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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

State of Necessity

Asem Khalil

Subject(s):
International law — State of emergency — National security — State of necessity — Revolution — Terrorism

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

1. State of necessity is used in international law to preclude the wrongfulness of a state’s action which is in prima facie violation of international law. It has a recognized presence in criminal and civil law, and is recognized in the civil law tradition and in the common law tradition ( Irizarry 15 ), where an actor, confronted with two options, may choose the lesser evil—even if in violation of the law ( Ferzan 184 ; Irizarry 22 ). 2. In constitutional law, state or public necessity is often evoked in two occasions: (1) in defence of officials who, in order to...
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