Suchergebnisse

Exigent circumstances can extinguish or suspend a wide range of legal obligations. They may empower governments to seize property or quarantine individuals. They may excuse the nonperformance of private or public contractual obligations. And, of especial interest here, they may permit governments to deviate from their obligations under treaties or customary international law (CIL).

To many international lawyers and army officers the terms "law of war" and "military necessity" are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.

1State responsibility — Necessity — Whether part of customary international law — Effect of a declaration of necessity on private contracts — Economic necessity based on a State's inability to pay — Temporary suspension of payments on sovereign bonds — Effect in relations between a State and a private individual under private law — International Law Commission Articles on State Responsibility, Article 25 — Whether declaratory of customary international lawEconomics, trade and finance — Sovereign debt — Foreign currency bonds — State suspending payments in foreign currency due to economic crisis — Whether justified by defence of necessity — The law of the Federal Republic of Germany

The main conclusion of the paper is that the issue of the legitimacy of extreme necessity as a basis for excluding unlawfulnesss has not been satisfactorily resolved. When it comes to the solution in the criminal law of Serbia, there is a serious deficit in terms of the legitimacy of the extreme necessity as a basis for the exclusion of unlawfulness, especially in the case when the threatened good and the one sacrificed are of the same value. Therefore, the prevailing interest theory cannot justify the existing solution. On the other hand, requiring the condition that the person invoking the extreme necessity did not cause danger (which is the specificity of that solution in CC of Serbia), to some extent facilitates solving the complex problem of justifying extreme necessity as a basis for excluding unlawfulnesss unlawfulnesss. Discussing the issue of justification, one should start from two approaches that dominate the theory of criminal law: the principle of predominant interest and the principle of solidarity. Those two principles are not so different that they could not be considered as one principle. Moreover, the principle of solidarity if it is based on the principle of predominant interest provides additional justification and persuasiveness. However, solidarity in a situation of extreme necessity must be of a limited nature, and therefore one can speak of the principle of limited solidarity, which is based on the principle of predominant interest. First of all, solidarity must be limited by the value of goods, ie. it can be expected from individuals (or imposed on them through legal norms) only when one sacrifices one's own good of lesser value in order to save someone else's good of greater value (by no means of the same value). Nor can it be expected that someone will sacrifice his own life, even if it would remove the danger from the lives of several people. The scope of solidarity, no matter how it is understood, cannot reach those limits. Furthermore, it is also limited by the fact that solidarity cannot be expected by the one who is responsible for creating the danger, so in this respect the solution from the CC of Serbia is in accordance with the principle of limited solidarity. Solidarity can justify the sacrifice of the goods of others, which legally narrows the limits of their free action. Nevertheless, it still remains an open question whether solidarity means that others voluntarily accept to sacrifice their goods (of lesser value) in order to save one's good (voluntariness could be based not only on altruism, but also on the expectation that the same will be done for apply to them if they find themselves in a situation of danger), or is it a legally imposed solidarity. Problems related to the legitimacy of extreme necessity as a basis for excluding unlawfulness are also significant for the interpretation of certain conditions for its application. The absence of a convincing justification of extreme necessity as a basis for excluding illegality should result not only in prescribing strict conditions for its existence, but it should also be reflected in its application.

The concepts of necessity, imminence, and proportionality play a central part in Daniel Bethlehem's sixteen proposed principles regulating a state's use of force against an imminent or actual attack by nonstate actors. While all three are requirements that must be considered in the law of self-defense, their exact content remains somewhat unclear. In this comment, we examine how each one is conceived in Bethlehem's principles and review the questions that remain unanswered.

This contribution revisits the phenomenon of 'reverse discrimination in the light of the latest Treaty amendments, recent developments in the CJEU's case law and evolutions in the law of selected Member States. It follows that 'reverse discrimination' caused by national measures applying to internal situations in non-harmonized policy fields remains acceptable under EU law as a matter of principle. The Union's non-unitary constitutional structure compels the CJEU to exercise judicial restraint when reviewing such rules against the fundamental freedoms of the Treaties as long as the Union legislator does not address the issue. Although the CJEU's traditional and increasingly incoherent case-law on 'purely internal situations' is not a necessary corollary of this reasoning, alternative judicial approaches risk unduly undermining Member States' competences and constitutional identities. Whilst much of the academic debate on reverse discrimination focuses on possible remedies under EU law, this paper also looks at solutions available under national law. Member States are well equipped to address reverse discrimination and to progressively live up to their responsibility in this respect. Evidence from different Member States suggests that national law (subject to an external control of the ECtHR) can provide a valuable and effective tool to assess whether or not restrictions of individual freedoms can be justified by overriding constitutionally recognized principles.

Necessity,necessità,is Machiavelli's guiding principle . . . that infringing the moral law is justified when it is necessary.Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation.—J. M. CoetzeeRecent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina's turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity's role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.

The fundamental question of international law of armed conflict is the
question of military necessity principle in international law of armed
conflict, ie. in international humanitarian law. Hearings on this issue is
necessary because it is still the danger that the principle of recognition of
the needs of military regulations and deceive the application of
international law of armed conflict. That?s why the military needs to be seen
as a permitted deviation from compliance with rules of war. Extreme, this
concept has led to the emergence of the theory of the military. Its radical
variant of the proceeds from the Maxims of German classical scholars of
international law. The result of theoretical assumptions had the effect of
limiting the acceptance of military necessity of the first codification of
the day. The four Geneva Conventions of 1949. The heavily consider the
military. In all the texts of international conventions is determined by
military necessity, as a circumstance or set of circumstances which affect
the duty of obeying the regulations of international law. In international
law there is no general rule of military necessity as a basis or reason for
justified violations of rules of international law of armed conflict. The
rules of international law represent a compromise between the desire for a
decoration rules of warfare and the need to ensure all the necessary tools
that can lead to victory. The four Geneva Conventions of 1949. the military
need to provide in terms of the principles of humanity. Set rules on military
necessity in the Geneva Conventions give the right correction factor in the
role of the law of armed conflict. The Geneva Conventions there is a degree
of confusion in terminology, where the concept of military necessity
needlessly allocated a number of synonyms. This is because the international
law of armed conflict and emerged as a normative regulation of
proportionality between the military needs) and general principles and humane
principles.