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Search: self-defense

17 Oct

...State may have a right of self-defence against non-state actors operating extraterritorially and whose attacks cannot be attributed to the host State.” This state practice was demonstrated by letters sent by 8 NATO members (Canada, Turkey, the UK, the US, France, Denmark, Norway and Belgium) and Australia to the UN Security Council, concerning use of force against ISIS in Syria, and on “numerous situations over the past two centuries” which included the Caroline incident of 1837, and the 1916 US “Punitive Expedition” in Mexico. I will have more to say...
17.10.18 | |

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 | |

28 Oct

...the lawyers’ pre-raid analysis – meaning that even if one did not buy the “unwilling or unable” theory, or anything else about the raid, it wouldn’t have mattered. The UN Charter and the Geneva Conventions are non-self-executing treaties under U.S. law, the theory is, so the President is not legally bound. This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without...
28.10.15 | |

24 Jul

...Mindua emphasises, was an exercise of the right of self-determination, which he describes as a pillar of international law [15]. In this way, Judge Mindua begins his analysis by focusing on a jus ad bellum in which the fight for self-determination is a legitimate and justified struggle.  Judge Mindua then engages in a theoretical discussion about why non-state actors, such as Ansar Dine/AQIM, are subjects of international humanitarian law. Again, this theoretical question is not at issue in the case. The Prosecution only had to show that Ansar Dine/AQIM demonstrated...
24.07.24 | |

12 Mar

...this approach. In that decision, the Supreme Court interpreted a key provision of the U.N. Charter obligating the U.S. to comply with International Court of Justice as non-self executing, thus relieving U.S. courts from any obligation to implement an ICJ’s judgment. In my view, the relevant language could have been interpreted as either self-executing or non-self-executing, but the structural tensions created by a self-executing interpretation tipped the balance. The decision of whether and how to comply with an ICJ judgment was rightly left to either the State of Texas or...
12.03.13 | |

25 Sep

...State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.’ Obviously, this provision was created in the context of decolonization, but if the right to self-determination is applicable...
25.09.20 | |

09 Dec

...“eigenvalue” of the differentiated language of law as such. Jerry L. Mashaw has convincingly argued that the doubts of the “lawness” of global administrative law stem from the same origin as the conventional ignorance of the generative power of administration that manifests itself in the emergence of the “internal administrative law” in the 19th century. With reference to administrative agencies that have to operate with an internal perspective of creating a layer of self-binding and self-reflexive rules on the one hand and with an outside view to other private and...
09.12.11 | |

26 Jan

decisions that comply with international obligations is based not so much on the effective threat of sanction but on the internalization of those norms into the judiciary itself (of course, internalization of such norms by the executive would also assist compliance). So, why is it that we see compliance by states that we know tend to act out of self-interest? Maybe because sometimes they view it in their self-interest to comply and sometimes because their decision-makers have been acculturated to believe it is the normatively “right” thing to do. And,...
26.01.05 | |

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 | |

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 | |

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 | |

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 | |