Doctrine of necessity

The doctrine of necessity is the basis on which extraordinary actions by administrative authority,
which are designed to restore order or uphold fundamental constitutional principles, are
considered to be lawful even if such an action contravenes established constitution, laws,
norms, or conventions. The maxim on which the doctrine is based originated in the writings of
the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action
have been advanced by more recent legal authorities, including William Blackstone.

In a controversial 1954 judgment, Pakistani Chief Justice Muhammad Munir validated the extra-
constitutional use of emergency powers by Governor General, Ghulam Mohammad.[1] In his
judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made
lawful by necessity', thereby providing the label that would come to be attached to the judgment
and the doctrine that it was establishing.

The doctrine of necessity may also refer to the necessity of a judge with a reasonable
apprehension of bias continuing to decide a matter if there is no alternative to that judge. The
Supreme Court of Canada applied this doctrine in the 1998 Reference re Remuneration of Judges
(No 2) case.

International law
In international law, the exception is allowed by the UN's International Law Commission (ILC) to
be used by a state facing "grave and imminent peril":[2][3]
1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that
State unless the act:

(a) is the only way for the State

to safeguard an essential
interest against a grave and
imminent peril; and
(b) does not seriously impair
an essential interest of the
State or States towards which
the obligation exists, or of the
international community as a
whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
 (a) the international obligation
in question excludes the
possibility of invoking
necessity; or
(b) the State has contributed to
the situation of necessity.
— Article 25 (Necessity) of
the ILC's Draft Articles on
the Responsibility of States
for Internationally
Wrongful Acts[4]
Therefore, an obligation of customary international law or an obligation granted under a bilateral
investment treaty may be suspended under the doctrine of necessity. It is "an exception from
illegality and in certain cases even as an exception from responsibility." In order to invoke the
doctrine of necessity:[5]
 1. The invoking State must not have
contributed to the state of necessity,
2. Actions taken were the only way to
safeguard an essential interest from
grave and impending danger.

Instances of invocation
The doctrine of necessity has been invoked in a number of Commonwealth countries.

Pakistan, 1954
On 24 October 1954 the Governor-General of Pakistan, Ghulam Mohammad, dissolved the
Constituent Assembly and appointed a new Council of Ministers on the grounds that the existing
one no longer represented the people of Pakistan. Stanley de Smith argues that the real reason
for the dissolution was because Mohammad objected to the constitution which the Assembly
was about to adopt.[6]: 98 The President of the Constituent Assembly, Maulvi Tamizuddin,
appealed to the Chief Court of Sind at Karachi to restrain the new Council of Ministers from
implementing the dissolution and to determine the validity of the appointment of the new
Council under Section 223-A of the constitution.

In response, members of the new Council of Ministers appealed to the court saying that it had
no jurisdiction to approve the request of the President to overturn the dissolution and
appointments. They argued that Section 223-A of the constitution had never been validly
enacted into the Constitution because it was never approved of by the Governor-General, and
therefore anything submitted under it was invalid. The Chief Court of Sind ruled in favour of
President Tamizuddin and held that the Governor-General's approval was not needed when the
Constituent Assembly was acting only as a Constituent Assembly and not as the Federal
Legislature.[7] The Federation of Pakistan and the new Council of Ministers then appealed to the
court, the appeal was heard in March 1955 (Federation of Pakistan v Maulvi Tamizuddin Khan).

In the appeal hearing under Chief Justice Muhammad Munir, the court decided that the
Constituent Assembly functioned as the 'Legislature of the Domain' and that the Governor-
General's assent was necessary for all legislation to become law. Therefore, the Chief Court of
Sind had no jurisdiction to overturn the Governor General's dissolution and it was held as valid.

However, the ground of which the court found in favour of the Federation of Pakistan called into
question the validity of all legislation passed by the Assembly, not to mention the
unconstitutionality of the Assembly itself since 1950. To solve this problem, the Governor-
General invoked Emergency Powers to retrospectively validate the Acts of the Constituent
Assembly. An appeal was filed against the Governor-General for invoking emergency powers and
the Chief Justice had to determine the constitutionality of invoking the Emergency Powers and
whether the Governor-General could give his assent to legislation retroactively.[6]: 99

The Court held that in this case the Governor-General could not invoke emergency powers
because in doing so he validated certain laws that had been invalid because he had not
assented to them previously. Justice Munir also ruled that constitutional legislation could not be
validated by the Governor General but had to be approved by the Legislature. The lack of a
Constituent Assembly did not transfer the Legislature's powers over to the Governor-General.

