No, Really. We Have To Get Out of The UN

[Annie]

Lots of links:

http://www.claremont.org/weblog/005192.html

U.N.-Natural Law

Glenn Reynolds alerts us to this U.N. Report which denies that there is such a thing as a right to self-defense in international law.

No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles.​

As Reynolds notes, David Hardy shows the pretzels of logic, or perhaps of illogic, that the U.N. needs to make in order to reach that conclusion. As he notes, the U.N.'s conception of law is simply positivistic, and hence divorced from nature. In other words, it is arbitrary ideology, not law.

People writing reports for the U.N. should consider what the founders of the modern ideas of the law of nations had to say about the subject. Hugo Grotius was quite clear on the subject. Emmerich de Vattel was too:

IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible — what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.​

The U.N. is therefore wrong to say, "primary sources of international law: treaties, customary law, or general principles." Clearly the U.N. has cut international law off from its root.

Of course, as I have noted before the U.N., has grown to be hostile to the natural rights foundation of the United States by its very nature. At the foundation of the U.N.'s understanding of law is an idea that is irreconcilable with the natural rights foundation of the U.S. Hence the U.N. does not grasp the necessity of a natural right to self-defense, a right of inestimable importance to us, and formidable only to those who would be tyrants.

Richard Samuelson | August 31, 2006 | 02:04 PM

 

[musicman]

"No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles."

I don't know that a tyranny has stated its ideology and ultimate goals any more plainly than this since the publication of Mein Kampf. If we remain as deaf and blind to this insanity as the world did to Hitler in the 1930's, we will suffer - and deserve - the same fate, or worse.

 

[Annie]

"No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles."

I don't know that a tyranny has stated its ideology and ultimate goals any more plainly than this since the publication of Mein Kampf. If we remain as deaf and blind to this insanity as the world did to Hitler in the 1930's, we will suffer - and deserve - the same fate, or worse.

Yep, past time to pull out.

 

[musicman]

You must spread some Reputation around before giving it to Kathianne again.

Great find!

 

[jillian]

"No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles."

I don't know that a tyranny has stated its ideology and ultimate goals any more plainly than this since the publication of Mein Kampf. If we remain as deaf and blind to this insanity as the world did to Hitler in the 1930's, we will suffer - and deserve - the same fate, or worse.

Before you arrive at the above conclusion, might I suggest that you look at the underlying Report. Seems this blogger has distorted the underlying meaning.

So here ya go:

The principle of self-defence has an important place in international human rights law, but does not provide an independent, supervening right to small arms possession, nor does it ameliorate the duty of States to use due diligence in regulating civilian possession. Rather, as this report shows, there are wide areas where States should, can, and do regulate possession of firearms consistent with principles of self-defence. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the life of others. It is the basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. International law does not support an international legal obligation requiring States to permit access to a gun for self-defence. The principle of self-defence does not negate the due diligence responsibility of States to keep weapons out of the hands of those most likely to misuse them. The State has particularly acute obligations to protect vulnerable groups, including victims of domestic violence, from abuses with small arms.

Article 51 of the Charter of the United Nations applies to States acting in self-defence against armed attacks against their State sovereignty. It does not apply to situations of self-defence for individual persons.

http://72.14.205.104/search?q=cache...rinciples."&hl=en&gl=us&ct=clnk&cd=1&ie=UTF-8

 

[Annie]

Perhaps, but as noted, some pretty good legal minds beg to differ:

http://armsandthelaw.com/archives/2006/08/un_report_procl.php

UN report proclaims self-defense is not a right
Posted by David Hardy · 30 August 2006 06:40 PM

A report (pdf format) submitted by Barbara Frey, Special Rapporteur, whatever that is, to the UN Human Rights Councils's Sub-Commission on the Promotion and Protection of Human Rights, whatever that is.

Re-reading it, I think the point is that the Special Rapper wants to class self-defense as something less than a "right" (i.e., as a manner of criminal defense) because if it were recognized as a "right" it would be something governments would be bound to guarantee -- and that leads right to Prof. Glenn Harlan Reynold's argument that a right to arms should be guaranteed as an international right. How could governments "guarantee" such a right (in the sense of doing something more than saying "you can plead this as a defense if prosecuted" -- as might be expected the UN document treats "rights" as something more than "the government must leave you alone" -- while outlawing the items a person needs to exercise that right? This leads to the anomaly that the report claims that the right to life is a "right," but the right to keep from having your life taken is not. I suppose it equates to -- you have a "right," however unenforcable, to be protected by government, but not to defend yourself if it fails to do so. As might be expected from the source, the concept of "right" is rather ineptly socialist: rights are what you may ask the government to do for you. (And of course strongly of the legal positivist school: rights are not something that pre-exist government, and any official declaration of them, derived from a deity, morality, or man's nature. Rather, in this view they are created by the document, or government, that acts to write them down. Created, as opposed to guaranteed).

