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Search: self-defense

01 Aug

...notion of imminence is a key element here and is historically linked to the Caroline incident in 1837, which established the standard of “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” It must bear in mind that, at that time of Caroline incident, there was no explicit prohibition on the use of force under international law. However, applying this 19th-century standard to modern pre-emptive scenarios presents significant interpretive challenges. The constitutive components of pre-emptive self-defence doctrine rest on two primary pillars derived...
01.08.25 | and |

25 Jan

law of the states-parties. Professor Sloss is entirely correct to note that seeking the answer to this question in the treaty itself is highly problematic. Although there is nothing in international law that prevents states from addressing that question in the treaty itself, the fact is that states almost never do so. Domestic officials take their cues from domestic law, and states have very different constitutional rules concerning the need for legislative implementation of treaties. In the U.K. and most nations of the British Commonwealth, treaties are never enforceable in...
25.01.12 | |

22 Dec

the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself. As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime. I don’t want to push that interpretation too strongly. The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral. But the rationale is the same for both temporal and territorial jurisdiction: states should not be able...
22.12.12 | |

17 Feb

For Mexico, this was not, by any means, the proper interpretation of the self-defence exception. Indeed, he argued, “[t]his principle [of self-defence] would never have been allowed, were it not, as it is, founded in justice and reason; where it not like all the other principles, together composing the law of nations, derived from the natural law”. Thus, he continued, the right to self-defence “fixes upon us the obligation of preserving and defending ourselves” but, at the same time, “prohibits us from so doing to the evident injury of a...
17.02.20 | |

17 Oct

Chamber must bе particularly attentive to its duty of ensuring that the trial bе fair” to self-represented defendants, “[а] defendant who decides to represent himself relinquishes many of the benefits associated with representation bу counsel.” Get that? One of the costs of self-representing is the right to have adequate time to prepare for trial. A more direct attack on a defendant’s right under Article 21(4)(d) of the ICTY Statute “to defend himself in person” is difficult to imagine. I recognize that the Completion Strategy puts enormous pressure on the Tribunal...
17.10.09 | |

15 Apr

...with Resolution 1973.  There is however one caveat to this conclusion. The Ukrainian government has already signaled that it would invite other states to implement a no-fly-zone over its territory. As Ukraine is currently exercising its right to self-defense under Art. 51 UNCh against Russia’s aggression, states can furnish military assistance to Ukraine as a measure of collective self-defense. The GA could welcome such action in accordance with the Ukrainian government’s invitation. This would fall short of an authorization and have no legal effect. However, it could bestow legitimacy to...
15.04.22 | |

21 Oct

...violated the laws of war — a marked contrast to David Bernstein and NGO Monitor, which assume as a matter of faith that Israel can do no wrong. That, at least, is my take on his statement, “[t]o be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.” I think it is far from self-evident that Israel’s wrongs have all been committed in self-defense,...
21.10.09 | |

09 Apr

then the question of self-executing effect cannot arise. Neither the fact that the treaty as such isn't domestic law nor the fact that there is implementing legislation therefore suggest that the US ought to think of the treaty as either self-executing or not. Nor do I think there's a semi-political point to be drawn from this, at least in the sense of an argument against self-executing effect. Considerations of reciprocity might suggest that there isn't a really good claim to self-executing effect if nothing of the sort exists in the...
09.04.08 | |

25 Mar

the VCCR’s optional protocol is one such treaty.) Footnote 2 of the majority opinion provides the Court’s new definition: What we mean by “self-executing” is that the treaty has automatic domestic effect upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress. Whereas forests have been felled on the question of whether a non-self-executing treaty merely fails to provide a cause of action, or also fails to provide judicially...
25.03.08 | |

30 Sep

to which this Treaty will be self-executing. This provides that Articles 3-10 of the Treaty are self-executing and do not confer private rights of action enforceable in United States courts. The remaining provisions of the Treaty are not self-executing and do not confer private rights of action enforceable in United States courts.” I’m glad to see that the Senate is carefully addressing the issue of domestic implementation of treaties following Medellin. The dispute settlement mechanisms in the treaty are not self-executing and any arbitration award rendered pursuant thereto must be...
30.09.11 | |

10 Oct

...although it seems to turn the original definition of non-self-execution articulated by Chief Justice Marhsall on its head (Marshall had suggested that a treaty is non-self-executing when it is addressed to the “political, not the judicial department”). If the Court can execute the treaty, it would seem to be self-executing at least in the original sense of that term. There were also a few interesting exchanges on the question of the constitutionality of treaty provisions that commit the United States to binding dispute settlement, especially if those decisions were automatically...
10.10.07 | |

25 Jan

not the twentieth century distinction between self-executing and non-self-executing treaties. Next, consider the state of self-execution scholarship a century after Foster. In 1919, Professor Quincy Wright, the leading foreign affairs scholar of his generation, wrote: “all treaties might be called “self-executing” in the sense that their formal conclusion imposes an immediate responsibility upon every governmental authority whose action may be necessary to give it complete effect.” Quincy Wright, The Constitutionality of Treaties, 13 Am. J. Int’l L. 242, 263-64 (1919). Wright’s view reflected the conventional wisdom that prevailed from the...
25.01.12 | |