Necessity and National Emergency Clauses

Diane A. Desierto, JSD (2011), LLM (2009), Yale; LLB cum laude (2004), BS Economics summa cum laude (2000), UP Law/Econ; 2010-2011 Yale Fellow (Judges Simma/Sepulveda-Amor) International Court of Justice; teaches international law in UP Law and advises Philippine government agencies.

Diane Desierto was awarded the 2010-2011 Ambrose Gherini Prize, the highest prize awarded in the field of International Law by Yale Law School, for her JSD dissertation, upon which this book is based.

This book is intended for law students, legal scholars, arbitrators, international judges, and other international law practitioners interested in deriving interpretive solutions to treaty controversies on the doctrine of necessity.

“Diane Desierto’s new book, Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation, critiques the ILC’s effort to codify the international law of state necessity, arguing that the ILC’s formulation should be given little weight as a restatement of customary international law. Tracing the history of necessity over the centuries, Desierto shows that the classical conception of necessity as a sovereign right to self-preservation evolved significantly from Machiavelli to Grotius to Schmitt and beyond...While these insights regarding the context-sensitive character of necessity defenses might seem modest on first impression, Desierto shows that they have far-reaching implications, calling into question some recent arbitral decisions on economic emergencies and challenging scholarly efforts to defend torture and humanitarian intervention based on appeals to necessity...By clarifying how law-appliers should go about evaluating state necessity defenses, Desierto’s study also offers broader insights for international legal theory. Desierto’s fine-grained analysis in Necessity and National Emergency Clauses offers an invaluable model for how law-appliers should go about answering this question [whether the applicable treaty regime authorizes emergency measures in a given context].”

- American Society of International Law Cables, Evan Criddle, Syracuse University College of Law Associate Professor

I. Introduction: Necessity and Treaty Obligations
II. The Doctrine of Necessity in Municipal and International Legal Orders
III. The Historical Genesis of Necessity Doctrine: A Conceptual Descriptive
IV. Substantive and Methodological Issues in Interpreting Necessity Clauses in Treaties: A Proposal
V. Economic and National Security Emergencies: Necessity Clauses in International Investment Law and International Trade Law
VI. States of Emergency in International Human Rights Treaties
VII. Misapplying Necessity: Recent Proposals in Jus Ad Bellum and Jus in Bello
VIII. Conclusion: Necessity, Sovereignty, and Treaty Interpretation
Selected Bibliography
Subject Index