"20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. " [Not quite sure what babble means--More in extended remarks below]

21. No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles. While the right to life is recognized in virtually every major international human rights treaty, the principle of self-defence is expressly recognized in only one, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), article 2. 15 Self-defence, however, is not recognized as a right in the European Convention on Human Rights. According to one commentator, “The function of this provision is simply to remove from the scope of application of article 2 (1) killings necessary to defend against unlawful violence. It does not provide a right that must be secured by the State”. 16

22. Self-defence is broadly recognized in customary international law as a defence to criminal responsibility as shown by State practice. There is not evidence however that States have enacted self-defence as a freestanding right under their domestic laws, nor is there evidence of opinio juris that would compel States to recognize an independent, supervening right to self-defence that they must enforce in the context of their domestic jurisdictions as a supervening right.

23. Similarly, international criminal law sets forth self-defence as a basis for avoiding criminal responsibility, not as an independent right. The International Criminal Tribunal for the Former Yugoslavia noted the universal elements of the principle of self-defence. 17 The International Criminal Tribunal for the Former Yugoslavia noted “that the ‘principle of self-defence’ enshrined in article 31, paragraph 1, of the Rome Statute of the International Criminal Court ‘reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law’”. 18 As the chapeau of article 31 makes clear, self-defence is identified as one of the “grounds for excluding criminal responsibility”. The legal defence defined in article 31, paragraph (d) is for: conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. 19 Thus, international criminal law designates self-defence as a rule to be followed to determine criminal liability, and not as an independent right which States are required to enforce.

24. There is support in the jurisprudence of international human rights bodies for requiring States to recognize and evaluate a plea of self-defence as part of the due process rights of criminal defendants. Some members of the Human Rights Committee have even argued that article 6, paragraph 2, of the International Covenant on Civil and Political Rights requires national courts to consider the personal circumstances of a defendant when sentencing a person to death, including possible claims of self-defence, based on the States Parties’ duty to protect the right to life. 20 Under common law jurisdictions, courts must take into account factual and personal circumstances in sentencing to the death penalty in homicide cases. Similarly, in civil law jurisdictions: “Various aggravating or extenuating circumstances such as self-defence, necessity, distress and mental capacity of the accused need to be considered in reaching criminal conviction/sentence in each case of homicide.” 21

25. Again, the Committee’s interpretation supports the requirement that States recognize self-defence in a criminal law context. Under this interpretation of international human rights law, the State could be required to exonerate a defendant for using firearms under extreme circumstances where it may be necessary and proportional to an imminent threat to life. Even so, none of these authorities enumerate an affirmative international legal obligation upon the State that would require the State to allow a defendant access to a gun.

.......

29. The severe consequences of firearm use therefore necessitate more detailed and stricter guidelines than other means of force. 26 Even when firearm use does not result in death, the injuries caused by firearm shots can be paralyzing, painful, and may immobilize a person for a much longer period of time than would other methods of temporary immobilization. 27 The raining handbook for police on human rights practices and standards produced by the Office of the High Commissioner for Human Rights says that “firearms are to be used only in extreme circumstance”. 28 Any use of a firearm by a law enforcement official outside of the above-mentioned situational context will likely be incompatible with human rights norms.

Bio, from site:

David Hardy

David HardyDavid T. Hardy has practiced law since 1975. He was born in Phoenix to an old-line Arizona family: his great-grandfather was Nat Hickman, a gunslinging outlaw who took the alias of Charles W. Hardy when he fled to the Arizona Territory in 1872. There he married an Indian, and was elected the first JP of Cave Creek, A.T.

Hardy served as Associate Editor of the Arizona Law Review, and was on the moot court team which took first place in the Regional competition and competed at the Nationals in New York City. He was also on the team which won the statewide American College of Trial Lawyers competition for best jury argument.