The Court was referred to for an opinion. On 16 May 1955 it ruled:

1. The Governor General in certain

circumstances had the power to
dissolve the Constituent Assembly.
 2. The Governor-General has during the
interim period the power 'under the
common law of civil or state
necessity' of retrospectively
validating the laws listed in the
Schedule to the Emergency Powers
ordinance.
3. The new Assembly (formed under the
Constituent Convention Order 1955)
would be valid and able to exercise all
powers under the Indian
Independence Act 1947.[8]
In his verdict, Munir declared it was necessary to go beyond the constitution to what he claimed
was the Common Law, to general legal maxims, and to English historical precedent. He relied on
Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', and the Roman
law maxim urged by Ivor Jennings, 'the well-being of the people is the supreme law'.
Grenada, 1985
In a 1985 judgment, the Chief Justice of the High Court of Grenada invoked the doctrine of
necessity to validate the legal existence of a court then trying for murder the persons who had
conducted a coup against former leader Maurice Bishop. The court had been established under
an unconstitutional "People's Law" following the overthrow of the country's constitution, which
had subsequently been restored. The defendants argued that the court before which they were
being tried had no legal existence under the restored constitution, and they were therefore being
deprived of their constitutional right to a trial before a "Court established by law". The High Court
acknowledged that the lower court "had come into existence in an unconstitutional manner", but
"the doctrine of necessity validated its acts."[9] On this basis, the murder trials were allowed to
proceed.

Nigeria, 2010: Parliament creates an

Acting President
A related (although non-judicial) use of the doctrine took place when, on 9 February 2010, the
Nigerian National Assembly passed a resolution making Vice President Goodluck Jonathan the
Acting President and Commander in Chief of the Armed Forces.[10][11] Both chambers of the
Assembly passed the resolution after President Umaru Yar'Adua, who for 78 days had been in
Saudi Arabia receiving medical treatment, was unable to formally empower the vice president to
exercise full powers as acting president, as provided for in Section 145 of the country's
constitution. No provision of the Nigerian constitution empowering the National Assembly to
pass any such resolution, causing Senate President David Mark to assert that the Senate had
been guided by the "doctrine of necessity" in arriving at its decision.
United Kingdom, 2022–2023:
Northern Ireland Protocol changes
On 13 June 2022, United Kingdom Foreign Secretary Liz Truss introduced the Northern Ireland
Protocol Bill in the House of Commons, which, if enacted,[12] would allow the UK government to
unilaterally "disapply" (the word used) parts of the Northern Ireland Protocol[13] that it had signed
up to, a part of the Brexit withdrawal agreement. The UK government conceded that the bill
would mean breaching its obligations under international law but said that its position was
justified, explicitly invoking the doctrine of necessity[14][15] and saying that having to uphold the
Protocol was placing unacceptable levels of strain on institutions in Northern Ireland and that
there was "no other way" of safeguarding the UK's interests.[3][16]

On 15 June, vice-president of the European Commission Maroš Šefčovič said that there was "no
legal nor political justification" for the bill and that it was illegal.[17] He also announced that the
Commission would re-open the infringement proceedings against the UK government which had
been started in March 2021,[18] including two new counts where it was alleged the UK breached
the Protocol.[17]

In a session of the Public Administration and Constitutional Affairs Committee on 21 June 2022,
Lorand Bartels, Professor of International Law at Trinity Hall, Cambridge, and Malgosia
Fitzmaurice, Professor of Public International Law at Queen Mary University of London, were
questioned about the use of the doctrine of necessity.[19] Fitzmaurice said that necessity is the
"most contentious and controversial" of circumstances which allow treaty terms to be
disregarded;[19]: Q127 she stated that using necessity as a justification "should be very carefully
considered" seeing as action could instead be taken using Article 16 of the protocol.[19]: Q129
Bartels suggested that the necessity doctrine could only be used to breach some parts of the
protocol.[19]: 129

