Search: self-defense
26 Oct The Mary Ellen O’Connell and Benjamin Wittes Debate on Targeted Killing and Drone Warfare
...is sufficiently co-belligerent with AQ proper; or else, second, that it is an independent exercise of self-defense under international law. I agree that each is available, plausibly and in good faith; I have strenuously argued the case for self-defense as the correct, but not exclusive, rationale in the past. But as more information has become publicly available on the factual nature of AQAP and its relationship to AQ, I believe that the armed conflict rationale has grown stronger as a factual characterization, and I think that true of Somalia as...30 Aug Jus Cogens Norms and The Historical Accident of Influential States
...it does have exceptions, namely self-defense under Article 51 and SC authorization under Chapter VII. Even if we put aside the many shady areas when it comes to self-defense, e.g. defense against non-state actors or the protection of nationals, how can the prohibition against the use of force be jus cogens if it has exceptions to it? But, then again, how can it NOT be jus cogens when the whole point of modern international law is to put a stop to the scourge of war, which has caused untold suffering...
20 Jan Geoengineering and the Use of Force
...to bear for a relaxation of the jus ad bellum—claims in favor of preventative self-defense and the unwilling or unable doctrine similarly tried to undermine the standards relating to the scale, gravity, attribution, and imminence of armed attacks as the triggering condition for self-defense. All of these efforts have in one way or another sought to alter the nature or timing of the acts that successfully trigger the right of self-defense. The imminent launch of a geoengineering effort that is thought likely to risk catastrophic climate consequences may not fit...
05 Jul Japan’s Dilemma in the Persian Gulf
...survival or a threat to the Japanese people’s rights, could each independently serve as a separate trigger for the right of collective self-defense. What is more, a separate aspect of the “reinterpretation” provided that Japan could use force in self-defense in response to “infringements” that do not rise to the level of armed attack, notwithstanding that an armed attack is the established condition-precedent for the exercise of self-defence in international law. Most significantly for our purposes, Prime Minister Abe, in explaining his understanding of this formulation back in 2015, stated that efforts...06 Mar The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy
Jordan I agree that the so-called test is not a limitation of the inherent right of self-defense under customary international law or Article 51 of the UN Charter. But if the rockets are flying across the border, for that time at least, the foreign state is decidedly "unable." Finally published: Operationalizing Use of Drones Against Non-State Terrorists Under the International Law of Self-Defense, 8 Albany Govt. L. Rev. 166-203 (215), available at http://ssrn.com/abstract=2459649 Enjoy! Shahram Thank you Kevin for drawing attention to the troubling methodology by which self-interested behavior of...24 Jan Self-Executing Treaties, the Senate, and a Bit of German Law
the Senate at least from pre-empting the ‘self-executing’ analysis on the standard test (which obviously falls to be applied by the courts, although they might reasonably attach great weight to the views of the Senate)? Article VI itself refers to all treaties of the United States without distinction. To be sure, the distinction drawn in Foster v. Neilson between self-executing and non-self-executing treaties is inevitable: a treaty that depends on implementation by Congress cannot be applied as the supreme law of the land. There is nothing to apply there. But...06 May Guest Post: Stephen W. Preston on ‘The Legal Framework for the United States’ Use of Military Force since 9/11’ (ASIL Annual Meeting 2015)–Old Wine in New Bottles
such attacks”, “consistent with Article 51 of the UN Charter”. While the right of self-defense of Iraq (which invited the US forces to intervene) had already been referred to in former statements of US officials, one should wonder which implications the second half of this statement, “U.S. national self-defense” will carry. It might indicate that even if Iraq withdrew its invitation, the United States would consider itself to nevertheless be in a position to continue operations based on the violation of above-mentioned “interests”, IS being “a threat not only to...02 Oct Four Thoughts on Koh’s Defense of Unilateral Humanitarian Intervention
...prohibition to three specific categories of force. Meg deGuzman What I find most perplexing about Harold's post is that rather than arguing that UHI is legal he proposes "a narrow 'affirmative defense' that would render lawful otherwise illegal behavior." Under criminal law theory, to render behavior legal the defense would have to be a justification defense rather than an excuse defense (which merely excuses unlawful conduct). Justification defenses (like self-defense and necessity) usually require imminence -- no time to take the usual (legal) route without risking serious harm to self/others....20 Sep How China Could Conquer Asia with Six Wars Without Violating the U.N. Charter
sovereignty is contested." Or maybe "any of the wars it is likely to contemplate would be (at least arguably) consistent with Article II’s self defense obligations."). Put aside, again, the validity of the territorial claim, and whether this kind of argument is properly characterized as self-defense or simply not an unlawful use of force in the meaning of 2(4). The latter of your views sounds a lot like India's position in India/Goa, which perhaps suggests poetic justice. Still, in your view, is there not a point at which using force...
11 Apr Inherit the Wind: Collective Security, Non-recognition, and Russia’s War of Aggression Against Ukraine
...of putting into effect a collective security system. Its main body, the Security Council, is entitled under article 39 of the Charter to determine the existence of threats to peace, breaches thereof or acts of aggression, being able to decide non-forcible or forcible measures (arts. 41 and 42). Such collective security regime coexists with that of collective self-defense under the Charter. According to Hans Kelsen, collective self-defense differs from collective security in that under the former states have the faculty to intervene when invited by the victim state, whereas under...