The Human Right of Self-Defense

Paul Gallant, Joanne Eisen, and I have a new article (PDF) forthcoming in the BYU Journal of Public Law. Here's the abstract:

Does a woman have a human right to resist rape or murder? Do people have a human right to resist tyranny? The United Nations Human Rights Council has said "no"—that international law recognizes no human right of self-defense. To the contrary, the Human Rights Council declares that very severe gun control—more restrictive than even the laws of New York City--is a human right.
Surveying international law from its earliest days to the present, this Article demonstrates that self-defense is a widely-recognized human right which no government and no international body have the authority to abrogate.
The issue is especially important today, as many international advocates of international gun prohibition are using the United Nations to deny and then eliminate the right of self-defense. For example, the General Assembly is creating an "Arms Trade Treaty" which could define arms sales to citizens in the United States as a human rights violation, because American law guarantees the right to use lethal force, when no lesser force will suffice, against a non-homicidal violent felony attack.
The Article analyzes in detail the Founders of international law--the great scholars in the fourteenth through eighteenth centuries who created the system of international law. The Article then looks at the major legal systems which have contributed to international law, such as Greek law, Roman law, Spanish law, Jewish law, Islamic law, Canon law, and Anglo-American law. In addition, the article covers the full scope of contemporary international law sources, including treaties, the United Nations, constitutions from Afghanistan to Zimbabwe, and much more.
The Article shows that international law—particularly its restraints on the conduct of warfare—is founded on the personal right of self-defense.
As always, thoughtful comments are welcome. You don't have to read all 119 pages in order to comment, but you do need to read enough to be able to offer a comment about the article itself, rather than abstract thoughts about the gun issue in general.

gattsuru (mail) (www):
Wow. Lotsa text. Is citation 556 supposed to end with "At ." ?

At least from what I could glean from a quick once-over, very well researched and relatively intellectually self-coherent. I'm not sure how useful it is, particularly when most of the constitutional complaints will be countered by a simple cry of "compelling state interest", but it's good to have the legal methods down.
4.30.2007 4:02pm
logicnazi (mail) (www):
It does seem fairly impressive and from my brief glance over it does seem that you've pretty clearly illustrated that at one point a great many (all?) of the traditions that international law ultimately derives from did recognize a right to self defense. However, I have two major doubts about the overall coherency of your attack on the claim that their is no human right to self defense.

1) It wasn't totally clear to me that the statement the Frey report made is in conflict with your own claim. In particular he seems to be making a much more restricted claim about the direct sources (treaties, international agreements and explicit statements of general principles). I'm not so sure I see the significance of pointing out that ultimately all these various legal traditions/theorizers recognized a right to self defense at one point (more on this below).

2) Your argument on the european convention on human rights is uncompelling. You admit that the convention does not explicitly grant a right to self-defense but suggest that such a right is implicit in the guarantee that people will not be deprived of life the same way a right to food, air or water is implicit. You are even willing to grant that if a government perfectly provided these goods to it's citizens it might prohibit private farming and similarly if it provided perfect police protection it might forbid guns without violating this treaty. However, this reasoning either leads to ridiculous conclusions or requires you to assume the central point the Frey report rejects: that allowing people to own guns for self-defense saves more lives than it costs.

I mean do you believe there is a fundamental human right to receive experimental medicines? Even when allowing people to receive this medicines would undermine vital research which would save more people in the future? What about a right not to be drafted into an army in time of war? What about using poison gas or a biological agent to protect one's home (scare burglars off in the later case)? I could keep going but it seems in general this convention is not meant to label any law that may cause some people to die who otherwise would not have but saves more lives than it costs as a violation of human rights.

3) Ultimately I'm not convinced I even see the relevance of most of these things to the debate. In particular it seems that there are two plausible theories of international human rights that are on the table and most of what you say goes to neither of them.

A) Human rights are really inalienable natural rights that objectively exist. This is the reasoning that most of your legal scholars rely on if it is false then I fail to see the relevance of their opinions. Yet, if true then what other people believed in the past isn't that relevant. The question would then be to tease out the true inherent rights not what people thought they were in the past.

To take a deliberately extreme example we don't think that slavery/serfdom isn't a violation of human rights merely because most ancient legal traditions recognized it as valid.

B) Alternatively one could take the line that international human rights are things that are created entirely by international assent and agreement. In this more practical notion of human rights it is unclear why past sources of law or international law scholars should make any difference. If this was really the point of view one took only those things explicitly written down in widely signed international treaties and clear deductions from them would be relevant.

