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Search: self-defense

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 | |

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 | |

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 | |

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 | |

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 | |

02 Oct

...Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US. (To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an...
02.10.15 | |

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 | |

29 Sep

entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it. The mind — and international law — reels....
29.09.14 | |

26 Apr

...merely listing acts that might constitute aggression without defining when those acts are unlawful. The definition does not address how claims of self-defense or humanitarian necessity affect the categorization of the use of force as aggression. This is another profoundly misleading statement. The proposed definition does, of course, permit states to use armed force in self-defense — it specifically limits “acts of aggression” to acts that constitute “a manifest violation of the Charter of the United Nations,” and Article 51 of the Charter specifically provides that states have the right...
26.04.10 | |

01 Sep

...which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion). Largely for reasons explained by my colleague and Dean, Bill Treanor, I am...
01.09.13 | |