Since then he has handled cases up to the U.S. Supreme Court, and won a death penalty appeal in the Arizona Supreme Court. From 1982 to 1992 he worked in Washington at the Office of the Solicitor, U.S. Department of the Interior, mostly representing the U.S. Fish and Wildlife Service.

Hardy has five books and thirteen law review articles in print; one of the articles has been cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals.

Reynolds:

http://www.law.utk.edu/FACULTY/facultyreynolds.htm

Glenn Harlan Reynolds

Beauchamp Brogan Distinguished Professor of Law
B.A., 1982, University of Tennessee
J.D., 1985, Yale University

Administrative Law, Constitutional Law, Law, Science and Technology, Space Law, Internet Law

[email protected]

Professor Reynolds is one of the most prolific scholars on the UT faculty. His special interests are law and technology and constitutional law issues, and his work has appeared in a wide variety of publications, including the Columbia Law Review, the Virginia Law Review, the University of Pennsylvania Law Review, the Wisconsin Law Review, the Harvard Journal of Law and Technology, Law and Policy in International Business, Jurimetrics, and the High Technology Law Journal. Professor Reynolds has also written in the New York Times, Washington Post, Washington Times, Los Angeles Times, and Wall Street Journal, as well as other popular publications. He is also a contributing editor to the TechCentralStation.Com website, and writes a regular column for the FoxNews website. He is the co-author of Outer Space: Problems of Law and Policy and The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society. Professor Reynolds has testified before Congressional committees on space law, international trade, and domestic terrorism. He has been executive chairman of the National Space Society and a member of the White House Advisory Panel on Space Policy. A member of the UT faculty since 1989, Professor Reynolds received the Harold C. Warner Outstanding Faculty Scholarship Award in 1991, and the W. Allen Separk Outstanding Faculty Scholarship Award, 1998.

Publications
The articles linked below have been saved in Adobe Portable Document Format (PDF). Information on reading PDF files is available here.

Books:

Co-author, The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).

Co-author, Outer Space: Problems of Law and Policy (Westview Press, 1989) 2nd ed. 1997.

Articles:

Space Law in the 21st Century: Some Thoughts in Reponse to the Bush Administration's Space Initiative, 69 J. Air L. & Com. 413 (2004).

Marbury's Mixed Messages, 71 Tenn. L. Rev. 303 (2004).

Nanotechnology and Regulatory Policy: Three Futures, 17 Harv. J.L. & Tech. 179 (2003).

Constitutional "Incidents": Interpretation in Real Time, 70 Tenn. L. Rev. 281 (2003)(co-author).

Rulings and Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 Ark. L. Rev. 1253 (2003)(co-author).

Gun by Gun, 5 Legal Aff. 19 (2002).

Telling Miller's Tale: A Reply to David Yassky, 65 L. & Contemp. Probs. 113 (2002)(co-author).

Environmental Regulation of Nanotechnology: Some Preliminary Observations, 31 Envir. L. Rep. 10681 (2001).

Guns, Privacy & Revolution, 68 Tenn. L. Rev. 235 (2001).

Co-author, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came? 2000 Wisc. L. Rev. 369.

The Proper Scope of the Copyright and Patent Power, 37 Harv. J. on Legis. 45 (2000).

The Evolving Police Power: Some Observations for a New Century, 27 Hastings Const. L.Q. 511 (2000) (co-author).

Of Dissent and Discretion, 9 Cornell J. L. & Pub. Pol'y 685 (2000).

Thank God for the Lawyers: Some Thoughts on the (Mis)Regulation of Scientific Misconduct," 66 Tenn. L. Rev. 801 (1999).

Co-author, Comfortably Penumbral, 77 Boston U. L. Rev. 1089 (1998).

Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59 (1997) (co-author).

Space Resources, Common Property, and the Collective Action Problem, 6 N.Y.O. Envt. L. Rev. 107 (1997) (co-author).

It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing, 5 Wm & Mary Bill of Rights J. 1 (1996).

Is Democracy Like Sex?, 48 Vand. L. Rev. 1635 (1995).

Co-author, Violence in America: Effective Solutions, 84 J. of Med. Assoc. of Ga. 253 (1995).

Co-author, The Second Amendment and States' Rights: A Thought Experiment, 36 William & Mary L. Rev. 1737 (1995).

A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995).

Co-author, Legal Problems of Nanotechnology: An Overview, 3 S. Cal. Interdisc. L.J. 593 (1995).

