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Search: self-defense

17 Sep

...the decolonization context. Second, the right to self-determination in most instances authorizes a people to exercise its right to internal self-determination, which is typically reflected in a right to form a regional government and/or have other cultural, linguistic, and religious rights respected by the mother state. The right to self-determination, outside of the decolonization context, may lead to the secessionist type of external self-determination only in extreme instances where the mother state chooses to completely disrespect the people’s right to internal self-determination. According to the Canadian Supreme Court in the...
17.09.14 | |

05 Mar

...proceeding in the Military Commissions at Guantanamo on December 5, 2007: ""MJ [Military Judge]: Okay. Well this is a very interesting question and I appreciate your argument. I am not sure what the answer is. Does the defense want to respond to that last question about section 948b subsection (g) [of the 2006 MCA]? CDC [Mr. Joe McMillan, civilian defense counsel]: Yes, Your Honor, if I may very quickly. Colonel Britt did indeed correctly anticipate the defense's response to the question from the court concerning subpart (g) of 948b. The...
05.03.10 | |

03 Aug

...- with historical examples that Professor Ramsey himself injects with a bit of proportionality and necessity discussion. Could the president respond to 9-11 with an attack to prevent further attacks if he believed further attacks are imminent? Yes....for a time...provided he can identify the source of the threat and the attacks are directed at countering it. (If they were not believed imminent, he would basically be conducting a reprisal - which some folks argue still falls within the scope of self defense or preemptive self defense.) Without Congress, could he...
03.08.07 | |

24 Dec

stand-by counsel. Should a time come when the Trial Chamber feels justified to make such a decision, the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select stand-by counsel from that list. Alternatively, should the full restoration of Seselj’s right to self-representation fail to curb his obstructionist behaviour, the Trial Chamber would be permitted to assign counsel to Seselj. Again, such decision may only be taken once Seselj has been given a real chance to effectively exercise the right to self-representation and...
24.12.09 | |

01 May

one who does not accept the claim that a state can use military force prior to the initiation of a process of "armed attack" within the unavoidable language and meaning of UN article 51 and general patterns of practice and opinio juris. Therefore, I would not accept the claim by many that "anticipatory" self-defense (prior to the start of an armed attack) should be permissible; and these claimants do not accept the claim by a few that "preemptive" self-defense should be tolerated even when there is no alleged imminent attack...
01.05.12 | |

10 Aug

...prevail over Charter obligations. My central question is again what is the Security Council saying or doing? Jordan It would fit with the U.N. Charter if the U.S. was engaged in collective self-defense with the consent of the Iraqi government. Self-defense and collective self-defense per a multilateral treaty does fit within the President's constitutionally-based duty faithfully to execute the Laws. See http://ssrn.com/abstract=2061835 A question would also be whether the President is claiming presidential power to faithfully execute the Genocide Convention and relevant CIL. P I don't think so Jordan. Assuming...
10.08.14 | |

02 Oct

In a thoughtful opinion, the Ninth Circuit rejected the claim, finding that the VCCR is self-executing but does not confer an individual right. For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. But “the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct.” “While a...
02.10.07 | |

23 Jul

Now that I’ve had a chance to read through the ICJ’s advisory opinion, following are a few initial reactions. (I will consider the separate opinions in another post.) Marko Milanovic has done a great job parsing the main issues that were at bar, namely 1. Whether the ICJ should exercise advisory jurisdiction in this case; 2. How broadly or narrowly the question posed by the General Assembly should be interpreted; 3. The legality of the declaration of independence in light of the international law of self determination; and, 4. The...
23.07.10 | |

07 Sep

...even its nationals abroad, any one of which falls much more firmly within the scope of presidential authority. Why not? Because he knows his asserted causus belli for attacking Syria falls outside the scope of national self-defense or the defense or rescue of U.S. nationals abroad. Instead, it is a broad protection of ‘national security’ interests that ostensibly triggers inherent Article II war initiation authority. This broad assertion of unilateral executive war making authority is unsupported by either historic practice or generally accepted interpretations of Article II powers. Indeed, if...
07.09.13 | |

15 Feb

...this discussion is, after all, about application of a potential defense. I assume the thrust of the argument is that this is a potential but ultimately ineffective theory of defense for a charge directed towards the CIA personnel who executed these orders. But in the end, isn't that why the judgment on what was "reasonable" in application of the defense is a question of fact for the finder of fact? What I can agree on is that it would be a tough defense to prevail upon, even if the interrogation...
15.02.08 | |

08 Dec

(also claimed by Japan) and the Ieodo/Suyan Rock (also claimed by South Korea). To the extent those territories are “national airspace”, China can argue that it should be allowed to draw an ADIZ around them to ensure any airplanes coming near them will not enter that airspace, etc. As Zachary Keck suggests, China is using the ADIZ to subtly build its legal claim to sovereignty over the Senkakus/Diaoyu Islands. Hence, China is probably invoking the UN Charter’s self-defense provision to justify its ADIZ and its need for all foreign aircraft...
08.12.13 | |

04 Jun

...(as US in Afghanistan after 2002 against the Taliban and AlQaeda and Iraq) while an NIAC would be like Yemen with consent against the AQ types or Afghanistan after Karzai had effective control consent against the Taliban and AQ. Pakistan is an NIAC in this setting though the lack of consent for the OBL raid (a very big deal for Pakistan) might be justified by the US as self-defense, but also might trigger Pakistan self-defense under Article 51. Subsequent events would not appear to have taken us over the threshold...
04.06.12 | |