though its effects have been moderated because it

is now understood as an ―excuse‖ for wrongful conduct rather than a ―right‖. The concept of

state necessity continues to be controversial even as its use is being extended to the context of

derogability from human rights standards during emergencies.

Rodick points out that although Grotius should be regarded as the founder of the legal

notion of necessity, Machiavelli wrote 115 years earlier and wrote of a doctrine of necessity in

political affairs, taking the Roman republic as his model.92

88

.See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law 5–6 (1928). 89

Perhaps the closest use of necessity is the reasoning of war. On external threats there is

resounding agreement on the existence of an international framework for ―laws of war,‖ most famously the

Geneva Conventions and the Hague Regulations. These rules are primarily aimed at the protection of the

civilians who are collateral to intended military targets. Military necessity must be balanced against the

principle of ―proportionality.‖ 90

Rodick, See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)at

6. 91

.Grotius, bk. III, ch. VII, para. I. 92

Rodick See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)7

Pufendorf indebted to Hobbes as well as Grotius links necessity to self-preservation, and

states:

The case of necessity is a thing in everybody‘s mouth and the force of it is generally

acknowledged in the world. Hence we commonly say that that it hath no law, that ‗tis a

supposed or presumptive exception to all human ordinances or constitutions, and that

therefore it gives a right of doing many things otherwise forbidden…

Pufendorf argues that our instinct of self-preservation ultimately forces us to be sociable:

So, then, man is an animal which is very desirous of his own preservation. He is liable to

many wants, unable to support himself without the help of others of his kind, and yet

wonderfully fit in society to promote a common good. But then his is malicious, insolent,

and easily provoked, and not less prone to do harm to his fell man than he is cable of

executing it. From this it must be inferred that to attain our self-preservation, it is

absolutely necessary that we be sociable.93

According to Pufendorf, we are too weak to survive on our own and, so, we must rely on help

from others. Pufendorf finds sociability so important to our survival that, following Grotius, he

makes sociability the highest principle of natural law: ―From what has been said, it appears that

this is a fundamental law of nature: to the extent that we can, every person ought to preserve and

promote society, that is, the welfare of mankind.‖ In short, although Pufendorf denies instinctive

sociability, he endorses the mandate to be sociable in our instinct to survive. According to Hume,

moral theories commonly err by beginning with statements of fact and concluding with

statements of obligation. Philosophers today sum up Hume‘s point with the motto ―We cannot

derive ought from is.‖ Hobbes begins with the fact of self-preservation and concludes that we

ought to seek peace to preserve ourselves. Finally, Pufendorf begins with the fact of self-

preservation and concludes that we ought to be sociable to survive. While he does not apply his

analysis to international law, Pufendorf considers it important to theorize necessity in doctrinal

terms in domestic law. Exceptional, in light of a legal excuse circumstances allowing the

disregard of law. Requiring actual danger, imminence, unavoidable, unless act of avoidance puts

in even greater danger. In legal terms, important contribution to the theory is the lack of

opportunity to play to a magistrate for protection (or in the case of states, no superior magistrate

to whom to apply). Rodick points out that Pufendorf rejects ―revival of common ownership‖ but

present and operative natural law, which involves a ―weighing of the equities‖ involved.94

Present

and eternal law of nations and natural law is hat is proper in an emergency, rather than the breach

93

Pufendorf [The Duty of Man and Citizen, 1:3] 94

(Rodick See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)16).

of legal rules. Rules of expediency and natural law on the same plane of generality, which does

little to extend the particular legal requirements of necessity to the international realm. The same

is true of military necessity. In war, proportionality is a mere rule of prudence, whereas, the

natural law decrees that ―a state of hostility in itself gives a man unlimited liberty to take all the

advantages he can against his enemy.‖95

Thus, Pufendorf‘s contribution is unclear, though he has

been citable in these matters, to counsel both legalism and lack of legal regulation. Pufendorf

indebted to Hobbes as well as Grotius links necessity to self-preservation, and states:

The case of necessity is a thing in everybody‘s mouth and the force of it is generally

acknowledged in the world. Hence we commonly say that that it hath no law, that ‗tis a

supposed or presumptive exception to all human ordinances or constitutions, and that

therefore it gives a right of doing many things otherwise forbidden.‖

While he does not apply his analysis to international law, Pufendorf considers it important to

theorize necessity in doctrinal terms in domestic law. Exceptional, in light of a legal excuse

circumstances allowing the disregard of law. Requiring actual danger, imminence, unavoidable,

unless act of avoidance puts in even greater danger. In legal terms, important contribution to the

theory is the lack of opportunity to play to a magistrate for protection (or in the case of states, no

superior magistrate to whom to apply). Rodick points out that Pufendorf rejects ―revival of

common ownership‖ but present and operative natural law, which involves a ―weighing of the

equities‖ involved.96

Present and eternal law of nations and natural law is hat is proper in an

emergency, rather than the breach of legal rules. Rules of expediency and natural law on the same

plane of generality, which does little to extend the particular legal requirements of necessity to the

international realm. The same is true of military necessity. In war, proportionality is a mere rule

of prudence, whereas, the natural law decrees that ―a state of hostility in itself gives a man

unlimited liberty to take all the advantages he can against his enemy.‖97

Thus, Pufendorf‘s

contribution is unclear, though he has been citable in these matters, to counsel both legalism and

lack of legal regulation. Rousseau (1712-78), Wolff (1679-1754), and Vattel (1714-67) merely

repeated formulations found in Grotius Hobbes or Pufendorf without much advance in doctrinal

or philosophical terms.98

95

See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928) (18 Rodick) 96

Rodick See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)16. 97

See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)18 98

See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928) (19)

In terms of the historical school, Gentili (1552-1608) also made little contribution to the

doctrine; he historicized and applied the concept in more concrete detail (using in particular the

case of the capture of a Tuscan ship by an English one) As both entered a plea of self-defense,

and Gentili resolved the issue with reference to a quasi-naturalist balancing of equities; ―the more

just surpasses the just, the more equitable the equitable, the more beneficent, and the more just is

given the preference over the just.‖ In other writings, Gentili seems to recognize a principle of

―self-preservation‖ and prescribes ―pre-emptive‖ action on the basis of ―fear.‖99

However, Gentili

is closer to modern sensibility in methodology at least, giving no credence to states of nature,

imagined or hypothesized, but actual cases. The historical method continues to help concretize

instead of vacant imperatives of general natural law or realist. No use fro either secularized

natural law or sacralized positivism… This is a method that continues through Zouche (1590-

1661), Bynkershoek (1673-1743), and von Martens (1756-1821), in writing about what

constitutes actual necessity or proportionality, and through to modern jurists.

Locke and Rousseau (1712-78), Early jurists, such as Wolff (1679-1754), and Vattel

(1714-67) merely repeated formulations found in Grotius Hobbes or Pufendorf without much

advance in doctrinal or philosophical terms.100

Is the ―law of necessity‖ a ―law‖ at all, in the sense

of man-made law, or is it rather identifiable with nature and therefore ―an exception to all human

ordinances and constitutions…‖?101

But what if necessity, namely the necessity of self-

preservation was itself a positive legal duty, itself an ordinance of the highest order? The

argument is that in international law, there has always been a duty of self-preservation, identified

with the principle of salus populi, protection of citizens, or the population as a whole.102

Active

notion of salus populi Vattel, aimed at the maintenance of civil or political society, and that the

norms of this society should not be eroded in the process of repressing civil strife: (―Civil society

is so useful, nay so necessary to all citizens, that it may well be considered as morally impossible

for them to consent unanimously to break it without necessity ... .In general, as long as the

political society subsists, the whole nation is obliged to endeavor to maintain it.‖); (―If a nation is

99

See D. I. B., book 1, chap. XIV ―De utili defensione‖, Engl. Transl. pp. 61-66. ―Fear‖ and

―defence‖, the combination of the two concepts entitles Gentili to characterize the entire system of the ―just

causes‖ of war as fundamentally based on ―defence‖. 100

Rodick See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928)19 101

W.P. Prentice, Police Powers Arising under the Law of Overruling Necessity 4 (1894).. 102

the principle of self-preservation see Cheng, at 32-68.

obliged to preserve itself, it is no less obliged carefully to preserve all its members.‖).103

Vattel,

codified the principle of international law underlying this duty:

The end or object of civil society is to procure for the citizens whatever they stand

in need of for the necessities, the conveniences, the accommodation of life, and, in

general, whatever constitutes happiness, - with the peaceful possession of property, a

method of obtaining justice with security, and, finally, a mutual defense against all

external violence... In the act of association, by virtue of which a multitude of men form

together a state or nation, each individual has entered into engagements with all, to

promote the general welfare; and all have entered into engagements with each

individual, to facilitate for him the means of supplying his necessities, and to protect and

defend him. It is manifest that these reciprocal engagements can not otherwise be fulfilled

than by maintaining the political association. The entire nation is then obliged to maintain

that association; and as their preservation depends on its continuance, it thence follows

that every nation is obliged to perform the duty of self-preservation.104

Necessity is not a self-limiting concept; self-preservation can be limited internally with reference

to the limits demanded implicit in that concept, or externally, with reference to a notion of duties

or reasonable behavior. Bentham in his Introduction to the Principles of Moral Legislation says

―In order to express more indulgence of it, people will be apt to find a stronger name for it than

self-preservation, terming it necessity.‖105

In this way necessity was given an appreciation that

self-preservation (connoting self-defense, self-love, and even cowardice) could not hold.

In terms of the historical school, Gentili (1552-1608) also made little contribution to the

doctrine; he historicized and applied the concept in more concrete detail (using in particular the

case of the capture of a Tuscan ship by an English one). As both entered a plea of self-defense,

and Gentili resolved the issue with reference to a quasi-naturalist balancing of equities; ―the more

just surpasses the just, the more equitable the equitable, the more beneficent, and the more just is

given the preference over the just.‖ However, Gentili is closer to modern sensibility in

methodology at least, giving no credence to states of nature, imagined or hypothesized, but actual

cases. The historical method continues to help concretize instead of vacant imperatives of general

natural law or realist. No use fro either secularized natural law or sacralized positivism… This is

a method that continues through Zouche (1590-1661), Bynkershoek (1673-1743), and von

103

Emerich De Vattel, The Law of Nations or Principles of the Law of Nature, Applied to the

Conduct and Affairs of Nations and Sovereigns 4 (Joseph Chitty ed., 1876) (1758); at 5 104

Emerich De Vattel, The Law of Nations or Principles of the Law of Nature, Applied to the

Conduct and Affairs of Nations and Sovereigns 4 (Joseph Chitty ed., 1876) (1758); at 4 105

Bentham Introduction to the Principles of Moral Legislation (113)

Martens (1756-1821), in writing about what constitutes actual necessity or proportionality, and

through to modern jurists. Every natural lawyer had a positivist side.

While raison d’etat is marginal to constitutional discourse, it is central to international

relations. International law attempts to make the move that constitutional law does: to tame

necessity, to tame the vacant imperative, the blank check of raison d‘etat. Exercising power for its

own sake. (Review Friedrich). In chapter three, concepts in the context of international forms of

emergency governance. Given background of norms and frameworks, in relation to which we

may securely conduct our ordinary affairs. One might expect then that both the strategists of

statecraft and the great tradition of natural lawyers who theorized the laws of war and peace could

productively fill out our account of emergency traditions.106

Actually there is little but antagonism

between these camps. Meinecke book on reason of state (Pufendorf) and no other founder of

international law as recognizing the centrality of ―reason of state.‖107

Perhaps this is only because

natural rights language occluded the common concerns. 108

Grotius also referred to the ―right of necessity‖ as the ―right of self-preservation.‖ But

formulated self-preservation closer to the way we think of excuse of self-defense today: It is

significant that Grotius recognized limited ―reason of state‖ thinking in his defense of ―necessity‖

and ―self-preservation.‖ applied this principle to inter-state relations, identifying a state‘s ―right of

necessity‖ (which he also called the ―right of self-preservation‖) especially in the context of

war.109

Liberties, rights, and restrictions on rights, all in the context of the responsibilities of

states during war and peace. The normative priority, and the near-identity between necessity and

self-preservation that I propose in this dissertation is a particular one. The relationship between

necessity and self-preservation has changed over time.

Bin Cheng leads his study of general principles of law with ―self-preservation,‖

relegating ―necessity‖ as the first subsection of this principle (others being self-help, self-defense,

etc.). The author begins his discussion with the principle of salus populi is a general principle of

law. (The connection to ―population‖ is a useful one). The ancient right of self-preservation

106

With Clausewitz reduced to a one-liner, only Machiavelli has emerged as a serious bridge

between strategy and western canon of political theory. See Geoffrey de Q. Walker, The Rule of Law 104-

17 (1988). 107

state (Pufendorf) and no other 108

If—as Meinecke suggested, however— theorists as different Grotius and Hobbes are taken as

representatives of this natural rights tradition, however, the modern language of reason of state and

discourse of necessity has been irrevocably formed by these scholars. 109

Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres at bk. II, ch. II, para. X. (A.C. Campbell trans.,

1901).

underlies the modern versions of derogability, self-defense, duress, military necessity and in more

limited circumstances state of necessity. The Grotian-Hobbesian ―right‖ of self-preservation

differs from a modern state of necessity. In the legal framework, necessity no longer refers to the

ultimate interest, but to any one of multiple essential interests. It does still refer to being without

alternatives. The only way to guard an essential interest is necessity. It is not a right. It is a

wrongful action whose wrongfulness is excluded. Necessity has been wrested from ―right‖ and

remains only a defense to stipulated wrongful act. 110

However, in a kink of over-correction,

discourses of self-preservation have also been banished for its corrupting influence.

5. The Domestic Analogy Undomesticated: Reasoning from the Point of

Annihilation

In extremis, self-preservation is as much a conversation stopper as necessity. When

framed as an ultimate value, self-preservation has a normative force, and a link to necessity that is

presented in structurally similar ways whether it is rooted in law, morals, or politics. Thus

whether discussed as legal, meta-legal, extra-legal, natural, pragmatic, or divine, or as a right,

privilege, duty, or instinct, it bridges immediacy and abstraction, the imminent and the eternal,

and producing a recognizable version of the argument from necessity. Based in naturalism, as

well as positivist international jurisprudence long held to a ―domestic analogy,‖ equating a states

armed self-defense to the situation of individual self-defense in domestic law.111

Analogy to the

position of individual self-defense in a state, has a right to use military force in national defense

in the same way that an individual who is attacked has the right to kill in self-defense.112

This is a

privilege or a liberty to protect a substantive right. The problem of the exception, in other words,

demarcates the limit of the rule of law and opens up that trans-legal space, that no-man's land of

existential exigency. The ―domestic analogy‖ to the individual in danger, is at times actually quite

110

I have left aside two important permutations of the argument from necessity: ―sovereignty as

necessity‖ and ―necessity as self-preservation‖ both could claim the expression ―reason of state.‖

First sovereignty as the starting point: reason of state, the claim of necessity is based on the fact of

sovereignty, whatever vital interests are dictated by the state are the reasons of the state alone. The second

view is sovereignty as a consequence, protection of the population and self-preservation, provide the reason

for the state. These successive concepts of ―necessity‖ in international law have different kinds of affinities

to the rhetorics of necessity. 111

Whereas naturalism emphasizes the character of the violation, the positivist idea is the expansion

of the locus, to whom obligations are owed. 112

Cite from Ago to the range of international jurisprudence, beginning with Grotius, using this

domestic analogy. In the context of moral philosophy Michael Walzer, in Just and Unjust Wars, also called

this ―the domestic analogy,‖

undomesticated. The Neo-Kantian phenomenologist Alphonso Lingis does not treat fear as

ignoble but ennobles it through a textured redescription: ―Every animal which can move moves to

elude or push off forces that threaten him or her; every animal feels fear, knows he or she is

vulnerable. In fear—fear of being insulted, mortified, of being abused, offended, of being

trapped, of being wounded, of pain— we sense our mortality.‖113

According to Hobbes, the basis

of the right is ―the Liberty each man hath, to use his own power, as he will himselfe [sic], for the

preservation of his own Nature; that is to say, of his own Life; and consequently of doing any

thing, which in his own Judgment, and Reason, hee [sic] shall conceive to be the aptest means

thereunto.‖ According to Schmitt, self-preservation is a primordial fact outside of legla or even

moral normativity. Schmitt again emphasizes the extremity—and to him ―purity‖ or

authenticity‖— of genuinely defensive violence where existence is at stake. This is what

commentators have in mind when they evoke ―animal instinct‖ a kill or be killed scenario, and

the ―law of nature.‖ and survival would take over.114

After social contract theory, the cause of rupture with law— or at least ―ordinary law‖

persist in the metaphor of the suicide pact. Before evolutionary theory linked us to the animal

kingdom, an anthropology of self-preservation was often contrasted with a political zoology of

inhumanity. This is recalled when we link self-preservation with humanity and suicide or the

threat to preservation with the non-human or the inhuman. In a political zoology that would be

later repeated in Sieyes, Locke says am enemy to one‘s being may be destroyed ―for the same

reason [one] may kill a wolf or lion.‖115

Not without difficulty, Locke attempts to identify the

duty to preserve oneself with the duty to preserve all of mankind. A state that fights for self-

preservation, and defeats a threat to its existence, may confer incidental benefits to the rest of

113

The Imperative (151). 114

Following the political zoology of Locke, Immanuel Kant argues that suicide is wrong because it

degrades our inner worth below that of animals. Goethe but also Hume, an alliance between rationalism

and romanticism against the idiom of prohibition picked up by Kant and others. When Schmitt

contemplates political as ―possibility of death‖ he does not consider suicide. A relation to the other; not a

relation to the self. Hegel had also said that slaves do not succeed in ―rising above his animal nature, and

therefore is less free than his master.‖ When all cannot be preserved, the safety of the innocent is to be

preferred. Jefferson on slavery and emancipation identified justice with emancipation and preservation of

slavery with self-preservation: ―We have a wolf by the ears, and we can neither hold him, nor safely let him

go. Justice is on one scale, and self-preservation in the other.‖� It is unclear in this statement whether

Jefferson intends to identify the vengeful slave with the inhuman wolf (as Sieyes famously said of

aristocrats: "Those who are not of my species are not my fellow men; he is a wolf and I shoot.") or whether

he believes the dangerous inhumanity lies with the problem of slavery. In any case, Jefferson points to the

conundrum of preserving a way of life based upon injustice. 115

[Section 16].

humanity. It is not difficult to link the danger of these discourses to the sources of their appeal.

However, as I will discuss in short order, it is possible to over-correct this discourse by treating it

as purely instrumental and never evaluative; this is what has happened in general international

law, which as a manner of taming necessity doctrines has evacuated any concept of self-

preservation, rather than taming it through specifying and holding with more fidelity to such a

norm. I will begin with more recent support for principles of self-preservation in international law

before moving on to these critiques and their doctrinal consequences. There are a number of

norms that taken together favor a right to minimal physical existence and to not be annihilated.

However, the duty of preservation (salus populi) obligates states to preserve the lives of those

under its care even as it struggles for its corporate existence.

4. Self-Preservation as a General Principle of Law

According to Roman Boed, ―necessity… was from long ago coupled with the notion of

self-preservation.‖116

Grotius also referred to the ―right of necessity‖ as the ―right of self-

preservation.‖117

The existence of ―a threat to self-preservation‖ was the justificatory basis to take

any steps necessary to preserve one‘s existence. In this way, the discourse of preservation helps

to concretize the discourse of necessity. To leave necessity alone, identical with an ―imperative‖

but nothing more, and attenuated from its Grotian formulation, would leave open the claim of

―necessity‖ for deriving positive pleasures or treasure, rather than defending oneself. For Grotius,

―necessity‖ is synonymous with self-preservation‖118

The most ―general‖ concept of necessity

cognizable in international law is the ―general principle of law‖ of self-preservation, identified by

Bin Cheng in his 1953 study as a primary normative rule, available for application in the case of

gaps in positive law. ―Dual significance‖ of salus populi two kinds of application: territorial and

external. To this it must be added that in the broad sweep of decisions in modern international

law, ―salus populi‖ cannot be reduced to salus republicae, ratio status or reason of state, ―national

security. Bluntschli warned that the end of the state cannot be reduced to its constitution on one

116

Roman Boed State of Necessity as a Justification for Internationally Wrongful Conduct Yale

Human Rights and Development Law Journal 3:1 117

Similarly, using the terms interchangeably, Thomas Jefferson (1810) wrote: A strict observance

of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of

necessity, of self-preservation, of saving our country when in danger, are of a higher obligation. To lose our

country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty,

property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. 118

a right which ―forbids us to kill anyone, who has taken our goods, unless, for the preservation of

our own lives.‖

hand (contra Kant) or its interests on the other (contra but must ―salus populi.‖ The doctrinal

identity of necessity depends on it being conditional on a specific value. The maxim ―salus populi

suprema lex esto‖ (―public safety is the supreme law‖ or ―the safety of the population is first

among laws‖) expresses the principle of self-preservation, among the earliest examples of such as

value. If viewed as a concretization of the principle that ―necessity knows no law‖ it adds a

referent, according to which priority and decision must be made.119

Grotius formulated self-preservation in the way we think of excuse of self-defense today:

―The Jewish law… no less than the Roman, acting upon the same principle of tenderness forbids

us to kill anyone, who has taken our goods, unless for the preservation of our own lives.‖120

Importantly he used preservation as a qualifier for the more open-ended ―necessity.‖ The

existence of a threat to ―self-preservation‖ was the justificatory basis to take any steps necessary

to preserve one‘s existence. Even the maxims of necessity discourse, when specified, take note of

protection. Salus populi suprema est lex (public is the supreme law). Salus populi-- literally safety

of the population—is the reason of state. any violent infringement of the integrity or

independence of another State represents in itself both the necessary and the sufficient condition

for the validity of the concept of self-defense in the international legal order.

Is the ―law of necessity‖ a ―law‖ at all, in the sense of man-made law, or is it rather

identifiable with nature and therefore ―an exception to all human ordinances and

constitutions…‖?121

But what if necessity, namely the necessity of self-preservation was itself a

positive legal duty, itself an ordinance of the highest order? The argument is that in international

law, there has always been a duty of self-preservation, identified with the principle of salus

populi, protection of citizens, or the population as a whole.122

Active notion of salus populi

Vattel, ("Civil society is so useful, nay so necessary to all citizens, that it may well be considered

as morally impossible for them to consent unanimously to break it without necessity ... .In

general, as long as the political society subsists, the whole nation is obliged to endeavor to

maintain it."); Early jurists, such as Vattel, codified the principle of international law underlying

this duty:

119

Right of "self-preservation" ("Selbsterhaltung", "auto-conservazione"). 120

Hugo Grotius, De Jure Belli Ac Pacis, Libri Tres bk. II, ch. I, para. XII, cl. 3 (A.C. Campbell

trans., 1901). Roman Boed State of Necessity as a Justification for Internationally Wrongful Conduct Yale

Human Rights and Development Law Journal 3:1 121

W.P. Prentice, Police Powers Arising under the Law of Overruling Necessity 4 (1894).. 122

On the general principle of self-preservation see Cheng, at 32-68.

The end or object of civil society is to procure for the citizens whatever they stand in

need of for the necessities, the conveniences, the accommodation of life, and, in general,

whatever constitutes happiness, - with the peaceful possession of property, a method of

obtaining justice with security, and, finally, a mutual defense against all external

violence... In the act of association, by virtue of which a multitude of men form

together a state or nation, each individual has entered into engagements with all, to

promote the general welfare; and all have entered into engagements with each individual,

to facilitate for him the means of supplying his necessities, and to protect and defend him.

It is manifest that these reciprocal engagements can not otherwise be fulfilled than by

maintaining the political association. The entire nation is then obliged to maintain that

association; and as their preservation depends on its continuance, it thence follows that

every nation is obliged to perform the duty of self-preservation.123

("If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its

members.").124

This right is not negative in nature, but positive, the government is not obligated

strictly by morality, but, rather, by the need to sustain itself, resources necessary for human

survival, which guarantees the existence of its sovereignty. Consequently, they constitute the

foundation upon which other rights are built. Or, stated differently, "Survival, the most

fundamental ―common interest' of humanity, underlies all legal and social systems." Without

recognizing codifications of the ancient right to survival, To begin, the right to survive, and

nations' correlative duties to enforce it, has been articulated for centuries.

Thus, the justification for abiding by societal rules is the government's assurance that the

governed will survive. Accordingly, all "basic moral rules are natural, in the sense of being

derivable by reason from the universal common interest in social peace." Just as the individual's

ability to survive creates a unique reasoned identity that allows for political action, theorist

Friedrich Meinecke provided that State action derives from this same nucleus. In Meinecke‘s

view of raison d'etat, or Reason of State: ―The elementary biotic "striving for security and self-

preservation at any price' is behind all conduct ... and to condemn and curse it is about as

reasonable as to condemn and curse the leopard for its spots.‖125

The Island of Palmas decision

the arbitrator recognized the territorial dimension of this duty stated:

Territorial sovereignty ... involves the exclusive right to display the activities of a State.

This right has as corollary a duty: the obligation to protect within the territory the rights

123

Emerich De Vattel, The Law of Nations or Principles of the Law of Nature, Applied to the

Conduct and Affairs of Nations and Sovereigns 4 (Joseph Chitty ed., 1876) (1758); at 4 124

Emerich De Vattel, The Law of Nations or Principles of the Law of Nature, Applied to the

Conduct and Affairs of Nations and Sovereigns 4 (Joseph Chitty ed., 1876) (1758); at 5 125

W. Stark, Editor's Introduction, in Friedrich Meinecke, Machiavellism: The Doctrine of Raison

D‘etat and its Place in Modern History (1924) (Douglas Scott trans., 1957) at 2. See also Friedrich

Meinecke, Cosmopolitanism and the National State 14 (Felix Gilbert trans., 1970).

of other States, in particular their right to integrity and inviolability in peace and in war,

together with the rights which each State may claim for its nationals in foreign territory.

Without manifesting its territorial sovereignty in a manner corresponding to

circumstances, the State cannot fulfill this duty. Territorial sovereignty cannot limit itself

to its negative side, i.e. to excluding the activities of other States; for it serves to divide

between nations the space upon which human activities are employed, in order to assure

them at all points the minimum of protection of which international law is the

guardian.126

However, even more deeply rooted is the connection between the principle of salus populi and the

welfare of the population.127

These authorities address the necessity of protecting one's own

nation (or crew, in the case of a seafaring vessel) against imminent harm. While the doctrines

may be helpful, they fail to govern responses to a common threat. Consider, for example, the

recent actions of nations invoking their "right" to self-preservation or the necessity of closing

borders to refugees. The rule that addresses common threats to all is not merely clothed in self-

defense. Rather, it is the duty of cooperative preservation - the recognition that when facing

threats of a great magnitude which endanger more than one nation, nations must cooperate in

order to fulfill duties to preserve their own citizens.

Also, when the categorical sense of necessity is moderated and given a more definite and

minimal content–I propose ―necessity of self-preservation‖— it somehow seems more

convincing, even axiomatic. This may be because the moral appeal and the self-interested appeal

of ―self-preservation‖ overlap and invite little controversy. Self-preservation is a basic kernel of

rationality that gives necessity its positive content. Although these are not absolutely true, from a

pragmatic point of view, nothing seems more self-legitimating. Self-defense is not a matter of

choice. As I will discuss below, the relevant issue when this imperative is invoked is

―preservation,‖ a factor that can be discussed in more empirical and normative detail. The

understanding of necessity has become intimately connected to the right to a state‘s right to

126

Island of Palmas Case (U.S. v. Neth.), 2 Rep. Int'l Arbitral Awards 829, 839 (1928) (Perm. Ct.

Arb. 1928). 127

Thomas Hobbes, Leviathan or the Matter, Forme & Commonwealth, Ecclesiasticall and Civil ch.

XV, Hobbes (identifying inalienable rights as those dealing with "all ... things without which a man cannot

live, or live well"). also observed the sovereign's duty to protect those "things held in propriety, those that

are dearest to a man are his own life & limbs; and in the next degree (in most men), those that concern

conjugall affection; and after them riches and means of living." at 105 (A.R. Waller ed., 1904) (1651) ch.

XXX, at 248. Gregory S. Kavka, Hobbesian Moral and Political Theory 322 (1986) ("Hobbes argues that

the right to resist wounds and imprisonment, as well as the right to resist death, is inalienable‖ but arguing

that these rights are not inalienable because they may be given as gifts).

existence and the attendant right to self-preservation.128

Empirically, in the context of

derogability, claims of ―necessity‖ are often unsupported by circumstances, especially if the

standard is ―self-preservation.‖

Bin Cheng regards self-preservation or ―salus populi‖ as an example of Article 38(1)(c)

general principles of law. In his classic study (1953), Cheng describes ―salus populi‖ as an

―indispensable right,‖ and the first among general principles of municipal systems guiding the

practice of international arbitral tribunals.129

In the Wimbledon case (1923), Judges Huber and

Anzilotti opined in dissent that Germany was free to derogate from provisions of the Treaty of

Versailles as an extraordinary measure. In earlier arbitrations, the ―necessity of self-preservation‖

was cited as a principle in the Blockade of Portendic Case (1843) between Britain and France.

―Salus populi‖ was also described as an ―indispensable right‖ in the German-Venezuelan Mixed

Claims Tribunal (1903), as a precondition of international relations, even all law governed

behavior relations between states. In the Great Venezuelan Railroad Case (1903), necessity was

referred to as the ―highest law of any nation.‖ In other words, necessity is in international law

framed as the residual aspect of sovereignty.

Cheng organizes his discussion of necessity in a way analogous to Bodin‘s dual aspect of

sovereignty. Bodin made a distinction between (1) the supreme power of an internal order and (2)

freedom from external interference, and Cheng carries this to necessity by speaking of (1)

territorial and (2) external applications of necessity. In the course of Cheng‘s study, there is no

general principle of sovereignty listed, however. In a structural sense, however, necessity and

self-preservation, interpreted as salus populi, are given the role that sovereignty are given in

positivist works. Permanent Court of International Justice Advisory Opinion, Nationality Decrees

Issued in Tunis and Morocco: ―the jurisdiction of a State is exclusive within the limits fixed by

international law -- using this expression in its wider sense, that is to say, embracing both

128

See Ago Report; see also Amos S. Hershey, The Essentials of International Public Law and

Organization 231 (1927) (―The most important of these fundamental rights of States is that of existence,

which involves the rights of self-preservation and defense.‖). 129

Cheng at 31 Cheng‘s inductive method is to draw general principles from the practice of

international arbitral tribunals between the Jay Treaty and 1950. Cheng uses the example of Necessity as a

presumption in treaty interpretation. In the Wimbledon case (1923), Judges Huber and Anzilotti opined in

dissent that Germany was free to derogate from provisions of the Treaty of Versailles as an extraordinary

measure. In earlier arbitrations, the ―necessity of self-preservation‖ was cited as a principle in the

―Blockade‖ of Portendic Case (1843) between Britain and France. ―Salus populi‖ was described as an

indispensable right in the German-Venezuelan Mixed Claims Tribunal (1903), as a precondition of

international relations, even law governed behavior relations between states. In the Great Venezuelan

Railroad Case, necessity was referred to as the ―highest law of any nation.‖

customary law and general as well as particular treaty law.‖130

The sources of international law

deviated from giving primacy to sovereignty. Once we have suppressed the idea of either a

―radical outside,‖ or completely ―untouchable sphere,‖ sovereignty must be interpreted in view of

the sources of international law, including general principles of law recognizing every state‘s

claim to self-preservation, good faith, proportionality, due diligence, respect for jurisdiction, and

the prohibition of abuses of rights.

Several commentators have construed this principle as providing a "right of necessity."

Bowett defines ―self-defense‖ as ―in itself a ‗privilege‘ or ‗liberty‘ which justifies conduct

otherwise illegal which is necessary for the protection of certain rights stricto sensu.‖131

In that

author's opinion, therefore, the ―right‖ stricto sensu is not the right to act in self-defense, (right to

a protected interest) but the ―essential substantive right‖ of the State—notably the right to

territorial integrity—injured by the aggression to which that State reacts in self-defense (The first

buffer against a vacant imperative is collective self-preservation) Of all the substantive values

that can be applied to ―necessity‖ in order to tame it, one of the oldest is self-preservation.

Bin Cheng regards self-preservation or ―salus populi‖ as an example of Article 38(1)(c)

general principles of law. In his classic study (1953), Cheng describes ―salus populi‖ as an

―indispensable right,‖ and the first among general principles of municipal systems guiding the

practice of international arbitral tribunals.132

In his discussion of salus populi (necessity of self-

preservation), Cheng tracks the Bodinian distinction between internal and external sovereignty by

speaking of (1) territorial and (2) external applications of necessity. The modified modern view I

take is that salus populi, or public safety, refers to protection of a population,133

including all

persons effectively within a state‘s jurisdiction or dominion.

130

PCIJ, Advisory Opinion, Nationality Decrees Issued in Tunis and Morocco, Series B, Nº 4, p. 24;

Permanent Court of International Justice. 131

Bowett Self- Defense, pp. 8-9 132

Cheng 31. Cheng‘s inductive method is to draw general principles from the practice of

international arbitral tribunals between the Jay Treaty and 1950. Cheng uses the example of Necessity as a

presumption in treaty interpretation. In the Wimbeldon case (1923), Judges Hubert and Anzilotti opined in

dissent that Germany was free to derogate from provisions of the Treaty of Versailles as an extraordinary

measure. In earlier arbitrations, the ―necessity of self-preservation‖ was cited as a principle in the

―Blockade‖ of Portendic Case (1843) between Britain and France. ―Salus populi‖ was described as an

indispensable right in the German-Venezuelan Mixed Claims Tribunal (1903), as a precondition of

international relations, even law governed behavior relations between states. In the Great Venezuelan

Railroad Case, necessity was referred to as the ―highest law of any nation.‖ 133

Optional note here: There is a similar indistinction at the root of ―jus gentium.‖ In order to render

the expression "the pagans" the Christians hesitated at first between the Greek ethnici and the Latin words

nationes and gentes. Eventually the last term was chosen. Already in the classical language the word had a

pejorative sense because of the custom of contrasting the two expressions populus Romanus and gentes.

In the traditional canons of international law, the definition of the state involved both

population and territory, and a rigorous distinction was maintained between the presumed

protection and regulation of the population in (1) territorial matters, in which the maxim ―the

safety of the population is the supreme law‖ gave a wide freedom for public authorities to use

whatever means at their disposal to repress private violence even if this was directed at large

segments of the population itself; in contradistinction to (2) external necessity, where the

population and territory are identified or unified against an external threat. Following the analogy

to Bodinian sovereignty, in the former case, the state served as a ―black box,‖ whose internal

interests were opaque and of no concern to other states, with the result that internal matters as

little-discussed, even rigorously excluded in traditional international law. And in the latter case,

the vital interests of a state were a ―vacant imperative,‖ for a state alone to decide, without a

superior judge of the merits of these imperatives. This dual aspect described the discourse on

sovereignty as a ―reserved domain‖ as much as the construction of necessity. However, the

interpretation of this principle is controversial, and my own view –casting salus populi as the

―collective self-preservation‖ of the population under a state‘s jurisdiction— is one among many

plausible theories.

The traditional view from international law of necessity tracks Bodinian state sovereignty as a

formal matter and not state survival or protection of the population as a substantive matter. This

was articulated by the PCIJ in the Lotus Case (1927) in which state as a ―coexisting independent

community‖ is ―free to renounce its independence and even its existence.‖134

In my view, such a

view could not be assumed where the protection of a population would be threatened by a state‘s

renunciation of its independence or existence. The presumption in favor of a state‘s freedom of

action is today embodied in doctrines of residual sovereignty, deference, and margin of

appreciation, but these all presume a positive correlation between the interests of the population

and the ability of the state to set its public policy. In a substantive sense, salus populi also norms

are also evident in ―ordinary limitations‖ in non-emergency governments: "Prescribed by law‖ in

a democratic society ―public order‖ (ordre public), "public health‖ ―public morals‖ national

security‖ public safety" "rights and freedoms of others," or "rights and reputations of others"

―restrictions on public trial.‖

The meaning of gentes, therefore, owing to this contrast, came to mean "foreign peoples" and "barbarians,"

with a nuance of disdain which supported the Christian use of the word and the semantic transformation

into "non-initiated," "pagans" 134

Cheng p. 29.

Theorists from Grotius to Weber identified state sovereignty with the monopoly of

factual and legitimate coercive power, not only the possession of it, but also the ability to protect

against unauthorized violence. This definition pushes to the background modern concerns with

the pedigree of the authority or theories of representation to make law and to enforce it, but

assumes that an actual monopoly of coercive power is somehow secured by the general

acceptance of those governed, of the sovereign's exclusive right to employ it. Protection of those

governed by states is a more secure norm in international law than the form of government There

are at least two limits to the idea that international law is identified with constitutional

governance. First, it is based –where consent is important— on the consent of states. Consent of

states is not the same as the ―consent of the governed,‖ since there is no secure norm for

representative government in international law.135

It is important to distinguish emergency applications or invocations of the principle of

salus populi and the normal functions of public safety which have long been internalized into

normal functions of government. The normalization of salus populi, as a non-emergency

discourse, corresponds on one hand with ―police‖ powers of the constitutional state,136

and the

―ordinary limitations‖ (in contrast to emergency ―derogations‖) clauses contained in international

rights treaties: Public health, welfare, safety, and morals. This is salus populi not as a principle to

regulate the exceptional, but an expression of a norm: the central services provided by a political

order, the control and regulation of affairs affecting the general order and welfare of society, what

Pasquale Pasquino has historicized as ―the science of happiness‖ and the ―science of

government‖).137

Constitutional permutations of salus populi codified in secure in domestic

traditions, ―Police‖ traditionally connoted social organization, civil authority, or formation of a

135

In a more complex sense, Thomas Nagel says, even ―consent‖ may be given for many reasons,

―ranging from reverence or fear to the desire for security, freedom, and the pursuit of happiness, and it may

be given to sovereigns of many forms, from monarchies and theocracies to democratic republics.‖ 136

4 William Blackstone, Commentaries On The Laws Of England 161-62 (Garland Publishing, Inc.

1978) (1769).OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR

OECONOMY. ―[A] species of offences, more especially affecting the commonwealth, are such as are

against the public health of the nation; a concern of the highest importance. . . . By the public police

and oeconomy I mean the due regulation and domestic order of the kingdom: whereby individuals of

the state, like members of a well-governed family, are bound to conform their general behaviour to

the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and

inoffensive in their respective stations.‖ 4 William Blackstone, Commentaries On The Laws Of

England 161-62 (Garland Publishing, Inc. 1978) (1769). 137

See Pasquale Pasquino, Theatrum Politicum: The Genealogy of Capital- Police and the State of

Prosperity, in The Foucault Effect: Studies In Governmentality 105, 108-11 (Graham Burchell et al. eds.,

1991) The linguistic and historical origins of the concept of ―police‖ demonstrate a close association

between government civil society, and population: politia (the state), polis (city), and politeia (citizenship).

political community, the control and regulation of affairs affecting the general order and welfare

of society. Such was the context in which Hamilton used the term in the Federalist Papers, to

suggest civil peace and public law. ―Police‖ was meant to describe those powers that permitted

sovereign government to control its citizens, particularly for the purpose of promoting the general

comfort, health, morals, safety, or prosperity of the public. Salus populi is configured as the

permanent feature of polities. As Agamben says, generalization of the state of exception both

display the form of a ―right of the police is no longer contrasted with a state of normality, but is

construed as permanent and immanent in every part of political and social life. Montevideo

Convention. The Convention has a reassuring look about it: a list of criteria. But look harder and

the criteria turn out to be a series of vaguely tautological propositions followed by a general

statement about the need for the aspirant state to have ―capacity‖. This ―capacity‖ seems to both

refer us outwards to the subjective assessments of other states in the community and inwards to

the legal independence of the sovereign.

C. Internal and External Applications of Salus Populi

A rigorous distinction was maintained between the presumed protection and regulation of

the population in (1) internal necessity, covering territorial matters, in which the maxim ―the

safety of the population is the supreme law‖ gave a wide freedom for public authorities to use

whatever means at their disposal to repress private violence even if this was directed at large

segments of the population itself; in contradistinction to (2) external necessity, where the

population and territory are identified or unified against an external threat. Following the analogy

to Bodinian sovereignty, in the former case, the state served as a ―black box,‖ whose internal

interests were properly opaque and of no concern to other states, with the result that internal

matters as little-discussed, even scrupulously excluded in traditional international law. And in the

latter case, the vital interests of a state were a ―vacant imperative,‖ for a state alone to decide,

without a superior judge of the merits of these imperatives. This dual aspect described the

discourse on sovereignty as a ―reserved domain‖ as much as the construction of necessity.

However, the interpretation of this principle is controversial, and my own view –casting salus

populi as the ―collective self-preservation‖ of the population under a state‘s jurisdiction— is one

among many plausible theories. The greater part of this dissertation concerns matters which

would have fallen within the territorial aspect of self-preservation/necessity, particularly with

modifications that have taken place within this law since Cheng described these internal matters

as little-discussed, even rigorously excluded in traditional international law.

3. Primacy of Self -Preservation 1861-1919

Evidence of norms of emergency governance can be found in jurisprudence and learned

commentary. Since the mid-nineteenth century, in the period where the importance of the nation-

state increased, self-preservation was valorized as a ―right‖, though the term ―necessity‖

temporarily fell out of vogue to signify vital interests this larger sense. In other words, self-

preservation had foundational connotations, and necessity was moving toward functional role.

Positivist scholars took up the naturalist notion of necessity and gave it the functional role of

―sovereignty to interfere with sovereignty.‖ According to Travers Twiss (1861), self-preservation

is ―the cardinal right, upon which all others hinge.‖138

In particular, considering trans-border

effects, such as trespass on the territory of neutrals, Twiss says ―the right of self-preservation is

prior and paramount to the right of territorial inviolability‖ and this right prevails ―within the

limits of the necessity of the case."139

His contemporary Phillimore echoes that self-preservation

is ―first law of nations‖ and justifies transgressing a neighbor‘s borders.140

The danger may be

―internal, as in case of insurrection or rebellion, or external, as in case of invasion, either real or

threatened.‖ Davis (1908): "This is called into being whenever the corporate existence of a state

is menaced and ―corresponds to the individual right of self-defense.‖ The danger may be internal,

as in case of insurrection or rebellion, or external, as in case of invasion, either real or threatened.

The right of self-preservation is the first law of nations, as it is of individuals. A society which is

138

Travers Twiss The Law of Nations in Time of Peace, Oxford Univ. Press (1861), page 144,

Section 99. text quoted in Alexander Fuehr, The Neutrality Of Belgium 1915"Of the primary or absolute

rights of a nation the most essential, and as it were, the cardinal right, upon which all others hinge, is that of

self-preservation. This right necessarily involves, as subordinate rights, all other rights which are essential

as means to secure this principal end. 139

Travers Twiss Law of Nations, Section 102, page 149. Text quoted in Alexander Fuehr, The

Neutrality Of Belgium 1915"When the safety of the State is at stake, the right of self-preservation may

warrant a nation in extending the precautionary measures beyond the limits of its own dominions, and even

in trespassing with that object on a neighbor's territory. As the right of self-preservation is prior and

paramount to the right of dominion and property, in the case of individuals, so the right of self-preservation

is prior and paramount to the right of territorial inviolability in the case of nations, and if ever these rights

conflict, the former is entitled to prevail within the limits of the necessity of the case." 140

International Law, Chap. 10 (CCXI). text quoted in Alexander Fuehr, The Neutrality Of Belgium

1915 The right of self-preservation is the first law of nations, as it is of individuals…It may happen that the

same right may warrant her in extending precautionary measures without these limits, and even in

transgressing the borders of her neighbor's territory. For International Law considers the 'Right of Self-

Preservation' as prior and paramount to that of Territorial Inviolability, and, where they conflict, justifies

the maintenance of the former at the expense of the latter right."

not in condition to repel aggression from without is wanting in its principal duty to its members

of which it is composed, and to the chief end of its institution. All means which do not affect the

independence of other nations are lawful to this end. No nation has a right to prescribe to another

what these means shall be, or to require any account of her conduct in this respect! "141

Fuehr

(1915), citing many of the above authors in discussing the neutrality of Belgium, ―the right of

self-preservation precedes and underlies every other obligation. All treaties are subordinated and

subject to this basic and inherent right. It is implied, and read into, every treaty and contract,

anything to the contrary said notwithstanding. This primary right cannot be lost or bargained

away; it is unalienable.‖142

Early skepticism toward the state of necessity 1917, C. de Visscher

said: ―The existence of an unjust act, contrary to a formal rule of international law, is, we have

seen, a common element that is found at the base of the law of self-defense and the law of

reprisal. That element is no longer found in the state of necessity (Notstand).‖143

4. The Denunciation of Necessity as Self -Preservation 1919-1980

Although Bin Cheng (1953) identified necessity/ self-preservation as the first among

general principles of law, a formal source of international law in the Article 38 sense, other

scholars of the period did not agree. After the First World War, however, scholars were notably

more skeptical of identifying necessity with self-preservation, not because ―necessity‖ was

understood to be an easily abused and vacant imperative a self-destructive aspect of international

law, or not even because ―self-preservation‖ was viewed as an insufficient concretization of

necessity to prevent abuse. Instead, it was the notion of ―self-preservation‖ that was criticized as a

foundational sense, this time as an existential threat to international law. Already in 1921, Stowell

had indicated that ―this doctrine of necessity strikes at the very root of international society, and

141

George B. Davis, Elements of International Law (1908), page 93. text quoted in Alexander Fuehr,

The Neutrality Of Belgium 1915"This is called into being whenever the corporate existence of a state is

menaced and corresponds to the individual right of self-defense. The danger may be internal, as in case of

insurrection or rebellion, or external, as in case of invasion, either real or threatened. The right of self-

preservation is the first law of nations, as it is of individuals. A society which is not in condition to repel

aggression from without is wanting in its principal duty to its members of which it is composed, and to the

chief end of its institution. All means which do not affect the independence of other nations are lawful to

this end. No nation has a right to prescribe to another what these means shall be, or to require any account

of her conduct in this respect! " 142

quoted in Alexander Fuehr, The Neutrality Of Belgium 1915 143

C. de Visscher ("Les lois de la guerre et la theorie de la necessite", Revue generate de droit

international public (Paris), vol. XXIV (1917), pp. 87.)quoted in Ago Report at…

makes the preservation of the separate states of greater importance than the preservation of the

community of states.‖144

Waldock (1952) cast necessity as ―a rejection of law.‖145

The most forceful of Schwarzenberger (1955): ―If self-preservation were an absolute and

overriding right, the rest of international law would become optional, and its observance would

depend on a self-denying ordinance, revocable at will by each State, not to invoke this formidable

super-right.‖146

For Schwarzenberger, it was not ―necessity‖ but ―self-preservation‖ which

signaled a pernicious rupture with the law Schwarzenberger rejection of the abstract, anti-nomic

principle of group psychology deserves quotation at length if only for the force of the

denunciation, in which he says that lawyers link necessity and self-preservation through not a

common root in law, but a ―psychological denominator‖:

the ―instinct of self-preservation‖…Regrettably, it links not only action alleged to present

context, being worthless for the purpose of a definition of the ―legal‖ concept of ―state of

necessity‖…but also any breaches of international law which, otherwise, it would be

impossible to justify even on the dubious level of quasi-legal terminology. Whatever,

subjectively, may be the intentions of individual international lawyers, who endow self-

preservation with the dignity of a legal principle, the function of this ―principle‖ is

purely ideological. It is one of the ironies of the situation that legal ―purists‖ should

elevate into a legal principle this category of group psychology, which as a legal

principle, is devoid of any sustaining rule of international law, lacks any supporting

evidence and serves merely as one of the backdoors through which to escape with a show

of good conscience from the restraints imposed on instincts by international law. It is one

of the purposes of the inductive method to make manifest the lack of legal foundation of

any such pseudo-principle and of the sociological interpretation of international law to

bring into the open the real functions which such notions are made to fulfill. Thus, it is

submitted that, without any loss, the mischievous notion of ―self-preservation‖ is overdue

for elimination from the vocabulary of the international lawyer.147

This represented a rejection of ―self-preservation in the guise of necessity,‖ yet, ―necessity‖ alone

caught little of Schwarzenberger‘s scorn. This is reminiscent of Bentham‘s observation that the

144

Ellery C. Stowell, Intervention in International Law 392-93 (1921). ―this doctrine of necessity

strikes at the very root of international society, and makes the preservation of the separate states of greater

importance than the preservation of the community of states. 145

C.H.M. Waldock, The Regulation of the Use of Force by Individual States in International Law,

81 R.C. 542, 461-62 (1952). 146

See Georg Schwarzenberger, ―The Fundamental Principles of International Law‖, 87 R.C.A.D.I.

195 (1955), quoted in Julio Barboza, ―Necessity (Revisited) in International Law‖, in Essays in

International Law in Honour of Judge Manfred Lachs, Jerry Makarczyk, ed. (1984), 27, 28. ―If self-

preservation were an absolute and overriding right, the rest of international law would become optional,

and its observance would depend on a self-denying ordinance, revocable at will by each State, not to invoke

this formidable super-right.‖ 147

Schwarzenberger pp. 343 et seq.)

term necessity was given an indulgence that self-preservation could not hold.148

In 1963, separate

textbooks by Brierly, sixth edition ed. Waldock, Brownlie and Higgins all confirmed the

contemporary dismissal of the concept of necessity as self-preservation. ―the doctrine [of self-

preservation/necessity] would destroy the imperative character of any system of law in which it

applied, for it makes all obligation to obey the law merely conditional.‖149

Brownlie (1963)

criticized necessity as atavistic, a cover for raison d'etat and prone to abuse.150

Higgins (1963)

worried that necessity ―is a concept which cannot be kept within proper bounds.‖151

Jimenez de

Arechaga (1968) in the clearest rejection of Bin Cheng‘s thesis, declared ―there is no general

principle allowing the defense of necessity.‖152

By the time Roberto Ago (1980) conducted a

study of ―circumstances precluding wrongfulness‖ these warnings were clear enough and

necessity was codified as a constrained doctrine, and kept separate from the overriding ―right of

self-preservation.‖ For Roberto Ago (1980), two mistakes of international lawyers has been to (1)

link necessity to a subjective right of self-preservation, and thus (2) view a state of necessity as a

conflict between two subjective rights.153

It is a legal doctrine but the doctrine concerns excluding

the wrongfulness of an act rather than ever establishing the categorical "lawfulness" of the ―act of

necessity‖ or, even worse, ―right of necessity.‖ Ago rebuked previous publicists for persisting in

the confusion between ―necessity,‖ ―self-preservation,‖ and a ―right‖ of either and lamented in a

note that even a writer such as Anzilotti, ―who contributed so effectively to the criticism and

abandonment of the theory of the fundamental rights of States,‖ made a mistake in that he

―continued to base the "lawfulness" of the 'act of necessity' on the fact that it was effected in the

context of the freedom that the law allows its subjects to ensure their self-preservation.‖154

Even

148

Bentham Introduction to the Principles of Moral Legislation (113) 149

J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace 404 (6th ed.

1963). ―the doctrine [of self-preservation/necessity] would destroy the imperative character of any system

of law in which it applied, for it makes all obligation to obey the law merely conditional.‖ 150

Ian Brownlie, International Law and the Use of Force by States 42-49 (1963). 151

Rosalyn Higgins, The Development of International Law through the Political Organs of the

United Nations 218 (1963). 152

Eduardo Jimenez de Arechaga, International Responsibility, in Manual of Public International

Law 542 (Max Sorensen ed., 1968). Partly based on Krylov's opinion in the Corfu Channel case, He does

recognize particular rules making allowance for varying degrees of necessity, but "these cases have a

meaning and a scope entirely outside the traditional doctrine." 153

P, 16. 154

See Ago Report at 16, citing to Anzilotti, "La responsabilite internationale des Etats a raison des

dommages soufferts par des etrangers". Revue generate de droit international public (Paris), vol. XIII, No.

2 (1906), pp. 304-305, repr. in: S.I.O.I., Opere di Dionisio Anzilotti, vol. II, Scritti di diritto internazionale

pubblico, (Padua, CEDAM, 1956), pp. 200-203; and Corso di diritto internazionale, 4th ed.: S.I.O.I., Opere

de Dionisio Azilotti, vol. I (Padua, CEDAM, 1955), p. 418.

as the term ―self-preservation‖ and the idea of ―self-preservation in the guise of necessity‖

became suspect in general international law, however, the idea of modest and formal modes of

necessity and ―self-preservation‖ entered the idioms of human rights law and international

humanitarian law from diverse quarters, not least of all the political theories of constitutionalism.

In these regimes, which are exerting more influence on international law as a whole, the concern

is that ―necessity‖ should indeed be conditioned on a notion of self-preservation.

5. The Breakdown of Internal/External Necessity

Echoing the writers above, Philip Allott wrote in 1988 that ―among the clearest lessons of

our collective experience is that the concept of state of necessity is the most persistent and

formidable enemy of a truly human society‖ and the concept is "enough to destroy any possibility

of an international rule of law."155

By this time the notion of ―state of necessity‖ had already

begun to become disaggregated in doctrines, and detached from the existential sense identified by

scholars of his generation. In the current period, beginning with Robert Ago‘s treatise on

necessity (1980), necessity/self-preservation is seen as a precursor not only to ―state of necessity‖

but also other excluding state responsibility such as ―duress‖ ―self-defense‖ and ―force majeure.‖

At the same time, Ago insists on an absolute separation between ―state of necessity‖ and self-

preservation, a distinction that has now become codified and recognized in the Draft Articles on

State Responsibility, excluding within law the concept of existential instability. What Ago gives

scant attention to,156

however, is the development over the same period of time of regime-specific

155

Philip Allott, State Responsibility and the Unmaking of International Law, 29 Harv. Int'l L.J. 1,

17, 21 n.1 (1988). 156

In only a slightly abridged quotation of the entirelty of Ago‘s commentary on the matter, Ago,

par. 67-69, notes three possibilities:

―First of all, ―The parties to the convention may have wanted to prescribe less rigid conditions…

or at least conditions other than those which must be fulfilled in order for there to be a "state of

necessity" as provided for in general international law. In that case, the special rule will obviously

prevail, and the existence of a situation of necessity such as to justify non-compliance with an

obligation will have to be appraised in accordance with the terms of that special rule, and not those

of the principle of general international law.‖ Secondly, ―multilateral or bilateral convention in

question contains a clause expressly precluding any possibility of invoking any "necessity"

whatever to justify the adoption by a State of conduct not in conformity with one of the

obligations laid down in the convention. In such cases, which certainly occur less often (examples

are to be found in the area of international conventions on the humanization of warfare), the

principle of general international law relating to the plea of necessity will, of course, be

automatically set aside so far as obligations under the convention are concerned.‖ (Ago paragraph

68), examples can also be found of a third case. The plea of necessity may be explicitly provided

for, not in a general clause of a convention covering all the obligations laid down in the

convention, but as part of a particular clause imposing a certain specified obligation on the States

notions of necessity, particularly in the areas of human rights law and international humanitarian

law, which also modest and doctrinal, but continued to be tied to self-preservation, though

phrased as a condition of their use, and not an imperative.157

General principles such as necessity or self-preservation would take on different

meanings and applications in specific treaty based regimes. Ago mentioned in passing: ―The

parties [a human rights convention] may have wanted to prescribe less rigid conditions for the

recognition of a situation of necessity as a ground for a State party to the convention not to

comply with its obligations, the requirements peculiar to the specific subject-matter of the

convention and the special nature of the obligations laid down may necessitate such an adaptation

of the general principle.‖ The specific principles of emergency governance developing within

modern international law, particularly human rights law (HRL) and to a lesser extent international

humanitarian law (IHL) follow principles such as proportionality and temporariness which are

particularly republican in character. This is despite the fact that derogation in itself seems like an

eclipse, a veil over liberty. are not to be found in familiar or even analogous forms in the liberal

tradition. If internal-territorial applications of salus populi are today considered in a different

light by international jurists, or the fact that they are considered at all, this is not due entirely to

the evolution of formal sources and interpretations within international law, but also to the

reception of longstanding constitutional concepts within the terms of certain multilateral treaties,

and then into general international law. The distinction between the two kinds of necessity some

times broke down in practice and Burleigh Rodick synthesized the two applications into a law of

necessity, summarizing the applicable rule of law as follows: The right to possess those things

essential to life permits a people to pass through the territory of another state on the ground that

necessity revives the common ownership of property which once existed, and even gives them the

right to reside there, provided they submit to its territorial laws.

parties. This kind of explicit provision indicating that "necessity" may or may not constitute a

ground for non-compliance, by way of exception, with the obligation laid down in the same

article… it will be possible to give a definitive answer in each case only by an interpretation of the

convention in question. (Ago paragraph 69)

157

The parties to the convention may have wanted to prescribe less rigid conditions for the

recognition of a situation of necessity as a ground for a State party to the convention not to comply with its

obligations, the requirements peculiar to the specific subject-matter of the convention and the special nature

of the obligations laid down may necessitate such an adaptation of the general principle.

The right of states parties to derogate from certain obligations in states of emergency, the

ultimate objective for the state must be to return to normalcy as soon as possible in conformity

with law. Foundational issues where the state has he positive duty derogating and overriding any

other duty to enforce any particular provision of its own law, including international law, where

doing so would be in conflict with such a broader conception of constitutional duty to self-

preservation.158

Various ―exceptions‖ embodied in limitations, ―claw-back‖ clauses, and

derogation clauses found in the instruments of human rights regimes is to avoid a foundational

confrontation between ―supreme interests‖ of a state‘s self-preservation and the international

interest in legality. The presumption in favor of a state‘s freedom of action is today embodied in

doctrines of residual sovereignty, deference, and margin of appreciation, but these all presume a

positive correlation between the interests of the population and the ability of the state to set its

public policy. An exception for the benefit of a ―people‖ to allow a lesser infringement on the

sovereignty of another ―people.‖

The story has so far been told in a piecemeal fashion how constitutional and human rights

discourses have— not simply at the margins, but at their recognizable core— developed in

response to repression or overreach through emergency and ad hoc decrees.159

This is a much

grander story about the ―taming of necessity‖ than I am prepared to tell here, but it is both an

assumption and an extension of many of my arguments. It has been noticed by most researchers

in this area (and in recent political discourse) that exceptional laws targeted at particular groups

in society have a tendency to spill over into other areas of the legal system and become more

commonly applicable. (The limited ―internal aspects of necessity‖ international law concerned

itself with at the time of Rodick‘s writing was (1) expulsion of Aliens and (2) Military

Requisition of Property). This is the theory— often used to mobilize the solidarity of members of

a majority group for targeted minorities— that the minority groups are scapegoats and ―canaries

in the coalmine,‖ simply the frontline of repression. What has been less discussed is the

countervailing tendency— at both the national and the international level— of protective

principles of emergency governance, principles designed to protect one group of people, and their

expansion to cover much wider populations, even (in aspiration anyway) ―humanity‖ as a whole.

This is part of the story that regulating ―exceptional‖ measures against marginal groups became

158

As with Lincoln, The first duty of the President of the United States is to preserve, protect, and

defend the nation, through every indispensable means. That duty is both a precondition to and an essential

aspect of the duty to preserve, protect, and defend the Constitution. 159

Brian Simpson, Nasser Hussain, and Tony Anghie have all contributed to this story. In a different

way, so has Giorgio Agamben, who insists on the generalization of the exception in many of his essays.

common rights and protections of all persons. The traditional view from international law of

necessity tracks Bodinian state sovereignty as a formal matter and not state survival or protection

of the population as a substantive matter. If self-preservation stands in for sovereignty, it does so

in a specific sense. The modified modern view I take is that salus populi, or public safety, refers

to protection of a population as a whole, including all persons effectively within a state‘s

jurisdiction or dominion.

D. Salus Populi as a Protective Principle: An Argument

1. Introduction

In my view it would be a mistake to lose the connection between ―necessity‖ and ―self-

preservation‖ albeit the latter re-imagined with the capacities of and threats to modern

international order. A preliminary specification of necessity, almost from the beginning,

conditioned on positive notions of salus populi among theorists of the state between two strong

camps. Those who emphasize material preservation take a state-centered view, grounding the

existence of the state in a pre-legal right to self-preservation, while most theorists who emphasize

normative preservation theories the constitution-centered theories ground the state‘s existence in

a normative order, denying that any pre-constitutional right could exist. Rather than following

either of these, the principle of salus populi as I have described it identifies self-preservation with

the population, which is a hybrid concern between material and normative theories. Finally, the

link between necessity and self-preservation is at a point of uncertainty in international law; even

as the coupling necessity/self-preservation became suspect in general international law, modest

and formal modes of ―self-preservation‖ entered the idioms of human rights law and international

humanitarian law from diverse quarters, not least of all the political theories of constitutionalism.

In my view, it would be a mistake to reject a protective principle of self-preservation, for reasons

of systemic coherence as well for the purpose of apprehending (within the law and not outside of

it) violent threats to the lives of states and populations.

The Influence of Constitutional traditions of Salus Populi :

(SEE APPENDIX I: this section has been removed from the text pending complete removal,

revisions or reincorporation).

2. Development of Salus Populi : Guidance from State Theory

Without overstating its merits or modernity, Bluntschli‘s (1885) Theory of the State

sorted out many of the views that are still influential, and the level of analysis appropriate to

consideration of salus populi included in the scope of self-preservation It includes also the

―administration of law, which is necessary to secure the peaceful course of the common life, and

which prevents or punishes wrongs by which the community is harmed.‖ Under the heading

―Insufficient or Exaggerated Views of the End of the State‖ Bluntschli says ―After Kant and

Fichte the opinion long prevailed in Germany that the true end of the State was merely the

assurance of rights, and especially those of person and property.‖ Balance collective self-

preservation… end of the State is the security of the individual'. Tracing back to pre-

constitutional times, the best-known contemporary proponent of classical state-centrism in state

of emergency is Klaus Stern, (Necessity maps onto) according to whom the state always has ―an

unwritten, supra-positive right of necessity that the positive law cannot limit.‖ Bluntschli view of

the end of the State warned that the end of the state cannot be reduced to its constitution on one

hand (contra Kant) or its interests on the other (contra Fichte) but must ―salus populi‖?

Bluntschli surveyed previous theories of the state who attempted to give content to ―reasons of

state‖:

Kant (Rechtslehre, §§ 47--49) expressly declared that `the safety (i.e. the end) of the State

does not consist in the welfare or happiness of the citizens, but in the agreement of the

constitution with the principles of law'. Fichte (Naturrecht, in his Works, iii. 152)

maintains that `the assurance of the rights of all men is the only general will' (i. e. the will

of the State). Starting from this view of Kant, Wilhelm von Humboldt assigns very

narrow limits to the activity of the State, and defines its end as `the maintenance of

security against both external enemies and internal dissensions'. Even in our own century,

when the idea of nationality is so strong, Eötvös (Moderne Ideen, 191) maintains that `the

end of the State is the security of the individual' (citations omitted).

In the century since Bluntschli surveyed these ideas, the idea of salus populi in state

theory has navigated between notions of liberal individualism or republican virtue.160

Ratio status

can be associated at best with ‖ Salus republicae ―welfare of the state‖ or in the terms of today

―national security‖ Salus republicae supreme lex est (the safety of the state is the supreme law)

said the Roman and it is the same today. ... It is by the co-operation of these three powers—the

legislative, the executive, and the judicial—that the state realizes its autonomy. This autonomy

consists in its organizing, forming, and maintaining itself in accordance with the laws of freedom.

160

Even in the reason of state tradition, the works of Meinecke, Bolero, and Viorli, for example) reveals

a pluralism from ―interest‖ to ―interests‖ reconcilable with international law.

In their union the welfare of the state is realized. Salus republicae suprema lex.161

5 By this is not

to be understood merely the individual well-being and happiness of the citizens of the state; for—

as Rousseau asserts—this end may perhaps be more agreeably and more desirably attained in the

state of nature, or even under a despotic government. But the welfare of the state, as its own

highest good, signifies that condition in which the greatest harmony is attained between its

constitution and the principles of right—a condition of the state which reason by a categorical

imperative makes it obligatory upon us to strive after.

Finally, we should specify better exactly what object a preservationist logic seeks to

preserve. Finally, preservation may just defer the question of a referent. We should specify better

exactly what object a preservationist-logic would seek to preserve. On the face of it, it is the

extent constitutional and political structures, the laws, of normal times. Is it a ―constitution‖ in the

broad (even Schmittian) sense? Is it mere survival of the physical integrity of a people? Is it a

recognized regime from an international law perspective? Is it democratic will of the people? Is

it constituent powers followed? There is a way in which preservation and formality enter a zone

of indistinction. Preserving legal formalities? If I am going to claim that the ―logic of

preservation‖ is the central defining characteristic of the emergence regime, I must spell this out

in considerable detail. Is it a ―constitution‖ in the broad (even Schmittian) sense? Is it mere

survival of the physical integrity of a people? Is it a regime from an international law

perspective? Is it democratic will of the people? Is it constituent powers followed? Is there a

way in which notions of preservation and formality enter a zone of indistinction-- the preservation

of legal formalities? Not necessity, but the constitution that corresponds with self-preservation.

Carl Friedrich (1958) asks:

―What then is the essence of law, or rather of the constitution? In what sense is it basic

law, that is, the framework for all policy? The constitution is an attempt to give definite

institutional forms to the political will of the people, of the members of a legal

community. This ‗political will‘ must be understood as the will to live together in a

political community; it corresponds in many ways to what traditional natural law calls the

161

See Andras Jakab, German Constitutional Law and Doctrine on ―State of Emergency‖: Paradigms

and Dilemmas of a Traditional (Continental) Discourse German Law Journal Vol. 7 No. 5 - 1 May

2006,).Carl Friedrich Wilhelm von Gerber, Grundzüge des deutschen Staatsrechts 42 margin note 2 (3d ed.

1880) (―The recognition of emergency powers contains the idea of the state‘s right of existence beyond its

usual constitutional life, a right that appears in abnormal emergency circumstances‖) (Andras Jakab‘s

translation) Erich Kaufmann, Zur Problematik des Volkswillens 14 (1931) (―For the extreme case, an

ultimate right of necessity exists, alongside standardized and formalized exceptional rights, in the

unwritten, natural-law content of every body of constitutional law‖) (Andras Jakab‘s translation). See also

Rudolf von Jhering, Der Zweck im Recht 330 (8th ed. 1923) (―As the individual human being, so too the

state has a right of necessity when its existence is threatened‖) (Andras Jakab‘s translation)..

will and the right to self-preservation, admittedly the first right of nature. It is the right to

remain or to become an organized people, a nation, structured in many free associations

and groups. This idea or norm is basic. The notion that a people could be willing to

sacrifice its own existence as a people to some kind if social, economic, or power-

political goal contradicts all the facts we know and must be rejected as erroneous.‖162

My own understanding of salus populi is that the proper locus of protection is the public or

―population‖ and not any narrower construction of ―people‖ or ―state.‖ Under state theory as

much as international law, this might refer primarily to permanent population, but also to those

under effective jurisdiction. Kelsen explains: ―Behind the naïve assurance that the state must

‗live,‘ there usually lurks the reckless desire that it lives exactly as those who avail themselves of

the justification of an ‗emergency right‘ consider it appropriate for it to live.‖163

In other words, each "people" is sovereign over its internal affairs; its manifest will is to

be deferred to, irrespective of the basis of the people's decision. At this time, "right to democratic

governance", ―responsibility to protect.‖ the international law literature lacks systematic

treatment of governmental illegitimacy. Weber's famous definition of "the state" refers to the

institution that "successfully claims the monopoly of the legitimate use of physical force within a

given territory,‖ For Weber, possible vehicles for ―legitimation‖164

include tradition,165

charisma,166

and legality.167

To Rousseau, according to Bartelson, ―the prince speaks to his

citizens in the language of law, and to foreigners in the name of raison d‘etat.‖168

From a

constitutional point of view, this makes intuitive sense. However, when internal imperatives of

―necessity‖ are invoked, traditional international law did little to inquire into the application of

―salus populi‖ within the state, and offered no real protections to those within states. Thus

―foreigners‖ became the frontline in the development of human rights discourse, and a funnel for

the internalization of this discourse.

The limits of the relevant population will differ for constitutional law and forms of

international law. Under the jurisdiction of the state. What is ―internal‖ to a community and how

can it be defined? Here I will defend a notion of Salus Populi as ―population.‖ Moreover, the idea

162

Friedrich 1958 at 220. 163

See Andras Jakab, German Constitutional Law and Doctrine on ―State of Emergency‖: Paradigms

and Dilemmas of a Traditional (Continental) Discourse German Law Journal Vol. 7 No. 5 - 1 May 2006,

translating a passage from Hans Kelsen, Allgemeine Staatslehre 157 (1925) 164

Brad R. Roth, Governmental Illegitimacy in International Law Oxford University. 1999. 41 165

Roth, Governmental Illegitimacy in International Law 43 166

Roth, Governmental Illegitimacy in International Law 46 167

Roth, Governmental Illegitimacy in International Law 48 168

Bartelson (194)

of salus populi in state theory must allow us to identify the relevant ―populi‖ the bounds of the

community that must be defended. However, when internal imperatives of ―necessity‖ are

invoked, traditional international law did little to inquire into the application of ―salus populi‖

within the state, and offered no real protections to those within states. Thus ―foreigners‖ became

the frontline in the development of human rights discourse, and a funnel for the internalization of

this discourse. Salus republicae ―welfare of the state‖ or in the terms of today ―national security‖

Salus republicae supreme lex est (the safety of the state is the supreme law) said the Roman and it

is the same today. ... It is by the co-operation of these three powers—the legislative, the

executive, and the judicial—that the state realizes its autonomy. This autonomy consists in its

organizing, forming, and maintaining itself in accordance with the laws of freedom. The

connotations of this suprema lex highest good are wide-ranging: safety of the republic, salvation

of the state, safety of the people, public security, substantial homogeneity, aggregate wealth, or

pursuit of happiness, public good, public health, welfare of the state, health, safety .and morals

(Salus republicae suprema lex).169

By this is not to be understood merely the individual well-

being and happiness of the citizens of the state;. But the as its own highest good, signifies that

condition in which the greatest harmony is attained between its constitution and the principles of

right—a condition of the state which reason by a categorical imperative makes it obligatory upon

us to strive after. We are finding here that inclusive preservationist logic is the differentia

specifica of true bona fide emergency regimes. We would therefore exclude from this category

the kinds of measures conducted expressly to achieve permanent dictatorship or revolutionary

regime change.

Bin Cheng in his study on General Principle of law (1950) identified collective self-

preservation with ―salus populi‖ and found the ―dual significance‖ of salus populi in two kinds of

169

See Cicero, De Legibus III, at 3 (―Salus rei publicae suprema lex esto‖). Lawless v. Ireland (No.

3) - 332/57 [1961] ECHR 2 (1 July 1961) Individual Opinion of Mr. G. Maridakis The Irish Government

have not violated the provisions of Article 15 (art. 15) of the Convention. ―When the State is engaged in a

life and death struggle,‖ no one can demand that it refrain from taking special emergency measures: salus

rei publicae suprema lex est. Article 15 (art. 15) is founded on that principle. Supreme Court of India in

D.K. Basu v. State of West Bengal 1997 (1) SCC 416: ―The right to interrogate the detenues, culprits or

arrestees in the interest of the nation, must take precedence over an individual‘s right to personal liberty.

The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus

republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and

relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the

community. The action of the State, however, must be ―right, just and fair‖. Using any form of torture for

extracting any kind of information would neither be ―right nor just nor fair‖ and, therefore, would be

impermissible, being offensive to Article 21. … Challenge of terrorism must be met with innovative ideas

and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide

legitimacy to ―terrorism‖. That would be bad for the State, the community and above all for the rule of law.

application: territorial and external. To this it must be added that in the broad sweep of decisions

in modern international law, ―salus populi‖ cannot be reduced to salus republicae, ratio status or

reason of state, ―national security. The meaning of salus populi has most often been translated

into ―public safety‖170

but there are many translations and historically contingent meanings for

―salus‖ (security, health, well-being, wealth, welfare, prosperity, safety, security, happiness, life,

good, morals) as well as ―populi‖—public, populace, population, the poor, the commons,

collective, aggregate, and incorporating salus republicae— state, nation, republic, revolution171

).

Thus the term encompasses such diverse modern discourses as public health, national security,

and aggregate wealth. In my view, however, the relevant translation is ―collective self-

preservation,‖ with the proper referent being the ―population.‖

In the context of international law, the rendering collective self-preservation comes from

usage, such as in Bin Cheng‘s survey of international tribunals when he identifies the principle of

salus populi as self-preservation, and this understanding of the principle as the first among

general principles of law recognized in the law of nations. Two categories comprise the

theoretical constructs of state of emergency: ―constitution-centered theories‖ and‖ ―state-

centered theories‖ Concept of salus populi mediates between them. The political stance of the two

political wings could be summed up by two phrases, the conservatives whose aim was the salus

rei publicae (the safety of the state) and the reformers and the salus populi (the safety of the

people)..Rousseau that the ―first intention of the people is that the state should not perish‖ must

be reversed in salus populi, that it ought to be the first intention of the state that the people should

not perish. In my view, following the radical transformations that have taken place in

international law over the last century, and also in part on the transformation of individual rights

discourse at the domestic level, the most tenable understanding of the ―self‖ of self-preservation

is neither the state as governmental apparatus nor the ―nation‖ as ethnic community, but of ―self‖

as the jurisdiction of the state and ―populi‖ as the protected population covered by this

jurisdiction. The notion of popular sovereignty did away with the distinction between salus re

publicae and salus populi,172

Salus Populi must be distinguished from Ratio Status (―reason of

170

following e.g. the conventional English translation of the Committee of Public Safety during the

French Revolution, 171

Though only in the oxymoronic ―defensive‖ context (Robespierre, Mao and particularly Castro). 172

Though different versions of Cicero‘s De Legibus relate the content of the maxim with ―populi‖

and ―republicae‖ interchangeably, at various points in the Roman Republic the two terms ―populi‖ and

―republicae‖ helped play out entrenched social conflicts, with the oppositions between those whose

overriding aim was to maintain and ensure the ―safety of the state‖ (salus rei publicae) and those whose

state‖ or ―raison d‘etat‖) secreted away by the state… In this latter role, international law would

attempt to represent itself as a plausible repository of the ―rule of law‖ over and against ―reason

of state.‖ [The difference between international and constitutional rights protection is that the

international understanding of ―emergency‖ must include but go beyond particular political

borders and communities.]

Even though to Rousseau, according to Bartelson, ―the prince speaks to his citizens in the

language of law, and to foreigners in the name of raison d‘etat.‖173

From a constitutional point of

view, this makes intuitive sense. Benedict Anderson privileges ―nation-ness‖ without attempting

to naturalize it when he says ―nation-ness is the most universally legitimate value in the political

life of our time.‖ [nation refers to a ―people.‖]174

Gerald L. Neuman in Strangers to the

Constitutions speaks on a practical level about the gains of social contract theory after it left

behind its basis in naturalism. Here ―the people‖ are regarded as a unified sovereign or collective

subject to whom political actors are accountable. Owing to Hobbes, there is no ultimate external

contract states are bound by, and the idea that states and peoples as a whole must consider the

role of the social contract with ―others‖ persists in most liberal and democratic systems.175

Within the concept of political community, there are reasonably different conceptions: demos,

citizenry, general will, political culture, and public order among them. Carl Schmitt notoriously

commented that politics is the distinction between friends and enemies, and elsewhere that

political community is possible only in situations of ―substantial homogeneity.‖176

Though

watchword was the ―welfare of the people‖ (salus populi). Cicero was probably aware of the conflicting

connotations, which dated at least to the Gracchan Crisis (133–121 BC). 173

Bartelson (194) 174

Cosmopolitans who go further than Constant and Kant regard nation-states as a fiction and not a

particularly useful one. Richard Falk refers to the nation-state as a ―distortion‖ when it is regarded as the

basic unit. Daniel Deudney design of global ―governance‖ institutions ―planetary republicanism.‖ More

rationalist constructivists include Michael Doyle and Modeleski, who theorize layers of governance: local,

national, and global. 175

(thus in the US, Congress being given plenary power over alienage) 176

Carl Schmitt, The Concept Of The Political (1932); The Crisis Of Parliamentary Democracy

(1923, 1926). Sovereign is he who decides on the exception. The true sovereign not abstract constitution.

