Threat, Emergency and Survival: The Legality of Emergency Action in International Law

The international legal discourse, whether in theory or practice, has long focused on how situations gravely affecting the national security of States would impact their legal rights and obligations. In a way, the discourse on threats is essentially about whether international law could retain its validity as a body of neutral rules in situations where extreme emergencies are arguably involved, as has been witnessed in arguments from the ancient notion of self-preservation to modern claims of exceptional legality that are developed in the context of counter-terrorist activities and encompass multiple areas of international law including jus ad bellum, humanitarian law and human rights law. This contribution examines whether the discourse on threats is inherently extra-legal, that is, if it qualifies the validity of law due to policy considerations that are external, and thus alien, to it; or whether and to what extent international law actually provides for the entitlement of States to act in the face of serious national emergencies.