The necessity doctrine & immigration (Part 1)

Published on October 13th, 2012

The necessity doctrine is a feature of international law and can be used as a defense to breaking the law in times of crises. According to A State of Necessity: International Legal Obligations in Times of Crises by Avidan Kent & Alexandra Harrington in the Canadian Review of American Studies, the necessity doctrine is as follows: When facing a crisis a state must act in order to safeguard its essential interest. The extreme circumstances under which the state acts may require it to break international obligations that it previously undertook towards other states. Since the breaching of international obligations is considered to be "wrongful," the necessity doctrine provides a defense which precludes the assertion of "wrongfulness" against those states which act under these circumstances."

The Necessity Doctrine

The doctrine states that: 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 toward 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.

In short, it states that the doctrine may be invoked in the state's essential interests (e.g., financial crises) under grave/imminent circumstances. However, future peril can qualify without establishing that the future peril will occur. The peril cannot be averted by any other means and the wrongdoer state should not benefit when it causes the crisis.

Clearly, we live in an increasingly global society, especially when dealing in financial transactions. For FY2013, the State Department requested over $50B in support of foreign aid which comes from the American taxpayer. Notwithstanding, these are financial obligations for which other countries depend on the US to provide. It is patently clear; the US has been in the throes of the Great Recession since 2006. During this time, job losses have skyrocketed; home values lost and personal assets and wealth have declined.

In 2011, the US debt was 99.5% of GDP. Since 2006, the US has legally admitted over 6 million immigrants and over 11 million aliens have crossed our borders or overstayed their visas illegally. 47% of illegal aliens use some sort of welfare while the total cost of illegal immigration according to FAIR is over $113B. Pundits and financial experts all say the US is headed suffering fiscally. Each recommends that we must take drastic measures to preserve our economy.

$50B has been requested to support foreign aid programs alone; $113B to support those in violation of our laws, almost each dime we generate is used to finance our debt, could the US use the necessity doctrine to curb immigration?

To be continued…


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