Abstract law. true sovereign is he who decides when there is a crisis (decides it is a crisis/ then decides

what to do). Substance– force of cohesion which exists historically and gives foundation to legal order.

Addresses through several concepts (concrete order– substantial order the exists in the society). Cannot be

reduced to abstract norms. Historical relationships between groups and political order. Friend vs. fiend. 1)

constitution: (versaglung) takes in literal sense: force of gathering. Concrete constitution. Not a set of

norms. Concrete historical force that makes people gather. Savigny (German historical school of law).

Inherits the concept of Volk geist. Not spirit, but a substantial order that brings people together, but

together along true lines of fracture between groups. If not accounted for legal system imposed, created

more violence. Versafungleben. During Nazi period- volk the substance of the order the tries to theorize.

Schmitt never faced up to the implication that political community, insofar as it is political, must

be understood as deeply contingent177

, his The anti-fascist German Constitution and radical

democratic thinkers like Chantal Mouffe have not been squeamish about insisting that anti-

democratic parties be permanently excluded from the democratic game. Pasquale Pasquino has

made the Schmittian point that ―the political constitutional system distinguishes between actors

who accept the constitutional game (Gegner-German, inimicus-Latin, competitor-English) and

actors who want to disrupt it (Feind-German, hostis-Latin, foe-English). Vis-à-vis the former the

state apparatus is neutral; vis-à-vis the latter hostile.‖178

In any case, the Schmittian ―single-nation

community‖ whether based on race or partisanship has been irretrievably delegitimated and the

facticity of pluralism must be taken into account. Claude Lefort, following Hannah Arendt, has

called citizenship ―the right to have rights.‖179

This formulation is becoming more unstable as the

discourse of ―human rights‖ enters national constitutional systems. On one hand, human rights

discourse removes the presumption that non-citizens do not have ―the right to have rights.‖ On

the other hand, it removes ―rights‖ as a special category of entitlement intended for citizens alone.

Presumably, then, the entitlement that specifies citizens is not ―rights,‖ but rights of participation

in the political process. Under this new formulation, citizens are the political community, the

active members of a state‘s constant reinvention. At times, the right of citizens to self-determine

may conflict with the rights of non-citizens to ―have rights.‖ This largely depends on how

entrenched a commitment to human rights is in a particular political community. Yet there is also

another kind of conflict implied here. The intrusion of human rights into constitutional systems

also implies a problem for the traditional role of the state: the ―right to give rights,‖ or perhaps

less archaically ―the right to guarantee rights.‖ If human rights are guaranteed outside of a

Staat,...,...State people, party (movement). Hegelian– people as spirit, stat as institution, movement to

actualize the substance (people) into instance capable of decisions (the state). His own political utopia.

Perfect unity of the concrete order against any thing outside it. Utopian model corresponds not to the realty

but the wy he could imagine the Nazi regime would keep his concepts working. Not as simple as to say

goes back to traditional German concepts, applies a racist conception to Nazi. Conceptual system not racist

enough for Nazi regime. Tried to elude the regime– fragility of parliamentarism allowed Nazis to take

power. Wanted to save the Weimar republic through neutral president. Once lost the cause– tried to give

meaning to the ideology (rubbish nonsense) of Nazism. Tried to integrate Nazism into his own system. 177

In terms of conceptual analysis, we can view Algeria‘s double bind as a simple disagreement

between conceptions. What should be more troubling, however, is the zone of indistinction between the

concepts of ―political community‖ and ―political enemy‖ where somehow the majority of the community

becomes defined as the enemy. Thus, the Algerian solution would seem a difference in degree, not kind,

from the experience in Western European multiparty systems, if not for Algeria‘s comparative inexperience

with democratic commitments. 178

Cite to Pasquino. 179

Claude Lefort, Democracy and Political Theory (1988) at 37.

constitution, this creates an uncertain relationship between the national constitution and the rights

at hand. The idea that there would have to be a third party enforcer, outside of the state and the

rights-bearers is troubling to the state. That is why states that have not avoided but actually

confronted the issue of human rights have entrenched or incorporated them into their national

constitutions. This seems satisfactory to any third party enforcers as well. This brings rights back

into play in the political culture; they can be manageably ―balanced‖ against each other or the

priorities of the state. Subject: Right or duty normative relationship (right, duty of care, duty of

rescue—state to its population) 180

Self-defense is partly grounded in the normative relationship

between the defender and the end of her action, The duty to protect is primary and not always

addressed in theories of jus ad bellum. What about a constitutional duty? (2) Object: the identity

of the threat against which the claimed right is held (the aggressor, or enemy alien) We are also

left with two possible notions of ―political community.‖ One where the political community is the

entire population effected by political decisions, and another where the political community is

only participatory rights bearing subjects. In either case, protection must be aimed at everyone,

whatever the status of their rights. In a polity where ―human rights‖ has been somehow

incorporated, the responsibility of the state is to an entire population, and not just citizens. In a

polity where this is not the case, the ―active citizenry‖ must maintain or be restored their rights to

self-determine, but the human rights is an additional concern at the international level. The

suggestion here is that an international system of emergency governance cannot be sensitive to

merely a citizen-centered notion of rights. It must at times exceed the mandate given to it by

states (the rational delegation) in the protection of non-citizen minorities. I propose a critique of

the more difficult notion of ―political community,‖ which has been a foundational concept in the

definition of emergency powers. This critique is based on the following observations. (1) Every

political community, even a democratic one, implicitly defines its existence through a process of

exclusion. (2) In liberal-democratic polities, these exclusions are normally concealed by an

internal liberal denial, sometimes to appeal to an external cosmopolitan utopianism. (3) However,

during states of emergency, at least two potentialities of exclusion, those against political enemies

and non-citizens, become palpable. (4) These same states of emergency also create ―crises of

categorization,‖ revealing the incoherence of ―political community.‖ When considerations of

180

either the subject has a ―right to‖ the end of defense (as when one defends one‘s own right to life

from attack) or the subject has a ―duty of care‖ over the end (as when a parent defends his or her child) or

the subject is acting out of a general ―duty of rescue‖ (as when a defender comes to the aid of a third party

who is being attacked). The rights and obligations of defense differ subtly in each of these cases.

―collective security‖ allow derogations from human rights, those who are excluded from the

collectivity confront a doubled existential insecurity. A couple of questions become relevant.

Who are cast into existential insecurity by emergency? What recourse is available at any level of

emergency governance for the rights of those defined outside a relevant order or community?181

As with constitutional law, in international law, the tendencies of natural law have

become relatively secularized: ―natural‖ obligations of justice become what is necessary for

subsistence and self-preservation.182

The introduction of ―necessity‖ as a tautological and vacant

imperative, the ―foundationless foundation,‖183

performs the function of the miracle, in the

secular order. But miracles cannot be sustained, and normative commitment must attach to

something more obdurate and self-evident . This is the role of self-preservation in political

thought.184

3. The New Context of Salus Populi

In part, what is problematic in the rejection in international law of a general principle of

self-preservation (rather than its taming or adaptation to circumstances) is a loss of any theory or

notion of the state, and its raison d‘etre, which is the protection of a political community or

population. It is against this background of a concurrent duty to protect that derogability should

181

For the answers to these questions, I will draw upon constitutional law, international law, and

other realms of thought for reflections upon possibilities of anti-essentialist referents, including strands of

post-colonial theory and critical security studies Liberty is never a problem for the individual or group that

possesses it; the problem only arises when the same freedom is demanded by the other. Enlightenment

political theory, which ultimately reaches its culmination in Hegel, subsequently highlights the need for

reciprocity in the allocation of rights and duties to the state. David Hume put the matter well when he wrote

in An Enquiry Concerning the Principles of Morals: ―Fanatics may suppose that dominion is founded on

grace and that saints alone inherit the earth; but the civil magistrate very justly puts these sublime theorists

on the same footing with common robbers, and teaches them by the severest discipline, that a rule, which,

in speculation, may seem the most advantageous to society, may yet be found in practice, totally pernicious

and destructive.‖ David Hume, Political Writings ed. Stuart D. Warner and Donald W. Livingston

(Indianapolis: Hackett, 1994), 88. 182

(Apology to Utopia 70) (Rosalyn Higgins Problems and Process: International Law and How to

Use It). 183

This paradoxical formulation is familiar in deconstruction of Jacques Derrida and the systems

theory of Luhmann. 184

Reason of state is viewed as an exception to private morality and individual legality. The conduct

rules differ for those responsible for the survival of the state. Ratio status, proportional concern of the

population has at least a minimal legal or moral content. ―Self-preservation,‖ like sovereignty, must invent

its outsides through a series of oppositions. A first opposition to self-preservation is self-harm or suicide. A

second opposition is self-preservation is contamination by the other. A third opposition to self-preservation

is actually preservation by the outside.

be understood.185

Before continuing with the development of necessity doctrines at the

international level, which became attached to institutional developments, there are a set of broad

background issues that signal a major epistemic shift.186

A state‘s self-preservation is the central

value that constitutional law and international law hold in common. There has, I argue, been a

shift towards identifying new doctrines in line with the overriding importance of constitutionally

protected rights and the question of their derogation. This has moved from the interpretation of

human rights instruments to humanitarian law, and now to general international law. In terms of

international law, the rise of constitutionalism and public law concerns poses a different kind of

task than past attempts to wrest ―domestic analogies‖ from private law sources, and therefore

generates different kinds of doctrines. normative framework that helps to assess the extent to

which citizens of constitutional democracies are morally obligated to comply with certain norms

of international law.187

Layers of what is called— often in retrospect— a ―constitutionalization‖

of international affairs, substantive provisions of ―rights‖ agenda often stood in tension with the

post-positivist sources that admitted them into international legal discourse. First of many crises

of categorization) mixed cases the elaboration of necessity doctrines only took place in marginal

situations that defied simple classification: ―mixed states‖ (status mixtus) between war and peace,

between internal and external, and even today situations teetering on fulcra between protected and

unprotected statuses, penal and administrative realms, and between constitutional constraints and

prerogative powers. Emergency governance must be understood against the background of a

state‘s public functions, including above all the duty to protect its population. Both the universal

185

(McGoldrick at note 58) 186

Theories of the state stagnated since the French Revolution, and theories of the international order

since the Peace of Westphalia, Existential standards Statehood, sovereignty: yet commitments being

developed from the point of view of the nation-state and the international would develop conflict and

collide. At the end of two bloody wars and the crumbling of empires) A significant epistemic development

in the development of international law took place between 1920 and 1947, though the specific meaning of

this development is contested. Beginning in the 1920s, can be seen as a both a zenith and nadir of

positivism— its ultimate moment of recognition— the codification of the sources of international law in the

statute of the Permanent Court of International Justice PCIJ (1920) — also implied the beginning of a

transformation of the meaning of these sources, and thus came near the end of the influence of a traditional

notion of sovereign rights and responsibilities. Legal developments after each of the two world wars

mirrored each other but (contrary to Marx‘s pronouncement about the manner in which history repast itself)

these parallel developments heaped farce upon farce and tragedy upon tragedy. Yet between the League of

Nations and the Nuremberg Trial the experience of atrocity and moral sensibilities planted the seeds for a

postwar period saw an flowering of law-based projects to transform the relations between state

―prerogatives‖ and human rights. If we leave aside the kinds of arguments that view the UN Charter as a

―world constitution,‖ we must recognize that the translation of constitutional concerns into international

law has been more complex. 187

Mattias Kumm, The Legitimacy of International Law: A Constitutional Framework of Analysis,

15 Eur. J. Int‘l L. 907 (2004).

and regional systems emphasize that States have a duty to protect those living within their

jurisdictions from violence such as terrorism, while cautioning that this does not imply an

absence of limits to the exercise of State power. I have already suggested that the discourse of

emergency has at minimum a commitment to not ―necessity‖ but ―self-preservation.‖188

Kelsen explains: ―Behind the naïve assurance that the state must ‗live,‘ there usually

lurks the reckless desire that it lives exactly as those who avail themselves of the justification of

an ‗emergency right‘ consider it appropriate for it to live.‖189

However, the recognition of

emergency powers in itself shows that the state does not relinquish its right to live simply because

changes have been thrust upon it, but that its purpose in protecting its population must continue.

Under the Lotus Case, decided by the World Court in 1927, ―the first and foremost restriction

imposed by international law upon a State is that - failing the existence of a permissive rule to the

contrary - it may not exercise its power in any form in the territory of another State.‖190

This was

articulated by the PCIJ in the Lotus Case (1927) in which state as a ―coexisting independent

community‖ is ―free to renounce its independence and even its existence.‖191

In my view, such a

view could not be assumed where the protection of a population would be threatened by a state‘s

renunciation of its independence or existence. This idea issuing from the fiction of formal

sovereign equality just as the theory of ―necessity‖ was one where international law allowed

equal opportunities to sovereigns in protecting their vital interests and derogating from

unreasonable restraints, ignored the purposes of the state, and its duties.

In every part of the world, modern courts and tribunals continue to recognize a ―without

question, the ―State has the right and duty to guarantee its security.‖192

However, as a matter of

emphasis, the priority is not salus republicae, but salus populi; less the right to state‘s self-

sufficient freedom of action and more the duty to protect the population as a whole. In the modern

period, cases on a ―right of self-preservation‖ have generally been displaced by jurisprudence on

188

According to the Argentine political philosopher Enrique Dussel, self-preservation is the

fundamental rationale for all political order. Even in Western liberal societies that base themselves on more

formal and abstract principles, self-preservation remains a singular ―material‖ principle that defines our

collective obligations. If anything, the principle of self-preservation experiences a ―thickening‖ in different

societies. In liberal societies, following Locke, self-preservation thickened (Dussel might say ―hardened‖)

into a rationale for private property. In socialist societies, we might imagine this notion is thickened in

entirely different ways. In every society, this principle has also been supplemented by more nuanced or

normatively robust. 189

Cite 190

Case of the S.S. "Lotus" (France v. Turkey), PCIJ Series A, No. 10, at 18 (1927). 191

Cheng p. 29. 192

Neira Alegría Case, I/A Court H.R., Judgment of January 19, 1995 (para. 75).

a state‘s ―duty to protect‖ security of person. Correspondingly, in the cases considered by human

rights tribunals in particular, the presumption in favor of states rights to expel aliens, and to treat

its own nationals according to domestic policy have given way to broad protections for all

persons under a state‘s jurisdiction. In the case Delgado Paez v. Colombia, the Human Rights

Committee considered the question of States‘ duty to protect persons under their jurisdiction:

Although in the [International Covenant on Civil and Political Rights], the only reference to the

right of security of person is to be found in article 9, there is no evidence that [this] was intended

to narrow the concept of the right to security only to situations of formal deprivation of liberty….

States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the

case that, as a matter of law, States can ignore known threats to the life of persons under their

jurisdiction, just because he or she is not arrested or otherwise detained. States parties are under

an obligation to take reasonable and appropriate measures to protect them. An interpretation of

article 9 which would allow a State party to ignore threats to the personal security of non-detained

persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.193

Similarly, in the case Kiliç v. Turkey194

(2000), the European Court of Human Rights refers to a

―positive obligation‖ to ―take appropriate steps to safeguard the lives of those within its

jurisdiction.... This involves a primary duty on the State to secure the right to life by putting in

place effective criminal-law provisions to deter the commission of offences against the person,

backed up by law-enforcement machinery for the prevention, suppression and punishment of

breaches of such provisions.‖ In Kaya v. Turkey, a decision handed down the same day, the

ECHR ruled that states may even be obliged to protect their populations from actions or defaults

of private individuals and groups engaged to perform public functions (the so-called ―Third Party

Effect‖) for the including private contractors. The court stated: ―It is not therefore sufficient for

State Parties merely to refrain from legislation or entering into treaties incompatible with such

obligations.‖ as well as human rights obligations in particular, (in relation to the right to life under

Article 6 of the 1966 Covenant imposes ―...a positive obligation on the authorities to take

preventive operational measures to protect an individual or individuals whose life is at risk from

193

Delgado Paez v. Colombia, Case No. 195/1985, Views adopted on 12 July 1990. 194

Cite, summarize facts and holding: The Commission considered "that this situation was

incompatible with the rule of law which should apply in a democratic state respecting fundamental human

rights and freedoms". In view of this, and the defects in the investigative procedures carried out into the

kidnapping and killing, there was a failure on the part of the State to protect Dr Kaya's right to life. The

Commission concluded that Articles 2, 3 and 13 of the Convention had been breached.

the criminal acts of another individual...‖195

) these obligations can be characterized as jus cogens

under general international law.

Similarly, according to the Inter-American Court of Human Rights‘ Neira Alegría

Case196

(1995): ―without question, the State has the right and duty to guarantee its security.‖ It is

also indisputable that all societies suffer some deficiencies in their legal orders. However,

regardless of the seriousness of certain actions and the culpability of the perpetrators of certain

crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its

ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the

basis for any State action.‖ Another Inter-American System case Asencios Lindo et al.197

(1999)

indicated ―The State‘s national and international obligation to confront individuals or groups who

use violent methods to create terror among the populace, and to investigate, try, and punish those

who commit such acts means that it must punish all the guilty, but only the guilty. The State must

function within the rule of law….‖ In my view it would be a mistake to lose the connection

between ―necessity‖ and ―self-preservation‖ albeit the latter re-imagined with the capacities of

and threats to modern international order.

These cases represent a conception of the state that is becoming more common in

international law as a whole. The traditional view from international law of necessity tracks

Bodinian state sovereignty as a formal matter and not state survival or protection of the

population as a substantive matter. This view lacks a rich conception of the state or its purposes.

It also divides the population from international law and its protective principles. Duty higher

order obligation than others, but not yet duty enforceable. The modified modern view I take is

that salus populi, or public safety, refers to protection of a population as a whole, including all

persons effectively within a state‘s jurisdiction or dominion. While this duty is latent in one

interpretation of the longstanding principle of Salus Populi, efforts have begun to effect the same

norm from the opposite pole: to create an emerging norm of international behavior.198

195

[Mahmut Kaya v. Turkey, Judgment of 28 March 2000, para. 85, Eur.Court HR.] Mahmut KAYA

v Turkey (22535/93) (extra-judicial killing) 196

Neira Alegría Case, I/A Court H.R., Judgment of January 19, 1995 (para. 75). 197

Case 11.182, Report Nº 49/00, Asencios Lindo et al., Annual Report of the IACHR 1999 (para.

58). 198

I am of course referring to the Canadian-led efforts at consolidating a ―responsibility to protect‖

(R2P) which is in some ways a pragmatic back door to thus-far problematic doctrines of humanitarian

intervention. The text of the R2P paragraph uses the phrase 'responsibility to protect' with respect to states,

but, when discussing actions to be taken by the international community when civilians are at risk,

replaces 'responsibility to protect' with 'obligation to protect.' R2P is conceived primarily as a duty of

CHAPTER TWO

International Emergency Governance:

Doctrines of Necessity

A. Taming Necessity in International Law

states, but when they are unwilling or unable to fulfill these obligations, the broader international

community must bear that responsibility

I what ways does international law undertake the recognition and limitation of necessity

doctrines?199

International law is not silent on the matter of emergency governance through

necessity doctrines. The doctrine of sources provides, if anything, multiple layers of applicable

doctrine. In modern international law, there are four main contexts where doctrines of necessity

are raised: (1) Doctrines of necessity as an excuse or exception in the law-governed relations

between states (general law of treaties and state responsibility); (2) notions of self-defense based

in customary law and the Charter of the United Nations; (3) standards of military necessity in the

law of armed conflict; and (4) ―Necessity‖ as a threshold for the derogation of treaty-based

human rights obligations in states of emergency. And each of these is divided into more

specialized branches and areas of application. In short, nearly every area of international law has,

in its own development, attempted to provide doctrinal closure to unstable areas of ―necessity.‖

In this chapter, I will discuss these doctrinal areas separately and identify their common

basis in the normative discourses of self-preservation. In the next chapter, I will discuss more

specific relationships and conflicts between these different regimes. Here I will describe the

substantive areas of law and attendant doctrines of necessity. Among them, there is little explicit

support left of the notion of ―necessity‖ as an extra-juridical discourse opposable to the principles

of international law. However, how this taming was carried out has been through diverse and

even opposable strategies. For example, n international law on state responsibility, a doctrine of

customary law that sets forth principles on a state‘s liability for an internationally wrongful act,

accepts the possibility that certain ―circumstances precluding wrongfulness‖ the taming o

necessity was not by specifying necessity, but by excluding ―self-preservation‖. In other fields

strict necessity of self-preservation. Yet the common rhetorical structure of necessity doctrines

includes both techniques to enclose necessity in obdurate doctrines and a common vulnerability

to rupture. On one hand, numerous instances of the doctrinal closure of necessity are evident in

the long term development of doctrines of necessity infra legem.

can effectively excuse a state‘s violation of an international obligation. define a rule and

the content of the obligation it imposes, and another to determine whether that obligation has

been violated and what should be the consequences of the violation.‖ These include self-defense,

force majeure, carrying out of lawful countermeasures in response to a prior illegal act, distress of

individuals, or a state of necessity. This chapter will give particular attention to developments in

general international law which might lend support to more specific regimes; we will see cutting

199

Cite to Fitzmaurice, ILC.

across these areas of law, a more general notion of non-derogability is emerging, represented by

the category jus cogens (more controversial in content than in principle). On the other hand, the

peculiarly self-deconstructing quality of necessity, its imperative form, never does away with the

possibility of the rupture of these doctrines, revealing necessity extra and contra legem. To be

sure, legal doctrines will not foreclose all conflicts and dilemmas. More likely, they will simply

generate new ones. This is the concern of the second half of this dissertation.

B. Emergency Governance in General In ternational Law

1. Closure and Rupture: The Rhetorical Structure of Necessity Doctrines in

International Law

International law can be described as ―a structure of argumentative moves and positions,‖

and international doctrines of necessity follow a pattern within this structure.200

In a manner

analogous to the various discourses and doctrines discussed in the last chapter, international

doctrines of necessity teeter on a fulcrum between doctrinal closure and rupture. In my view,

most of these conceptual antinomies follow the tension between closure/rupture (e.g. formalism

and contingency, pre-commitment and prudence); none of these correspond to legal terms of art,

but in my view they are descriptive of tendencies, values, and relationships that are important to

this area of law. At the international level the. In some respects, this is a localization of the kind

of rhetorical structure of international law that has already been identified by certain critical

theorists, who have been able to the reduce nature of international law to similar antinomies.201

In

my view, the value of these rhetorical investigations is not that they identify deep structures, but

that they offer strong simplifications, which offer valid insights when they are applied to

particular areas of law. Because they gather concerns cut fresh from the field of application, these

approaches are probably more helpful than dragging along for every occasion the bulky

jurisprudential positions inherited from intellectual history, such as ―naturalism vs. positivism,‖

or ―realism vs. formalism.‖ Instead, this non-historical approach will demand a more careful

200

See generally Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal

Argument (Helsinki: Finnish Lawyers‘ Publishing Co., 1989). 201

Id. See also David Kennedy, Thinking against the Box at page 363. David Kennedy has said

although international law can be seen as a series of self-redescriptions, ―international lawyers return

repeatedly to two basic axes of philosophical disputation, each with its own well-developed vocabulary: the

relationship law should seek to strike between an international community and sovereign autonomy and the

most effective balance between a more or less formal law.‖

exegesis of tensions and strategies underlying the particular dilemmas of emergency governance

at the international level, while remaining abstract enough to capture repetition.

Lawyers, such as human rights lawyers and the representatives of government positions,

cannot be satisfied with the overbroad Schmittian pronouncement that ―whether the extreme

exception can be banished from the world is not a juristic question.‖ It will be their task to

translate doctrines of necessity into useful resources of emergency governance. For legal

professionals, the first line of inquiry will be based on sources—typically national as well as

international—to determine the applicable obligations of a particular state exercising emergency

powers, including the relevant interactions between its own constitution and the particular treaties

it has ratified or acceded to.202

If international law binds according to a doctrine of necessity in

one context, and vacates it in a similar context, this is due in part to the flexibility of the discourse

of necessity (see Chapter One), but also because of the lack of an obvious hierarchy or

mechanism for coordination (see Chapter Three), every source of international law— including

the interpretative practice of various international courts and tribunals— is potentially important.

Here, I will provide a thumbnail sketch of the resources available at the international level to help

regulate a state of emergency. Once again, what I‘m calling emergency governance (as opposed

to emergency powers) includes all the standing rules, principles, standards, or institutions that

remain effective during an emergency to regulate and moderate the negative effects of the

exercise of emergency powers.203

I argue that the resources of emergency governance must reside

202

Lawyers, such as human rights lawyers and the representatives of government positions, will also

conceive of international law as a less formal set of ―resources‖ that could back a normative or prudential

outcome. The duality (not dualism) between sources and resources is related to the distinction, between

formalism and contingency, and the hermeneutic (first seen in the Biblical context St. Paul in Corinthians

II) already fully incorporated by legal discourse between ―letter‖ and ―spirit.‖ St Paul in II Corinthians says

―The letter killeth, but the spirit giveth life.‖ Quoted in Thomas Franck, Recourse to Force, Cambridge

University Press at 174. But this is also fully reversible. Both are aspects of the source. Resources are the

arguments that are available at any given time, opportunities seized, the ones that lawyers use to argue

―spirit. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (finding that "specific guarantees in the Bill of

Rights have penumbras, formed by emanations from those guarantees that help give them life and

substance"). Or, in a more secular context, following Morris Freilich‘s categories of knowledge, sources are

―proper,‖ resources are ―smart.‖ 203

Clinton Rossiter‘s Constitutional Dictatorship is the most sophisticated account of emergency

governments and self-regulatory emergency governance that we have in the period before the United

Nations system and modern international law made its presence felt. As such, it provides a snapshot of how

it was possible to conceive of emergency governance in this post-Westphalian/ pre- San Franciscan

international order. The examples Rossiter drew upon have become the classic case studies: the Roman

Republic and four modern democracies. Among other things, Rossiter‘s work is a classic defense of

domestic formalism, drawing more often than not on the Republican tradition. Rossiter concludes that the

concentration, expansion, and liberation of government power, particularly executive power, will be gained

at the expense of individual liberties. This concentration of power is a corrective to the inefficient and slow

in enduring bodies that would survive particular emergencies, such as fundamental constitutional

principles or, as I focus on here, international institutions. It is clear that domestic constitutions

are the primary location of emergency governance. After all, emergency powers are themselves

driven by a logic of preservation and if an emergency power wasn‘t directed ―only to remove the

cause for which [it] was created,‖ it would be something else altogether. This has continued to be

the specific logic behind the resort to emergency powers, even if it is a logic too often abused.

Functionally speaking, domestic emergency governance continues to be a ―first-response‖ system

to abuse or excess. In terms of perceived legitimacy, we can also safely assume in most cases that

states will prefer their own regulatory machinery to international interference. However, because

of the fervor and sense of urgency that so often accompanies emergencies, states are sometimes

incompetent to assess their own rights violations within their own constitutional orders. These

particular examples of emergency governance, which range from half-hearted wrist-slapping to

wartime cheerleading, seem partial in both senses; they are incomplete and biased. It might be

helpful before discussing the existing system of international emergency governance to clarify

what this system is not, thereby preempting some of the common overestimations and

underestimations that plague this system. If we are to refer to an existing ―system‖ of emergency

governance at the international level, we must gather already disparate sources, including treaty-

based obligations, customary law, scholarly commentary, and the jurisprudence of international

courts. If we are to refer to an existing ―system‖ of emergency governance at the international

level, we must gather already disparate sources, including treaty-based obligations, customary

law, scholarly commentary, and the jurisprudence of international courts. Historically, these

include various legal doctrines and general principles creating openings for ―exceptions.‖

mechanisms of the normal separation of powers. While the usurpation of powers, legislative or judiciary,

by the executive is normally at least suspect, and according to Madison ―the very definition of tyranny,‖

(Federalist 47), the ―fusion‖ and ―harmony‖ of powers, the ―speeding up‖ of action can be at least

temporarily necessary to combat a grave threat. The separation of powers is only one kind of agonism that

checks against arbitrariness and unlimited power, and other kinds of agonism or divisions of competency

are also effaced in emergencies. A second example is what in the United States we call ―federalism,‖ but

which comes down to local, regional, or municipal self-government. The concentration of power in an

―executive‖ actor is just as often the concentration of power at the level of the national government. On the

other hand, for this concentration of emergency power to be fully effective, it must also often devolve

power from international organizations and agreements, and abridge commitments to the international

community toward the national government of the nation state. It is this last consequence of the

concentration of power that Rossiter did not concentrate on, since the system of treaties and agreements

among nations would not have seemed to him a level of government, much less an international

community.

Beyond their limited functionality, notions of necessity touch off foundational anxieties for

practitioners and theorists of international law. If necessity is founded on an essential lawlessness,

a vacant imperative that provides ammunition to the unconstrained will of states, international

law (lacking legitimacy) may fail to distinguish itself from the field of exceptionality or (lacking

adequate enforcement) may be unable to regulate the extreme exception. What happens then

when international lawyers undertake the recognition and limitation of necessity doctrines?204

International law on state responsibility, a doctrine of customary law that sets forth

principles on a state‘s liability for an internationally wrongful act, accepts the possibility that

certain ―circumstances precluding wrongfulness‖ can effectively excuse a state‘s violation of an

international obligation. These include self-defense, force majeure, carrying out of lawful

countermeasures in response to a prior illegal act, distress of individuals, or a state of necessity.205

Unlike the case with national systems of government, with their clear and relatively

unambiguous sources of law such as legislation or judicial decisions of the higher courts, there is

no clear body or supreme law-making authority in the international law field. Its sources are

therefore less obvious. Nevertheless, such sources do exist and can be readily ascertained

whenever an inter-state dispute arises. In particular, Article 38 of the Statute of the International

Court of Justice (ICJ), the supreme judicial organ of the United Nations, enumerates the main

sources of international law. This list has come to be generally accepted as reflecting the

prevailing international consensus as to what are the main sources of international law. Article 38

specifically refers to the following sources:

(a) International conventions or treaties;

(b) International custom;

(c) The general principles of international law recognized by civilized nations;

(d) Judicial decisions and the teachings of the most highly qualified publicists.

Although this is not meant to be a hierarchical list,206

in terms of human rights, the most

important sources of international law remain treaty law and, to a lesser extent, customary

204

Cite to Fitzmaurice, ILC. 205

Draft Articles on Responsibility of States for Internationally Wrongful Acts, arts 21-25, in

Report of the International Law Commission on the Work of its Fifty-Third Session, U.N. GAOR, 56th

Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001) [hereinafter ILC Draft Articles]. 206

The Court's function as specified in Article 38(1) of the Statute of ICJ, is to decide particular disputes

before it, not to elaborate general theories of law to decide questions that are not at issue Instead, such

rules are formulated by international and national judges, organs of States and international

organizations, or in scholarly writings through induction on the basis of State practice, of enunciated

legal opinions, or through comparison of domestic law. The sources of international law certainly

include ―formal sources,‖ but they also include custom and general principles, which are bound to

international law. Doctrines of necessity have been articulated at the level of all four orthodox

sources. Even at times it has been eclipsed by anarchy or futility, international law has been

recognized as a potential ―ordering device‖ thought to ―socialize‖ states into cooperative

behavior. The others, which are even today too robust to be called mere vestiges of earlier times,

are diplomacy and the military-strategic balance of power.207

While vaguer (more ―vacant‖) and

more instrumental (and often cast as ―imperative‖) discourses of necessity were left to these other

schemes for order, international law eschewed the realpolitik and instrumentalism of these other

devices in favor of a minimal public order of cooperation, first to enable a forum for commerce

and dispute-settlement, and later for the more robust rewards of community, which came to

include notions of ―common rights of mankind.‖208

Against the background of both self-

preservation and sociability, international law developed doctrines of necessity in tension with

other discourses of necessity, eventually enshrining the principle that certain rights cannot be

alienated in peace or war, or bargained between sovereigns. The balancing act was to maintain

would be to doctrines allowing for self-preservation and other exigencies without undermining

the mandatory character of international law. 209

equitable notions of estoppel, acquiescence, and good faith. In contrast to international treaties, both

international customary law and general principles of law as defined in Article 38(1)(c) of the Statute

of the ICJ, are open-textured. 207

More particularly, we can track David Armstrong‘s treatment of the ―revolutionary state‖ in

international society. Today, international law includes international organizations, diplomacy includes less

formal methods of cooperation, and balance of power factors in the ―realist element‖ the contingent

efficacy of the other two ordering devices. Bull‘s notion of ―international society‖ remains the most

inclusive of conceptions, and flexible to structural changes within international society itself. 208

Theodor Meron, Common Rights of Mankind in Gentili, Grotius and Suarez, in Meron, War

Crimes Law Comes of Age: Essays, (Oxford UP) 1999), p. 122. However In terms of general international

law, the conflict between foundationalism and functionalism can be seen in the passing of certain natural

law doctrines into the realm of positivism. Consider the issue of obligations ―erga omnes‖ after the

dominance of natural law. ―Common rights of mankind‖ has become a specialized doctrinal category. This

is not because of a general move from ―contract‖ to ―community‖ or vice versa, but because these

arguments were always available to some extent in defining the common rights of humankind. The move

from contract to community is not merely rooted in natural law. Instead, Community is constructed in part

by jurisdiction, and in the end the notion of ―common rights of mankind‘ (obligations erga omnes) is

relatively autonomous from naturalism or positivism. Discursively, however, it can always be phrased in

relatively functional or foundational terms. 209

―If self-preservation were an absolute and overriding right, the rest of international law would

become optional, and its observance would depend on a self-denying ordinance, revocable at will by each

State, not to invoke this formidable super-right‖. See Georg Schwarzenberger, ―The Fundamental

Principles of International Law‖, 87 R.C.A.D.I. 195 (1955), quoted in Julio Barboza, ―Necessity

(Revisited) in International Law‖, in Essays in International Law in Honour of Judge Manfred Lachs, Jerry

Makarczyk, ed. (1984), 27, 28.

C. Taming Necessity in ―General International Law‖

The domain of ―general international law‖ is contested. As a matter of definition we can

exclude at the beginning treaty-based regimes, and simply as a heuristic, we will also exclude

International Humanitarian Law (IHL) and Human Rights law (HRL), though these areas of law

include customary norms as well. What I have in mind particularly is a background template for

notions of necessity and derogation independent of any particular treaty regime. This fundamental

framework is provided by the law of treaty interpretation (VCLT) and the law of state

responsibility (Draft Articles), which govern derogation by providing secondary norms, and also

secure the place of jus cogens norms, non-derogable norms, in the general international order.

Thee secondary norms— the state of necessity, rebus sic stantibus, supervening impossibility of

performance, self-defense, force majeure, among other ―exceptions‖— share characteristics of

custom and also general principles of law drawn from municipal systems. I will take up

separately in the second half of this chapter the development of customary law in the areas of

human rights law and international humanitarian law.210

In my view, the main contributions of the

ILC‘s Draft Articles to taming necessity and the possibility of international emergency

governance are the following: (1) disaggregating and specifying separate doctrines of necessity

for different purposes. (2) precluding the reflex of self-judgment by states in matters of

―necessity‖, and (3) providing a kind of customary ―derogation clause‖ governing states and

treaties not covered human rights treaties. In connection with the VCLT, it also introduces into

general international law important concepts of non-derogability.

1. Precluding Wrongfulness: The Disaggregation of “Necessity”

International law provides that the wrongfulness of an act can be precluded in certain

circumstances. In modern parlance, these exceptional situations not characterized as ―rights‖ or

―exceptions‖ but more precisely as ―circumstances precluding wrongfulness.‖211

The

210

Report of the Commission appointed under Article 26 of the Constitution of the International

Labour Organization to examine the Complaints concerning the Observance by Greece of the Freedom of

Association Conventions. International Labour Office, Official Bulletin 1971, para. 110. 211

This precise terminology is meant to capture the subtler normative premise of the Draft Articles

is that (1) every internationally wrongful act of a State entails the international responsibility of that State,

(2) the "wrongful act" (breach of the primary obligation) nevertheless remains theoretically distinct from

"responsibility" (secondary obligation). There is little that this distinction adds to practice except (as we do

here) when we speak of ―precluding wrongfulness.‖ Because of the logical structure, here any circumstance

precluding the wrongfulness of an act necessarily has the effect of precluding responsibility as well. In the

scholarly context, Vaughan Lowe has discussed the consequences of treating the defenses as exculpating

differentiation of the doctrine of necessity into distinct ―circumstances precluding

wrongfulness,‖212

has involved specifying beyond broad claims of exigency the determination of

certain reasons a state may depart from its otherwise binding international obligations; it has also

involved taking the kinds of ―necessity‖ claims states have made as political or quasi-legal

prerogatives and them under the empire of law. In its Draft Articles on State Responsibility, the

International Law Commission (ILC) has listed six such circumstances, namely consent, self

defence, countermeasures, force majeure, distress and necessity. Also, these circumstances do not

preclude the wrongfulness of the violation of an ―obligation arising under a peremptory norm of

general international law,‖ or jus cogens.

The actual existence of an international legal order presupposes that the obligations it

imposes on its subjects are of a legal (not merely moral or political) nature.213

The attribution of

responsibility as a general principle— that violation of international law entails responsibility in

international law—has been as basic to pacific relations between states as principle of ―pacta sunt

servanda‖ has been to the honoring of agreements. As demonstrated by arbitral practice at least

since the Jay Treaty in the 18th century, states have long held each other responsible for ―wrongs‖

and have even asserted ―rights‖ against each other, but the notion that states were legally

responsible in general manner was under-articulated in most cases. While many of these

assumptions have subsisted in the habitus of international law for centuries, the law of state

responsibility formally developed the notion of secondary obligations,214

based on a classical

conception, as restated by E. Jimenez de Archehaga, the elements of state responsibility are as

follows:

(1) An Act or omission that violates an obligation established by a rule of international law

in force between the state responsible for the act or omission and the state injured

thereby.

(2) The unlawful act must be imputable to the state as a legal person.

rather than excusing. Possibly, to preclude wrongfulness is also important to give self-defense and

―countermeasures in respect of an internationally wrongful act‖ their privileged ―law enforcement‖

connotations. 212

Draft Articles on Responsibility of States for Internationally Wrongful Acts, arts 21-25, in Report

of the International Law Commission on the Work of its Fifty-Third Session, U.N. GAOR, 56th Sess.,

Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001) [hereinafter ILC Draft Articles]. 213

Ago Report cites the classic works on the subject as D. Anzilotti, Teoria generate della

responsabilita dello Stato nel diritto internazionale (Florence, F. Lumachi, 1902), reprinted in Scritti di

diritto internazionale pubblico (Padua, CEDAM, 1956), vol. II, t. 1, pp. 25 and 62, and Cor so di diritto

internazionale, 214

Id. According to Ago, ―[I]t is one thing to define a rule and the content of the obligation it

imposes, and another to determine whether that obligation has been violated and what should be the

consequences of the violation.‖

(3) Loss of damage must have resulted from the unlawful act. [The damage need not be

material].215

In the course of the twentieth century it has become accepted that no State may ―escape the

responsibility arising out of the exercise of an illicit action from the viewpoint of the general

principles of international law.‖ 216

Beginning with the traditional and cautious assumptions of

positivism, the topic began to be codified in the 1920s and 1930s in the limited manner of

establishing states‘ responsibility for injuries to aliens. As with many doctrines regulating

―internal necessity‖ the process began with injuries done on the territory of states to the person or

property of foreigners, and extended to the general obligations between states, before taking on a

more ―universal‖ character. Through a series of League of Nations Resolutions, this was the topic

selected for progressive codification.217

culminating in 1930 with the League of Nations

Conference for the Codification of International Law.218

Among the bases included the concept

that a state was not responsible if it breached an obligation due to the ―immediate necessity of

self-defense.‖219

At the Conference ultimately drew up ten articles , omitting any mention of

mention necessity, force majeure, or self-defense or other circumstances precluding

wrongfulness, save the following circumstance peculiar to that document: ―If the official‘s lack

215

Cite E. Jimenez de Archehaga, International Responsibility, in M. Sorenson, ed., Manual of

Public International Law (1968). See also Report of the International Law Commission on the Work of Its

Fifty-Third Session, Int‘l L. Comm‘n, 53rd Sess., at 183-84, 194-95, U.N. Doc. A/56/10 (2001). According

to Article 3 two constituent elements must be fulfilled for an act to be properly characterized as an

internationally wrongful act of a State (1) conduct is attributable to the State under international law (the

subjective element) and that (2) conduct constitutes a breach of an international obligation of the State (the

objective element). 216

As stated by the Italian-United States Conciliation Commission set up under article 83 of the

Treaty of Peace of 10 February 1947. United Nations, Treaty Series, vol. 49, p. 167. 9 Armstrong Cork

Company Case, 22 October 1953 (United Nations, Reports of International Arbitral Awards, vol. XIV

(United Nations publication, Sales No.: 65.V.4), p. 163. On September 22, 1924, the Assembly of the

League of Nations adopted a resolution to convene a Committee of Experts whose task would be to

contribute to the progressive codification of international law. United Nations, Documents on the

Development and Codification of International Law, 41 Am. J. Int‘l L 29, 103 (1947). 217

On September 22, 1924, the Assembly of the League of Nations adopted a resolution to convene

a Committee of Experts whose task would be to contribute to the progressive codification of international

law. United Nations, Documents on the Development and Codification of International Law, 41 Am. J.

Int‘l L 29, 103 (1947). 218

The Preparatory Committee for the Hague Conference drew up bases for discussion at the

Conference. 1930 with the League of Nations Conference for the Codification of International Law. (at 13)

The conference ended with the Responsibility Committee issuing a statement that it was unable to

complete its study. 219

Summary Records of the Eighth Session, [1956] Y.B. Int‘l L. Comm‘n 208, U.N. Sales No.

1956.

of authority was so apparent that the foreigner should have been aware of it and could, in

consequence, have avoided the damage.‖ 220

The International Law Commission‘s current efforts to codify state responsibility, began

in 1949.221

In 1955, Mr. F.V. Garcia Amador was appointed Special Rapporteur for the topic,222

and the next year he presented his first report on state responsibility.223

This report included a

section on ―Exoneration from Responsibility and Attenuating and Aggravating Circumstances,‖

which listed five circumstances in which legal opinion or practice had recognized a limit on

liability for noncompliance with an international obligation224

(with necessity and force majeure

viewed as variations of a single circumstance).225

In 1958, third report on State Responsibility.

included in Article 13 of the report was the concept that to be wrong an act must be both illegal

and unjustified.226

By 1961, Commission decided to re-assess its approach to codification. The

Committee‘s original focus on State responsibility for injuries to aliens was determined to be too

limited. The Commission thus broadened its scope to examine the breach of any international

legal obligation by now broadly defined to encompass the modern sense, and formed a Sub-

Committee on State Responsibility, with Roberto Ago appointed Chairman.227

Following Ago‘s

treatise-length report on necessity doctrines (1980) and the revisions offered by the current

Rapporteur James Crawford (appointed 1997), the ILC‘s current Draft Articles (2001) list six

such circumstances, namely consent, self defence, countermeasures, force majeure, distress and

necessity. Also, these circumstances do not preclude the wrongfulness of the violation of an

obligation arising under jus cogens, a peremptory norm of general international law.

In terms of one influential model of necessity the Grotian doctrine of necessity—we can

see these as a disaggregation of elements. To review the Grotian doctrine as articulated by

220

Summary Records of the Eighth Session, [1956] Y.B. Int‘l L. Comm‘n 208, U.N. Sales No.

1956. 221

Summary Records and Documents of the First Session Including the Report of the Commission

to the General Assembly, [1949] Y.B. Int‘l L. Comm‘n 281, U.N. Doc. A/CN.4/SR.1-38. 222

Documents of the Seventh Session Including the Report of the Commission to the General

Assembly, [1955] 2 Y.B. Int‘l L. Comm‘n 42, U.N. Doc. A/CN.4/SER.A/1955/Add.1. 223

Summary Records of the Eighth Session, [1956] Y.B. Int‘l L. Comm‘n 173, U.N. Sales No. 1956. 224

Id. at 208. The circumstances included self-defense, force majeure and necessity, extinctive

prescription, non-recognition of a state or government, and serious fault contributing to the injury on the

part of the injured party itself. 225

Id.. See also Report of the International Law Commission on the Work of Its Fifty-Third Session,

Int‘l L. Comm‘n, 53rd Sess., at 183-84, 194-95, U.N. Doc. A/56/10 (2001). 226

Garcia Amador third report on State Responsibility, Documents of the Tenth Session Including

the Report of the Commission to the General Assembly, [1958] 2 Y.B. Int‘l L. Comm‘n 50, U.N. Doc.

A/CN.4/SER.A/1958/Add.1. 227

Documents of the Fifteenth Session Including the Report of the Commission to the General

Assembly, [1963] 2 Y.B. Int‘l L. Comm‘n 227, U.N. Doc. A/CN.4/SER.A/1963/ADD.1

Rodick: (1) there must be absence of mens rea on the part of one who exercises the alleged right

(2) there must be vital danger; (3) it must be imminent in point of time; (4) consideration must be

given to the equities); and (5) restitution must be given to the injured party.228

There is no one

doctrine that corresponds to this doctrine of necessity. We see instead a disaggregation and

dispersal. The absence of mens rea is a feature of fortuitous event, force majeure, and possibly

distress, but not necessity. Vital danger corresponds to the element of ―essential interest‖ in state

of necessity, self-defense, distress, and force majeure). Imminence is particularly an element in

self-defense, but also possibly distress and possibly; consideration of equities can mean balancing

interests or possibly proportionality. Balancing is an element of necessity, and proportionality

takes on different meanings in the context of different doctrines; and restitution is not an essential

element, but resumption of obligations is an element of each situation, and restitution is within

the ambit of modern state responsibility.229

Leaving aside consent, I will now discuss each of

these five specifications of ―necessity doctrines‖— self defence, countermeasures, force majeure,

distress and necessity— as well as the jus cogens limitation—230

in more detail.

I “State of Necessity”: Tamed or Extinct?

Among the different ―doctrines of necessity‖ translated into ―circumstances precluding

wrongfulness‖ in the law of responsibility, only one is called ―necessity.‖ The historic roots of the

concept of necessity are intermingled with those of the doctrines of self defense and force

majeure. Early proponents of necessity derived the plea from a State‘s subjective right of self-

preservation.231

The concept has fallen from favor among scholars because States were abusing

the plea and committing international transgressions such as acts of violence for which the States

then disclaimed liability because of their inherent natural right to self-preservation. The necessity

defense is usually discussed in the classic language of responsibility as between States. This

symmetry. A successful invocation of the defense suspends a State‘s obligations only

228

Rodick, See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928) at

6. 229

Rodick, See Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (1928) at

6. See also Draft Articles Article 27 (―The invocation of a circumstance precluding wrongfulness in

accordance with this chapter is without prejudice to: (a) Compliance with the obligation in question, if and

―to the extent that the circumstance precluding wrongfulness (necessity) no longer exists; (b) the question

of compensation for any material loss caused by the act in question.‖). 230

Here, I will not discuss ―consent‖ which though it is listed as a circumstance precluding

wrongfulness, it is not properly or genealogically a ―doctrine of necessity.‖ 231

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 17-18, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1).

temporarily, and the State may still be responsible for damages that accrue during that period,

particularly when those damages are economic in nature and readily quantifiable. The potential

far-reaching nature of the necessity defense has led it to be strictly cabined. The elements for a

plea of necessity are as follows: A State may invoke the necessity doctrine as a ground for

precluding wrongfulness if violation the obligation is the only way for the state to safeguard an

essential interest against a grave and imminent peril.

Through his thorough scholarly review and his insistent point of view, Ago‘s reach was

extensive, first on the disaggregation of necessity, ontologically from ―self-preservation‖ and

conceptually from self-defense and force majeure. Ago redefined the protected interest, with a

paradoxical effect. Thus, under previous Draft Article 13 a State would not be responsible for

injuries to an alien if the State was responding to a "state of necessity due to a grave and

imminent peril threatening some vital interest of the State, provided that the State did not provoke

the peril and was unable to counteract it by other means,"232

which now reads ―essential interest‖

lowering the standard, but in tandem with other cumulative requirements, moving definitely away

from the way the ―right of Self-preservation: or ―self-preservation in the guise of necessity‖ had

been imagined. In an effort to limit the possibly expansive reach of necessity should States be

able to invoke it too easily, Mr. Ago and the Committee stated that the ―essential State interest‖

that allows the state to breach its obligation must be a vital interest, such as political or economic

survival.233

Such grave dangers would include threats to a State‘s ―political or economic survival,

the continued functioning of its essential services, the maintenance of internal peace, the survival

of a sector of its population, the preservation of the environment of its territory or a part thereof,

etc.‖234

232

It noted that necessity must involve peril that threatens a vital state interest, that the peril must be

grave and imminent, that the State must not be able to counteract the peril by other means, and that the

State must not have contributed to the peril. 233

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 14, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1). 234

In Gabcikovo-Nagymaros, the International Court of Justice considered Hungary‘s defense of

―environmental necessity‖ to excuse its breach of the treaty it had with Slovakia� concerning the

construction and operation of a system of locks on the Danube River, which forms the border between the

two countries. The object of the treaty was that the countries enter into a joint investment primarily to

produce hydroelectricity, improve navigation along the river, and control flooding. The parties also

undertook to ensure that the project did not impair the quality of the water in the Danube and that it

complied with an obligation to protect nature. Implementing the treaty proved problematic. Work in the

Gabcikovo sector, which was undertaken primarily by Slovakia, was well advanced by 1989, while work

in the Nagymaros sector, which was Hungary‘s responsibility, had lagged. In both countries, but

particularly in Hungary, there was increasing concern about the economic viability of the project and

about its environmental impact. These concerns were raised against a backdrop of significant political and

Ago report cited numerous cases where the state of necessity or the elements of necessity

were pleaded, albeit often under the guise of force majeure or self-defense235

few found the

requisite facts necessary to preclude wrongfulness. Force majeure Revolutions, unforeseen

economic crisis, or the unforeseeable combination of natural and man-made factors, which is the

usual case in what we call ―natural disasters.‖ The situations in which necessity could

theoretically be invoked, however, covered economic, political, and environmental

circumstances. Ago report definitively distinguished ―state of necessity‖ with force majeure,

fortuitous event, self-defense, reprisal, and other necessity-based concepts, effecting the

disaggregation and dispersal of the Grotian concept or any other quasi-legal predecessor. As the

basic theory of ―natural rights‖ diminished and the concept of necessity became more

circumscribed, publicists suggested that the state of necessity should be viewed not as stemming

from a conflict between two rights, the international obligation and the (relatively open-ended)

State‘s right to self-preservation, but rather between a right and a vital interest.236

States had often

confused force majeure and self defense with necessity.237

Force majeure, which involves an

unforeseen and unavoidable external occurrence, Revolutions, unforeseen economic crisis, or the

unforeseeable combination of natural and man-made factors, which is the usual case in what we

call ―natural disasters.‖ constitutes a circumstance precluding wrongfulness because the State is

economic transformation in both countries. Ultimately Hungary stopped work on its part of the project.

Hungary and Slovakia submitted the dispute to the International Court of Justice. Hungary claimed, inter

alia, that it had violated its treaty obligation duty to a ―state of ecological necessity.‖� The hydroelectric

portion of the project called for the construction of a large reservoir to hold sufficient water to satisfy the

hydroelectric plant‘s operation during periods of peak demand. Hungary claimed that this large reservoir

would cause unacceptable ecological risks, including artificial floods, a decrease in groundwater levels, a

diminution in the quality of water, sand-choked stretches of hitherto navigable arms of the Danube, and the

extinction of various flora and fauna. The ICJ had ―no difficulty in acknowledging that the concerns

expressed by Hungary for its natural environment in the region affected by the Gabcikovo-Nagymaros

Project related to an ‗essential interest‘ of that State, within the meaning given to that expression in Article

33 of the Draft of the International Law Commission.‖ 235

Id. at 22-39. The cases include Russian Indemnity, Forests of Central Rhodope (Merits), French

Company of Venezuela Railroads, Serbian Loans, Société Commerciale de Beligique, Properties of the

Bulgarian Minorities in Greece, Fur Seal Fisheries off the Russian Coast, Hunting of Fur Seals in the

Bering Sea, the―Torrey Canyon‖ Incident, Company General of the Orinoco, Oscar Chinn, Rights of

Nationals of the United States of America in Morocco, the S.S. ―Wimbledon‖, the ―Neptune‖, and the

―Caroline‖. 236

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 14, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1), at 49. This history is also reflected in the final Commentary on the

Draft Articles. Report of the International Law Commission on the Work of Its Fifty-Third Session, Int‘l

L. Comm‘n, 53rd Sess., at 201, U.N. Doc. A/56/10 (2001). 237

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 14, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1).

physically unable to comply with the obligation. Hence, the breach can be seen as involuntary.238

This is similar to situations of distress where the notion of volition is nullified because the action

is necessary to save a life.239

Necessity, however, involves voluntary and original action on the

part of the breaching State.240

Because of these distinctions, necessity was viewed as unique and

―even more rarely admissible than is the case with the other circumstances precluding

wrongfulness.‖241

James Crawford, as rapporteur, contributed to the limitation of necessity in decisive

ways, without changing the definition set forth by Ago. Although states were concerned with the

possible expansive interpretation of ―essential‖ interest, 242

this remained in the definition.

Crawford‘s report noted that ―essential‖ cannot be defined and must depend on the specific facts

of each case.243

Crawford's report called for two additional limitations to the provision on state of

necessity and two restrictive effects were added. The first was a exclusion of the plea of

necessity if a treaty expressly or impliedly prohibited such a plea or if other sources of

international law beyond explicit treaty provisions could be invoked to exclude a necessity

plea.244

final provision provides that a State may not raise the plea if ―any obligation‖ precludes

238

French Company of Venezuelan Railroads Case (Fr. v. Venez.), IV[?] R.I.A.A. 285, 353 (1904).

one issue in French Company of Venezuelan Railroads was whether the Venezuelan government, in the

aftermath of a revolution, was responsible for the payments it owed the French company but had ceased to

pay. The Venezuelan government invoked force majeure for its failure to pay its indebtedness, a claim

upheld by the umpire: ―[The Government‘s] first duty was to itself. Its own preservation was paramount. . .

.The appeal of the company for funds came to an empty treasury, or to one only adequate to the demands

of the war budget.‖ 239

Summary Records of the Meetings of the Thirty-Second Session, [1980] 1 Y.B. Int‘l L. Comm‘n

153, U.N. Doc. A/CN.4/SER.A/1980. 240

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 14, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1). 241

Self-defense arises when a State is responding to aggression by another State, which in itself would

be a breach of international obligations. Necessity varies from self-defense in that necessity allows for a

breach of obligation despite the fact that the harmed state had abided by all its obligations. Hence, in self-

defense the wrongfulness of State A‘s violation of its obligation is precluded by the fact that it undertook

such action only to protect its existence from State B‘s initial wrongful aggression; however, in the case of

necessity the wrongfulness of State A‘s violation could be precluded even though State B did nothing

wrong. 242

See Documents of the Thirty-Fourth Session, [1982] 2 Y.B. Int‘l L. Comm‘n 17-21, U.N. Doc.

A/CN.4/SER.A/1982/Add.1 (Part 1); Documents of the Thirty-Fifth Session, [1983] 2 Y.B. Int‘l L.

Comm‘n 2, U.N. Doc. A/CN.4/SER.A/1983/Add.1 (Part 1); Documents of the Fortieth Session, [1988] 2

Y.B. Int‘l L. Comm‘n 5, U.N. Doc. A/CN.4/SER.A/1988/Add.1 (Part 1); State Responsibility: Comments

and Observations Received by Governments, Int‘l L. Comm‘n, U.N. Doc. A/CN.4/488 (1998). 243

Second Report on State Responsibility: Addendum, Int‘l L. Comm‘n, 51st Sess., at 30, U.N. Doc.

A/CN.4/498/Add.2 (1999). 244

broadening of 2(b), Report of the International Law Commission on the Work of Its Fifty-Third

Session, Int‘l L. Comm‘n, 53rd Sess., at 194, U.N. Doc. A/56/10 (2001).

it. Professor Crawford‘s second proposed change was to include a provision recognizing that a

State cannot invoke necessity if its breach of obligation impairs an essential interest of the State

to which the obligation is owed or to other States that might be injured by an invocation of the

necessity plea. Instead specific interests of third states, the adding of ―or of the international

community as a whole‖ evoking obligations erga omnes.245

In addition, the statement that a

necessity plea may not serve to excuse a violation of a peremptory norm (jus cogens) was placed

in a separate article. In effect necessity could be balanced against practically any interest in

international law (which would at least ensure its reviewability), and outright exclusion of state of

necessity if it conflicts with jus cogens or obligations erga omnes.246

The final article, now Article

25, reads:

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of

an act not in conformity with an international obligation of that State unless the act: (a)

is the only means for the State to safeguard an essential interest against a grave and

imminent peril; and (b) does not seriously impair an essential interest of the State or

States towards which the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding

wrongfulness if: (a) the international obligation in question excludes the possibility of

invoking necessity; or (b) the State has contributed to the situation of necessity.

Tamed, and nearly defined out of existence, necessity has been so stringently limited that it has

not yet been invoked successfully. This is ostensibly a success in terms of establishing a norm

against self-judgment, though states probably simply avoid invoking necessity without changing

their practices. The state of necessity itself, though it no longer requires self-preservation, but

only essential interests of the state, has still been extraordinarily difficult to satisfy and no state

asserting a necessity defense in the modern period has been successful in a plea of necessity. So

although the threshold is lower, the less malleable a doctrine, and more insistent on the

cumulative requirements. States will escape its obligations less through abuse of this doctrine.

Yet it is possible that as a practical matter a necessity defense is unavailable to a State because

the standards in themselves are so high, and because they must be cumulatively satisfied. 247

The

245

to part 1(b), Report of the International Law Commission on the Work of Its Fifty-Third Session,

Int‘l L. Comm‘n, 53rd Sess., at 194, U.N. Doc. A/56/10 (2001). 246

ILC Article 25 requires that the invocation of necessity must not ―seriously impair an essential

interest of the State or States towards which the obligation exists, or of the international community as a

whole.‖ in Article 25 itself; the third, that a state may not invoke necessity in order to depart from a

peremptory norm, is actually in Article 26. 247

Establishing a necessity defense might be especially difficult when the circumstances of the

essential interest involve economic necessity. Though the language of the ILC articles is not that of self

project, in this view, is to foreclose the ―excess.‖ The broader concept of necessity also became

conceptually distinct from its role in self-defence. Unlike self-defence, which is only legitimate in

response to an armed attack, the modern plea of necessity outside this context does not

presuppose any wrongful action by the State against which the act of necessity is taken. It

remains an open question whether it has been so stringently limited that it can never be invoked

successfully. 248

Some recent cases can serve as examples of the difficulty of pleading necessity

successfully. In Gabvíkovo-Nagymaros, (Hungary/Slovakia) the International Court of Justice

recognized that the state of necessity defense was customary international law249

in considering a

defense of ―ecological necessity.‖ (Insert facts or footnote). The ICJ noted with approval the

Ago Report‘s suggestion that ―safeguarding the ecological balance‖ had, as a matter of State

practice, come to be regarded as an essential interest of all States. Hungary had thus successfully

met the first requirement of the necessity defense, yet the ICJ decision leaves some unanswered

questions. the ICJ went on to state that even if it could be established that the dangers about

which Hungary warned constituted a ―grave peril,‖ they were not in the least imminent. Rather,

preservation, that idea continues to underpin the analysis. The language of the tribunal in the Russian

Loans case is illustrative: ―It would be an obvious exaggeration to admit that the payment (or the

conclusion of a loan for the payment) of the relatively tiny sum of approximately six million franks due to

the Russian indemnities would have put in peril the existence of the Ottoman Empireor seriously

compromised its interior or external situation‖ 248

as recently as 1990 and 1991 arbitral tribunals expressed doubts about the reach of the necessity

doctrine. An arbitral tribunal in Lafico and Burundi, 96 INT‘L L. REP. 282, 319 (1991) stated ―It is not

desired here to express a view on the appropriateness of seeking to codify rules on ‗state of necessity‘ and

the adequacy of the concrete proposals made by the International Law Commission.‖ The tribunal then

determined that Burundi‘s activities in expelling two Libyan workers were neither the only means of

safeguarding an essential interest of Burundi nor necessary to guard against a grave and imminent peril. An

arbitral tribunal in the Rainbow Warrior case noted, albeit in obiter dicta, the ―controversial nature‖ of the

state of necessity. In particular, the tribunal noted the distinction between occasions of plain ―necessity,‖

which would be governed by the doctrine of distress and involve imminent danger or threat to the life or

physical integrity of a person, and the ―state of necessity,‖ which would involve ―grave and imminent

danger to the State as such and to its vital interests.‖ Rainbow Warrior (New Zealand v. Fr.) 82 INT‘L L.

REP. 500, 554-55 (1990). This distinction between a threat to individuals, rather than a threat to the State

or its interests, was what the tribunal called ―controversial,‖ though the tribunal did not opine at length on

the matter and its opinion turned on the application of the distress principle.. 249

Gabvíkovo-Nagymaros (Hungary v. Slovakia) [1997 I.C.J. 7, 40 (Sept. 25, 1997). It cited

approvingly the then-current ILC Draft Article 33, the predecessor to Article 25. There are some very

slight differences between Article 33 and Article 25, but those should not move Article 25 outside the

ambit of the ICJ‘s approval. Indeed, one of the changes reflected the ICJ‘s recognition in Gab íkovo-

Nagymaros that interests extending beyond a State‘s borders, such as ecological damage, could justify an

invocation of necessity.

they were of a long-term nature and uncertain.250

In Gabvíkovo, the ICJ did not dwell on the

requirement that the breach of the obligation be the only means available to protect against the

essential interest. Yet it did note, on more than one occasion, that Hungary could have ―resorted

to other means in order to respond to the dangers that it apprehended‖ than the suspension and

abandonment of its obligations under the treaty. It could, for example, have purified the Danube

water, should that have become tainted.251

Recognized that the state of necessity defense was

customary international law.252

“Only Means” State must have no other means to guard its vital

interest other than breaching its international obligation. bare minimum necessary Thus, actions

with a broader reach than necessary or that last longer than necessary will not be exculpated by

the necessity defense. Necessity does not terminate the obligation.253

It merely excuses the

temporary minimal breach of the obligation to the extent the breach is necessary to preserve a

vital interest

The recent arbitral tribunal in CMS Gas Transmission Co. v. The Argentina Republic

considered the issue of ―economic necessity.‖ 254

The argument was that the economic emergency

250

see Stephen M. Schwebel, The Judgment of the International Court of Justice in the Case

Concerning the Gabvíkovo - Nagymaros Project (Hungary/Slovakia), in Resolution of International Water

Disputes

247, 251 (PCA/Peace Palace Papers); 251

The language of the ILC draft articles requires that the State be seeking ―to safeguard an essential

interest.‖ The implication is that the State would be seeking to safeguard its own interest, though the

language is somewhat ambiguous. By contrast, the language of Article 25(1)(b) explicitly requires that the

breach not seriously impair an essential interest of the State or States towards which the obligation exists,

or of the international community as a whole. Given the Court‘s recognition that safeguarding the

ecological balance was an essential interest of all States, it is at least possible that a State could invoke an

interest in the ecological balance in a territory far removed from its own. Of course it would have to meet

the other requirements of the necessity defense, but the possibility illustrates the expansive potential of the

interest a State may be seeking to protect. 252

Gabvíkovo-Nagymaros (Hungary v. Slovakia) [1997 I.C.J. 7, 40 (Sept. 25, 1997). It cited

approvingly the then-current ILC Draft Article 33, the predecessor to Article 25. There are some very

slight differences between Article 33 and Article 25, but those should not move Article 25 outside the

ambit of the ICJ‘s approval. Indeed, one of the changes reflected the ICJ‘s recognition in Gab íkovo-

Nagymaros that interests extending beyond a State‘s borders, such as ecological damage, could justify an

invocation of necessity. 253

Report of the International Law Commission on the Work of Its Fifty-Third Session,

Int‘l L. Comm‘n, 53rd Sess., at 169, U.N. Doc. A/56/10 (2001). 254

As the ICSID tribunal CMS Gas v. Argentina explained: ―If strict and demanding conditions are

not required or are loosely applied, any State could invoke necessity to elude its international obligations.

This would certainly be contrary to the stability and predictability of the law.‖ the ICSID investment treaty

case CMS v. Argentina. CMS Gas Transmission Co. v. The Argentine Republic, ICSID (W. Bank)

ARB/01/8 ¶ 315 (Award) (12 May 2005). The parties to the proceeding had both agreed that necessity

was a customary international law defense and had accepted the formulation put forth in the ILC Draft

Articles. Here a tribunal considered a case between a state (Argentina) and a multi-national corporation,

measured and the attendant ―need to prevent a major breakdown, with all its social and political

implications‖ constituted an essential interest of the State under the meaning of the state of

necessity. whether the measures adopted ―were the only means by which the State could

safeguard its interest‖ becomes a technocratic question (precautionary principle) or economic

predictive models.255

The question was whether, since scientific experts could differ The report

concluded that the article should not be changed to reflect this, since it could be stated in the

commentary. The standard to be reflected in the commentary was that the peril must be

established by evidence reasonably available at the time.256

the tribunal concluded that there were

other steps policy alternatives Argentina could have taken in response to the crisis, though it did

not identify them.

[This section is incomplete]. In a more explicit application pf these doctrines to issues of

emergency governance the ICJ in the The Wall Advisory Opinion (2002) tested the applicability

of necessity to broader issues of state responsibility this to this dispute (which is also a recent

chapter in a much longer, entrenched emergency): ―The wall dispute, however, is far from being a

purely bilateral matter; it involves broad dangers to international peace and security.‖ The wall

seriously impairs an essential interest of the states towards which Israel's obligations exist, and of

the international community. According to the ILC commentary, "the interest relied on must

outweigh all other considerations, not merely from the point of view of the acting State but on a

reasonable assessment of the competing interests, whether these are individual or collective."257

Israel's obligations run not only to Palestine as a state, but to other states individually and to the

rather than an inter-state issue. Nevertheless, the tribunal recognized the applicability of the customary

defense of necessity as outlined in the Draft Articles. In January 2002 Argentina declared an emergency

law which reformed the foreign exchange system (dropping the pegging of the Argentine peso to the

American dollar, in order to overcome a severe fiscal crisis. CMS Gas Transmission Co claimed that it had

made investments (nearly $175 million into Argentina) in reliance on the Argentine Government‘s

promises and guarantees, particularly those related to giving a return in dollar terms and adjusting tariffs

according to the PPI, and that its subsidiary had invested more than $1 billion on the same basis. Argentina

argued that it should be exempted from liability on the grounds that a state of necessity, or emergency,

existed in Argentina and that ―the very existence of the Argentine State was threatened by the events that

began to unfold in 2000.‖ In CMS the tribunal found that the State had contributed to the state of necessity.

concluded that the contribution by Argentina had been sufficiently substantial to preclude invocation of the

necessity defense. 255

In CMS, the tribunal found debatable at first glance the question It noted the divergent views of

the parties and distinguished economists, the policy alternatives Professor Crawford‘s report also raised a

new issue—scientific uncertainty and the requisite level of consensus regarding peril— especially in

environmental circumstances. regarding the certainty of a particular environmental threat coming to

fruition, the text of the necessity article should be amended to include a precautionary element. 256

Report of the International Law Commission on the Work of Its Fifty-Third Session,

Int‘l L. Comm‘n, 53rd Sess., at 203, U.N. Doc. A/56/10 (2001). 257

ILC commentary, pp. 203-204.

international community. Humanitarian law obligations are erga omnes, meaning that they run to

other states and to the international community. Essential interest: To invoke the defense of

necessity was the only way for safeguard its essential interest against a grave and imminent threat

while not impairing an essential interest of the other and the international community as a whole.

Also grave and imminent danger: In order to invoke the defense of necessity, there need not be

absolute certainty about the imminence of danger and unavailability of alternative means. Some

uncertainty is acceptable. Balancing. The essential interest of the state relying on the defense of

necessity must outweigh the essential interest of another concerned state. Ago stated that the

interest of the state towards whom the obligation was breached ―must obviously be inferior to"

the threatened essential interest of the state claiming necessity and "cannot be one which is

comparable and equally essential to the foreign State concerned.‖ Contributing to cycle of

violence?: For a plea of necessity to be precluded under part 25(2)(b)of ILC Draft Articles the

state‘s contribution to the situation of necessity must be ―sufficiently substantial and not merely

incidental‖. Alternative means available: Although, under Ago's analysis alternatives might be

more burdensome from Israel's perspective, it would still be required as an alternative. Holding:

―Court considers that Israel cannot rely on a right of self-defence or on a state of necessity.‖

Furthermore, the general derogation regime is applicable to state-to-state obligations; there are

also the leges speciales that govern Israel‘s conduct (see Chapter Three): ―humanitarian law and

human rights instruments include qualifying clauses or provisions for derogation which may be

invoked by States parties, inter alia where military exigencies or the needs of national security or

public order so require… ―none of such clauses are applicable, finds that the construction of the

wall constitutes ―breaches by Israel of various of its obligations under the applicable international

humanitarian law and human rights instruments‖.

These cases show the extreme doctrinal taming of necessity, which bears little

resemblance to quasi-legal doctrines under that name. The positive aspects include the

suppression of self-judgment and the restrictive interpretations of essential interests, providing

doctrinal closure to open-ended imperative. However, there are potential drawbacks of distancing

the concept so completely from self-preservation, even positive duties of salus populi. Whether

necessity has a role to play in the areas of humanitarian intervention and counterterrorism, for

example, has been the subject of recent commentary.258

The Ago Report also referred to the

possibility of invoking necessity for forcible humanitarian intervention. While possible that

258

Ian Johnstone, Essays in Honor of Oscar Schachter: The Plea of ―Necessity‖ in International

Legal Discourse: Humanitarian Intervention and counter-terrorism, 43 Colum. J. Transnat‘l L. 337 (2005).

necessity could be invoked in situations of humanitarian intervention if all the elements of

necessity were strictly interpreted and met, the cumulative conditions seem designed to preclude

this. 259

Ago had placed particular importance on preserving the name ―necessity‖ (saying if it

was ―driven out the door‖ it will inevitably ―return through a window‖).260

Apparently, his

solution for taming the concept was more ingenious: rather than throwing it out, he internalized it

in a closed system of conditions and alternatives, in effect burying it alive. The major effect of

leaving extant a doctrine by the name ―necessity‖ so far has to deny its applicability, and to keep

adjacent doctrines cabined from the pernicious effects and historic abuse of the old politico-

juridical concepts of necessity.

II. Fortuitous Event: Absence of Mens Rea

The circumstance of ―fortuitous event‖ is meant to carry the normative load of the old

Grotian requirement that ―there must be absence of mens rea on the part of one who exercises the

alleged right.‖ ―Fortuitous event‖ is defined as a situation where ―where an unforeseen external

circumstance makes it impossible for the person whose act is attributed to the State to realize that

his conduct is different from that required by an international obligation‖). Fortuitous event is

defined as an intervening situation whose domestic counterpart is not ―impossibility‖ or

―hardship‖ (as in rebus sic stantibus in treaty law) but rather ―mistake.‖ It is not ignorance of the

law, nor is it involuntary conduct, but simply the ability to see the conduct is not in conformity

with the international obligation that is somehow obscured, leading to an unintentional breach of

an obligation.261

III. Force Majeure

In the case of force majeure, an ―act of god‖ typically involving the constraints or

compulsions of a natural disaster, (according to Ago, ―where an unforeseen and unavoidable

external circumstance, an irresistible ‗force‘ beyond the control of the subject taking the action‖),

259

See Report of the International Law Commission on the Work of Its Fifty-Third Session, Int‘l L.

Comm‘n, 53rd Sess., at 183-84, 194-95, U.N. Doc. A/56/10 (2001). 260

Ago Report A/CN.4/318/Add.5-7 ―Addendum - Eighth report on State responsibility by Mr.

Roberto Ago, Special Rapporteur the internationally wrongful act of the State, source of international

responsibility (part 1)‖ Excerpted from the Yearbook of the International Law Commission, available at

(http://www.un.org/law/ilc/index.htm). (Hereinafter ―Ago Report‖). 261

Ago says ―the "voluntary" nature of the action or omission and the "intentional" aspect of the

failure to conform with the international obligation are not only undeniable, but also a logical and inherent

part of the excuse given..‖

making it materially impossible for that subject to act in conformity with an international

obligation). Here, whatever conduct a state adopts must be considered an absolutely involuntary

action. This circumstance evokes the ―tragic‖ scenarios of being compelled by ―god‖ or ―nature,‖

where human action is futile, but such over-determination actually frees the decision-maker from

an engagement with tragedy in the dramatic sense, of choice and weighing of evils. As Judith

Shklar points out, a factual emergency can have a natural or human cause, and often what is

characterized as a natural cause can have an element of human commission or omission. As well

as an emergency, the underlying event or situation can be characterized as a disaster, a

misfortune, or an injustice, none of which carry the same connotations as emergency.262

However,

by cordoning off a clear doctrine of force majeure, The ILC, and in turn states accepting its

definitions, may cast a more critical and discerning eye to what other necessity doctrines claim to

rest on ―the natural constitution of things,‖ or where it is being claimed that choice is taken out of

the hands of the political actor. Indeed, justifications based on a discourse of ―tragic choice‖ and

asserting superior duties based on ―which of these is without evils‖ is often a clue that the

situation is question is not in fact force majeure, but a near cousin which is termed ―distress.‖

IV. Distress: A Trace of Self -Preservation/ Salus Populi?

―Distress‖ describes a situation of the border between necessity and force majeure. cases

where only the members of organs acting on behalf of the State find themselves in a situation of

distress.263

cases where the ―irresistible external circumstance‖ while not materially forcing those

agents of the State to engage, quite involuntarily, in conduct conflicting with the requirements of

an international obligation of that State, nevertheless puts them in a position of such "distress"

that the only way they can avert tragedy for themselves—and possibly those who may be placed

in their charge—is by acting in a manner not in conformity with an international obligation of

their State. resemble force majeure external circumstances make it relatively, if not absolutely

impossible to act in conformity with the international obligation. A sub-category of distress that is

also illustrative is ―duress.‖ While there is technically a difference between necessity and duress,

in that necessity or distress can involve natural occurrences that force a person to commit a

certain act while duress implies a situation created by another that forces a person to commit a

certain act, these defenses may blur in practice.

262

Judith Shklar, The Faces of Injustice (1990) 263

like L. Buza ("The state of necessity in international law", Ada juridica Academiae Scientiarum

Hungaricae, (Budapest, Akademiai Kiado, 1959) vol. I, pp. 213-214)

Duress is a sub-category of distress. duress is not a defense when an innocent life is taken

but not denying that duress is a defense in general terms. This approach has been adopted by

many civil law systems, while many common law systems have not required that condition..264

,

the most applicable case regarding duress at the ICTY Appeal, the Chamber is Erdemovic265

On

split 3-2 against accepting duress as a defense, instead acknowledging it solely as a mitigating

factor in punishment. must serve broader normative purposes,‖ and that the potential for abuses

would undermine one of the prime objectives of international law, namely, the majority

―protection of the weak and vulnerable‖266

Cassese accepts the notion of duress as a complete

defense, offering four standards for its application. Three of these are the same as those described

above (immediacy, no recourse, and proportionality267

), but the fourth criterion states that ―the

264

In the cases following World War II, duress was raised several times. Einsatzgruppen case, the

Court found: ―There is no law which requires that an innocent man must forfeit his life or suffer serious

bodily harm in order to avoid committing a crime which he condemns. The threat, however, must be

imminent, real, and inevitable. No court will punish a man who, with a loaded pistol at his head, is

compelled to pull a lethal lever.‖ U.S. Military Tribunal, 1950, p. 480 Jia, B. B. (2000). The doctrine of

command responsibility: Current problems. Yearbook of International Humanitarian Law. 3, 131 – 165.

Knoops, G. (2001). Defenses in Contemporary International Criminal Law. Ardsley, New York:

Transnational Publishers. Newman, S. (2000). Duress as a defense to war crimes and crimes against

humanity – Prosecutor for Drazen Erdemovic. Military Law Review. 166, 158 – 171. Rowe, P. (1998).

Duress as a defense to war crimes after Erdemovic: A laboratory for a permanent court? Yearbook of

International Humanitarian Law. 1, 210 – 228. Other cases, such as Stalag III, Holzer, and Feurstein, took a

different approach, understanding that duress is not a defense when an innocent life is taken but not

denying that duress is a defense in general terms. This approach has been adopted by many civil law

systems, while many common law systems have not required that condition. 265

ICTY, 1995a). International Criminal Tribunal for the Former Yugoslavia. (1996a). Prosecutor v.

