Concept of Necessity in International Law and the World Trade Organization

Senai W. Andemariam, Ph.D., Maastricht University, is a former judge and now the head of the Department of Law of the College of Business and Social Sciences in Eritrea. He received his LL.B. from the University of Asmara (With Distinction) and his LL.M. from Georgetown University (With Distinction) as a Fulbright Scholar. He has published with journals at Cambridge University Press, Oxford University Press, Taylor and Francis, Routledge, Springer, DeGruyter, Brill and others.

• ForewordAcknowledgmentsList of TablesAcronymsIntroductionPart 1History of the Concept of Necessity in Law1 Evolution of the Concept from the 1st Millennium bc to the 20th Century1.1 Early Period1.2 Medieval Period (5th to 15th Centuries)1.3 The Westphalian Concept of Necessity and the Aftermath (17th to 20th Centuries)2 State and Tribunal Practices until the 1930s2.1 State Practices2.2 Tribunal Practices2.3 Avoiding the Conflation2.4 Lessons Learned from the State and Tribunal Practices3 Placing Necessity in the Context of the Relationship between Sovereignty and Treaty Law3.1 How the Exercise of Powers of Necessity Evolved since the Peace of Westphalia3.2 Consent as the Binding Element in the Sovereignty-Treaty Obligation Interface3.3 Lessons from the History, Practices and Presentation of Necessity since the 1st Millennium bcPart 2The Concept of Necessity in International Law4 Preliminary Issues4.1 Necessity: A Widely Represented Concept in International Law4.2 Issues on the Concept of Necessity in International Law5 The Concept of Necessity in Different Fields of International Law5.1 The Law of Use of Force5.2 International Humanitarian Law5.3 International Environmental Law5.4 The Law State Responsibility as Codified in the arsiwa5.5 International Investment Law5.6 International Human Rights Law5.7 International Criminal Law5.8 The Law of Responsibility of International Organizations as Codified in the dario5.9 Lessons Learned from the Experiences with the Concepts of Necessity in Different Fields of International Law6 The Role of International Courts and Tribunals in Developing the Concept of Necessity in Customary International Law6.1 General Notes6.2 The pca6.3 The pcij6.4 The icj6.5 The itlos6.6 Other International Tribunals6.7 Lessons Learned from the Contributions of Various International Courts/Tribunals on the Development of the Concept of Necessity in International LawPart 3The Concept of Necessity in wto Law7 History of the Drafting of the Necessity Defense Provisions in the General and Security Exceptions of the gatt 1994/gats7.1 Pre-gatt 1947 Trade Agreements and Treaties Containing General Exceptions-Like Provisions7.2 The US-UK Discussions for Post-Second World War International Trade Rules7.3 The Drafting of the General and Security Exceptions in the London-New York-Geneva-Havana Meetings (1946–1948)8 Evolution of the Interpretation of the Concept of Necessity in the General and Security Exceptions of the gatt (1947 and 1994) and the gats8.1 General Observations on the Nature and Practice of the General Exceptions8.2 Interpreting the Term ‘Necessary’ in the General Exceptions8.3 The Concept of Necessity in the Security Exceptions9 The Concept of Necessity in Other wto Agreements, the tbt, sps and trips Agreements in Particular9.1 Textual Presence of the Term (Concept of) Necessity9.2 General Background on the tbt and the sps Agreements9.3 The Concepts of Necessity in the tbt and the sps Agreements9.4 Comparing the Interpretations of Necessity in the General Exceptions of the gatt 1994/gats, the tbt Agreement and the sps Agreement9.5 Necessity under the trips Agreement9.6 Has a ‘wto Law Concept of Necessity’ Emerged?Part 4The Interaction between the Concepts of Necessity in Customary International Law and wto Law10 The Interface between Customary International Law and wto Law10.1 Contextualizing the Relationship10.2 wto Law in the Universe of International Law10.3 The Two-Way Relationship between wto law and International Law11 Rules on Interfacing the Concepts of Necessity in wto Law and Other Fields of International law11.1 Rules and Practices of Interoperability11.2 Interoperability in the Context of the Current Crisis of the wto Dispute Settlement System11.3 Contrasting the Concepts of Necessity in wto Law and cil12 The Exercise of Interfacing the Concepts of Necessity in wto Law and cil12.1 Grounds for Considering Interoperability12.2 Potential InteroperabilityConclusion and Final RemarksBibliographyIndex