The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought, 61 Tenn. L. Rev. 647 (1994).

Penumbral Reasoning on the Right, 140 U. Pa. L. Rev. 1333 (1992).

Taking Advice Seriously: An Immodest Proposal for Reforming the Confirmation Process, 65 S. Cal. L. Rev. 1572 (1992).

International Space Law: Into the Twenty-First Century, 25 Vand. J. Transnat'l L. 225 (1992).

Chaos and the Court, 91 Colum. L. Rev. 110 (1991).

Sex, Lies, and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, 24 Ga. L. Rev. 1045 (1990).

Legislative Comment: The Patents in Space Act, 3 Harv. J.L. & Tech. 13 (1990).

Additional articles in Law & Policy in International Business, UCLA Pac. Bas. L. J., Rutgers Comp. & Tech. L. J., High Tech Law J., Jurimetrics and various other journals. Op Ed pieces, etc., in the Washington Times, Chicago Tribune, Los Angeles Times, Knoxville News-Sentinel, Newsday, and New York Times.

Recent Professional Presentations and Service

"The Future of the Second Amendment," Stanford Law School, April 21, 2001.

"Ethics Reform: A Study in Failure," Yale University Olmstead Symposium on Instilling Ethics, Feb., 1998.

"Why Creationists Always Lose," UT Darwin Day Symposium, Feb., 1998.

"Space Resources, Common Property, and the Collective Action Problem," NYU Law School, April 1997.

"Kids, Guns and the Commerce Clause," Cato Institute, October 1994 (regarding U.S. v. Lopez).

"American Law Governing Commercial Space Launches," 3rd Australian Space Development Conference, Sydney, Australia, September 1994.

Testimony, U.S. House Science Committee, on Commercial Space Issues, October 1993.

Testimony, Senate Finance Committee on "Super 301" Trade Law Provisions, June 1993.

"Is Democracy Like Sex?" University of Cincinnati Law School, April 1993.

Moderator, Tsongas/Sununu Debate, University of Tennessee, October 1992.

"Future Developments in Space Law," Princeton University, October 1991.

Testimony, House Science Subcommittee, on commercial space legislation, July 1991.

"Space Law in the 1990s," Harvard Law School, April 1990.

Guest lecturer, U.S. Air Force Academy, April 1990.

Selected Achievements and Affiliations

W. Allen Separk Outstanding Faculty Scholarship Award, 1998.

Appointed to White House Advisory Committee on National Space Policy, 1992.

Amicus Counsel in Florida Coalition for Peace and Justice v. Bush, 1991 (representing NSS re space nuclear issues).

Harold C. Warner Outstanding Faculty Award, 1991.

Space Pioneer Award, National Space Society, 1991.

Co-counsel, Expendable Launch Vehicles and Launch Services from the People's Republic of China (Section 301 action)(1990).

Chair, executive committee, National Space Society, 1994-95.

Advisory Member, Governor's Juvenile Justice Reform Commission, 1997-99.

Produced CDs by bands including the Defenders of the Faith, Hitch, Mobius Dick, and (remastering) Balboa, Afrigo, and the Nebraska Guitar Militia. Member, American Society of Composers and Performers, National Academy of Recording Arts and Sciences.

Works in Progress

Analyzing Constitutional Incidents

Due Process When Everything is a Crime

Second Amendment Scholarship: A Critical Review

 

[musicman]

Perhaps, but as noted, some pretty good legal minds beg to differ:

http://armsandthelaw.com/archives/2006/08/un_report_procl.php

Thanks, Kathianne. And - I reiterate - the statement,

"No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles."

...is chilling on its face, let alone the tryrannical future implications it contains. The U.N. busies itself trying to obliterate the concept of sovereignty in all cases - large and small.

 

[Mr.Conley]

On a seperate note, I want to thank Kathianne for bringing up that article by Glenn Reynolds. I've actually been searching for a lawyer whose area of expertise includes future technologies and space.

 

[Annie]

On a seperate note, I want to thank Kathianne for bringing up that article by Glenn Reynolds. I've actually been searching for a lawyer whose area of expertise includes future technologies and space.

Definately read his blog, he's constantly linking to nano breakthroughs and space endeavors.

