The Human Right of Self-Defense
David B. Kopel,1 Paul Gallant2 & Joanne D. Eisen3 I. INTRODUCTION “Any law, international or municipal, which prohibits recourse to force, is necessarily limited by the right of self-defense.”4 Is there a human right to defend oneself against a violent attacker? Is there an individual right to arms under international law? Conversely, are governments guilty of human rights violations if they do not enact strict gun control laws? The United Nations and some non-governmental organizations have declared that there is no human right to self-defense or to the possession of defensive arms.5 The UN and allied NGOs further declare that 1. Research Director, Independence Institute, Golden, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C., http://www.davekopel.org. Author of The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? (1992). Coauthor of Gun Control and Gun Rights (2002). French, Spanish, and Portuguese translations of national constitutions and of English decisions written in Law French are by Kopel. 2. Senior Fellow, Independence Institute, Golden Colorado. http://www.independenceinstitute.org. 3. Senior Fellow, Independence Institute, Golden, Colorado. Coauthor (with Kopel and Gallant) of numerous articles on international gun policy in publications such as the Notre Dame Law Review, Journal of Law, Economics & Policy, Texas Review of Law and Politics, Engage, UMKC Law Review, and Brown Journal of World Affairs. We would like to thank Peter Allen for editing assistance; Tyler Martinez, John Pate for research assistance; Dr. Rob S. Rice (ccat.sas.upenn.edu/rrice/rrice.html) and Prof. Michael Hendy (www.curculio.org) for help with Latin and Italian (Hendry) translations and other assistance with pre-modern sources; and Dr. Jeanine Baker for statistical assistance. The authors are solely responsible for any errors. 4. In re Hirota and Others, 15 ANN. DIG. & REP. OF PUB. INT’L L. CASES 356, 364 (Int’l Mil.. Trib. for the Far East, 1948) (no. 118, Tokyo trial) (also stating that under the Kellogg-Briand Pact, a state is the initial judge of the necessity of self-defense against an impending attack, but not the final judge); see also YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENSE 181 (2d ed. 1994) (“This postulate [from Hirota] may have always been true in regard to domestic law, and it is currently accurate also in respect of international law . . . . [T]he right of self-defence will never be abolished in the relations between flesh-and-blood human beings . . . . “). 5. See infra text accompanying notes 6, 15 and Parts II–III; see also Sami Faltas, Glenn McDonald. & Camilla Waszink, Removing Small Arms from Society: A Review of Weapons Collection and Destruction Programmes, Occasional Paper No. 2 (Geneva, Small Arms Survey), at 8, available at http://www.smallarmssurvey.org/files/sas/publications/o_papers_pdf/2001-op02weapons_collection.pdf (last visited Nov. 4, 2007) (stating that “when successful, practical disarmament will tend to reinforce the state’s monopoly of force [and] must therefore be accompanied by safeguards against the abuse of this monopoly.”).
BYU JOURNAL OF PUBLIC LAW
insufficiently restrictive firearms laws are themselves a human rights violation, so all governments must sharply restrict citiz en firearms possession.6 This Article investigates the legal status of self-defense by examining a broad variety of sources of international law. Based on those sources, the Article suggests that personal self-defense is a wellestablished human right under international law and is an important foundation of international law itself. Since the 1990s, the United Nations has been focusing increasing attention on international firearms control. UN-backed programs have promoted and funded the surrender and confiscation of citizen firearms in nations around the world.7 The United Nations...
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