Erdemovic (Pilica Farm). Sentencing Judgment. IT-96-22. Retrieved August 16, 2004 from

http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj961129e.htm. (ICTY, 1996c International

Criminal Tribunal for the Former Yugoslavia. (1996c). Prosecutor v. Erdemovic. Separate and Dissenting

Opinion of Judge Cassese. IT-96-22. http://www.un.org/icty/erdemovic/appeal/judgement/erd-

adojcas971007e.htm. Separate Opinion of Judge McDonald and Judge Vorhah. IT-96-22.

http://www.un.org/icty/erdemovic/appeal/judgement/erd-asojmcd971007e.htm. Joint Separate Opinion of

Judge McDonald and Judge Vorhah. IT-96-22. http://www.un.org/icty/erdemovic/appeal/judgement/erd-

asojmcd971007e.htm. 266

Writing for the majority, McDonald and Vorhah assert that a soldier should be prepared to die

given his/her job and that he/she consequently has a stronger resolve than other people Duress is not

accepted in the military context in that all non-combatants are under the soldier‘s duty of care; as

Macarthur said in confirming the death sentence for Yamashita. 267

Utilitarian proportionality tests simply do not translate into the killing of innocents. Cassese

states: ―proportionality will, in practice, be the hardest to satisfy where the underlying offence involves the

killing of innocents. Perhaps…it will never be satisfied where the accused is saving his own life at the

expense of his victim, since there are enormous, perhaps insurmountable, philosophical, moral and legal

difficulties in putting one life in the balance against that of others in this way: how can a judge satisfy

himself that the death of one person is a lesser evil than the death of another? International Criminal

Tribunal for the Former Yugoslavia. (1996b). Prosecutor v. Erdemovic. Joint Separate Opinion of Judge

situation leading to duress must not have been voluntarily brought about by the person coerced‖

that there was no specific rule applied to duress as a defense to a crime involving the murder of

innocent civilians268

Analogize to distress, even duress. Where it is not a case of a direct choice

between the life of the person acting under duress and the life of the victim.

Although the conduct actually engaged in by those concerned is ―not entirely

involuntary‖ (as in force majeure, where it is materially impossible to comply with the

international obligation), it is voluntary more since the element of ―volition‖ is more in theory

than in practice, ―nullified‖ by the situation of distress of the persons taking the action. The

structure of externality and over-determination paradoxically frees the decision-maker from an

engagement with tragedy, engagement with responsibility. constraint of compulsion, constitution

seems synonymous with legal structure, but it is a pre-legal political act. Identify with the natural

constitution of things. The principle of self-preservation has impacted actual court decisions.

distress; and certainly if the distress were real, whether Hall [the owner of the ship] is a British

subject or not, and whatever may be the character attaching to the ship, she would be entitled to

that benefit. Real and irresistible distress must be at all times a sufficient passport for human

beings under any such application of human laws. In the field of maritime law, the following

portion of Sir William Scott's legal opinion in The "Eleanor" illustrates the legal principle:

It has been said, that even upon the supposition that this is to be taken as an alien ship,

yet whatever may have been the imprudencies of conduct on the part of the owner, she

would be entitled to the rights of hospitality if driven into a British port in distress; and

certainly if the distress were real, whether Hall [the owner of the ship] is a British subject

or not, and whatever may be the character attaching to the ship, she would be entitled to

that benefit. Real and irresistible distress must be at all times a sufficient passport for

human beings under any such application of human laws.

The case of ―real and irresistible distress‖ personalizes and dramatizes self-preservation in of

one‘s physical life as well as the duty of care to the population, where a state‘s agent has ―no

other means of saving [one‘s own] life or that of persons entrusted to [the agent‘s] care. Thie

McDonald and Judge Vorhah. IT-96-22.

http://www.un.org/icty/erdemovic/appeal/judgement/erd-asojmcd971007e.htm. 268

that there was no specific rule applied to duress as a defense to a crime involving the murder of

innocent civilians, Cassese instead decided to apply the general rule that duress was a defense to this case

in particular. , in a case-by-case approach, but suggesting ― in situations…where there is a high probability

that the person under duress will not be able to save the lives of the victims whatever he does - then duress

may succeed as a defense.‖… violence to the victims would occur whether the accused committed the act

or not; Also accused and the victim are not equivalent when dealing with a crime against humanity, where,

tautologically speaking, humanity is the victim (Paragraph 19).

issue of duty of care would be one reason why as a category of distress, duress would not

accepted in the military context in that all non-combatants are under the soldier‘s duty of care; as

the American General Macarthur said in confirming the death sentence for the Japanese General

Yamashita ―The soldier, be he friend or foe, is charged with the protection of the weak and

unarmed. It is the very essence and reason of his being. When he violates this sacred trust, he not

only profanes his entire cult but threatened the fabric of international society.‖269

The responsibility attributed to the agent is equally that of the state itself. Distress under

Article 24 of the Draft Articles is a relatively under-discussed necessity doctrine, but it has

important links to the notion of salus populi that other doctrines neglect. In particular, distress

state or state‘s agent with ―saving [one‘s own] life or the lives of other persons entrusted to the

author‘s care.‖ Again, as with self-defense and the state of necessity, the wrongfulness of an act

that properly falls under this description is precluded if the author of the act in question has no

other reasonable options. Again, as with necessity, preclusion does not apply if: ―(a) The situation

of distress is due, either alone or in combination with other factors, to the conduct of the State

invoking it; or (b) The act in question is likely to create a comparable or greater peril.‖ In the

situation of ―distress‖, we are reminded that the principle of salus populi could reasonably be read

to include defense of ―others‖ under the state‘s care, i.e. the ―population‖ as a whole under the

jurisdiction or dominion of the state. In my view, a number of the classic thought experiments and

existential dilemmas— in particular the scenario of a ―ticking bomb‖ causing pressure to increase

coercive interrogation or even torture— situations which are often considered under the headings

of self-defense or necessity, are more properly classified as situations of ―distress.‖ As we will

discuss in the next chapter, situations of distress cannot justify torture under international law

because even under the various emergency doctrines and leges speciales, this situation is covered

by ―grave breaches,‖ jus cogens, and non-derogable rights. As we will discuss in the final

chapter, the situation of ―state survival‖ contemplated in the Nuclear Weapons case would be

properly structured under the terms of this doctrine. As a whole, however, reminded that the

principle of salus populi could reasonably be read to include defense of ―others‖ under the state‘s

care, i.e. the ―population‖ as a whole under the jurisdiction or dominion of the state. The concept

of distress, alongside certain strands of self-defense raise questions about the scope and

application of state responsibility to its population, other states, and nationals of other states, and

the translation of concepts of duty potentially into jus cogens or erga omnes. If formulated as jus

269

Cite to original; Brian J. Bill, Law of War Workshop Deskbook (Hein and Co.) at p. 3.

cogens, for example, the positive duty of self-preservation would impose upon the state has he

positive duty derogating and overriding any other duty to enforce any particular provision of its

own law, including international law, where doing so would be in conflict with such a duty to

self-preservation.270

V. Self Defense: The Remainder of “Self -Preservation”

Self-defense is sui generis among the circumstances precluding wrongfulness for at least

three reasons. (1) Unlike of the doctrines It is nearly co-extensive with an entire field of law (jus

ad bellum)271

and role in the modern UN collective security system (the ―exception‖ that

swallows the rule so to speak). (2) it keeps alive the notion of subjective rights and self-judgment;

and (3) it internalizes to a greater degree than any of the others the ersatz ―right‖ of self-

preservation. certain strands of self-defense raise questions about the scope and application of

state responsibility to its population, other states, and nationals of other states, and the translation

of concepts of duty potentially into jus cogens or erga omnes. These questions come together in

unexpected ways.

First, Of course ―necessity‖ and the use of force have an analogical connection as well as

the conflation in the ―right of self-preservation: and earlier doctrines. our present historical

moment, where both an elaborated legal regime of jus in bello and restrictive rules on the use of

force co-exist, though it is invoked in political rhetoric in times of conflict, often using

―necessity‖ to vacate an applicable legal regime. Analogy to self-defense, and analogy to many

of the issues that are raised in use of force doctrine. As we have already seen, much of what has

been discussed as ―necessity‖ or ―self-preservation‖ belongs today to the doctrine of self-defense.

First jus ad bellum Hannah Arendt followed this line of thought in the book On Revolution:

―Conquest, expansion, defense of vested interests, conservation of power in view of new and

threatening powers— all these well-known realities of power politics were not only the causes of

most off the wars in history, they were also recognized as ―necessities,‖ that is, as legitimate

270

As with Lincoln, The first duty of the President of the United States is to preserve, protect, and

defend the nation, through every indispensable means. That duty is both a precondition to and an essential

aspect of the duty to preserve, protect, and defend the Constitution. 271

The terms jus ad bellum and jus in bello, despite their appearance of having aged for millennia in

Latin cellars, are actually of a relatively recent vintage. Cite to Nathaniel‘s article, etc. early twentieth

century. Yet the idea of separating the justifications for going to war and the codes of conduct in warfare is

an old one, though the application of the term ―law‖ to these practices has been historically contingent. In

part, both areas of law have been conditioned on the recurrence of the idea expressed in the Ciceronian

maxim that all law is silent amid the clash of arms.

motives to invoke a decision by arms.‖272

these comments, Arendt had in mind the area of law

called jus ad bellum, which regulates states‘ recourse to force, including their reasons to go to

war. Draft Articles. In this way alone, the concept of self-judgment has been transformed

fundamentally since the old ―subjective right‖ of self-preservation.

Ultimately, Ago resolved in the context of ―state of necessity‖ that by definition the

conflict is not between two ―rights‖ but between a "right" and a mere "interest", however vital.

However, this ―defining away‖ has not occurred in the context of self-defense, which has long

been out of reach of the ILC. Among the various circumstances precluding wrongfulness, only

self-defense indulges a subjective right (―inherent right‖ ―droit naturel‖ though not purely ―self-

judged‖ since it is theoretically subject to consequences if abused). This particular aspect of self-

defense— distinguishing it from the other doctrines— is not spelled out in the Draft Articles, but

it has been demonstrated and approved in state practice both before and after the adoption of the

UN Charter system. General international law has largely rejected ―subjective rights," Ago

dismisses this:

This idea originated in the nineteenth century in the belief, widespread at that time, in the

existence of certain "fundamental rights of States", defined as the "right to existence" or

more especially "the right of self-preservation" ("Recht auf Selbsterhaltung"),

advanced by many writers as being the fundamental subjective right of any State, which

should naturally take precedence over any right of a foreign State. According to this

approach, any conduct on the part of the State deemed necessary to ensure the

preservation of its existence was bound to be considered juridically legitimate, even if it

was undeniably contrary to an international obligation of that State.

Ago goes on to say ―The theory of "fundamental rights" of States, as then conceived, was the

product of pure abstract speculation with no basis in international legal reality,‖ and has since

become outdated; in particular, the idea of a right of "self-preservation" has been completely

abandoned. ―Traces of its existence subsist, however,‖ as regards the question under

consideration. Traces of this idea are in the constitutive document of international community

should is either very problematic, or sheepishly relied upon to provide a miraculous, extra-

systemic response (deus ex machina).

Rejection of subjective rights corresponds closely with the inability of general international law

to resolve difficult situations where one important right/interest/value of which must inevitably be

272

Hannah Arendt On Revolution.

sacrificed to another equally important: (―on the one hand, the right of State X that State Y must

respect by virtue of an international obligation linking it to X, and on the other, the alleged "right"

of State Y, which the latter could in turn assert with regard to X.‖)273

thus As a matter of

characterization, one would be a right, one would not; or they would only be interests. The

answer that the weaker party yield to the stronger, is not a legal rule but a scene out of

Thucydides. State of necessity was designed to evade theory of subjective rights, what about self-

defense? Ago says that ―a valid reply to this question cannot be based on pre-established and

preconceived criteria,‖ Schmitt would say then international law has nothing to say; Ago suggests

there is only one thing to do: balance the interests, and don‘t call them rights. The Schmittian

answer is of course a rupture with the system (where ―the possibility of actual, physical killing in

a friend-enemy encounter, the political cannot be made subordinate to any other set of values or

institution, whether religious, moral, aesthetic or economic. The political transcends all norms

and upholds the sovereignty of the existential over the theoretical‖)274

, which he would have

parted company with log before the question Ago asks. Ago‘s answer, however, is close to

question begging; we return to the same question, re-characterize the claims as interests rather

than rights, and assume they are unequal in character, or else not actually contrary or

irreconcilable.275

(Here we might remember Gentili‘s quasi-naturalist balancing: ―the more just

surpasses the just, the more equitable the equitable, the more beneficent, and the more just is

given the preference over the just.‖). So either one of the parties will lose interest in defending

their interest, dispute resolution, and violence is at stake, we will have a deus ex machina in the

form of the will depend on the fact that the UN Charter seems to believe in ―inherent right‖ UN

273

a factual situation in which a State asserts the existence of an interest of such vital importance to

it that the obligation it may have to respect a specific subjective right of another State must yield because

respecting it would, in view of that circumstance, be incompatible with safeguarding the interest in

question. Thus, the crux of the problem of the merits of the "state of necessity" in international law is

whether or not there are cases in which international law sanctions such an attitude—cases in which it

allows the "subjective right" of a State to be sacrificed for the sake of a vital interest of the State which

would otherwise be obliged to respect that right. 274

Existential evasion, solidarity with the state refusing suicide. A general norm, an ordinary legal

prescription, 'can never encompass a total exception'. A regulation over Immediacy of the widespread

physical destruction of human life should triage, to begin with the near and the few.

Schmitt irredentism of the soil, linked to territory. If so, then, 'the decision that a real exception

exists cannot be derived entirely from this norm.' The problem of the exception, in other words, demarcates

the limit of the rule of law and opens up that trans-legal space, that no-man's land of existential exigency 275

See Anzilotti, "La responsabilite internationale..." (loc. cit.), p. 304, where he objects to "explaining

the principle in question as a conflict between two contrary and irreconcilable rights, the lesser of

which must yield to the greater", and states that "what is absent in these cases is the obligatory

character of a legal rule".

Charter the idea of Thucydides weaker party yield to the stronger will come to pass, preceded by

a series of Security Council Resolutions, hand-wringing, collective security or use of force.

a. What is the “Right” “Inherent” in Self-Defense?

According to Ago, both "self-defense" and "state of necessity" are expressions that

connote a situation or de facto conditions, not a subjective right. The question of characterization

(‗right,‖ ‗privilege‖ ―duty‖ interest‖) has more and less relevant aspects, and has been a point of

controversy in the academic and institutional contexts. The sole justification in law of the effect

attributed to the situation described as "self-defense" is, as in all the other situations discussed in

this chapter, the existence of a rule of general international law specifically contemplating that

effect, a rule which the present author is proposing to formulate in written form. Once again, we

think it wrong to treat self-defense, any more than state of necessity, as a "right", and hence to

speak of a "right of self-defense", even though the expression is a current one, which is used in

the Charter of the United Nations itself. Arguably the Charter itself refers to pre-existing

customary international law; this reference to customary law is contained in the actual text of

Article 5l, which mentions the ―inherent right‖— French text droit naturel— of individual or

collective self-defense, which "nothing in the present Charter shall impair" and which applies in

the event of an armed attack. Even if inherent connotes ―subjective right‖ (not natural right), this

is just philosophical dicta as far as Ago is concerned. Moreover the Charter, having itself

recognized the existence of this right, does not go on to regulate directly all aspects of its content.

For example, it does not contain any specific rule whereby self-defense would warrant only

measures which are proportional to the armed attack and necessary to respond to it, a rule well

established in customary international law.276

Bowett defines "self-defense" as "in itself a

'privilege' or 'liberty' which justifies conduct otherwise illegal which is necessary for the

276

The ICJ in the Nicaragua case [pp. 94-96]:

[F]inds that Article 51 of the Charter is only meaningful on the basis that there is a "natural" or

"inherent" right of self-defense, and it is hard to see how this can be other than of a customary

nature, even if its present content has been confirmed and influenced by the Charter…. Moreover,

a definition of the "armed attack" which, if found to exist, authorizes the exercise of the "inherent

right" of self-defense, is not provided in the Charter, and is not part of treaty law. It cannot

therefore be held that Article 51 is a provision which "subsumes and supervenes" customary

international law. It rather demonstrates that in the field in question, the importance of which for

the present dispute need hardly be stressed, customary international law continues to exist

alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly,

and the rules do not have the same content. This could also be demonstrated for other subjects, in

particular for the principle of non-intervention.‖

protection of certain rights stricto sensu".277

In that author's opinion, therefore, the "right" stricto

sensu is not the right to act in self-defense, (right to a protected interest) but the "essential

substantive right" of the State—notably the right to territorial integrity—injured by the aggression

to which that State reacts in self-defense (The first buffer against a vacant imperative is collective

self-preservation) casting salus populi as the ―collective self-preservation‖ of the population

under a state‘s jurisdiction— On the other hand, we will not make the mistake, which has been

amply criticized in the context of "state of necessity", of looking to another concept, or to the

supposed existence of a "fundamental right" of the State, the definition of which purportedly

comprises that other concept, for a "justification" or "basis" of self-defense as a circumstance

exceptionally precluding the wrongfulness of conduct inconsistent with the general obligation to

refrain from the use of armed force.

An alternative idiom is exception; yet another is ―permissive rule.‖ Under the Lotus Case,

decided by the World Court in 1927, "the first and foremost restriction imposed by international

law upon a State is that - failing the existence of a permissive rule to the contrary - it may not

exercise its power in any form in the territory of another State." 278

The right of self-defense

(whose modern form that since 1945, when the UN Charter was adopted is codified at U.N.

Charter article 51) is ―permissive rule‖ of this sort, if the conditions are met. Derogation is not a

permissive rule that can infringe on the rights of other states, and it is not a ―right‖ of the state

unless that right is self-preservation.

The State finds itself in a position of self-defense when it is confronted by an armed attack

against itself in breach of international law. It is by reason of such a state of affairs that, in a

particular case, the State is exonerated from the duty to respect, vis-à-vis the aggressor, the

general obligation to refrain from the use of force. It goes without saying that this recognition of

liberty for the State acting in self-defense would likewise disappear, under the system

contemplated by the Charter, as soon as the Security Council took it upon itself to employ the

enforcement measures necessary for ensuring the full respect of a situation jeopardized by the

aggression.

Security Council may recognize a right to respond in self-defense, but it does not--and

legally cannot--authorize its exercise since that right is "inherent" in the victim. Under Article

51right exercisable at the sole discretion of an attacked state, not a license to be granted by

277

Bowett, Self-defense in International Law (Manchester, Manchester University Press, 1958), 278

Case of the S.S. "Lotus" (France v. Turkey), PCIJ Series A, No. 10, at 18 (1927).

decision of the Security Council.279

Authorization for the use of force follows. I will argue here

that there are three, mutually supportive connotations of the phrase ―inherent right‖ in the UN

Charter. None of these argues for a pre-legal right of self-defense, that is unable to be regulated

by law. First, we might argue that the ―inherent right‖ stricto sensu is not the right to act in self-

defense, but the "essential substantive right" injured by the aggression to which that State reacts

in self-defense. of the State. These would include the right to territorial integrity or the duty to

protect its population, Just war theories, based in naturalism, as well as positivist international

jurisprudence have long used a ―domestic analogy,‖ equating a states armed self-defense to the

situation of individual self-defense in domestic law.280

Analogy to the position of individual self-

defense in a state, has a right to use military force in national defense in the same way that an

individual who is attacked has the right to kill in self-defense.281

This is a privilege or a liberty to

protect a substantive right.

The second use of the term ―right: in the Charter is in the different, rhetorically excluded

context Improperly Prohibition of using force in self-defense, these might theoretically be viewed

as infringements on a ―right.‖ As such, Bowett defines "self-defense" as "in itself a 'privilege' or

'liberty' which justifies conduct otherwise illegal which is necessary for the protection of certain

rights stricto sensu".282

The situation in which we might imagine this as a right to be asserted is

one where an international body is attempting to strip of recourse to that right in any case. This

simple reinforces legal argument, that barring the liberty of self-defense would be ultra vires.

In discursive terms, ―necessity‖ can take on a range of meanings in the context of jus ad bellum.

One might think of necessity as embodying political demands (e.g. the demand for a response

after an attack), or else a moral imperative, redress of collective historical grievances, or an

279

Article 2(4) was intended to operate as an ―absolute all-inclusive prohibition; the phrase ―or in

any other manner‖ was designed to ensure that there should be no loopholes‖� a view supported by the

majority of scholars.� States are prohibited from using force in international relations and from threatening

others with the use of force in all but narrowly defined circumstances. In other words, the effect of Article

2(4) is that any specific use of force is lawful only if is based on a legal exception to this prohibition. The

Charter explicitly envisaged only two exceptional situations: a) collective military enforcement action

taken or authorized by the UN Security Council in accordance with Chapter VII (and by extension for

regional organizations under Chapter VIII); and b) the exercise of individual or collective self-defence as

outlined in Article 51 of the Charter. The legality of any military action will, therefore, depend on the

applicability of either of these exceptions, 280

Whereas naturalism emphasizes the character of the violation, the positivist idea is the expansion

of the locus, to whom obligations are owed. 281

Cite from Ago to the range of international jurisprudence, beginning with Grotius, using this

domestic analogy. In the context of moral philosophy Michael Walzer, in Just and Unjust Wars, also called

this ―the domestic analogy,‖ 282

Bowett, Self-defense in International Law (Manchester, Manchester University Press, 1958), pp.

8-9) "justification" of the plea of necessity

―imperative‖ for greater glory (e.g. manifest destiny or Empire), as well as all of the ―well-known

realities of power politics‖ referred to by Arendt in the passage above. In legal and doctrinal

terms, any of these purposes would seem like abuses of the term.

However, in doctrinal terms, ―necessity‖ has also been historically contingent manner of

expressing cause for war. ― The only restraints on these were the customary law limiting

self-defense, based on the Caroline decision‘s right of self-preservation. What has taken place

since 1945 has been a revival of an older tradition of jus ad bellum, where the customary law has

co-existed with the UN Charter, did the international legal order adopt a concept of "self-defense"

as an exception comparable, in essential respects, to that current in national legal systems. Prior to

the Kellogg-Briand Pact and later the UN Charter, war was emphatically an instrument of

national policy in the period that saw the rise of states and the end of a Europe unified by a single

Church, which could determine what made a just or unjust war. just cause‖ war Europe unified by

a single Church, which could determine what made a just or unjust war. Following the Protestant

Reformation and the period that saw the rise of sovereign states, however, war became

emphatically an instrument of national policy, and ―just cause‖ could not be determined by any

higher authority than the states themselves, leading to war as a common form of dispute

settlement. During the League of Nations period the theory of necessity in the use of force had

little to do with the reasons for going to war, or the necessity of self-defense but in the case of

conflicting national policies, ―necessity‖ simply meant the exhaustion of mandatory dispute

settlement mechanisms.283

The understanding of necessity has reverted now to ―just cause‖

thinking, which state reasons related to self-defense. The General Treaty For The Renunciation

Of War (the Kellogg-Briand Pact of 1928), which ―banned‖ war as an instrument of national

policy still allowed for self-defense, and a broad margin of deference for states to decide what

this entailed.

Though self-preservation and self-defense were practically synonymous during the time

of Grotius, the revival of self-defense as a ―doctrine of necessity‖ is a recent innovation. In the

statist and positivist period between the normative code of just war doctrine and the normative

code of the general prohibition on force, arguments of ―self-defense‖ were merely political

rhetoric, not legal arguments. Even though the Caroline formulation of customary law was first

articulated at this time, Ago has argued that in this period:

―[t]he fact that States blamed each other for a war, their oft-repeated assertions of the

allegedly "defensive" character of the wars started by them and the implied lip-service

283

Gardam 44

paid to the idea of the moral superiority of the defender's position vis-à-vis the attacker's,

reflected merely the need to give world public opinion, and above all their own citizens, a

prestige opinion of themselves; but it would be wrong to regard this as reflecting any

realization of the need for a "legal" justification of their comportment. Logically, in such

a context the idea of "self-defense", properly so called, could have no place284

.‖

The doctrinal identity of self-defense begins with its formulation as customary law, Even a well-

recognized doctrine of ―necessity‖—self-defense— is prone to abuse, and in the post-WWII

period it has been the exception that has been permeable enough to allow virtually every war to

proceed unhindered. In doctrinal terms, limits the vacant imperative… the actions create a blank

check. customary rule and a charter rule.

inherent right of self-defense or ―armed protection.‖ In a sense, self-defense, as of

relatively recently, is now structured as an emergency exception, since the use of force is

prohibited as a general rule. According to the jurist Louis Henkin, "It has...been accepted that the

right to self-defense, individual or collective, is subject to limitations of 'necessity' and

'proportionality,' but that self-defense includes a right both to repel armed attack and to take the

war to the aggressor state in order effectively to terminate the attack and prevent a recurrence." In

that regime, necessity determines whether the situation warrants the use of armed force. As for

IHL, the idea of necessity is traditionally regarded as a fundamental concept within that system.

IHL is commonly described as a balance between the demands of military necessity and

considerations of humanity. However, necessity has never assumed a clearly identifiable role in

IHL, despite its seeming centrality to the regime Emergency governance is not deeply related to

use of force doctrine, except at an ethical and analogical level. Case for military intervention

parallels the justificatory rhetoric of a declaration of emergency. Exceptional ―Decisive action in

times of crisis‖ Under a 19th century formulation by the U.S. Secretary of State in the Caroline

incident, affair of 1837: the necessity for pre-emptive self defense must be "instant,

overwhelming, and leaving no choice of means, and no moment for deliberation.‖ A generally

recognized guide to is Daniel Webster‘s statement regarding the Caroline Self-defense is justified

only when the necessity for action is "instant, overwhelming, and leaving no choice of means,

and no moment for deliberation."285

reaffirmed by the Nuremberg Tribunal after World War II,

284

Ago Report 52 Documents of the thirty-second session 285

(Letter from Daniel Webster, Secretary of State, to Lord Ashburton, August 6, 1842, reprinted in

2 John Bassett Moore, A Digest of International Law 409, 412 (1906)). A modern version of this approach

is found in Oppenheim‘s International Law: Ninth Edition, 1991, p. 412 Caroline Dispute of 1841, in which

Daniel Webster complained to the British government that British soldiers had captured a private American

ship, set it ablaze, and then sent it over Niagara Falls, on the grounds that the ship had been supplying

applied to the conditions for anticipatory self-defense At the most general level however, what

distinguishes self-defense from other theories of self-preservation and in the parlance of the ILC

―situations precluding wrongfulness‖, however, is that it requires the existence of an unjust act, a

violation of s formal rule of international law, is, we have seen, a common element that is found

at the base of the law of self-defense (and the law of reprisal, though no longer found in the state

of necessity [Notstand])."286

There is a minimal normative content to formulating the requirements for ―necessity‖ and

self-defense‖ in such different ways. Verdross tells us that what characterizes a state of necessity

is that the state pleading necessity ―violates the right of an innocent State in order to protect

itself‖287

More recently, M. Sorensen noted that '"state of necessity' differs from 'self-defense' in

that it does not presuppose a wrongful act on the part of the other State, and the act is not

Canadian rebels. a significant portion of the wars on piracy in the 19th century took the form of destroying

pirate bases and sanctuaries on foreign territory. It is well known that in the early 20th century the United

States Army sent a sizable expedition into Mexico to pursue bandits that had been raiding farms and

villages on the American side of the international border. In 1837, anti-British militants based in a remote

area of New York State began conducting attacks across the Niagara River into British-ruled Canada.

When the local American authorities failed to control the situation, British forces crossed the river, attacked

the militant sanctuaries, and destroyed a boat, known as the Caroline, which had been used in the cross-

border attacks. Needless to say, the American authorities were not happy with this armed incursion into US

territory by foreign troops, but the American government ultimately accepted the British argument, at least

in principle. In 1841, as part of a general resolution of a number of outstanding issues affecting U.S.-British

relations, Secretary of State Daniel Webster acknowledged that, under certain circumstances, one country

did indeed have the right to act in self defense on the territory of another—even if it was American

territory that was involved. British government insisted that it had a right to act in self defense. Caroline

117 The action occurred during the night of 29 December 1837. Necessity was first mentioned as a ground,

in reaction to the American protests, by the British Minister in Washington, Henry S. Fox, who referred in

that connection to the "necessity of self defense and self preservation"; the same point was made by the

counsel consulted by the British Government, who stated that "the conduct of the British Authorities" was

justified because it was "absolutely necessary as a measure of precaution" (see respectively W.R. Manning,

ed., Diplomatic Correspondence of the United States: Canadian Relations 1784-1860 (Washington, D.C.,

Carnegie Endowment for International Peace, 1943), vol. Ill, pp. 422 et seq., and McNair, op. cit., pp. 221

et seq.). On the American side, Secretary of State Webster replied to Minister Fox that "nothing less than a

clear and absolute necessity can afford ground of justification*" for the commission "of hostile acts within

the territory of a Power at Peace*" and observed that the British Government must prove that the action of

its forces had really been caused by "a necessity of self-defense, instant, overwhelming, leaving no choice

of means, and no moment for deliberation"� In his message to Congress of 7 December 1841, the

President of the United States reiterated that "This Government can never concede to any foreign

Government the power, except in a case of the most urgent and extreme necessity*, of invading its

territory, either to arrest the persons or destroy the property of those who may have violated the municipal

laws of such foreign Government . . . " 286

C. de Visscher ("Les lois de la guerre et la theorie de la necessite", Revue generate de droit

international public (Paris), vol. XXIV (1917), pp. 87.)quoted in Ago Report at… 287

("Regies generates du droit international de la paix", Recueil des cours de VAcademie de droit

international de la Haye, 1929-V (Paris, Hachette, 1931), vol. 30, pp. 488-489).

necessarily directed against the person who created the danger.‖288

If not survival of self or care

of others, ends in themselves, the protected interest is a good or a value sufficient to merit

harmful acts in its defense.289

Limitations that guard the merits are proportionality and necessity.

In the case of self-defense, there must also be imminence. A State may invoke as a circumstance

precluding the wrongfulness of the conduct it has adopted towards another State the fact that it

resorted to that conduct to prevent aggression, or more generally the use of force against it, by

that other State. The threshold here involves a relationship There must be a value claimed for the

protected interest. the good that the defensive act is intended to protect or preserve -- this may be

the defender‘s own life, the life of a third party, or some other valuable, such as property or

liberty)290

What Would a Salus Populi Notion of Self-Defense Look Like?

The legal justification for self-defense is based only partially, but still crucially on a

notion of salus populi. This can be seen above in the idea that there must be a normative

relationship between the state and the object protected. (This is not a complete theory of jus ad

bellum, but only what can be permitted under a legal understanding of self-defense.). First,

whatever its content, the only sense of salus populi that would be relevant would be a defensive

one. This immediately not humanitarian intervention, etc. Also there cannot be unlimited

288

M. Sorensen Principles of Public International Law (p/ #) (Trans. Of "Principes de droit

international public", Recueil des cours..., 1960-IH (Leyden, Sijthoff, 1961), vol. 101, pp. 219-220). See

also A. Ross, A Textbook of International Law (London, Longmans, Green, 1947), pp. 247-248;; G.

Schwarzenberger, "The fundamental principles of international law", Recueil des cours..., 1955-1 (Leyden,

Sijthoff, 1956), vol. 87, p. 343; D.W. Bowett, Self-defense in International Law (Manchester, Manchester

University Press, 1958), p. 10; 289

Hohfeld‘s famous analysis of legal rights would consist of four elements, identifying and then

scrutinize the subject, object, content, and ends as relations: ( 1) Subject: Right or duty normative

relationship (right, duty of care, duty of rescue—state to its population) Self-defense is partly grounded in

the normative relationship between the defender and the end of her action, The duty to protect is primary

and not always addressed in theories of jus ad bellum. What about a constitutional duty? (2) Object: the

identity of the threat against which the claimed right is held (the aggressor, or enemy alien)(3) Content: (act

or means) merit of measures based on balance of harms (proportionality and necessity) Normative

questions that connects jus ad bellum and jus in bello are the ones that demand necessity and

proportionality. degree of danger (imminence, ―leaving no time for deliberation‖) Limitations merits of the

defensive action as well as the conduct of the measures: the harm inflicted in the course of defense is not

greater than the harm it seeks to avert (proportionality operation of reciprocity requires us to balance the

harm inflicted upon a particular person, against the harm with which he threatens us. proportionality); that

there was no less-harmful way to achieve the same result (necessity); and that the harm one seeks to avert is

truly imminent. (4) The Ends: identity of the protected interest. 290

(1) ―the subject of the right (the defender),‖ (2) ―the object against whom the right is held (the

aggressor),‖ (3) ―the act that is the content of the right (in typical cases of self-defense this will be

homicide),‖ and (4) ―the end of self-defense (the good that the defensive act is intended to protect or

preserve -- this may be the defender‘s own life, the life of a third party, or some other valuable, such as

property or liberty).‖

deference to the moral value of the state through its role in removing us from the horrors of the

state of nature if life is not maintained and protected against external threats to life. Minimal

accounts of state legitimacy such as Hobbesian contract theory provide no reason to defend our

particular form of common life against others (life of those in the population). political

community should have the right to defend itself from invaders who seek to conquer and rule. On

the other hand, if the value of the common life (oppressive, unjust, or Cruel) is thought to reside

in its unique character or identity…An alternative is self-determination. John Stuart Mill and

Michael Walzer both indicate an intriguing solution to this problem.

Both claim that it is not the character of a nation‘s common life per se that merits defense and

protection, but rather a people‘s collective autonomy that underlies the national character.

authentic moral value. autonomy and communal identity. What about a constitution? These

difficulties arise from attempting to reconstruct just one aspect of the supposed right of national

defense: a putative end sufficient to satisfy the requirements of proportionality. Humanitarian

intervention and states of emergency are both cases where the defensive rights of states come into

direct conflict with the rights of individual citizens. In both cases, the state‘s right of self-

preservation is in conflict with the welfare of the individuals.

c. [Reprisals and Forcible Counter-measures [remove or separate section?].

The lawful status of self-defense is secured by its ―other‖ termed ―reprisals.‖ However,

The UN system itself explicitly bans a particular kind of reactive self-help, belligerent reprisals

involving armed force. In terms of opinio juris, belligerent reprisals remain a marginal and

―exceptional‖ form of self-help in the international sphere. This is clear since even if they have

been widespread in state practice, thy are nearly always characterized using another category,

such as ―state of necessity,‖ ―countermeasures,‖ or usually (and perhaps most inaccurately) ―self-

defense.‖ Conversely, the very use of the characterization ―reprisal‖ is usually meant to signal the

illegality of an action.) 291

scholars attempts to define away any positive characterization for

armed reprisals, allowing the term self-defense for "The difference between the two forms of self-

help lies essentially in their aim or purpose. Self-defense is permissible for the purpose of

protecting the security of the state and the essential rights—in particular the rights of territorial

integrity and political independence—upon which that security depends. Ago: ―reprisals cannot

291

D. W. Bowett ("Reprisals involving recourse to armed force" The American Journal of

International Law (Washington, D.C.), vol. 66, No. 1 (January 1972), p. 3

be characterized as a means of protection." Self-help… In fact, in 1974, Acting U.S. Secretary of

State Kenneth Rush ―stated that the United States believes that ‗for reasons of the abuse to which

the doctrine of reprisal particularly lends itself, we think it desirable to endeavor to maintain the

distinction between lawful self-defense and unlawful reprisal.‘292

In this way reprisals carry the

weight of the abuses of self-defense and other proper uses of force.

Though these are not viewed as a legal category of countermeasures, have their own

justification as a kind of law enforcement, they are exceptional and exist as a form of sanction to

enforce the laws of war during an armed conflict. There is customary law pre-dating the Charter

and even recent state practice that suggests some form of belligerent reprisals might still be alive

as (in my terms) ―exceptional countermeasures,‖ and that there is a legal regime governing states;

recourse to these and conduct in using these. Recent scholarly opinion has explored the legality

and legitimacy of ―exceptional countermeasures‖ in the contexts of humanitarian intervention

(Kosovo), counter-terrorism efforts, and counter-proliferation, for example. All of these writings

view ―exceptional countermeasures‖ as a multilateral form of law enforcement following the

spirit though not letter of Article 51.

The two questions, which parallel my exploration of other necessity-based doctrines: (1)

can such countermeasures be regulated by a legal regime, and (2) what ensures that they would

remain exceptional? here is no similarity between the case of a State which invokes a state of

necessity to justify what would otherwise be wrongful conduct towards another State and the case

of a State which describes its action towards another State as the legitimate application of a

sanction, as a legitimate reaction to an internationally wrongful act already committed by that

other State. In the absence of a formal derogation regime, and outside the circumstances

precluding wrongfulness detailed in the Draft Articles on State Responsibility, international law

has no language for such ―fallback‖ regimes. Still, this is the way many commentators and

policy-makers conceive of de facto regimes of law. According to D‘Amato, ―these rules may be

said to add a special dose of legal obligation to the nation which decides to violate the law in the

first instance by resorting to reprisals.‖293

This view that some law is better than none, and

perhaps even better than more, is characteristic of New Haven policy thought, and the demand for

a minimum public order in international affairs.294

However, the normative demand for such a

292

Michael Ratner & Jules Lobel, Bombing Baghdad, Revisited; Lawful Self-Defense or

Unlawful Reprisal?, CONN. L. TRIB., July 19, 1993, at 24; 293

Anthony D‘Amato, International Law: Process And Prospect 41 (2d Ed. 1995). 294

M. McDougal & F. Feliciano, Law And Minimum World Public Order 682 (1961)).

fallback regime has not been translated into questions such as how can reprisals remain

exceptional (contingent) and yet tied to general principles of necessity and self-preservation, or

the construction of a derogation regime, excluding responsibility for particular belligerent

reprisals.295

Professor William V. O‘Brien proposes bringing this doctrine back into play as part

of a re-written and expanded self-defense doctrine, against terrorist organizations only, but with

new operational rules grafted onto the ones that exist in customary law:

A realistic and fair jus ad bellum law governing counter terror attacks on terrorist

positions in sanctuary States would recognize that such measures [forcible reprisals] are a

legitimate form of self-defense. This right of self-defense extends to the protection of a

State‘s nationals abroad, including protection against hijacking. Despite Security Council

practice and the opinions of the majority of publicists, the reprisal/self-defense distinction

and the judgment that reprisals are legally impermissible should be abandoned…. A more

sensible approach would be to assimilate armed reprisals into the right of legitimate

self-defense.‖296

Although the general view is that reprisals are illegal, that does not mean that states have not

engaged in them. After the opinion in Naulilaa, reprisals under customary international law were

delineated as generally comprising these elements: (1) . Prior Illegal Act (violation of

international law) – The ―offending state must have committed an act contrary to international

law.‖ (2) . Unsatisfied Demand – Reprisals should only be used after the injured state has

attempted to resolve the matter (made demands) with the offending state and the attempt has

failed. (3) . Proportionality is defined in two contending ways: 1. Traditional view – ―[R]eprisals

should be proportionate to the initial violation of international law.‖ 297

2. Some commentators

argue that ―reprisal must be sufficient but not excessive in forcing compliance with international

law, not necessarily proportionate to the initial violation.‖298

the employment against terrorists

and not states strict compliance with the proportionality would save reprisal doctrine it from

295

Jonathan I. Charney, May the President Violate Customary International Law?: The Power of the

Executive Branch of the United States Government to Violate Customary International Law, 80 Am. J. Int'l

L. 913, 914-15 (1986) ("If a nation ... seeks to alter an established rule of customary international law, it

must forge a new state practice ... . This development takes time [because] states interested in a new rule ...

must take action that violates existing law and must encourage others to do the same."). 296

William V. O‘Brien, Reprisals, Deterrence and Self-Defense in Counterterror Operations, 30 VA.

J. INT‘L L. 421, 475-76. 297

Andrew D. Mitchell, Does One Illegality Merit Another? The Law of Belligerent Reprisals in

International Law, 170 MIL. L. REV. 155, 158 (2001) 298

M. McDougal & F. Feliciano, Law And Minimum World Public Order 682 (1961)).

general condemnation .299

Therefore, while reprisals are illegal, state practice continues to resort

to them on occasion, cloaking them in terms of self-defense while remaining careful to comply

with Naulilaa criteria. Support under Article 51 rule on self-defense, thereafter deformalized in

AUMF300

Unlimited Reprisal in the guise of self-defense. In a different context, humanitarian

intervention, forcible countermeasures should be revived not based on the target but the character

of the violation. Judge Antonio Cassese, ―the evolution of new customary international norms

transcending state structuralism and paying little regard to previous precedents, thus illegitimately

legitimizing the use of force by a group of states (like the present coalition). The notion that in..

―international law [one should] allow the use of forcible counter measures to impede the state

from committing large-scale atrocities on its own territory, in circumstances where the Security

Council is incapable of responding adequately to the crisis.‖301

2. Beyond Self -Judgment

Under the Draft Articles, states are no longer the sole judge of whether their

circumstances precluded wrongfulness.302

Necessity doctrines, whether of a predominantly legal

or political nature, invoked some version of ―subjective right,‖ ―natural right.‖ Or ―self-

judgment‖ in justifying a State‘s actions. This assumes no prior obligation on the part of the State,

or none that can be enforced. to Lauterpacht warned in Function of Law that a self-judged

obligation is meaningless in legal terms:

[a]n obligation whose scope is left to the free appreciation of the obligee, so that his

will constitutes a legally recognized condition of the existence of the duty, does not

constitute a legal bond.303

The problem of self-judgment,304

a central feature of earlier doctrines of necessity, does not seem

to be present in the modern state of necessity, or most of the circumstances precluding

299

Following are some examples of reprisals undertaken after adoption of the Charter during the

Cold War period. Each of these was condemned by the world community. 1964 — British Air Attacks in

Yemen, 1972 — Israeli Raids against Lebanon 1985 — Israeli Raid on Tunis 1986 — U.S. Air Strike

Against Libya, 1988 — U.S. Destruction of Iranian Oil Platforms , the 1986 bombing of Libya is cited as a

peacetime reprisal and not an act of self-defense. 300

Address Before a Joint Session of the Congress on the U. S. Response to the Terrorist Attacks of

September 11th, PUB. PAPERS (Sept. 20, 2001), at http://www.whitehouse.gov/news/releases/2001/09/#. 301

A. Cassese ―Ex iniuria ius aritur: Are we Moving towards International Legitimisation of Forcible

Humanitarian Countermeasures in the World Community?‖ European Journal of International Law, UN. 10

No.1 (1999), at p. 302

Documents of the Thirty-Second Session, [1980] 2 Y.B. Int‘l L. Comm‘n 17-18, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 1); 303

Cite

wrongfulness (with the notable exception of self-defense, where self-judgment is disputed in

theory, but widely accepted in state practice). The ICJ in the Hungary-Slovakia Case declared that

a State invoking the necessity defense ―is not the sole judge of whether those conditions have

been met.‖305

What does this mean in practice? Presumably, between two parties, the state of

necessity might be contested in diplomatic communication or dispute resolution. Moreover, the

issue of self-judgment need not be resolved by agreement or an objective third-party or tribunal,

but simply by the invoking party in reference to international law. CMS tribunal Party whether

the national security provision was self-judging, and concluded that it was not.306

invoking the

necessity or security exception had done so in good faith, but included ―a substantive review that

must examine whether the state of necessity or emergency meets the conditions laid down by

customary international law and the treaty provisions and whether it thus is or is not able to

preclude wrongfulness.‖307

There is still a possible critique that a body of complex formal rules is meaningless to

their existence as law, unless exists a judge competent to decide upon disputed rights. This is an

important point in terms of the prevention of necessity doctrines backsliding into matters of

political prudence. This also familiar is the kind of foundational critique of international law ―as

non-law‖ before its current phase of institutionalization. But certainly, the ultimate enforcement

or recognition of the Draft Articles— even if endorsed by states— will depend to an extent on

their use by judges and tribunals. In treaty bodies, the problem of self judgment is less

pronounced; it is clear that states pleading the existence of an emergency have the burden of

proof to establish the existence of this situation as well as to show the required protective

measures. International monitoring organizations have the power to make an independent

determination of these. Here is clear that this state is not the sole judge of its claim of necessity.

In the application of custom, presumably the ICJ, an arbitral tribunal, or another competent

organization would step into this role. In almost every case, whether or not a necessity defense is

304

On Judging the Existence of a State of Necessity A recurrent question with respect to any

international obligation is who should be the judge of the nature and extent of the obligation and of a

State‘s compliance with it. This problem arises particularly with respect to exceptions to obligations; the

quintessential example is a national security exception that is self-judging. It is difficult to be sure that a

State will be objective in gauging the existence of a state of necessity when such a defense would

exculpate it from liabilities that are burdensome and oppressive. Another problem is that posed by the

almost inevitable posthoc judging of the purported state of necessity by the international court or tribunal

that is eventually presented with the problem. The state of crisis, if such it was, is likely to be long

dissipated and might well appear less dire from the vantage point of months, if not years, in the future. 305

Gabvíkovo, (Hungary v. Slovakia) 1997 ICJ at 40. 306

CMS par. 373. 307

CMS par. 374.

eventually assessed by judges or arbitrators, it will be asserted and assessed at the inter-state (and

inter-subjective) level, providing a basis for dispute. At minimum, the state claiming necessity

would have guidelines for its claim, as spelled out in the Draft Articles. In this way alone, the

concept of self-judgment has been transformed fundamentally since the old ―subjective right‖ of

self-preservation. Among the various circumstances precluding wrongfulness, only in self-

defense is a subjective (inherent or self-judged right) still presumed, and even here it is subject to

consequences if abused. This particular aspect of self-defense— distinguishing it from the other

doctrines— is not spelled out in the Draft Articles, but it has been demonstrated and approved in

state practice both before and after the adoption of the UN Charter system.

3. Customary “Derogation Clauses”

The various circumstances precluding wrongfulness could potentially play a greater role

as customary standards, and in the development of future customary law. In fact, while the

individual doctrines may lack the specificity, a certain constellation of these—- necessity, self-

defense, and force majeure—- have already been read (in ILO practice) to provide a kind of

constrained ―derogation clause‖ for multilateral treaties in situations of emergency.308

Similar

secondary rules are being developed for the question of applicability of treaties during armed

conflict. In the International Labor Organization‘s (ILO) Greek (1971) and Polish (1984) cases, in

the course of enforcing some of the first human rights-related treaties— the ILO Conventions No.

87 on the Freedom of Association and Right to Organize (1948) and No. 98 on the Right to

Organize and Collective Bargaining (1949)— the ILO drew guidance from customary doctrines

of necessity, self-defense, and force majeure to construct a set of constraining requirements for

the derogation that would have to be satisfied before any derogation would be proper. In the

Greek Case (1971) the ILO‘s Special Commission considered Greece‘s claim that a state of

emergency in April 1967 relieved the state from its obligation to the conventions in a manner

analogous to a force majeure. The Commission took this claim up as a challenge to articulate the

proper standard in a state of emergency, pulling together not just force majeure, but necessity and

self-defense, as providing the applicable analogy:

308

Statute of ICJ also recognizes as a source general principles of law at the highest level of

abstraction that are common in domestic systems principles of ―domestic law‖, foundational legal

techniques that can be relied upon without much controversy. Does this include necessity doctrines and

therefore applicable as gap-filling doctrines at the international level?

The position of pleas of emergency or necessity in international custom may be said to

correspond essentially, within the peculiar framework of the international community, to

the place given to pleas force majeure or legitimate self-defense in national systems of

law. A plea of force majeure generally requires a showing both of imminent danger and

of a proportionate relationship between the danger and the measures adopted for defense.

Both the general principle of law derived from national practice and international custom

are based on the assumption that the non-performance of a legal duty can be justified

only where there is impossibility of proceeding by any method than the one contrary to

law. It must also be shown that the action sought to be justified under the plea is limited,

both in extent and in time, to what is immediately necessary.309

In the Polish case, facing a similar claim, the Commission boiled down this discussion to a phrase

which more directly resembles the derogation clauses of human rights instruments: ―in cases of

extreme gravity constituting a case of force majeure… limited in scope and in duration to what is

strictly necessary to deal with the situation in question.‖310

In the Greek and Polish cases, The ILO Special Commission articulated a customary

standard for derogation during states of emergency with reference to force majeure, but necessity

and self-defense. Since that time, the ILC‘s Draft Articles on State Responsibility have further

specified the requirements for these doctrines. This provides the beginning of a fruitful approach

for the practice of specific treaty bodies (e.g. the ILO or the African Commission), whose

constituent instruments do not provide a derogation clause. In my view, this kind of

identification of customary norms of derogation is better rooted in the international system than

raising the secondary norms of particular treaties (e.g. the ICCPR) to this kinds of status. 311

309

Report of the Commission appointed under Article 26 of the Constitution of the International

Labour Organization to examine the Complaints concerning the Observance by Greece of the Freedom of

Association Conventions. International Labour Office, Official Bulletin 1971, para. 110. See also Oraa at

224. 310

Report of the Commission instituted under article 26 of the Constitution of the International

Labour Organization to examine the complaint on the observance by Poland of the Freedom of Association

and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and

Collective Bargaining Convention, 1949 (No. 98): Official Bulletin, Special Supplement, Series B, Vol.

LXVII, 1984, para. 479 (hereinafter "Report of the Commission of Inquiry (Poland)"). See also Oraa at

225. 311

For an opposing view, see Oraa. Of the classical political traditions engaging the question of

emergency powers, the most salient discussions and most coherent answers come from the republican

tradition.� Republicanism is typically formalist on the issues of declaration, duration, conduct, control, and

termination of emergencies.� T a book by Father Jose Oraa. aa determines that 'the legal regime of the

derogation clause contains what could be called seven fundamental "principles‖. he chapter deals

with the very existence of a State of Emergency as envisaged in the three treaties.

The Principle of Exceptional Threat (to the life of the nation) The Principle of Notification This

principle appears in the three treaties, its rationale is obvious. failure to notify nullifies ipso facto the right

to derogation. Actually, the answer seems rather negative. The Principle of the Proclamation

5. The Substance of Preservation: Retrieving Duties and Values

Although the Draft Articles purport to be secondary norms, and are in any case easily

displaced by more specific treaty-based rules, it can be argued that something of value was lost in

the disaggregation of necessity doctrines and the casting away of ―self-preservation.‖ It can be

argued that at least in terms of state of necessity, the ILC opt only threw out the baby with the

bathwater, but retrieved the bathwater as a souvenir with no further thought to the fate of the

baby. Necessity is tamed, even stripped of any intrinsic purpose or field of application (which is

appropriate enough for a concept that it rooted in and shares its name with a vacant imperative),

and on the opposite end self-defense is notoriously difficult to regulate or distance from

subjective rights or self-preservation, but in between there are other possibilities. Distress

preserves two levels of that are not present in the other doctrines. of individuals can be

generalized duty of care toward a state‘s population. We might ask whether there is also

something positive to be found in the persistence of notions of ―self-preservation‖ in self-defense.

In my view, it is an aspect not that different from what remains in distress: the notion of a duty of

care, and specific values that tame as much as they fill the vacant form of necessity. As I already

have suggested, chief among these is the principle of salus populi, which gives content to

necessity doctrines, and does not take difficult questions out of the realm of legal resolution.

Human rights treaties and those applicable in armed conflict recognize forms of salus populi, or

public safety, and the protection of a population as a whole, including all persons effectively

within a state‘s jurisdiction or dominion is arguably jus cogens, but somehow these are not

admissible in the language of necessity doctrines. These are not so much ―subjective rights‖ as

intrinsic to the definition of state (raison d’etre not raison d’etat).312

Of course, the recognition

that states have duties to protect and duties of care among their essential interests may not be a

The Principle of Non-derogability of Fundamental Rights Those are the non-derogable human

rights.� The Principle of Proportionality present in the three treaties (the derogatory measures must be

proportional to the threat) The Principle of Consistency 'that the right of a State to take measures of

derogations (in emergencies) is limited by the condition that the measures must not be inconsistent with

other obligations under international law.' Reflects, actually prefigures a requirement in the Draft Articles

added in Crawford‘s draft. What seems to be essentially aimed at here are, of course, the laws of war

(mainly the Geneva Conventions of 1949 and the 1977 Protocols). For the time being the practical

application seems rather limited. The Principle of 312

On the definitions and duties of states: Preamble UN Charter but also the Montevideo Convention

on the Rights and Duties of States (1933), First ILC Draft abandoned?

proper subject for a body of rules such as the Draft Articles, which should be assessed on their

own terms.

The potential contributions of the ILC‘s Draft Articles to the possibility of international

emergency governance are also worth noting. First among these is providing specific manners of

―taming‖ necessity doctrines and putting them at the service of international law. Also, I do not

wish to covey any nostalgia for either self-judgment by states, or the atavistic ―subjective right‖

of (to reverse Schwarzenberger‘s formulation) ―necessity in the guise of self-preservation‖ which

had little in common with legal doctrine. Among the various circumstances precluding

wrongfulness, only in self-defense is a subjective (inherent or self-judged right) still presumed,

and even here it is subject to consequences if abused.313

Since ―necessity‖ has always been a

concept that inhabits the border between the laws of war and peace, it should not be surprising

that a discourse of necessity persists not only in the emergency regimes of human rights and

humanitarian law, but also in many areas of the general international law. A more fundamental

framework, however, is provided by the law of treaty interpretation, and the law of state

responsibility.314

The Draft Articles, by setting out customary norms and general principles, give

form to general but constrained notions of derogability governing international relations as a

whole. Even in terms of the leges speciales we discuss below, this has implications for limitations

on the derogation of international obligations for states and treaties not covered human rights

treaties. They also help give form to a notion of non-derogability in general international law,

which would include the most important (jus cogens) and generalized (obligations erga omnes)

duties of all states and participants in the international system.

5. Jus Cogens and Obligations Erga Omnes: Non-Derogability in Form and Substance

(this section separate and develop; shares some ground with VCLT below)

The strongest movement against derogation (and perhaps self-judgment) is the concepts of jus

cogens) and generalized (obligations erga omnes). The jurisprudential articulation of these ideas

313

This particular aspect of self-defense— distinguishing it from the other doctrines— is not spelled

out in the Draft Articles, but it has been demonstrated and approved in state practice both before and after

the adoption of the UN Charter system. 314

On ―status mixtus,‖ see H.H.G. Post, Some Curiosities on the Sources of the Law of Armed

Conflict Conceived in a General International Legal Perspective, Netherlands Yearbook of International

Law Vol. XXV 83-117 (1994) at 93.

is the ICJ case the Barcelona Traction Case, which provides a positive law basis for the same.315

Naturalist genealogy was popularized by Hersch Lauterpacht in his article ―The Grotian

Tradition in International Law‖ which identified limitations on sovereignty in a right of

―humanitarian intervention.‖ 316

Crawford's report called for two additional limitations to the provision on state of necessity and

two restrictive effects were added. The first was a exclusion of the plea of necessity if a treaty

expressly or impliedly prohibited such a plea or if other sources of international law beyond

explicit treaty provisions could be invoked to exclude a necessity plea.317

final provision provides

that a State may not raise the plea if ―any obligation‖ precludes it. Professor Crawford‘s second

proposed change was to include a provision recognizing that a State cannot invoke necessity if its

breach of obligation impairs an essential interest of the State to which the obligation is owed or to

other States that might be injured by an invocation of the necessity plea. Instead specific interests

of third states, the adding of ―or of the international community as a whole‖ evoking obligations

erga omnes.318

In addition, the statement that a necessity plea may not serve to excuse a violation

of a peremptory norm (jus cogens) was placed in a separate article. In effect necessity could be

balanced against practically any interest in international law (which would at least ensure its

reviewability), and outright exclusion of state of necessity if it conflicts with jus cogens or

obligations erga omnes.319

Cutting across these areas of law, a more general notion of non-

derogability is emerging, represented by the category jus cogens, more controversial in content

than in principle.

Questions. Mr. Ago‘s report explained that necessity could not be invoked by a State to

legitimize conduct not in conformity with the international laws of war. It noted that the

wrongfulness of instances of aggression that are prohibited by jus cogens will not be

precluded by necessity. Likewise, any violation of a peremptory rule of international law would

315

Barcelona Traction, Light and Power Co., Ltd. (Belg. V. Spain), 1970 ICJ Rep. 3 (Judgment of

Feb. 5). Theodor Meron has also identified a pre-Grotian strain in Gentili and Suarez. The actual influence

of a naturalist philosophical tradition on international practice is speculative at best. 316

Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int‘l Law 1, 46 (1946). 317

broadening of 2(b), Report of the International Law Commission on the Work of Its Fifty-Third

Session, Int‘l L. Comm‘n, 53rd Sess., at 194, U.N. Doc. A/56/10 (2001). 318

to part 1(b), Report of the International Law Commission on the Work of Its Fifty-Third Session,

Int‘l L. Comm‘n, 53rd Sess., at 194, U.N. Doc. A/56/10 (2001). 319

ILC Article 25 requires that the invocation of necessity must not ―seriously impair an essential

interest of the State or States towards which the obligation exists, or of the international community as a

whole.‖ in Article 25 itself; the third, that a state may not invoke necessity in order to depart from a

peremptory norm, is actually in Article 26.

not become admissible by invoking necessity. This principle is reflected in Article 26 of the 2001

Articles, but has been the subject of little attention in case law. For example, the CMS tribunal

determined, without discussion, that Argentina‘s actions had not implicated any peremptory

norm. It is extraordinarily difficult to meet the requirements found in all of the affirmative

factors, and to do so without falling within any of the exceptions.

(What is significant is that these are both Twentieth century articulations of the same

ideas, simply articulated in alterative terms. The naturalist genealogy (of humanitarian

intervention) of ―community interest‖ as an aspect of just war doctrine is available, but the

positivist genealogy ties it to the language of state responsibility, which addresses the rights of

third states to claims against a state for ―breaching‖ obligations against an ―international

community as a whole.‖ The language here comes from Barcelona Traction.320

Whereas the

naturalist strain emphasizes the character of the violation, the positivist idea is the expansion of

the locus—to whom the obligation is owed. In a doctrinal and positivist sense, erga omnes is not

jus cogens [non-derogable norms], which is more clearly dependent on a naturalist hierarchy of

norms. It is simply a matter of scope and extent. (Let us turn again to the issue of emergency

governance). Familiar maneuvers from constitutional emergency governance, such as drawing the

line between ―exception and rule‖ and ―taming necessity‖ are also used in powerful ways in

international legal discourse. The ―taming of necessity‖ is a perfect example of an issue that can

be put in either foundational or functional terms. (More accurately, it is an issue where the use of

one discourse is constantly supplemented and endangered by the other.) The first is constructive

exclusion and the second is functional containment Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in

conformity with an obligation arising under a peremptory norm of general international law.

Article 26 Jus cogens aside, positivism or any theory of derivation or pedigree of legal power

must the pacta sunt servanda or an equivalent meta-norm must be assumed to exist as a non-

consensual norm. avoid circularity Positivism failed logical consistency and correspondence

with facts it was logically incoherent: state will cannot be the ultimate source of the law. Where

does the rule that says that will binds originate? ―grave breaches,‖ jus cogens, and non-derogable

rights. As we will discuss in the final chapter, the situation of ―state survival‖ contemplated in the

Nuclear Weapons case would be properly structured under the terms of this doctrine. As a whole,

320

See T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), p. 191-201.

however, reminded that the principle of salus populi could reasonably be read to include defense

of ―others‖ under the state‘s care, i.e. the ―population‖ as a whole under the jurisdiction or

dominion of the state. The concept of distress, alongside certain strands of self-defense raise

questions about the scope and application of state responsibility to its population, other states, and

nationals of other states, and the translation of concepts of duty potentially into jus cogens or erga

omnes.

B. General International Law of Treaty Interpretation

2. The General Law of Treaties

The Vienna Convention of the Law of Treaties (VCLT) is an important adjunct of all

substantive areas of international law, whether laws of war or peace.321

We have already seen in

application to self-defense, and it will also be relevant in the navigation of other leges speciales.

Closely related to these is the law of state responsibility is a body of secondary rules that

underpins and potentially ties together all of international law. Just as the Draft Articles on State

Responsibility list excuses for wrongful acts by states, the Vienna Convention on the Law of

Treaties provides a an account of customary doctrines to evade or defer contractual responsibility

due to special circumstances. Moreover, in the first written form, including definitions of jus

cogens and erga omnes On the international level, any agreement between or among states can

properly be described as a treaty. These instruments can be bilateral or multilateral and create

binding legal obligations for the states that become parties to any particular agreement. States are

required to comply with their treaty obligations under the principle pacta sunt servanda (―keep

your agreements‖), which is often identified as a jus cogens norm. While the unilateral abrogation

of a treaty without sufficient legal cause is a violation of international law, many recent treaties

include a termination or withdrawal322

clause permitting a party to end its obligations under

certain formal conditions. states can include clauses in their treaties allowing for and they can

terminate treaties by consent of all the parties.323

321

For example, as we will see below, the severability doctrine espoused by the HRC is not provided

for by the Vienna Convention. However, this is not to say that the HRC position cannot be reconciled with

the Vienna Convention. 322

Vienna Convention on the Law of Treaties, May 23, 1969, arts. 54-64, 1155 UNTS 331

[hereinafter VCLT]. 323

VCLT, , art. 54(b).

These customary canons of treaty practice impact the issue of complex derogation,

through (1) the principle of object and purpose as well as the (2) parallel existence of similar

norms in different sources of law, and thus the requirement that states derogate properly in more

than one context, 324

identical in treaty law and in customary international law are also

distinguishable by reference to the methods of interpretation and application and Thus, if that rule

parallels a rule of customary international law, two rules of the same content are subject to

separate treatment as regards the organs competent to verify their implementation, depending on

whether they are customary rules or treaty rules. finally (3) the formal definition of the concepts

―erga omnes‖ and ―jus cogens‖ In terms of resources for exceptional situations, parallel with

necessity, the VCLT accommodates canons of reservations, derogations, and even legal change

through reinterpretation.

The key hermeneutic for any kind of change in treaty obligations seems to be the ―object

and purpose‖ requirement, which is found throughout the VCLT. Modest reinterpretations of the

law treaties are possible the Vienna Convention on the Law of Treaties writes on the topic of

interpretation that: "A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of its object and

purpose."325

The ―object and purpose‖ requirement can also be found in the VCLT‘s provisions

on formal amendment326

and reservations, which are more modest than withdrawal (since they

sever one obligation from the whole) but more durable than ―derogations‖ (since they affect

324

(Nicaragua) 325

(article 31(1)) This is actually a compromise between three different theories of interpretation: (1)

a ―textual approach‖ is a restrictive interpretation which bases itself on the ―ordinary meaning‖ of the text,

the actual text has considerable weight. (2) A ―subjective‖ approach considers the idea behind the treaty,

treaties "in their context", what the writers intended when they wrote the text. A third approach bases itself

on interpretation ―in the light of its object and purpose,‖ i.e. the interpretation that best suits the goal of the

treaty, also called ―effective interpretation.‖ 326

Parties can agree to modify the treaty. a. Treaty must provide for such modification; b.

Modification proposed must not be incompatible with the treaty; c. Modification must not adversely affect

the rights of other parties to the treaty; and d. Other parties to the treaty must be given notice of the

agreement. (2) Amendment, but change requires consent by both parties. Protocols are one way of

amending. (Montreal Protocol). In multilateral treaty amendments, the change shall come into force when

it shall have been adopted by two-thirds of the parties and: a. All parties to the treaty have been notified of

any proposed amendment; b. All parties to a treaty have been given the opportunity to participate in the

negotiation of the amendment, as well as the right to become a party to the amendment; c. Each state that

becomes a party to an amendment is a party to the amended, and a party to the un-amended treaty vis-a-vis

any party to the treaty not bound by the amendment.

applicability beyond exceptional situations).327

Treaties themselves may provide derogation

clauses, which allow a state to suspend its obligations unilaterally under parts of the treaty. Here

a state is later able to limit the application of) a commitment without withdrawing from the

treaty.) The second half of this chapter, and Chapter Three will concern derogation in

multilateral human rights treaties, for example.

Withdrawal (in the case of a bilateral treaty, termination), usually upon some written

notice; withdraw from treaties where the explicit consent of both parties to such withdrawal is

lacking by asserting an implied right of withdrawal, a material breach, the supervening

impossibility of performance, or a fundamental change in circumstances.328

Withdrawal from a

treaty is, of course, the most extreme strategy to evade an international commitment. 329

It is to

prevent this situation that RUDS, limitation clauses, and derogation clauses have been put into

place: to accommodate difficulties that might otherwise lead to withdrawal. The doctrine of

―fundamental change in circumstances‖ (rebus sic stantibus), codified at Art. 62, a in situations

where the factual situation has changed in ways that are (1) fundamental, (2) unforeseen, (3) the

previous circumstances were an essential part of the treaty-making process; (4) where there have

been radical transformation in obligations of the parties; and (5) the obligations under the treaty

were not yet performed. The doctrine of fundamental change in circumstances (rebus sic

stantibus) is not a derogation clause in the manner of human rights treaties, for example. It s

applicability is wider than emergency situations, but also limited by more fundamental norms.

Also— and this is relevant in the context of multilateral treaty obligations— State may

exercises its right to terminate or suspend the operation of a treaty properly under the VCLT. But

if the two rules in question also exist as rules of customary international law, the failure of the

one State to apply the one rule does not justify the other State in declining to apply the other rule.

The VCLT does not contain separate exceptions for subject matters such as the operation of

treaties during war, or the specialized interpretation of different regimes, but these issues are

327

See however Martin Scheinin (cite) the Vienna Convention does not regulate the consequences of

incompatible reservations. the legal effects of reservations only apply to reservations established ―in

accordance with Article 19 . . .‖ ―Thus, if a reservation is inadmissible pursuant to Article 19 because of

incompatibility with the object and purpose of the treaty the legal consequences of reservations and

objections spelled out in Article 21 do not apply‖ 328

VCLT arts. 56, 60-62; see also Ian Sinclair, The Vienna Convention on the Law of Treaties 186-

96 (2d ed. 1984). 329

Vienna Convention on the Law of Treaties art. 54(a);

becoming more salient as a mater of theory and practice. A more specific regime for

apprehending treaty duties during armed conflict is being formulated by the ILC.

2. The Effect of Armed Conflict on Treaties

Sir Arnold McNair argued in 1930 that we need to ―free ourselves from the traditional

notion that the instrument known as the treaty is governed by a single set of rules, however

inadequate, and set ourselves to study the greatly differing legal character of the several kinds of

treaties and to frame rules appropriate to the character of each kind.‖330

The major division in

traditional international law has been between the ―the law of peace‖ (encompassing e.g.,

recognition, claims to territory, boundaries, intervention, treaties, the responsibility of states,

jurisdiction over land, sea, and air, and diplomatic and consular representation) and ―the laws of

war‖ (encompassing typically recourse to force, the conduct of hostilities, the effect of war upon

trade and treaties, the treatment of enemy aliens, and neutral rights and duties),331

and the most

sweeping theory of applicability (―primitive derogation‖) held that each realm was mutually

exclusive, and that during armed conflict matters of the law of peace were expected to be non-

justiciable.

As this dissertation describes in multiple contexts, this theory of primitive derogation has

given way to more complex theories of applicability and derogation, pointing to the possibility

that the formal and factual effects of emergency situations or armed conflicts on treaty practice—

including the plodding issues of formation, validity, interpretation and discharge of treaties—

could be treated within a legal framework. General international law— including the law of

treaties— has had to grapple with the modern permutations of the classical distinction between

the law of war and the law of peace. An area of study by the ILC is the ―effect of armed conflict

on treaties,‖ the implication being that certain peacetime treaties will routinely be suspended or

330

Arnold McNair, ‗The Functions and Differing Legal Character of Treaties‘ 11 BYIL (1930) 100,

at 106. 331

A basic duality is apparent in every form of emergency governance: inside/outside,

formalism/contingency, closure/rupture, or rule/exception. In jurisprudential terms, each of these

distinctions can be seen as a primal one, to which every question can be reduced. A further reduction is

simply presence/absence or ―on/off.‖ This is how primitive derogation is conceived. The specification of

lex specialis must be attended to. Complex derogation,‖ which contrasts with the ―primitive derogation‖

alternating ―law of peace‖/―law of war.‖ Instead, there are various strains, drawing on overlapping idioms

of ―necessity.‖ ―

terminated during armed conflict. This is another emerging context of derogation, where one lex

specialis might have an effect on other leges specialis.

A more specific regime for apprehending treaty duties during armed conflict is being

formulated by the ILC. categories of treaties described in as the logic of ―continue in operation

during an armed conflict‖ 332

In 2005 special rapporteur Prof. Ian Brownlie of the United

Kingdom the Commission considered the first report, which presented a set of draft articles,

which are scheduled for a complete revision in 2006. Draft article 1 lists the continued operation

of treaties on the basis of necessary implication from their object and purpose: ―

1. In the case of treaties the object and purpose of which involve the necessary

implication that they continue in operation during an armed conflict, the incidence

of an armed conflict will not as such inhibit their operation. 2. Treaties of this character

include the following: (a) Treaties expressly applicable in case of an armed conflict; (b)

Treaties declaring, creating, or regulating permanent rights or a permanent regime or

status; (c) Treaties of friendship, commerce and navigation and analogous agreements

concerning private rights; (d) Treaties for the protection of human rights; (e) Treaties

relating to the protection of the environment; (f) Treaties relating to international

watercourses and related installations and facilities; (g) Multilateral law-making treaties;

(h) Treaties relating to the settlement of disputes between States by peaceful means,

including resort to conciliation, mediation, arbitration and the International Court of

Justice; (i) Obligations arising under multilateral conventions relating to commercial

arbitration and the enforcement of awards; (j) Treaties relating to diplomatic relations; (k)

Treaties relating to consular relations.‖ ―.

In other words, the scope of the Draft Articles potentially includes the whole of the international

―laws of peace‖ and makes the necessary presumption that lex specialis provisions in treaty

regimes that only become operative only during armed conflicts, (e.g. The Hague and Geneva

Conventions333

would also, of course, continue. Beyond the question of scope, the Draft Articles

seek to codify the presumption that ―Ipso facto termination or suspension The outbreak of an

armed conflict does not ipso facto terminate or suspend the operation of treaties‖ either between

the parties to the conflict or with third parties. (Draft article 3). On the other hand, ―susceptibility

to termination or suspension of treaties‖ in case of an armed conflict is determined ―in accordance

with the intention of the parties at the time the treaty was concluded.‖ In accordance with articles

31 and 32 of the VCLT; This could be read as an ordinary application of the VCLT. (Article 4)

However, two other factors are considered: (1) the nature and extent of the armed conflict in

332

draft Article 7, paragraph 1, 333

See also 1985 the Institute on International Law, in article 6 of its resolution II of entitled ―[t]he

effects of armed conflicts on treaties

question, and (under the criteria of the Nuclear Weapons Advisory Opinion) the interpretation of

certain rules, such as environmental law and HRL ―the applicable lex specialis, namely, the law

applicable in armed conflict which is designed to regulate the conduct of hostilities.‖334

―ordinary

treaties‖ bilateral treaties as opposed to those with multilateral lawmaking fiction, human rights

or an arguable jus cogens or erga omnes character will not automatically assume a hierarchical

status over ―force majeure‖ ―change of circumstances‖ or the other canons of contract-making

and contract-termination that are codified in the VCLT.

Also there is a presumption in favor of the capacity of belligerents to continue to

conclude treaties of all kinds (not simply peace treaties, neutrality pacts and alliances) in ordinary

accordance with the Vienna Convention on the Law of Treaties. (article 5). The question of rebus

sic stantibus is not flagged in this article, but it is worth noting the corollary that a treaty

concluded during war would have a more tenuous status once ―peace breaks out.‖ Draft Article 7

asserts that eleven different categories of treaties continue in operation during armed conflict as a

―necessary implication‖ of their object and purpose, but even beyond there is a similar

presumption for all other categories of treaties.335

Other than not considering the possible

invalidation of certain treaties created during war, the Articles are uniformly programmatic in

favor of continuity between states of war and peace. The Draft Articles take an approach that is of

a piece with the VCLT. Substantively, under Article 7, few exceptions are evident; the default

position will be that all manner of treaties will be treated as valid, with possible exceptions of bi-

lateral (but not multilateral) treaties on friendship and commerce that would have been derogated

under any hostile encounter.

The categories of particular interest to the present study are (1) ―treaties expressly

applicable in case of armed conflict‖ (2) ―treaties creating or regulating ―permanent rights or a

permanent regime or status,‖ and (3) ―multilateral law-making treaties.‖ Degree of necessity…

the degree to which the treaty provision in question does or does not interfere with legitimate

requirements of armed conflict. These areas, which are dominated by multilateral treaties— will

likely be treated by the principles of lex specialis rather than much reference to the VCLT.

334

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996,

p. 226 at 240, para. 25. 335

Draft Article 7, categories are (1) treaties expressly applicable in case of armed conflict; (2)

treaties creating or regulating ―permanent rights or a permanent regime or status‖; (3) treaties of friendship,

commerce, and navigation; (4) human rights treaties; (5) environmental treaties; (6) treaties relating to

international watercourses; (7) ―multilateral law-making treaties‖; (8) treaties relating to peaceful

settlement of disputes; (9) commercial arbitration conventions; (10) treaties relating to diplomatic relations;

and (11) treaties relating to consular relations.

However question was or was not compatible with the ―reasonable conduct‖ treating the

proportionality of the breach, with facts about the conflict and intentions of the parties. As one

ILC member referred to them, they are a ―set of weak rebuttable presumptions.‖ (cite) Also no

attempt is made to repeat or incorporate the implications of any of the doctrines of necessity

which might intervene in an armed conflict that would reverse these presumptions. Neither are

any of these concepts discussed as possible indicia for ―the susceptibility to termination or

suspension of treaties.‖ The idea here (from the point of view of an ILC work-product) might

simply be that the Draft Articles on State Responsibility, in tandem with the VCLT, will

obviously provide the default framework, and that the regime-specific rules on derogability

(positive clause) in general international law will be set aside or interpreted in light of regime-

specific rules in IHL and HRL, and the only other general law understanding of non-derogability

(negative clause) is jus cogens, which creates the strongest presumption of all.

In the end, one might consider that the Draft Articles are too cautious in their description

of a variegated terrain of conflicts, and that mixed states of belligerency, state-supported violence,

and non-state actors will cause problems for the framework. However, more so than the

belligerents, these presumptions, on the margins, do effect the traditional position of neutrals, and

the articulation of their subjective rights and objective duties. Schwarzenberger pointed out as

early as 1943: ―third states are free to decide for themselves whether they wish to regulate their

relations with the contending states in accordance with the law of peace or the law of war.‖336

The

proper application of laws of peace and war has long been a subjective matter for each state to

decide. In a more comprehensive form, these standards may form the basis for a new ―law of

neutrality.‖

B. Regime-Based Emergency Governance: Protections Under

Human Rights Law and International Humanitarian Law

1. Introduction

Nearly every area of international law has, in its own development, attempted to provide

doctrinal closure to unstable areas of ―necessity.‖ Unlike the doctrines in general international

law, two regimes in particular— HRL and IHL— have attempted this on a substantive level, by

specifying and elaborating principles of self-preservation. This is particularly true in emergency

336

Schwarzenberger Jus Pacis ac Belli?‖ 37 AJIL (1943) p. 473 quoted in HHG Post at 93.

governance, providing standing rules, principles, standards, or institutions that remain effective

during a state of emergency and other mixed states of violence to regulate and moderate the

negative effects of the exercise of emergency powers, as well as to facilitate protection of the

population., the ―positive law‖ established by international treaties and parallel norms in

customary law. Here, I will introduce doctrines of necessity in the international humanitarian law

(IHL)of armed conflict and of treaty-based human rights law (HRL).