 

[jillian]

Well, I figured I would go check out something of Glen Reynolds that really shouldn't have been that controversial. So I chose the copyright article. He opined the following:

37 Harv. J. on Legis. 45

Harvard Journal on Legislation
Winter, 2000

Essay

*45 THE PROPER SCOPE OF THE COPYRIGHT AND PATENT POWER

Robert Patrick Merges [FNa1]
Glenn Harlan Reynolds [FNaa1]

Copyright © 2000 President and Fellows of Harvard College; Robert Patrick
Merges and Glenn Harlan Reynolds

In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, extending the duration of copyright protection from the life of the author plus fifty years to the life of the author plus seventy years. The constitutionality of this extension has been challenged on First Amendment and other grounds. In this Essay, the authors argue that the language of Article I, Section 8, Clause 8 contains judicially enforceable limits on Congress's power to protect intellectual property and suggest that the 1998 Extension Act exceeds those limits.
Property, these days, is increasingly likely to be intellectual property (IP). As more and more people make their living in the "information economy," intellectual property sounds like a more and more reasonable proposition. As one of our law professors once said, "I used to think that all property was theft--but that was before I had anything worth stealing."
As an increasing amount of society's wealth is tied up in intangible assets, strong, clear property rights can make a good deal of sense. But it is also possible to have too much of a good thing, and our society is in danger of reaching that point. Recent scholarship suggests as much: a growing body of literature details the expansion of particular doctrines, [FN1] the rising burden of IP-related transaction costs, [FN2] or the pressing need for collective *46 institutions to mediate between individual firms and the mushrooming pile of IP rights they must traverse to do business. [FN3]
In this Essay, we approach one part of this problem at the source. We argue that there are limits on Congress's power to create and extend intellectual property interests. Such limits are "internal" in the sense that they are the result of the very same constitutional provision giving rise to Congress's power in the first place, the Copyright and Patent Clause of the Constitution which grants the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [FN4]
We argue that the language of the Copyright and Patent Clause may restrict some of Congress's more far-reaching efforts at promoting intellectual property in recent years, particularly in passing ad hoc extensions of copyrights and patents for the benefit of individual companies. We then suggest some approaches that courts might take in evaluating, and perhaps striking down, congressional actions in this area.
In one sense, there is nothing novel about our approach. From the earliest days of our nation to the present era, courts have repeatedly stressed that Congress's intellectual property powers under the Copyright and Patent Clause are limited. Courts, however, have been somewhat reticent when the question of defining those limits has arisen. We hope to encourage a less deferential approach in the future.

Now, obviously, Congress disagrees with Reynolds and I do believe the Court doesn't quite see things his way. BTW, it's not that difficult to publish when you're in academia. You can say all kinds of stuff so long as you publish. No? Now, I'm not saying he's not a smart or capable guy. He clearly is. But his ESSAY is nothing more than an ESSAY and a surmise. It has no weight and is nothing more than his "opinion" or surmise.

And it doesn't excuse the fact that he distorted the report he was talking about which had nothing to do with the purpose he used it for. So there ya go. But no worries...easier to accept what you choose and ignore the actual report. Me? I'd rather draw my own conclusions as to what it says then have it filtered through someone else's biases.

And forgive me for not attaching a link to the law review article. It's linked to my westlaw account. I made sure it was attributed, though.

 

[Annie]

and again, professional journals are for the purpose of argument, discussion, and elucidation. I believe that is what was going on at both journal sites, no?

 

[Hobbit]

Even if the U.N. isn't saying that self defense isn't a right, per se, they are saying that owning firearms isn't part of that right, and that's a load of crap. If you don't have a firearm, you have to be within 21 feet or facing off against a really bad shot to have a chance. This resolution is just another aim at the 2nd ammendment, which is supposed to guarantee that the American people are, at all times, equipped to dethrone the government, should that government fail in its duties to protect those inalienable rights endowed to us by our creator. The U.N. security council, however, is afraid of privately owned firearms, since their regimes wouldn't last five minutes if their population was half as well armed as America.

 

[Avatar4321]

I dont really care about the original article. But as international law is an area of particular interest of mine I do think that the UN needs to be abolished or significantly reformed.

The idea of self defense in international law is very limited. Basically you can only defend yourself immediately after an attack if you fear danger. Otherwise you have to go to the security council. I dont think its a long term feasible rule.

The problem with it is people seem to think these laws are set (which is rather Ironic since international law is probably the weakest of any type of law). And I think we need to see some of it change or face the same problems we saw prior to world war II.