[DK: All very legitimate questions. If you get a chance to read the paper in more depth, you'll see that the paper addresses these issues--or at least tries to.]
4.30.2007 6:09pm
International law in particular does tend to change remarkably depdending on who does the survey...
4.30.2007 7:48pm
Russ (mail):
Is this the same Human Rights Commission that kicked off the US, but kept Cuba and Iran on?

Yeah, their credibility is really high right now.
4.30.2007 8:12pm
Showing that various legal traditions come down on the side of a right to self-defense is all fine and dandy, but in the end that's nothing more than small consolation when the present-day heirs to many of those legal traditions - the governments of present-day Europe - are bound and determined not only to ignore, but to dismantle those selfsame legal traditions in favor of a pan-European model cut from whole, statist cloth. If this is where Ms. Frey is coming from, there's no mystery to her stance at all.
4.30.2007 8:56pm
Chris Bell (mail):
I must agree with logicnazi's point #1.

The United Nations Human Rights Council has said "no"—that international law recognizes no human right of self-defense.
This sentence seems waaaay overblown. The Frey report says nothing like that. At most it calls for regulating arms ownership; I don't even understnad it to outlaw gun ownership - just regulate it.

Do you really think that gun laws (say, in Engalnd) violate the preemptory norm of self-defense? Should they be struck down by an international court?

[DK: The article describes international human rights law, based on the standard sources of international law. The article does not discuss the issue of whether the human right of self-defense should be considered a jus cogens that would legally negate contrary municipal statutes, or, if it were a jus cogens, how that jus cogens would apply to gun laws. The article does, however, criticize Frey's implausible assertion that her proposed gun control system is a jus cogens. As for your reading of the Frey Report, and the HRC's adoption thereof, the report, which is quoted at length in my article, is quite explicit that self-defense is not a human right.]
4.30.2007 9:41pm
Antonio Manetti (mail):
I'm not a lawyer, but I always thought that a right to self defense dealt with the right to take action in defense of one's life. While no tradition denies that right, don't most ethical and legal traditions also require that the means be commensurate with the ends?

[DK: Yes, most do, as the article details extensively.]
4.30.2007 9:54pm
R. Richard Schweitzer (mail):
After a quick scan of the proposed analysis of the Frey Report the underlying fallacy of it all rests on the continuing attempts to "construct" or "fabricate" a larger social order.

That is a much larger issue than "Law," or current views of "Rights" or "Obligations."
4.30.2007 10:25pm
PDXLawyer (mail):
I read all 119 pages, and was convinced (though I was predisposed to being convinced) that self-defense is a human right.

But the argument in practical terms may come down to whether one views governments' roles in human rights as being basically positive or basically negative. If I have a "right to life" does that mean that the government has a duty to protect me from being killed, or a duty to refrain from killing me itself? US Constitutional tradition is almost solely in terms of negative rights. For example, the "right to bear arms" has never been seen as implying that the government must give me a gun.

On the other hand, it seems that most people in the US, and certainly outside the US, look at substantive rights as being mostly positive. For example, in freedom of religion, it seems approipriate in the US for the government to protect that freedom by protecting me from religious discrimination by my fellow citizens. The positive rights view, I think, tends to lead one to a state-dominated society. Those, like me, with libertarian leanings, don't see an overly strong state as a good thing, but this is a distinctly minority view in the US, and seem even less popular outside the US.

Another way to look at it is whether one sees the basic goal of law as being to restrain state actors (a minority view) or to empower them (the majority view). Under the majority view, "self-defense" as a right is an incoherent concept, because rights are things a government gives to its citizens, and you can't give people self-defense. To the extent self-defense is necessary, that shows that police protection (which is a positive right) has failed.

Prior to 1945, the idea of positive rights in international law was incoherent, because nobody could identify an international government which had the obligation to provide for these rights. When Puffendorf tried to analyze the rights of two ships in interntional waters, it was understood that no sovereign wiht authority over both had the ability to intevene. Since 1945, one could see the UN, or the EU and its predecessors, as budding international governments, which makes positive international law rights at least possible in theory. Practice falls far short, but of course, theory usually precedes practice in legal advances.

Although I don't *agree* with Frey, I do see where she is coming from. Frey, and most people, see the US idea of negative rights as being essentially passe. Something which was a necessary stage in legal development, but which is now becoming obsolete with the rise of more powerful and effective states. Citing Enlightenment legal scholars to Frey is about as convincing as citing Adam Smith to a Marxist - he might have been OK in his day, but we've advanced beyond that now.