There are two major categories of the law of war that relate to emergency governance: jus

ad bellum (use of force) and jus in bello (conduct in armed conflict). Having already discussed

jus ad bellum in connection with self-defense, here I will focus below on the jus in bello, another

name for the international humanitarian law of armed conflict (IHL). IHL has been more

rigorously codified for a longer period than HRL. The positive law of the international

community (in some ways) begins with the Hague conventions of 1907, which have already

passed into customary international law, and the subsequent Geneva Conventions of 1949 enjoy

near-universal acceptance The treaty-based law of war has gained more acceptance than human

rights law (HRL), though less ―universal‖ in character. I will also touch upon a sub-category

which can be called ―jus post bello‖ (the law of occupation). IHL has a distinct history from

HRL, though it is often argued that the two are converging. 1949 Geneva Conventions and the

1977 Additional Protocols are multilateral treaties subject to the general law of treaties, including

the principle of reciprocity. Thus prima facie the Conventions and protocols only apply between

parties to a conflict which are mutually bound by their provisions, except to the extent that they

represent codifications of customary law or have become jus cogens.

In terms of human rights, the most important sources of international law remain treaty

law and, to a lesser extent, customary international law.337

Let us begin with treaty-based

obligations, which are often described as belonging to the ―human rights system.‖ the

International Covenant on Civil and Political Rights (ICCPR),338

the European Convention for the

Protection of Human Rights and Fundamental Freedoms (ECHR), and the American Convention

on Human Rights (ACHR) — as well as the rules of humanitarian law provide the core of what

Dominic McGoldrick has suggested might be a ―universal jurisprudence‖ of emergency

337

This is not to say that the other sources noted in Article 38 are not relevant to the international

law of human rights For example, there have been several important ICJ judgments directly or indirectly

concerned with upholding the universality of human rights such as, for example, the South West Africa

cases, the Barcelona Traction case, and the Reservations to the Genocide Convention case. 338

which has been ratified or acceded to by 151 States,

governance.339

These institutions aim at four functions: (1) they provide an international law

definition of ―emergency‖ under international law; (2) they accommodate derogation from certain

rights obligations; (3) they set forth certain rights that are non-derogable, even in a state of

emergency; 340 finally and probably least coherently (4) they state that the derogation must not be

inconsistent with other obligations under international law. At the level of international law, in

the event of a ―public emergency which threatens the life of the nation,‖ the International

Covenant on Civil and Political Rights allows a state party to ―derogate‖ from (or suspend) its

obligations to protect some human rights, including freedom from arbitrary arrest, the right to

bring habeas corpus proceedings, freedom of movement, and freedom from forced labor. In the

language of international law, rights are equivalent to international obligations. As such, ―A

derogation of a right is its complete or partial elimination as an international obligation.‖341

There are similar derogation clauses in the European Convention on Human Rights and

Fundamental Freedoms (ECHR) and the Inter-American Convention on Human Rights

(IACHR).342

339

Dominic McGoldrick ICON article p. 381. The reason behind the derogations permitted under

article 15 of the European Convention, and under article 4 of the United Nations‘ International Covenant on

Civil and Political Rights (ICCPR). 340 These non-derogable rights are: the right to life, recognition as a person before the

law, freedom of thought and religion, freedom from torture, freedom from slavery and

retroactive criminal laws and punishments, and a ban on imprisonment for the inability to

fulfill a contractual obligation. In practice, however, it is routinely alleged that non-

derogable rights have been derogated during states of emergency, indicating that the

disincentives of non-compliance with these obligations have not been fully internalized or

that enforcement mechanisms are incomplete. 341

Dominic McGoldrick, The Interface Between Public Emergency Powers and International Law, 383. 342 Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR)

states: “In time of public emergency which threatens the life of the nation and the existence

of which is officially proclaimed, the States Parties to the present Covenant may take

measures derogating from their obligations under the present Covenant to the extent strictly

required by the exigencies of the situation, provided that such measures are not inconsistent

with their other obligations under international law and do not involve discrimination solely

on the ground of race, colour, sex, language, religion or social origin.” Article 15(1) of the

European Convention for Human Rights (ECHR) states: “In time of war or other public

emergency threatening the life of the nation any High Contracting Party may take measures

derogating from its obligations under this Convention to the extent strictly required by the

exigencies of the situation provided that such measures are not inconsistent with its other

obligations under international law.” Article 27(1) of the Inter-American Convention on

Human Rights (IACHR) states: “In time of war, public danger, or other emergency that

threatens the independence or security of a State Party, it may take measures derogating

from its obligations under the present Convention to the extent and for the period of time

strictly required by the exigencies of the situation, provided that such measures are not

inconsistent with its other obligations under international law and do not involve

Foundational issues where the state has he positive duty derogating and overriding any

other duty to enforce any particular provision of its own law, including international law, where

doing so would be in conflict with such a broader conception of constitutional duty to self-

preservation.343

The point of the derogation clauses found in the instruments of human rights

regimes is to avoid a foundational confrontation between ―supreme interests‖ of a state‘s self-

preservation and the international interest in legality. Derogation provides a functional alternative

to foundational struggle between self-preservation and the preservation of legality. HRL in

particular combines analogical forms to other doctrines of necessity in international law, while

drawing procedural values from Roman republican institutions. These institutions aim at four

functions: (1) they provide an international law definition of ―emergency‖ under international

law; (2) they accommodate derogation from certain rights obligations; (3) they set forth certain

rights that are non-derogable, even in a state of emergency; 344 Finally and probably least

coherently (4) they state that the derogation must not be inconsistent with other obligations under

international law. The non-derogable measures are formalistic in a related sense: they place

certain standards entirely beyond contingent measures. Finally, the consistency requirement

begins to recognize the existence of a broader ―system‖ of international emergency governance.

1. Humanitarian Law Treaties in Armed Conflict ( Jus in Bello )

The positive law of the international community (in some ways) begins with the Hague

conventions of 1907, which have already passed into customary international law, and the

subsequent Geneva Conventions of 1949 enjoy near-universal acceptance The treaty-based law of

war has gained more acceptance than human rights law (HRL), though less ―universal‖ in

character. I will also touch upon a sub-category which can be called ―jus post bello‖ (the law of

occupation). IHL has a distinct history from HRL, though it is often argued that the two are

converging. 1949 Geneva Conventions and the 1977 Additional Protocols are multilateral treaties

subject to the general law of treaties, including the principle of reciprocity. Thus prima facie the

discrimination on the ground of race, colour, sex, language, religion or social origin.” 343

As with Lincoln, The first duty of the President of the United States is to preserve, protect, and

defend the nation, through every indispensable means. That duty is both a precondition to and an essential

aspect of the duty to preserve, protect, and defend the Constitution. 344 These non-derogable rights are: the right to life, recognition as a person before the

law, freedom of thought and religion, freedom from torture, freedom from slavery and

retroactive criminal laws and punishments, and a ban on imprisonment for the inability to

fulfill a contractual obligation. In practice, however, it is routinely alleged that non-

derogable rights have been derogated during states of emergency, indicating that the

disincentives of non-compliance with these obligations have not been fully internalized or

that enforcement mechanisms are incomplete.

Conventions and protocols only apply between parties to a conflict which are mutually bound by

their provisions, except to the extent that they represent codifications of customary law or have

become jus cogens. However, IHL maintains strong traditions of reciprocity, which not only

regulates particular conflicts but encourages development of binding norms.

The enigmatic value at the center of IHL is called ―military necessity.‖ It is a concept

that is viewed differently in legal and strategic idioms, and causes confusion because in IHL the

two idioms are never separate. As a transitional concept between the two spheres, it can be

understood as the principle that even under the legal framework of IHL, caveat in the laws of war

military success is a legitimate consideration.345

In the familiar imperative form, it means for

lawyers that the law encompasses military requirements, and for strategists that the imperative of

winning is recognized by law. The balance that is struck here is due to a belief or willful delusion

that these statements are fundamentally commensurable.

At its most stable, military necessity shifts subtly between formalism and contingency; in

more extreme terms, it oscillates violently between doctrinal closure and rupture. In terms of the

more stable antinomy, it is managed by divisions of labor, vocation, and perspective. For the

international lawyer, IHL as a whole, sometimes guided by the principle of ―humanity‖ provides

the interpretive meta-rule under which specific rules are read. For the military commander, or the

politician behind him, the provisions of IHL intrinsically limited by military requirements (―on

the ground‖ contingencies‖). Over the longer term, military necessity has permitted less

compromise. whenever military necessity exists, laws of war would cease to apply. Traditional

military necessity (Kriegsrason) allowed a broad and undefined standard for combatants to justify

any virtually any non-compliance the applicable rules of armed conflict. Under this tradition of

necessity, the invocation of necessity would simply vacate the law. That this amounted to a

subjective privilege and was shared widely in military culture concerned lawyers; if the laws of

war could be set aside so easily made them practically meaningless. Thus over time, Kriegsrason

has been tamed by the codifications of Geneva and the Hague; it has been relativized in several

stages. First, it has been tamed as one among many values, assessed against the background

acceptance of the protective norms of IHL, or balanced against the specific the principles of

345

Françoise Hampson, Military Necessity in Roy Gutman and David Rieff, Crimes of War: What

the Public should Know at 251 (New York: W.W. Norton and Co. 1999). ―military forces in planning

military actions are permitted to take into account the practical requirements of a military situation at any

given moment and the imperatives of winning.‖

humanity and chivalry.346

Some articulations of the principle of proportionality cast it as a

balance between military necessity and humanity or chivalry. Finally it has been assimilated to an

insubstantial status within the other norms, the claim being that IHL is a derogation from the law,

modifying the laws according to military necessity. Therefore it cannot be recognized or plead to

depart from the protective norms of IHL, or in a stronger form, it is not really a value but a way to

explain the deviations of the other protective principles. This is not merely a lawyer‘s definition

either. A ―Modern‖ View, 1956 US Army Field manual, Law of Land Warfare is that IHL is

flexible enough, and military necessity is included in the fabric of the regime, requiring no further

allowances for necessity. :

―the prohibitory effect of the law of war is not minimized by 'military necessity' which as

been defined as that principle which justifies those measures not forbidden by

international law which are indispensable for securing the complete submission of the

enemy as soon as possible. Military necessity has been generally rejected as a defense

for acts forbidden by the customary and conventional law of war inasmuch as the latter

have been developed and framed with consideration for the concept of military

necessity.‖

This is the majority view among writers on IHL. The modern view is to argue that this doctrine

should not be interpreted broadly and that military necessity cannot justify the violation of a

positive rule. Yet it is possible in political and strategic contexts to discuss necessity as absolute

grounds to derogate all other considerations. The compromise is to discuss military necessity not

as a closure or rupture, but as ―relatively‖ formal or contingent. The term most often used for this

is ―flexibility,‖ and in the same pragmatic manner derogation of rights and treaty reservations

preserve the formal framework, ―flexibility‖ is seen as in the nature of the regime.347

Yet, like

these other areas, this flexibility is secured against the conspicuous existence of a smaller number

of absolute constraints: here grave breaches, crimes against humanity and other obligations

approximating non-derogable rights or jus cogens. In addition, some norms are shadowed by

346

There are three constraints upon the free exercise of military necessity. First, any attack must be

intended and tend toward the military defeat of the enemy; attacks not so intended cannot be justified by

military necessity because they would have no military purpose. Second, even an attack aimed at the

military weakening of the enemy must not cause harm to civilians or civilian objects that is excessive in

relation to the concrete and direct military advantage anticipated. Third, military necessity cannot justify

violation of the other rules of IHL. 347

According to McAubrey: ―IHL is not intended to be subject to derogations or exceptions, but

―pressure of reality preclude any such simplicity.‖ Need some room for flexibility (workable in exigencies

of real conflict, though "never be a gateway to inhumanity.‖ Hilaire McAubrey, International Humanitarian

Law: The Regulation of Armed Conflicts (Brookfield, VT: Dartmouth Publishing Co). 1990. (187)

criminal sanctions, others are given the burden of double-strength imperatives, such as

―imperative military necessity.‖348

In addition, necessity need cannot be invoked as a reason to preclude wrongfulness if the primary

obligation concerned does not allow for that possibility. The conventions relating to the law of

armed conflicts were established to apply in situations in which essential interests were in grave

peril. Given that international humanitarian law was conceived to be applied in particularly

serious emergency situations, the norms it sets down already strike a balance between the

principle of humanity and military necessity. It would therefore be contrary to the very spirit of

the law of war to require that military necessity be taken into account again when those norms are

applied. There can therefore be no derogation unless the rule in question expressly provides

otherwise.

The hope is that by taming the laws of war, war itself will be tamed, and that the

advantages of reciprocity will effectively ―humanize‖ war. On reciprocity as an engine of

humanization we can see, Henfield's Case, a decision rendered in 1793, ―On states as well as

individuals the duties of humanity are strictly incumbent; what each is obliged to perform for

others, from others it is entitled to receive. Hence the advantages as well as the duty of

humanity.‖349

One view then has been to make ―necessity‖ meaningless in the context of IHL;

simply assuming it is there in the fact of war, and that humanitarian consideration will guide IHL.

This view in turn corrects in turn the atavistic view of Kriegsrason, which is relegated to private

platoon mutterings and high level political rhetoric.

However, a third point is worth making here. Lawyers have accomplished little by

trading ―necessity‖ for ―flexibility.‖ Even worse, on the doctrine of military necessity by

abandoning it to political interpretation, from the point of view of legal development, this may

have given up the opportunity to develop an actually constraining and protective notion of

necessity. Such a discourse does not ―tame‖ military necessity not tamed but cuts it off from legal

consideration, left to political-strategic invocations. According to Judith Gardam:

Nowadays, military necessity is often characterized as in conflict with humanitarian

values rather than as a general limitation on the resort to violence in armed conflict.

Consequently, it has never really developed its potential, and arguably has no substantive

content, other than where it is incorporated specifically in the provisions of IHL. In

348

as in the Fourth Geneva Convention, which restricts the internment of protected persons and the

transfer or deportation from an area of occupied territory; Additional Protocol I, which would normally

prohibit a scorched-earth policy but which allows it in exceptional circumstances in national territory; and

Additional Protocol II, which normally prohibits the internal displacement of the civilian population. 349

Henfield's Case, a decision rendered in 1793, Judge Wilson

the words of one commentator, although ‗military necessity is formally acknowledged

as one of the primary foundations of the modern law of war‘ (similarly to the

Martens Clause), its limiting role has been largely forgotten.350

What Gardam may be eluding to is a sense of necessity as a limitation on reckless or irrelevant

behavior, not opposed to but tied to chivalry and humanity. This survives in ideas of legitimate

objectives, and the level of violence necessary and appropriate. The loss of a potentially

meaningful legal doctrine here (supplanted by proportionality, flexibility, and other laissez faire

bit feel-good discourses) is reminiscent of the overcorrection of necessity/self-preservation by

ridding the doctrine of its substantive content, rather than its vacant force.

[Proportionality here, Topics below: develop or drop’]

Weaponization of Law: Legal -Strategic Continuum in IHL

[Develop or Drop] Necessity operates on the indistinction or the mutual relation between

law and strategy. In the realm of emergency, the distinction between the two becomes relatively

thin. Bobbitt‘s book The Shield of Achilles demonstrates that at certain times, strategic

―imperatives‖ have generated legal regimes. A point that has been overlooked, however, is the

use of law as a strategic instrument. This is what might be called, not so much the

instrumentalization, but the ―weaponization‖ of law. Legal measures exist in a common economy

of violence and counter-violence. ―lawfare‖ or the weaponization of law consider in particular the

interpenetration of the theatre of war with the hall of justice. Whenever it is apprehended in

juridical language, ―emergency‖ marks a space where certain conceptual distinctions tend to

break down and the terms of certain obdurate discourses begin to slip and find resonance in

others. We are accustomed today to hear the language and instruments of war and those of law

bleed between each other. Military generals sometimes speak of ―lawfare‖ to refer to situations

where the law provides swords and shields for the military tactician. Put another way,

―weaponization of law.‖ Consider the measures available to the Security Council under Articles

41 and 43 of the UN Charter; how different are ―smart sanctions‖ from ―smart bombs‖? Are these

―targeted‖ measures a legal instruments or uses of force, which continues the other ―by other

means‖? Does it matter that the ―proportionality‖ of one is calibrated by military engineers and

the other by transnational norm entrepreneurs? Asymmetrical: done by informed soldiers it is

called strategy, if non perfidy.

350

Judith Gardam. Necessity, Proportionality and the Use of Force by States At 10, quoting B.

Carnahan, ‗Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military

Necessity‘ (1998) 92 AJIL 213 at 230.

Every principle of humanitarian law— the principles of distinction, neutrality, necessity,

and proportionality, the designations of non-militarized zones and non-combatants— is

potentially available as weapons as well as legal concepts. IHL is not intended to be subject to

derogations or exceptions, but ―pressure of reality preclude any such simplicity.‖ It is not always

clear when language has been ―weaponized‖ or strategy has been ―juridified.‖ The concepts of

necessity and proportionality, in particular, pose a chicken-egg problem, an uncertain origin in

law and war; as far as we can remember, however, these were created on the battlefield before

they became restraining concepts. We have certainly seen their movement between the two fields.

As Judith Gardam has recently demonstrated in more detail, necessity and proportionality are

concepts that over the years have had differing applications in international law in the context of

both pacific and non-pacific actions of States. I mentioned proportionality and necessity in two

contexts(….)

[Link to Lex Specialis Discussion]

At this more concrete level, we see several instances of formalism-within-contingency and

contingency-within-formalism, but this is never the positing of an extra-juridical standard of

necessity that derogates from all human rights law evades any legal doctrine. Human rights

bodies also resist any suggestion that if humanitarian law is a valid lex specialis, that human

rights law is derogated tout court. This will be taken up in the next chapter, concerning

overlapping derogation regimes.

2. Humanitarian Law Treaties in Occupation (Jus “Post Bello”)

We will not explore in depth the varieties of occupation, state-building and peace

operations, except to note the extraordinary number of overlapping norms, which though formally

applicable are honored in the breach. In some respects, the Geneva Conventions also provide for

the kinds of rights owed by a state-party of the ICCPR who has effective control over a territory.

This is the law of occupation: what I call ―jus post bello.‖351

The principles of occupation law are

covered by Articles 71-76 of the Fourth Geneva Convention, as well as Articles 78 and 126. The

rule of law in the context of peace operations incorporates international and municipal legal

obligations and standards applicable to all the parties involved in the peace process. As a

principle it includes the application of The Charter of the United Nations, international

351

Benvenisti occupation Korhonen Post-conflict governance.

humanitarian law, human rights law, military law, criminal law and procedure, civil law and

procedure, and constitutional law. It also incorporates principles that govern civil and criminal

accountability for the actions rule of law includes standards by which national institutions of the

host country may be held accountable for their failure to comply with universal legal principles

and rules. The rule of law is also the framework which governs the relationship between

intervening forces and the local community;352

We could observe that in addition to treaty-based

obligations, there are norms from customary international law, including ―emergent rules (or

principles) of customary international law‖ under the ICJ‘s North Sea Continental Shelf cases.353

Post conflict situations are covered by human rights law for states exercising ―effective control of

the relevant territory and its inhabitants abroad as a consequence of military occupation‖; this is

an issue taken up in the next chapter.

C. Universal and Regional Human Rights Law

1. The Derogation Clauses: Treaties in Human Rights Law (HRL)

International Human Rights law (HRL) is a subset of international law that deals with the

obligations of States with respect to the observance and guarantee of fundamental rights of

individuals. Treaty based regimes including treaty-based obligations, and the jurisprudence of

specialized tribunals. HRL, in contradistinction to ―general international law‖ makes claims to

shifting the boundaries of legal personality in international law. In its classical conception, states,

not individuals, are the ―subjects‖ of international law, although individuals are the ―objects‖ (or

beneficiaries) and under its terms individuals should have only as access to remedies evolve (as in

international criminal law) can it be said that revolution in legal personality.

Often it is in the doctrine of sources that HRL is rendered translatable to the traditional

concerns of international law. It is often implemented through domestic legislation, including

constitutional law, but even leaving aside interaction with constitutional systems it overlaps with

humanitarian law, international criminal law, law of state responsibility, refugee law, and the law

352

Bruce Oswald, The Rule of Law on Peace Operations: A Cornerstone of Effective Peace Operations

U of Melbourne Legal Studies Research Paper No. 177 International Peacekeeping, Vol. 8, 2002. 353

A menu of these principles could include: (1) the principle of exceptional threat, (2) the principle

of non-derogation of fundamental rights, (3) the principle of proportionality, (4) the principle of

declaration, (5) the principle of notification, (6) the principle of non-discrimination, and (7) the principle of

consistency. A case would then be made for how and why we would construe any of these principles as

general principles of customary international law. The pragmatic reason behind extending any such

principles could only be to bind the behavior of actors who have not stated their pre-commitments and

preferences, or not stated the ―right‖ ones.

of the use of force. The derogation system is a part of human rights law, particularly treaty law,

and it is therefore also governed by law of treaty interpretation. Within the ambit of human rights

law, there are separate treaty bodies, covering different geographical regions, called human rights

courts or commissions that deal with human rights obligations of states. Although this is not

meant to be a hierarchical list,354

in terms of human rights, the most important sources of

international law remain treaty law and, to a lesser extent, customary international law. United

Nations Universal Declaration of Human Rights355

(UDHR) articles 3 (right to life, liberty and

security of person) and 14 (right to seek asylum except for non-political crimes). three

international human rights treaties i.e. the European Convention on Human Rights and

Fundamental Freedoms (ECHR) which was signed in 1950 and came into force in 1953, the

International Covenant on Civil and Political Rights (ICCPR) which was signed in 1966 and

came into force in 1976 and the American Convention on Human Rights (ACHR) which was

signed in 1969 and came into force in 1978.356

Here we will take up the derogation clauses in their own terms. Later we will relate them

to international humanitarian law (IHL) and general international law (GIL). International human

rights law is embodied in the sources of general international law: treaties, other international

agreements, customary law including jus cogens or peremptory norms, and soft law such as

354

The Court's function as specified in Article 38(1) of the Statute of ICJ, is to decide particular

disputes before it, not to elaborate general theories of law to decide questions that are not at issue Instead,

such rules are formulated by international and national judges, organs of States and international

organizations, or in scholarly writings through induction on the basis of State practice, of enunciated legal

opinions, or through comparison of domestic law. The sources of international law certainly include

―formal sources,‖ but they also include custom and general principles, which are bound to equitable notions

of estoppel, acquiescence, and good faith. In contrast to international treaties, both international customary

law and general principles of law as defined in Article 38(1)(c) of the Statute of the ICJ, are open-textured. 355

Universal Declaration of Human Rights Article 3 Everyone has the right to life, liberty and

security of person. Article 14 (1): Everyone has the right to seek and to enjoy in other countries asylum

from persecution. 14(2): This right may not be invoked in the case of prosecutions genuinely arising from

non-political crimes or from acts contrary to the purposes and principles of the United Nations. 356

The explanatory Comment states:

"Article 59 of the Statute of the International Court of Justice provides: ‗The decision of the Court has

no binding force except between the parties and in respect of that particular case.‘ That provision

reflects the traditional view that there is no stare decisis in international law. In fact, in the few

permanent courts, such as the International Court of Justice, the Court of Justice of the European

Communities, and the European Court of Human Rights, there is considerable attention to past

decisions.... ...In any event, to the extent that decisions of international tribunals adjudicate questions

of international law, they are persuasive evidence of what the law is. The judgments and opinions of

the International Court of Justice are accorded great weight. Judgments and opinions of international

tribunals generally are accorded more weight than those of domestic courts, since the former are less

likely to reflect a particular national interest or bias, but the views of national courts, too, generally

have the weight due to bodies of presumed independence, competence, impartiality, and authority."

General Assembly resolutions, declarations, etc. At best, these "laws" are considered to be "soft,"

which means that they are merely "advisory" and "one day, might mature into customary

international law."357

Wirth, supra note 150, at 601 (adopting the softness definition articulated in

Nonetheless (as we will discuss in the section on ―Coherence‖), it often stands in an uneasy

relationship with the mainstream or ―general international law.‖

In human rights law, there are a range of techniques to concretize ―necessity‖ that are patterned

on and resemble the constitutional theories of emergency governance. The structure of power in

constitutional emergency powers was one of a latent Leviathan, a factually supreme authority,

asserting factual power and operating temporarily outside entrenched constitutional constraints.

There are also a range of efforts to concretize ―necessity‖ in the context of constitutional theory.

Here too doctrines of ―necessity‖ seem to tame the ―vacant imperative‖ of necessity. I argue

throughout that the human rights derogation regimes tend to prefer formalism over contingency at

every turn.

At the heart of the three treaty regimes on emergency governance is the concept of

derogation, which it seems, cannot be reduced to one of Alan Gerwith‘s famous four possible

outcomes of rights (that they can be fulfilled, infringed, violated, or overridden). In analytical

terms, derogation clauses are a species of secondary rules. In H.L.A. Hart‘s terms, secondary

rules are ―parasitic‖ on primary rules, whose function is to command or forbid. While primary

rules state particular rights and obligations, secondary rules act only to modify or determine the

incidence of primary rules. The derogation clause, as a secondary rule, is thought to provide

additional guidance on how to apply a primary rule to a case at hand. Derogation is a kind of

exception, but every provision for an exception is different; each is given form by its location and

expression in a particular institutional framework. For example, states have other distinctive

strategies to evade international commitments, including reservations and understandings and

even ultimate withdrawal from treaties. In contrast to any of these, the reason for the derogation

clause in each of the three human rights treaties is to specify the relation of all enumerated rights

to contingent factual emergencies.

It would be too imprecise to say that derogation operates through permission and

allowance. Whenever rules appear to have a ―permissive form,‖ they end up implying obligations

and prohibitions. Perhaps we should think of the function of the derogation clause instead as one

of ―accommodation,‖ not simply to authorize or permit derogation, but in some sense to ―make it

357

Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, 12 Mich. J. Int'l L.

420, 420-21 (1991)).

fit.‖ From the point of view of international institutions, they fulfill a second sense of

accommodation, the act of sheltering states during troubled times, and also clarifying some

essential ―house rules.‖ The clause includes both the accommodation of derogation under

particular circumstances regarding particular primary rules and a stern restatement of prohibition

of derogation under any circumstances regarding other primary rules. In theory, the rules

themselves are not changed. It would be a severe mistake to regard the derogation clause as a

statement of primary rules, a catalogue of those rights that are active or inactive during an

emergency. Instead it is an interpretative rule that demands application on the facts, and only in

an interpretative sense, the rules are qualified (their secondary implications or limitations are

fleshed out) in the case of the derogable rights; or they are intensified (they are shown to have no

additional implications or limitations) in the case of non-derogable rights. The interplay of

derogable and non-derogable rights should be considered at once as part and parcel of a strategy

of accommodation and prohibition. Non-derogable rights are not a tertiary modification of these

secondary rules but interpretative secondary rules that set the permissible incidence of derogation

at zero. In some ways, the very practice of derogation guards the status and coherence of

international law. However, one might appropriately ask whether the status and legitimacy of

certain international rules gains at the high cost of their efficacy. In terms of status, derogation is

one way that facts on the ground will not change normative and positive content of international

law. The derogation system recontextualizes state behavior that is otherwise fundamentally at

odds with international law into formally ―compliant‖ behavior.

Derogation system has some consistent characteristics. In every account of the derogation

system, the threshold requirement is (1) that an exceptional threat to the life of the nation must

exist. This is a determination made by the emergency government, but it can be verified and

validated by international organizations. This requirement is followed by at least three procedural

requirements, which are reminiscent of the republican tradition of emergency: (2) an official

proclamation of a state of emergency must be made; (3) A notification to other states and/or

relevant treaty-monitoring body of the measures taken; (4) the derogations must be temporary.

Beyond these procedural requirements, there are also four relatively substantive requirements: (1)

A reasonable proportionality between the means employed and the end to be realized must exist;

measures derogating from international standards must be limited to ―the extent strictly required

by the exigencies of the situation.‖ (2) Measures taken to derogate must not be discriminatory.

(3) Certain standards remain non-derogable. A final substantive principle, that also aims at the

coherence of the international emergency governance and international law, and (4) consistency

with other obligations under international law.

It would not be correct to assume, as some commentators have, that the enumerated non-

derogable rights in each of the treaties, or even the four that they all have in common, are jus

cogens by definition. Nor are they some kind of essential ―core‖ rights or obligations erga omnes,

owed to the entire international community and binding regardless of consent. The derogation

clause is not the place to articulate a hierarchy of human rights. If there are values expressed by

the derogation clauses, they are not the hierarchy of human rights, or an expression of the deepest

values of mankind, but instead the residue of traditional ―republican‖ procedural values that have

provided the model of emergency governance since the Roman Republic, ensuring that

derogations should be: (1) exceptional and temporary in nature, (2) threaten life of the nation, and

(3) a state of emergency should be officially proclaimed. These are characteristic of the

republican tradition of emergency regulation. An additional republican aspect underlying the

structure of the derogation system is the thrust to make states publicly articulate their reasons for

derogation. Of course, certain strategic and political implications tend to flow from this

procedural model. As a whole, derogation clauses are both (1) sites for political interaction where

states and international institutions signal to each other and (2) formalistic, rule-guided

frameworks to suspend obligations within the four corners of a treaty.

It is against this background of a concurrent duty to protect that derogability should be

understood.358

The right of states parties to derogate from certain obligations in states of

358

(note 58 McG) In the case Delgado Paez v. Colombia, the Human Rights Committee considered

the question of States‘ duty to protect persons under their jurisdiction:

Although in the [International Covenant on Civil and Political Rights], the only reference to the

right of security of person is to be found in article 9, there is no evidence that [this] was intended to

narrow the concept of the right to security only to situations of formal deprivation of liberty…. States

parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that,

as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just

because he or she is not arrested or otherwise detained. States parties are under an obligation to take

reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a

State party to ignore threats to the personal security of non-detained persons within its

jurisdiction would render totally ineffective the guarantees of the Covenant.

In the case Kiliç v. Turkey� (2000), the European Court of Human Rights refers to a ―positive

obligation‖ to ―take appropriate steps to safeguard the lives of those within its jurisdiction.... This involves

a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to

deter the commission of offences against the person, backed up by law-enforcement machinery for the

prevention, suppression and punishment of breaches of such provisions.‖ In Kaya v. Turkey, a decision

handed down the same day, the court said ―It is not normally considered under the ambit of emergency

governance that obligations extend under the so-called Third Party Effect for the actions or defaults of

private individuals and groups, including private contractors engaged to perform public functions. ―It is not

emergency, the ultimate objective for the state must be to return to normalcy as soon as possible

in conformity with law. Foundational issues where the state has he positive duty derogating and

overriding any other duty to enforce any particular provision of its own law, including

international law, where doing so would be in conflict with such a broader conception of

constitutional duty to self-preservation.359

The point of the derogation clauses found in the

instruments of human rights regimes is to avoid a foundational confrontation between ―supreme

interests‖ of a state‘s self-preservation and the international interest in legality. Derogation

provides a functional alternative to foundational struggle between self-preservation and the

preservation of legality

At the heart of the three treaty regimes on emergency governance is the concept of

derogation.360

The term derogation (from ―derogare‖) can be traced to the third century in the

work of the Roman juris-consult Modestinus, and was later transposed to canon law, civil law,

and international law, as ―the partial revocation of a law, as opposed to abrogation or the total

abolition of a law.‖ In general, as I use it here, derogation is best defined as ―the partial repeal or

abolishing of a law, as by a subsequent act which limits its scope or impairs its utility and

therefore sufficient for State Parties merely to refrain from legislation or entering into treaties incompatible

with such obligations.‖ Jus Cogens Human Rights obligations in particular, for example, in relation to the

right to life under Article 6 of the 1966 Covenant imposes ―...a positive obligation on the authorities to take

preventive operational measures to protect an individual or individuals whose life is at risk from the

criminal acts of another individual...‖ Similarly, according to the Inter-American Court of Human Rights‘

Neira Alegría Case (1995):

[W]ithout question, the State has the right and duty to guarantee its security. It is also

indisputable that all societies suffer some deficiencies in their legal orders. However,

regardless of the seriousness of certain actions and the culpability of the perpetrators of certain

crimes, the power of the State is not unlimited, nor may the State resort to any means to attain

ts ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as

the basis for any State action.

Another Inter-American System case Asencios Lindo et al. (1999) indicated ―The State‘s national

and international obligation to confront individuals or groups who use violent methods to create terror

among the populace, and to investigate, try, and punish those who commit such acts means that it must

punish all the guilty, but only the guilty. The State must function within the rule of law….‖ 359

As with Lincoln, The first duty of the President of the United States is to preserve, protect, and

defend the nation, through every indispensable means. That duty is both a precondition to and an essential

aspect of the duty to preserve, protect, and defend the Constitution. 360

David Makinson, ―In Memoram Carlos Eduardo Alchourrón,‖ Nordic Journal of Philosophical

Logic 1, no. 1 (1996): 3-10.The term derogation (―derogare‖) first was introduced by the third century

Roman jurisconsult Modestinus and later transposed to canon law, civil law, and international law, as ―the

partial revocation of a law, as opposed to abrogation or the total abolition of a law. Catholic Encyclopedia

which was published between 1907 and 1914, and is featured on the New Advent website

(www.newadvent.org/cathen).‖ Modestinus Herennius works are preserved in the Corpus Juris Civilis. The

Columbia Encyclopedia, Sixth Edition (2003).

force.‖361

Following the literature on state of exception, derogation signifies a temporary

(zeitliche) abrogation (Aufhebung) of a legal rule, in not the rule of law itself. It goes then to the

applicability of a norm in a particular case and not its validity or its status in relation to other

norms. The term derogation is not a consistent and precise legal term. Rather, it is a concept that

shifts with context. This can cause confusion in the language of international law, where rights

are closely identified with international obligations, but are not identical. As such, the derogation

(the temporary or partial repeal) of a right is often also the derogation (temporary suspension)

from an international obligation.362

Also, the term derogation is maintained whether or not a

suspension is proper. For this reason, derogation cannot be reduced to just one of Alan Gerwith‘s

famous four possible applications of rights: that they can be fulfilled, infringed, violated, or

overridden.363

Depending on the context, a derogation of a right can be seen as the infringement,

violation, overriding, or even the partial fulfillment of a right or obligation. In terms of formal

attempts at international emergency governance, the term derogation is best confined to its use in

the ―derogation clause‖ that is common in the three human rights treaty regimes and any

functionally similar clauses in other self-contained regimes.

In contrast to any of these other exceptions, the derogation clause in each of the three

human rights treaties is used to specify the relation of all enumerated rights to contingent factual

emergencies. Derogation is not a radical and antinomic ―outside‖ to the law (as in Schmitt where

―the exception‖ evacuates legality) but rather a complex operation within the law, a relation

between rules. In terms of the positivism of H.L.A. Hart and Hans Kelsen, to derogate a particular

rule is always to follow a different norm in a law-governed manner. In these terms, derogation

clauses can be described as ―secondary rules‖ According to Hart, secondary rules are ―parasitic‖

on primary rules. The function of primary rules is to command or forbid. Secondary rules, such as

―rules of change,‖ modify or determine the incidence of primary rules. The derogation clause, as

a secondary rule, provides additional guidance on how to apply a primary rule to a case at hand.

Here derogation is conceived as a kind of navigational tool in the situation of a conflict of norms.

361

McGoldrick, The Interface Between Public Emergency Powers and International Law, 383. 362

Incidentally, as a matter of grammatical usage, it is unclear whether we should say rights are

―derogated‖ or ―derogated from.‖ It seems that rights are derogated, but commitments are derogated from.

This ambiguity issues from separate meanings of the term and leads to confusion still: If a state derogates a

right, it is curtailing or depriving a person of a part of his rights; however, if a state formally derogates from

an obligation to protect that person‘s rights, it may be derogating from (or complying with) a different

obligation. See Oxford English Dictionary, 2nd Ed. 363

Alan Gewirth, ―Are There Any Absolute Rights?,‖ in Theories of Rights, ed. Jeremy Waldron

(Oxford [Oxfordshire]: Oxford University Press, 1984), 77, 87-88.

Kelsen pointed out that a conflict of norms occurs when two primary rules or norms are valid, in

force,364

and applicable in a certain situation. If in obeying or applying one norm, the other one is

―necessarily or possibly violated,‖ the application of a secondary, derogation norm is required, to

resolve conflicts among primary norms. In the case of international human rights law, the

derogation clause suggests in a particular case which primary norm will be applied and which

norm will be suspended. While the suitability of legal positivism is debatable at the international

level, this view of conflict of laws certainly sets a model for how international lawyers might

think about fragmentation.365

We will see later that this operation multiplies upon itself when two

derogation norms are in effect.

Kelsen also points out that derogation seems to govern through permission.366

However

whenever rules appear to have a ―permissive‖ form, however, they end up implying certain

obligations and prohibitions. At the international level, this ―permission‖ is an ambiguous

political maneuver. The derogation clause provides a possible pretext for a state‘s non-

compliance with human rights norms, while asserting international competence to assess

emergency conditions. Perhaps we should think of the function of the derogation clause instead as

one of ―accommodation,‖ not simply to authorize or permit derogation, but in some sense to

―make it fit.‖367

From the point of view of international institutions, they fulfill a second sense of

accommodation, the act of sheltering states during troubled times, and also clarifying some

essential ―house rules.‖ international institutions assume the posture of granting or denying states

the cover of legitimacy. The clause includes both the accommodation of derogation under

particular circumstances regarding particular primary rules and a stern restatement of prohibition

of derogation under any circumstances regarding other primary rules. In theory, the rules

themselves are not changed. It would be a severe mistake to regard the derogation clause as a

statement of primary rules, a catalogue of those rights that are active or inactive during an

emergency. Instead it is an interpretative rule that demands application on the facts, and only in

364

Hans Kelsen, ―Derogation,‖ in Essays in Jurisprudence in Honor of Roscoe Pound, ed. R.A.

Newman (Indianapolis, IN, American Society of Legal History 1962), 339-361. 365

Jan Mus, Conflicts Between Treaties in International Law, 45 Netherlands International Law

Review 208, 209, 217-18 (1998). 366

Hans Kelsen, ‗Derogation‘ in Essays in Jurisprudence in Honor of Roscoe Pound, 339-361. 367

Oxford English Dictionary, 2nd Edition (―Accommodate: of fitting, adapting, adjusting, suiting;

adaptation, adjustment. conformity to circumstance; conciliatory disposition or conduct: obligingness. An

arrangement of a dispute; a settlement, composition, treaty, or compromise. To adapt, fit, suit, or adjust

(one thing or person to another) either actually or in idea to make consistent, to harmonize‖). For a different

view of ―accommodation‖ see Eric A. Posner and Adrian Vermeule, ―Accommodating Emergencies,‖

University of Chicago Public Law Working Paper 48, no. September (2003).

an interpretative sense, the rules are qualified (their secondary implications or limitations are

fleshed out) in the case of the derogable rights; or they are intensified (they are shown to have no

additional implications or limitations) in the case of non-derogable rights. The pragmatic hope is

the maintenance of international order: the derogation clause will prevent an emergency

government from withdrawing from the treaty, but more significantly it will foreground and

intensify certain important provisions. The non-derogable nature of a right would make its

violation seem particularly serious. The interplay of derogable and non-derogable rights should

be considered at once as part and parcel of a strategy of accommodation and prohibition. Non-

derogable rights are not a tertiary modification of these secondary rules but interpretative

secondary rules that set the permissible incidence of derogation at zero.368

As we will see, rather

than as a fundamental right, or a right implicitly supported by a general limitation clause,

derogation is tightly framed as a kind of conditional privilege. It has often been note that the

central criteria for derogation can be summed up in five principles: (1) necessity, (2)

proportionality, (3) non-discrimination, (4) non-derogability of certain rights, and (5) a set of

procedural hurdles. The last two criteria differ slightly in each treaty, but at least some non-

derogable rights are shared between them, and the procedural hurdles resemble the ―republican‖

formal requirements governing declaration, duration, and termination of emergencies.369

These

368

Philosopher Carlos Cornides pointed out that derogation poses a particular problem of

indeterminacy. Cornides says in 1969, that traditionally, the effect of a derogation of a norm on a larger

system of norms is viewed as being similar or symmetrical to that of a temporary addition of a norm to a

system. ―One simply removes a norm from a corpus to form a new and smaller corpus, just as one may add

a norm to the corpus to form a new and larger one.‖ But, as noted by Cornides, there is actually an

asymmetry between the two. The result of promulgating a norm is in principle determinate: the new corpus

consists of just the old one plus the new norm. But the actual result of a derogation may be indeterminate,

for two main reasons. First, the norm to be derogated may not be one of the norms explicitly listed in the

corpus, but merely a consequence of them; several of the explicitly listed norms may jointly give rise to

that consequence, and the question arises which among them should be removed to avoid it. Second, even

if the norm to be derogated is one of those explicitly listed in the corpus, it may turn out to be implied by

the remainder. ―This gives rise to two kinds of derogation: a weak one in which we just strike out the norm

from the list, but continue to accept it as a consequence of what is left, and a stronger one in which we

contract to a subset that no longer implies the norm in question.‖ Evidently, there can in general be many

such subsets, and indeed many maximal ones. ―Derogation is indeterminate in so far as it does not make

provision for choice between them.‖ The positivists seemed to have this indeterminacy under control.

Secondary rules would make this provision. We will see later that this operation multiplies upon itself when

two derogation norms are in effect. 369

Of the classical political traditions engaging the question of emergency powers, the most salient

discussions and most coherent answers come from the republican tradition. Republicanism is typically

formalist on the issues of declaration, duration, conduct, control, and termination of emergencies.� the

history of Western political thought, the term ―republicanism‖ refers to a perspective based on the

conviction that the aspiration for the ―common good‖ of the state or community should guide public action

rather than the protection of individual and private goods. During the Enlightenment, republicanism often

conditions are formalized along the lines of republican tradition of formal declaration, control and

termination. Of course any derogation of rights UNSER Article 4 must also be put in context of

other applicable derogations and limitations.

There are various doctrines of fundamental rights at the international level. These differ

as much from each other as they do from constitutional methodologies. There is a continuum of

rights applicable under different situations, but it is arguable whether there is a hierarchy. There

are rights that are derogable, those that are non-derogable, and those that are already qualified (or

encumbered) by limitation clauses. This continuum of exceptions maps onto a continuum of

emergency situations requiring exceptions. A limitation clause, under the ICCPR should be of

interest because it allows a ―lesser derogation‖ outside the formal constrains and formal

declaration required of a state of emergency. In a ―de facto emergency,‖ for example this would

allow a useful inquiry, aside from whether an emergency ought to have been declared, into

whether limitations on rights are being properly invoked and respected.

Derogation is a kind of exception, but it is one among several others in international law.

To derogate is to temporarily reduce the scope and applicability of a right or norm, not to

abrogate it altogether. In contrast, there is also a difference between derogations and limitation

clauses.370

Limitation clauses are simply the language included in a treaty to make clear that

particular rights cannot be interpreted as absolute, and they derive and draw explicitly from salus

populi. Typical limitation clauses include ―prescribed by law,‖ ―in a democratic society,‖ ―public

order,‖ ―public health, ―public morals,‖ ―national security,‖ ―public safety,‖ or ―rights and

freedoms of others.‖371

Historians who have looked at the developments of the treaties are divided

in their assessment of the division of labor between derogations and limitations. In the case of the

ICCPR, they were originally rival frameworks, but since both survived into the ultimate treaty,

they emphasize different functions. According to Higgins, derogation system provides a tighter

set of restrictions than limitations alone.372

Hartman argues that the derogation system preserves

government prerogative.373

In practice, these purposes interact and swerve around each other in

drew upon Roman and Greek ideas and institutions. Perhaps for this reason, this tradition takes as its

primary model of emergency powers the institution of the Roman commissarial dictatorship, which was

praised by publicists such as Niccolo Machiavelli and Jean-Jacques Rousseau. This proximity of crisis, on

which the sovereign‘s power depends, is a general feature of modern systems of government. 370

In the so-called ―Siracusa Principles‖, the U.N. Sub-Commission on Prevention of Discrimination

and Protection of Minorities makes the distinction between ―derogations‖ and ―limitation clauses‖ 371

Add some comments/ excerpts form the Siracusa Principles (Ch. 1). 372

(hierarchy 170) 373

(hierarchy 172)

ways probably not contemplated by the original negotiators of the treaties. One way of expressing

the functional difference between derogations and limitations, put forward by Svensson-

McCarthy in her useful study, is that limitations should be understood as ―ordinary exceptions‖

applicable during normal times, and that derogations should be understood as ―extraordinary

exceptions‖ as envisioned in Article 4 emergencies. In my view, however, this distinction

between ―ordinary‖ and ―extraordinary‖ exceptions is untenable. It is clear that some limitations

do indeed contemplate situations of emergency, though perhaps those that fall below the

threshold of Article 4. The applicability of limitations, particularly those referring to public order

and safety, must similarly be triggered by circumstances, and should not be understood as

limiting the scope of the right. The language of the ICCPR contemplates factual situations where

limitations or departures from rights are warranted. Limitations are an occasion for balancing.

Some limitations refer to perpetual situations of balancing: such as where rights are balanced

against the rights and freedoms of others. If anything, these can be called ―ordinary exceptions.‖

However, there are other limitations that only allow for the departure from rights when balanced

against more unusual circumstances. These include limitation clauses on ―national security,‖

―public health or morals,‖ or ―public order.‖ There is not a bright line distinction between these

two categories of limitations, but it is clear that the latter can only be invoked in less normal

circumstances. In each situation then, an argument can be made to constrict the scope or

applicability of a right, but the right itself will remain robust. The jurisprudence of limitations

remains an alternative framework for adjudicating and debating norms and exceptions. It is not

the same formal system as the jurisprudence on derogations, but it is a rule-governed framework,

requiring interpretation of the situations where limitations are applicable.

Overlapping

Notwithstanding the difference in origin and content of the various human rights instruments,

they nevertheless share common elements of convergence and overlapping, both as regards

concept as well as in their application. With a view to addressing this problem and reducing

duplication in the different supervisory bodies, a special Report of the Secretary-General was

prepared in 1989 indicating the extent and nature of the overlapping issues dealt with in the six

principal human rights treaties. Formalistic principles underlying the doctrine of necessity in

international law, and principles underlying the derogation clauses: (1) the principle of

exceptional threat, (2) the principle of non-derogation of fundamental rights, (3) the principle of

proportionality, (4) the principle of declaration, (5) the principle of notification, (6) the principle

of non-discrimination, and (7) the principle of consistency.

International Covenant on Civil and Political Rights (Article 4)

The most ―universal‖ of HRL treaty-based regimes is the International Covenant on Civil

and Political Rights (ICCPR) and its derogation clause is contained in Article 4.374

The terms of

Article 4 attempt to regulate which emergency measures open to states parties, and under what

circumstances:

In time of public emergency which threatens the life of the nation and the existence of

which is officially proclaimed, the States Parties to the present Covenant may take

measures derogating from their obligations under the present Covenant to the extent

strictly required by the exigencies of the situation, provided that such measures are not

inconsistent with their other obligations under international law and do not involve

discrimination solely on the ground of race, color, sex, language, religion or social origin.

Not a single incident, or a possible risk, but in the context of a time of emergency…

declared to ―threaten the life of the nation‖ In terms of protected interest, the derogation clause

takes as its model the Grotian model of ―necessity as self-preservation‖ that has been abandoned

by the law of state responsibility, and in terms of procedure, it is directly modeled on the

republican model of emergency governance. Official proclamation and preference for formalism,

and a demanding standard of danger, and a link to self-preservation as the protected interest. The

modern state of necessity is less demanding as to the degree of danger.

Moreover, this threshold is a high one: it is tied fundamentally (and this time explicitly) to

collective self-preservation.

According to Nowak‘s commentary to the ICCPR, the emergency that qualifies for

necessity under Article 4 must ―make uncertain the continuation of the community‘s organized

life.‖ In the language of the ICCPR, this is ―to the extent strictly required by the exigencies of the

374

Article 4(1) In time of public emergency which threatens the life of the nation and the existence

of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating

from their obligations under the present Covenant to the extent strictly required by the exigencies of the

situation, provided that such measures are not inconsistent with their other obligations under international

law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social

origin. 4(2) No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under

this provision. 4(3). Any State Party to the present Covenant availing itself of the right of derogation shall

immediately inform the other States Parties to the present Covenant, through the intermediary of the

Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons

by which it was actuated. A further communication shall be made, through the same intermediary, on the

date on which it terminates such derogation.

situation.‖ Where necessity sets the threshold, proportionality addresses the permissible extent

of the emergency measures. The conditions of necessity (the threshold of being ―strictly

required‖) and proportionality (the extent ―strictly required‖), consistency with other legal

obligations, and non-discrimination are followed in Article 4(2) with more explicit limitations on

derogation, stating the above clause does not permit derogation from articles 6 (right to life)375

, 7

(prohibition on torture or to cruel, inhuman or degrading treatment or punishment)376

, 8

(paragraphs 1 and 2), 11, 15 (prohibition on criminal conviction by ex post facto laws)377

, 16

(right to recognition everywhere as a person before the law)378

, and 18 (right to freedom of

thought, conscience and religion).379

It has often been note that the central criteria for derogation

can be summed up in five principles: (1) necessity, (2) proportionality, (3) non-discrimination, (4)

non-derogability of certain rights, and (5) a set of procedural hurdles. The last two criteria differ

375

Article 6 1. Every human being has the inherent right to life. This right shall be protected by law.

No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty,

sentence of death may be imposed only for the most serious crimes in accordance with the law in force at

the time of the commission of the crime and not contrary to the provisions of the present Covenant and to

the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be

carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life

constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party

to the present Covenant to derogate in any way from any obligation assumed under the provisions of the

Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death

shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the

sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes

committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6.

Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any

State Party to the present Covenant. 376

Article 7No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or scientific

experimentation. 377

Article 15 1 . No one shall be held guilty of any criminal offence on account of any act or

omission which did not constitute a criminal offence, under national or international law, at the time when

it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when

the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by

law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article

shall prejudice the trial and punishment of any person for any act or omission which, at the time when it

was committed, was criminal according to the general principles of law recognized by the community of

nations. 378

Article 16 Everyone shall have the right to recognition everywhere as a person before the law.= 379

Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This

right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either

individually or in community with others and in public or private, to manifest his religion or belief in

worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his

freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or

beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public

safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the

present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians

to ensure the religious and moral education of their children in conformity with their own convictions.

slightly in each treaty, but at least some non-derogable rights are shared between them, and the

procedural hurdles tend to resemble the ―republican‖ formal requirements governing declaration,

duration, and termination of emergencies.

As we will see in the other treaty-based regimes, the ICCPR also includes some

procedural hurdles, reminiscent of the republican tradition of emergency. Article 4(3)380

requires

immediate communication of proclamation and termination of derogation to ―the other States

Parties to the present Covenant, through the intermediary of the Secretary-General of the United

Nations. The non-discrimination language in Article 4(1) is echoed by the non-discrimination

makes non-derogable part of provision of Article 26,381

but may allow derogability of

discrimination against ―political or other opinion,‖ national origin,‖ ―property‖ ―birth‖ or other

status. Other important rights that are formally derogable include Articles 9 (right to liberty and

security of person),382

10 (right of prisoners to be treated with humanity and dignity‖),383

12

380

4(3) requires Any State Party to the present Covenant availing itself of the right of derogation

shall immediately inform the other States Parties to the present Covenant, through the intermediary of the

Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons

by which it was actuated. A further communication shall be made, through the same intermediary, on the

date on which it terminates such derogation. 381

Article 26 All persons are equal before the law and are entitled without any discrimination to the

equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all

persons equal and effective protection against discrimination on any ground such as race, color, sex,

language, religion, political or other opinion, national or social origin, property, birth or other status. 382

Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to

arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in

accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at

the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other

officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or

to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release

may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should

occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings before a court, in order that court may decide without delay

on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has

been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 383

Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect

for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted

persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b)

Accused juvenile persons shall be separated from adults and brought as speedily as possible for

adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which

shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and

be accorded treatment appropriate to their age and legal status.

(freedom of movement),384

14 (equality before the law),385

and 19 (right to hold opinions without

interference).386

In practice, these rights, when derogated, are often found to violate

proportionality, either because their violation implicates other non-derogable rights, or because

they are found in particular cases to exceed the strict requirements of the situation. There are also

384

Article 12 (1) Everyone lawfully within the territory of a State shall, within that territory, have the

right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any

country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are

provided by law, are necessary to protect national security, public order (ordre public), public health or

morals or the rights and freedoms of others, and are consistent with the other rights recognized in the

present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. 385

Article 141. All persons shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a

fair and public hearing by a competent, independent and impartial tribunal established by law. The press

and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public)

or national security in a democratic society, or when the interest of the private lives of the parties so

requires, or to the extent strictly necessary in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit

at law shall be made public except where the interest of juvenile persons otherwise requires or the

proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a

criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the

determination of any criminal charge against him, everyone shall be entitled to the following minimum

guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands

of the nature and cause of the charge against him; (b) To have adequate time and facilities for the

preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried without

undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of

his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal

assistance assigned to him, in any case where the interests of justice so require, and without payment by

him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined,

the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the

same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot

understand or speak the language used in court; (g) Not to be compelled to testify against himself or to

confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age

and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right

to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has

by a final decision been convicted of a criminal offence and when subsequently his conviction has been

reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively

that there has been a miscarriage of justice, the person who has suffered punishment as a result of such

conviction shall be compensated according to law, unless it is proved that the non-disclosure of the

unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or

punished again for an offence for which he has already been finally convicted or acquitted in accordance

with the law and penal procedure of each country. 386

Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone

shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart

information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of

art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of

this article carries with it special duties and responsibilities. It may therefore be subject to certain

restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the

rights or reputations of others; (b) For the protection of national security or of public order (ordre public),

or of public health or morals.

ordinary limitations (as opposed to extraordinary limitations) contained in Articles 10, 14 and 19.

Others limitations the language of other provisions: limited to the extent ―necessary to protect

national security, public order (ordre public), public health or morals or the rights and freedoms

of others.‖

These provisions of the treaty are applied by the HRC, which as a commission and quasi-

tribunal considers and comments upon reports submitted by states under article 40. Almost

without exception, these reports touch on Article 4 derogation concerns. HRC is confronted with

a number of issues, which mix moral, pragmatic, and procedural concerns. The kinds of issues

that the HRC is competent to comment upon include not only HRL, but also the coordination of

HRL and IHL, as well as the application of both kinds of law in ―grey areas,‖ including internal

strife and extra-territorial application of human rights and humanitarian standards. They do not,

however, refer to legal categories such as obligations erga omnes or jus cogens in discussing

issues such as torture.

Perhaps it would be seen as unnecessarily adversarial to raise issues of state

responsibility in the context of a voluntary submission. They do, however, point to obligations

under international law more generally, which seems to be part of the mandate of Article 4

(consistency). To this extent, the HRC does not treat the ICCPR as a hermetically sealed ―self-

contained‖ regime.

Many states have responded to the attacks by introducing or extending antiterrorist

legislation. The terms of such legislation may or should require the state to derogate from article

4 of the ICCPR,387

as, Despite guarantees that their human rights would be respected, those

387

for example, the U.K. has done. The HRC was concerned, for example, that Estonia‘s relatively

broad definition of the crime of terrorism and of membership in a terrorist group under the state party‘s

criminal code may have adverse consequences for the protection of rights under article 15 of the covenant,

a provision that is non-derogable under article 4(2). The U.K. was asked to explain the compatibility of its

antiterrorist legislation with the ICCPR and with article 4, in particular. The HRC recognizes that the

security requirements relating to the events of September 11, 2001, have given rise to efforts by New

Zealand to address terrorism. The HRC was concerned that the impact of such legislative and other

measures to implement Security Council resolution 1373 or changes in policy regarding New Zealand‘s

obligations under the ICCPR may not have been fully considered. The committee was concerned about the

possible negative effects of the new legislation on asylum seekers, including such practices as removing the

immigration risk offshore. Despite assurances that their human rights would be respected, the absence of

monitoring mechanisms in the expulsion of hose suspected of terrorism to their countries of origin could

pose risks to the safety and lives of the persons expelled (articles 6 and 7 of the covenant). n relation to

Sweden, the HRC observed that while it understands the security requirements relating to the events of 1

September 2001, and takes note of the appeal of Sweden for respect or human rights within the framework

of the international campaign against terrorism, the Committee expresses its concern regarding the effect of

this campaign on the situation of human rights in Sweden, in particular for persons of foreign extraction.

countries could pose risks to the personal safety and lives of the persons expelled, especially in

the absence of sufficiently serious efforts to monitor the implementation of those guarantees two

visits by the embassy in three months, the first only some five weeks after the return and under

the supervision of the detaining authorities) (arts. 6 and 7 of the Covenant).388

The Committee

also stresses the risk of violations of fundamental rights of persons of foreign extraction (freedom

of expression and privacy), in particular through more frequent recourse to telephone tapping and

because of an atmosphere of latent suspicion towards them (arts. 13, 17 and 19 of the Covenant).

(a) The State party must ensure that measures taken under the international campaign against

terrorism are fully in conformity with the Covenant. The State party is requested to ensure that

the concern over terrorism is not a source of abuse.

European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR) Article 15

Historically, the first of the derogation clauses, and the one that the others are based

upon, is Article 15 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR).389

Though each of the treaties was negotiated separately, and is

more or less extensive based on political circumstances of the particular States-Party, the

European Convention sets the pattern for the subsequent derogation clauses.390

The minimal

standards, including the common non-derogable rights, were written into the European

Convention first. George J. Alexander described international public opinion as the sole means to

promote protection of human rights, and the European Court as the sole effective judicial

mechanism of protection among international and regional human rights adjudicatory organs).

Fionnuala Ni Aolain argues that international and regional judicial bodies are not necessarily

The Committee is concerned t cases of expulsion of asylum-seekers suspected of terrorism to their

countries of origin. 388

(428 D. McGoldrick) 389

Article 15. Derogation in time of emergency 1. In time of war or other public emergency

threatening the life of the nation any High Contracting Party may take measures derogating from its

obligations under this Convention to the extent strictly required by the exigencies of the situation, provided

that such measures are not inconsistent with its other obligations under international law. 2. No derogation

from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4

(paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this

right of derogation shall keep the Secretary General of the Council of Europe fully informed of the

measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the

Council of Europe when such measures have ceased to operate and the provisions of the Convention are

again being fully executed. 390

(Historicize using Brian Simpson text).

more effective in dealing with the concept of "emergency" than are domestic courts.391

For a right

to be derogable under the European Convention, it must conform to an objective threshold of

necessity (called here the principle of ―exceptional threat‖), as well as the principles of

proportionality, notification, and consistency. Proportionality, in this context, is aimed at the

rational fit between emergency measures and the threat. (Proportionality in the modern

constitutional context, as well as the practice of the ECHR, seems to require the ―balancing‖, the

decision-making process of a court or tribunal. The same can be said for necessity. Both of these

are stripped away from the military commander in the field. George J. Alexander described

international public opinion as the sole means to promote protection of human rights, and the

European Court as the sole effective judicial mechanism of protection among international and

regional human rights adjudicatory organs). Fionnuala Ni Aolain argues that international and

regional judicial bodies are not necessarily more effective in dealing with the concept of

"emergency" than are domestic courts.392

But it is certainly preferable when norms like those contained in ICCPR find their way

into enforceable documents like the European Convention on Human Rights. The ECHR is

enforceable in the European Court of Human Rights. Article 15 of the ECHR allows for the

declaration of a state of emergency which enables the derogation of certain rights which that

Convention otherwise protects. Should a member state abuse its emergency powers or infringe

non-derogable rights, any other member state or any individual can bring a complaint before the

Commission, which attempts mediation. Should this fail, the matter is referred to the Committee

of Ministers, which forms part of the Council of Europe. This committee can then decide on

sanctions or refer the matter to the European Court of Human Rights. It is also possible for a

member state (but not an individual) to refer abuses of emergency powers to the Court. The

process is rather slow and the urgency of emergencies might make it difficult to enforce safety

provisions in the moment. But as with the senatus consultum ultimum and as with martial law,

the certainty of scrutiny is intended to ―have a mitigating effect on the use of emergency

powers.‖393

391

Fionnuala Ni Aolain, The Emergence of Diversity: Differences in Human Rights Jurisprudence,

19 Fordham Int'l L.J. 101 (1995); 392

Fionnuala Ni Aolain, The Emergence of Diversity: Differences in Human Rights Jurisprudence,

19 Fordham Int'l L.J. 101 (1995); 393

Christoph Schreuer ―Derogation of Human Rights in Situations of Public Emergency.: The

Experience of European Convention,‖ Yale Journal of World Public Order. Vol. 9, No.1. 1982. pp. 113-

132, at p. 128.

It is noteworthy that one of the key criteria on which the European Court evaluates the

justice of an emergency declaration is the availability of domestic safety provisions. For

example, in the Lawless case (1961)394

and in Ireland v. United Kingdom, the UK was

commended for the safeguards it had put into place to ensure that emergency’s norms were

observed. In Lawless, ―there was parliamentary supervision, the detainees could apply to an

independent ‗Detention Commission‘ and…persons who satisfied certain conditions were being

released.‖395

Hence, in addition to enforcing the emergency provisions of the EHCR at the

supranational level, the European Court of Human Rights encourages effective safety features at

the national level also.

The International Covenant on Civil and Political Rights provides norms which govern

emergency derogations and these have been incorporated into supranational documents like

ECHR which are enforceable.

There are no exceptions to these norms. They function whenever an emergency regime is

in effect in a state which has covenanted. On the national stage, even those contemporary

emergency powers that do not directly incorporate ICCPR provisions have been moving toward

specification to more carefully enable and to constrain according to a variety of norms. There is a

greater margin of appreciation (as opposed to a reserved domain) reversing the posture of

assertion of sovereignty to deference to complementary norms…

Notification is a procedural principle, tying emergency governments to the watchful

regime of the European Court and Commission (now consolidated into a single institution) and to

publicity. Finally, the principle of consistency seems to be aimed at continuing conformity the

laws of war when applicable, especially the Geneva Conventions of 1949 and the 1977 Protocols.

Other principles have been interpreted as deriving from the text of the treaty, though they are not

explicitly present. These are notably the republican procedural principles of temporariness and

proclamation. The principle of temporariness396

derives from the definition of emergency, which

394

On Lawless see the interesting discussion in John Maguire. ―Internment, the IRA, and the

Lawless Case in Ireland, 1957-61,‖ Journal of the Oxford University Historical Society, Fall 2004. 395

Schreuer. ―Derogation of Human Rights.‖ p. 128. 396

The European Court of Human Rights has considered that the natural and customary meaning of

―public emergency threatening the life of the nation‖ was sufficiently clear. It referred to ―a situation of

crisis or emergency which affects the whole population and constitutes a threat to the organized life of the

community of which the state is composed.‖88 The threat to the life of the nation could be to the physical

population,89 its territorial 394 D. McGoldrick integrity, 90 or to the functioning of the organs of the

state.91 The specific crisis or emergency can be geographically limited and still affect the whole

population. The European Commission of Human Rights stated in the De Becker case that continued

geographic and temporal characteristics, as well as from the requirement of proportionality.

Similarly, there is no formal requirement for an emergency to be publicly proclaimed (in contrast

to the ICCPR). However, this could be interpreted in the duty to publicly notify the European

Court. Finally, the European Convention does not make an explicit reference to principle of non –

discrimination in the derogation clause. However, this is another place where judicial

interpretation would likely fill the gap. The Convention does include a more general prohibition

on non-discrimination in Article 14, which could be applied in tandem with Article 15, though

nowhere is it listed as non-derogable. (It may require a different theory, such as qualifying as

customary law or jus cogens). In Ireland v. UK, it was precisely these two provisions of the

Convention that came into conflict.

The margin of appreciation is often applied to states of emergency. European Court of

Human Rights Necessity The Court recalls that it falls to each Contracting State, with its

responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public

emergency" and, if so, how far it is necessary to go in attempting to overcome the

emergency.…Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation.

It is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly

required by the exigencies" of the crisis. The domestic margin of appreciation is thus

accompanied by a European supervision. At the same time, in exercising its supervision the

Court must give appropriate weight to such relevant factors as the nature of the rights affected by

the derogation, the circumstances leading to, and the duration of the emergency situation.397

Again, it is a principle common to all three treaties that even when an emergency

government is entitled to disregard the generally accepted human rights, there are some rights

which can never be infringed upon—non-derogable rights— though there is no clear agreement

upon the precise list of those rights. Among the three HR treaties, the European Convention has

the most minimal list of non-derogable rights, four, where the ICCPR has seven and the

American Convention eleven. Expressly non-derogable under the provision are Articles 2 (Right

to Life398

except in deaths resulting from lawful acts of war), 3 (Prohibition of Torture),399

4(1),

derogation of rights will not be justifiable under the convention after the emergency has ceased. See De

Becker v. Belgium, 1 Eur. H.R. Rep. 43 (1979). 397

Brannigan and McBride v. The United Kingdom, ECHR, 26 May 1993 (para. 43). 398

Article 2. Right to Life 1. Everyone's right to life shall be protected by law. No one shall be

deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a

crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in

contravention of this article when it results from the use of force which is no more than absolutely

necessary: a) in defense of any person from unlawful violence; b) in order to effect a lawful arrest or to

and 7 (No Punishment without Law).400

In comparison with the other treaties, notably absent

from this list are Articles 5 (Right to Liberty and Security),401

6 (Right to a Fair Trial),402

10

(Freedom of Expression),403

11 (Freedom of Assembly and Association),404

and 13 (Right to an

prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a

riot or insurrection. 399

Article 3. Prohibition of Torture No one shall be subjected to torture or to inhuman or degrading

treatment or punishment. 400

Article 7. No Punishment without Law 1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a criminal offence under national or international

law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was

applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and

punishment of any person for any act or omission which, at the time when it was committed, was criminal

according to the general principles of law recognized by civilized nations. 401

Article 5. Right to Liberty and Security 1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure

prescribed by law: a) the lawful detention of a person after conviction by a competent court; b) the lawful

arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the

fulfillment of any obligation prescribed by law; c) the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on reasonable suspicion of having committed

an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing

after having done so; d) the detention of a minor by lawful order for the purpose of educational supervision

or his lawful detention for the purpose of bringing him before the competent legal authority; e) the lawful

detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants; f) the lawful arrest or detention of a person to prevent his effecting

an unauthorized entry into the country or of a person against whom action is being taken with a view to

deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he

understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in

accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or

other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable

time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone

who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is

not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of

this article shall have an enforceable right to compensation. 402

Article 6. Right to a Fair Trial 1. In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in the interests of morals, public order or national

security in a democratic society, where the interests of juveniles or the protection of the private life of the

parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances

where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall

be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence

has the following minimum rights:a) to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him; b) to have adequate time and facilities for the

preparation of his defense; 3.Everyone charged with a criminal offence has the following minimum rights:

a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the

accusation against him; b) to have adequate time and facilities for the preparation of his defense; 403

Article 10. Freedom of Expression1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart information and ideas without interference

by public authority and regardless of frontiers. This article shall not prevent States from requiring the

effective remedy).405

The jurisprudence of the ECHR supports extending protections of non-

derogability without expanding the list much. Non-derogable rights Article 15 paragraph 2 states

that no derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or

from Articles 3, 4 (paragraph 1) and 7 shall be made. Article 2, which safeguards the right to life

and sets out the circumstances when deprivation of life may be justified, ranks as one of the most

fundamental provisions in the Convention, to which no derogation is permitted.406

According to

Aksoy v. Turkey, ECHR, 18 December (1996), the ECtHR said ―Article 3, as the Court has

observed on many occasions, enshrines one of the fundamental values of democratic society.

Even in the most difficult of circumstances, such as the fight against organized terrorism and

crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or

punishment. Unlike most of the substantive clauses of the Convention…, Article 3 makes no

provision for exceptions and no derogation from it is permissible under Article 15 even in the

event of a public emergency threatening the life of the nation.‖407

Most effective court. The

interpretive practice of the ECtHR is important in developing emergency governance at the

regional and international level. However, a more controversial development out of the European

jurisprudence is the doctrine of the ―margin of appreciation‖ which has particularly been applied

in emergency contexts.408

[Example: the notion of "arbitrary" deprivations of life].409

licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it

carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or

penalties as are prescribed by law and are necessary in a democratic society, in the interests of national

security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of

health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of

information received in confidence, or for maintaining the authority and impartiality of the judiciary. 404

Article 11. Freedom of Assembly and Association1. Everyone has the right to freedom of

peaceful assembly and to freedom of association with others, including the right to form and to join trade

unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights

other than such as are prescribed by law and are necessary in a democratic society in the interests of

national security or public safety, for the prevention of disorder or crime, for the protection of health or

morals or for the protection of the rights and freedoms of others. This article shall not prevent the

imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the

police or of the administration of the State. 405

Article 13. Right to an effective remedy Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a national authority notwithstanding that the

violation has been committed by persons acting in an official capacity. 406

Orhan v. Turkey, ECHR, 18 June 2002 (para. 325). 407

Aksoy v. Turkey, ECHR, 18 December 1996 (para. 62). 408

Supplement with Simpson account: European Court of Human Rights and the Corn mission (with

special emphasis on the famous Lawless case and the Greek case)… 409

The notion of "arbitrary" deprivations of life are contestable even within the customs of war,

which has shifted over time, ranging from atavistic notions of a ―duty to die for the state‖ dating to the 14th

century See Ernst H. Kantorowicz, "Pro Patria Mori in Medieval Political Thought,"American Historical

through modern notions that interpret the right to life as against the state in a strict manner.

Arbitrary deprivations of life are treated differently in the ICCPR, the ECHR, and in the

customary and conventional IHL. the mere diversity of these regimes and instruments prevents

even such a seemingly basic provision from being considered either super-customary law or jus

cogens. However, these divergences have historical bases and should not be seen as providing a

knockdown argument against any possibility of jus cogens whatsoever. Consider the form of

argument, ―If even life is not absolute, how absolute can a prohibition on torture be?‖

American Convention on Human Rights (Article 27)410

If the European Convention is the most minimal in its formally non-derogable provisions,

American Convention is the most maximal. This is not to say it is the most effective. The

operative derogation clause in the Inter-American System is Article 27411

of the American

Review 56, no. 3 (April 1951), pp. 347-92. (on the corporate legal personality, pulling together

"organological"analogies body of state, king and population Kantorowicz notes that, as early as the

campaign in Flanders undertaken by Philip IV (1285-1314), kings began to claim that such a duty was

owed to the sovereign ruler. 410

1. In time of war, public danger, or other emergency that threatens the independence or security of

a State Party, it may take measures derogating from its obligations under the present Convention to the

extent and for the period of time strictly required by the exigencies of the situation, provided that such

measures are not inconsistent with its other obligations under international law and do not involve

discrimination on the ground of race, color, sex, language, religion, or social origin.2. The foregoing

provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical

Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from

Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion),

Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20

(Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees

essential for the protection of such rights.3. Any State Party availing itself of the right of suspension shall

immediately inform the other States Parties, through the Secretary General of the Organization of American

States, of the provisions the application of which it has suspended, the reasons that gave rise to the

suspension, and the date set for the termination of such suspension. 411

1. In time of war, public danger, or other emergency that threatens the independence or security of

a State Party, it may take measures derogating from its obligations under the present Convention to the

extent and for the period of time strictly required by the exigencies of the situation, provided that such

measures are not inconsistent with its other obligations under international law and do not involve

discrimination on the ground of race, color, sex, language, religion, or social origin. The foregoing

provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical

Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from

Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion),

Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20

(Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees

essential for the protection of such rights. 3. Any State Party availing itself of the right of suspension shall

immediately inform the other States Parties, through the Secretary General of the Organization of American

States, of the provisions the application of which it has suspended, the reasons that gave rise to the

suspension, and the date set for the termination of such suspension.

Convention on Human Rights (on ―Suspension of Guarantees‖). The specific requirements for

declaring a state of emergency are as follows: Necessity, pursuant to Article 27 of the Convention

which requires a bona fide emergency: ―an extremely grave situation, such as war, public danger,

or other emergency that threatens the independence or security of the State party.‖ The American

Commission on Human Rights has stated that emergency measures ―can only find a justification

in the face of real threats to public order or state security.‖ The principle of proportionality

mirrors the other two treaties, providing that the suspension may only be effectuated to the extent

strictly limited to the exigencies of the situation. This requirement refers to the prohibition on the

unnecessary suspension of certain rights, imposing restrictions more severe than necessary, and

unnecessarily extending the suspension to areas not affected by the emergency. (Extent, but also

duration) Like the ICCPR, but unlike the ECHR, Article 27(1) also refers to the temporal duration

of emergencies: ―only for the time strictly limited to the exigencies of the situation.‖ [The

Commission has warned that it is even more serious to decree states of emergency for indefinite

or prolonged periods, especially when they allow broad powers to be concentrated in the head of

state, including the judicial branch abstaining with respect to the measures decreed by the

Executive, which in certain cases may lead to the exact opposite of the rule of law.] (4) Non-

discrimination: As established in Article 27(1) of the Convention, consistent with Articles 1 and

24, the suspension of rights must not entail any kind of discrimination against any individual or

group. (5) Compatibility with other international obligations: The suspension of certain rights

must be compatible with all other obligations established in other international instruments…. (6)

Reporting: Pursuant to Article 27(3) of the Convention, the declaration of a state of emergency

should be reported immediately to all other States parties to the Convention, through the

Secretary General of the OAS.412

Finally, there is the principle of non-derogability. Non-derogability is of two kinds; those

expressly non-derogable under the provisions of the IACHR, and those interpreted by the judicial

organs of the Convention to be non-derogable. Express Non-derogability. Article 27 not authorize

any suspension of the following articles Article 3 (Right to Juridical Personality), Article 4 (Right

to Life),413

Article 5 (Right to Humane Treatment),414

Article 6 (Freedom from Slavery), Article 9

412

OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000 (para. 70 – The Civilian Jurisdiction: The Anti-

Terrorist Legislation). 413

American Convention on Human Rights Article 4. Right to Life 1. Every person has the right to

have his life respected. This right shall be protected by law and, in general, from the moment of conception.

No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it

may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent

(Freedom from Ex Post Facto Laws),415

Article 12 (Freedom of Conscience and Religion), Article

17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article

20 (Right to Nationality), and Article 23 (Right to Participate in Government).

Notably absent in the above list are Articles 7 (Right to Personal Liberty),416

8 (Right to a

Fair Trial), 417

13 (Freedom of Thought and Expression)418

and 25 (Right to Judicial

court and in accordance with a law establishing such punishment, enacted prior to the commission of the

crime. The application of such punishment shall not be extended to crimes to which it does not presently

apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall

capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall

not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over

70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have

the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.

Capital punishment shall not be imposed while such a petition is pending decision by the competent

authority. 414

Article 5. Right to Humane Treatment: 1. Every person has the right to have his physical, mental,

and moral integrity respected.2. No one shall be subjected to torture or to cruel, inhuman, or degrading

punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent

dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4.

Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall

be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject

to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily

as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting

of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners. 415

Article 9. Freedom from Ex Post Facto Laws No one shall be convicted of any act or omission

that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier

penalty shall not be imposed than the one that was applicable at the time the criminal offense was

committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter

punishment, the guilty person shall benefit therefrom. 416

Article 7. Right to Personal Liberty: 1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions

established beforehand by the constitution of the State Party concerned or by a law established pursuant

thereto.3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be

informed of the reasons for his detention and shall be promptly notified of the charge or charges against

him.5. Any person detained shall be brought promptly before a judge or other officer authorized by law to

exercise judicial power and shall be entitled to trial within a reasonable time or to be released without

prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his

appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent

court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order

his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who

believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court

in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished.

The interested party or another person in his behalf is entitled to seek these remedies. 7. No one shall be

detained for debt. This principle shall not limit the orders of a competent judicial authority issued for

nonfulfillment of duties of support. 417

Article 8. Right to a Fair Trial: 1. Every person has the right to a hearing, with due guarantees and

within a reasonable time, by a competent, independent, and impartial tribunal, previously established by

law, in the substantiation of any accusation of a criminal nature made against him or for the determination

of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a

criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to

Protection).419

However, according to I/A Court H.R., Advisory Opinion OC-8/87, Habeas

Corpus in Emergency Situations, January 30, 1987. Non-derogable rights:

It is clear that no right guaranteed in the [American Convention on Human Rights] may

be suspended unless very strict conditions -- those laid down in Article 27(1) -- are met.

