Defences in Contemporary International Criminal Law

The concept of necessity in WTO law

“…He observed, that every man has a right to prevent the mischief with which he is threatened, and to retort it upon its author; and that neither the constitutions nor the laws of the empire could obstruct the exertion of a right so superior to all others as that of self-preservation and self-defense... (emphasis added). 175…”

“…174 The US seemed to call for an interpretation similar to that employed by the panel. 175 The EEC argued that a different treatment of imported goods than that accorded to domestic goods could be considered 'necessary' only if there were objective reasons connected to the realities of patent law. These reasons could be practical (for instance, that patent laws could not be applied similarly to both products) or legal (for instance, limitation under international law on the extra-territorial application of a country's patent laws).…”

“…The particular weapon prohibited by the Declaration was "any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances". 175 Ibid. 176 The last paragraph of the Declaration is often quoted as one that established the continuing IHL principle of balancing necessity with humanity: 178 The contracting or acceding parties reserve to themselves the right to come to an understanding, hereafter, whenever a precise proposition shall be drawn up, in view of future improvements which may be effected in the armament of troops, in order to maintain the principles which they have established, and to reconcile the necessities of war with the laws of humanity (emphasis added).…”

“…[I] will show why this defense deserves an independent place in ICL. 509 Knoops is keen to show that despite the 'mingling' of necessity and duress, necessity can be separately explained. The practice, however, points to the contrary.…”

“…(a) the act charged must have been done to prevent a significantly greater evil than inflicted; (b) there must have been no adequate alternative; and (c) the harm inflicted must not have been disproportionate to the harm avoided. 175 As repeatedly mentioned in the previous chapters, given the limitations of the other seven fields of international law, the ARSIWA definition of necessity (which has codified the concept of necessity in CIL), given its influence on the other fields of international law, will be picked up for the purpose of comparison with the concept of necessity in WTO law.…”