During the leadership election during the summer of 2022, Rishi Sunak said his preference was a
negotiated settlement with the EU while Liz Truss, who was the minister responsible for
introducing the Protocol Bill, supported it as a method to "[break] the deadlock in a legal way".[20]
Although Truss won that leadership election, she resigned soon after amid a government crisis
and Sunak became prime minister.
The UK government and the European Commission made a joint statement on 27 February 2023
announcing the Windsor Framework, a legal agreement which addressed concerns around the
Northern Ireland Protocol.[21] As a result, the Northern Ireland Protocol Bill was withdrawn and
will be allowed to lapse at the end of the current session of parliament.[21]

Notes and references

1. Amita Shastri, A. Jeyaratnam Wilson (5

October 2001), The post-colonial states of
South Asia: democracy, development, and
identity (https://books.google.com/books?i
d=du7xvBFpbg4C) , Palgrave Macmillan,
2001, ISBN 978-0-312-23852-0, "...
Dismissing Mirza, army chief General
Mohammad Ayub Khan took over first as
chief martial law administrator ... a
compliant judiciary upheld the imposition
of martial law under the doctrine of
necessity ..."
2. Carpentieri, Leonardo (31 March 2022).
Fernández Antuña, Antolín (ed.). "Necessity
as a Defence" (https://jusmundi.com/en/do
cument/wiki/en-necessity-as-a-defence) .
Jus Mundi. "IV B 10 a: the State's act is to
safeguard an essential interest against a
peril; b: the peril shall be grave and
imminent"

3. Aubrey Allegretti (13 June 2022). "Northern

Ireland protocol: what is the 'doctrine of
necessity'?" (https://www.theguardian.com/
politics/2022/jun/13/northern-ireland-proto
col-what-is-the-doctrine-of-necessity) . The
Guardian. Retrieved 13 June 2022.
4. "E. Draft articles on responsibility of States
for internationally wrongful acts" (https://le
gal.un.org/ilc/publications/yearbooks/engli
sh/ilc_2001_v2_p2.pdf) (PDF). YEARBOOK
OF THE INTERNATIONAL LAW
COMMISSION, volume II, Part Two - Report
of the Commission to the General
Assembly on the work of its fifty-third
session (Report). United Nations. 2001.
p. 26. A/CN.4/SER.A/2001/Add.1 (Part 2).

5. "Case Details - Continental Casualty

Company v. Argentine Republic" (https://ics
id.worldbank.org/cases/case-database/cas
e-detail?CaseNo=ARB/03/9) . International
Centrey for Settlement of Investment
Disputes. World Bank. 5 September 2008.
ICSID Case No. ARB/03/9.
6. Wolf-Phillips, Leslie (1979). "Constitutional
Legitimacy: A Study of the Doctrine of
Necessity" (http://www.jstor.org/stable/399
0400) . Third World Quarterly. 1 (4): 97–
133. doi:10.1080/01436597908419463 (htt
ps://doi.org/10.1080%2F01436597908419
463) . JSTOR 3990400 (https://www.jstor.o
rg/stable/3990400) – via JSTOR.

7. Judgement and Order of the Chief Court of

Sind at Karachi, 9 February 1955, PLD 1955
Sind 96.

8. PLD 1955 I FC 561-5

9. H.V. Evatt and Eugene Forsey, Evatt and
Forsey on the Reserve Powers. (Sydney:
Legal Books, 1990), p. xciv.
10. Akogun, Kunle; Orji, George; Ojeifo, Sufuyan;
Nzeshi, Onwuka (10 February 2010).
"Jonathan Takes Over" (https://web.archive.
org/web/20100213061040/http://www.this
dayonline.com/nview.php?id=166168) .
This Day Online. Abuja. Archived from the
original (http://www.thisdayonline.com/nvie
w.php?id=166168) on 13 February 2010.

11. Nossiter, Adam (9 February 2010).

"Nigerian Parliament Names Acting
President" (https://www.nytimes.com/201
0/02/10/world/africa/10nigeria.html?ref=to
dayspaper) . The New York Times.