Moreover, even when these conditions are satisfied, Article 27(2) provides that certain

categories of rights may not be suspended under any circumstances. Hence, rather than

adopting a philosophy that favors the suspension of rights, the Convention establishes the

contrary principle, namely, that all rights are to be guaranteed and enforced unless very

law. During the proceedings, every person is entitled, with full equality, to the following minimum

guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does

not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the

accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the

right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing,

and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel

provided by the state, paid or not as the domestic law provides, if the accused does not defend himself

personally or engage his own counsel within the time period established by law; f. the right of the defense

to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other

persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or

to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the

accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a

nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings

shall be public, except insofar as may be necessary to protect the interests of justice. 418

Article 13. Freedom of Thought and Expression1. Everyone has the right to freedom of thought

and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds,

regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of

one's choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to

prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly

established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b.

the protection of national security, public order, or public health or morals. 3. The right of expression may

not be restricted by indirect methods or means, such as the abuse of government or private controls over

newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by

any other means tending to impede the communication and circulation of ideas and opinions. 4.

Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior

censorship for the sole purpose of regulating access to them for the moral protection of childhood and

adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that

constitute incitements to lawless violence or to any other similar action against any person or group of

persons on any grounds including those of race, color, religion, language, or national origin shall be

considered as offenses punishable by law. 419

Article 25. Right to Judicial Protection1. Everyone has the right to simple and prompt recourse, or

any other effective recourse, to a competent court or tribunal for protection against acts that violate his

fundamental rights recognized by the constitution or laws of the state concerned or by this Convention,

even though such violation may have been committed by persons acting in the course of their official

duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his

rights determined by the competent authority provided for by the legal system of the state; b. to develop the

possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies

when granted.

special circumstances justify the suspension of some, and that ―some rights may never be

suspended, however serious the emergency.‖420

Other rights have been designated non-derogable through judicial interpretation. Notably absent

are Articles 7 (Right to Personal Liberty),421

8 (Right to a Fair Trial), 422

13 (Freedom of Thought

and Expression)423

and 25 (Right to Judicial Protection).424

420

I/A Court H.R., Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations, January

30, 1987 (para. 21). 421

Article 7. Right to Personal Liberty 1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions

established beforehand by the constitution of the State Party concerned or by a law established pursuant

thereto. 3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be

informed of the reasons for his detention and shall be promptly notified of the charge or charges against

him. 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to

exercise judicial power and shall be entitled to trial within a reasonable time or to be released without

prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his

appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent

court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order

his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who

believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court

in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished.

The interested party or another person in his behalf is entitled to seek these remedies. 7. No one shall be

detained for debt. This principle shall not limit the orders of a competent judicial authority issued for

nonfulfillment of duties of support. 422

Article 8. Right to a Fair Trial 1. Every person has the right to a hearing, with due guarantees and

within a reasonable time, by a competent, independent, and impartial tribunal, previously established by

law, in the substantiation of any accusation of a criminal nature made against him or for the determination

of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a

criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to

law. During the proceedings, every person is entitled, with full equality, to the following minimum

guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does

not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the

accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the

right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing,

and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel

provided by the state, paid or not as the domestic law provides, if the accused does not defend himself

personally or engage his own counsel within the time period established by law; f. the right of the defense

to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other

persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or

to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the

accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a

nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings

shall be public, except insofar as may be necessary to protect the interests of justice. 423

Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought

and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds,

regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of

one's choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to

prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly

established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b.

the protection of national security, public order, or public health or morals. 3. The right of expression may

D. Custom in HRL and IHL

As compared to human rights treaty bodies, IHL is better rooted in customary law.

Largely through the development of codes and customs in Manuals of the usages of war officers

in the field. private codification, are the Nineteenth century; but perhaps the most singular feature

of the Manuals is the number of rules adopted in them which have been literally borrowed from

the 'De Jure Belli et Pacis,' and specially from its third book, The Manual prepared for the United

States is the oldest of them, but most of them have followed the attempt to form a Code of Land

War which was made at the Conference at Brussels in 1874, an attempt which miscarried

principally through recollections of the course of the great Franco-German war in 1870-1871.

There is very much that is remarkable in all this. Ted Meron has noted that no human rights treaty

has attained the same status as Hague regulations of 1907.425

One reason that the norms in IHL

conventions are so adaptable to becoming custom is that one of their major functions has been the

codification of pre-existing custom, thus the full title of the Hague conventions refers to the ―laws

and customs of war.‖ The phrase ―customs of war,‖ to be sure, was probably not intended to

mean customary law, but rather the customs of permissible warfare and marginally humanitarian

practices that developed on the battlefield. However, much of this has now been incorporated into

modern jus in bello, and provide important legal protection to victims and bystanders. The Hague

Conventions would probably qualify as customary law and part of the Geneva conventions have

also either passed into customary law or codify pre-existing custom. Hague conventions of 1907,

which have already passed into customary international law, and the subsequent Geneva

not be restricted by indirect methods or means, such as the abuse of government or private controls over

newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by

any other means tending to impede the communication and circulation of ideas and opinions. 4.

Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior

censorship for the sole purpose of regulating access to them for the moral protection of childhood and

adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that

constitute incitements to lawless violence or to any other similar action against any person or group of

persons on any grounds including those of race, color, religion, language, or national origin shall be

considered as offenses punishable by law. 424

Article 25. Right to Judicial Protection 1. Everyone has the right to simple and prompt recourse,

or any other effective recourse, to a competent court or tribunal for protection against acts that violate his

fundamental rights recognized by the constitution or laws of the state concerned or by this Convention,

even though such violation may have been committed by persons acting in the course of their official

duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his

rights determined by the competent authority provided for by the legal system of the state; b. to develop

the possibilities of judicial remedy; and. to ensure that the competent authorities shall enforce such

remedies when granted. 425

Theodor Meron, Human Rights in Internal Strife: Their International Protection (Grotius

Publications 1987) at 9.

Conventions of 1949 enjoy near-universal acceptance. It might seem, then that the task of

identifying customary humanitarian law would be redundant. This is not really the case.

Conceptually, the added utility of identifying new customary law within the conventional

frameworks is to also seek wide applicability of those parts of the conventions that were

innovations of the treaties. Most important among these, for the purposes of emergency

governance, is Article 3 common to the four Conventions, which is applicable in non-

international armed conflicts and the Additional Protocols. Empirically, we can note countless

violations of these treaties and of basic humanitarian principles, which should become a concern

for the international community as a whole. One way to widen the circle of effected parties is to

see that some minimum standards eventually pass into jus cogens. a lack of willingness to respect

the rules, to a lack of means to enforce them, to uncertainty as to their application in some

circumstances, and also to ignorance of the rules themselves on the part of political leaders,

commanders, combatants and the general public.

If there is an added value to customary law, it is that the Conventions in some part

express pre-existing principles of humanitarian law, and in other ways progressively develop this

law. It is the latter that could potentially pass into customary law in the future.

What is the content of customary humanitarian law? [What counts as customary

humanitarian law? The most rigorous study has been made by the Red Cross in 2004. The

ICRC has recently published a manual on customary international law. That The Hague

Conventions of 1907 have already passed into customary international law is a common

assumption. As customary law, the Hague Conventions were recognized as providing

customary law as far back as the IMT and Nuremberg trials. ]

Consent and reciprocity. As customary law, especially as a ―super-customary‖ norm (jus

cogens or erga omnes obligation), a norm would overcome both consent and the requirement of

reciprocity. Otherwise, it would be limited to the consent of contracting powers. Reciprocity

however is explicit in article 2 of the Fourth Hague Convention. Is it binding more generally?

Customary law is binding even when it is not self-enacting. As far as the Geneva Conventions go,

the Nicaragua case (1986 ICJ Rep. 14; Merits) states that the Geneva Conventions are ―in some

respects a development and in other respects no more than an expression‖ of fundamental

principles of humanitarian law.426

Nicaragua case draws on general principles of humanitarian

law.427

According to Golder decision of the ECtHR, Article 31 para. 3 (c) of the Vienna

Convention indicates that account is to be taken, together with the context, of "any relevant rules

of international law applicable in the relations between the parties". Among those rules are

general principles of law and especially "general principles of law recognized by civilized

nations‖ Though there is no agreement on a hierarchy of sources, it is has long been the case that

custom and treaties are the primary means of international law-making. Whereas treaty-based law

is the primary source of ―special law‖ and regimes of express agreement, custom is considered

the primary substantive source of general international law, the larger community of shared

values and implicit agreement.428

While treaties are probably the most determinate source of

international law, they are only binding on as few states as agree to it. So while a treaty provision

may be less controversial, a rule as custom is far more generally applicable. Custom is also more

durable. The legal standard for withdrawing from a treaty, which is straightforwardly contractual

and consensual in form, is less demanding than the standard for opting out of customary law,

where a state must be a persistent objector to the formation of a new customary rule. In terms of

temporary derogation, treaty regimes provide their own derogation clauses, and otherwise rely on

specific doctrines contained in the Law of Treaty Interpretation. To derogate from a customary

norm, states must rely on general doctrines of derogability from the Law of State Responsibility.

The Statute of the ICJ describes custom as ―evidence of a general practice accepted as law.‖

Thus, it consists of two elements: action (state practice) and statements (opinio juris).429

Different

jurists and commentators assign differing weight to these two elements, but a rigorous approach

would demand a good bit of each. State practice, the actions of states must be consistent, and

opinio juris, the statements, must show that the practice is followed out of a belief of legal

obligation. Of course, what states practice and what they say (let alone what they subjectively

―believe‖) are often inconsistent, but what matters is that both their statements and their actions

426

Nicaragua case (1986 ICJ Rep. 14; Merits) at 113. 427

Nicaragua case (1986 ICJ Rep. 14; Merits) at 114. 428

Both David Kennedy in International Legal Structures and Martti Koskenniemi in From Apology

to Utopia identify custom as a site for the struggle, often the self-struggle between consensual and non-

consensual norms, in other words ―consent vs. justice.‖ In a circular fashion, customary norms depend on

their acceptance for their applicability. They are consensual in a similar, though softer, form than treaty-

based obligations, but they can harden into claims about either consent or justice. From the point of view of

the language of consent, the paradox occurs when international lawyers find themselves arguing that an

explicit objection to a norm is trumped by an implicit acceptance of it. 429

This draws on Anthony D‘Amato‘s distinction at 7.

are meant to articulate the legality of their behavior, or persuade others of their compliance with a

standard of behavior. Custom can also be conceived as a field of superior norms, despite the

maxim that ―special law derogates general law‖, it might be seen as a field of resources

modifying the permissible scope of derogation. (This however may only be widely accepted of

the custom in question is a ―super-customary‖ norm of some sort, i.e. jus cogens or an obligation

erga omnes. Softer in its force and determinacy, but tribunal

Among other texts, which are not determinative or declaratory, but reflective of state practice and

opinion, a particularly authoritative source is the Restatement of the Foreign Relations Law of the

United States (Revised) (1985). The Restatement lists: (1) genocide, (2) slavery, (3) murder and

disappearance, torture, arbitrary detention, systematic racial discrimination, and (7) other gross

violations, as included in customary humanitarian law of war.430

In the area of international

humanitarian law, treaty law is well developed but its application is limited to States who have

ratified the treaties in question, and to armed opposition groups within those States. The content

of customary rules of international humanitarian law, on the other hand, is less clear because

those rules are nowhere written down as such. Customary international law is created by a

widespread, representative and uniform practice of States. Its content, as a result, must be

determined on the basis of extensive research into State practice.

The recent study on customary international humanitarian law which the ICRC is currently

finalizing is unprecedented. The study will provide the world with a common code of rules

applicable to armed conflict binding on all parties to armed conflicts. have re-examined practice,

reassessed the existence of custom, reviewed the formulation and the order of the rules and

drafted the commentaries.431

Identifying customary law applicable to armed conflicts is

thought to expand and enhance the protections available to victims of war. A study on

customary rules of international humanitarian law can contribute to this goal by completing the

picture of rules of international humanitarian law that apply to armed conflicts. One part of this

picture, treaty law, is well defined, as it consists of written rules binding upon the States that have

adhered to the treaties in question and, in the case of treaties applicable in non-international

armed conflicts, are also binding upon armed opposition groups within those States. This part of

international humanitarian law covers a wide variety of aspects of warfare, offering protection to

victims of war and limiting the permissible means and methods of warfare.

430

Restatement of the Foreign Relations Law of the United States (Revised) (1985). 431

Louise Doswald-Beck and Jean-Marie Henckaerts, Customary International Humanitarian Law.

1) The four Geneva Conventions of 1949 and their Additional Protocols of 1977 provide an

extensive regime for the protection of persons who are not or are no longer participating

in armed conflict (the wounded, sick and shipwrecked, persons deprived of their freedom

for reasons related to the conflict, and civilians).

2) The regulation of the means and methods of warfare in treaty law goes back as far as the

1868 St Petersburg Declaration, the 1899 and 1907 Hague Conventions and the 1925

Geneva Gas Protocol, and has more recently been addressed in the 1972 Biological

Weapons Convention, the 1977 Additional Protocols, the 1980 Convention on Certain

Conventional Weapons and its four Protocols, the 1993 Chemical Weapons Convention

and the 1997 Ottawa Convention banning anti-personnel landmines.

3) The 1998 Statute of the International Criminal Court contains a list of war crimes

These treaties do not, however, bind States that have not ratified them. In the absence of such

ratification, it is therefore very important to know which rules of customary IHL apply. The

wealth of treaty law that exists does not, however, regulate a large proportion of today‘s armed

conflicts in sufficient detail. The primary reason is that the bulk of current armed conflicts are

non-international, and hence subject to far fewer treaty rules than international conflicts, although

the number of such rules is increasing. While common Article 3 of the 1949 Geneva Conventions

is of fundamental importance, it only contains general principles, without adding much detail as

to their meaning and implementation. Additional Protocol II usefully supplements common

Article 3, but it is still less detailed than the rules governing international armed conflicts

contained in Additional Protocol I. While the trend in recent years has been to make humanitarian

law treaties applicable to both international and non-international armed conflicts, most of these

treaties are not yet universally ratified and, as a result, it is important to know which rules of

customary international humanitarian law exist, binding States not party to them. Customary

international law can thus fulfill a crucial role in bridging the gaps in the application of treaty law,

gaps due to lack of ratification but also due to lack of substantive coverage. The ICRC study

confirmed that the principle of distinction, the definition of military objectives, the prohibition of

indiscriminate attacks, the principle of proportionality and the duty to take precautions in attack

are all part of customary international law, regardless of the type of armed conflict involved.

What are the stakes of recognizing new custom? fears backfire that an assertion of a new

custom may be one more in a set of reasons for avoiding a nation's treaty obligations. There are

possibilities for shifting the balance between international sources as well as constitutional

branches of government.432

Although a State may register a derogation to the treaty the State is

still bound by customary law. However, this is not to say that a State cannot ‗derogate‘ from

432

Nancy Kontou, The Termination and Revision of Treaties in the Light of New Customary

International Law. New York: Oxford University Press, 1994

international customary law as well. In addition to a state of necessity, in principle a State could

derogate from international customary law by invoking self-defence, countermeasures, force

majeure or distress. In the Gabcíkovo-Nagymaros case the ICJ found ―that the state of necessity is

a ground recognized by customary international law for precluding the wrongfulness of an act not

in conformity with an international obligation‖.433

The Court then defined the conditions which had to be satisfied to justify a state of

necessity as follows

―it [the state of necessity] must have been occasioned by an ‗essential interest‘ of the

State which is the author of the act conflicting with one of its international obligations;

that interest must have been threatened by a ‗grave and imminent peril‘; the act being

challenged must have been the ‗only means‘ of safeguarding that interest; that act must

not have ‗seriously impair[ed] an essential interest‘ of the State towards which the

obligation existed; and the State which is the author of that act must not have ‗contributed

to the occurrence of the state of necessity‘. Those conditions reflect customary

international law‖.

Therefore, for a State to derogate from an ICCPR obligation with a corresponding customary

law a State must fulfill the conditions for derogation under the ICCPR and the conditions to

invoke a state of necessity.434

As with reservations the effects of derogations are dependent on the number of States

submitting a similar derogation, the response of State parties to the derogation, the ‗standing‘ of

the specific customary law which would be impacted and the response of the Human Rights

Committee to the derogation and its impact on other State parties‘ responses. Similarly with

reservations it is not clear how and who should determine whether a derogation complies with the

treaty obligations contained in Article 4 and with the requirements of a state of necessity.

Regardless, in General Comment 29 the HRC states that ―it is the task of the Committee to

monitor the laws in question with respect to whether they enable and secure compliance with

article 4‖.435

Although of questionable legality, it is likely that because of the HRC‘s proactive

nature the HRC‘s approach will facilitate the merging of obligations contained in the ICCPR and

customary international law.

433

Gabcíkovo-Nagymaros case, 25 September 1997, ICJ, Judgement, paras. 51-52, <www.icj-

cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm>, 434

See also Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful

Acts adopted by the International Law Commission at its fifty-third session (2001). 435

Human Rights Committee, General Comment 29, States of Emergency (Article 4), U.N. Doc.

CCPR/C/21/Rev.1/Add.11 (2001).

Arguably derogations pose less of a threat to the development of the provisions of the

ICCPR into customary law because derogations represent exceptions to the treaty obligation

whereas reservations may weaken the obligation itself, thereby potentially weakening the

corresponding customary norm. This is particularly relevant given the strict requirements

derogations must meet under the treaty to be valid. Although the ICCPR is placed under the

‗general treaty regime‘ this is not to say that the human rights nature of the treaty will not impact

the admissibility of reservations. The human rights nature of the treaty should be taken into

account when objectively evaluating reservations against the object and purpose of the

ICCPR.436

In regards to both reservations and derogations the HRC has identified a gap in the law

and has proactively asserted its interpretation of how this lacunae should be addressed. Although

the legality of this assertion is questionable (at this time) it provides a solution which can be

reconciled with the Vienna Convention and has been supported by several States. Questions

surrounding incompatible reservations have existed for years and it is positive to see a treaty body

taking advantage of this stagnation and ambiguity by steering the debate instead of following it.

Given the pragmatic choices faced by States it is likely that the HRC‘s stance will strengthen the

obligations contained within the ICCPR and facilitate the development and merging of the

provisions of the ICCPR and customary law.

The Draft Articles on State Responsibility list elaborate these as reasons to exclude responsibility

for otherwise wrongful acts by states. Withdrawal from a treaty is, of course, the most extreme

strategy to evade an international commitment. It is to prevent this situation that RUDS,

limitation clauses, and derogation clauses have been put into place: to accommodate difficulties

that might otherwise lead to withdrawal.437

The point of the derogation clauses found in the

instruments of human rights regimes is to avoid a foundational confrontation between ―supreme

interests‖ of a state‘s self-preservation and the international interest in legality. Derogation

436

Thus, if a reservation is inadmissible pursuant to Article 19 because of incompatibility with the

object and purpose of the treaty the legal consequences of reservations and objections spelled out in Article

21 do not apply‖ (A. Seibert-Fohr, ‗The Potentials of the Vienna Convention on the Law of Treaties with

Respect to Reservations to Human Rights Treaties‘ in I. Ziemele (ed.), Reservations to Human Rights

Treaties and the Vienna Convention Regime (Martinus Nijhoff Publishers, Leiden, 2004)). 437

Iran has threatened to withdraw from the NPT if it is subjected to U.N. sanctions. Article X,

paragraph 1 of the NPT provides: ―Each party shall in exercising its national sovereignty have the right to

withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty,

have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other

Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall

include a statement of the extraordinary events it regards as having jeopardized its supreme interests.‖

provides a functional alternative to foundational struggle between self-preservation and the

preservation of legality.

The fields of emergency governance—HRL and IHL— pose particular problems for the

identification of custom. At the broadest level, the problem is that to conceive of customary

emergency governance requires a consistent practice and discourse of permissible and

impermissible exceptions. This cannot be gleaned from the behavior of emergency governments,

which are notoriously unpredictable in times of crisis. Even if some states of emergency are a

common legal institution which justifies derogations from human rights standards is a well-

known institution recognized in almost all constitutional systems, there are important variations…

Even more complicated than the emergency measures are the articulations of the legality of these

measures. Governments take certain measures, they often even believe in their legality or

legitimacy, but they do not do them consistently but as a matter of prudence. This is part of the

value of the treaty-based regimes. The various derogation procedures help track the legality and

extra-legality of state practice. A treaty-based derogation might serve as a form of opinio juris, or

declaration by a state, that custom is not to be inferred from the extra-legal actions. This is a kind

of ―formalism of contingency.‖ This brings us back to the familiar conundrum that there are some

kinds of contingent practice that it would be normatively distasteful to formalize. However, the

limits of treaties are their applicability.

These treaties do not bind States that have not ratified them. In both HRL and IHL, in the

absence of such ratification, it is therefore very important to know which rules of customary law

apply. A cynical view would be that the project of customary law would be to bind precisely

those who wish not to be bound, and to do so in the name of consent. The wealth of treaty law

that exists does not, however, regulate a large proportion of today‘s armed conflicts in sufficient

detail. There are arguments emerging from both human rights law and humanitarian law that

these norms of emergency governance are becoming accepted as customary law, which is to say,

they are no longer dependent on treaties for their validity and applicability. common code of rules

applicable to states of emergency on all parties contributing to the situation. As we will see

below, there seem to be special rules or evidence required for HRL and IHL to become custom.

HRL has depended on a more relaxed requirement for custom, and IHL has taken up a more

rigorous approach. Both rely on the existence of additional sources of law that are relevant to

identifying custom in each field.

As with treaty interpretation, customary law of human rights deviates somewhat from the

typical methodology of identifying customary international law. In human rights law, the

evidence is primarily opinio juris, while state practice is negligible. The utility of custom in

human rights law is to go beyond the derogation clauses in the three international human rights

treaties i.e. the European Convention on Human Rights and Fundamental Freedoms (ECHR)

which was signed in 1950 and came into force in 1953, the International Covenant on Civil and

Political Rights (ICCPR) which was signed in 1966 and came into force in 1976 and the

American Convention on Human Rights (ACHR) which was signed in 1969 and came into force

in 1978. Added value of customary law is the development of a common code of rules applicable

to states of emergency… These principles might be useful in applying to those human rights

treaties (African Charter and ILO organs) without derogation clauses, causing uncertainty and

therefore no explicit indications of the legal regime applicable in emergencies. This is the way to

bring the force and specificity of treaty-based law to customary law, which is binding on all states

but still easily ignored.438

States do have obligations to respect certain fundamental human rights, and these have

been formulated in HRL doctrines, IHL, and well as notions of jus cogens, and crimes against

humanity. Hardly anyone would argue that human rights law is limited to treaties, though it is

more controversial which human rights have the status of custom. Human rights have been

formulated at several levels of generality before the treaty organs, some of which can be used as

evidence of opinio juris. The UN Charter Articles 55 and 56 are declaratory of obligations to

respect ―human rights‖ and ―fundamental freedoms.‖ The Universal Declaration of Human Rights

is more specific, but gives no priority to some over others in times of emergency. Which are non-

derogable in customary international law? Is there any mechanism for governing derogability

outside of the human rights treaties? What is the content of customary human rights law? What

are customary human rights? The most sweeping view is that of McDougal, who takes the entire

corpus of human rights in the Universal Declaration of Human rights as not only customary law

but probably also jus cogens (peremptory norms of international law). Others, such as Waldock

and Humphrey accept the whole of the UDHR as customary law. Scholars such as Meron and

Lillich take more measured approaches. Meron claims certain procedural rights are custom.

Lillich identifies only rights to equality and non-discrimination, which are in the UDHR.

Evidence of customary HRL can be found in the UN Charter, the UDHR, the ICCPR, or the

438

As Oona Hathaway has noted, ―the major engines of compliance that exist in other areas of

international law are for the most part absent in the area of human rights….The forces that induce

compliance with other law ... do not pertain equally to the law of human rights.‖ See Oona A. Hathaway,

Do Human Rights Treaties Make a Difference?, 1935.

rights in common between the three treaty regimes. One fairly consistent reference for tracking

the acceptance of custom is the successive editions to the Restatement of U.S. Foreign Relations

Law, which is often quoted by scholars in its view on what human rights have passed into

custom. (The Restatement lists… Whereas all of these authors and sources find human rights in

custom, Jaime Oraa goes even further by identifying broad principles to govern derogability and

extending these in general international law.

Of the treaty regimes, ICCPR has the most ―universal‖ applicability. In addition to the

UDHR, obvious site for customary law. Discuss… completing the picture of rules of

international. A more ambitious approach to customary emergency governance is found in Jaime

Oraa, Human Rights in States of Emergency in International Law, (1992)439

, who looks not only

at the ICCPR, but actually integrating the ―common standards‖ achieved by three main treaties in

order to suggest that the derogation clause theory has actually become customary international

law, i.e. principles which are binding even in the absence of an international treaty.‖ be two parts:

as I have dome above, the context of specific multilateral treaties, second p(that is mainly the

problem of the legal regime of the so-called ―derogation clause‖)art would deal with the same

question within the context of general international law. (Also identifies ―emergent principles‖ I

The treaty-based system of emergency governance has limits. It turns out that ―almost

half of the States of the international community are not parties to the international treaties on

human rights which establish a legal regime for emergencies.‖440

At least one scholar has argued

that these protections and derogations are mirrored in close detail, in general international law. In

his book, Father Jaime Oraa argues for a general 'norm-creating' character of the ICCPR, to (as

evidence probative source for customary law), the repetition of the same norms in several human

rights treaties.441

On the basis of these inquiries, Oraa concludes that there are various principles which constitute

emergent principles of International Law governing Human Rights in states of emergency. He

cites: the principle of exceptional threat, the principle of proportionality, the principle of non-

discrimination and, the principle of non-derogability of fundamental rights. The four non-

derogable rights in the European Convention are common to the three treaties: the right to life,

439

Jaime Oraa, Human Rights in States of Emergency in International Law, Oxford, Clarendon Press

(1992) 440

Oraa at 1. 441

Additional probative evidence can be found in the practice of various organs of International

Organizations and the acceptance of some of these principles by States Non-Parties to the Human Rights

treaties.

the right to be free from torture and other inhuman or degrading treatment or punishment, the

right to be free from slavery or servitude and the principle of non-retroactivity of penal laws. In

various respects this way of establishing the existence of such new principles.

Thus it is possible to all it in that those rights are now jus cogens. (peremptory norms).

On the level of soft law and civil society there has been a ―convergence‖ of human rights

and humanitarian law. In the next chapter we will see if this is also sustainable in jurisprudence

and doctrine.

The Nicaragua case is one indicator among others of a relaxed standard for human rights

law, or at least privileging opinio juris over state practice. Is there any indication that the same is

true of custom in IHL? If anything, the ICRC has been even more rigorous in pulling together

both state practice and opinio juris to show the existence of customary IHL. To this end,

Methodology. Study… the ICRC consulted a From 1996 to 2004, Steering Committee of notable

experts to study selected nearly 50 countries were selected from all continents research was

conducted using both national and international sources that reflected state practice and opinio

juris. Geographic diversity of states, States with diverse kinds of armed conflict in which a

variety of methods of warfare had been used. (3) Opinio juris tool the form of official statements

at the national and international levels, diplomatic protests, press releases, opinions of official

legal advisers, police manuals, military manuals, instructions to armed and security forces,

military communiqués during war, comments by governments on draft treaties, legislation,

decisions of national courts and executive authorities, pleadings before international tribunals,

statements in international organizations and at international conferences and government

positions taken with respect to resolutions of international organizations.

In addition, the following sources of evidence were used, in order to capture aspects of

modern warfare not reflected above: (1) Military manuals and national legislation of countries not

covered by the reports on State practice were also researched and collected. (2) These teams

researched practice in the framework of the United Nations and of other international

organizations, in particular the African Union (formerly the Organization of African Unity),

Council of Europe, Gulf Cooperation Council, European Union, League of Arab States,

Organization of American States, Organization of the Islamic Conference and Organization for

Security and Cooperation in Europe. They also studied the practice of the Commonwealth of

Independent States, Inter-Parliamentary Union and Non- Aligned Movement. Access to the

practice of these organizations was facilitated by the ICRC delegations that maintain contacts

with them. (3) State practice at the international level is reflected in a variety of sources,

including resolutions adopted in the framework of the United Nations, in particular by the

Security Council, General Assembly and Commission on Human Rights, ad hoc investigations

conducted by the United Nations, the work of the International Law Commission and comments

it elicited from governments, the work of the committees of the UN General Assembly, reports of

the UN Secretary-General, thematic and country-specific procedures of the UN Commission on

Human Rights, reporting procedures before the Human Rights Committee under the International

Covenant on Civil and Political Rights, travaux préparatoires of treaties, and State submissions

to international and regional courts. (4) International judicial decisions providing evidence of the

existence of rules of customary international law. To complement the research into national and

international sources, the ICRC looked into its own archives relating to nearly 40 recent armed

conflicts, some 20 of which occurred in Africa, 8 in Asia, 8 in Europe and 2 in Latin America. In

general, these conflicts were selected so that countries and conflicts not yet dealt with by a report

on State practice would also be covered. Research for the study focused in particular on practice

from the last 30 years to ensure that it would result in a restatement of contemporary customary

international law, but the Study does cite older practice where still relevant.

This is an exceptionally rigorous methodology to identify custom, incorporating several

different conceptions of what qualifies as custom. The question remains, what are the

implications of the clarification of customary international law on emergency governance? As

with HRL, treaty law and customary law are the main sources of international law. The rigorous

codification of IHL has had the double effect: codifying IHL, and giving a basis for new

customary law. In some ways, the process of codification and custom in IHL has been cyclical.

The Hague conventions of 1907, which have already passed into customary international law, and

the subsequent Geneva Conventions of 1949 enjoy near-universal acceptance. Yet these, in turn,

were understood by many to be codifications of pre-existing customs. Thus, from an

epistemological point of view, it may be a chicken-egg problem. From a normative point of view,

however, this is a blessing, and it only adds to its acceptability. The wide acceptance of codes of

war (jus in bello) are probably instrumental as well as normative. It probably in part due to their

―exceptional‖ status, and therefore hypothetically limited applicability: they are norms to be

applied in exceptional situations only. The customs of war are also often either honored or

preached as much for their sensibility as for their reciprocal benefits to combatants on every side

of a conflict. Custom, like treaty-based law, in this area is both constitutive and declaratory. It

was once thought that the determinacy of law was best achieved through codification. It is this

attitude that brought about the Hague conventions and Geneva Conventions. Today, however, the

aspiration to extend law beyond contractual and reciprocal obligations has led to a renewal of

efforts at identifying custom. Dynamic and relatively successful.

In a circular fashion, customary norms depend on their acceptance for their applicability.

They are consensual in a similar, though softer, form than treaty-based obligations, but they can

harden into claims about either consent or justice. From the point of view of the language of

consent, the paradox occurs when international lawyers find themselves arguing that an explicit

objection to a norm is trumped by an implicit acceptance of it. Resources are sources put to use,

sources in the service of a process.

For a State to derogate from an ICCPR obligation with a corresponding customary law a

State must fulfill the conditions for derogation under the ICCPR and the conditions to invoke a

state of necessity.442

In the Gabcíkovo-Nagymaros case the ICJ found ―that the state of necessity

is a ground recognized by customary international law for precluding the wrongfulness of an act

not in conformity with an international obligation‖.443

The Court then defined the conditions

which had to be satisfied to justify a state of necessity as follows

―it [the state of necessity] must have been occasioned by an ‗essential interest‘ of the

State which is the author of the act conflicting with one of its international obligations;

that interest must have been threatened by a ‗grave and imminent peril‘; the act being

challenged must have been the ‗only means‘ of safeguarding that interest; that act must

not have ‗seriously impair[ed] an essential interest‘ of the State towards which the

obligation existed; and the State which is the author of that act must not have ‗contributed

to the occurrence of the state of necessity‘. Those conditions reflect customary

international law‖.

Thus for a State to derogate from an ICCPR obligation with a corresponding customary law a

state must also conditions to invoke a state of necessity.444

Although Ago assumed this would

simply happen as a matter of course, when the essential interest was of a higher threshold in a

convention-based derogation clause, the cumulative conditions of the state of necessity have been

notoriously difficult to satisfy, in particular the requirement that the ―state must not have

contributed to the situation,‖ which does not correspond to any of the requirements for derogation

from the ICCPR.

442

See also Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful

Acts adopted by the International Law Commission at its fifty-third session (2001). 443

Gabcíkovo-Nagymaros case, 25 September 1997, ICJ, Judgement, paras. 51-52, <www.icj-

cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm>, 444

See also Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful

Acts adopted by the International Law Commission at its fifty-third session (2001).

Custom is not simply inferred from development of law by courts. official statements at

the national and international levels, diplomatic protests, press releases, opinions of official legal

advisers, police manuals, military manuals, instructions to armed and security forces, military

communiqués during war, comments by governments on draft treaties, legislation, decisions of

national courts and executive authorities, pleadings before international tribunals, statements in

international organizations and at international conferences and government positions taken with

respect to resolutions of international organizations. In addition to the treaty-based regimes, we

might also add several distinct UN organs involved in the question of states of emergency,

including the Sub-Commission on the Prevention of Discrimination and Protection of Minorities

of the United Nations Commission on Human Rights under the Economic and Social Council

resolution 1985/37, to authorize a Special Rapporteur on States of Emergency.

Custom, Breach, Derogation and Legal Change

Formal systems of derogation as necessity doctrines also guard the procedural regulatory

and normativity of the formation of customary law. Otherwise, exceptions may become the rule.

It is a form of opinion iuris, or declaration by a state, that custom is not to be inferred from the

extra-legal actions. This is a kind of ―formalism of contingency.‖ Anthea Roberts has recently

summarized these aspects of the notion of procedural normativity in the context of evaluating

customary international law as a source of (general) international law:

―[P]rocedural normativity requires that the process for forming laws be transparent, so

that states are aware of the real basis for forming customs and can regulate their actions

accordingly. It also entails an opportunity for states to participate in law formation and

have their positions considered. Legal rules are more likely to engender respect in a

decentralized system, possibly even when outcome is less favorable, if they result from a

process perceived as legitimate.‖445

Procedural normativity also requires that the sources of law will not lead to a system that creates

norms arbitrarily. However, unlike any municipal norm, customary norms in international law

may be reinterpreted and changed through breach. In this case, exceptions literally become the

norm. In this way, over a longer term, the distinction between formalism and contingency is

effaced, and the concern of liberal emergency theorists concerning ―contamination‖ by the

445

Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law:

A Reconciliation, 95 Am. J. Int‘l .L. 757, 762.

exception becomes a literal possibility. Thus international law allows for the systemic possibility

of contamination, states must break the law in order to make new law, often coupling the state

practice (break law) and opinio juris (accompany the breach by a new legal claim). These

elements would not be met either in a claim of necessity or a formal derogation in a treaty regime.

Indeed derogation— as the practice of violation without an accompanying opinio juris— guards

against this. Still, as Oscar Schachter notes ―at times, the line between violations and emerging

law may be difficult to draw.‖

So when does norm violation contribute to legal change? Two factors determine whether

such violation is norm-affirming or norm-undermining in character. First, is the state‘s legal

reasoning in carrying out the violating action. In noting the importance of such legal

―articulation‖, the ICJ stated in the Nicaragua case that:

If a State acts in a way prima facie incompatible with a recognized rule, but defends its

conduct by appealing to exceptions or justifications contained within the rule itself, then

whether or not the State‘s conduct is in fact justifiable on that basis, the significance of

that attitude is to confirm rather than weaken the rule.446

Conversely, it may be reasoned that if a state justifies its action by rejecting the legal force or

applicability of the norm concerned, then its violation may be norm-undermining. The second

factor is the response of the international community. Where a norm violation is met by

condemnation by states, it will be norm-affirming in effect. State may make their views known in

submissions before relevant international bodies (such as the UNSC and ICJ), in declarations in

the UNGA, and in press announcements. There are degrees of condemnation here; condemnation

gains increasing force when it is matched with increasingly forceful countermeasures and when

these are authorized by the UNSC. Again, conversely, where the violation is accepted, it will be

norm-undermining in effect.

The complexities of multi-level emergency governance raises other possibilities.

Violation of a treaty obligation can evidence a rejection of the corresponding customary norm.

However, he principle of custom violation does not automatically invalidate a norm. As Yoram

Dinstein has famously pointed out, ―the criminal codes of all states are constantly trampled

underfoot by countless criminals, yet the unimpaired legal validity of these codes is universally

conceded.‖ The paradoxical effect is that the non-formal and contingent breach of a treaty

obligation or customary norm may actually be more a rejection of conformity with international

446

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States), 1986 ICJ Rep. 14, 25 ILM 1023 (1986), para. 209.

norms than parallel municipal (especially constitutional norms). Norm violation occurs when a

state action manifestly breaches a norm of international law. However, specific attention must be

given to the reservation or contingent derogation itself because ―the State might be objecting to

the enforcement of the norm as contained in the treaty or some other aspect of the treaty

obligation as opposed to the norm itself.‖ (cite) In fact, far form evidencing opinio juris a

particular norm (say, the prohibition against torture) might be accepted as a fundamental article of

constitutional faith, and still remain undefended at the international level as a protest against the

development of international enforcement capacity.

In the ―normal‖ situation, violation actually affirms the norm. The clearest case of this is

where international opinion violating state explicitly appeals to the norm or to exceptions and the

action is condemned by the international community. Emergency contexts also raise peculiar

problems in terms of the response by other states. It may be that the reluctance of states to

condemn certain violations is an implicit recognition of ―necessity‖ (just even if it is illegal).

Thus practices such as targeted assassinations447

and extraordinary renditions may be good for no

one as norms, and even difficult to justify in legal terms as either necessary or proportional, but

state criticism still muted. In this way, a better test for state acquiescence in the context of the

development of these equivocal measures into new norms is not condemnation but the affirmative

recognition by states (i.e., a public declaration) that the violating action is actually legal.

Conclusion

[connect also to substance of self-preservation]. The original issue of ―necessity‖ for

the founders of classical international law dealt with the responsibility of states to one another,

and wrongful acts could be excused under certain circumstances. The subjective rights of states

included their constitutional pacts to protect their subjects. Thus, for a long time, this dual

classicism, underlying constitutionalism as well as international law, drove an implicit wedge

between the governance of the spatially and temporally defined realms of ―emergency‖ and the

proper purview of international law. However, the proliferation in recent years, of ―self-contained

regimes‖ such as international human rights law and humanitarian law, has admitted new actors,

doctrines, and concepts into international law, challenging and at times transforming the

mainstream doctrine.

447

See however (insert case). On the very day of this writing, the Israel's High Court of Justice

issued a ruling finding that Israeli military forces may engage in ―targeted killings‖ of Palestinian terrorists

consistent with the customary international law of war.

So far, each regime of ―exceptions‖ has been discussed in relative isolation, by a location

and expression in a particular institutional framework.448

We have been relatively untroubled by

multiple doctrines of necessity operating in their respective spheres, with similar terminology and

analogous operations, developing in their own course. Simple principles included in Draft

Articles that military necessity would displace the circumstances precluding wrongfulness. The

HRC has similarly said that human rights law standards of derogation are applicable in the place

of the various circumstances precluding responsibility. However, relatively unsettled are the

relationship between HRL and IHL, and the role of the general notions of jus cogens and

obligations erga omnes vis-à-vis these two regimes. It is thus in the presence of mixed states and

operational complexity that issues of characterization become particularly important, and

complex principles of derogation must be introduced.

448

Joan Hartman, Derogations from Human Rights Practices in Public Emergencies, 22 Harvard

International Law Journal 1 (1981).

CHAPTER THREE

The Uncertain Applicability of Modern Necessity Doctrines:

Complex Derogability and Extra-Territoriality

A. Two Fields of Application: HRL and IHL

1. Introduction

In this chapter I will discuss potential conflicts in the applicability of necessity doctrines

particular to international human rights law (HRL) or international humanitarian law (IHL). By

now it should be clear that in international law the derogation of legal obligations— even the

wholesale derogation of human rights obligations— is facilitated by legal concepts and

techniques rather than the absence of norms or pure political will. There is perhaps no greater

challenge to international public order than the assertion of ―spaces‖ and situations where rights

and the rule of law are rendered ineffective. Yet, even if these spaces and situations are referred

to colloquially as legal ―vacuums‖ or ―black holes,‖ they are formally the effect of an excess of

law rather than its absence, resulting in an overlapping of regimes, a partial eclipse of one by

another. The recent focus on terrorism as a problem of global order and security, along with the

proliferation of various means to combat it, has provided a new empirical context — and a new

urgency— to some standing doctrinal problems. Suddenly, the clarification of certain obscure

concepts— ―self-contained regimes,‖ ―fragmentation,‖ lex specialis, jus cogens, obligations erga

omnes— takes on a renewed relevance when we discuss the several regimes of international law

applicable during states of emergency. The international legal issues here are whether Human

Rights Law and International Humanitarian Law are simultaneously applicable or mutually

exclusive, and whether one or both of these areas of law is applicable extra-territorially. Taken

together, these are examples of what I call ―complex derogation,‖ which contrasts with the

dualistic ―primitive derogation‖ of the ―law of peace‖ by the ―law of war.‖ None of these views,

taken alone, will resolve as a general matter the co-existence of multiple doctrines of necessity as

they have developed within international law, their divergent theoretical bases, or attempts to

reconcile them.

Two theoretical controversies in international law that imply this problem have recently

become more salient and troubling in practice: (1) whether HRL applies in situations covered by

IHL, and (2) whether HRL obligations apply extra-territorially. Since the 1990s, these questions

have been addressed by the HRC in a series of state reports and general comments, and by the ICJ

in its recent jurisprudence.449

The meta-theory on applicability has also been shaped by concrete

conflicts. Modern emergency governments, in situations as different as Israel (in a decades-long

formal state of emergency as well as in its occupation of territories), and the United States

(adopting a disaggregated series of contingent emergency measures both on its territory and

abroad, such as the detentions of ―enemy combatants‖ in Guantanamo Bay) have offered

alternative interpretations of the law. It is not surprising that the jurisprudence of the Committee

and the International Court of Justice has tended toward expansive interpretations of the

continuing obligations of State parties to the ICCPR in times of war. Nor is it surprising that both

the US and Israel have adopted restrictive interpretations of their obligations under the Covenant,

that the Covenant does not apply to protect individuals under their jurisdiction but outside their

respective territories, and that human rights obligations may be derogated tout court in times of

armed conflict. Though not particularly surprising from the point of view of prudential interests at

stake— where we expect international institutions to speak in the language of norm-preservation

and states to resolve ambiguous legal concepts in their own favor— whether or not these

particular states‘ positions are merely outcome-dependent, all views must be taken into account if

we want to understand what is at stake doctrinally in these cases, and to observe the development

of the principles of ―lex specialis‖ and ―effective dominion.‖ Here I will discuss these principles

both as a matter of theory and in the context of these conflict situations.

I will also suggest that the materials to be able to decide between derogation regimes, is

often provided in meta-regimes of treaty interpretation and state responsibility, and by the

continuing priority of jus cogens. From a normative and structural point of view, given the

complexity of primary norms as well as derogation norms in the international system, every claim

that ―no law applies,‖ should raise suspicion. These situations of fragmentation, differentiation,

and conflict, remind us that in cause and effect we should not mistake the relative dimness of a

449

criticized Israel‘s refusal to ―areas not subject to its Sovereign territory and jurisdiction.‖ And lex

specialis of IHL precludes HRL standards. General Comments 29 and 31 took up these issues.

partial legal eclipse for the absolute darkness of a black hole. Also, in an empirical context, it is

becoming recognized that emergency measures involving the derogation of rights and

governmental responsibilities rarely either purely ―internal‖ or even ―bilateral‖ matters it involve

―broad dangers to international peace and security.‖450

The two issues covered in this chapter

continue to be a cause of controversy in this context: (1) whether HRL applies in situations

covered by IHL, and (2) whether HRL obligations apply extra-territorially. This section will take

up the uncertain application of necessity doctrines in mixed states of conflict and the ambiguous

applicability of international human rights law (HRL) or international humanitarian law (IHL).

The particular topics covered here are (1) ―complex derogation‖ including the theses of

―convergence,‖ the simultaneous application of the two regimes or the identification of common

minimum standards and ―lex specialis,‖ the displacement of one regime of law by the other, and

(2) ―extra-territoriality‖— the applicability of norms from either regime to situations beyond the

borders of a state applying the necessity doctrine.451

B. Complex Derogation: Application of HRL

in situations covered by IHL

1. Introduction: “Primitive” and “Complex” Dero gation

A basic duality is apparent in every form of emergency governance: inside/outside,

formalism/contingency, closure/rupture, or rule/exception. In jurisprudential terms, each of these

distinctions can be seen as a primal one, to which every question can be reduced. A further

reduction is simply presence/absence or ―on/off.‖ This is how primitive derogation is conceived.

The specification of lex specialis must be attended to. Complex derogation,‖ which contrasts with

the ―primitive derogation‖ of the ―law of peace‖ by the ―law of war.‖ This area of law is not one

of gaps— cavernous metaphysical holes called ―The Exception‖ or ―The Political‖—but of rules

and counter-rules, different sites of law, (e.g. constitutional law and public international law),

different regimes of law (e.g. humanitarian law and human rights law), and different sources of

law (e.g. treaties and custom), different powers, and jurisdictions (e.g. various regional courts and

tribunals). Often these regimes of law maintain a parallel existence, and remain in theory

450

ICJ Wall Advisory Opinion. 451

the implication of the ―Self-contained Regimes‖ theory first expounded by the International Court

of Justice in the 1979-1981 Hostage case in determining the issue of State responsibility under Human

Rights treaties.

separate, but overlap in situations where they cast a common shadow.452

This shadow has been

conceived as a ―grey area‖ (connoting overlaps) or as a ―black hole‖ (connoting gaps). Complex

derogation. I have argued that wherever ―necessity‖ appears to justify forms of violence that

evade legal classification, abandonment of ―enemy bodies‖ to spaces of overlapping (conflicts) or

anomy (gaps), it must be conditional on the internal dimension to the principle of self-

preservation. In the international order, even if there is no such formalized structure or separation

of powers, there is a vying of influence between different sites of doctrine and jurisdiction. In

every case, the distinction between rule and exception becomes instead question of

applicability—of rules and counter-rules. Even when there are conflicts between different

governance regimes and supremacy is undecidable, the question of precisely where competence is

located is often situational and therefore unpredictable. Scholars of the constitutional law of

foreign relations, or of the Charter Framework of the United Nations put at the heart of their

disciplines the rigorous study and specification of the relationships and conflicts between

international and constitutional orders, and come to different conclusions on the relative priority

of domestic and international norms. Other theorists, such as scholar of public international law,

assign priority to a hierarchy of sources (custom trumps treaties or vice versa), and others still

look for institutional umpire—such as the International Court of Justice or the UN Security

Council. Here, I am more interested in the conflicts and coordination among different

international regimes, including the derogation procedures in various international human rights

treaties and humanitarian law, which have developed without coordination. In criminal law,

necessity is an excuse or a justification (and at another extreme even a duty),453

in contract it is an

excuse for non-performance, in property law it is a defense for a taking, in constitutional law it is

an interpretative rule, not only a rule of construction but ultimately a meta-rule setting

constitutional priority. Perhaps the most complex application of necessity is in international law,

with the historically shifting definitions in the law of war, human rights law, and the law of state

responsibility. In each case, law provides a critical tool to help tame necessity. These legal

definitions form a continuum, refer to each other, and together provide resources to help moderate

the more purely political uses and abuses of ―necessity.‖

452

Image credit to Wallace Stevens‖ Two parallels that meet, if only in the meeting of their

shadows.‖ 453

According to article on Lincoln, The positive duty derogating and overriding any other duty to

enforce any particular provision, where doing so would be in conflict with such a broader conception of

constitutional duty. The first duty of the President of the United States is to preserve, protect, and defend

the nation, through every indispensable means. That duty is both a precondition to and an essential aspect

of the duty to preserve, protect, and defend the Constitution.

Taken together, these are examples of what I call ―complex derogation,‖ which contrasts with the

―primitive derogation‖ of the ―law of peace‖ by the ―law of war.‖ Primitive derogation is the

model adopted by theorists of the mutually exclusive spheres of law/war. This is captured in the

law‘s silence in the presence of force (inter arma leges). According to the comparative

mythologist Georges Dumezil, there is a common model in ancient mythologies between deities

jurist-priest and a warrior-king. The figure of Mitra, in secular form, combines what in

Montesquieu's scheme are legislative and judicial powers; juridical sovereignty meant employing

pacts in peace as both a reasoned judge and legislator, preserving society through the validity of

contracts and fulfillment of formal responsibilities. Varuna rules during times of war and

rebellion, he executes and binds in entirely physical ways. In the time of war the powers of a

leader are much greater than those of a ―judge‖ or law prophet or priest in times of peace.454

Though these might reflect in a simplified way the constant referral between closure and rupture,

legal regulation and its absence… are present in every doctrine of necessity in every field of

international law, the structure here is also a dangerous cliché that must be questioned in the

international context.

What separates ―complex‖ forms of derogation from their ―primitive‖ predecessors is tjat

attention is given to the applicability or non-applicability of specific provisions, rather than

extremely broad over categories (e.g., the ―laws of war‖ derogating the ―laws of peace‖). Instead

the trend is to look at norms in conflict. In Kelsen‘s view, ‗[d]erogation is required if [valid]

norms stand in conflict with each other.‘455

This is true when the norms are of a different

character or level of generality, say ―salus populi‖ or a specific constitutional provision on one

hand, and a treaty obligation on the other. To navigate these norms, a principle of priority or a

third ―derogation norm‖ is required. procedures for reaching decisions, and a pedigree of rules,

thus it is not a tautological imperative where he origin of the law can be found in the tautology:

"the law is the law". Only when the law breaks down, when it becomes a law unto itself, and it

reaches the limits of itself, do we glimpse those limits and acknowledge its contingency by

reference to the phrase ―the law is the law.‖456

Contrary to what some publicists have written, the

454

Georges Dumézil, Mitra-Varuna This twosome was called by the Norse Tyr/Odin and by the

Romans Numa/Jupiter, but as an ideal type Dumezil calls them by their Vedic names, Mitra/Varuna. Mitra

the jurist-priest represents juridical sovereignty; Varuna the magician-king represents political sovereignty. 455

Kelsen, ‗Derogation,‘ in R.A. Newman, ed., Essays in Jurisprudence in Honor of Roscoe Pound

(Indianapolis, IN, American Society of Legal History 1962) pp.at 1437. 456

This is the problem of founding violence. See e.g. Zizek, For They Know Not What They Do:

Enjoyment as a Political Factor. (p. #). (―At the beginning" of the law, there is a certain ‗outlaw‘, a certain

―derogation norm‖ or principle of priority need not be (though it may be) a well-defined

secondary norm. (It may be of course between fact and treaty, then VCLT) Since norms can be of

such a heterogeneous character, actual conflicts of norms are properly settled by mediating norms

which might also be primary norms. For example, the principle of lex specialis is an example of a

secondary norm, but rules on non-derogability found within treaties are primary norms.

In terms of doctrines of necessity, the relation between many doctrines in potential

conflict has been sorted out. For example, the ILC has recognized that the ―circumstances

precluding wrongfulness‖ would not be applicable where HRL and IHL derogability is at stake.

However, this is not the same According to the principle of lex specialis, the meaning of

―necessity‖ will be interpreted in light of are governed by the terms of the treaties or regimes

they exist in (say human rights law or international humanitarian law) rather than general

provisions on necessity, here, general or traditional definitions of ―necessity‖ such as those

codified in the Draft articles. This does not always support grand schemes of ―humanization‖ of

international law, or convergence. On the other hand, where no treaty regime controls, there is a

better case to look at the doctrines in the Draft Articles as applicable custom than some of the

treaty-specific provisions. What is complex about complex practices of derogation, however, is

that a particular technique—e.g. lex specialis— might not settle a matter completely. There is still

the need to look at general and adjacent areas of law to ensure that a specific norm is applicable.

This returns us to the question of alternative regimes of derogability and non-derogability, and the

possibility of a hierarchy among these. Non-derogable in the sense of the derogation clauses, it

may still be vulnerable to non-protection by a court applying the lex specialis principle in a case

involving IHL. However, if the non-derogable rights are found to be jus cogens, this is an

overriding principle, an exception to the very operation of the lex specialis rule. Within the

possibilities, unresolved questions, but none of the possibilities fully support the view that as an

applicable lex specialis IHL eclipses all other international norms and obligations, a view

suggested by Israel in the cases above, and also by the US in successive inquiries into its

activities in the war on terror, first in response to the IA Commission HR, and secondly in its

response to the HRC. According to Professor John Cerone, the ―HRC's position both in General

Comment 29 (referring to lex specialis concerns) and General Comment 31 (as well as in

Burgos/Lopez v. Uruguay) extending a state's jurisdiction beyond its territorial boundaries are

real of violence which coincides with the act itself of the establishment of the reign of the law... The

illegitimate violence by which law sustains itself must be concealed at any price, because this concealment

is the positive condition of the functioning of the law.‖).

both at odds with the US position.‖457

―HRC's position both in General Comment 29 (referring to

lex specialis concerns) at odds with the US position.‖

The specific examples given in this section should also help us answer the more general

question of how to coordinate and prioritize different existing concepts of necessity. The concept

of lex specialis is a principle of priority to decide the applicable law between two kinds of

regimes: lex specialis generalibus derogat ―special law derogates general law‖.458

The continuing

status of this maxim among the sources of international law is somewhat uncertain,459

but it is

given as an example of a ―general principle of law‖ in the travaux préparatoires of the Article 38

of the PCIJ], which suggests it is at the very least applicable to bridge gaps in the application of

law.460

The role of the lex specialis is firmly established in international law.461

If we assume the

various conceptions of necessity fragmented from one another in separate, integrated sets of

457

See recent ASIL Insight written by John Cerone. 458

developed the early principle of lex specialis. Grotius. De Jure Belli Ac Pacis Libri Tres, Book II,

XXIX What rules ought to be observed in such cases [i.e., when parts of a document are in conflict]

Among agreements which are equal in respect to the qualities mentioned [i.e., prohibitions have

priority over allowances], that should be given preference which is most specific and approaches most

nearly to the subject in hand, for special provisions are ordinarily more effective than those that are general.

For Grotius, lex specialis seems to be presented as a default priority principle when other more particular

priority principles failed to resolve the conflict explicitly for reasons of expediency. The next default

principle after lex specialis (in case it fails) is that the provision drafted for the more honorable or expedient

reason has priority. Finally, that which was last said should prevail.2. Pufendorf. Jus Naturae et Gentium,

L. V, Cap. XXI, section 23.; E. Vattel (1758). The law of Nations (Translated, Fenwick), Vol. 3, section

316.Circumstances being in other respects equal, of two laws or two conventions we should give the

preference to the one which is less general and which affects more directly the matter in question, because

the special law admits of fewer exceptions than the general one; it is imposed with greater definiteness, and

appears to be more positively commanded. Let us make use of this example from Pufendorf: There is a

law forbidding persons to carry arms in public on holidays, another law orders them to take up arms and go

to their posts as soon as they hear the sound of the alarm-bell. The alarm is rung on a holiday. They must

obey the second law, which forms an exception to the first. 459

This issue is currently debated, at least tangentially, within the ILC on its work on the

fragmentation of international law: see Fragmentation of International Law. Topic (a): The function and

scope of the lex specialis rule and the question of ‗self-contained regimes‘: An outline, available at

http://www.un.org/law/ilc/sessions/55/fragmentation_outline.pdf. 460

Bin Cheng,General Principles of Law as Applied by International Courts and Tribunals. (195x).

PCIJ: Advisory Committee of Jurists, Procés-Verbaux of the proceedings of the Committee, June 16-July

24, 1920, p. 337. 2. Generalibus specialia derogant

The rule that specific treaties or provisions control general treaties or provisions is not stated in the

Vienna Convention, but has been recognized since the days of Grotius. This rule, known variously as

generalibus specialia derogant, generalia specialibus non derogant, and lex specialis, applies even if a

general provision is later in time but only if there is a conflict between the two provisions. [p. 12] 461

Australia and New Zealand v. Japan: Southern Bluefin Tuna case (Int‘l Tribunal for LOS (27

Aug 1999).121.

subject matters, which are potentially in conflict with one another, there must be principles to

coordinate these conflicts.462

Two examples of this principle have been discussed in passing in the previous chapter‘s

discussion of necessity.463

First, remember the assertion that the derogation clauses of human

rights treaties, which require ―strict necessity‖ and proportionality along with certain procedural

requirements, displace earlier and more general concepts of necessity in international law.

According to the Human Rights Committee‘s General Comment 29, this includes the ―state of

necessity‖ and other circumstances excluding responsibility codified in the Draft Articles on State

Responsibility. However, the principle has also been used to wholesale derogation of human

rights obligations, particularly by the lex specialis of international humanitarian law (IHL) in

situations of armed conflict. In this latter argument, human rights law is cast as more general law

which correlates to a presumably empirical norm of peacetime, and humanitarian law is cast as

the more specific law between the two, because it correlates with the presumably rarer exception

of armed conflict. Those who make this argument are less concerned to prove the rarer

applicability of the law of armed conflict as they have inherited this distinction from classical

international law scholarship, which makes the distinction between the law of peace and the law

of war the primary example of the maxim ―lex specialis derogat lex generalis.‖ What more

general more specific… framed as the modern ―law of peace‖ general application, considered as

two multilateral regimes, it can be argued that more participation adherence than whether the

multilateral regime of HRL remains effective in situations covered by customary IHL. In this

sense, IHL can be seen as the more general area of law. We should not be misled by the laws of

462

The study on "fragmentation of international law" by the International Law Commission focuses

on normative conflicts that illustrate the expanding scope of international law but may challenge the

coherence of the international legal system. The issue has arisen owing to the emergence of a number of

closely integrated sets of rules of international law pertaining to particular subject-areas…‖ 463

Two examples of this principle have been discussed in passing in the previous chapter‘s

discussion of necessity. (1) There is first of all Grotian Strain of switching ―on/off‖: State Responsibility

and Jus Ad Bellum, (2) secondly, remember the assertion that the derogation clauses of human rights

treaties, which require ―strict necessity‖ and proportionality along with certain procedural requirements,

displace earlier and more general concepts of necessity in international law. According to the Human

Rights Committee‘s General Comment 29, this includes the ―state of necessity‖ and other circumstances

excluding responsibility codified in the Draft Articles on State Responsibility. However, the principle has

also been used to wholesale derogation of human rights obligations, particularly by the lex specialis of

international humanitarian law (IHL)

war and peace paradigm.464

What matters is not ―specificity‖ or ―generality‖ of areas of law in the

abstract, but rather the relative possibility of specific application to a case at hand.

More systematically, the questions that bear on the relationship between IHL and HRL

are the implications of lex specialis between two multilateral treaty regimes, and whether the

derogation regime (non-derogable rights) has the status of jus cogens. The ICJ, in the Rights of

Passage case, said bilateral arrangement, lex specialis determination of ―specific rights and

obligations… prevail over any general rules.‖465

Fragmentation is the multiplication of this

phenomenon, the differentiation between types of special law, a conflict between different types

of special law.466

What matters is not ―specificity‖ or ―generality‖ of areas of law in the abstract,

but rather the relative possibility of specific application to a case at hand. Which rule to apply

would then depend how a the issues in a case would be framed in this regard. Framing of an issue

is crucial to its determination, what is shown to be salient and relevant, the figure-ground

reversals between humanitarian law and human rights characteristics of a case may perhaps be

even the irreducible factor for the correctness of its resolution. The responses are bound to vary

depending on which one chooses as the relevant frame of legal interpretation. Secondly.

Emergency measures are rarely ―internal‖ or purely bilateral matters, multilateral effect… erga

omnes, jus cogens… multilateral obligations to respect and ensure fundamental rights. This

principle of precedence in favor of particular provisions is, however, subject to one important

qualification, namely, that the general provision involved does not constitute a rule of mandatory

or peremptory law (jus cogens).467

464

The question of how to deal with specialised sets of rules in their relationship to general law and

to each other is usually dealt with by two sets of doctrines: the interpretative maxim lex specialis derogat

lex generali and the doctrine of self-contained regimes. In the following two sections certain introductory

points will be made about the two.. The function and scope of the lex specialis rule and the question of

'self-contained regimes' A clear illustration of its applicability is afforded by instruments relating to the

laws of war which, in the absence of evidence of a contrary intention or other special circumstances, must

clearly be regarded as a leges speciales in relation to instruments laying down peace-time norms concerning

the same subjects. Apart from relatively simple cases of this kind, the limits of the principle must be

regarded as doubtful. 465

ICJ Reports 1960, p. 6 at para. 44. See also the Tunisia/Libya Continental Shelf case, ICJ Reports

1982, p. 18 at para. 38. 466

Koskenniemi illustratres this kind of conflict by reference to debates on trade and environment.

―In the Beef Hormones case, the Appeals Body of the World Trade Organization (WTO) considered the

status of the so-called "precautionary principle" under the WTO covered treaties. It concluded that

whatever the status of that principle "under international environmental law", it had not become binding for

the WTO. This approach suggests that "environmental law" and "trade law" might be governed by different

principles.‖ 467

Verzijl, J.H.W. International Law in Historical Perspective, Vol. I. Sijthoff: 1968. pp. 77-89.

the heading Relation Between the Sources. [p. 78]

On the question of whether the regime of HRL remains effective in situations covered by

IHL, the principle of lex specialis is discussed in two cases, both advisory opinions, documenting

the current jurisprudence of the ICJ: The Nuclear Weapons Advisory Opinion and the Wall

Advisory Opinion. Nuclear Weapons Advisory Opinion was the court‘s first sustained discussion

of the principle of lex specialis in the context of these two regimes. The court took no position on

the theoretical debate on the ―convergence‖ of HRL and IHL, but did indicate that in practice,

there will be situations of simultaneous application. The opinion did not state that the application

of IHL precludes consideration of HRL issues, but instead that in order to be able to answer

questions about HRL obligations, (such as the deprivation of life, arbitrary detention, etc, the lex

specialis of IHL would have to be invoke (relevant provisions): ―It was suggested that the

Covenant was directed toward the protection of human rights in peacetime, but that questions

relating to unlawful loss of life in hostilities were governed by the law applicable in armed

conflict. What matters is not ―specificity‖ or ―generality‖ in the abstract, but rather the relative

possibility of specific application to a case at hand. The specific examples given in this section

should also help us answer the more general question of how to coordinate and prioritize different

existing concepts of necessity. The concept of lex specialis is a principle of priority to decide the

applicable law between two kinds of regimes: lex specialis generalibus derogat ―special law

derogates general law‖.468

The continuing status of this maxim among the sources of international

law is somewhat uncertain,469

but it is given as an example of a ―general principle of law‖ in the

468

developed the early principle of lex specialis. Grotius. De Jure Belli Ac Pacis Libri Tres, Book II,

XXIX What rules ought to be observed in such cases [i.e., when parts of a document are in conflict]

Among agreements which are equal in respect to the qualities mentioned [i.e., prohibitions have

priority over allowances], that should be given preference which is most specific and approaches most

nearly to the subject in hand, for special provisions are ordinarily more effective than those that are general.

For Grotius, lex specialis seems to be presented as a default priority principle when other more particular

priority principles failed to resolve the conflict explicitly for reasons of expediency. The next default

principle after lex specialis (in case it fails) is that the provision drafted for the more honorable or expedient

reason has priority. Finally, that which was last said should prevail.2. Pufendorf. Jus Naturae et Gentium,

L. V, Cap. XXI, section 23.; E. Vattel (1758). The law of Nations (Translated, Fenwick), Vol. 3, section

316.Circumstances being in other respects equal, of two laws or two conventions we should give the

preference to the one which is less general and which affects more directly the matter in question, because

the special law admits of fewer exceptions than the general one; it is imposed with greater definiteness, and

appears to be more positively commanded. Let us make use of this example from Pufendorf: There is a

law forbidding persons to carry arms in public on holidays, another law orders them to take up arms and go

to their posts as soon as they hear the sound of the alarm-bell. The alarm is rung on a holiday. They must

obey the second law, which forms an exception to the first. 469

This issue is currently debated, at least tangentially, within the ILC on its work on the

fragmentation of international law: see Fragmentation of International Law. Topic (a): The function and

scope of the lex specialis rule and the question of ‗self-contained regimes‘: An outline, available at

http://www.un.org/law/ilc/sessions/55/fragmentation_outline.pdf.

travaux préparatoires of the Article 38 of the PCIJ], which suggests it is at the very least

applicable to bridge gaps in the application of law.470

The role of the lex specialis is firmly

established in international law.471

If we assume the various conceptions of necessity fragmented

from one another in separate, integrated sets of subject matters, which are potentially in conflict

with one another, there must be principles to coordinate these conflicts.472

3. Lex Specialis

Here I will survey two additional developments in coordination of these self-contained

regimes by ―mainstream‖ bodies: (1) the use of lex specialis by the ICJ, and the (2) codification

of State responsibility by the ILC. The ICJ observes that there are three possible situations: [1]

some rights may be exclusively matters of international humanitarian law; [2] others may be

exclusively matters of human rights law; [3] yet others may be matters of both of these branches

of international law. In order to answer the question put to it, the Court will have to take into

account both of these areas of international law, namely human rights law and, as lex specialis,

international humanitarian law. The ICJ has recently hinted that between two types of special

law, such as human rights and humanitarian law, the applicable meta-rule regarding normative

conflict would be the maxim ―special law (lex specialis) derogates general law.‖ Just as the

positivist conception of derogation is a way of resolving conflict of primary rules, the principle of

lex specialis is potentially a navigational tool for avoiding conflict between alternative derogation

norms. The lex specialis principle is an expression of preference for rules that are ―on point‖ or

else specialized international regimes over general international law.

Despite the default position (reminiscent of primitive derogation) taken by the ICJ, it is

not at all clear which law should get priority between human rights and humanitarian law,

between two different sets of specialized rules. Wilfred Jenks suggested in 1953 that ―instruments

470

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals. (195x).

PCIJ: Advisory Committee of Jurists, Procés-Verbaux of the proceedings of the Committee, June 16-July

24, 1920, p. 337. 2. Generalibus specialia derogant. The rule that specific treaties or provisions control

general treaties or provisions is not stated in the Vienna Convention, but has been recognized since the days

of Grotius. This rule, known variously as generalibus specialia derogant, generalia specialibus non

derogant, and lex specialis, applies even if a general provision is later in time but only if there is a conflict

between the two provisions. [p. 12] 471

Australia and New Zealand v. Japan: Southern Bluefin Tuna case (Int‘l Tribunal for LOS (27

Aug 1999).121. 472

The study on "fragmentation of international law" by the International Law Commission focuses

on normative conflicts that illustrate the expanding scope of international law but may challenge the

coherence of the international legal system. The issue has arisen owing to the emergence of a number of

closely integrated sets of rules of international law pertaining to particular subject-areas…‖

relating to the laws of war which, in the absence of evidence of a contrary intention or other

special circumstances, must clearly be regarded as leges speciales in relation to instruments

laying down peace-time norms concerning the same subjects.‖473

This would suggest a neat

division of labor between humanitarian and human rights law based on applicability during

wartime/peacetime or one during international/internal conflicts. However, the entire regime of

human right law has come into maturity since that time and today each area covers much more

than its core subject matter. In this context, it is worth considering the ICJ‘s decision in the

Legality of Threat or Use of Nuclear Weapons case (1996) in which the discussed the relationship

between Article 4 of the International Covenant on Civil and Political Rights and the laws

applicable in armed conflict. This case acknowledged the non-derogable status of the right to life

within Article 6 of the ICCPR474

as having continuing legal effect475

in an armed conflict, but

gave humanitarian law ultimate priority. In holding that the ICCPR extends to times of war, the

Court stated:

The Court observes that the protection of the International Covenant of Civil and Political

Rights does not cease in times of war, except by operation of Article 4 of the Covenant

whereby certain provisions may be derogated from in a time of national emergency.

Respect for the right to life is not, however, such a provision. In principle, the right not

arbitrarily to be deprived of one‘s life applies also in hostilities. The test of what is an

arbitrary deprivation of life, however, then falls to be determined by the applicable lex

specialis, namely, the law applicable in armed conflict which is designed to regulate the

conduct of hostilities.476

This decision has been hailed as a confirmation of a modern view—simultaneous application

rather than displacement— and countering the longstanding fragmentation between law of armed

conflict and international human rights law.477

Here the court decided that the applicable lex

specialis is the law ―designed to regulate the conduct of hostilities.‖ It also recognized a

473

Wilfred Jenks, The Conflict of Law-Making Treaties, 30 The British Yearbook of International

Law 401, 446-447 (1953). The application of the lex specialis principle goes back to the great founders of

international jurisprudence: Grotius, Vattel, and Pufendorf. 474

. ICCPR (6) (1) (―Every human being has the inherent right to life. This right shall be protected

by law. No one shall be arbitrarily deprived of his life.‖). 475

.Nuclear Weapons at para. 25. 476

. Nuclear Weapons at para. 25. 477

. Theodor Meron, On the Inadequate Reach of Humanitarian Norms and Human Rights Law and

the Need for a New Instrument, 77 American Journal of International Law 589 (1983); R. Quentin Baxter,

Human Rights and Humanitarian Law- Confluence of Conflict?, 9 Australian Yearbook of International

Law 94 (1985). The confluence of human rights and humanitarian law was first formally recognized at the

Proclamation of Teheran, May 13, 1958, International Conference on Human Rights.

convergence of the humanitarian principles in both areas of law.478

However, the odd effect of the

case is to convert humanitarian principles as ―secondary rules‖ to determine the interpretation and

application of human rights rules that are already governed by the derogation clause. In fact, the

rules of humanitarian law and the derogation regime are ―specialized rules‖ in two different

senses. It is only the derogation provisions that are properly secondary rules. International

humanitarian law is specialized in the sense that it applies only in the case of its subject matter,

which is the exceptional situation of war. The derogation regime also covers special

circumstances, but it is also a set of secondary rules, and as such available only to interpret the

applicability of derogation from the provisions of the treaties. By breaking down the internal

relation between primary and secondary rules of a regime, this decision is a frontal attack on

fragmentation. One could imagine it is also a fundamental challenge to the functioning of the

derogation regime, particularly the ECHR which imagines itself as governing derogations during

war among other emergencies and therefore also non-derogable rights. It remains to be seen how

these two regimes reconcile their governance of emergency situations or armed conflicts.479

The ICJ‘s invocation of lex specialis is one important intervention by the mainstream

(though it shouldn‘t be mistaken for a ―sovereign‖ ICJ stepping in to fix disorder). IHL provides

the overarching framework to interpret provisions, including human rights provisions. The ICJ in

Nuclear Weapons says ―the test‖ of what is properly considered ―an arbitrary deprivation of life‖

is determined by the ―applicable lex specialis‖ (IHL), thus even when interpreting Article 6 of the

covenant (arbitrary deprivation of life‖ this provision, ―can only be decided by reference to the

law applicable in armed conflict and not deduced from the terms of the Covenant itself.‖ (para

25). Hermeneutic distinction, changes. In other words, ―right to life‖ and ―arbitrary‖ cannot mean

the same thing in the context of an armed conflict tat they mean, more absolute terms, in

peacetime. Contextual reading… But does this make sense? Arbitrary detention, torture, etc. are

subjects of specific treaties, and treaty obligations, Convention against torture, and also non-

derogable right in ICCPR. But could also be seen as generally jus cogens? What then is the

applicable lex specialis? Nuclear Weapons distinction between interpretive framework, and

478

Dale Stephens, Human Rights and Armed Conflict-- The Advisory Opinion of the International

Court of Justice in the Nuclear Weapons Case, 4 Yale Human Rights and Development Law Journal 1

(2001). 479

Article 15 ECHR may state the possibility of restrictions to the human rights in war, but it goes

on to list a catalogue of non-derogable rights. These include the right to life (art 2), the prohibition of

torture (art 3), and the prohibition of slavery and forced labor (art 4). Furthermore, ECHR declares, as

between the parties, it shall operate as a lex specialis.

complementarity of norms, more favored by the HRC, may not make much sense in other

contexts. Rights are contextual and not absolute.

The notion of "arbitrary" deprivations of life are contestable even within the customs of

war, which has shifted over time, ranging from atavistic notions of a ―duty to die for the state‖

dating to the 14th century480

through modern notions that interpret the right to life as against the

state in a strict manner (fn). Arbitrary deprivations of life are treated differently in the ICCPR, the

ECHR, and in the customary and conventional IHL. the mere diversity of these regimes and

instruments prevents even such a seemingly basic provision from being considered either super-

customary law or jus cogens. However, these divergences have historical bases and should not

be seen as providing a knockdown argument against `any possibility of jus cogens whatsoever.

consider the form of argument, "If even life is not absolute, how absolute can a prohibition on

torture be?" [Expand example of how what a sub-systemic version of HRL standards might look

like].

4. Lex Specialis Involving United States and Israel Emergency

Measures

[expand and update]. Recently, the US has seized upon the notion of ―lex specialis‖

which it has little use for until its war on terror. In terms of international law, this privileges

IHL— formalistic readings of IHL— as restrictive as possible of international law. This is in

tandem with more novel permutations of IHL in domestic executive orders, regulations and

legislation, which deformalizes the IHL framework.481

One of many alternative methods arrived

480

See Ernst H. Kantorowicz, "Pro Patria Mori in Medieval Political Thought,‖ American Historical

Review 56, no. 3 (April 1951), pp. 347-92. (on the corporate legal personality, pulling together

"organological" analogies body of state, king and population Kantorowicz notes that, as early as the

campaign in Flanders undertaken by Philip IV (1285-1314), kings began to claim that such a duty was

owed to the sovereign ruler. 481

President Bush, for his part, has applied a doctrine of prudence when determining to whom the

Geneva Convention applies. The Third Geneva Convention describes the rights of captured combatants

and defines POW status. The Fourth Geneva Convention covers the treatment of both unlawful combatants

and innocent civilians. According to the International Committee of the Red Cross, there is no gap between

the Third and Fourth Geneva Conventions - no one can fall outside the law. However, in February 2002,

President Bush determined that Al Qaeda terrorists were not prisoners of war under the Third Geneva

Convention, since Al Qaeda did not qualify as a state. The president also determined that while the Taliban

— Al Qaeda's collaborators — were covered by the treaty, they did not qualify as prisoners of war under

the terms of the treaty since combatants must distinguish themselves from the civilian population. In the

months following September 11, the White House promulgated guidance that the Geneva Conventions—

treaties signed and ratified by the United States and governing U.S. conduct in circumstances of armed

conflict—would not apply to broad categories of individuals arrested in the course of the ―global war on

at the same result. After September 11, 2001, in the Authorization for Use of Military Force (AUMF)

Congress authorized the President to ―use all necessary and appropriate force against those

nations, organizations, or persons he determines, planned, authorized, committed, or aided the

terrorist attacks on September 11, 2001, or harbored such organizations or persons, in order to

prevent any future acts of international terrorism against the United States ...‖482

[The AUMF was

later re-contextualized as a sweeping emergency declaration effecting internal and external

applications of HRL.]

terror.‖ In particular, in a reversal of more than fifty years of U.S. policy and over the vigorous objections

of the Secretary of State at the time, the White House concluded that the Geneva Convention regarding the

treatment of prisoners of war, apparently including its prohibition of cruel treatment, would not apply to

suspected members of Al Qaeda. While the President and Secretary of Defense issued statements in early

2002 that the United States would—as a matter of policy (as distinct from legal obligation)—treat detainees

in a manner ―reasonably consistent with the Geneva Conventions,‖ these statements were limited by

caveats that treatment would depend on the extent to which such treatment was appropriate and consistent

with military necessity, and on determinations about whether detainees were ―unlawful combatants‖ or

―high value detainees‖ or other designations unknown in existing military doctrine. Later that year, in

August 2002, the Office of Legal Counsel in the Department of Justice (―OLC‖) also produced policy

guidance on the treatment of detainees in the custody of the United States. Most famously, OLC concluded

with respect to the use of coercive interrogation that for physical pain inflicted by an interrogator to amount

to torture, the ―victim must experience intense pain and suffering of the kind that is equivalent to the pain

that would be associated with serious physical injury so severe that death, organ failure, or permanent

damage resulting in a loss of significant bodily function will likely result.‖� (Among other things, this

definition went into detail well beyond the definition in the federal criminal law banning torture, defined

simply as including any act ―specifically intended to inflict severe physical or mental pain or suffering.‖�)

On the question of presidential authority, OLC lawyers advised, inter alia, that the President not only had

the authority to order any and all treatment falling short of the pain associated with organ failure or death,

but also that it would be unconstitutional for Congress to pass legislation (including the criminal

prohibition against acts of torture already in the federal criminal code) that would interfere in this exercise

of power. For the U.S. invasion of Iraq, in April 2003, the Administration adopted a new approach. It stated

publicly that it would only hold detainees in that conflict under the protection of one or the other of the two

most relevant Geneva Conventions regarding prisoners of war and civilians picked up in the course of

armed conflict—presumably including their prohibitions of cruel treatment. Despite the apparent return to

the standard Geneva regime for the war in Iraq, additional policy-level judgments worked quickly to cloud

the picture. Established military doctrine implementing the Geneva regime had recognized four categories

of detainees: enemy prisoners of war, retained personnel, civilian internees, and a catch-all ―other detainee‖

category. Without updating that doctrinal guidance, the United States began housing thousands of detainees

whose non-doctrinal identification brought with it indeterminate legal status: enemy combatants,

unprivileged enemy combatants, security internees, criminal detainees, military intelligence holds, persons

under U.S. forces control, and low-level enemy combatants. Traditional categories like ―prisoner of war‖

were used for only a handful of the many thousands the U.S. held in custody. As command and troops were

transferred from Afghanistan to Iraq, the shifting set of apparently applicable rules—including what kind of

treatment attached to what kind of detainee—became increasingly difficult to follow. At the same time,

OLC lawyers again worked to recast seemingly clear Geneva provisions, this time, for instance, on the

question of whether Geneva permitted the Administration to remove certain detainees from Iraq for

interrogation elsewhere. Article 49 of Geneva IV broadly prohibits the removal of ―protected persons from

occupied territory.‖ 482

Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001).

