The Human Right of Self Defense
Material received via email in response to "The Enemy Within" article by Kirby Ferris
Just in case anyone is interested, our paper "The Human Right of Self Defense" gives a good discussion of Barbara Frey and her "ideas" (and hence the UN’s) about self-defense.
"The Human Right of Self-Defense,"* David B. Kopel, Paul Gallant &Joanne D. Eisen, 22 /BYU Journal of Public Law/ (Number 1, Fall 2007).
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. The UN and allied NGOs further declare that insufficiently restrictive firearms laws are themselves a human rights violation, so all governments must sharply restrict citizen firearms possession.
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. A subcommission of the United Nations Human Rights Council (HRC) has declared that there is no human right to personal self-defense and that extremely strict gun control is a human right which all governments are required to enforce immediately.
The full Human Rights Council is expected to take up the issue and promulgate similar orders. The declaration implements a report for the HRC prepared by Special Rapporteur Barbara Frey. According to the Frey standard adopted by the United Nations, even the most restrictive gun laws in the United States, such as those in Washington, D.C., or New York City, are violations of current human rights law, because they are insufficiently stringent.
This Article investigates the legal status of self-defense by examining a broad variety of sources of international law. Surveying international law from its earliest days to the present, 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.
Based on those sources, the Article suggests that personal self-defense is a well-established human right under international law and is an important foundation of international law itself. Finally, this Article demonstrates that self-defense is a widely-recognized human right which no government and no international body have the authority to abrogate. PDF.
See also:
"The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators."* David B. Kopel, Paul Gallant, and Joanne D. Eisen. Paper presented at the Annual Meeting of the Research Committee on Sociology of Law, July 8, 2009. Oñati International Institute for the Sociology of Law. Antigua Universidad del Pais Vasco, Oñati, Gipuzkoa, Spain. (Final paper in-press, at Penn State Law Review. Winter 2010 edition.) PDF. * *