12. "Northern Ireland Protocol Bill - Timeline" (h

ttps://bills.parliament.uk/bills/3182#timelin
e) . Parliament.uk. Updated as the bill
progresses, starting 13 June 2022.
13. "Bill 12–EN 58/3 NORTHERN IRELAND
PROTOCOL BILL EXPLANATORY NOTES" (h
ttps://publications.parliament.uk/pa/bills/c
bill/58-03/0012/en/220012en.pdf) (PDF).
Parliament.uk. 13 June 2022.

14. Rowena Mason; Daniel Boffey (13 June

2022). "EU poised to take legal action
against UK over Northern Ireland protocol
bill" (https://www.theguardian.com/uk-new
s/2022/jun/13/uk-risks-brexit-eu-trade-war-
as-northern-ireland-protocol-bill-is-publishe
d) . The Guardian. Retrieved 13 June 2022.
15. David Hughes (13 June 2022). "Johnson
ripping up Brexit protocol is 'a new low'
says Irish premier" (https://www.belfasttele
graph.co.uk/news/republic-of-ireland/johns
on-ripping-up-brexit-protocol-is-a-new-low-s
ays-irish-premier-41748443.html) . Belfast
Telegraph. Retrieved 13 June 2022.

16. "UK reveals plans to ditch parts of EU Brexit

deal" (https://www.bbc.co.uk/news/uk-polit
ics-61790248) . BBC. 13 June 2022.
Retrieved 13 June 2022.

17. "Remarks by Vice-President Maroš Šefčovič

at the press conference on the Protocol of
Ireland / Northern Ireland" (https://ec.europ
a.eu/commission/presscorner/detail/en/sp
eech_22_3758) . European Commission. 15
June 2022. Retrieved 15 June 2022.
18. "Withdrawal Agreement: Commission
sends letter of formal notice to the United
Kingdom for breach of its obligations under
the Protocol on Ireland and Northern
Ireland" (https://ec.europa.eu/commission/
presscorner/detail/en/ip_21_1132) .
European Commission. 15 March 2021.
Retrieved 15 June 2022.

19. "Oral evidence: The Scrutiny of International

Treaties and other international agreements
in the 21st century, HC 214" (https://commi
ttees.parliament.uk/oralevidence/10455/pd
f/) . Parliament.uk. House of Commons. 21
June 2022. Retrieved 31 July 2023.
20. "Tory leadership: What candidates think
about Northern Ireland Protocol" (https://w
ww.bbc.co.uk/news/uk-northern-ireland-62
118436) . BBC News. 22 July 2022.
Retrieved 31 July 2023.

21. "Political Declaration by the European

Commission and the Government of the
United Kingdom" (https://assets.publishing.
service.gov.uk/government/uploads/syste
m/uploads/attachment_data/file/1139420/
Political_Declaration_by_the_European_Co
mmission_and_the_Government_of_the_Uni
ted_Kingdom.pdf) (PDF). GOV.UK. 27
February 2023. Retrieved 31 July 2023.
External links

Agius, Maria (2009). "The Invocation of

Necessity in International Law" (https://
www.cambridge.org/core/journals/neth
erlands-international-law-review/article/
abs/invocation-of-necessity-in-internatio
nal-law/4218579A3A5CF640DEF84288
B8F380A6) . Netherlands International
Law Review. 56 (2): 95.
doi:10.1017/s0165070x09000953 (http
s://doi.org/10.1017%2Fs0165070x0900
0953) . ISSN 0165-070X (https://www.w
orldcat.org/issn/0165-070X) .
 S2CID 144808236 (https://api.semantic
scholar.org/CorpusID:144808236) .
Carpentieri, Leonardo (31 March 2022).
Fernández Antuña, Antolín (ed.).
"Necessity as a Defence" (https://jusmu
ndi.com/en/document/wiki/en-necessit
y-as-a-defence) . Jus Mundi. This article
cites many references relevant to the
general topic of "doctrine of necessity"

Retrieved from
"https://en.wikipedia.org/w/index.php?
title=Doctrine_of_necessity&oldid=1168110286"
This page was last edited on 31 July 2023, at
21:36 (UTC). •
Content is available under CC BY-SA 4.0 unless
otherwise noted.