Has the United States long believed that the law of armed conflict – international

humanitarian law – provides the proper legal framework regarding some of these questions? In

other words, the ICCPR doesn't apply at all to the conflict with Al Qaeda -- even within the U.S. -

- because IHL is lex specialis, and not only the ICCPR but also the Convention Against Torture

does not apply to armed conflicts.483

Five years into the war on terror, the words ―lex specialis‖

became familiar to the administration to privilege humanitarian law, such as the Geneva

Conventions, over human rights law. It is perhaps unsurprising that the Bush Administration has

given very limited attention to the ICCPR. It was not mentioned in the White House‘s Fact Sheet

regarding international law covering the Guantanamo Prisoners in February 2002. Before the

plaintiffs in the Odah and Rasul cases raised it, the only place the ICCPR is explicitly mentioned

by the Bush Administration is in answering the Inter-American Commission on Human Rights‘

petition for information regarding the prisoners, claiming that humanitarian law of the Geneva

Conventions is the appropriate lex specialis covering the prisoners.

What accounts for the U.S.‘s isolation and disregard of ICCPR human rights standards?

The United States does not submit its practices to international judicial bodies for binding

adjudications concerning human rights compliance. The United States‘ non-self-executing

declaration to the ICCPR renders the treaty non-enforceable by domestic courts unless and until

Congress acts to domesticate the treaty‘s terms.484

This contrasts with the European Human

Rights System, which has in effect achieved human rights review by an international court rather

than, as in the United States, by a domestic constitutional court. The vast majority of nations that

have ratified the ICCPR do not apply the treaty in domestic courts.485

In these nations,

constitutional law prohibits the treaties from becoming enforceable domestic law in the absence

of separate implementing legislation. Thus, the ICCPR is a non-self- executing treaty that does

not create any judicially enforceable rights in this country, and cannot be read to override U.S.

law.486

483

See John Bellinger's statement before the Committee on Torture that the Convention Against Torture

does not apply to armed conflicts. 484

Congress has never implemented the ICCPR it has enacted implementing criminal legislation for

the Torture Convention, the Genocide Convention, and the Geneva Convention. 485

Christopher Harland, The Status of the International Covenant on Civil and Political Rights

(ICCPR) in the Domestic Law of State Parties: An Initial Global Survey Through UN Human Rights

Committee Documents, 22.1 Human Rights Quarterly 187 (2000), and Christof Heyns and Frans Viljoen,

The Impact of the United Nations Human Rights Treaties on the Domestic Level, 23 Human Rights

Quarterly 483 (2001). 486

Even putting aside lex specialis arguments, this gap is unlikely to be bridged until the U.S. fully

implements the ICCPR by making it 'self-executing' and therefore making its provisions directly

In context of the detentions, the Inter-American Commission on Human Rights has emphasized

the relevance of international humanitarian law to analyzing counter-terrorism measures taken by

States in certain circumstances:

[I]n situations of armed conflict, the protections under international human rights and

humanitarian law may complement and reinforce one another, sharing as they do a

common nucleus of non-derogable rights and a common purpose of promoting human

life and dignity. In certain circumstances, however, the test for evaluating the observance

of a particular right, such as the right to liberty, in a situation of armed conflict may be

distinct from that applicable in time of peace. In such situations, international law,

including the jurisprudence of this Commission, dictates that it may be necessary to

deduce the applicable standard by reference to international humanitarian law as the

applicable lex specialis.487

If the Administration would take the formality of lex specialis seriously, it would also appear to

be making a parallel move to excluding human rights law and establish humanitarian law (or a

deformalized permutation of it) as the applicable minimum standard. The U.S. is a party to the

Geneva Conventions of 1949, to which are the principal international law agreements comprising

international humanitarian law. The Geneva Conventions are not self-executing but are codified

in military regulations duly adopted and binding on the United States military.

One of the reasons humanitarian law appears to be more palatable to emergency

governments than human rights law is that it seems deceptively simple to apply. It lists a few

things a state cannot do under the rubric of ―military necessity‖ and seems to give blanket

permission otherwise. Even as they the administration privileged humanitarian law as the only

possible body of law applicable, they deformalized the Geneva conventions and demoted them

into prudent policy, a standard of military necessity. This reflects organizational standards, a

more durable, if minimal, law-regarding culture within the pentagon that transcends particular

administrations and their views on international law. [: Such a principle is a likely an accident of

history which began with the so-called ―Lieber Code‖ a document that codified many of the

principles later in the Geneva Conventions, prepared by a German emigrant for Lincoln‘s War

Department.488

] Culture of the pentagon respects the law of war far surpassing any commitment

enforceable in its domestic law. see also, e.g., Flores v. Southern Peru Copper Corp., No. 02-9008, 2003

WL 22038598, at 18 n.35 (2d Cir. Sept. 2, 2003). 487

―Precautionary Measures in Guantanamo Bay, Cuba‖, Inter-American Commission on Human

Rights, March 13, 2002. 488

See biography by F. Freidel (1948, repr. 1968); R. S. Hartigan, Lieber's Code and the Law of War

(1983).The first recorded attempt to codify the Law of War was the Lieber Code. It came into force in April

1863 to regulate the Union soldiers who are combating in the American Civil War. Nonetheless, it was not

the international landmark document that marked the commencement of the first codified International

Humanitarian Law. It was the 1864 Geneva Convention that is known as the first milestone of modern

to international human rights law.489

As to the issue, relying on Meron, whose larger agenda

includes minimum standards in civil strife, the US has been repeating lex specialis claim at every

opportunity, making clear its preference for a policy which seemed too academic to address in the

years after Nuclear Advisory opinion. The General Comment 29 highlights the ―rules of

international humanitarian law.‖

Thus, while invoking humanitarian law, the Bush Administration has suggested that the

President is not bound by the Geneva Conventions in any practical sense -- because the President

has unfettered discretion to interpret the treaties as he sees fit.490

In response to Al Odah v.

United States,491

Solicitor General Ted Olsen issued a Justice Department legal memorandum

stating that the government‘s position ―does not mean that aliens detained by the military abroad

are without rights, but rather that the scope of those rights are to be determined by the Executive

codified International Humanitarian Law. According to the International Red Committee of the Red Cross,

it is a collection of international treaties of customary rules which are specifically intended to resolve

matters of humanitarian concern. The covered matters include those that arise directly from armed conflicts

either local or international. For humanitarian reasons, those rules restrict the rights of the parties to a

conflict to select the method or means of warfare. They also protect persons and property affected by the

conflict. The During the Civil War, he prepared for the Union government Instructions for the Government

of Armies of the United States in the Field, known in its final form as General Order No. 100, issued in

1863. It was the basis for later efforts to codify the international law of war. After the Civil War, Lieber

joined the radical Republicans. Hartigan: Section 15 of these Orders reads: "Military necessity admits of all

direct destruction of life or limb of armed enemies, and other persons whose destruction is incidentally

unavoidable in the armed contests of war....." Naturally, the decision as to which persons it was "whose

destruction is incidentally unavoidable" was best left to commanders in the field, or their superiors. 489

Pressure to observe mutuality of these rules, more relevant and more meaningful. U.S.

involvement historically since the Civil War in developing standards that resulted first in the Lieber Code

and later in the Geneva and Hague Conventions. 490

Thus, while invoking humanitarian law, the Bush Administration has suggested that the President

is not bound by the Geneva Conventions in any practical sense -- because the President has unfettered

discretion to interpret the treaties as he sees fit. In response to Al Odah v. United States,� Solicitor

General Ted Olsen issued a Justice Department legal memorandum stating that the government‘s position

―does not mean that aliens detained by the military abroad are without rights, but rather that the scope of

those rights are to be determined by the Executive and the military, not by the courts.‖ It is not surprising

that an emergency government, let alone an exceptionally powerful one, would make explicit arguments

from prudence, attempting to be unbound by international law while at the same time appealing to aspects

of it to give their decisions the texture of ―legality.‖ Under current American military regulations, "all

persons taken into custody by U.S. forces will be provided with the protections of the Third Geneva

Convention until some other legal status is determined by competent authority." What do the dictates of

military necessity say here? Such a reality may justify some relaxation of the customary treatment of

prisoners of war, but it certainly does not validate the sort of humiliating and vindictive conditions of

confinement associated with Guantánamo Bay, Cuba, or the transfer of prisoners by U.S. officials to

countries relying upon torture.

491

321 F.3d 1134 (D.C. Cir. 2003).

and the military, not by the courts.‖492

The import of such a policy cannot be underestimated.

According to the petitioners in the Odah case, ―It is a widely accepted principle of international

law that the application of international humanitarian law does not ―exclude or displace‖ the

application of international human rights law, since both share a ‗common nucleus of non-

derogable rights and a common purpose of protecting human life and dignity.‘‖493

Also in context

of the detentions, the Inter-American Commission on Human Rights has emphasized the

relevance of international humanitarian law to analyzing counter-terrorism measures taken by

States in certain circumstances:

[I]n situations of armed conflict, the protections under international human rights and

humanitarian law may complement and reinforce one another, sharing as they do a

common nucleus of non-derogable rights and a common purpose of promoting human

life and dignity. In certain circumstances, however, the test for evaluating the observance

of a particular right, such as the right to liberty, in a situation of armed conflict may be

distinct from that applicable in time of peace. In such situations, international law,

including the jurisprudence of this Commission, dictates that it may be necessary to

deduce the applicable standard by reference to international humanitarian law as the

applicable lex specialis.494

If the Administration is now taking the formal tool of lex specialis seriously, it would also appear

to be making a parallel move to excluding human rights law and establishing humanitarian law

(or a deformalized permutation of it) as the applicable minimum standard.495

The Administration

has argued for different unilateral variations on IHL over the years, the latest of which is codified

in the Military Commissions Act, which creates a novel regime of minimal protections based on

Common Article 3 of the Geneva Conventions. One of the reasons humanitarian law appears to

be more palatable to emergency governments than human rights law is that it seems deceptively

simple to apply. It lists a few things a state cannot do under the rubric of ―military necessity‖ and

seems to give blanket permission otherwise. Even as they the administration privileged

humanitarian law as the only possible body of law applicable, they deformalized the Geneva

492

Defendants‘ Reply in Support of Motion to Dismiss, Al Odah v. United States, Civil Action No.

02-CV-828 (CKK) (D.D.C. 2002) . 493

In The Supreme Court of the United States Shafiq Rasul, Et Al., Petitioners v. George W. Bush,

Et Al. Fawzi Khalid Abdullah Fahad Al Odah, Et Al., Petitioners V. United States Of America, Et Al. On

Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia

Circuit Brief For The Respondents In Opposition Nos. 03-334 and 03-343 494

―Precautionary Measures in Guantanamo Bay, Cuba‖, Inter-American Commission on Human

Rights, March 13, 2002. 495

The U.S. is a party to the Geneva Conventions of 1949, to which are the principal international

law agreements comprising international humanitarian law. The Geneva Conventions are not self-executing

but are codified in military regulations duly adopted and binding on the United States military.

conventions and demoted them into prudent policy, a standard of military necessity. This reflects

organizational standards, a more durable, if minimal, law-regarding culture within the pentagon

that transcends particular administrations and their views on international law.496

Culture of the

pentagon respects the law of war far surpassing any commitment to international human rights

law.497

The selective enforcement of IHL provisions. At the same time, President Bush continues

to recognize the U.S. as a strong supporter of the Geneva treaties. The President has announced

that "[t]he United States is treating and will continue to treat all of the individuals detained at

Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a

manner consistent with the principles of the Third Geneva Convention of 1949."498

In making

such a statement, the president reaffirms policy not rule, and in a troubling move, brings

―necessity‖ to the foreground, which can be linked to an attempt to over-determine outcomes.

Necessity is a vacant imperative and a man-made ―must‖; it justifies expediency in terms of

inevitability499

. 1Prudence, on the other hand, involves breaking inefficient rules. Prudence

496

Such a principle is a likely an accident of history which began with the so-called ―Lieber Code‖ a

document that codified many of the principles later in the Geneva Conventions, prepared by a German

emigrant for Lincoln‘s War Department. See biography by F. Freidel (1948, repr. 1968); R. S. Hartigan,

Lieber's Code and the Law of War (1983).The first recorded attempt to codify the Law of War was the

Lieber Code. It came into force in April 1863 to regulate the Union soldiers who are combating in the

American Civil War. Nonetheless, it was not the international landmark document that marked the

commencement of the first codified International Humanitarian Law. It was the 1864 Geneva Convention

that is known as the first milestone of modern codified International Humanitarian Law. According to the

International Red Committee of the Red Cross, it is a collection of international treaties of customary rules

which are specifically intended to resolve matters of humanitarian concern. The covered matters include

those that arise directly from armed conflicts either local or international. For humanitarian reasons, those

rules restrict the rights of the parties to a conflict to select the method or means of warfare. They also

protect persons and property affected by the conflict. The During the Civil War, he prepared for the Union

government Instructions for the Government of Armies of the United States in the Field, known in its final

form as General Order No. 100, issued in 1863. It was the basis for later efforts to codify the international

law of war. After the Civil War, Lieber joined the radical Republicans. Hartigan: LIEBER'S CODE AND

THE LAW OF WAR Section 15 of these Orders reads: "Military necessity admits of all direct destruction

of life or limb of armed enemies, and other persons whose destruction is incidentally unavoidable in the

armed contests of war....." Naturally, the decision as to which persons it was "whose destruction is

incidentally unavoidable" was best left to commanders in the field, or their superiors. 497

Pressure to observe mutuality of these rules, more relevant and more meaningful. U.S.

involvement historically since the Civil War in developing standards that resulted first in the Lieber Code

and later in the Geneva and Hague Conventions. 498

Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo 1 (Feb.

7, 2002) <www. whitehouse.gov/news/releases/2002/02/20020207-13.html>. 499

Necessity should be understood as a polemical concept. It is not inherently provable. As a

polemical concept, it would be performatively sufficient to call a proposed course of action ―necessary.‖

Thus the phrases, ―necessity of jihad,‖ ―necessity of war,‖ ―necessity of genocide,‖ and ―necessity of

domination of foreign markets‖ are all logically coherent, but each invites a justifiable skepticism toward

supposes that the actions of the political actor will benefit a collectivity. Prudence, as opposed to

opportunism, is not anathema to projects of international law.

However, an increasing insistence on the lex specialis of IHL, becoming more credible in

light of Hamdan, In other words, their position appears to be that the IHL -- Geneva in particular,

perhaps the customary laws of armed conflict more broadly -- supersede all other human rights

treaty obligations in armed conflicts, including that with Al Qaeda, and those in Iraq and

Afghanistan. From their perspective, this was a very helpful theory pre-Hamdan because,

conveniently, Al Qaeda detainees in their view were not protected by Geneva. Now that Common

Article 3 applies, however, these lex specialis arguments perhaps are not so important. two

separate issues raised by the US and Israel in their respective conflicts: (i) the ICCPR does not

apply extraterritorially, and (ii) even if it did, IHL is applicable, and human rights law is not.500

The ICJ in Nuclear Weapons and in the Wall case did say that IHL was lex specialis in

prohibition of all other norms, but that human rights law continues to apply through the

interpretative lens of IHL. That is after all the basic idea of human rights, that you have them

simply because you are human. This is a selective appropriation of the lex specialis principle. The

simplicity of the war/peace dichotomy makes little sense in the context of emergency and internal

conflict, occupation, or extraterritorial emergency measures, and in their development both

human rights law and humanitarian law have had to contend with this. The view of the US,

relying on Professor Meron‘s explanation of lex specialis and offered successively to the Inter-

American Commission, the Committee against Torture, and the Human Rights Committee, as

well as to the United States Supreme Court in the Hamdan case, can be accepted without

accepting the implications the US draws from the argument. In other words, one can accept the

basic lex specialis methodology and the priority of IHL in all kinds of armed conflict without

accepting the outcome where human rights are derogated tout court. One possibility for

convergence is the incorporation of applicability of common article 3 of the Geneva Conventions

of 12 August 1949, as ―reflective‖ of the minimum fundamental rights guaranteed by the

Covenant, in any armed conflict. This is closer in spirit to the argument made by Professor Meron

in the articles cited by the US. These are unresolved questions, but none of the possibilities fully

the actual necessity of these actions. However, when necessity is given a more minimal content– for

example the ―necessity of self-preservation‖ it somehow seems more convincing, even axiomatic. This is

only because the moral appeal and the self-interested appeal of ―self-preservation‖ overlap and invite little

controversy. 500

The United States relies then on the persistent objector rule, and indeed it has been a consistent and

persistent objector.Run down record.

support the view that an applicable lex specialis eclipses all other norms and obligations. Another

way to understand the American argument is to pace Gerald Fitzmaurice view lex specialis as a

removal of a category (subject matter) from consideration… cannot consider human rights law

here. Or conversely that general international law can have nothing to say about the law of war

(or the law of the sea for that matter), This latter interpretation of the principle would probably be

on the weakest footing.

Yet, both overlaps and gaps exist, and writing in a comparative and theoretical context,

Rene Provost, sees in these an opportunity: ―finding in one system answers that may be borrowed

and adapted to solve challenges faced by another legal system whose interests are being

trampled.‖501

At the same time, in practice, the overlay of one system over another acts as a

partial eclipse of possibilities in the other regime.

The Wall Advisory Opinion (2002)

Emergency measures international order: ―The wall dispute, however, is far from being a purely

bilateral matter; it involves broad dangers to international peace and security.‖ Applications to

Emergency Governance Although, under Ago's analysis, this might be more onerous from Israel's

perspective, it would still be required as an alternative to violating Palestinian rights by a wall

built in the West Bank. Second, the wall seriously impairs an essential interest of the states

towards which Israel's obligations exist, and of the international community. According to the

ILC commentary, "the interest relied on must outweigh all other considerations, not merely from

the point of view of the acting State but on a reasonable assessment of the competing interests,

whether these are individual or collective."502

Israel's obligations run not only to Palestine as a

state, but to other states individually and to the international community. Humanitarian law

obligations are erga omnes, meaning that they run to other states and to the international

community. state's jurisdiction. "[T]he [HRC] reached the following conclusion: 'in the current

circumstances, the provisions of the Covenant apply to the benefit of the population of the

Occupied Territories, for all conduct by the State party's authorities or agents in those territories

that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of the State

responsibility of Israel under the principles of public international law.'.503

" The Court agrees,

501

Rene Provost, International Human Rights and Humanitarian Law (Cambridge University Press,

2001) at 2. 502

ILC commentary, pp. 203-204. 503

(CCPR/CO/78/ISR, para. 11)

noting that the emergency derogation provision in the ICCPR Article 4 does not apply to the

taking of human life. "The travaux préparatoires of the Covenant confirm the [HRC's]

interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen,

the drafters of the Covenant did not intend to allow States to escape from their obligations when

they exercise jurisdiction outside their national territory. They only intended to prevent persons

residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the

competence of that State, but of that of the State of residence."504

3. Concurrent Application: Minimum Standards and Convergence

Human rights in armed conflict are treated as a particular kind of problem. Emergencies

are ―grey areas‖ between war and peace. Since the 1980s, Theodor Meron has argued for the

creation of a new international instrument covering such grey areas (termed by him ―internal

strife‖) between the reach of humanitarian law and human rights law.505

Such a ―Humanitarian

Declaration on Internal Strife‖506

eventually took the form of various declarations on common

minimum standards, none of which have been presented for ratification my States, but which

have been influential in other ways, including a palpable effect on the Human Rights

Committee‘s General Comment 29 (2001) interpreting Article 4 of the ICCPR. In the years since

these efforts, the most salient ―grey area‖ being discussed is not internal strife but international

terrorism. Potentially, there are a number of gaps or lacunae between human rights law and the

humanitarian law applicable in armed conflict. This is true even though Common Article 3 of the

Geneva conventions covers conflicts of a non-international character. These potential gaps

include (1) some forms of internal strife, (2) terror attacks, and (2) situations where IHL replaces

HRL law, but provides little or no protection.

HR and IHL are historically and jurisprudentially distinct. They are two parallels that

meet, ―only in the meeting of their shadows.‖ IHL is subject, except where it has become

customary law, to reciprocity, including denunciation by a party after hostilities have ceased. The

―humanization‖ of humanitarian law parallels in some ways the entry (field pre-emption) of

human rights law in general international law. RUDs. IHL is subject, except where it has become

customary law, to reciprocity, including denunciation by a party after hostilities have ceased.

504

[para. 109] 505

T. Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a

New Instrument.‖ 77 AJIL 589 (1983). 506

Meron, ―Towards a Humanitarian Declaration on Internal Strife,‖ 78 AJIL 859 (1984).

Derogations are a part of human rights conventions but not humanitarian law. In theory, IHL ay

not be derogated from. Both systems are potentially subject to reservations, however.

The ―humanization‖ of humanitarian law has been accompanied by the incorporation of

the language of human dignity, where once only the cultural codes of chivalry had been present.

In 1966, Jean Pictet identified a certain parallelism between HRL and IHL. He proposed three

broad principles common to HRL and IHL: (1) the principle of inviolability, (2) the principle of

non-discrimination, and (3) the principle of security.507

Meron has said that Pictet‘s three

principles provide useful guidelines for a ―vital core‖ of norms for internal strife.508

This vital

core has been reflected in subsequent declarations of minimum principles during internal strife.

Common principles can also be found at a more specific level. For example, prohibitions against

torture and degrading treatment can be found in Article 7 of the ICCPR, and in Article 13 of the

Third Geneva Convention, Article 32 of the Fourth Geneva Convention, Article 11(2) of the First

Protocol, and Common Article 3. Arbitrary arrest and detention, which is covered in Article 9 of

the ICCPR is also addressed by Article 21 of the Third Geneva Convention (governing

internment, as modified by Part III, section VI, Chapter III, prohibiting close confinement);

Articles 42 and 78 of the Fourth Geneva Convention (due process rights in situations of

internment); as well as Article 75 of Protocol I and Articles 5 and 6 of Protocol II. Non-

discrimination, also one of Pictet‘s principles, can be found in Articles 2 and 4 of the ICCPR, as

well as Common Article 3 to the Geneva Conventions, Article 75 of Protocol I, Article 2 of

Protocol II, Article 6 of the First Geneva Convention of 1864 (protecting combatants ―whatever

nation they may belong‖); Article 4 of the 1929 (according impartial treatment regardless of rank,

mental health, or sex); Article 12 of Conventions 1 and 2 (1949); Article 16 of the Third

Convention; and Article 27 of the Fourth Convention.

Due process rights— minimum standards protecting life liberty and property— can be

found throughout the ICCPR, including Articles 2 (remedies), 9 (arrest remedies), and 14 (fair

trial) as well as various parts of the Geneva Conventions. The comprehensive of the latter is

Section IV, Chapter III of the Third Geneva Convention (providing various penal sanctions and

due process rights or prisoners of war). Articles 103-106 of that convention provide for a minimal

juridical process, including right to counsel and the right of appeal.509

Other due process concerns

507

J. Pictet, The Principles of International Humanitarian Law 3-47 (1966). 508

Theodor Meron, Human Rights in Internal Strife: Their International Protection (Grotius

Publications 1987) 22-23. 509

Other due process concerns are covered by Articles 43 and 78 of the Fourth Geneva Convention.

in HRL law are covered by parallels in IHL. The right against double jeopardy enshrined in

ICCPR 14(7) is paralleled by the Third Geneva Convention Article 86, the Fourth Convention

Article 117, and the First Protocol Article 75(4)h. The right against self-incrimination in ICCPR

Article 14(3)(g) has parallels in the Third Geneva Convention Article 99(2), First Protocol 75(4)f,

and Second Protocol 6(2)f. A norm against retroactive criminal punishment is common to ICCPR

Article 15 as well as the Third Geneva Convention Article 99(2), the Fourth Convention Articles

65 and 67, First Protocol 75(4)c, and Second Protocol 6(2)c. Various due process rights are

cataloged in Article 75(3) and (4) of the First Protocol, Article 6 of the Third Convention, and

also by Common Article 3.

In some respects, the Geneva Conventions also provide for the kinds of rights owed by a

state-party of the ICCPR who has effective control over a territory. This is the law of occupation:

what I have earlier called ―jus post bello.‖ The principles of occupation law are covered by

Articles 71-76 of the Fourth Geneva Convention, as well as Articles 78 and 126.

Thus, as emphasized by UN resolutions in the late 1960s and early 1970s, there has been

some degree of cross-pollination in the development of human rights and humanitarian law. This

movement continues to this day, most visibly in the work to elaborate minimum humanitarian

standards.510

Despite the UN‘s efforts to bring together human rights and humanitarian law,

differences between these two areas of international law remain, most clearly with regard to their

respective context of application and the types of relationships they regulate. There has been a

―humanization‖ of humanitarian law in two senses. Henri Meyrowitz suggests the further

distinction that, while human rights law derives from humanity understood as the defining

characteristic of the human race (menschheit), humanitarian law is colored not only by that aspect

of humanity, but also by humanity understood as a feeling of compassion towards other human

beings (menschlichkeit), so that in humanitarian law humanity– menschheit is safeguarded

through humanity–menschlichkeit.511

510

Provost 6. 20 See UN Secretary-General, ‗Report on Minimum Humanitarian Standards‘, UN

Doc. E/CN.4/1998/87, para. 99. Provost at 6. 511

Henri Meyrowitz, ‗R´eflexions sur le fondement du droit de la guerre‘, in Swinarski, M´elanges

Pictet, at 419, 426–31. Provost at 5; See also Hersch Lauterpacht, International Law and Human Rights

(London: Stevens & Sons, 1950) 35–7; Hersch Lauterpacht, ‗The Subjects of the Law of Nations – 2‘,

(1948) 64 L Quart. Rev. 97, 104; Johannes Morsink, ‗World War Two and the Universal Declaration‘,

(1993) 15 Hum. Rts Quart. 357–405. Provost at 6. It seems in fact possible to discern elements of

humanity–menschlichkeit in human rights as well, Hersch Lauterpacht suggested that the acknowledgment

by the international community that crimes against humanity existed in customary international law

necessarily implied the recognition of corresponding fundamental human rights for the individual.

Though called minimum standards, this is part of a more general trend to extend the

broadest sphere of applicability of whichever regime affords more protection. In terms of

applicability, a provisional division of labor (though not hierarchy) would look like this: In times

of peace, and in ambiguous, undeclared, or ―de facto‖ emergencies, international human rights

law is fully applicable. In particular, Meron‘s work on identifying common minimum standards

has been turned on its head, and the concept of lex specialis has proven palpable for states such as

the United States and Israel, attempting to justify flaunting certain international obligations in

their recent emergency measures.

Focus has been on dangers incurred by civilian populations in situations of war and

emergency.512

a partial fusion of human rights and humanitarian law appeared to be a

practical and effective way of increasing protection for individuals affected by armed

conflicts.513

Human rights law, on the other hand, was experiencing a great boom, most strikingly

with the adoption in 1966 of the International Covenants on Civil and Political Rights and on

Economic, Social and Cultural Rights, which concretized into positive norms the ideals embodied

in the Universal Declaration., The rapprochement of human rights and humanitarian law was

given a decisive push by the 1968 International Conference on Human Rights, convened by the

UN in Tehran to celebrate the International Year for Human Rights. The conference marked the

UN‘s first foray into the development of humanitarian law, a field considered up to then

incompatible with the very purpose of the organization and the prohibition of the use of force in

512

., following the successive adoptions of the 1948 Universal Declaration of Human Rights and the

1949 Geneva Conventions. By the late 1960s, humanitarian law stood at a standstill following the cool

reception by the majority of states to the proposal by the International Committee of the Red Cross for

supplementary rules for the protection of civilian populations in times of war, approved by the XIXth

International Conference of the Red Cross in New Delhi in 1957Draft Rules for the Limitation of the

Dangers Incurred by the Civilian Population in Time of War, reprinted in Dietrich Schindler and Jirí

Toman, The Laws of Armed Conflict,3rd edn (Dordrecht: Nijhoff, 1988) 251.16 December 1966, (1966)

999 UNTS 1 and 171, reprinted in Ian Brownlie ed., Basic Documents on Human Rights, 3rd edn (Oxford:

Clarendon, 1992) 114 and 125. 513

See G. I. A. D. Draper, ‗The Relationship Between the Human Rights Regime and the Law of

Armed Conflict‘, in Proceedings of the International Conference on Humanitarian Law – San Remo, 24–27

Sept. 1970 (Grassi: Istituto Editoriale Ticinese, 1970) 141, 145; ―Given the bleak prospects for a renewed

humanitarian order, the pressing need for increased protection of victims of war caught in the conflicts in

Algeria, Nigeria, the Middle East and the Indochinese peninsula, and the more extensive range of treaty

human rights norms at the time.‖ Alessandro Migliazza, ‗L‘´evolution de la r´eglementation de la guerre `a

la lumi`ere de la sauvegarde des droits de l‘homme‘, (1972-III) 137 Recueil des cours 142, 192; ‗Report of

the Secretary-General on Respect for Human Rights in Armed Conflicts‘, UN Doc. A/8052 (1970) 13 para.

28. Rene Provost, International Human Rights and Humanitarian Law (Cambridge University Press, 2001)

at 3.

Article 2(4) of the UN Charter.514

Humanitarian desire to expand the protection afforded the

individual by international law in times of war was compounded by the charged political context

in which the conference took place. The General Assembly later adopted a number of similar

resolutions leading up to the inception of the 1977 Additional Protocols.515

The resolutions of the

International Conference on Human Rights and the UN General Assembly did not create an

entirely novel concept, but rather reflected real and recognized links between human rights and

humanitarian law. Although the regulation of the conduct of warfare in international law

considerably predates the appearance of human rights, the two bodies of law share as a basis a

fundamental concern for humanity. The transformation in the last century and a half of the

ancient law of arms into modern humanitarian law stems from humanitarian values derived from

a variety of social, religious, political, moral, military and scientific factors.516

The prohibition of genocide, derived from the concept of wartime crimes against humanity and

later enlarged to prohibit similar peacetime behavior, can perhaps be seen as an example of the

intersection of human rights and humanitarian law. On the other hand, the Universal Declaration

of Human Rights, drafted in the aftermath of the Nuremberg judgments, had some influence on

the development of humanitarian law through the preparation and adoption of the 1949 Geneva

Conventions.

The classic conception of human rights and humanitarian law is that they apply in

different situations and to different relationships. That is, human rights are understood to regulate

the relationship between states and individuals under their jurisdiction in every aspect of ordinary

life, but are largely inapplicable in times of emergencies that threaten the life, independence or

security of the nation or state. Humanitarian law, meanwhile, historically has governed the

wartime relationship of belligerent states and of states and protected persons, which include

enemy persons and neutrals, but not a state‘s own nationals.

514

‗Report of the Secretary-General on Respect for Human Rights in Armed Conflicts‘, UN Doc.

A/7720 (1969) 11 para. 19. Provost at 3 515

� A partial list of the resolutions adopted by the UN General Assembly can be found in Claude

Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12

August 1949 (Geneva: Nijhoff, 1987) 1571–7. Provost at 4 516

Draper, ‗Relationship‘, at 141; Theodor Meron, Human Rights in Internal Strife: Their

International Protection (Cambridge: Grotius, 1987) 12–13; Jean Pictet ed., The Geneva Conventions of 12

August 1949 – Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in

Times of War (Geneva: ICRC, 1958) 77. Provost at 5

The formalistic and technical contribution of The Legality of Threat or Use of Nuclear Weapons

Case (1996), is the ICJ‘s support for proposed a way to coordinate the different regimes of

norms, including various kinds of derogability. In that case, the ICJ hinted that between two types

of special law, such as human rights (HRL) and humanitarian law (IHL), the applicable meta-rule

regarding normative conflict would be the maxim ―special law (lex specialis) derogates general

law,‖ setting priority between human rights and humanitarian law, i.e., between two different sets

of specialized rules.

Crossover between the fields of application of human rights and humanitarian law.

In humanitarian law, common Article 3 of the 1949 Geneva Conventions, applying basic

humanitarian norms to non-international armed conflicts, supplemented by the adoption of

Protocols I and II (e.g. Arts. 1(4) and 75, Protocol I; Art. 1(1), Protocol II),the ripening into

custom of has expanded the scope of humanitarian law to cover certain relationships between a

state and its own nationals.517

A measure of overlap can thus be ascertained between the fields of

human rights and humanitarian law, although largely they remain applicable to different

situations. The nature of the relationships envisaged by human rights law and humanitarian law

also remains generally and significantly different. Despite humanistic ideas put forward during

the Enlightenment to the effect that wars occur between governments and not between peoples,

the reality of modern armed conflicts is such that all members of a belligerent state‘s population

are considered enemies, although a clear distinction is drawn between combatants and non-

combatants. The relationship embodied in humanitarian law is resolutely based on hostility. This

holds true not only for relations between a belligerent state and enemy combatants and prisoners

of war, but also for relations between non-combatants of enemy states. For example, according to

Article 45 of the 1907 Hague Regulations, it is a war crime for an occupying power to attempt to

sway the allegiance of the occupied population. Correspondingly, Article 4(A)(2) and (6) of the

1949 Third Geneva Convention grants prisoner-of-war status to civilians taking up arms against

an enemy power – inasmuch as they comply with the specific requirements of these provisions –

which can be construed as a right of resistance of the population against a hostile force.518

517

Part II (Arts. 13–26) of the 1949 Fourth Geneva Convention also contains minimal norms

applicable to the populations of all parties to a conflict, including a state‘s own nationals. Provost at 5. 518

Meyrowitz, ‗Droit de la guerre‘, at 1097–9. Purely private individuals taking up arms against an

occupying power without complying with the command and openness requirements of the 1949 Third

Geneva Convention commit a war crime punishable by the enemy power: United Kingdom War Office,

British Manual of Military Law, part III – ‗The Law of War on Land‘(London: HMSO, 1958) para. 634;

Art. 5(2), 1949 Third Geneva Convention. See Lassa Oppenheim, International Law, Hersch Lauterpacht

[Protective purposes: how do these articulate the salus populi principle in different

ways?] ―More generally, humanitarian law as a whole is colored by the legality of killing enemy

combatants and – at least collaterally – innocent civilians. Human rights law, to the contrary, is

based on a model fostering a harmonious relationship between the state and individuals under its

jurisdiction. It focuses on individuals and seeks to protect and support personal development to

the maximum of their potential.‖ (cite)

Convergence and Minimum Standards: The “Humanization” of International Law

The taming of Kriegsrason, the absolute form of military necessity, into the softer

language of requirements and proportionality is part of a more general trend… Some parts of the

more recent 1977 Additional Protocols bear a strong resemblance to human rights instruments:

for instance Article 75 of Protocol I resembles Article 14 of the Covenant on Civil and Political

Rights. The progressive rejection of military necessity as a valid justification for disregarding

humanitarian law over the course of the last century can also be linked to the development of

individual human rights.519

The influence of the Universal Declaration on the text of the Geneva

Conventions may be seen, for instance, in the provisions prohibiting discrimination (Arts.

12/12/16/27). Similar influences can be perceived in other provisions dealing with torture, cruel,

unusual and degrading treatment or punishment, arbitrary arrest or detention, and due process.520

Insofar as there is a distinction between human rights law and humanitarian law, it is probably

founded, and certainly re-founded on the classical distinction between the international law of

war and the international law of peace. As we have seen, war and emergency, refer to each other

constantly as analogies, and often become indistinct. The applicability of the ICCPR in armed

conflicts…

Completion of a convergence that would have riled Carl Schmitt What Professor Ruti Teitel calls

―humanity‘s law.‖ This humanitarian dimension of the law of war was expressed explicitly in the

‗Martens clause‘, inserted in the preamble of the 1899 Hague Convention II, and later in the 1907

Hague Convention IV, as well as in the 1949 Geneva Conventions and 1977 Additional

Protocols.521

It is commonly remarked that while human rights law is infused with considerations

ed., 7th edn (London: Longmans, 1952) II, 574; Julio A. Barberis, ‗Nouvelles questions concernant la

personnalit´e juridique internationale‘, (1983–I) 179 Recueil des cours 145, 210. Provost at 8. 519

Provost at 6.citing Migliazza, ‗L‘´evolution‘, at 198–201. 520

See Meron, Human Rights in Internal Strife, at 13; See also Provost at 6. 521

The most relevant passage of the Martens clause states that ‗in cases not included in the present

Regulations . . . , populations and belligerents remain under the protection and empire of the principles of

of humanity, humanitarian law is shaped by the tension between concerns for humanity and

military necessity.522

Applicability and Scope of treaties, while common trend toward individual

human dignity, human rights and IHL differ in their applicability, and in their approaches to legal

personality. Empirically there is a grey category distinction between war and emergency. An

international or non-international armed conflict could constitute a public emergency for the

purposes of article 4. The HRC has accepted that there can be an overlap between human rights

law and international humanitarian law. It considered the relationship to be as follows: During

armed conflict, whether international or non-international, rules of international humanitarian law

become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of

the Covenant, to prevent the abuse of a State‘s emergency powers. The Covenant requires that

even during an armed conflict measures derogating from the Covenant are allowed only if and to

the extent that the situation constitutes a threat to the life of the nation. If States parties consider

invoking article 4 in other situations than an armed conflict, they should carefully consider the

justification and why such a measure is necessary and legitimate in the circumstances. On a

number of occasions the Committee has expressed its concern over States parties that appear to

have derogated from rights protected by the Covenant, or whose domestic law appears to allow

such derogation in situations not covered by article 4.

Doctrines such as necessity and self-defense are basic features of international laws of

war and peace. (In the law of peace, this becomes tamed into the familiar juridical structures of

rules and exceptions. Dual constitutions of international emergency governance can be seen as the

common derogation clauses of three treaties, with Article 4 of the ICCPR as the most universal

expression, along with common Article 3 of the Geneva Conventions. Interpretation given to the

facts on the ground, much is determined by the separation of ―war‖ and internal non-war

―emergency‖. Topics, once separated, significantly bleed into each other, development clash, and

overlap. The non-specialist can be excused for confusing ―humanitarian law‖ with the similar-

sounding ―human rights law‖ or not realizing it is actually a euphemism for the radically

antithetical-sounding ―law of war‖ or ―law of armed conflict.‖ However, like a viscous liquid

taking the shape of its container, humanitarian law is beginning to be reshaped by the

international law, as they result from the usages established between civilized nations, from the laws of

humanities, and the requirements of the public conscience‘. 1899 Hague Convention (II) with Respect to

the Laws and Customs of War on Land, 29 July 1899, reprinted in Schindler and Toman, Laws of Armed

Conflict, at 69; 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18

October 1907, reprinted in , at 77. Provost at 5 522

� 15 See the comments of Judge Koroma in his dissent in the Advisory Opinion Concerning the

Legality of the Use or Threat of Nuclear Weapons, 8 July 1996, at 15. Provost at 5

humanitarian connotations of its name. In particular, Common Article 3 of the Geneva

Conventions523

provides protections against violence, degrading treatment and extra-judicial

executions, repeating in a more general form some of the same non-derogable rights in the

ICCPR.524

A contrast is often drawn between the derogability of rights in the human rights treaties

and the non-derogability of humanitarian law standards. In practice, this contrast is misleading. In

some respects, humanitarian law may be more effective than the human rights conventions in

protecting some important human rights during emergencies, but it cannot be presumed to

represent a higher standard of protection.525

First, human rights are in theory protected in all

times: peace, war and national emergency. Secondly, unlike human rights law, humanitarian law

traditionally balances its protections of human dignity against ―military necessity.‖526

In

substance, humanitarian law is actually is an alternative system of derogation. When translated

into rights discourse, it lowers protections in a manner similar to if all derogable rights were

suspended under the human rights treaties. In any case, it is not possible to decide one is more

protective than the other in the abstract without knowing the nature or the complexity of the

emergency.

On/off? There is also a parallel move toward contingent regimes deviating from IHL

with the perverse logic of keeping the Geneva Conventions and keeping war ―pure‖ from the

contamination of terrorism. Geneva establishes protections for combatants who fight on behalf of

states that have agreed to comply with the conventions and who distinguish themselves from

civilians. That, in part, is how one earns prisoner-of-war status. Legitimizing terrorists are

honorable warriors who are captured in the laws of war and received Geneva Convention

protections. Devaluing terrorism. not going Fragmentation, and free-floating invocation of

standards, grants all actors the power to relativize and disclaim authority. While if any American

is tried before the ICC, Post-Sept 11 a state of exception meets an exceptionalist state; has

resulted in the actual reconciliation of the human rights and humanitarian regimes; was the total

523

In humanitarian law, the core rules of humanity are enshrined in article 3 which is common to all

four Geneva Conventions of August 12, 1949.Common Article 3 of the Geneva Conventions of 1949 and

Articles 4-6 of Protocol II of 1977. 524

Articles 6 (right to life), 7 (prohibition against torture and degrading treatment), and 15

(prohibition against extra-judicial and retroactive punishments) of the ICCPR. 525

Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford; New York:

Clarendon Press; Oxford University Press, 1989). 526

Bush administration has thus far proceeded on a simplistic account of humanitarian law, availing

itself of convenient provisions and duties to the side. How should se deal with genuine conflicts between

norms that apply in the same emergency situations?

selection of one and ignoring of the other. This, more than formal repetition and overlapping

jurisdictions, can endanger the project of emergency governance. The danger here is not simply a

gap or lacunae in international law that will be filled by raw political will, but more precisely that

the oversupply of international law will lead to selectivity and cynical forms of legalism by

powerful actors.

The ―convergence thesis‖: In a less formal context, actors in ―international civil society,‖

including human rights NGOs such as Amnesty International and humanitarian organizations

such as the International Committee of the Red Cross have become accustomed to speaking of

―international humanitarian and human rights law‖ in the same breath. If there is indeed a

common culture of humanitarianism and rights-sensitivity emerging from the interaction of these

regimes, then we should expect to see a codification of minimum standards and relatively formal

attempts at coordination of norms during states of emergency]. International law scholars such as

Theodor Meron527

and Rene Provost528

have put international human rights and humanitarian law

into sustained conversation. Looking further back, Jean Pictet and Hersch Lauterpacht‘s

contributions to both human rights law and international humanitarian law can also be cited as

early attempts toward the same goal.529

At least over the past two decades, the International

Committee of the Red Cross has argued in its various publications for a ―convergence‖ of the two

systems. However, any such ―convergence‖ or ―harmonization‖ of the two sets of norms is still

more a demand than an accomplished fact. Convergence is more a demand than a concluded fact.

The language in this literature is still concerned with navigating ―gaps‖ and ―overlaps,‖ and ―grey

areas.‖ Continuum, convergence, gap? These border spaces include situations of emergency. In

my view, consistent formal techniques are necessary to bring the relatively self-contained regimes

into relation and into continuing (or renewed) conformity with international law as a whole. To

that end, the notions of lex specialis, obligations erga omnes, and customary international law

might be helpful.

C. Extraterritorial Application

[Beyond the formalistic concerns listed below, this topic can be framed more

explicitly in terms of salus populi concerns, particularly the duty of care of states for

527

Theodor Meron, Human Rights in Internal Strife: Their International Protection (Grotius

Publications 1987). 528

Rene Provost, International Human Rights and Humanitarian Law (Cambridge University Press,

2001). 529

Cite Pictet on HRL and IHL. Hersch Lauterpacht, International Law and Human Rights (1950);

Law of War on Land being part III of the [British] Manual of Military Law (1958).

persons and populations under their care. This is note Hobbes mutual obligation and

obedience, but a vertical relationship that flows in one direction only, linked with the

horizontal relation of civil society, reflecting concepts in modern political theory, and

human rights law: “rights laid down in the {ICCPR} to anyone within the power or effective

control of that State Party…”].

A related question that the [ICCPR] is applicable in respect of acts done by a State in the

exercise of its jurisdiction outside its own territory. As far as extraterritorial application goes,

Matthew Waxman, Principal Deputy Director for Policy Planning at the State Department

reiterated the U.S. view that the ICCPR does not apply extraterritorially and thus does not apply

to the war on terror530

:

[I]t is the long-standing view of the United States that the Covenant by its very terms

does not apply outside of the territory of a State Party. We are aware of the views of

members of this Committee regarding the extraterritorial application of the Covenant,

including the Committee‘s General Comment No. 31. While we have great respect for the

Committee‘s views, as the Committee is aware, the United States has a principled and

long-held view that the Covenant applies only to a State Party‘s territory. It is the long-

standing view of my government that applying the basic rules for the interpretation of

treaties described in the Vienna Convention on the Law of Treaties leads to the

conclusion that the language in Article 2, Paragraph 1, establishes that States Parties are

required to respect and ensure the rights in the Covenant only to individuals who are

BOTH within the territory of a State Party and subject to its jurisdiction. First, this

interpretation is confirmed by the ordinary meaning of the treaty text. Article 2,

Paragraph 1, of the Covenant states explicitly that State Parties are required to respect

and ensure the rights in the Covenant to all individuals, and I quote, ―within its territory

and subject to its jurisdiction.‖

The US position can rely first on a textual argument, the United States position on the

extraterritorial reach of treaties derives, by inference, from Art. 29 of the Vienna Convention on

the Law of Treaties i.e. application is limited to persons who are both within a state's territory and

subject to its jurisdiction. Unless a different intention appears from the treaty or is otherwise

established, a treaty is binding upon each party in respect of its entire territory. Even though

some states, many authors,531

the HRC, and finally the ICJ in the Wall Advisory Opinion (and

repeated in Congo v. Uganda) took the contrary view. the US can rely on its longstanding

practice. Thus, unless it is established otherwise, one would assume U.S. treaties apply in U.S.

territory, and only U.S. territory. Of course, one could still bind the United States to the ICCPR or

530

As I mentioned in the introduction Issues in flux: This dissertation is ending in July 2006...

developments Hamdan, European black sites, 531

see, e.g. Nowak's CCPR Commentary

the Torture Convention for extraterritorial acts if you could establish that it was intended to have

such a reach (―object and purpose‘). However, the US argument is much, much weaker when it

comes to other HR treaties, (such as the Convention against torture, whose Article 2(1) lays a

duty on each State Party to take effective legislative, administrative, judicial or other measures to

prevent acts of torture in any territory under its jurisdiction).532

Waxman also makes a historical

claim. Additionally, this plain meaning of the treaty language is also confirmed by the Covenant‘s

negotiating record.533

The negotiating record of the Covenant makes clear that the inclusion of the

reference to within its territory in Article 2(1) was adopted as a result of a proposal made over

fifty years ago by U.S. delegate Eleanor Roosevelt – specifically to ensure that States Parties

would not be obligated to implement the Covenant outside their territories. 534

Art. 29 VCLT

argument is separable from US argument.

The Human Rights Committee, however, has consistently held that the International

Covenant on Civil and Political Rights can have extraterritorial application, clearly demonstrating

its understanding that a State‘s jurisdiction extends beyond its territorial boundaries. For example,

in Burgos/Lopez v. Uruguay, the HRC held that Uruguay violated its obligations under the

Covenant when its security forces abducted and tortured a Uruguayan citizen then living in

Argentina. Following the command of Article 5(1) that [n]othing in the present Covenant may be

interpreted as implying… any right to engage in any activity… aimed at the destruction of any of

the rights and freedoms recognized herein,‖ the Committee reasoned that it would be

532

For a defense of the US position, see Michal Dennis, piece in the 2005 AJIL 533

When the International Law Commission was drafting the Articles which preceded the VCLT, it

specifically decided not to address the issue of extraterritorial application. See the ILC commentaries to

then Art. 25, at p. 28. Whether a HR treaty applies extraterritorially or not depends not only on the express

intentions of the parties, but also on its interpretation. object and purpose, 534

Mrs. Roosevelt emphasized that the United States was ―particularly anxious‖ that it not assume

―an obligation to ensure the rights recognized in it to the citizens of countries under United States

occupation‖ or in what she characterized as ―leased territory‖ outside the territorial boundaries of a State

Party. She further explained: ―An illustration would be the occupied territories of Germany, Austria and

Japan: persons within those countries were subject to the jurisdiction of the occupying States in certain

respects, but were outside the scope of legislation of those States.‖ Several delegations spoke out against

the proposed U.S. amendment at the time, arguing that a nation should guarantee fundamental rights to its

citizens outside of its territorial boundaries as well as within them. They suggested that the ―and‖ in the

U.S. amendment should be replaced with the word ―or.‖ However, the U.S. amendment to change the text

to the current formulation of Article 2 was adopted at the 1950 session by a vote of 8 in favor and 2

opposed, with 5 abstentions. Subsequent efforts to delete the phrase ―within its territory‖ were also

defeated. Accordingly, as State Department Legal Adviser Conrad Harper explained to this Committee in

1995, the words ―within its territory‖ had been debated and were added by vote. The clear understanding

emerged that such wording limited the State Party‘s obligations to within its territory. Thus the territorial

limitation in Article 2, far from being inconsistent with the object and purpose of the treaty, reflects the

clear and expressed intention of those countries that negotiated the instrument.

unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a

State party to perpetrate violations of the Covenant on the territory of another State, which

violations it could not perpetrate on its own territory. Initially, it was unclear whether the

Committee's holding in Burgos/Lopez was strictly limited to extraterritorial violations committed

against a state's own nationals. [US calims the ECHR and the ICCPR are a much different story

in this regard, see, e.g. Loizidou or Ilascu, and even [―the unfortunate‖ says Waxman] Bankovic

decision of the European Court.

However, the Committee‘s recent practice makes clear that the Covenant applies to a

state‘s conduct abroad even with respect to its treatment of foreign nationals. In its General

Comment 31, the Committee asserted that ―a State party must respect and ensure the rights laid

down in the Covenant to anyone within the power or effective control of that State Party, even if

not situated within the territory of the State Party.‖ Similarly, after affirming that the ―enjoyment

of Covenant rights is not limited to citizens of States Parties but must also be available to all

individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant

workers and other persons, who may find themselves in the territory or subject to the jurisdiction

of the State Party,‖ the Committee noted that ―[t]his principle also applies to those within the

power or effective control of the forces of a State Party acting outside its territory, regardless of

the circumstances in which such power or effective control was obtained, such as forces

constituting a national contingent of a State Party assigned to an international peace-keeping or

peace-enforcement operation.‖

The Committee confirmed its position specifically in the context of military occupation.

In response to the Israeli government‘s assertion that the ICCPR did not apply to its conduct in

the Occupied Territories, the Committee stated that ―the provisions of the Covenant apply to the

benefit of the population of the Occupied Territories, for all conduct by the State party's

authorities or agents in those territories that affect the enjoyment of rights enshrined in the

Covenant and fall within the ambit of State responsibility of Israel under the principles of public

international law.‖ We would see that Article 2(1) of the ICCPR applies to all persons within the

jurisdiction of a state party. By its terms, the ICCPR is also inapplicable to conduct by the U.S.

outside its sovereign territory. Article 2, paragraph 1 of the ICCPR states that "[e]ach State Party

to the present Covenant undertakes to respect and to ensure to all individuals within its territory

and subject to its jurisdiction the rights recognized in the present Covenant." If Israel can be seen

as a persistent objector, opposition to anything approaching a convergence thesis has been

entrenched in Israeli legal and military culture.535

That territorial limitation is reinforced by the canon of construction that treaties

―normally do not have extraterritorial application unless such an intent is clearly manifested.‖536

But if prisoners of war are taken or other persons are detained, the ICCPR can arguably still come

into play in principle since those persons are within the effective control of the detaining state

(assuming it is a state party to the ICCPR.) The U.S. would be defined as a detaining power be

held accountable for violations of rights under the Covenant ―which its agents commit upon the

territory of another State.‖537

If the U.S. took human rights law, which derives from customary

international law and treaties, more seriously, the question of the extra-territorial protection of the

detainees would already be resolved. While the U.S. has signed538

and ratified539

the ICCPR, it is

still an open question whether this provides a basis for U.S. courts‘ jurisdiction over the

detainees. For example, Another issue in flux is whether the Convention on Torture applies

during armed conflict. International Law Commission has begun drafting a treaty on this very

issue of the effects of armed conflict on treaties. it appears that the Convention on Torture would

still apply during armed conflict.540

Spaces of Exception

Complex Derogation, including municipal law: [Re-work this section] Are spaces of

exception ―black holes‖ or simply spaces muddies by complex applicability and derogability?

535

Following the Six Day War, Arab states wanted condemnation of Israeli behavior in the occupied

territories, while Third World and Eastern Bloc states sought to legitimize decolonization wars. The first

resolution of the Conference, entitled ‗Respect and Enforcement of Human Rights in the Occupied

Territories‘, combined human rights and humanitarian law in calling on Israel to apply both the Universal

Declaration and the 1949 Geneva Conventions in the occupied territories. The Conference then adopted

the more general Resolution XXIII entitled ‗Respect for Human Rights in Armed Conflicts‘, which

proffered, in a manner rather more vague and general than its title would suggest, that ‗peace is the

underlying condition of the full observance of human rights and war is their negation‘, and that ‗even

during the periods of armed conflicts, humanitarian principles must prevail‘. It also called for those fighting

racist or colonial regimes to be treated as either prisoners of war or political prisoners. 536

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993). 537

(See Lopez Burgos, No. 52/1979). The regional human rights bodies have taken a similar

approach. For example, in Cyprus v Turkey (1975) the European Commission found that because Cypriot

nationals were under the "actual authority and responsibility" of Turkey the protections of the European

Convention on Human Rights applied, in spite of the alleged human rights violations occurring in Cyprus

and not Turkey. 538

U.S. signed the ICCPR in 1977 under President Carter. 539

It ultimately ratified the Treaty in 1992, 26 years after the conclusion of the Treaty with Senate

reservations 1992 540

From a cursory reading of the draft articles,

Guantanamo Detainees:[would allow it to capture any foreign national anywhere in the world at

any time and to detain him or her at Guantanamo without process or possibility of judicial

review, forever.”] What rules apply in “off-shore” operations; do these differ from

occupation law, or simply IHL? Geneva Conventions afford all such individuals a right to

basic, humane treatment—whether or not they are also entitled to the special status of ―prisoner

of war.‖541

Broad policy guidance (executive branch), specific field orders (military

commanders_, from executive authorities departed from operations law the applicable

international regimes –humanitarian law of armed conflict and occupation— as well as national

military codes military doctrine, field manuals, and training. In its place, as discussed below, the

Administration offered no comprehensive or consistent policy understanding of what rules did

apply.542

Judith Butler in her recent book Precarious Life has already drawn on Agamben to make

explicit543

the potential refinement of the typology of emergency beyond national, territorial or

even selective emergency powers, to include extraterritorial emergency powers, which reveal a

genuine blind spot of constitutional discourse.544

Other scholars have also confirmed, as a

descriptive matter, the similarities between refugee camps and detention camps. Michel Agier, an

541

.Department of the Army, Field Manual 34-52 Intelligence Interrogation (1992),

http://www.fas.org/irp/doddir/army/fm34-52.pdf; Department of the Army, Army Regulation 190-8 Enemy

Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997),

http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf. Field Manual 34-52 (―FM 34-52‖) states that

―[t]hese principles and techniques of interrogation are to be used within the constraints established by,‖

among other things, the Geneva Convention [I] for the Amelioration of the Condition of the Wounded and

Sick in the Armed Forces in the Field of August 12, 1949; Geneva Convention [III] Relative to the

Treatment of Prisoners of War of August 12, 1949; and Geneva Convention [IV] Relative to the Protection

of Civilian Persons in Time of War of August 12, 1949. FM 24-52 at iv–v. The International Committee of

the Red Cross, the body designated by the Geneva treaties as primarily responsible for treaty interpretation,

has long held that all those caught up in the course of armed conflict are governed by one of the Geneva

Conventions—either as lawful combatants under Geneva III, or as civilians (whether engaged unlawfully in

combat or not) under Geneva IV. See International Committee of the Red Cross, International

Humanitarian Law and Terrorism: Questions and Answers (May 5, 2004),

http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/0F32B7E3BB38DD26C1256E8A0055F83E. 542

According to post hoc Pentagon investigations, this left military and intelligence officials, at the

least, confused as to how to instruct or correct those under their command. 543

Judith Butler, Precarious Life: The Powers of Mourning and Violence. New York: Routledge,

2004. Even more than Agamben, Butler emphasizes the selectivity of measures that reduce certain groups,

and not all political subjects, to ―bare life‖ by excluding them from protection under international human

rights laws or the Geneva convention. State of Exception is recognizably a sequel to Homo Sacer, but not

the one that might have been expected. Since the subject of the earlier book was the abandonment of

―enemy bodies‖ to spaces of anomy, Agamben‘s could have appropriately extended the themes of Homo

Sacer to the indefinite detentions of enemy-aliens in Guantanamo Bay. Judith Butler in her recent book

Precarious Life has already drawn on Agamben to make this contribution explicit. 544

Michael Ignatieff, The Lesser Evil (Princeton University Press, 2004) at 25 describes three forms

of states of emergency: national, territorial, and selective.

anthropologist, and Francoise Bouichet-Saulnier legal counsel of the humanitarian NGO

Medicines Sans Frontiers have observed ad hoc power relations in different provisional spaces—

―prison camps, refugee detention camps, waiting areas in airports, transit centers near borders‖ —

while documenting the internal life of refugee camps.545

Just as these ―spaces of exception‖546

have become salient,.

To what extent, if at all, was the ICCPR designed to be applied throughout the world with

respect to the conduct of the states that are parties to it?. Could the desirability of avoiding a

―gap or vacuum in human rights‖ protection be relied upon in favor of establishing jurisdiction?

That would seem rather doubtful. Effective control seems to be the key to jurisdiction. ―The

States parties to the present Covenant may take measures derogating from their obligations under

the present Covenant‖ State representatives have often been invited to explain how the legal

regime under a public emergency conforms to the requirements of the covenant. Were The

interface between public emergency powers and international law there any controls or

restrictions upon the organs concerned with implementing the state of emergency? In particular,

was there any parliamentary supervision or legislative control over the proclamation of a public

emergency, its continuance, extension, or termination? Could the constitutionality or legality of

the emergency measures be challenged in a constitutional court or in the ordinary courts? Was

judicial review available and did remedies exist for those who alleged that their rights under the

ICCPR had been violated? What was the role of military courts and was habeas corpus available?

How would conflicts between the constitutional powers and the terms of the covenant be

resolved? Was there a maximum duration of a state of emergency?

Legal space None of the regimes of international law gives sufficient attention to the

spatial dimensions of emergency. One of the intriguing elements in the court‘s judgment in

Bankovic was its reference to spatial limitations on the protective scope of the ECHR. In short,

the Convention is a multilateral treaty operating, subject to Article 56 of the Convention, in an

essentially regional context and notably in the legal space (espace juridique) of the Contracting

States. The FRY [Former Republic of Yugoslavia] clearly does not fall within this legal space.

545

Michel Agier and Francoise Bouichet-Saulnier, Humanitarian Spaces: Spaces of Exception, in

Fabrice Weissman, In The Shadow of ―Just Wars‖: Violence, Politics and Humanitarian Action 297, 303

(Ithaca, NY: Cornell University Press, 2004). 546

Agier and Bouichet-Saulnier, at 300. (―Created as emergency solutions, the camps gradually

come to constitute the framework of daily life for their ‗inhabitants‘ over the course of long, very long

years, or even decades. The refugees, pawns in the hands of time and politics, then find themselves

permanent residents of these spaces of exception.‖).

The Convention was not designed to be applied throughout the world, even in respect of the

conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in

human rights‘ protection has so far been relied on by the Court in favor of establishing

jurisdiction only when the territory in question was one that, but for the specific circumstances,

would normally be covered by the Convention. A state‘s competence to exercise jurisdiction over

its own nationals abroad is subordinate to that state‘s and other states‘ territorial competence.

The notion of legal space is an intriguing one. On a limited reading, it is no more than a response

to the argument of the applicants in the Bankovic case that ―any failure to accept that they fell

within the jurisdiction of the respondent States would defeat the ordre public mission of the

Convention and leave a regrettable vacuum in the Convention system of human rights‘

protection.‖547

The court recalled its jurisprudence supporting the notion that it was obliged ―to

have regard to the special character of the Convention as a constitutional instrument of European

public order for the protection of individual human beings, and its role, as set out in Article 19 of

the Convention, is to ensure the observance of the engagements undertaken by the Contracting

Parties.‖

However, the notion of ―legal space‖ seems to be a new addition to the court‘s jurisprudence and

invites some broader speculation.548

What is a legal space? Is the space coordinate with the

territorial application of the ECHR? The legal space is related to some notion of regional

application—―essentially regional context.‖ This is an idea that is a substantial part of the

philosophical and diplomatic understanding of the American Declaration and Convention on

Human Rights, which is that it only applies in the Western Hemisphere? Is the same

philosophical and diplomatic understanding to be taken to apply to the ECHR? The paragraph in

the judgment on legal space also expressly refers to article 56 of the ECHR, so, presumably, the

overseas territories of the states parties are only within the legal space when the ECHR has been

extended to them. How does the notion of legal space relate to that of effective control? Can there

be any gaps in the legal space if there is no effective control? The notion of legal-space judgment

547

But see D. McGoldrick 406 (―I would submit that when understood its proper legal context—as a

jurisdictional question within a specific international human rights treaty—it is a hard case that made good

law. And that this good law is consistent with previous jurisprudence on the possible, exceptional

extraterritorial application of the ECHR in situations of ―authority and responsibility‖ and ―effective

control,‖ and that Bankovic should not be read as undermining that jurisprudence. Where there is some

degree of extraterritorial application, this should be seen as a positive addition to the ECHR regime of

protection rather than as merely creating arbitrary distinctions between particular situations where there is

or is not effective control.‖) Lopez, Burgos, Bankovic, Issa v. Turkey, and Ocalan v. Turkey 548

D. McGoldrick 406

also raises a number of issues for the ICCPR. What is the legal space (espace juridique) of the

ICCPR?

Armed conflict and massive violations of fundamental human rights continue to elude the efforts

of the international community to prevent them. The shortcomings of international law are more

strikingly illustrated with every crisis. Even genocide, the most intolerable assault on humanity,

so far has proven impossible to stamp out. To most people, and probably to most jurists,

international law appears not merely ill-equipped but broadly impotent in its ability to provide

concrete solutions to these blatant violations. While international lawyers may not subscribe

completely to this assessment, a real unease must accompany an analysis of theoretical constructs

which are supposed to provide solutions to these intractable problems. Clearly, human rights and

humanitarian law do not offer easy answers as to how to prevent infringements of the basic

dignity and integrity of all people in times of war and peace. They represent rational attempts to

articulate standards which ideally will become universally accepted and guide the international

community in its evaluation of, and reaction to, such violations. The international community has

succeeded in building a consensus on a large number of standards in the fields of human rights

and humanitarian law. We now have a thick code of rules at our disposal, although it clearly does

not address every situation nor cover every region. Those rules will be called upon to evolve as

the challenges facing the international community take on new shapes. Indeed the adoption of the

Statute of the International Criminal Court and the growing jurisprudence of the International

Criminal Tribunals for former Yugoslavia and Rwanda, for example, are signals of the speed at

which some segments of international law are changing. But adding new rules and creating new

institutions, even if they are accepted by a large number of states, does not in itself provide relief

to individuals

It is important to understand that both sides in this dispute marshal legal arguments as

well as normative arguments. Each side blocks its opponent with the shield of legality and strikes

swiftly with the sword of morality. The question then becomes whether the Human Rights treaties

to which Israel is a party apply to its activities within the West Bank and the Gaza Strip. The

Court notes that before the UN Human Rights Committee (HRC), Israel had consistently

maintained that they did not "directly" apply in those areas. It had also contended that the

draftsmen of the human rights instruments crafted them to ensure the rights of citizens against

their own governments in peacetime. The HRC was not persuaded.

D. The Possibility of Hierarchy:

Non-Derogable Rights, Jus Cogens, and Obligations Erga Omnes

Is there a definitive hierarchy coordinating what is non-derogable in a state of

emergency? (There is at least a continuum of responses to a continuum of situations).549

We can

assume that IHL offers a set of non-derogable norms applicable during armed conflict. We can

also assume that HR law offers a set of non-derogable norms applicable during situations that are

not considered armed conflict, such as internal strife of emergency. (We have seen there are both

gaps and overlaps between these regimes). 550

There are two ordering devices in general international law that will create hierarchies

(jus cogens and obligations erga omnes) and two devices in specific regimes that erect hierarchies

(derogation clauses and limitation clauses). In international law as a whole, the hierarchy is

topped off with jus cogens, which are by definition ―peremptory norms of international law.‖

legal order, there rules of a public policy character. These rules usually enshrine some

fundamental principles that lie at the core of the legal order concerned. These rules cannot

usually be subject to any derogation whatsoever. The international legal order is not different in

that regard as it also contains rules of a public policy character. These are the rules of jus cogens

from which conventional derogations are not permitted.551

The Vienna Convention on the Law of

Treaties defines jus cogens as those norms ―accepted and recognized by the international

549

(Meron 23). 550

Theodor Meron has also identified a pre-Grotian strain in Gentili and Suarez. The actual

influence of a naturalist philosophical tradition on international practice is speculative at best. The

jurisprudential articulation of these ideas is the ICJ case the Barcelona Traction Case, which provides a

positive law basis for the same. Barcelona Traction, Light and Power Co., Ltd. (Belg. V. Spain), 1970 ICJ

Rep. 3 (Judgment of Feb. 5). (What is significant is that these are both Twentieth century articulations of

the same ideas, simply articulated in alterative terms. The naturalist genealogy (of humanitarian

intervention) of ―community interest‖ as an aspect of just war doctrine is available, but the positivist

genealogy ties it to the language of state responsibility, which addresses the rights of third states to claims

against a state for ―breaching‖ obligations against an ―international community as a whole.‖ The language

here comes from Barcelona Traction.� Whereas the naturalist strain emphasizes the character of the

violation, the positivist idea is the expansion of the locus—to whom the obligation is owed. (SO much for

obligations erga omnes). In a doctrinal and positivist sense, erga omnes is not jus cogens [non-derogable

norms], which is more clearly dependent on a naturalist hierarchy of norms. It is simply a matter of scope

and extent. (Let us turn again to the issue of emergency governance). 551

Article 53 of the Vienna Convention on the Law of Treaties.

community of states as a whole as [norms] from which no derogation is permitted.‖ Across a

number of important international institutions and tribunals, this concept is gaining currency and

a limited number of human rights are coming to be understood as peremptory. Yet the concept

remains controversial and of course there is no list of enumerated peremptory norms.

My argument here is that certain rights that are non-derogable under human rights treaties

may also be jus cogens, or peremptory norms of international law. It is not that all non-derogable

rights under the HR treaties are coextensive with jus cogens, but that certain rights fit both

categories. In human rights discourse, it is a common statement that there is no hierarchy of

rights. In general international law, there is probably a hierarchy of norms, even if there is no

definitive statement of what this hierarchy might look like. This uncertainty actually keeps the

machine of international legal discourse going, since international lawyers can privilege

alternative norms in a situation and argue for the priority of one norm over another. In any case,

unlike human rights discourse, there is no taboo in general international law in at least proposing

a hierarchy. One way that a hierarchy is expressed is through the isolation and identification of

categories of non-derogable or superior norms. One formulation of these norms is referred to as

jus cogens. It is my view that certain non-derogable rights, although not understood as superior

norms, are in fact jus cogens. It is specifically those rights that would be usefully derogated

during an emergency, and yet remain non-derogable that should strongly be presumed to be jus

cogens.

All the non-derogable rights enumerated in the human rights treaties have some kind of

special status or priority, but they are not all non-derogable for the same reason. It is an important

and under-discussed point that derogability does not directly address the question of a hierarchy

of norms because it goes to the question of applicability, not validity. All human rights norms are

thought to be valid under the intentions and procedures by which they were adopted. They are not

all applicable at all times, however. Jus cogens norms, on the other hand, are not merely defined

by their applicability. They are equally a question of validity, and the continuing validity of a

norm, which cannot be derogated by others under any circumstances. These lists of non-

derogable rights were certainly narrowed by states for particular reasons. Whether in intent or

effect, by doing so, they lent more normative force to these rights. However, it is difficult to

apply a unified logic to lists of non-derogable rights that include such disparate concerns as the

―right to a name‖ (IACHR) and the ―right to life‖ (all three treaties). What seem to emerge in

these lists are at least two distinct logics of non-derogability: (1) non-relation and (2) normative

force. The first category of non-derogable rights includes those, like the right to a name, which

seem altogether unrelated to the purpose of emergency powers. There can be no conceivable

purpose to denying someone a name in trying to protect a state against destruction. The second

category of non-derogable rights includes a much smaller group of rights: those such as the ―right

to life‖ which have some relation to the business of emergency powers, but which are nonetheless

enumerated or agreed to be non-derogable. This second set of rights has more of a normative

force, even a natural law flavor. It is this second category, those with a normative and not

instrumental claim, that it can be argued are jus cogens. The first set is incidentally unrelated to

emergencies, which is their only distinctive quality as norms among a vast number of norms in

international law. The second set of rights is distinctive because they are peremptory, they are

fundamental even in situations where they might be usefully derogated. This indicates a special

kind of solemnity. Of course, it can be argued that as a practical matter the distinction between

the two kinds of rights can be overdrawn. For the purposes of the treaties, all are non-derogable,

without any distinction between them. Furthermore, instrumental reasons can be extended to the

normative rights and normative reasons can be extended to the instrumental ones. It can be

argued, for example, that some of the more ―normative‖ considerations, such as the prohibition

on torture, actually yield better results in fighting terrorism. It can also be argued that prohibiting

derogation of norms whose subject matter is unrelated to emergencies demonstrates seriousness

about the principles of necessity and proportionality. They are important in the same sense that a

blanket suspension of an entire constitution is problematic. In this sense, the common

enforcement of the non-derogability of all enumerated norms is important, and none are trivial. In

the end, however, the distinction is based on primary reasons, and these are easy enough to see.

How do we get from identifying a normative force of certain norms to arguing they are

jus cogens, which are absolutely non-derogable in all circumstances? There is plenty of

disagreement about the content of jus cogens. While some scholars, such as Michael Riesman,

have argued that the entire corpus of human rights could qualify as jus cogens, others, such as

Joan Hartman have argued that this would risk diluting ―the moral force of a short but solemn list

of absolutely inalienable rights.‖

In my view, the solution must lie in-between. (1) To identify jus cogens with human

rights as a whole would make nonsense of the distinction between derogable and non-derogable

rights in the HR treaties. (2) To identify jus cogens with all non-derogable rights would also make

little sense, since the definition of some as non-derogable are narrowly tailored to note their non-

relation to the particular context of emergency. However, (3) to identify as jus cogens only those

non-derogable rights that remain non-derogable despite strong arguments for the use value of

sacrificing them (such as non-discrimination or a prohibition on torture) is supported by their

more fundamental character. Provisionally, these stand the best chance of being considered jus

cogens. Secondly, to qualify as jus cogens, a norm must pass the more minimal test of being

considered customary law. The ECHR lists only four non-derogable rights, all of the second type.

The ICCPR includes a few more of the non-related kind, and the IACHR adds even more on the

basis of non-relation. As it happens, the four rights common to all three lists of non-derogable

rights are of the second type. Because of their reach, the common non-derogable rights stand the

best chance of being recognized as customary law, as well as potentially jus cogens. Custom is

important in terms of evading reciprocity, but not evading the possibility of some kind of

derogation. Jus cogens surpass customary law in a hierarchical character, and its non-derogable

character. VCLT definition "as a whole as a norm from which no derogation is permitted."

Peremptory. (Finally, these might be more fundamental in that they help us decide which other

rights should be non-derogable in an emergency.

Jus cogens require a certain extent and a certain character. The fundamental tension here

is in the duality in the notion of jus cogens. There is a positivist and a naturalist strain in jus

cogens. A case for the inclusion of certain human rights as peremptory norms can be made on

alternatively positivist or naturalist bases, but these justifications are in themselves incomplete,

and together perhaps contradictory. From the positivist point of view, following the VCLT above

all, it is not the ―character‖ of the norms that matters, but that they are accepted by a majority of

states as peremptory. In the case of conventional norms, such as the non-derogable rights in the

three conventions, the positivist would require that the convention was universally, or nearly

universally, ratified. In the past, proponents and objections to the jus cogens character of human

rights have looked to the ratification of the ICCPR as an indicator.552

Today over 144 states have

ratified that Convention, which brings it closer than ever to representing jus cogens. However, the

distinctions within the ICCPR, including those between derogable and non-derogable rights

would also be jus cogens. This creates an implicit hierarchy within jus cogens, etc. All of this

would be nonsensical to the naturalist, who (following a definition of jus cogens that precedes the

VCLT) would find it difficult to define jus cogens on the basis of ratification, but rather by the

―character‖ of the norm. In neither case, can the argument be made that all human rights are jus

cogens. Instead, we must combine the positivist case for extent and the naturalist case for

character. We started with the original 16th and 17th-century natural law thesis of Grotius that

552

See J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties.

international law is the product of ―Christian civilization‖ and that international law is derived

from immutable natural laws of God. We then had a 19th-century antithesis, represented by

Oppenheim’s positivist argument that “we know nowadays that a Law of Nature does not

exist” and that Yet ―only a positive law of nations seeking to clarify notions such as jus cogens

and obligations erga omnes, and modern human rights, we seem to be at a point of synthesis.

There is an aura (to take "higher" law) or a residue (to take a more ignoble image) of natural law

in international law, most noticeable in fields such as human rights law, and doctrines such as jus

cogens, but also throughout the whole.

In my view, jurisprudential connections between parallel norms could be strengthened by making

clear the formal techniques available at the international level.

The he scope and applicability of each reveal some weaknesses. Comprehensive norms covering

International armed conflict and non-international armed conflict. Meron 23-28There is no perfect

correspondence to war and emergency distinction. If there is a correspondence, it is haphazard

and coincidental, and certainly not by design. Yet there are parallels. Does the repetition of these

norms, the consistent parallels, indicate their status as factually non-derogable, or as jus cogens or

erga omnes norms?

Does general international law provide a superior set of secondary norms that can

effectively coordinate different regimes? Concept of lex specialis is one possibility. Obstacles to

linking traditional international law to human rights treaties, including the fact that IL

presupposes reciprocity, which will seem absurd in the context of fundamental rights. How can a

derogation system be understood in this framework? Is responsibility to states (signatories) or to

individuals? Regard injury to individuals an injury to other states (Bridging concepts include

obligations erga omnes and jus cogens). As I have suggested, these various efforts to coordinate

norms, whether through lex specialis or ―minimum standards‖ can all be described to some extent

as revealing some kind of hierarchical compulsion that resists fragmentation. What can be seen is

recourse to hierarchy and other ways of coordinating disparate regimes. Wolfgang Friedmann

predicted back in 1964 that the international legal order would ―have to be equipped with a more

clearly established hierarchy of norms.‖553

Article 38(1) of the ICJ Statute suggests one

influential hierarchy of sources, but it is far from the only one. Other formal possibilities have

been discussed in this paper already and many others exist. Here I want to discuss hierarchy not

as a clear system, but instead the ―hierarchical compulsion‖ of different actors in the international

community in response to different kinds of perceived disorder. Hierarchy does not require a

totemic pillar of several elements, but far more minimal ordering devices. One of these, we have

seen, consists of only two values: general and specific. This is expressed in the maxim lex

specialis derogat legi generali (particular norms suppress general norms).554

Another ordering

device –―minimum standards‖— combines sets of norms by reference to their common elements,

thus arguably reversing the maxim and giving more general norms priority. As Martti

Koskenniemi once noted, ―Law continues to set up hierarchies and provide the resources for

reversing them.‖555

The above account barely scratches the surface of the doctrinal difficulties of

formalist thinking in the face of fragmentation. There are two ordering devices in general

international law that will create hierarchies (jus cogens and obligations erga omnes) and two

devices in specific regimes that erect hierarchies (derogation clauses and limitation clauses). In

international law as a whole, the hierarchy is topped off with jus cogens, which are by definition

―peremptory norms of international law.‖ legal order, there rules of a public policy character.

