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Search: self-defense

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 | |

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 | |

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 | |

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 | |

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 | |

07 Sep

...an understanding that the failure to provide legal justification for any controversial action is a good way to lay the groundwork for public rejection. (To take one historical example, President Nixon’s failure to supply a legal justification for the bombing of Cambodia surely contributed to widespread condemnation of the decision notwithstanding a tenable self-defense claim.) But that’s all about domestic legality. Bush continues to refuse to bow down before the altar of international law. I count six instances in the speech of the phrase “our laws.” There is one mention...
07.09.06 | |

08 Feb

...the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense. Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it. Lederman, however,...
08.02.08 | |

02 Jun

...deny the power of Congress to legislate over Indian affairs or to curtail the scope of Indian self-government. But the Court declared that Congress had not done so in any clear fashion and thus found no congressional intent to limit Indian self-government. The Court stated that the tribes retained their right of "self-government [and] the maintenance of order and peace among their own members." Unless this power is limited by explicit legislation or surrendered by the tribe, Indian tribes retain exclusive judicial jurisdiction over reservation Indian affairs. Thus today most...
02.06.06 | |

25 Feb

...piece from me next week arguing something I’ve developed at Volokh Conspiracy and here at OJ blog: first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from...
25.02.10 | |

24 Jan

...one person alone but from the rule of law itself. There are only two conditions in which a war is legal under international law: when force is authorized by the United Nations Security Council or when the use of force is an act of national self-defense and survival. The U.N. Charter, based on the Nuremberg Principles, prohibits war "as an instrument of policy." And the war in Iraq is just that — a war of choice. There is a common tendency among lawyers and military commanders to sneer at international...
24.01.07 | |

23 Apr

...limits. [This is a tangent; feel free to ignore it.] Peter Orlowicz Don't affirmative defenses like self-defense or duress act to defeat criminal liability even when the mens rea for a given offense is present? Perhaps we don't want to extend those affirmative defenses for torture in particular, but to say "it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt" seems to oversimplify. B. Don Taylor III "...to say “it is a basic principle of criminal law that the...
23.04.09 | |