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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

State of Necessity

Asem Khalil

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 19 April 2021

International law — State of emergency — National security — State of necessity — Revolution — Terrorism

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

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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