These rules usually enshrine some fundamental principles that lie at the core of the legal order

concerned. These rules cannot usually be subject to any derogation whatsoever. The

international legal order is not different in that regard as it also contains rules of a public policy

character. These are the rules of jus cogens from which conventional derogations are not

permitted.556

The Vienna Convention on the Law of Treaties defines jus cogens as those norms

―accepted and recognized by the international community of states as a whole as [norms] from

which no derogation is permitted.‖ Across a number of important international institutions and

tribunals, this concept is gaining currency and a limited number of human rights are coming to be

553

Wolfgang Gaston Friedmann, The Changing Structure of International Law (New York,:

Columbia University Press, 1964), 88. 554

Hugo Grotius (Trans. Louise Ropes Loomis), The Law of War And Peace (De Jure Belli Ac

Pacis) : A New Translation (New York: Pub. for the Classics Club by W.J. Black, 1949), Book II Sect.

XXIX. Grotius: ―What rules ought to be observed in such cases [i.e. where parts of a document are in

conflict]. Among agreements which are equal…that should be given preference which is most specific and

approaches most nearly to the subject in hand, for special provisions are ordinarily more effective than

those that are general.‖ 555

Martti Koskenniemi, Hierarchy in International Law: A Sketch, 566. 556

Article 53 of the Vienna Convention on the Law of Treaties.

understood as peremptory. Yet the concept remains controversial and of course there is no list of

enumerated peremptory norms.

1. Status and Coherence Anxieties

I suggest that the implications of these cases for multiple doctrines of necessity bear on

questions of the status and coherence of international law.

I. “Coherence” and its Cohort

Coherence principles are to harmonize the various obligations undertaken by the States in

the international order and to strengthen the protection of human rights in crisis situations through

the concordant and complementary application of all the established norms in order to safeguard

those rights during a state of emergency. Variations on these principle include such reliably

alliterative terms as ―complementarity,‖ ―compatibility,‖ ―concordance,‖ ―consistency‖, and

―coordination.‖

There are specific coherence rules included in the treaty-based system. ―consistency

clause‖ that occurs in each of the derogation provisions and what this might mean for the

coordination of norms. For example, the ICCPR article 4(1), states in the event of a ―public

emergency which threatens the life of the nation,‖ may derogate rights, ―to the extent strictly

required and in accordance with other international legal obligations.‖ As we shall see, this

could be read as referring to obligations under the Geneva Convention, which implies the

coordination of the norms of the derogation clauses with other regimes in international law.

Nevertheless, the time has come for the consistency principle to be taken seriously: it must either

be applied and developed or left to slumber. It does provide an opportunity to integrate human

rights instruments and international standards in the interest of developing coherent norms and

better protection. The prevailing fabric of interconnection between international instruments

leaves holes where human rights are poorly protected. Situations of public emergency give rise to

potentially severe abuses of human rights; in emergencies falling short of "war," the protection of

international humanitarian law cannot be invoked and, paradoxically, a notice of derogation may

even lessen the intensity of international scrutiny. As Ergec suggests, such anomalies of

interpretation can only be resolved by the development of a list of non-derogable rights in

accordance with other international treaties. 557

An alternative approach would be for national

jurisdictions to use the consistency principle to import the protections offered by other

international treaties into their domestic system. Governments have been reluctant to do so.558

Under article 15(1) a state may derogate only if the measures it has taken are "not

inconsistent with its other obligations under international law." This requirement was first

raised during the drafting of the U.N. Covenant, when the United States proposed, as an

alternative to specifying rights which should be non-derogable in an emergency, that the

article simply state that no derogation was to be made "which was inconsistent with international

law or with international agreements to which such State is a party." 19 It was proposed, in this

manner, in order to borrow from existing standards in the 1949 Geneva Conventions, the United

Nations Charter, and the Universal Declaration of Human Rights. Standing alone, however, the

principle was seen to be too vague and narrow. Nowhere were these international standards

clearly stated and there was no consensus among states as to their content.

As described by Jaime Oraa, the principle of consistency appears to have considerable

potential for importing and coalescing international human rights standards. In practice, however,

it has been referred to infrequently and applied cautiously since it may only be invoked when

there has been a derogation of one of the substantive rights in the Convention, and since the Court

will not usually undertake to rule on the interpretation of other international instruments. C.

Consistency with Other Obligations Under International Law The last sentence of article 15

provides that measures taken by a state, which satisfy the requirements of the Convention, must

additionally not be "inconsistent with its other obligations under international law." The travaux

reveals that this provision was suggested as an alternative to the list of non-derogable rights in

article 15(2). It was included to emphasize that certain universally recognized fundamental rights

557

See Ergec, supra note 43, Rusen Ergec, Les Droits de l'homme a l'epreuves circonstances

exceptionnelles--Etude de l'article 15 de la Convention europeene de droits de l'homme 141-42 (1987). at

214, 235-36. See also Jacques Velu & Rusen Ergec, La Convention Europeenne de Droits de l'homme 143

(1990); Allan Rosas, Human Rights at Risk in Situations of Internal Violence and Public Emergency:

Towards Common Minimum Standards, in The Future of Human Rights Protection in a Changing World:

Essays in Honour of Torkel Opsahl 165, 168-71 (Asbj<sl o>rn Eide & Jan Helgesen eds., 1991). Torsten

Stein expresses the same view in Derogations from Guarantees Laid Down in Human Rights Instruments,

in Protection of Human Rights in Europe--Limits and Effects: Proceedings of the Fifth International

Colloquy about the European Convention on Human Rights 123, 131 (Irene Maier, ed., 1982). Lauri

Hannikainen, International Monitoring of Respect for Human Rights Norms During Public Emergencies in

Europe, 1 All-European Hum. Rts. Y.B. 117 (1991). 558

See Aksoy v. Turkey, App. No. 21987/93, 79-A Eur. Comm'n H.R. Dec. & Rep. 60, 70 (1994).

must continue to be protected throughout an emergency. It is related to article 60 which says that

the Convention may not be used to justify a limitation on or derogation from any of the human

rights that the state concerned has accepted "under any other agreement to which it is party." To

which international obligations does article 15 refer? Relevant obligations may be contained in

"hard" law, such as multilateral and bilateral treaties, customary law, and a limited number of the

great United Nations declarations whose provisions may, in whole or in part, reflect customary

law. It is less clear whether and in what way "soft" law may be considered by the Court. The most

commonly cited instruments are the U.N. Charter, the Geneva Conventions of 1949, in particular

common article 3, the Convention on the Prevention and Punishment of the Crime of Genocide,

the Convention on the International Labor Organization, the International Convention on the

Elimination of All Forms of Racial Discrimination, and the International Convention Against

Torture. It is clear the Court will not consider a case solely on the basis of an alleged violation of

the state's "other obligations under international law." Such obligations only become relevant

once a substantive right under the Convention has been invoked. In that situation, the Court will

be inclined to refer to provisions of international law that may be readily implied from the terms

of the Convention.

Complementarity In recent years, human rights and international humanitarian law have

converged in their scope and purpose.559

They are both intended to safeguard or protect

individuals from forms of ―public violence,‖ but have developed as such from opposite

directions. Emphasize the complementarity among norms governing states of emergency Article

4 (1) stipulates that the measures which States take to derogate from their obligations under the

Covenant should not be « inconsistent with their obligations under international law… ». As Dr.

Manfred Novak points out, In U.N. Covenant on Civil and Political Rights - CCPR Commentary,

the expression "other obligations under international law" covers both international customary

law and the law contained in international treaties, in the first place in the various human rights

and international humanitarian law conventions. The Special Rapporteur on States of Emergency

has tried to consistency clause.560

Principles of compatibility, concordance and complementarity

of the various norms of international law. Many States that have ratified the Covenant are also

559

List ―complementarity‖ language: (International humanitarian law and international human rights

law are in substance complementary; as are derogation provisions, and principles of priority between

them.)

560

Dr. Manfred Novak U.N. Covenant on Civil and Political Rights - CCPR Commentary, 1993.

parties to other human rights treaties, including the Covenant on Economic, Social and Cultural

Rights, the Convention against Torture, the Convention on the Rights of the Child, the

International Convention on the Elimination of all Forms of Racial Discrimination, and the

Convention on the Elimination of All Forms of Discrimination against Women which contain no

derogation clauses. Several regional human rights treaties do not contain any derogation clauses

or provide for a different set of non-derogable rights. In addition, ius cogens norms apply under

all circumstances irrespective of State consent. In turn, these norms are not mutually exclusive

but complement and reinforce each other. Where this appears most clearly is in severe crisis

situations involving relatively serious armed conflicts, where the international law on human

rights and international humanitarian law are applied in a simultaneous and complementary

manner.

Consistency With regard to the first principle, the Covenant and the two regional

conventions already referred to all stipulate that States may, derogate from the obligations

undertaken under those instruments, "provided that such measures are not inconsistent with their

other obligations under international law". The purpose of this principle is to ensure that the

different international norms regulating the matter are compatible, since any given State may be

party to several international and regional conventions. For example, a country that is a party to

the American Convention and to the Covenant could not, on the basis of this principle, invoke

before the Inter-American Commission the derogation of a right that is accepted in the Covenant

but denied in the American Convention. Implicit in this requirement of compatibility is the

precedence of norms most favorable to the protection of human rights.

Concordance. The principle of concordance between the purpose of the derogation and

the rights recognized in the international order is clearly established in article 5(1) of the

International Covenant on Civil and Political Rights, which stipulates that the restrictions

imposed must not be "aimed at the destruction of any of the rights" recognized in the international

order.

Complementarity (seamless switch-over): in normal peacetime, the unrestricted

exercise of human rights is the rule. If, on the contrary, it is necessary to deal with a crisis which

does not amount to an armed conflict but which does constitute a "public emergency" posing a

serious threat to the community as a whole, then a state of emergency may be declared. However,

if the crisis develops into an internal or international conflict, then the protective norms of

international humanitarian law will begin to apply harmoniously and complementarily alongside

internal and international norms protecting human rights under states of emergency.

Coordination

Finally, coordination. More a pragmatic and strategic (perhaps functional) term than a

legal principle. The scope and applicability of current IHL and HRL each reveal some

weaknesses. Comprehensive norms covering International armed conflict and non-international

armed conflict (e.g. Meron and minimum standards).. This is the program of a continuum of

coverage which may or may not exist in current international law. There is an overlap, but not

necessarily a gap, in the protection of victims of war that must be taken into account in properly

interpreting and applying international human rights protections in armed conflict situations.

Even during a time of peace, or where no emergency is declared, non-nationals are often

vulnerable to national security policies. The include asylum seekers, refugees and other non-

nationals. The laws applicable to these are embodied in the above regimes, as well as a more

specialized set of laws, including the duty on non-refoulement and the norms of international

refugee law. 4. There are multiple layers of responsibility in any given situation. The most

egregious violations, such as torture, give rise not only to state responsibility, but also individual

criminal responsibility on the part of the perpetrator and his or her superiors. All remaining

conventional and customary international legal obligations, whether bilateral or multilateral, are

regulated by the standards of the body of secondary rules on state responsibility. This body of law

provides a formal framework for the interpretation of norms as superior norms (jus cogens and

obligations erga omnes). 6. Domestic constitutional protections continue to apply on their own

terms. They may exceed but not fall below the protections provided in the international sphere.

Of all these regimes, normative instruments of IHL and HRL seem to provide a potential legal

framework, a continuum of coverage: ―interrelated and mutually-reinforcing regime of human

rights protections‖

II. Status Anxieties

Coherence sets up the issues. Status sets up the costs. The cost of fragmentation for

international law is often thought to be loss of status in the conflict between two poles: [Lotus

case, never unlimited power to do all that is not expressly forbidden by international

law.561

sovereignty, the ―the exclusion of external authority structures from the decision-making

process of a state.‖562

]

Modern textbooks on international law have ceased to apologize for its second-rate

standing ―as law,‖ skipping the once ubiquitous caveat (often the very first sentence of a treatise)

that ―international law is not law in the ordinary sense.‖563

Perhaps this is evidence that, as

Professor Thomas Franck has said international law has finally entered its ―post-ontological era‖

— we need no longer debate its existence. Even still, this ontology is uneven. In other words an

increasing self-confidence about its existence doesn‘t settle all the relevant questions about it.

Even if it exists, its status— its legitimacy or its relative ―compliance pull‖ as an effective source

of norms— will remain contested in particular situations. Emergency governance, leaning as it

does on foundational theories of sovereignty, would remain a prime area of skepticism. (What

are the more specific costs. The costs of status lost by constitutive parts of the system).

International law also continues to help facilitate solutions to common dangers to nation-states. In

these roles, international law attempts to represent itself as a plausible repository of the ―rule of

law‖ over and against unfettered ―reason of state,‖ but also takes up the central cause of states:

self-preservation. As with the domestic level, the debate over the response to an emergency is

almost entirely structured by the polemics of necessity, as limited by the logic of self-

preservation. The determination of states to contravene international commitments and the

protection of rights may increase immensely during an emergency. Will the practice of derogation

allow international institutions to put the stamp of international legality on state practice or will it

actually restrain states from their worst excesses? The relevant conflict for constitutionalist critics

of international law and others is not between unitary sovereignty and augmented sovereignty, but

between two sources of augmentation.

The cost of fragmentation for international law is often thought to be loss of status. 1.

General international Law may lose status to a sub-system, human rights law may lose status,

humanitarian law may lose status, international law may lose status to constitutional law. [Franck:

The legitimacy of substantive rules of law depends on four indicators: determinacy, symbolic

561

See PCIJ, Judgment, Lotus case, Series A, Nº 10, p. 18. It can only be defined as a capacity,

perhaps an all-important capacity in international terms, ICJ, Advisory Opinion, Reparation for Injuries

Suffered in the Service of the United Nations, ICJ Rep. 1949, p. 180 562

Bob Keohane as ―the exclusion of external authority structures from the decision-making process

of a state,‖ 563

Schwarzenberger, Carr, Lauterpacht joined by Kelsen, Hart.

validation, coherence and adherence. 564

The state is also bound by certain rules due to its mere

status as a state, namely, customary rules that developed before its establishment. How can this

international body of law, however coherent, regulate national emergencies? Why would states

allow this? We have seen in the last chapter the correlation between states of emergency and

certain crises of an ―international‖ character, including bilateral and multilateral crises, refugee

situations and state failures. Neither cross-border causes nor cross-border effects states of states

of emergency are anything new. Over time, they have become linked to other instances —war,

and most recently in responses to international terrorism. Emergencies within the borders of

individual states always tend to affect neighboring states, causing colossal human suffering,

refugees, terrorism, trade disruptions, and arms flows, among other externalities. But externalities

and imperatives of international order are not the only concern of international law. We can think,

for example, of state failures or sovereignty gaps: catastrophic situations where violence has

become so prevalent that a State's own institutional framework has broken down. The central area

of concern is that of internal human rights—a topic which attracted increasing international

concern since World War II. I In short, wherever a state has turned toward contingency, the

international order will try to bend it toward formalism.

Every attempt at emergency governance must adopt formalism and a substantive notion

of preservation as minimal default values. A thicker description of the international commitment

to formalism and preservation is ―the rule of law.‖ Most recent descriptions of states of

emergency emphasize that they are not a gap or black hole of lawlessness, but rather a particular

institutional expression of the rule of law.565

This is generally correct, though the terminology

564

Thomas M. Franck, Fairness in International Law and Institutions. New York: Oxford University

Press, 1995. (Textual determinacy is the ability of a text to convey a clear message. A clear rule has more

chance of being complied with and of being perceived as fair. Paradoxically, when the legislator introduces

a reference to a `fairness' standard or to equity, this may reduce the determinacy of the rule. Symbolic

validation communicates authority by means of cues. These signal the importance of the relevant rule in the

overall system of social order and the fact that it was adopted in accordance with right process. Examples

include the symbols of pedigree and rituals in diplomatic practice. `A rule is coherent when its application

treats like cases alike, and when the rule relates in a principled fashion to other rules of the same system'

That is, generality and consistency of the rule increase its legitimacy. This does not mean that uniformity

has always to be achieved. But ―when distinctions are made, they must themselves be explicable by

reference to generally applied concepts of differentiation‖ Adherence is the nexus between a rule of

conduct and secondary rules governing the creation of rules. In national communities, the legitimacy of the

law derives from its having been made in accordance with the procedure established by the Constitution.

International rules derive their legitimacy not only from the consent of states, but also from compliance

with certain preemptory norms – ―a sort of customary constitution of the international community‖). 565

Mattias Kumm, among others, has identified this dynamic as the institutionalization of an

―international rule of law‖:

―constitutional democracy‖ may go too far in the direction of wishful thinking, ignoring the

current pluralism of political types in the international order.566

Preservation and formalism are

certainly not enough to add up to liberalism, constitutionalism, or democracy let alone the

particularistic and stylized three-headed beast we call ―liberal constitutional democracy.‖ Instead,

human rights law has sought to strike a fair balance between legitimate national security concerns

and the protection of fundamental freedoms. In this final chapter, I return to the questions posed

in the first chapter in application to the International Court of Justice‘s (ICJ) Advisory Opinion on

the Threat or Use of Nuclear Weapons (1996) (―Nuclear Weapons Case”). I will ask whether

several regimes of necessity that I have discussed in the previous chapters are not applied in favor

of what is either (1) a rupture with the law or (2) a novel and ambiguous legal construction

intended to defer, but still remain ready to assert, a future doctrinal closure. Yet the referral

between closure and rupture will not be a complete one, and this paper will conclude with what is

misleadingly called a ―full circle‖ but which might be called a cycle or spiral. It is divided against

itself. In a sense, the range of names we give this more radical ―necessity‖ can be identified with

whatever we might call the external space that makes international law itself, which as the

deconstructionists would say, is ―always already‖ there for the field to come into contact with, to

[T]he international rule of law also contributes to the protection of domestic groups within a

particular state who are protected by international law. This is true, for example, with respect to

international human rights norms. In this way international law contributes to the checks and

balances of a constitutional system, complementing domestic separation of powers and federalism. An

effective institutionalization of the rule of law on the international level also tends to limit the

executive‘s opportunity to claim foreign affairs prerogatives and obtain power in a way that endangers

and destabilizes national democracy. In these ways, the international rule of law locks in and

stabilizes liberal constitutional democracy on the domestic level.

Kumm goes on to say, ―In these ways, the international rule of law locks in and stabilizes liberal

constitutional democracy on the domestic level.‖ 566

However, although the idea of emergency measures, as such, was not unknown either in internal

or international law in the 1940s, According to Svensson-McCarthy‘s study concludes ―the specificity of

the new concept of derogations in the international law of human rights is that it can only be resorted to for

the purpose of defending or restoring a democratic society where individual rights and freedoms can be

fully enjoyed and guaranteed.‖ This is not necessarily true. The concept of emergency powers is already

distinguished from an obdurate authoritarian regime and we have already seen that a permanent regime of

this type does not necessarily qualify as an emergency regime. We have also seen that certain illiberal and

revolutionary theoretical traditions do not view emergency regimes as temporary measures. This does not

even come close to suggesting, however, that only democratic regimes can (1) declare emergencies or (2)

derogate from international commitments. Conceptually, even a non-democratic regime can enter

emergency conditions through the following steps: as legal rules or quasi-legal orders that temporarily

suspend pre-existing legal or constitutional provisions (e.g. rights or separation of powers). Practically, this

would mean either auto-investiture or the abridgment of whatever separation of powers that exist in this

regime. In terms of derogations, this would require that the regime actually acceded to international human

rights obligations.

constitute the space of legality. Before we look at these, let us review the concept of necessity at

the most general level.

CHAPTER FOUR

The Exception in Extremis:

Remnants of the ―Vacant Imperative‖ in International Law ― [The concept o f n ecess i t y] i s far too deeply roo ted in the consciousn ess o f the memb ers o f

the in ternat ional communi ty and o f ind ividuals wi th in S ta tes . I f dr i ven ou t o f the door i t

would retu rn through the window, i f need be in o ther fo rms; in tha t ca se , the on ly resu l t

would be the unhappy one o f d is tor t ing and obscuring o ther concept s , the preci se

del imi ta t ion o f which i s n o les s es sen t ia l .”

- -Rober to Ago (1980)

“Wheth er the extr eme except ion can be banish ed f ro m the world i s no t a jur i s t ic quest ion .”

- -Car l Sch mit t (1920)

1. Introduction

In this final chapter, I return to the questions posed in the first chapter, this time

retextured by a single case, now a decade old: the International Court of Justice‘s (ICJ) Advisory

Opinion on the Threat or Use of Nuclear Weapons (1996) (―Nuclear Weapons Case”).567

This

case extends the frameworks we have discussed so far in the context of an extreme legal thought

experiment. On 6 January 1995, the United Nations General Assembly, by Resolution 49/75 K

requested an advisory opinion from the Court on the following question: ―Is the threat or use of

nuclear weapons in any circumstance permitted under international law?‖568

The request was.

After taking up the question of its own jurisdiction,569

and accepting the case as a ―legal‖ and not

567

Legality of the Threat or Use of Nuclear Weapons Legality of the Threat or Use of Nuclear

Weapons Advisory Opinion of 8 July 1996, Pursuant to Article 96 (1) of the United Nations Charter, ―the

General Assembly or the Security Council may request the International Court to give an advisory opinion

on any legal question.‖ Discussion of this case can also be found at Laurence Boisson de Chazournes &

Philip Sands eds., International Law, The International Court of Justice and Nuclear Weapons (1999); Peter

H.F. Bekker, ―Legality of the Threat or Use of Nuclear Weapons,‖ American Journal of International Law,

vol. 91, 1997, p. 126; Richard A. Falk, "Nuclear Weapons, International Law and the World Court: A

Historic Encounter," American Journal of International Law, vol. 91, 1997, p. 64; and John H. McNeil and

Ronald D. Neubauer, ―The International Court of Justice Advisory Opinion in the Nuclear Weapons Cases

(8 July 1996): A First Appraisal,‖ International Review of the Red Cross, January-February 1997, p. 103. 568

Pursuant to United Nations General Assembly Resolution 49/75 K (15 December 1994). 569

In its advisory opinion, the Court first examined the question of its jurisdiction. rejected views of

states which had contended that the questions was framed in too vague and abstract terms, Some states had

argued that the question of the legality of threat or use of nuclear weapons fell outside the scope of the

merely ―political‖ question, the court reviewed several areas of international law contained rules

possibly governing the threat and use of nuclear weapons. For all the institutional forms and

doctrinal techniques to tame the notion of necessity and the sophisticated enumeration of these

strategies by the ICJ itself, the Nuclear Weapons Case reveals the persistence of extra-legal

notions of ―necessity‖ or else doctrines which are if not extra-legal, then at least very close to the

―vanishing point‖ of international law.570

Thus far, this dissertation has provided a description of

the malleability of necessity discourses, all the while insisting on the importance of the

developments taming these discourses in doctrinal forms. As we have already seen, though nearly

every notion of necessity can be explained in legal terms, the doctrinal development of necessity

within international law doesn‘t seem to preclude the expression (though not the resolution) of

extra-legal notions of necessity; the task of taming the vacant imperative is never complete.

Though the opinion has had a minimal practical effect on the area of law it purports to address,

the Nuclear Weapons Case illustrates the attempt to mediate the relationship between extra-legal

notions of necessity and those given doctrinal form. The advisory opinion itself performs an

oscillation between ―closure‖ and ―rupture,‖ both contextualizing and restraining some long-

excluded extra-juridical concept of necessity‖ ―returning through a window.‖571

the Nuclear

Weapons Case stands out because it lists the several regimes of necessity that I have discussed in

the previous chapters and then ignores them in favor of what is either (1) a rupture with the law or

(2) a novel and ambiguous legal construction. In the context of various regimes, including human

rights law, international humanitarian law, and particularly the law of state responsibility,

necessity principles that are conditional on positive values such as self-preservation (salus populi)

have been explicitly included, invited in through the front door so to speak. In each case, as

doctrines were clarified, the claim of necessity became conditional rather than categorical, and

accompanied by particular legal thresholds and links to particular protected interests.

Assembly's activities. The Court rejected this view, holding that the political aspects connected with the

request did not deprive the question of its legal character. 570

This is to adapt Hersch Lauterpacht‘s comment that international law is at the ―vanishing point of

law‖ and that international humanitarian law is in turn at the ―vanishing point of international law.‖ In light

of Lauterpacht‘s professional commitment to the completeness of international law, his comments can only

be interpreted as saying that these norms are not located ―outside‖ of law, but are somehow located just

inside its limits, forming the inside of the outermost boundary or skin of legal discourse. 571

Ago Report A/CN.4/318/Add.5-7 ―Addendum - Eighth report on State responsibility by Mr.

Roberto Ago, Special Rapporteur the internationally wrongful act of the State, source of international

responsibility (part 1)‖ Excerpted from the Yearbook of the International Law Commission, available at

(http://www.un.org/law/ilc/index.htm). (Hereinafter ―Ago Report‖).

The Nuclear Weapons Case (1996) is distinctive in that it offers a recapitulation of

various discourses and doctrines of necessity set out in earlier chapters of this dissertation (LSR,

UoF, IHL, HRL, and particularly the lex specialis doctrine)572

but the ICJ avoids applying these

doctrines directly to the question posed to it on the use of nuclear weapons, holding that

[I]n view of the current state of international law, and of the elements of fact at its

disposal, the Court cannot conclude definitively whether the threat or use of nuclear

weapons would be lawful or unlawful in an extreme circumstance of self-defense, in

which the very survival of a State would be at stake. 573

There are two significant implications in this statement: (1) the court‘s claim that it ―cannot

conclude definitively‖ (non-liquet), and (2) the specter of an ―ultimate right‖ in extremis under

the name ―state survival.‖574

Both of these developments, particularly when taken together, pose

certain challenges to the viability of constrained doctrines of necessity in international law. Here I

will go one step beyond the Advisory Opinion and attempt to answer some questions the ICJ

raises but does not resolve. Firstly, I will at situate the role of ―state survival‖ in the context of the

possible non-liquet, and ask what the implications are for the completeness of international law;

secondly, I will ask whether ―state survival‖ can be identified with any of the multiple forms of

necessity discussed thus far in this dissertation— whether as a legal doctrine or a political

discourse; thirdly, I will look at other possibilities that it is a sui generis or emergent doctrine.

2. Non-Liquet: Equivocations on International Law’s “Completeness”

Firstly, what is at stake in the court actually evading discussion of this ultimate question

of whether the threat or use of nuclear weapons would be lawful or unlawful? After accepting

572

See Chapter Three on lex specialis. The formalistic and technical contribution of The Legality of

Threat or Use of Nuclear Weapons Case (1996), is the ICJ‘s support for a proposed a way to coordinate the

different regimes of norms, including various kinds of derogability. In that case, the ICJ hinted that

between two types of special law, such as human rights (HRL) and humanitarian law (IHL), the applicable

meta-rule regarding normative conflict would be the maxim ―special law (lex specialis) derogates general

law,‖ setting priority between human rights and humanitarian law, i.e., between two different sets of

specialized rules. 573

Discussion of this case can also be found at Laurence Boisson de Chazournes & Philip Sands

eds., International Law, The International Court of Justice and Nuclear Weapons (1999); Peter H.F.

Bekker, ―Legality of the Threat or Use of Nuclear Weapons,‖ American Journal of International Law, vol.

91, 1997, p. 126; Richard A. Falk, ―Nuclear Weapons, International Law and the World Court: A Historic

Encounter,‖ American Journal of International Law, vol. 91, 1997, p. 64; and John H. McNeil and Ronald

D. Neubauer, ―The International Court of Justice Advisory Opinion in the Nuclear Weapons Cases (8 July

1996): A First Appraisal,‖ International Review of the Red Cross, January-February 1997, p. 103. 574

On this question, see also G. Marcelo Kohen, The Notion of ―State Survival‖ in International

Law, in International Law, The International Court of Justice and Nuclear Weapons 306 (Laurence Boisson

de Chazournes & Philip Sands eds., 1999).

advisory jurisdiction, the admission that it ―cannot conclude definitively‖ the very question posed

to it has a series of theoretical implications. The primary implication is the admission of a gap or

lacuna in international law (non-liquet), which at the level of theory raises the possibility that

international law is not a complete system.575

To take the second question first, assuming the court was actually declaring a non-liquet,

it seems clear that as a legal concept ―state survival‖ would be a non-starter. Even at the level of a

pragmatic evasion (as opposed to an ontological view on the completeness of international law),

the same results follow. On one hand it actually prevents articulation of a new doctrine that could

be developed in custom to countenance extreme contingency. On the other hand, it nevertheless

points to the possibility that recourse as an extreme measure, to the use of nuclear weapons is still

available outside of any legal regime. This in itself seems like a skillful evasion, since concluding

(rather than ―suggesting‖) either possibility would have resolved the question.

The court‘s manner of non-decision has been exasperating for international legal

practitioners and a boon to professors of legal philosophy.576

Scholars and activists who followed

575

See, e.g. William O'Brien, "Legitimate military necessity in nuclear war", 2 World Polity, 1960,

p. 35. 576

The court‘s stance also causes a degree of philosophical puzzlement due to its dual deferral and

immediacy. The ICJ, by taking the case and leaving the question open, can be read as saying either that (1)

that the question is an aporia, one that can be posed but not answered within the system, In any system of

rules and deductions there will be some statements that make sense within the system but which can't be

proven true or false. (2) Schmitt that ―whether the extreme exception can be banished from the world is not

a juristic question,‖ Typically these are repressed and unnoticed. The completeness of international law can

be glibly defended by its capacity to declare every kind of action as alternatively legal, illegal, or extra-

legal. In a catastrophic situation, that completeness might be called into question, and even the doctrines of

necessity in international law might be ignored in favor of a state‘s pre-existing ―right‖ of action. The form

of the non-liquet tends to mystify the role of imperatives and doctrines here. The indefinite form of this

decision is linked to future decisions: it is reduced to the ability of others to decide without any guiding

norms in the future. The specificity of this moment may be grasped by Derrida's notion of ―undecidibility,‖

the radical abeyance of ―act of decision‖ will based on facts deferred to the future, or even in pure form ―in

the dark‖ not be controlled by previous knowledge, not programmed.. Undecidability is not a celebration of

indecision: ―When I make a decision, when I take responsibility, to some extent it must be in the night....

Between the accumulation of knowledge and the moment I make a choice, I take a responsibility, I make a

decision, there is an infinite abyss because of the heterogeneity of those moments.... You have to go

through the ordeal of undecidability in order to decide.... Something must remain incalculable for a

decision to be a decision.‖ Yet the paradox is to invite the very danger violence seeks to restrain.

Transcendence is indeed invoked in any foundational act of decision, albeit it is understood as the traversal

of pure negativity, a "leap into the night." Worst of all would be the combination of the non-liquet with the

reasoning of extremity, amounting to raison d‘etat. Resort to force in self-defense and articulated the non

liquet in its observation that "it cannot reach a definitive conclusion as to the legality or illegality of the use

of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would

be at stake" By linking the non liquet as to the possible lawful use of nuclear weapons in self-defense to

the qualification that use would "generally" be inconsistent with international humanitarian law, the Court

the opinion for substantive guidance have been divided by how to link the non liquet to the

question of the possible lawful use of nuclear weapons in self-defense, and absorbed with the

court‘s Janus-faced pronouncement that although use would ―generally‖ be inconsistent with

international humanitarian law, the Court did not rule out the possibility that a particular use of

nuclear weapons may be ―lawful‖ even though it is contrary to international humanitarian law.577

The court‘s studied ambiguity was not to declare a non-liquet, but precisely to avoid answering

the questions on the ultimate lawfulness or unlawfulness of the threat or use of nuclear

weapons.578

A side effect of this avoidance is the ambiguity the court left in its wake, and in this

respect the court can be faulted for contributing to doctrinal confusion. A further example is the

ICJ‘s characterization of such a measure as a ―circumstance of self-defense,‖ avoiding

characterization of such an instance as an exercise of ―inherent right of self-defense‖ or a

―circumstance precluding wrongfulness.‖ In my view, the court is denying this ―circumstance‖

can be characterized as either, or in terms of any other extant legal category for that matter. The

court did not deny that the question had a ―legal character‖ but only that it had a legal answer.

Thus the intention was not so much to declare a non-liquet, but to avoid answering the question in

a way that could be relied upon for the formulation of specific doctrine or policies.

It is unclear whether the intentional evasions go any deeper than this, but one side-effect

of the court‘s avoidance of the alternatives posed in the question— whether the use of these

weapons is ―lawful or unlawful—‖ is to leave open other possible characterizations. If these

did not rule out the possibility that a particular use of nuclear weapons may be lawful even though it is

contrary to international humanitarian law. 577

See International Court of Justice Advisory Opinion in the Nuclear Weapons Cases (8 July 1996);

sub-paragraph (2) E of the dispositif. 578

With phrases such as ―studied ambiguity‖, I do not mean to suggest a unified will or strategy on the

part of the Court, but only the doctrinal role of the majority result, and its possible legacy in international

legal discourse. President Bedjaoui and Judges Herczegh, Shi, Vereshchetin and Ferrari Bravo joined

declarations; Judges Guillaume, Ranjeva and Fleischhauer appended separate opinions; and Vice-President

Schwebel and Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins dissented. Vice-President

Schwebel criticized the Court for leaving the question of legality open. According to Judge Koroma, the

Court should have performed its judicial function and decide the case. Judge Higgins was also opposed to

the finding of a non liquet as this was no part of the Court's jurisprudence. The most common subject of the

opinions was the inconclusiveness of the Court's findings. President Bedjaoui emphasized that this reflected

the current legal uncertainty on the status of nuclear weapons; in the case of extreme circumstances neither

legality nor illegality of their use could be determined. Judge Guillaume, however, interpreted the advisory

opinion as implicitly recognizing a right of states to use nuclear weapons in those extreme circumstances.

On the substantive issue of legality, Vice-President Schwebel and Judges Guillaume and Fleischhauer

expressed their opinion that international law permits the conclusion that in extreme circumstances the use

of nuclear weapons was legal. Judges Shahabuddeen, Weeramantry and Koroma stated that even then the

use of such weapons had to be regarded as unlawful. In particular, Judges Shi and Ferrari Bravo

emphasized that the policy of deterrence, in their view, did not have any legal value.

actions are neither definitively lawful nor unlawful, the question would remain, even in theory,

what are the remaining possibilities to characterize an act of nuclear self-defense for state

survival? Would an act of violent self-preservation that foreseeably resulted in an indiscriminate

killing of innocents it be (if not legal/illegal) be beyond condemnation (inculpable); exempt from

punishment (impunible); above the law (supra-juridical), within the law and above it Meta-

juridical; or simply outside the language of the law (non-cognizable); unspeakable? None of these

should be confused with lawfulness, but the effect of at least some of these would preclude

wrongfulness. Can such a measure be justified in legal terms of ―exceptional illegality‖ governed

either by the barest and most self-evident sense of ―necessity‖ or self-preservation‖ or else by

external moral, ethical or natural right norms which might be thought to exist supra and contra

legem? This kind of decision is beyond the court‘s mandate. Yet this is precisely the

interpretation most commentators on this case have provided: that state survival is either a matter

of ―natural law‖ (a moral or ethical dimension of law) or ―raison d‘etat‖ (―the political‖).

In a formal sense, however, it could be said that if the question was properly legal, the

court was obliged to attempt to fill gaps by reference to general principles of law.579

According to

Koskenniemi, this was Lauterpacht‘s point in arguing that international law ―detests a vacuum‖:

not to argue for ontological completeness but to promote the use of analogy as the lawyer's means

of ―supplementing fragmentary or contradictory materials‖ to avoid lacunae in the legal

system.580

Here, the completeness of the system `is an ―a priori assumption‖ of the very function

of law rather than a ―prescription of positive law.‖581

The court took some criticism from within,

with Vice-President Schwebel speaking in the tradition of Lauterpacht criticized the court for

leaving the question of legality open, lamenting that such a move places the ―supreme interests of

579

Following Lauterpacht, Function of Law. For contrasting views, see Koskenniemi (silence of the

law); Bodansky (Non-liquet, incompleteness), in International Law, in International Law, The International

Court of Justice and Nuclear Weapons 306 (Laurence Boisson de Chazournes & Philip Sands eds., 1999).

Also Julius Stone on non-liquet, BYIL (1959). 580

Cite Koskenniemi on Lauterpacht; Function of Law. 581

Koskenniemi (―In his Private Law Sources and Analogies of International Law (1927), Hersch

Lauterpacht claimed that many rules and concepts of international law stemmed from private law. Against

the scientific completeness, or the end if its domain, Chapter Two… Function of Law goes through each

non-justiciability doctrine, showing how they become apologies for the unlimited freedom of action of

states. As in Analogies, Lauterpacht demonstrates that the view that there are `gaps' in law fails to reflect

international practice. Courts and tribunals constantly decide cases by analogy, general principles of law,

balancing conflicting claims or having recourse to the needs of the international community or the

effectiveness of treaty obligations. The `political' nature of a dispute has never prevented a tribunal from

giving a legal answer to it.‖)

states‖ (raison d‘etat) over the hard-won progress of international law.582

Even if this seems like

an overstatement, it often seems the case that gaps, and especially gaps regarding catastrophic

cases encourage the kind of extra-legal critique posed by political realists that international law is

inapplicable in exceptional danger. How could a court with such sophistication in its ability to

avoid embarrassing results take such little care to avoid one of the foundational anxieties of

international law, namely incompleteness? This is all the more puzzling in light of the surfeit of

international rules that purport to provide for and regulate necessity, and the availability of not

only analogies from other legal systems (as the ILO used in the Greek and Polish cases), but also

overlapping doctrines on the question of the exception in extremis (see Chapter Three), and even

background rules on derogation in general international law (see Chapter Two). The court did not

engage in any of these techniques, not even to refer to the general principles of salus populi to

frame the concern with state survival.583

As I have shown in previous chapters, the attention to doctrines of necessity across the

various sources and areas of international law, doctrines were elaborated precisely so that there

should be no gaps in international law, not even on the question of its derogation. The Advisory

Opinion stated that in view of the present state of international law as a whole, the Court ―cannot

reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a

State in an extreme circumstance of self-defense, in which its very survival would be at stake.‖

This need not mean that ―international law as a whole‖ is in fact ―less than whole.‖

In part a refusal to water down the question…. the Court was led to observe that it could

not reach a definitive conclusion because they apparently read the question as one necessarily

linked to the killing of innocents. But what about an equally absolute threat, as in a falling

asteroid, which is radically non-human and non-moral to begin with? A more modest

characterization of the court‘s opinion would be to say that the question has not yet been posed in

a situation where the court would be able to answer it, the factual record is incomplete and they

would have to see it as applied…. This seems weak in that the very role of an advisory opinion is

to take up issues that may not otherwise be ripe for consideration. Would their decision have been

582

Vice-President Schwebel and Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins

dissented. Vice-President Schwebel criticized the Court for leaving the question of legality open.

According to Judge Koroma, the Court should have performed its judicial function and decide the case.

Judge Higgins was also opposed to the finding of a non liquet as this was no part of the Court's

jurisprudence. 583

According to Judge Fleischauer, however, ―the general principles of law recognized in all legal

systems, contains a principle to the effect that no legal system is entitled to demand the self-abandonment,

the suicide of one of its subjects.‖

any different if the specific hypothetical posed to them was a situation not on the use of weapons

in an imaginary conflict, but the use of these weapons in the case of extreme force majeure? For

example, the scenario so far the province of speculative science fiction (but also a few law review

articles)584

of an asteroid heading towards a highly populated part of the earth, foreseeable enough

to require its destruction. In such a case, we might imagine that the use of nuclear weapons would

be the only means available to counter such a threat, and that various principles of derogability

would govern. However, the court did not interpret the question in this way, and thus the question

it set out to address, and emphatically evaded, is not on the existence of the weapons or their use

in a way that infringes on rights. The question, however, was squarely an extension of established

doctrines of necessity, an exception in extremis, which would presumably "armed attack" do the

worst the use of Nuclear weapons on non-combatants. If this was the ―extreme case of self-

defense‖ the court had in mind, they would have excluded the human element by evoking ―force

majeure‖ instead of ―self-defense‖ which denotes an armed attack. Secondly, if an incoming

asteroid was repelled by a nuclear weapon from territorial ―state A‖ this would have to be

balanced against harms to third states and to the global environment. This would involve a

discussion of state of necessity. If the question was reduced to this example, this would be an

evasion of the moral quandary (being in some ways an easier case) and is certainly not what the

ICJ viewed as the question before it when it alluded to state survival. These are valid legal

questions but evasions of the more difficult question, which deserves a responsive answer or at

least a responsible manner of non-answer. Still it remains an open question whether the court‘s

opinion was either.

In my view although it would have been proper for the court to attempt or acknowledge

the possibility of filling gaps with recourse to general principles in any case, the saving clause for

avoiding the claim of systemic incompleteness is the court‘s reasoning that the question cannot be

answered due to (1) ―the current state of international law as a whole‖ and (2) ―the elements of

fact at its disposal.‖ While the first of these can be rebutted (as it has been from multiple

perspectives, discussed below), the evasion of the question based on factual insufficiency is

plausible in the context of an advisory opinion, and one with as little legal consequence as

possible. Whether this was a failure or a principled refusal will be discussed presently.

584

John C. Kunich, Planetary Defense: The Legality of Global Survival, 41 A.F. L. Rev. 119, 126

(1997) ("To do nothing [in the event of an asteroid threat] is to abdicate our duty to defend the United

States, and indeed the entire world, and place our very survival in the uncertain hands of the false god of

probabilities.").

2. Substantive Interpretations of State Survival

Beyond the troubling prospect of a non-liquet, there is a specter that is hanging over the

Nuclear Weapons Case. However, the identity of that specter is obscure. In defining the scope of

its non-decision, the court refers to an ―extreme circumstance of self-defense, in which the very

survival of a State would be at stake.‖ In an abstract and imperative form, it is difficult to discern

the legal character of an ―argument from necessity.‖ What is meant by ―State Survival‖? if they

retain the root metaphors also remain tethered to the anomic space opened by the prior concept of

necessity (the ―vacant imperative‖). This appears as an oscillation between ―closure‖ and

―rupture.‖ On one hand, as this dissertation describes, there are numerous instances of the

doctrinal closure of necessity and the long term development of doctrines of necessity infra

legem. On the other hand, the peculiarly self-deconstructing quality of necessity, its imperative

form, never does away with the possibility of the rupture of these doctrines, revealing necessity

extra and contra legem. Different interpretations cast this notion as variously a kind of vacant

imperative, raison d‘etat, ―natural law‖, or an unidentified legal doctrine. Here, I will discuss state

survival as possibly (1) a legal doctrine of necessity, or (2) an extra-legal discourse of necessity.

I . Closure: State Survival as a Legal Doctrine of Necessity

By first moving through each of the accepted doctrines in necessity in international law—

including human rights law, international humanitarian law, and particularly the general law of

state responsibility— the court seems to exclude the category of ―state survival‖ from

assimilation with any of these.585

In this way, even though they do not articulate state survival or

give it any substance, they nonetheless guard against its ―distorting and obscuring other

concepts.‖ Perhaps the court was concerned that he notion of state survival, limited to the context

585

The Court takes up the following doctrines, which have already been discussed in previous

chapters: A. Military Necessity (Jus in Bello) B. Self-Defense (Jus ad Bellum) C. State of Necessity D.

Self-Preservation E. Proportionality. Though the right itself is ―inherent‖ as a matter of customary

international law, and nothing in the Charter ―impairs‖ it, the Charter does formalize the recourse to self-

defense in the age of collective security: If it found a more concrete set of norms in the area of IHL, and

this was the applicable lex specialis, the use of nuclear weapons seemed ―scarcely reconcilable‖ with the

general principles of international humanitarian law, The Court did not provide any insight into what

particular circumstances would render the use of nuclear weapons consistent with these principles.

However, it is significant that the Court proceeds to ignore these doctrines and invoke the quasi-concept of

―very survival of a State.‖ The fact that the court does not apply established doctrines (e.g. necessity,

proportionality, or self-defense) in favor of a new standard implied that ―state survival‖ might be intended

to defer to some extra-juridical conception of necessity. On the other hand, it might be identified with an

existing doctrine or a new doctrine within international law.

of the defensive use of nuclear weapons, need not imply the dilution of the doctrines discussed in

this dissertation in ―lesser conditions‖ of violence. Or perhaps they were simply attempting to

carve a ―special category‖ for nuclear weapons. Yet its doctrinal character seems palpable enough

Judge Guillaume described state survival as a ―ground for absolution.‖ According to Judge

Fleischauer, ―the general principles of law recognized in all legal systems, contains a principle to

the effect that no legal system is entitled to demand the self-abandonment, the suicide of one of

its subjects.‖586

Is this the principle of salus populi? In other words, when the interest is physical

survival of the state along with its population, and the threat is something that clearly endangers

these; the state could potentially invoke all at once the standards of self-preservation required for

―self defense,‖ ―state of necessity,‖ and ―distress.‖ (The last of these personalizes and dramatizes

self-preservation in of one‘s physical life as well as the duty of care to the population, where a

state‘s agent has ―no other means of saving [one‘s own] life or that of persons entrusted to [the

agent‘s] care?‖). The notion of salus populi in the international sphere is not limited to what has

been understood by that notion in political theory so far, it is based on the state‘s protection of

populations under its care. As articulated in the Martens Clause, it is the principle that that

―populations… [must] remain under the protection and empire of the principles of international

law.‖587

A century ago, these principles were loosely based in custom— ―usages established

between civilized nations, from the laws of humanity and the requirements of the public

conscience‖—but today, they are even more emphatically present in multilateral treaties, and

other relatively determinate sources of international law. This ―natural law content‖ in the case of

self-defense has widely been… On the other hand, the natural law background has been used to

In humanitarian law, the theoretical and practical completeness of law, or the closure of possible

gaps, is articulated in the Preamble to the Second Hague Convention (July 29, 1899) in the

principle called the ―Martens Clause‖:

Until a more complete code of the laws of war is issued, the high contracting Parties

think it is right to declare that in cases not included in the Regulations adopted by them,

populations and belligerents remain under the protection and empire of the principles of

international law, as they result from the usages established between civilized nations,

from the laws of humanity and the requirements of the public conscience.‖

586

Judge Fleischauer Nuclear Weapons quoted in G. Marcelo Kohen, The Notion of "State Survival"

in International Law, in International Law, The International Court of Justice and Nuclear Weapons 306

(Laurence Boisson de Chazournes & Philip Sands eds., 1999). 307. 587

Preamble, Hague Convention II (July 29, 1899)

The notion of salus populi in the international sphere is not limited to what has been

understood by that notion in political theory so far, it is based on the state‘s protection of

populations under its care. As articulated in the Martens Clause, it is the principle that that

―populations… [must] remain under the protection and empire of the principles of international

law.‖588

A century ago, these principles were loosely based in custom— ―usages established

between civilized nations, from the laws of humanity and the requirements of the public

conscience‖—but today, they are even more emphatically present in multilateral treaties, and

other relatively determinate sources of international law.

It is a fundamental principle? What is its importance, and in which ways does it override

the rules of humanitarian law and other norms of international law? ―State survival‖ can be seen

as a right that derogates other rights. The most amorphous characterization of the concept as a

species of self-preservation was articulated by President Bedjaoui of the ICJ of ―A state‘s right to

survival‖ as ―a fundamental law, similar in many respects to a ‗natural law‘.‖589

This still allows

for a number of characterizations of an ―ultimate right‖ internal to the legal system under the

name ―state survival‖: rather than an extra-legal value (vacant imperative, raison d‘etat) state

survival would be a substantive version as a super-right of a hierarchical character (―natural law‖

―ultimate‖ right, ―jus cogens‖?590

). Is it instead a moral imperative or a general principle of law

codifying a moral imperative? Among the protective principles the court cited was the Martens

Clause591

, according to which in ―cases not covered by international instruments, civilians and

combatants remained under the protection of the principles of international law derived from

588

Preamble, Hague Convention II (July 29, 1899) 589

The Court's formal dispositif (holding) contained six substantive findings. Firstly, there is in

neither customary nor conventional international law any specific authorization of the threat or use of

nuclear weapons; secondly, there is in neither customary nor conventional international law any

comprehensive and universal prohibition of the threat or use of nuclear weapons as such; Thirdly, a threat

or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United

Nations Charter and that fails to meet all the requirements of Article 51, is unlawful; D. A threat or use of

nuclear weapons should also be compatible with the requirements of the international law applicable in

armed conflict, particularly those of the principles and rules of international law, as well as with specific

obligations under treaties and other undertakings which expressly deal with nuclear weapons; E. It follows

from the above-mentioned requirements that the threat or use of nuclear weapons would generally be

contrary to the rules of international law applicable in armed conflict, and in particular the principles and

rules of humanitarian law. There an obligation to pursue in good faith and bring to a conclusion

negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. 590

The Notion of "State Survival" in International Law, in International Law, The International

Court of Justice and Nuclear Weapons 306 (Laurence Boisson de Chazournes & Philip Sands eds., 1999), 591

as embodied in Art. 1 para. 2 of the Additional Protocol I of 1977

custom, from the principles of humanity and from the dictates of public conscience.‖ Other

possibilities of this sort could be raised.592

II. Rupture: State Survival as an Extra-Legal Discourse of Necessity

The Nuclear Weapons Case possibly alludes to an extra-juridical space of ―necessity‖ in

its discussion of the ―very survival of the state.‖ It is surprising that the court considers that this

question is terra incognita for international law. As a default position, they seem to adopt a stance

similar to the German constitutionalist Erich Kaufmann who in 1931 theorized there is always a

duality of formal and contingent notions of necessity, and that in the extreme case, an ―ultimate

right of necessity‖ exists, ―alongside standardized and formalized exceptional rights.‖593

This

ultimate right governing the extreme case is not the positive law but is the ―unwritten, natural-law

content‖ of every body of law.594

And the ICJ‘s reasoning in the Nuclear Cases, where it introduces the concept of ―state

survival.‖ Where the Charter refers to ―inherent‖ right of self defense, this may have given some

reference to a tradition of natural law. However, in legal terms, it can only mean that the right of

592

The Notion of "State Survival" in International Law, in International Law, The International

Court of Justice and Nuclear Weapons 306 (Laurence Boisson de Chazournes & Philip Sands eds., 1999),

The ―state of necessity‖ similar to the ILC‘s draft is customary law according to the ICJ, but is it also a

general principle of law? Is this simply an application of self-defense under jus ad bellum? Is it a different

kind of self-defense? The only mention of collective self-defense comes in the restatement of Article 51.

Does it swallow all of jus in bello? Is ―proportionality‖ still operative? Does it imply physical survival, as

in the case of a massive attack with weapons of mass destruction? Or is it to be understood as an extreme

case of an Article 2(4) threat to territorial integrity or political independence? State of necessity, since at

the time when the preventive action against another State is taken, the expected wrongful use of force by

the latter has not, (or at least, has not yet) taken place, and the- State that acts can thus only allege the

necessity to protect itself against a grave and imminent danger? Or self-defense? the correct one since it is

after all the threat, of the feared actions which is the reason for the preventive measures taken against the

State whose attack is feared the Charter of the United Nations refers to the threat and use of force in the

same provision and provides for the same type of measures with regard to both. 593

Andras Jakab, German Constitutional Law and Doctrine on ―State of Emergency‖: Paradigms and

Dilemmas of a Traditional (Continental) Discourse, German Law Journal Vol. 7 (5) (2006).Erich

Kaufmann, Zur Problematik des Volkswillens 14 (1931) (―For the extreme case, an ultimate right of

necessity exists, alongside standardized and formalized exceptional rights, in the unwritten, natural-law

content of every body of constitutional law‖) (translation Andras Jakab, German Constitutional Law and

Doctrine on ―State of Emergency‖: Paradigms and Dilemmas of a Traditional (Continental) Discourse

German Law Journal Vol. 7 No. 5 - 1 May 2006,).). See also Rudolf von Jhering, Der Zweck im Recht 330

(8th ed. 1923) (―As the individual human being, so too the state has a right of necessity when its existence

is threatened‖) See Carl Friedrich Wilhelm von Gerber, Grundzüge des deutschen Staatsrechts 42 (3d ed.

1880) (―The recognition of emergency powers contains the idea of the state‘s right of existence beyond its

usual constitutional life, a right that appears in abnormal emergency circumstances‖) (translation Andras

Jakab, German Constitutional Law and Doctrine on ―State of Emergency‖: Paradigms and Dilemmas of a

Traditional (Continental) Discourse, German Law Journal Vol. 7 (5) (2006). 594

Erich Kaufmann, Zur Problematik des Volkswillens 14 (1931)

self-defense is based on customary international law.595

Recognition of a pre-existing ―inherent‖

right is codified in Article 51 of the U.N. Charter which states: "nothing in the present Charter

shall impair the inherent right of individual or collective self-defense if an armed attack occurs

against a Member of the United Nations, until the Security Council has taken measures necessary

to maintain international peace and security.‖596

This ―right‖ can be framed as ―exceptional‖

insofar as resort to force is banned as a general matter in the United Nations Charter. Erich

Kaufmann theorized there is always a duality (as opposed to a dualism) of formal and contingent

notions of necessity, and that the extreme case, an ―ultimate right of necessity‖ exists, ―alongside

standardized and formalized exceptional rights.‖ This ultimate right governing the extreme case is

not the positive law but is the ―unwritten, natural-law content‖ of every body of law.597

The

excess is whatever risk is not calculable This ―natural law content‖ in the case of self-defense The

logic of the inherent right of self defense as Whether there persists in international law a ―meta-

juridical‖ or ―extra-juridical‖ form of ―necessity‖ that evades any legal doctrine. Here the contrast

is between doctrinal ―closure‖ or taming and ―rupture‖ or suspension of normality; This image

draws upon Mansfield‘s ―taming‖ and ―unleashing,‖ un inassimilable particularities. To take only

one Derridean example, one might say the normality of the law is potentially disrupted by a

―dangerous supplement‖ of necessity,598

the supplement provides what is lacking. It serves to

complement and to complete that which is supplemented. But, as Derrida has it, the supplement is

also ―dangerous‖... It is not fully assimilable. It remains outside, challenging the completeness

and adequacy of that which is within: in other words it ―subsumes and supervenes."

Marcelo Kohen asked in reference to the invocation of ―state survival‖ in Nuclear

Weapons case, ―could it be that the notion of state survival will be used in international law the

same way as the raison d‘etat in municipal law?‖ The analogy or disanalogy might begin with the

observation that ―raison d‘etat‖ is not a legal concept or doctrine but a political theory of

595

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

United States), I.C.J. 4 (1986), (the Nicaragua Case). 596

Article 51 states, "nothing in the present Charter shall impair the inherent right of individual or

collective self-defense if an armed attack occurs against a Member of the United Nations. ..." 597

Erich Kaufmann, Zur Problematik des Volkswillens 14 (1931) cited in and translated by Andras

Jakab, German Constitutional Law and Doctrine on ―State of Emergency‖: Paradigms and Dilemmas of a

Traditional (Continental) Discourse German Law Journal Vol. 7 No. 5 - 1 May 2006). 598

See Peter Fitzpatrick, Dangerous Supplements: Resistance and Renewal in Jurisprudence

(1991): ―The supplement provides what is lacking. It serves to complement and to complete that which is

supplemented... But, as Derrida has it, the supplement is also ―dangerous‖... It is not fully assimilable. It

remains outside, challenging the completeness and adequacy of that which is within.‖ (1-2),

necessity. However, the purpose is clear, which is, as Kohen puts it, ―to justify every action

performed by the government, even in violation of law, when supreme or vital interests are at

stake.‖ In this context, and in the Nuclear Weapons case itself, it is still unclear why one or more

of the recognized doctrines of necessity constructed within international law would not serve this

purpose. Instead— and this is where the purpose of the question really lies— the implication is

that there remains a meta-juridical or extra-juridical conception of necessity, expressible but not

governable in the language of international law—a ―vacant imperative‖— that might do away

with the legal doctrines and techniques we have enumerated in these pages. In the Nuclear

Weapons Case, the majority Opinion used raison d‘etat to justify the legality of the threat or use

of nuclear weapons in cases of extreme state survival. In extremis under the name ―state

survival.‖ The phrasing ―very survival of the state‖ recalls not so much a vacant imperative as the

broad category of salus populi or raison d‘etat. These provide minimal materials for doctrinal

closure to secure international law against the exception: it is conceived as a threatening

supplement to legal normativism.

Reasoning from extremes can yield insight or absurdity. In evacuating the ultimate

prohibition to protecting an ultimate value, it cannot be that all lesser prohibitions disappear.

Consider the form of argument, ―If even life is not absolute, how absolute can a prohibition on

torture be?‖ Among scholars debating emergency powers, an analogous argument is available

regarding extreme ―extra-legal‖ measures including a (analogous argument about use of torture)

in acts of official disobedience by public officials facing a catastrophic ―ticking bomb‖ scenario.

Instead here— tragic act that cannot be undone— the violence. 599

This kind of reasoning is

evident in the work of Carl Schmitt for who begins with the ―possibility‖ of ―actual, physical

killing in a friend-enemy encounter, the political cannot be made subordinate to any other set of

values or institution, whether religious, moral, aesthetic or economic. In the nuclear context,

faced with the immediacy of the possible extinction of human life, we should so what we always

have: commit to our territory and community, triage, to begin with the near and the few. 600

And

599

Oren Gross, The Prohibition on Torture and the Limits of the Law, in Torture 229, 239-44

(Sanford Levinson ed., 2004). 600

Schmitt later wrote on international law and self-defense in the Theory of the Partisan, which only

confirmed his irredentism and volk nostalgia. There is a deep link between ―politics‖ and ―worldliness.‖

War, defense of self; the readiness of combatants to die, the physical killing of human beings who belong

on the side of the enemy—all this has no normative meaning, but an existential meaning only, particularly

in a real combat situation with a real enemy. Similarly, in the 1930s Schmitt‘s political theory shifted from

decisionism to a system of ―concrete order thinking‖, an institutional micro-decisionism where the

satisfaction of social needs is no longer guaranteed by enforceable legal rights, but by arbitrary measures,

―If there really are enemies in the existential sense as meant here, then it is justified, but only

politically, to repel and fight them physically.‖601

But Schmitt essentializes the insights he gains

from extreme situations; if, normative considerations go out the window in a kill-or-be-killed

situation, that must at least cast doubt on their validity in other situations as well. According to

Schmitt, if self-preservation is a primordial fact outside of moral or legal normativity, then

anything that hints at that same ―substance‖ must fall outside of the legal sphere as well. Schmitt

again emphasizes the extremity—and to him ―purity‖ or authenticity‖— of genuinely defensive

violence where existence is at stake, but this leads him to reject legally prescribed norms that

place precise limits and proportional exceptions.

This Schmittian view, the essentialization of substance, and Ago‘s denial of any

―substance‖ to necessity understood as self-preservation collaborate in emptying legal forms of

substantive values, but they do so in the name of a false idol. Schmitt parallels those who today

invoke an ultimate ―survival rule‖ giving lip service to collective self-preservation in order to

support a rule that is far less restrictive (―tendencies toward self-destruction‖), 602

the only

similarity being the essentialized ―substance‖ called self-preservation. Ago supported the

emptying of necessity doctrines of any such substance in order avoid these opportunistic

arguments. But Ago also entered an echo chamber with his opponents by essentializing self-

preservation, anything that hints at that same ―substance,‖ and banishing these from the legal

sphere. Thus international legal discourse has nearly abandoned concepts that describe a right to

state survival. There are a number of positive norms that taken together favor a right to minimal

physical existence and to not be annihilated. However, the duty of preservation (salus populi)

obligates states to preserve the lives of those under its care even as it struggles for its corporate

existence, has no doctrinal expression .

The ICJ at least avoids reasoning from the extreme exception, and this some systemic

warping effects. The bitter harvest of ―necessity‖ includes killing fields, the death camps, and

gulags of the last century, and the repression and violence which continue today. However, they

by administrative acts of mercy which acknowledge the obedience of those subject to their power.

Preservation of the nation-state took another hit with the publication of Nomos of the Earth and later

writings on geo-political situation… 601

(Carl Schmitt, Concept of the Political 48-9). 602

(This is Heller‘s critique of Gross and Paulsen in recent constitutional debates). Kevin Jon Heller,

The Rhetoric Of Necessity (Or, Sanford Levinson‘s Pinteresque Conversation) 14 Georgia Law Review

Vol. 40 (2006). Heller point out that both a prominent neo-republican formalist and(Bruce Ackerman) and

a champion of extra-legal measures (Oren Gross) separately point our that in the societies debating such

measures ―genuinely existential threats are extremely unlikely.‖ Oren Gross, Chaos and Rules: Should

Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011, 1023 (2003).at 1099

also know they cannot articulate ―state survival‖ in the present tense. Yet they could not rely

upon legal ―principles formulated and accepted well in advance of potentially dangerous

action.‖603

They do evoke in a patchwork manner some of the (contradictory but settled) norms

evocative of such a principle, ―fundamental right of every State to survival, and thus its right to

resort to self-defense, in accordance with Article 51 of the Charter, when its survival is at stake.‖

In a way, the court‘s invocation of a Babel of fragmented international norms, followed

by a pronounced silence on the question itself, would seem a vindication of Carl Schmitt‘s claim

that ―whether the extreme exception can be banished from the world is not a juristic question,‖604

But they are not altogether silent. In the conclusion, I will say that the virtue of the ICJ‘s opinion

has been to defer to a future doctrine, though it is by no means certain that this doctrine would

ever come, or if it did, it would resemble the principle of salus populi.

7. Conclusion: Formalism, Wish Fulfillment, and the Desire for

Closure

I have offered some plausible views to help assimilate the ICJ‘s formulation of state

survival to mainstream necessity doctrines by supplementing fragmentary notion with a norm of

salus populi as a general principle of law, and the jurisprudence this recalls. Still, the status of the

doctrine of ―state survival‖ will require particularly rigorous clarification. The fact that the court

does not apply established doctrines (e.g. necessity, proportionality, or self-defense) in favor of a

new standard implied that ―state survival‖ might be intended to defer to some extra-juridical

conception of necessity. On the other hand, it might be identified with an existing doctrine or a

new doctrine within international law. After a subtle appraisal of the law, did the Court defer to

raison d‘etat? Scholars are all too ready to conclude… that formal doctrine or obscured by sloppy

classification a misnomer of ―state survival.‖ the exception‖ because it has too often been critical

603

Judge Lachs, former President of the International Court of Justice (―ICJ‖) G. Marcelo Kohen,

The Notion of "State Survival" in International Law, in International Law, The International Court of

Justice and Nuclear Weapons 306 (Laurence Boisson de Chazournes & Philip Sands eds., 1999). 604

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. George

Schwab, Cambridge, MA, 1988), p. 7. In a book review covering Derrida‘s later thought, Martti

Koskenniemi relates the universal and the particular, law and politics as supplements: ―As Derrida has

often argued, justice does not end but only begins with law. The fact that the universal is always also

particular, the legal also more than just ―legal‖, does not open the way to the Schmittian nightmare: it is the

precondition for there to be something like a realm of politics in which issues of right, good and just can be

meaningfully debated and approached. There is no closure.‖ Martti Koskenniemi, Book Review –

Giovanna Borradori (Ed.), Philosophy in a Time of Terror. Dialogues with Jürgen Habermas and Jacques

Derrida (Chicago and London, University of Chicago Press 2003), 4 German Law Journal 1084 (2003),

available at http://www.germanlaw journal.com/article.php?id=319.

theories tend to elevated to the political-theological realm, been imbued with a fierce alterity or

normless negativity.

My own reading of the court‘s opinion, drawing diverse strands from this study, is to

view it as a kind of ―deferred formalism‖ but a stringent formalism nonetheless. In this view, the

court is leaving the door open (as opposed to Ago‘s window) for an effective doctrine that has yet

to be articulated to tame such a situation, which the court resists assimilating to other doctrines in

their accepted interpretations. The stringency of the formulation ―where the very survival of the

state‖ puts the baseline at an immediate threat to existence (i.e. a nuclear weapon directed at a

nation‘s political and economic center) would trigger more than one regime of derogation but the

relevant standard that would remain would be to allow the use of a nuclear weapon to forestall the

armed attack, for no less a purpose than survival. Thus the watering down of other doctrines is

resisted here, and a window is not left open for the rationalization of the use of nuclear weapons

under the generic heading of ―necessity‖ or through deformalizing and deforming doctrines such

as state of necessity or even ―ordinary‖ self-defense. The court also it resists phrasing this as

recourse to a wholly antinomic prudence. By including the name of a venerable doctrine (―self-

defense‖) even an exceptional variant of this could not be understood as raison d‘etat, ―the

political,‖ or some other vacant or latent form of necessity. The non-liquet buttresses this by

pointing to the possibility of the doctrine but deferring it ―to come‖ rather than announcing it, and

bringing it into to existence through a judicial rationalization out of the context of any extant

emergency. It is antinomic only so far as it resists validating a principle in perpetuity, which ―then

lies about like a loaded weapon, ready for the hand for any authority that can bring forward a

plausible claim of an urgent need.‖605

By deferring consideration of such a doctrine, the court

offers another manner to tame necessity, minimizing its potential power as an

―undeconstructible‖ political excess, using its incalculability not as a blank check but an occasion

for caution. Violent Acts of self-preservation can seek justification at law, whether it is an

individual or a state.

Gaps, and especially gaps regarding catastrophic cases encourage the kind of extra-legal

critique posed by political realists that international law is inapplicable in exceptional danger.

According to Koskenniemi Lauterpacht as a pragmatist argues (against Kelsenian positivism

scientific unity and completeness of law based on a basic norm, and Schmittian claims reducing it

to a factual sovereign‘s self-sufficient decision) that law ―detests a vacuum‖ and to quote another,

605

Justice Robert Jackson in Korematsu v. United States, 323 US 214, 246 (1944).

more forceful pragmatist, Stanley Fish: "the law wishes to have a formal existence.‖ 606

Yet these

are not imperatives or even empirical descriptions, but expressions of desires, and desires—

always dependent on incompleteness— do not contain their own fulfillment.607

However, both

pragmatists sooner or later articulated the further connection of this desire with a professional

project, for Lauterpacht (the use of ―…analogy as the lawyer's means of ―supplementing

fragmentary or contradictory materials so as to ensure systemic unity.‖) Fish demonstrates that

the basis of professional activity per se is internal intelligibility--that is, intelligibility within a

defined community.608

If the law ―wishes‖ to have a formal existence, this wish extends to

hierarchy, coherence, completeness, status and other systemic aspects. Perhaps a feature of a

vacant imperative is that it always allows us to project our desires upon it, including the desire for

formalism.

606

John R. Morss, Who's afraid of the big bad Fish? Rethinking what the law wishes to have.

Melbourne University Law Review, April, 2003: (―In 'The Law Wishes to Have a Formal

Existence', Fish accused the law of maintaining a formal, positivistic self-image as principled; an activity

that rises above processes of interpretation and of moral judgment. For this 'anti-formalist' Fish there is thus

a false sense of self-sufficient closure to the law's discourse. More recently, however, in discussing the

practice of another profession (namely literary criticism) Fish demonstrates that the basis of professional

activity per se is internal intelligibility--that is, intelligibility within a defined community.‖) Gaps, and

especially gaps regarding catastrophic cases encourage the kind of extra-legal critique posed by

political realists that international law is inapplicable in exceptional danger. According to

Koskenniemi Lauterpacht as a pragmatist argues (against Kelsenian positivism scientific unity

and completeness of law based on a basic norm, and Schmittian claims reducing it to a factual

sovereign‘s self-sufficient decision) that law ―detests a vacuum‖ and to quote another, more

forceful pragmatist, Stanley Fish: "the law wishes to have a formal existence.‖ Yet these are not

imperatives or even empirical descriptions, but expressions of desires, and desires— always

dependent on incompleteness— do not contain their own fulfillment.� However, both

pragmatists sooner or later articulated the further connection of this desire with a professional

project, for Lauterpacht (the use of ―…analogy as the lawyer's means of ―supplementing

fragmentary or contradictory materials so as to ensure systemic unity.‖) Fish demonstrates that

the basis of professional activity per se is internal intelligibility--that is, intelligibility within a

defined community.� f the law ―wishes‖ to have a formal existence, this wish extends to

hierarchy, coherence, completeness, status and other systemic aspects. P 607

William Gass Desire essay. 608

In discussing his vocation (namely literary criticism) Fish says that the basis of professional

activity is internal intelligibility--that is, intelligibility within a defined community.

APPENDIX 1:

CONNECTING LIBERAL AND REPUBLICAN TRADITIONS TO EMERGENT

CONCEPTS OF SALUS POPULI IN INTERNATIONAL LAW

(Possible Additions to Chapter One from early drafts)

Salus populi-- literally safety of the population—is not just another interest

justified as a reason of state (raison d‘etat) but the state‘s very reason for

existence (raison d‘etre). Also, if for centuries it was tenable to think as

Rousseau did that state owes its own people protection, ―preservation‖

―political community‖ but foreigners a gladiatorial, war-like stance, global

interdependence has changed the empirical and legal situation. Increasingly,

however, both international law and constitutional law enshrine protections

from the state—rights and liberties—which have become increasingly connected to

this definition. Even Kant gives lip service to the Ciceronian maxim salus

populi suprema lex,i despite the tension of that maxim with his ethical theory

more generally.

Entire traditions have been named after Hobbes and Grotius and they have often

been opposed to each other. Next section, these processes as represented by

philosophical contemporaries of these conceptions. Republican and liberal,

oscillation between formalism and contingency. Carl Friedrich‘s masterful study

Constitutional Reason of State contextualizes ―raison d‘etat‖ as an

intermediate concept between classical and modern notions of security,

necessity, and even proportionality. Ratio Status… Mutually reinforcing,

challenge of positive correlation between conventional antinomies such as

liberty and security, the trick is to… According to Peter Sloterdijk,

Whoever spends time on the human island makes the observation that its

population is subject to a local normative tension – a tension that

is of fundamental importance for social statics. It was an early intuition of

the sages and the eldest of all societies that the normative climate of a

group stands in a positive correlation with its sustainability or stability,

that is, with its capacity for survival. None of the primordial communities

that survived were ever able to afford to treat their customs, forms of

intercourse, or dogmas lightly…. each normative code is also

underpinned by a safety net of tolerable exceptions…ii

In terms of states of emergency also, a standard and referent of preservation

are crucial. Emergency powers have a distinctive meaning, apart from

sovereignty or revolution, and it gets this meaning only when we give substance

to ―preservation.‖ I have already asserted preservationist logic is the

differentia specifica of true emergency regimes, but it may still be unclear

why.iii After all, it can be argued that various strategies of preservation,

stability, regression, and change, are all merely alternatives in an overall

logic of survival. Preservation is then subservient to a more basic logic of

survival, which can take many other forms and strategies, including the

necessity of change. In my view, normative preservation is broader and more

demanding than mere survival. Even putting aside the non-preservationist

variants, strategies of ―mere survival‖ or protection of the physical integrity

of a community must yield to more demanding criteria: something of the virtues

spelled out by a society must be intact. This is the role of the protection of

fundamental pre-commitments. Preservation is informed by pre-commitments, a

larger history of commitments that constitute a collectivity. John E. Finn in

his work on ―constitutional maintenance‖ called this objective the ―defense and

restoration‖ of the constitutional order.iv These are, of course, all normative

definitions, but they nevertheless delimit what we can empirically recognize as

the exercise of emergency powers and what we refer to as abuse.v

In relation to emergencies, we can think of two contexts of preservation.

The first is material preservation, which is a usage almost synonymous with

―necessity‖: the imperatives of security against an external threat. It is not

difficult to see, however, that self-preservation carries a deeper

significance. According to the Argentine political philosopher Enrique Dussel,

self-preservation is the fundamental rationale for all political order. Even in

Western liberal societies that base themselves on more formal and abstract

principles, self-preservation is a singular ―material‖ principle that defines

our collective obligations.vi In the context of emergencies, as we have

discussed above, the imperative of self-preservation is translated into

different kinds of standards, such as ―grave and imminent peril‖ or ―extremely

grave danger,‖ and directed toward different kinds of referents, such as

―political community‖ or ―political order.‖vii Scholarly opinion on this

preservation as the objective of is emergency powers is unanimous and emphatic.

Take for example, Clinton Rossiter‘s account: ―This strong government which in

come cases might become an outright dictatorship can have no other purposes

than the preservation of the independence of the state, the maintenance of the

existing constitutional order, and the defense of the political and social

liberties of the people.‖viii

What is more controversial is the actual enumeration of which aspects of the

permanent order should be maintained during their defense. However, it may be

Normative preservation— the intention to defend and restore of permanent

institutions and therefore the emergency regime‘s sense of its own contingency—

that more properly defines an emergency regime than the shifting and empty

signifiers ―political community‖ or ―political order.‖ The second context of

preservation is what I refer to as the logic of preservation: an imperative of

non-abuse by the emergency regime itself. This requirement flows from the

earliest manifestations of emergency regimes, the Roman dictators, who were

required to quickly make themselves obsolete. This second aspect will require

more substantive discussion throughout this dissertation because it is at the

core of my definition of emergency powers. Normative preservation is described

well by Machiavelli in several passages of his Discourses on Livyix: ―As is seen

ensued in Rome where in so much passage of time no Dictator did anything that

was not good for the Republic…. A dictator was made for a (limited) time and

not in perpetuity, and only to remove the cause for which he was created.‖

Among the early ―moderns‖ the passionate revival of these considerations can

first be seen in Niccolo Machiavelli. Machiavelli (1469-1527), whose name has

long been synonymous with the demonic element of politics, has been

rehabilitated in the last few decades as a serious political thinker. He earns

the designation ―republican‖ not because he was the citizen or defender of a

republican form of government, but because he looked retrospectively to the

institutions of the Roman republic for appropriate principles of governance. In

fact, much of what we believe the Romans first said about their institutions is

actually what Machiavelli said they said. In his Discourses on Livy, and

defends the model of the Roman dictatorship as the best mechanism to handle

emergencies, stating that: ―It is clear that the dictatorship, so long as it

was bestowed in accordance with public institutions, and not assumed by the

dictator on his own authority, was always of benefit to the state.‖x

In his defense of dictatorship, Machiavelli is shadow-boxing against now

forgotten opponents. Presumably, in Machiavelli‘s time the term ―dictatorship‖

did not have the pejorative reputation it has today.xi Yet in his reading of

Livy, Machiavelli disregards some of the ambivalence of the formalism of the

roman dictatorship (as with Fabius) and converts it into an ideal-type. Several

reasons account for the positive contribution of the dictatorship to Rome. To

later, the merits of this model, which modern emergency regimes: Republics are

divided, deliberative m and slow. Need to unite power to speed up during an

emergency. (1) The dictator was appointed for a limited time, (2) the dictator

not self-appointing, no auto-investiture of powers, (3) no permanent

legislative amendment or constituent power (4) logic of preservation, which was

necessary to achieve a specific goal. Machiavelli—avoids any constitutional

change. Only stabilize constitutional equilibrium. This remained the theory of

emergency powerxii

Limited power, temporality, and explicitly within

constitution, both (1) the normal separation of powers and (2) citizens‘

rights, tend to be suspended. Like appeals to the popular assembly. This

approval of the dictatorship is rooted deeply in Machiavelli‘s almost aesthetic

preference for ―oneness‖ as the most beneficial ordering device. The ―many,‖

says Machiavelli, are inept at the task of ordering. Only the prudence of a

single mind can act with the requisite clarity and force of decision. A single

opinion is superior even to wisdom of counsel. It is no wonder then that Pocock

refers to those moments of crisis when republics must confront their own

temporal finitude as ―Machiavellian moments.‖

While the aesthetic content of Machiavelli‘s political thought is the

championing of ―oneness‖ over ―brokenness,‖ the rational content his thought is

in a strong defense of formalism and preservation. Machiavelli's warning that a

republic ought to provide by law 'for every emergency, [by] having a remedy for

every emergency and fixed rules for applying it.'xiii

According to this outlook,

the Constitution's failure to provide for broad executive emergency power would

be best remedied by legislation providing a framework for emergency rule.