I believe that negative rights governments are more stable and more productive of happiness in practice than are positive rights societies. But, this is like a capitalist asserting in 1950 that capitalist societies are better for the working class than communist societies - if you don't already share this view it seems illogical and you're unlikely to be convinced.
4.30.2007 11:27pm
Karridine (mail) (www):
Baha'u'llah, 19th century Persian nobleman and lifelong exile/prisoner, recognized by millions as the Promised One of the preceding 6,000 years of prophecy of all the preceding religions, states explicitly in His Writings that humans DO have a right to protect themselves, in the discrete and in the aggregate.
5.1.2007 2:15am
Bill Poser (mail) (www):
It is always wise to remember that the United Nations is an organization of states. Whenever an issue pits individuals against the state or minorities against the state, even in the absence of the hypocritical corruption exhibited by the Human Rights Council, the UN is likely to defend the rights of the state.
5.1.2007 4:38am
gasman (mail):
Gotta wonder about the abstract. It is not a simple summary of the contents, arguments to be laid out and conclusions that the article will attempt to support. Rather it is inflammatory rhetoric that plays on (unwarranted?)sympathies for historically vulnerable groups (women).

Anyway. The whole UN thing about the use of self defense goes against the core of belief of where governments derive their power. This country was founded on a government deriving power from the consent of the governed. Thus, the government could not abrogate its duty to regulate arms if indeed no or minimal regulation was teh will of the governed.
The UN view of government takes a more historical perspective on european government being in itself a body granted powers and responsibilities from some unseen force other than from the governed themselves. It might be fine for a belgian to abdicate all personal responsibility for his own safety to his government, but it isn't the way here yet.
5.1.2007 2:24pm
Cassese is commendably forthright in expressing the implications of his theory,
and the applications are quite straightforward: The German Jews had no right of selfdefense
against Hitler's genocide (since the Nazi government was not an "occupying
power" and since the Jews were of the same racial group, Caucasian, as their persecutors,
although they were of different ethnicity and religion). Similarly the Cambodians had no
right to resist the genocide of the native Pol Pot regime (which was not based on race).
If a government encourages rape (such as by allowing rape charges to be brought
only if there are four male witnesses), the woman has no inherent right of self-defense
against a rapist.
If a government—such as the government of Rwanda—incites and directs the
genocide of an ethnic group—the victims have no right to resist, as long as the victims
are of the same race as the genocidaires.

Does he make these examples explicitly? I have to say, I am shocked, if so.
5.1.2007 4:03pm
Chris Bell (mail):
The font of footnote 50 (above the line) is strange.

I reread the article, looked more carefully at the footnotes, and I still say that you are mischaracterizing Frey's position to create a straw man.

You responded to my last comment and stated that
the report, which is quoted at length in my article, is quite explicit that self-defense is not a human right.
The first page of the Report states
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.
That sounds like she accepts the principle of self-defense to me.

As another example, you state near footnote 49 that
Frey specifically cites, and rejects, an article arguing that there is a human right of self-defense against genocide.
I read that and thought Wow! This crazy UN lady thinks genocide victims should lay there and take it!

Then I read her report. She rejects the idea that
the principle of self-defence provides legal support for a "right" to possess small arms thus negating or substantially minimizing the duty of States to regulate possession.
She cites your paper (about using guns to prevent genocide) for the assertion that she is rejecting, but this seems to me to be completely different from rejecting "the human right of self-defense against genocide." Nowhere in the paper does she say that there is no right to use self-defense to save your own life.

These are just examples, but I felt this to be the underlying flaw of the paper. You're missing her real argument - that claims of "I need a gun for self-defense" cannot be used to override the state's responsibility to regulate who has guns and what type of guns they have. That's too bad, because a paper attacking THAT could be really interesting.

That's my opinion. I predict disagreement, so please just take it for what it is worth. Hope it helps.
5.1.2007 5:10pm
markm (mail):
Chris: A "right to self-defense" is meaningless unless one can possess the means of self-defense. 90% of women aren't going to win a fistfight with a man.
5.2.2007 9:54pm
Chris Bell (mail):

That might be an interesting argument, but it's not the one made in the paper. The paper goes on and on about the existence of the right to self-defense, which Frey - properly understood - never questioned.

I didn't even understand the Frey report to say people couldn't have guns! As it states in the summary:
Minimum effective measures that States must adopt to comply with their due diligence obligations to prevent small arms violence must go beyond mere criminalization of acts of armed violence. States must also enforce a minimum licensing requirement designed to keep small arms out of the hands of persons who are most likely to misuse them.
5.3.2007 7:46pm