Chapter 10. The Doctrine of Necessity

Abstract

The customary international law doctrine of necessity may be used to distinguish between multilateral environmental agreement (MEA) measures taken against parties to the MEA, MEA measures taken against third parties and unilateral measures. This chapter compares the treatment of unilateral measures under these provisions in Shrimp to the requirements of the necessity doctrine. It sets out the necessity doctrine, and analyzes how it would apply to the unilateral measures used in the Shrimp 21.5 case. The chapter analyzes the jurisdiction of the World Trade Organization (WTO) to apply the necessity doctrine to cases involving unilateral measures. Ambiguous language leaves room for the WTO to take into account the evolution of the necessity doctrine in both WTO law and general international law by virtue of Article 32 of the Vienna Convention.Keywords: customary international law; multilateral environmental agreement (MEA); necessity doctrine; Vienna Convention; World Trade Organization (WTO) law