Machiavelli praises the formal-legal aspects of the Roman dictatorship, noting

it was always of benefit to the state when ―bestowed in accordance with public

institutions.‖xiv

Thus Machiavelli warned that a republic ought to provide by

law ―for every emergency, [by] having a remedy for every emergency and fixed

rules for applying it.‖xv As such, Machiavelli is a strong advocate of formalism

in emergency powers.

A nearly parallel treatment of the subject is given by Jean Jacques

Rousseau (1712-1778). Rousseau, however, puts less emphasis on the formalism of

the Roman system, and more insistence on a couple of aspects of preservation.

In The Social Contract (1762), he expresses the opinion that:

[I]f… the peril is of such a kind that the paraphernalia of the laws are

an obstacle to their preservation, the method is to nominate a supreme

ruler, who shall silence all the laws and suspend for a moment the

sovereign authority. In such a case, there is no doubt about the general will,

and it is clear that the people's first intention is that the State shall not

perish. Jean Jacques Rousseau, The Social Contract 110 (Hafner Press 1947)

(1762).

What should be foregrounded here is that an emergency power is exercised

―only to remove the cause for which [it] was created.‖ This has continued to be

the specific logic behind the resort to emergency powers, even if it is an

often-abused provision. It is, in fact, what any notion of abuse is measured

against. Machiavelli goes on to define a related aspect of preservation: ―…but

he could do nothing to diminish (the power) of the State, such as would have

been the taking away of authority from the Senate or the people, to destroy the

ancient institutions of the City and the making of new ones.‖ So, reasoned

Machiavelli, the dictator could not possibly leave ―the City‖ any worse than he

found it. Modern constitutionalists, such as Pasquino and Ferejohn, agree that

this preservationist logic (which they call a ―conservative purpose‖),xvi is the

chief normative characteristic of an emergency regime:

Emergency powers in modern constitutions are to be employed to deal with

temporary situations and are aimed at restoring the conditions to a state in

which the ordinary constitutional system of rights and procedures can resume

operation. Typically the holder of emergency powers is not permitted to make

law but is restricted to issuing temporary decrees. And of course, the

constitution itself is not to be changed in such periods.

Clinton Rossiter also stated ―all uses of emergency powers and all

readjustments in the organization of the government should be effected in

pursuit of constitutional or legal requirements.‖xvii

John E. Finn in his work on

―constitutional maintenance‖ called this objective the ―defense and

restoration‖ of the constitutional order.xviii

These are, of course, all

normative definitions, but they nevertheless delimit what we can empirically

recognize as the exercise of emergency powers and what we refer to as abuse.

It is this dual character of preservation (from the threats of emergency

as well as from the long term effects of the emergency regime) that defined the

classical philosophical debates and policy debates today. As will become clear,

in my model, normative preservation is central to a definition of emergency

regime as well as to emergency governance. The emergency regime is presumably

trying to preserve the existence of a political order or community of some

sort. Emergency governance is collaborating in this first kind of preservation,

but crucially adding to its mandate the purpose of preserving the order or

community from the regime‘s exercise of emergency powers.

It is particularly relevant to the present project that we understand

preservation is an evaluative term; the same with normality. In what sense can

preservation be considered a value? After all, it can be argued that

preservation, stability, regression, and change, are all merely alternatives in

an overall logic of survival. If this is true, preservation is then subservient

to a more basic logic of survival, which can assume many other forms and

strategies, including change.xix

It seems that in practice, claims of necessity will never be quite as vacant as

they seem. At the end of the day, specific interests or values will be served.

Often necessity remains categorical when it is attached to theological,

metaphysical narratives, but also often through essentialism of tragic, and

existential narratives. However to identify these, Contests concerning

necessity take on the character of wrestling with a void, an invisible enemy,

until it reveals itself. The taming of necessity requires the evacuation of

absolutes and the identification of a conditional value. There are a number of

discourses that maintain the vacant imperative.

Finally, this general notion of preservation probably just defers the question

of a referent. We should specify better exactly what object a preservationist-

logic would seek to preserve. On the face of it, it is the extent

constitutional and political structures, the laws, of normal times. Is it a

―constitution‖ in the broad (even Schmittian) sense? Is it mere survival of

the physical integrity of a people? Is it a recognized regime from an

international law perspective? Is it democratic will of the people? Is it

constituent powers followed?

(Constitutional permutations of salus populi codified in secure in domestic

traditions, status of general source in international law general principles is

less certain … To be sure, legal doctrines will not foreclose all conflicts

and dilemmas. More likely, they will simply generate new ones. This is the

concern of the second half of this dissertation. In the case refers to a

―positive obligation‖ to ―take appropriate steps to safeguard the lives of

those within its jurisdiction....xx

Two categories comprise the theoretical constructs of internal necessity as

seen in states of emergency: ―state-centered theories‖ and ―constitution-

centered theories.‖ Concept of salus populi mediates between them. The most

―general‖ concept of necessity cognizable in international law is the ―general

principle of law‖ of self-preservation, identified by Bin Cheng in his 1953

study as a primary normative rule, available for application in the case of

gaps in positive law. To date, general principles of law— codified at 38(1)c of

the PCIJ/ ICJ statutes as a source of international law, have been of interest

only to academics. However, whatever its priority, a general principle should

be attended to, especially when it has been applied by courts and tribunals.

Cheng identifies necessity and self-preservation with ―salus populi‖ I argue

that wherever necessity appears on the unstable border between the laws of war

and peace, it must be conditional on the principle of self-preservation.xxi

Without overstating its merits, Bluntschli‘s (1885) theory of the

statexxii

sorted out many of the views that are still influential, and the level

of analysis appropriate to consideration of salus populi in international law.

Salus Populi as Collective Self-Preservation includes also the ―administration

of law, which is necessary to secure the peaceful course of the common life,

and which prevents or punishes wrongs by which the community is harmed.‖

Bluntschli separated ―insufficient or exaggerated views of the end of the

state‖: ―salus res publicae‖ the state always has an unwritten, supra-positive

right of necessity unlimited by ordinary lawxxiii

and individual rights discourse

―salus res personae‖ Bluntschli ―After Kant and Fichte the opinion long

prevailed in Germany that the true end of the State was merely the assurance of

rights, and especially those of person and property.‖ Balance collective self-

preservation… end of the State is the security of the individual'.

ratio status can be associated at best with ‖

2. Internal Applications II: Salus Populi between Material and

Normative Self-Preservation: State, Constitution, Emergency

The modern view of internal application of necessity – a pronounced shift in

the second half of the twentieth century— is informed less by the cautious

entry into marginal and mixed situations of appropriation and requisition,

expulsion of ―enemy aliens‖ and civilian bystanders, as it is the more sweeping

influence of Salus Populi formed by human rights discourse, from the

inspiration of theoretical sources as disparate as state and constitutional

theory. Salus Populi is familiar in constitutional theory as well as

international law. Especially in reference to emergency powers, International

Lawyers have sought co-engagement with constitutional scholarship. Neo-

republican and neo-liberal approaches. ―updating‖ the most classical republican

approaches are adopted by Clinton Rossiter (1950s applied to Nuclear

Emergency), and Bruce Ackerman, who started soon after 9/11. Follows in

Rossiter‘s mold.xxiv

Extra-constitutional options formal switch on/ switch off.

By contrast— in the mode of Constant— but still on the formalist side,

(questioning Paulsen‘s argument and arguing that Constitution does not give

President power to suspend constitutional protections to save nation).xxv

As Otto Kirchheimer has written, ―Of fundamental importance for every

political theory is to what extent it takes account of, and admits into its

texture, the principle of emergency.‖xxvi

Despite its role at the limits of both

constitutionalism and international law, necessity in the context of states of

emergency or civil strife has been under-theorized in the classics of

international jurisprudence.xxvii

To get a more accurate idea of the issues of

state violence and legitimacy in the law over the past few centuries— as

suggested by Antonio Cassese— then we must refer to the republican and liberal

theorists such as Hobbes, Montesquieu, and Rousseau, who were writing in wide-

eyed recognition of violent revolutions and usurpations in Europe over the same

period of time, to more generally to supplement the doctrinal accounts of

necessity in international law in the next chapter. However, it should be

equally noted that retrospect, it is striking that nearly every canonical

thinker mentioned above failed to recognize the emergence of international

forms of order. Their contributions to theories of the state and emergency

often recognized the sociological fact of international conflict, but rarely

emphasized international cooperation. To what extent possible, I will draw

connections between the thinkers of the republican and liberal political

traditions, and their relevance to international law, but much of this gap will

have to be addressed in later chapters. On one hand, as this dissertation

describes, there are numerous instances of the doctrinal closure of necessity,

and the long term development of doctrines of necessity infra legem. On the

other hand, the peculiarly self-deconstructing quality of necessity, its

imperative form, never does away with the possibility of the rupture of these

doctrines, revealing necessity extra and contra legem.

A relatively familiar form of formalism and contingency in necessity

doctrines can be seem in the Republican and Liberalxxviii

traditions of

constitutional theory, which are the dominant intellectual currents governing

the internal application of the principle of salus populi.

The specific principles of emergency governance developing within modern

international law, particularly human rights law (HRL) and to a lesser extent

international humanitarian law (IHL) follow principles such as proportionality

and temporariness which are particularly republican in character. This is

despite the fact that derogation in itself seems like an eclipse, a veil over

liberty. are not to be found in familiar or even analogous forms in the liberal

tradition. If internal-territorial applications of salus populi are today

considered in a different light by international jurists, or the fact that they

are considered at all, this is not due entirely to the evolution of formal

sources and interpretations within international law, but also to the reception

of longstanding constitutional concepts within the terms of certain

multilateral treaties, and then into general international law. We have already

seen a range of efforts to concretize ―necessity‖ in the context of

constitutional theory, and if we fold in terms from domestic criminal and

contractual doctrines, our descriptions will be somewhat closer to the

doctrines that operate at the international level. However, the domestic

doctrines only serve as analogies, since the international doctrines are both

developed in their own institutional contexts, and are also arguably more open

to each other for their development. In the next three chapters of this

dissertation, I will describe ―self-contained regimes‖ in international law and

also attempt to put different notions of necessity in conversation with each

other.

In terms of states of emergency also, a standard and referent of

preservation are crucial. except as theorists and critics of these traditions

illiberal theories overturning the state—particularly Schmitt and Lenin—

articulated narrower applications the salus populi. illiberal and revolutionary

notions of self-preservation become less recognizable when placed beyond the

bounds of the republican and liberal approaches.

Two categories comprise the theoretical constructs of state of emergency:

state-centered theories and constitution-centered theories. By taking

preservation as the distinct specification of emergency regimes, some

consequences follow. These exhortations against extremes of realism and

moralism fall under the heading of prudence. First, as we have seen, illiberal

and revolutionary forms of opportunism are excluded. Second, both liberal and

republican traditions avoid the extreme moralism that is embodied in the maxim

fiat iustitia pereat mundus [―let there be justice even if the world

perishes‖]. As a Norberto Bobbio has said ―a politician‘s actions are of this

world and in support of it. He cannot make a decision as a consequence of which

‗the world will perish.‘‖xxix

Returning to the definition and limits of emergency powers, the first two

seem to fall squarely within the realm of phenomena that can plausibly be

described as emergency regimes. Formalism is the characteristic of

―republican‖ tradition, and contingency is the characteristic of the ―liberal‖

one, but the hypothesis or assertion here is that regardless of the level of

formalism,xxx

preservationist regimes can be described as kinds of emergency

regimes. Beyond these, there are the non-preservationist variants: formal and

contingent forms of transitions, ranging from military coups to popular

revolutions that do not rely on the normative preservation as strictly defined.

It falls on us to call upon historical experience and pragmatic judgment, to

decide whether the latter two are also emergency regimes. I contend that they

are not. The non-preservationist variants describe kinds of transitions

intended to permanently derogate pre-commitments in favor of logics of negation

or innovation.xxxi

We should be skeptical that ―emergency powers‖ have any

meaning when they refer to the permanent redirection rather than a temporary

deviation in the life of a stable political order. We should also be skeptical

when the only reason to declare an emergency is to aggrandize the holder of

emergency power. This is not to render any judgments about the legitimacy of

these kinds of regimes. In fact, these regimes might enjoy high empirical and

normative legitimacy, in terms other than the preservation of the existing

legal and political order. However, they are disqualified as emergency regimes

simply because they transgress the limits by which emergency regimes have

always justified their existence.xxxii

Simply recognize that there are several

possibilities of ―outsides‖ to the notions of normative and material

preservation outlines here, and that they might well reproduce the language of

formalism and contingency, but that they fall outside the minimal defaults of a

workable emergency governance, and therefore have had little influence on the

international jurisprudence.

Missing from the State theories of Bodin, Hobbes, Grotius (illiberal) The

actual objective of the law on state of emergency should be to secure a return

to the ―normal‖ constitutional status. Thus, the concept of state of emergency

in a constitutional state only makes sense where the exercise of state power is

subject to constitutional restraints. most commonly cited in theories of

statehood and sovereignty, sufficient to view sovereign as internal and

external and contracting. xxxiii

Grotius formalizing function of sovereignty, in

the service of collective self-preservation: For this reason, it is established

law, guarded by in almost all nations that no war can be made but by the

authority of the sovereign in each state. There must be a formal means to

distinguish public violence from private vengeance or treason, and the simplest

method is to concentrate public violence in the hands of a limited magistrate,

or sovereign. In the sixteenth century Jean Bodin offered in his Six Books of

the Republic what is usually called the first statement of the doctrine of

sovereignty. Law is the will of the sovereign, and sovereignty is the capacity

to make law by an act of will. But the sovereign is limited in four ways: he

must observe the laws of God and nature; he cannot alter the "laws which

concern the state of the realm, and the establishing thereof"; he must respect

the property of his subjects; and he must honor his contracts. The first

limitation came from medieval ideas rather than Roman law, for the Roman

jurists were clear that any imperial command, however unreasonable, was law.

The second referred to certain French laws, such as that governing succession

to the throne, which the king could not alter. The third also had a medieval

background, although Seneca had distinguished between imperium and dominium.

The fourth was, perhaps, drawn from the Roman law.xxxiv

Thomas Hobbes, In

Leviathan, written against the background of civil war, Hobbes postulates a

pre-social ―state of nature‖ where life is nasty, brutish, and short. Only by

ceding will to a Leviathan is order created, based on mutual relation between

protection and obedience.xxxv

As we have already seen, Hobbes placed self-

preservation at the center of his anthropology, and the citizen is viewed less

as an active subject than as an object that obeys and is protected. For him,

there can be no choice between a temporary magistrate or ultimate sovereign.

Hobbes does not speak of a ―state of exception‖ because all sovereignty should

be conceived of as a potential emergency that is held at bay by a permanent

magistrate, the Leviathan.xxxvi

Necessity doctrines can be analogized to domestic emergency provisions,

and in the case of human rights derogations, they are merely alternative

vocabularies to describe the same thing. Salus Populi is the chief normative

characteristic of an emergency regime: So, reasoned Machiavelli, the dictator

could not possibly leave ―the City‖ any worse than he found it. Modern

constitutionalists, such as Pasquino and Ferejohn, agree that this

preservationist logic (which they call a ―conservative purpose‖),xxxvii

Emergency

powers in modern constitutions are to be employed to deal with temporary

situations and are aimed at restoring the conditions to a state in which the

ordinary constitutional system of rights and procedures can resume operation.

Typically the holder of emergency powers is not permitted to make law but is

restricted to issuing temporary decrees. And of course, the constitution itself

is not to be changed in such periods. Clinton Rossiter also stated ―all uses of

emergency powers and all readjustments in the organization of the government

should be effected in pursuit of constitutional or legal requirements.‖ John E.

Finn in his work on ―constitutional maintenance‖ called this objective the

―defense and restoration‖ of the constitutional order.xxxviii

These are, of

course, all normative definitions, but they nevertheless delimit what we can

empirically recognize as the exercise of emergency powers and what we refer to

as abuse. This is the dual character of preservation (from the threats of

emergency as well as from the long term effects of the emergency regime itself.

The common critique available in the republican and liberal traditions is the

critique of permanence and to some degree, stealth ―Trojan horse‘) "These

regulations are nothing less than a Trojan horse which usher in provisions that

give the regime State of Emergency powers without declaring one." In this

section, I will discuss how republican and liberal theories have settled on

minimal commitments to normative preservation. In subsequent chapters, I will

show that over time, international law has internalized these standards as

well. how this relates to the constitution allows for more than one answer.

Briefly imagine a four-part typology, based on two variables, determining

whether or not identify a particular systemic response to crisis as an exercise

of emergency powers. To clarify the limits of the definition of emergency

powers, we have to carve it out of a more general phenomenon, which is the

systemic response of factual sovereigns to systemic crises. Following these

general conditions, there are two variable logics by which this might take

place. The first I call preservationist: (1) the intention to defend values

that are arguably more fundamental, such as the ultimate survival of the

political community.xxxix

The second we can call non-preservationist: (2) the

intention to hasten the demise of the previous political order, or to evolve

new permanent structures to represent the political community. A second

criterion is the relative formalism of these responses, by which I mean legal

formalism: the degree to which concrete factual details can be governed by

legal abstractions.xl Here, what I call ―formal‖ is the (1) dependence on pre-

existing legal rules to govern the declaration and termination of emergency;

what I call ―contingent‖ is (2) dependence on ad hoc decrees and decisions to

govern the declaration and termination of emergency. xli

This exercise would not

only show that the question of relative formalism is independent of the

commitment to preservation, but it would also generate the category

distinctions—which the two main intellectual traditions In terms of a larger

state theory it is also possible to have a non-preservationist approach,

regimes set themselves up on a permanent basis, using emergency as a pretextual

basis or stealth tactic,xlii

but that need not concern us here. State and

population

Of the classical political traditions engaging the question of emergency

powers, the most salient discussions and most coherent answers come from the

republican tradition.xliii

Republicanism is typically formalist on the issues of

declaration, duration, conduct, control, and termination of emergencies.xliv

the

history of Western political thought, the term ―republicanism‖ refers to a

perspective based on the conviction that the aspiration for the ―common good‖

of the state or community should guide public action rather than the protection

of individual and private goods. During the Enlightenment, republicanism often

drew upon Roman and Greek ideas and institutions. Perhaps for this reason, this

tradition takes as its primary model of emergency powers the institution of the

Roman commissarial dictatorship, which was praised by publicists such as

Niccolo Machiavelli and Jean-Jacques Rousseau.xlv This proximity of crisis, on

which the sovereign‘s power depends, is a general feature of modern systems of

government.

Emergency-republicanism draws on the principles of shared responsibility and at

every turn, the acts of the government are ―public things‖ (res publica) that

should be accountable to the political community. (This commitment extends to

the virtues of formalism). ―Comprehensive and obligatory legal framework which

governs all aspects of the public emergency, such as its declaration, its

manner of implementation as well as its termination. Ideal self-regulation.

Public announcement in the form of an official declaration is intrinsic to the

republican tradition.

Substantively, the emphasis on this tradition is to insist on the legal

nature of states of emergency. the first and perhaps most important guarantees

consist in predetermining the rules of the game, or "foreseeing the

unforeseeable While extreme, definition as a legal remedy means that it cannot

lie outside the rules and principles of law. A full-bodied republicanism is

ideally formalist all the way down the line, concerned with the declaration,

duration, conduct, control, and termination of emergencies, even if more often

only some of these aspects are formalized. One is opposition to dependence on

the political system, to a mediated form of political organization which might

fail to respect the citizen‘s own desires. The target here is the classical

theory of sovereignty, whether in its absolutist or constitutional forms. The

denial of the unmediated power of the multitude must be contrasted to the later

multitude-made-one Bodin and Hobbes by constructing an external political

power, setting the order of the historically legitimated sovereign against the

present desires of the disordered multitude.xlvi

The apparent coherence of

republican approaches to emergency is no accident. There is no single

institution that has been more influential on all subsequent emergency regimes

than the Roman dictatorship. The key contribution of the Roman dictatorship is

formalism, the possibility of structured agonism in governing an emergency.xlvii

In contrast, the clarity, force, and commitment to formalism and

temporariness of emergency measures originated with the Roman dictatorship. Its

underlying logic can be summarized as follows. Republics— today representative

governments— are by their nature divided and deliberative, and inevitably too

slow to respond to some of the most imminent threats. The republican political

tradition, beginning with Rome, responded to the challenges of external threats

and internal disorder by concentrating power in a single person to enable rapid

decision-making. But the Roman system‘s influence on the republican tradition

of emergency powers was more significantly defined by its particular

constraints: (1) The dictator was appointed for a limited time, (2) the

dictator was never self-appointed; (3) there was no power to legislate or amend

permanent laws; (4) the power was transferred only to achieve a specific

goal.xlviii

Later commentators identifying themselves with the Republican

tradition have never ceased to remind us that these constraints seem to have

consistently curbed abuse and served their purpose. This is where numbers argue

the virtues. Dictatorship, in its original form, was used ninety-five times

during a 300 year period and by most accounts its constraints were followed

scrupulously.xlix

No dictator served more than six months.l This has become the

classic defense for emergency powers to be included within constitutions or

governed by the existing laws.li

Constitutions raise certain concerns above ordinary politics. In one

sense, then, we can expect that arbitrary whims or temporary passions will be

tempered by constitutional structures. When even relatively stable legislative

enactments can be invalidated by the higher standard of constitutional review,

then what place do emergency measures have in a well regulated, formal

constitutional system. It would seem that the determination of whether

emergency powers are more compelling than ordinary legislation or whether they

are less compelling is based on whether or not a constitutional provision

articulates the standards for the emergency powers. This is the argument for

the validity of emergency formalism. Of course, there are versions of this

argument that would interpret the ―constitution‖ to be preserved as something

other than the written document, but the preservation of a system, with the

implied mandate to defend this against destruction.

Of course, formalism has many weaknesses, even by its own terms.lii

Challenges to definition, history,liii

and empirical support Recent empirical

accounts have not been able to confirm that the inclusion of emergency clauses

correlates with the prevention of human rights abuses during actual

emergencies, but they correlate strongly with the institutional experience of

the Roman Republic maintaining order during civil war. One recent study by

Professors Camp and Poe responded to the intuitions set out by ICJ and ILA and

found that the chief virtue of formal emergency provisions could be found in

the restoration of public order at the highest level of threat ( e.g., full-

scale civil war), where there is actually a positive correlation with the

protection against human rights abuses. We examined constitutional state of

emergency provisions for all available cases, and also in cases when

governments face domestic crises, when one would expect.liv

The authors found

that the effect of such clauses depends on the level of threat a state is

confronting. Constitutional provisions for states of emergency appear to have

no effect when the countries experience only low-level, nonviolent threats.

However, when governments are faced with violent or nonviolent rebellions short

of civil war, provisions limiting the duration of an emergency, and those

specifying lists of non-derogable rights are found to be associated with worse

human rights abuse. We found that constitutionally removing the responsibility

for declaring states of emergency from the executive and giving it to the

legislative branch would decrease personal integrity abuses during civil war.

While this formal legislative check on the executive does produce the effect

expected during times of civil war, the constitutional ban against dissolving

the legislature during a state of emergency does not. Of course, if the

legislature can effectively control whether an executive is able to declare a

formal state of emergency, it is not as likely to need the protection against

being dissolved as a body. It is noteworthy that this effect only occurs during

the highest level of threat and not at the midrange level of threat, which are

often severe enough to lead regimes to justify declarations of states of

emergency and the concomitant reduction of rights. Constitutional provisions

for lists of non-derogable rights also have quite a large negative effect on

the levels of human rights abuses during civil war. This impact is just as the

ICJ, ILA, and the UN Commission on Human Rights expected to see. However, it

should also be noted that ―found this provision to have the opposite effect in

which countries were threatened by rebellions short of full scale civil war.‖lv

However, the alternatives have certainly posed problems as well. Clinton

Rossiter‘s account: ―This strong government ―the maintenance of the existing

constitutional order, and the defense of the political and social liberties of

the people.‖lvi

Aside from a discussion of a little-known 1914 emergency decree defending Swiss

neutrality, canonical: France,lvii

Germany,lviii

Italy,lix Britain,

lx and the

United States.lxi

Agamben also correctly notes the ―legislative turn‖ in these

countries: ―a continuing tendency in all of the Western democracies, the

declaration of the state of exception has gradually been replaced by an

unprecedented generalization of the paradigm of security as the normal

technique of government.‖lxii

Necessity doctrines can be analogized to domestic emergency provisions,

and in the case of human rights derogations, they are merely alternative

vocabularies to describe the same thing. Salus Populi is the chief normative

characteristic of an emergency regime: So, reasoned Machiavelli, the dictator

could not possibly leave ―the City‖ any worse than he found it. Modern

constitutionalists, such as Pasquino and Ferejohn, agree that this

preservationist logic (which they call a ―conservative purpose‖),lxiii

Emergency

powers in modern constitutions are to be employed to deal with temporary

situations and are aimed at restoring the conditions to a state in which the

ordinary constitutional system of rights and procedures can resume operation.

Typically the holder of emergency powers is not permitted to make law but is

restricted to issuing temporary decrees. And of course, the constitution itself

is not to be changed in such periods. Clinton Rossiter also stated ―all uses of

emergency powers and all readjustments in the organization of the government

should be effected in pursuit of constitutional or legal requirements.‖ John E.

Finn in his work on ―constitutional maintenance‖ called this objective the

―defense and restoration‖ of the constitutional order.lxiv

These are, of course,

all normative definitions, but they nevertheless delimit what we can

empirically recognize as the exercise of emergency powers and what we refer to

as abuse. This is the dual character of preservation (from the threats of

emergency as well as from the long term effects of the emergency regime itself.

The common critique available in the republican and liberal traditions is the

critique of permanence and to some degree, stealth ―Trojan horse‘) "These

regulations are nothing less than a Trojan horse which usher in provisions that

give the regime State of Emergency powers without declaring one." Arguments

from necessity can migrate between international relations and constitutional

issues with relative ease. Realist as ―sovereigntist‖/Not every political

decisions or protected interest will be as dire as survival. Internalize

realism… Material preservation reason of state tradition that continues not

only in The decisive means of politics is violence. A state is defined by the

specific means peculiar to it, the use of physical force. The state is a human

community that successfully claims the monopoly of the legitimate use of

physical force within a given territory. Politics, then, means striving to

share power or striving to influence the distribution of power, either among

states or among groups within a state. The state is a relation of men

dominating men by means of legitimate violence.

This tradition takes as its origin and its primary model the institution

of King‘s Prerogative, and had as its key defenders John Locke (1632-1704),

Charles-Louis Secondat, Baron de la Brede et de Montesquieu (1689-1755), and

Benjamin Constant (1767-1830). (Treating the Roman institution not as a

paradigm but as a cautionary tale, liberal theorists proposed alternative

modelslxv

that tended toward extra-constitutionalism and anti-formalism.lxvi

Writing in the context of the struggle between the prerogatives of the Crown

and the rights of the subjects led to the development of 1689 Bill of Rights,

Locke was perhaps the first great champion of limited government, but he too

had to explore boundary situations where preservation was at stake. Locke

recognizes the ―grasp for power‖ is such a dangerous feature of human nature,

decision making power should be placed in different institutions: the

legislative and executive powers should be distinct ―because it may be too

great a temptation to human frailty, apt to grasp at power, for the same

persons who have the power of making laws to have also in their hands the power

to execute them‖lxvii

Locke contrasted a moderated monarchy, subject to self-

limitation, with one that unleashed its full powers. What is striking (some

would say contradictory) about Locke’s description of prerogative is the fact

that in all other respects, he holds the legislative power to be supreme, and

the executive power to be a mere executor of legislative will. For Locke, the

doctrine of prerogative suggested that in situations of necessity, where

legislators are too numerous or too slow, the legislature cannot anticipate in

advance and regulate by statute all that may be, at any point in the future,

beneficial to society, and that lawmaking power may be too slow to adapt

adequately to exigencies and necessities of the times.

“The laws may ―give way to the executive Power, or rather to this Fundamental

Law of Nature and Government… that all the Members of the Society are to be

preserved.‖lxviii

An emergency permitted the disregard of even the ―direct letter

of the law.‖lxix

Locke recognized in the prerogative the possibility of the king

disregarding the laws that bind his powers (―without the prescription of the

Law, and sometimes even against it‖) in order to face a grave emergency. It

should be noted that the prerogative does not create power, it provides the

occasion for the use of the exercise of reserve powers, and also overrides

limitations that may be more customary than formal.

Ultimately, Locke cites salus populi suprema lex as ―certainly so just

and fundamental a rule that he who sincerely follows it cannot dangerously

err.‖ lxx

―[a]s much as may be all the members of the society are to be

preserved.‖lxxi

The idea that the public good is a higher law than any positive

law finds its lasting formulation in Cicero‘s dictum, which, as we saw, Kant

also claimed to embrace; To be sure, Locke considered his discussion of

prerogative to support his fundamental confidence in the normal constitutional

order. He was so confident that the normal constitutional order would deal

adequately with emergencies that he was willing to grant a residual power of

prerogative should they ever prove inadequate. This, in his view, would be far

better than formalizing any such power, which would only obscure or undermine

faith in the constitutional order. Locke viewed himself as a champion, not of

king‘s prerogative, but of the inherent resilience of the constitutional order.

Fit to survive, must be worth fighting for.lxxii

Prerogative and the rule of law are consistent in the ultimate ends that they

serve, in spite of their significant differences as means.lxxiii

Prerogative

compensates for the shortcomings of the law without abandoning the principles

of legality altogether by allowing the executive to exercise extra-ordinary

powers in accordance with the highest law of all: the good of the people as

defined by the laws of nature.lxxiv

. For Locke, ―prerogative‖ was not synonymous

with ―privileges‖ that monarchs customarily enjoyed. It was extraordinary,

unconstitutional but legitimacy through necessity and ―public good.‖lxxv

Pasquale

Pasquino uses the term ―auto-investiture‖ to describe a situation where a

sovereign decides upon the state of exception, and augments his own powers by

disregarding any conventions of limitation.lxxvi

This is typical of the liberal

version of emergency powers. In contrast, the Roman dictatorship is constituted

through ―hetero-investiture,‖ the division of authority between the organ that

declares the emergency (the Senate) and the one that appoints the dictator (the

Consulate). The danger of self-vesting prerogative in the context of

constitutional and limited monarchy was that it tangled and tousled competing

theories of legitimacy (―consent of the governed,‖ ―Hobbesian order‖ and even

―divine right of kings‖). Because of the pragmatism of their Roman model,

republican thinkers (at least until Carl Schmitt) could avoid the conclusion

that the dictator held the power or potentiality of a latent Leviathan.

Locke focuses more on the reallocation of powers than the suspension of

rights, but he had to realize the effect would be the same. However, after

Montesquieu, liberal theory became more resigned to the notion that the candid

suspension of constitutional guarantees might sometimes be the only method to

deal with emergencies. Montesquieu chose to see in the precedent of the Roman

dictatorship a door open to arbitrary power and a threat of permanence.

Accordingly, he cites not the virtuous restraint of Cincinnatus, but the

opportunism of Sulla and Caesar. Yet, he was not unsympathetic to imperatives

of necessity. The following dictum from The Spirit of the Laws has become

famous: ―[T]he practice of the freest nation that ever existed induces me to

think that there are cases in which a veil should be drawn for a while over

liberty, as it was customary to cover the statues of the gods.lxxvii

If not for

this brief phrase, its contribution to the view of the role of contingency in

emergency, and if not for his distrust of the formalism of the Roman

Dictatorship, Montesquieu would be an exemplary republican.lxxviii

This

catchphrase has endured and the notion it seems to symbolize— the total

suspension of constitutional guarantees— remains an influential position in

expressing liberal preference for flexibility and contingency. Ostensibly it

would seem unfair to reduce Montesquieu, the innovator of the modern separation

of powers and champion of moderating and mediating institutions, to naked

prerogative based on this mere dictum.lxxix

It is probable that the effect of

Montesquieu‘s image of the ―veil over liberty‖ went far beyond his original

intent.lxxx

Put in the proper context, Montesquieu himself went only as far as

advocating suspension of the writ of habeas corpus as a practical suggestion,

(he ―believed a proper amending process could keep the basic law in step with

contingencies, executive leadership restrained by intermediate powers,‖ adding

only rhetorically that, under certain circumstances, ―a veil should be drawn

for a while over liberty.‖lxxxi

Yet, perhaps because of its rhetorical flair,

this catchphrase has endured and the notion it seems to symbolize— the total

suspension of constitutional guarantees— remains an influential position. There

is plausible historical evidence, then, that the French Revolution was not

merely driven by a reading of Roman republicanism as inflected through a

zealous interpretation of Rousseau, but equally a reading of Montesquieu‘s

―emergency liberalism.‖ There is some evidence that a radicalization of the

liberal position (and a misunderstanding of the Roman constitutional

dictatorship) inspired the dictatorial activities of Robespierre, Saint-Just,

and the Committee of Public Safety.lxxxii

Also, terms such as ―salus populi,‖

―public safety‖ or ―public order‖ have come to be associated with emergency

powers as much as ordinary limitations and police powers.

SUMMARY AND CONCLUDING OBSERVATIONS

The vice and the virtue of the Nuclear Weapons Advisory Opinion is

its studied ambiguity; whether or not my interpretation or that of

others is correct, it certainly raises the specter of an anomic

space and a ―vacant imperative‖ which is, so to speak, large enough

to drop a nuclear bomb through. But understood in the way I have

interpreted it, it is merely a portent and not a culmination. My

own reading of the court‘s opinion, drawing diverse strands from

this study, is to view it as a novel kind of taming, a ―deferred

formalism‖ in which the court cautiously leaves the door open (as

opposed to Ago‘s window) not for a vacant imperative for states to

fill with their will, nor for a deformalized version of an existing

doctrine, but for an effective doctrine that has yet to be

completely articulated to tame such a situation. The court both

demonstrates and exploits a continuing oscillation between

―closure‖ and ―rupture,‖ and also sets up numerous sideshows on the

complexity of derogation, but it does not do what many have charged

it with, which is to recognize the incompleteness of international

law.

reasoning from the Point of near-extinction While it is possible to

a link between extreme exception, necessity and mortal danger are

International Court of Justice in their Nuclear Weapons Case

reveals the persistence of extra-legal notions of ―necessity‖, the

final chapter cautions that the doctrinal development doesn‘t seem

to preclude this ―necessity‖ from reappearing and consuming them.

this dissertation begins with a detour through critical and

constitutional theory, through various doctrines available in

international law, to describe the ways ―necessity‖ provides a

general and flexible discourse which accounts for both its abuse

and its resilience.

What is the international lawyer, the practitioner and the thinker,

to make of these long term developments, and their sometimes sudden

consequences? . for legal scholars, the first question we ask is

often ―what is the applicable law?‖ The second question, however,

is quite often ―why is the first question so difficult to answer?‖

It is this second question that is put into critical perspective in

terms of doctrines of necessity.

Indeed, legal scholarship today is not possible without some degree

of realism In extremis,

Throughout this dissertation, I come down on the side of bolstering

formal legal techniques as against the more immediate satisfactions

of moral posturing or political action. However, the relationship

between critique and normative programs , and ultimately, the

normative backbone of this paper, is a fragile one. Standing

against the worst excesses of raison d‘etat we can imagine at

minimum a tendency toward political openness and human dignity

chastened by the state terrors of the last century, what Shklar

termed a ―liberalism of fear‖ or ―putting cruelty first.‖ The

bulwarks I have in mind in this dissertation have less to do with

liberalism in any strict sense than they do with a couple of

―legalisms of fear‖: modern constitutionalism and international

law. With Shklar, I must admit that there is no philosophical

grounding for my defense of human rights other Moreover, it is

probably necessary to extend this paradigm, and also the study of

states of emergency, to take a stand for legalism not only against

state repression but also against state failure.

The challenge of political theory, beginning with Hobbes, has been

to put self-preservation in positive correlation with the

protection of the population. Shklar‘s modest contribution was to

efface the inevitability associated with necessity discourses. This

is a dignity-based redescription of the problem of rights. Fear and

pain can motivate more than Hobbesian sovereign. So the perception

of threats to the lives of other people does give one a reason to

act, to preserve their identity. Those reasons are public and

shared. Furthermore, CK argues that we can perceive the threats to

the lives, and thus we have an obligation to them as well. We need

to value the lives. (This suggests one has an obligation not to

commit suicide.)lxxxiii

For Schmitt the existence of an emergency or ―state of exception‖

is viewed as a trigger for the assertion of sovereignty. hinting at

the deep contingency of so many essentialized tropes in Schmitt:

the ―exception‖, the ―enemy‖, the ―sovereign‖, the homogeneity of

―political community‖ and above all ―necessity‖ itself. belongs to

irreducibly political and not juridical decision, but simply a

recognition that that the terms of debate are polemical and

dangerous, but also contested and open. but rather that jurists

ignore necessity or ―the exception‖ at their peril; by saying that

the concept of ―necessity‖ is so rooted in the international

community that even if it is ―driven out the door‖ it will

inevitably ―return through a window.‖lxxxiv

―Whether the extreme exception can be banished from the world is

not a juristic question,‖lxxxv

Reasoning from the extreme exception

can in fact have a systemic warping effect. The bitter harvest of

―necessity‖ includes killing fields, the death camps, and gulags of

the last century, and the repression and violence which continue

today. Ago is not saying with Schmitt that ―whether the extreme

exception can be banished from the world is not a juristic

question,‖lxxxvi

whether or not it can be banished, it ought to at

least be tamed. What other intuition can there be to efface the

inevitability of necessity? than the experience of the twentieth

century, the negative foundation of cruelty, terror, and

humiliation.

BIBLIOGRAPHY

i Kant. Metaphysics of Morals. Translated by Mary Gregor. (Cambridge, Cambridge University

Press, 1991). p. 318. ii ….that each normative code is also underpinned by a safety net of tolerable exceptions… is a fact

that only contemporary deconstructive and systems-theoretic social theory has learnt to acknowledge.‖ iii For example, one might separate emergency regimes from non-emergency regimes on the

criterion of formal expiration (―sunset clauses‖ vs. ―no sunset clauses‖). Under this division, perhaps only

the republican model would survive. The liberal minimalist regulation falls outside the definition as well by

not being formally excluding the threat of permanence. By focusing on this particular ―logic‖ or overriding

rationale, I allow the liberal variants into emergency regimes as well. iv John E. Finn, Constitutions in Crisis 17. (in reference to the Roman dictatorship).

v Legal or constitutional formalism would be the most relevant concern for a project concerned

with constitutional engineering. However, that is not what this paper is about. Instead, it is in my interest to

adopt an appropriately broad, but also delimited, concept of emergency powers. A well -governed

emergency prom a constitutional point of view is but one conception within the broader concept. A

constitutional engineer would want to limit the proper understanding of emergency power in order to

regulate it effectively. International institutional theorist would want to broaden the phenomena that fit the

rubric to effectively regulate as many from outside that seem appropriate. Instead I seek to outline a role for

international institutions in helping to regulate the excesses of all extant emergency regimes. Will not

disqualify what is arguably the greater danger, so it can be regulated. vi To understand the centrality of the logic of preservation, we must return to a more primal notion

of preservation, which can be called self-preservation. According to the Argentine political philosopher

Enrique Dussel, self-preservation is the fundamental rationale for all political order. Even in Western

liberal societies that base themselves on more formal and abstract principles, self-preservation remains a

singular ―material‖ principle that defines our collective obligations. If anything, the principle of self-

preservation experiences a ―thickening‖ in different societies. In liberal societies, following Locke, self-

preservation thickened (Dussel might say ―hardened‖) into a rationale for private property. In socialist

societies, we might imagine this notion is thickened in entirely different ways. In every society, this

principle has also been supplemented by more nuanced or normatively robust principles, some of which

can be thought to carry a value independent of self-preservation. If self-preservation is the fundamental

rationale for all political order, (even more than usurpation) collective suicide must be placed at the limit of

political order. Let us consider a negative metaphor of the ―suicide pact‖ which has been placed at the limit

of constitutional discourse around emergency. "While the Constitution protects against invasions of

individual rights, it is not a suicide pact.‖ Implication here is that we pulls away from reason vii Although, in its Commentary, the ILC expressly stating that the ―essential interest‖ requirement

―does not mean that the Commission considered the interest in question to be solely a matter of the

‗existence‘ of the State.‖ Report on State Responsibility Commentary, 49, para. 32. viii Rossiter at 7. ix Machiavelli, Discourses on Livy, Book I, Ch. 34. x See Niccolo Machiavelli, Discourses on Livy 94 (Julia Conaway Bondanella & Peter Bondanella

trans., Oxford Univ. Press 1997) (1519). xi Perhaps the earliest explicit opponent of ―dictatorship‖ was Montaigne‘s friend La Boetie in his

tract ―Anti-Dictator‖ (15kk) (against ―one‖). xii At least until Hugo Preuss. xiii N. Machiavelli, The Discourses Ch. 34 (L. Walker Trans. 1950), Quoted In J. Smith & C. Cotter,

at 8. C. Rossiter, Constitutional Dictatorship (1948) at 297, 309, and 300 (Emphasis In Original). xiv see Niccolo Machiavelli, Discourses on Livy 94 (Julia Conaway Bondanella & Peter Bondanella

trans., Oxford Univ. Press 1997) (1519); xv N. Machiavelli, The Discourses ch. 34 (L. Walker trans. 1950), quoted in J. Smith & C. Cotter,

Powers Of The President During Crisis 6 (1960). C. Rossiter, Constitutional Dictatorship (1948) at 297.,

309, 300. xvi Pasquino and Ferejohn ―The Law of the Exception: A Typology of Emergency Powers,‘ say,

―The purpose for which this special authority is granted is fundamentally conservative: it is aimed at

resolving the threat to the system in such a way that the legal/constitutional system is restored to its

previous state. Rights are to be restored, legal processes resumed and ordinary life taken up again. This

conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to

make any permanent changes in the legal/constitutional system.‖ xvii Clinton Rossiter xviii John E. Finn, Constitutions in Crisis 17. (in reference to the Roman dictatorship). xix

In the context of the philosophy of medical science, Georges Canguilhem has demonstrated that

notions like ―preservation,‖ ―regulation,‖ adaptation‖ and ―normality‖ are evaluative terms.� In that

context, the biological ―normal‖ (as opposed to the ―pathological‖) is a concept of value and not necessarily

a statistical reality. Similarly, here, the norm (as opposed to the ―exception‖) being preserved by an

emergency regime is not a statistical norm but an evaluative one. An evaluative sense of preservation is

necessarily broader and more demanding than ―bare survival.‖ In its local contexts, the meaning of

―preservation‖ is informed by pre-commitments, a larger history of commitments that constitute a

collectivity, and something of the values factually adopted by a society must be intact. (There is also an

implied duality of functions in the terms, often presented as synonyms, ―restore‖ and ―defend‖). Georges

Canguilhem, A Vital Rationalist: Selected Writings from Georges Canguilhem (1994) 17. xx Kiliç v. Turkey (2000), the European Court of Human Rights xxi On ―status mixtus,‖ see H.H.G. Post, Some Curiosities on the Sources of the Law of Armed

Conflict Conceived in a General International Legal Perspective, Netherlands Yearbook of International

Law Vol. XXV 83-117 (1994) at 93. xxii Johan Kaspar Bluntschli, The Theory of the State (1875 Lehre vom modernen Stat) (First English

Edition 1895, 2000), Ontario: Batoche Books. (p. 250-257) xxiii Klaus Stern xxiv 38 Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1036-37 (2004). xxv Saikrishna Prakash, The Constitution as Suicide Pact, 79 Notre Dame L. Rev. 1299 (2004) xxvi Otto Kirchheimer, ―The Socialist and Bolshevik Theory of the State,‖ in Social Democracy and

the Rule of Law (1987) at 14. xxvii This seems true of both natural lawyers and positivists. According to Richard Tuck (p. 5 Rights of

War and peace), natural lawyers with the exception of Pufendorf in polemical works, did not deal with the

issue of raison d‘etat See also Antonio Cassese (cite Violence book), classical international jurisprudence,

written by jurists such as Vattel and Bluntschli takes on an idealistic and positivist character that masks the

actual violence implicit in the law, even the law of war. Cassese instead gestures to political theorists such

as Hobbes, Montesquieu, and Rousseau, xxviii

Constant revisited the classical examples of dictatorship so praised by Machiavelli and Rousseau

and redescribed these as ―self-defeating dictatorships‖ whose actions would only make things worse than

they initially were. In his essay, ―The Spirit of Conquest and Usurpation and their Relation to European

Civilization,‖ Constant cautions that when governments resort to emergency provisions to prevent a

conspiracy from breaking out: ―[T]he evil which has been postponed for a few hours returns more terrible,

aggravated by the evil which has now been committed. There are no justifications for those means that

serve equally for all intentions and all aims and that advocated by honest men against brigands, reappear in

the mouths of brigands with the authority of honest men, with the same apology of necessity, the same

pretext of public safety. Benjamin Constant, ―The Spirit of Conquest and Usurpation and Their Relation to

European Civilization,‖ in Political Writings at 136. Constant was obviously obsessed with the Terror and

the problems of nascent revolutionary governments, just as he was equally obsessed with the more pressing

problems of his generation: Bonapartism and arbitrary power. Throughout his writings, Constant insisted

on the ―perverse‖ effect of emergency measures; the logic of ―necessity‖ caused in equal parts terror and

usurpation: ―Liberty, [emergency regimes] argued, had to be postponed until factions died down; but

factions only die down when liberty is no longer postponed. Violent measures, adopted dictatorially in

advance of a public spirit, prevent that spirit from coming into being.‖ These kinds of arguments reveal

Constant‘s concerns with constitutional engineering, his concern with stability as well as liberty. Constant

elaborates: Power, by emancipating itself from the laws, has lost its distinctive character and its happy pre-

eminence… We will be challenged by citing the interest of the state, the danger of tardy procedures, public

safety. Have we not heard these expressions often enough under the most execrable of regimes? Will they

never be exhausted? If you admit these imposing pretexts, these specious words, every party will identify

the interest of the state with the destruction of its enemies, see the dangers of delay in an hour's work of

inquiry, and public safety in a condemnation pronounced without judgment and without proofs.‖ Benjamin

Constant, ―The Spirit of Conquest and Usurpation and Their Relation to European Civilization,‖ in Political

Writings at 111.

xxix Norberto Bobbio, In Praise of Meekness: Essays on Ethics and Politics, Teresa Chataway trans.

(2000) at 83. xxx Level of formality as limited to the conduct of declaration, implementation of emergency?

(Anthony Kronman, Max Weber 76 (1990) xxxi Also, these non-preservationist regimes may still be oriented towards bare survival, and perhaps

can be described as survivalist, but not preservationist. I have in mind here a more robust notion of

preservation. Not just physical survival of a community. Strategies of survival must yield to more

demanding criteria—fundamental pre-commitments something of the virtues spelled out by a society must

be intact. If the will of the sovereign is identified with the will of those subjects, the sovereign‘s logic of

self-preservation is the preservation of all; or else, the only preservation that matters is the preservation of

the sovereign. Finally, we should specify better exactly what object a preservationist logic seeks to

preserve. Is it a ―constitution‖ in the broad (even Schmittian) sense? Is it mere survival of the physical

integrity of a people? Is it a regime from an international law perspective? Is it democratic will of the

people? Is it constituent powers followed? Is there a way in which notions of preservation and formality

enter a zone of indistinction-- the preservation of legal formalities? xxxii In a practical context, declaring an emergency can be the last act and last gasp of an outgoing

regime, or the first act of a new one. After all, liberal and republican forms of government are usually

established through revolution, or at least a revolutionary constituent power. These ―transitional regimes‖

are not the same as emergency regimes. xxxiii Strictly speaking, it would not be historically correct to call Bodin or Hobbes ―illiberal‖ thinkers,

because their work pre-figured (and unintentionally prepared the way for) anything that we call

―liberalism.‖ Bodin lived in a society of disparate ―orders‖ and championed the usefulness of a unified

sovereign; Hobbes lived in a time of absolute monarchy and defended its virtues more radically than had

ever been done. While Bodin structure of sovereignty, Hobbes and Grotius went further in establishing its

purpose, the link between state‘s self-preservation and the protection of the population with which it is

identified. To understand even a simplified illiberal view, we must first discuss Bodin, Hobbes, and the

absolutist conception of sovereignty. The most prominent conception of absolutist sovereignty before

Hobbes was developed by Jean Bodin (1529-1596). Bodin lived in a society of disparate ―orders‖ and, in a

manner prescient of Hobbes, championed the usefulness of a unified sovereign. In his famous section on

sovereignty in Six Books on the Republic, Bodin described the Imperium or authority conferred on the

Roman dictator as precisely not sovereign, because it was limited in time and power. Thus, unlike

republicans and liberals, his point was neither to praise the restraint of the magistracy nor to condemn its

abuse, but to reveal its procedural limits as a deficiency. Sovereignty, unlike dictatorship, would have to be

unlimited, indivisible, and perpetual. However, Bodin was pragmatic in his proposals; the ―supreme

authority‖ he described was a mere potentiality that had not yet come into being. xxxiv Francis D. Wormuth, The Origins Of Modern Constitutionalism (1949) Harper & Brothers,

Publishers New York available at http://www.constitution.org/cmt/wormuth/wormuth.htm. xxxv All at once, this is the philosophical birthplace of the absolutist theory of sovereignty, the

positivist theory of law, and even the liberal theory of representation (albeit in the sense of collective

identification and symbolic embodiment). Hobbes does not speak of a ―state of exception‖ because all

sovereignty should be conceived of as a potential emergency that is held at bay by a permanent magistrate,

the Leviathan. For Hobbes, if there is a state of exception, it takes the forms of (1) the postulated state of

nature, and (2) actual external threats. Representation: Hobbes: a multitude-made-One. Schematically,

Hobbes‘s declaration of the sovereign can be thought of as a singular declaration of state of emergency, an

exit from ontological exception into a permanent order. There is no temporary answer to the problem of

order; absolutism is a one-time answer to dealing with all future threats.� If the will of the sovereign is

identified with the will of those subjects, the sovereign‘s logic of self-preservation is the preservation of all;

or else, the only preservation that matters is the preservation of the sovereign. Less subtle and attentive to

contingency than Machiavelli, but also less captivated by republican models of citizenship and division of

power, Hobbes distilled a pure, abstract, and unified notion of ―power.‖ xxxvi In the Leviathan Hobbes describes a ―state of nature‖ where life is nasty brutish and short. Ceding

will to a Leviathan is order created, based on mutual relation between protection and obedience. Will of the

sovereign is identified with the general will. The logic is preservation of one is preservation of all. Among

key Enlightenment thinkers, a distinctive ―illiberal‖ tradition begins with Hobbes. For Hobbes, Monarchy

is a permanent emergency state because it defends against a perpetual state of exception—the state of

nature. If there is always an emergency, there must always be a leviathan. The main business of citizenship

is obedience. The business of government is whatever the person of a ruler thinks is relevant to the

maintenance of order and a modest well-being. (Hobbes is not illiberal in the following sense. To him,

absolute sovereignty cannot be arbitrariness. An excessive state of emergency would be a ―hostile act‖

overstepping bounds of arbitrariness and will, would resemble too well the kind of fear and uncertainty

experienced in the state of nature. Clearly formulated laws and specified punishments. The sovereign must

be radically responsible to preservation The rule of law is buttressed by fear, and ultimately to the citizen‘s

sense of protection and well being. but would not be arbitrary punishment xxxvii In ―The Law of the Exception: A Typology of Emergency Powers,‘ Pasquino and Ferejohn say,

―The purpose for which this special authority is granted is fundamentally conservative: it is aimed at

resolving the threat to the system in such a way that the legal/constitutional system is restored to its

previous state. Rights are to be restored, legal processes resumed and ordinary life taken up again. This

conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to

make any permanent changes in the legal/constitutional system.‖ For an empirical take on these questions,

see Linda Camp Keith & Steven C. Poe, Are Constitutional State of Emergency Clauses Effective? An

Empirical Exploration Human Rights Quarterly 26 (2004) 1071–1097 xxxviii John E. Finn, constitutions in Crisis 17. (In reference to the Roman dictatorship). xxxix

Function of restoring equilibrium Machiavelli, Nippel. xl

See Arthur L. Stinchcombe, When Formality Works (2001), defining ―formality‖ as ―governing

by abstraction.‖ And ―when formality works, it preserves what is essential in substance.‖ xli

Consider the following table sketching out the possible and outlying norms of the normative

preservation model:

Formal

Preservationist

(―Republican‖)Formal

NonPreservationist

(―Illiberal‖)Contingent

Preservationist

(―Liberal‖)Contingent

NonPreservationist

(―Revolutionary‖)

This model does not differentiate between normative and material preservation, but combines

them in the manner of most theories of salus populi. Instead it distinguishes formal from contingent

models, and preservationist from non-preservationist models. The shaded areas on each of the following

tables signify normative exclusions. These are empirically possible responses to crises, and thus included in

the typologies, but excluded on normative grounds. If we place these criteria on a four square dyad, as

above, the following possibilities of regime types are revealed. (I) ―Formal-Preservationist‖ describes

regimes where dependence on pre-existing legal rules is used declare an order to defend the political

community. This correlates with the republican philosophy of the Roman dictatorship, Rousseau, and

Machiavelli, among others. The modern versions of this include the French constitution and the South

African Constitution. (II) ―Contingent-Preservationist‖ describes regimes where an emergency is responded

to by ad hoc decrees and decisions in order to defend the political community. These measures correlate

with the liberal philosophy of Locke and Montesquieu, as well as the pragmatic jurisprudence of Richard

Posner. The modern version of this is arguably the U.S. Constitution. (III) ―Formal-Non-Preservationist‖

describes regimes where dependence on pre-existing legal rules is used to hasten the demise of the previous

political community, or to evolve new permanent structures to represent its interests. This is probably

sovereign dictatorship. Best example is the Nazi regime, which came into power through legal provisions

and then derogated the previous order on a permanent basis. The philosophical correlate is an illiberal

tradition from Hobbes to Schmitt. Finally, (IV) ―Contingent-Non-Preservationist‖ describes regimes where

emergency is responded to by ad hoc decrees and decisions in order to hasten the demise of the previous

political community, or to evolve new permanent structures to represent its interests. This seems best to

describe a revolutionary state of affairs: xlii

Juan J Linz, Breakdown of Democratic Regimes (describes the elements of breakdown in

democratic regimes (non-preservationist). Insofar as they are non-preservationist in their intent,

―transitional emergency regimes‖ blur the distinction between the illiberal and revolutionary models. xliii Gabriel L. Negretto and Jose Antonio Aguilar Rivera Gabriel Negretto has broadened this to

―communitarian‖ vs. liberal as individualist. Neo-republicans would include McIntyre, Arendt, Walzer,

Ackerman. Gabriel L. Negretto & Jose Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin

America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 Cardozo L. Rev.

1797, xliv John Ferejohn and Pasquale Pasquino, The Law of The Exception: A Typology of Emergency

Powers, 2 Int J Constitutional Law 210, 212 (2004). Twentieth century constitutional scholars, Schmitt,

Rossiter, Watkins and Friedrich, who in general, agreed with the republican focus on procedural finitude. xlv

A nearly parallel treatment of the subject is given by Jean Jacques Rousseau (1712-1778).

Rousseau, however, puts less emphasis on the formalism of the Roman system, and more insistence on a

couple of aspects of preservation. In The Social Contract (1762), he expresses the opinion that:

[I]f… the peril is of such a kind that the paraphernalia of the laws are an obstacle to their

preservation, the method is to nominate a supreme ruler, who shall silence all the laws and suspend for a

moment the sovereign authority. In such a case, there is no doubt about the general will, and it is clear that

the people's first intention is that the State shall not perish. Jean Jacques Rousseau, The Social Contract 110

(Hafner Press 1947) (1762).

There are two familiar and influential ideas here. One is that the extraordinary suspension of laws should

be aimed at their ultimate preservation of the ordinary legal order (the state, society, and its members).The

other is that while the ordinary laws and the constitutional order, in all or in part, may be suspended under

the reign of the supreme ruler, but they cannot be modified, amended, or repealed during that time. He

closely identifies the legislative and constitutional framework of a political community with the state,

society, and a general will (volonte generale). The ―supreme ruler‖—Rousseau‘s version of the dictator—is

also subservient to the general will. Notice the symmetry between two notions of preservation that result

from the identification of the state with the general will. There is first the imperative of self-preservation

that always accompanies ―necessity‖ (―that the state shall not perish‖), and secondly the ―logic of

preservation‖ whereby there should be no usurpation of the ―general will‖ itself. In terms of formalism, the

supreme ruler‘s ostensibly absolute powers are also limited in advance by the key procedural safeguards of

the Roman system: he cannot invest himself with power and his tenure should be for a short and definite

period xlvi Vik Kanwar, International Emergency Governance: Fragments of a Driverless System, Critical

Sense Spring 2004 19 xlvii

The apparent coherence of republican approaches to emergency is no accident. There is no single

institution that has been more influential on all subsequent emergency regimes than the Roman

dictatorship. The key contribution of the Roman dictatorship is formalism, the possibility of structured

agonism in governing an emergency. It is true that well before the famous Roman Republic, with the Greek

city-state, and probably even in earlier tribes and civilizations, forms of emergency measures existed, but

they were not guided by recognizably republican principles. For example, in ancient India, a temporary

principle of emergency existed for ―seasons of distress‖ known as appaddharma, where a government

would suspend normal rules due to a higher duty of preserving the community from crisis. A similar early

example of an emergency government was the institution of aesymentia in Greek city-states. According to

the nineteenth century classicist Theodore Reinach, aesymentia seems to signify an extraordinary

magistrate, an elected ―tyrant‖ who would rule the city for the duration of a crisis. Theodore Reinach, De l‘

etat de siege: Etude historique et juridique, Paris, F. Pichon, Successeur, Imprimeur-Editeur, 1885, p. 12.

This institution existed as far back as the seventh century BC and was described by Aristotle three hundred

years later in Book III chapter 14 of the Politics suggests that this was either an open-ended arrangement

based on contingency of future events or sometimes a stated period. Aristotle, Politics , Book III chapter 14

(Penguin books 1962), After election of the tyrant, there was not necessarily a formal constraint on this

magistrate.� The Greeks emphasized the legitimacy of the magistrate, but not necessarily formal control

over conduct or termination. This magistracy was ―exceptional‖ but not necessarily temporary; in historical

terms an ―exception‖ or ―emergency‖ identified a time of extraordinary danger even if not expected to end

in a lifetime. xlviii The Republican tradition also supplies the largest literature on emergency. The following

comprises only a partial survey: Wilfried Nippel, ―Emergency Powers in the Roman Republic‖, in P.

Pasquino – B. Manin (eds.) La théorie politico-constitutionnelle du gouvernment d‘exception, Les Cahiers

du CREA, Paris 2000, pp. 5-23; Andrew Lintott, The Constitution of the Roman Republic, Oxford:

Clarendon Press, 1999. Fallon, Richard. ―‗The Rule of Law‘ as a concept in Constitutional Discourse,‖

Columbia Law Review. 97:1, 1997. Marriane Elizabeth Hartfield, The Roman Dictatorship: Its Character

and Its Evolution. Doctoral Dissertation. University of California, Berkeley, 1982. Niccolo Machiavelli,

The Prince and Discourses. Translated by Luigi Ricci and E.R.P. Vincent. (New York: Random House,

1950). John McCormick, Carl Schmitt‘s Critique of Liberalism. (Cambridge: Cambridge University Press,

1997). Pasquale Pasquino and John Ferejohn. ―Emergency Powers: A Typology‖ International Journal of

Constitutional Law.. Rossiter, Clinton. Constitutional Dictatorship. Second Edition. (New Brunswick:

Transaction Press, 2002) Jean-Jacques Rousseau, Du contrat social. (Paris: Aubier, 1943).; Carl Schmitt,

Die Diktatur. Sechste Auflag (Berlin: Duncker & Humblot, 1994). Carl Schmitt, Political Theology.

Translated by George Schwab (Cambridge, MA: MIT Press, 1985). xlix Barzel 146. One explanation for this is that the dictators were not professional military

commanders, which combined with their short tenure, prevented dictators from consolidating power. l Wilfried Nippel, ―Emergency Powers in the Roman Republic‖, in P. Pasquino – B. Manin (eds.)

La théorie politico-constitutionnelle du gouvernment d‘exception, Les Cahiers du CREA, Paris 2000, pp. 5-

23; Andrew Lintott, The Constitution of the Roman Republic, Oxford: Clarendon Press, 1999. li See Vik Kanwar, Book Review: Giorgio Agamben, State of Exception (Stato di eccezione).Int‘l J

Con Law, Vol 4, No 3 (Jul 2006). lii Formalism can also mean business as usual, that habit makes one quicker not slower (Chesterton)

and that the everyday is to be preferred. . Scrupulous attention to procedure must also be guided by

underlying commitment to the ends of preservation in two senses/ Otherwise. Formalism as a farce. In the

case of Paraguay, Stroessner regime, Stylized regularity every six months during nearly four decades of the

Parliament approved the extension of the state of siege proposed by the executive, thus legalizing what was

no more than an obvious abuse of this expedient. for over two decades In Haiti, under the Duvalier regimes,

every year for decades, the legislature would on a routine basis end its brief and nominal by conferring full

powers on the executive and suspending fundamental constitutional guarantees during the long recess

period. liii Recent scholarship has revealed that the formal constraints of the Roman dictatorship were more

matters of principle than practice. Certain dictators may have legislated and even altered the constitution. It

is the ideal-type however that informs the republican tradition. Debates over the Roman dictatorship were

not only important to the development of modern emergency powers; they were equally important in the

development of the modern executive power. Executive unilateralism or monocracy is an important and

persistent strain in emergency powers. This has less to do with rights and more to do with separation of

powers. The original parable for the suppression of status quo separation of powers and recourse to ―one

alone‖ may be the murder of Remus by Romulus in the legendary founding of Rome, which Machiavelli

views as a move toward singularity, efficiency, and decisiveness. This structure was repeated in the

suppression of collegiality in the Roman dictatorship, and it continues in executive unilateralism. liv Linda Camp Keith & Steven C. Poe, Are Constitutional State of Emergency Clauses Effective?

An Empirical Exploration Human Rights Quarterly 26 (2004) 1071–1097. This kind of study is paralleled

in the international law literature by countless studies, not on derogation clauses in particular, but on the

issue of states‘ entry and compliance with human rights treaties is still a puzzle of the discipline. Yet states

must still find that retaining a nexus to the international human rights system during a state of emergency is

desirable for some reason or another. For recent attempts to answer this question, see generally Oona A.

Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale Law Journal 1935 (2002); Peter M.

Haas, ―Choosing to Comply: Theorizing from International Relations and Comparative Politics,‖

Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, ed.

Dinah Shelton (New York: Oxford University Press, 2000), 43-64. lv see Linda Camp Keith & Steven C. Poe, Are Constitutional State of Emergency Clauses

Effective? An Empirical Exploration Human Rights Quarterly 26 (2004) 1071–1097 lvi Rossiter at 7. lvii examples of post-Revolutionary French emergency provisions and situations include a number

under rubric of ―states of siege‖: the Constituent Assembly‘s decree of July 8, 1791, the Directorial law of

August 27, 1797, Napoleon's decree of December 24, 1811; Article 14 of the Charte of 1814; the

Constitution of November 4, 1848; the law of August 9, 1849; the Constitution of January 1852; a long

state of seige that covered WWI from August 2, 1914 until October 12, 1919; and the Constitutional Act of

July 11, 1940. The most recent constitutional emergency provision is Article 16 of the current Constitution

("…when the institutions of the Republic, the independence of the Nation, the integrity of its territory, or

the execution of its international commitments are seriously and immediately threatened and the regular

functioning of the constitutional public powers is interrupted") which was last used in April 1961, by De

Gaulle during the Algerian crisis. Agamben‘s (p. 11). lviii Agamben‘s discussion of Germany revolves around the usual controversies over Germany Article

48 of the Weimar Constitution, which was used successfully on more than two hundred and fifty occasions

between 1919 and 1933, but also had a role in Hitler‘s rise to power. He also discusses Article 68 of the

Bismarckian Constitution, and the Constitution of the Federal Republic (1950), which did not contain an

emergency provision but was amended on June 24, 1968, to include a ―state of internal necessity,‖ (innere

Notstand) explicitly charged with defending the ―liberal-democratic constitution.‖ Agamben‘s (p. 11). lix Italy‘s experience with emergency measures goes back to the Roman examples. In more recent

governments, states of siege were declared in Palermo and the Sicilian provinces in 1862 and 1866, in

Naples in 1862, in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898. Neither the Albertine

Statute nor the current Republican Constitution mention emergency powers, but Agamben sees in Italy‘s

practice of ―law-decrees‖ a forerunner to the legislative trend in emergency measures. Extraordinary anti-

terrorist decrees have notoriously been codified into ordinary law, including the so-called ―Moro Law‖

which began as a law-decree on March 28, 1978, and became law on May 21 1978. Agamben‘ p. 11 lx England‘s traditions of emergency powers include martial law, which was intended for times of

war, and various legislative extensions of this idea, including Defense of the Realm Act of August 4, 1914

(DORA) during World War I, and in the context of economic unrest rather than military conflict, the

Emergency Powers Act of October 29, 1920. Agamben p. 11. lxi Agamben‘s discussion of American emergency measures begins with the unresolved power to

suspend the privilege of the Writ of Habeas Corpus, which are formally allocated by Article 1 to Congress,

but which overlap with the Article 2 powers of the President. Between April 15 1861, Lincoln acted as a

unilaterally, until his actions were approved by Congress in a special session on July 4. During World War

I President Woodrow Wilson delegated arguably broader powers under the Espionage Act of June 1917 and

the Overman Act of May 1918. In 1933, Franklin D. Roosevelt the New Deal statutes culminating in the

National Recovery Act of June 16, 1933. World War Two‘s most notorious emergency measure occurred

1942, internment of seventy thousand American citizens of Japanese descent. Finally, some discussion is

given to President Bush's ―war on terror.‖ Agamben (p. 11). lxii Agamben (p. 11). lxiii

In ―The Law of the Exception: A Typology of Emergency Powers,‘ Pasquino and Ferejohn say,

―The purpose for which this special authority is granted is fundamentally conservative: it is aimed at

resolving the threat to the system in such a way that the legal/constitutional system is restored to its

previous state. Rights are to be restored, legal processes resumed and ordinary life taken up again. This

conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to

make any permanent changes in the legal/constitutional system.‖ For an empirical take on these questions,

see Linda Camp Keith & Steven C. Poe, Are Constitutional State of Emergency Clauses Effective? An

Empirical Exploration Human Rights Quarterly 26 (2004) 1071–1097 lxiv John E. Finn, constitutions in Crisis 17. lxv Political theorist Pasquale Pasquino demonstrated that the liberal tradition of emergency power

can be traced to John Locke‘s discussion of monarchial prerogative in England. Pasquino Locke on King's

Prerogative, in 2 Political Theory 198-208 (1998). John Locke, Two Treatises of Government 393 (Peter

Lasslett ed., Cambridge Univ. Press 2d ed. 1993) (1690).

� (Second Treatise of Government, in Political Writings of John Locke, ed. David Wootton [New

York: Mentor, 1993]), 335 [paragraph 143].Other liberal philosophers echoed Locke's position. Rousseau

recognized the need for an extra-legal 'supreme rule who shall silence all the laws,' if the peril is of such a

kind that the paraphernalia of the laws are an obstacle to their preservation.' J. Smith & C. Cotter, Powers

Of The President During Crisis 6-7 (1960). Similarly, John Stuart Mill defended representative democracy

but refused to condemn a 'temporary dictatorship' which would assume absolute power in cases of extreme

necessity. lxvi Three variants in this tradition are important as constitutional models: (1) Locke‘s defense of

King‘s prerogative and executive auto-investiture, (2) the suggestion of the ―veil over liberty‖ or ―total

suspension‖ commonly associated with Montesquieu and (3) Jefferson‘s proposal of ex post facto review

after emergency action. Others Benjamin Constant less useful as a positive model and more forceful as a

critique of formalism as well as usurpation. Hardships faced and the possible evils that can be committed

by emergency governments, balancing the evils of public violence and private violence. Further

complications were introduced by Abraham Lincoln during the American Civil War and Justice Robert

Jackson during World War II). lxvii (Second Treatise of Government, in Political Writings of John Locke, ed. David Wootton [New

York: Mentor, 1993]), 335 [paragraph 143]. lxviii J. Locke, Two Treatises Of Government § 159-60, at 392-93 (P. Laslett ed. 1970). lxix Locke § 164, at 395. lxx John Locke. Second Treatise of Government. (New York: Liberal Arts Press, 1952). s. §158. lxxi §159. lxxii Where the ruler abuses the prerogative power and uses it to serve her own interests and purposes

rather than to further the public good, the people have no remedy available from any "Judge on Earth," and

their sole recourse is "to appeal to Heaven" or, when the majority of the people feels wronged, to revolt

against the oppressive ruler. lxxiii Clement Fatovic, Constitutionalism And Contingency: Locke‘s Theory Of Prerogative History of

Political Thought 2004, vol. 25, no. 2, pp. 276-297(22) lxxiv John Locke, The Second Treatise of Government, in Two Treatises of Government 148 (Peter

Laslett ed., Cambridge Univ. Press 1988) (1690). As is usually the case with Locke, much faith is put in

human reason and rationality as mitigating and limiting factors on the exercise of prerogative power.

("Where-ever Law ends, Tyranny begins, if the Law be transgressed to another's harm."). ("But if there

comes to be a question between the Executive Power and the People, about a thing claimed as a

Prerogative; the tendency of the exercise of such Prerogative to the good or hurt of the People, will easily

decide that Question."); ("Tyranny is the exercise of Power beyond Right, which no Body can have a Right

to. And this is making use of the Power any one has in his hands; not for the good of those, who are under

it, but for his own private separate Advantage."); lxxv (Publius [James Madison], Federalist Papers [Federalist 51], 322. Madison, in his debates with

Hamilton in 1793— the Letters of Pacificus and Helvidius. Madison explicitly rejected Locke‘s guidance

on the question of prerogative, saying that both Locke and Montesquieu were ―warped‖ by reference to the

example of England and here Locke‘s value as a philosopher was ―clouded‖ by his royalism as an

Englishman. lxxvi So the prerogative slowly died in England and moved to the US, where it survived in its tamed,

republican form. If in Locke abuses of king prerogative are checked by the people ―appealing to God‖, in

the democratic American version of the old English constitution the abuses of presidential prerogative are

checked by the public opinion (polls and elections) lxxvii Gabriel L. Negretto & Jose Antonio Aguilar Rivera, Liberalism and Emergency Powers in Latin

America: Reflections on Carl Schmitt and the Theory of Constitutional Dictatorship, 21 Cardozo L. Rev.

1797, Montesquieu: at 1799. lxxviii According to MJC Vile in his famous study Constitutionalism and The Separation of Powers,

Montesquieu was at least as much a monarchist as he was a republican. He declined to discuss in any real

depth the doctrine of separation of powers in republics, which he considered a marginal issue. Since

monarchies were the orders of the day, he concentrated on this constitutional arrangement and the

implications of the separation o powers in this context. lxxix Montesquieu laid the foundations for the theory of republican government, particularly the

concepts of the separation of powers into legislative, executive, and judicial, a federal republic,

representatives elected from political subdivisions, a bicameral legislature, and a system of checks and

balances. lxxx

Montesquieu laid the foundations for the theory of republican government, particularly the

concepts of the separation of powers into legislative, executive, and judicial, a federal republic,

representatives elected from political subdivisions, a bicameral legislature, and a system of checks and

balances. Separation of powers limits executive power, setting concrete limits to the exercise of

extraordinary powers or the so-called "crisis powers." it must be recognized that there is an essential

tension that is indicative of the liberal tradition. The willingness to abandon high ideals and act extra and

contra legem links to thematic similarities with Locke, safeguard the purity of the institutions they

championed. It seems puzzling that must be understood in the context of tragedy and purity. The tragedy

here is that there will be contamination, either of law or justice. Liberals confront this tragic possibility.

Important to take this seriously and to recognize that Montesquieu, while undoubtedly a fierce enemy of

despotic terror, failed to imagine that the possibility of despotic terror could issue from those candidly

throwing the ―veil over liberty.‖ Missed opportunity or failure of imagination, Montesquieu did not warn

against immoderation of this notion and the lack of safeguards. lxxxi Negretto and Aguilar at Gabriel L. Negretto & Jose Antonio Aguilar Rivera, Liberalism and

Emergency Powers in Latin America: Reflections on Carl Schmitt and the Theory of Constitutional

Dictatorship, 21 Cardozo L. Rev. 1797, 1799 say Montesquieu added this phrase only ―as an afterthought.‖ lxxxii In fact, as Bernard Manin, E.V. Walter, and others have shown, Montesquieu‘s conception of

―veil over liberty‖ exerted an uncommon influence over the ―terroristic‖ phase of French Revolutionary

constitutionalism, helping to justify the outright suspension of constitutional guarantees.Denis Richet,

―Committee of Public Safety,‖ in Francois Furet and Mona Ozouf, eds., A Critical Dictionary of the French

Revolution, (Trans. Arthur Goldhammer) (1989). pp. 474-478. The Reign of Terror, during which the

ruling Jacobin faction exterminated thousands of potential enemies, of whatever sex, age, or condition,

lasted until Robespierre‘s fall in July 1794. Denis Richet, ―Committee of Public Safety,‖ in Francois Furet

and Mona Ozouf, eds., A Critical Dictionary of the French Revolution, (Trans. Arthur Goldhammer)

(1989). pp. 474-478. The Reign of Terror, during which the ruling Jacobin faction exterminated thousands

of potential enemies, of whatever sex, age, or condition, lasted until Robespierre‘s fall in July 1794.

Whether or not Montesquieu would have approved of the Committee‘s interpretation of his statements,

their actions reveal the dangers of construing only the most general sense of preservation and a framework

that scarcely resembles formalism. In terms of preservation, Robespierre considered ―terror‖ to be a natural

―emanation of virtue‖ that delivers ―prompt, severe, and inflexible‖ justice, as ―a consequence of the

general principle of democracy‖ suiting the new republic‘s ―most pressing needs.‖ To Robespierre (who

also drew rhetorical energy from the Roman republican tradition), the so-called Reign of Terror was simply

a well-constrained exercise in emergency government, and he continued to contrast the arbitrary passions

of tyranny with good faith and the public safety.� E.V. Walter, ―Policies of Violence: From Montesquieu

to the Terrorists‖, in Kurt H. Wolff and Barrington Moore, Jr., The Critical Spirit: Essays in Honor of

Herbert Marcuse 133-134 (1967). Understandably, though, Robespierre‘s name and that of his Jacobin

party have come to be associated with subsequent illiberal and revolutionary strands of thought rather than

republican or liberal traditions.

lxxxiii

Christine Korsgaard, "The Sources of Normativity: Lecture 3: The authority of reflection" The

Origin of Value and the Value of Life Christine Korsgaard, considers the pain as a reason for action.

Merely being in pain can be a reason for ending the pain. The reason here seems like it could be entirely

private, not shared by anyone else, in the same way that the experience seems private. CK's argument

against the privacy of experience should, she hopes, also apply to the privacy of reasons for stopping pain.

On her view, obligation is the reflective rejection of a threat to your identity, and pain is the unreflective

rejection of a threat to your identity. So the preservation of identity is imperative. So the perception of

threats to the lives of other people does give one a reason to act, to preserve their identity. Those reasons

are public and shared. Furthermore, CK argues that we can perceive the threats to the lives, and thus we

have an obligation to them as well. We need to value the lives. (This suggests one has an obligation not to

commit suicide.) lxxxiv

Ago Report A/CN.4/318/Add.5-7 ―Addendum - Eighth report on State responsibility by Mr.

Roberto Ago, Special Rapporteur the internationally wrongful act of the State, source of international

responsibility (part 1)‖ Excerpted from the Yearbook of the International Law Commission, available at

(http://www.un.org/law/ilc/index.htm). (Hereinafter ―Ago Report‖). lxxxv Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. George

Schwab, Cambridge, MA, 1988), p. 7. lxxxvi Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (trans. George

Schwab, Cambridge, MA, 1988), p. 7.