Search: self-defense
18 Dec The War on Drugs is not a War (Part I): Foreign Military Interventions Against Drug Cartels
...and Afghanistan—illustrate how counter-narcotics enforcement has become a testing ground for the limits of the jus ad bellum. Each reflects a different reading of the UN Charter’s central rule: that force may be used only in collective or individual self-defense, or with the consent of the territorial State. The U.S. approach, justified as self-defense against non-State actors, pushes the Charter framework toward dangerous elasticity. By treating drug cartels as armed attackers capable of triggering Article 51, Washington risks normalizing the use of force for law-enforcement purposes and weakening the collective...
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...
14 Apr Not All Aggression is Equal: Why Force for Regime Change is the Graver Breach
...with whatever arrangement the aggressor installs or enables. However, some scholars argue that the self-determination analysis shifts where the targeted government is itself suppressing its people’s political rights. If sovereignty is conditional on representative governance, as the final paragraph of principle V of the 1970 Friendly Relations Declaration suggests, then a government that systematically denies self-determination to its own population may have forfeited the protections that would otherwise shield it from external action. On this reading, forcible regime change directed at a sufficiently repressive government does not negate self-determination but...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...
06 Apr When International Law Fails to Protect: Humanitarian Intervention and the Iranian Repression
...paradigm just cause remains self-defense against external aggression, some theorists extend the underlying logic of defense to include other-defense, that is, the use of force to protect victims of aggression who are unable to defend themselves, a view developed by Jeff McMahan. Some scholars have interpreted humanitarian intervention as a form of collective other-defense, extending the logic of self-defense to the protection of vulnerable populations, as argued by George Fletcher and Jens Ohlin. Humanitarian intervention falls within this extended category: it involves crossing borders without the consent of the territorial...
21 Nov Russia’s Lawfare Against the West in the UN Security Council and the Law of Neutrality
...military assistance to Ukraine do so openly and have justified their conduct by arguing that it aims to assist the victim of aggression to exercise its individual right of self-defense to repel an armed attack. There is remarkable consistency in the relevant statements by the EU, the USA, the UK and Germany. It is interesting that the assisting States do not invoke the right of collective self-defense, as this is a ground enabling the lawful use of force and would as a matter of principle make these States parties to...