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The Human Right of Self-Defense, 22 BYU J Brigham Young University Journal of Public Law Volume 22 | Issue 1 Article 3 7-1-2007 The umH an Right of Self-Defense David B. Kopel Paul Gallant Joanne D. Eisen Follow this and additional works at: https://digitalcommons.law.byu.edu/jpl Part of the Criminal Law Commons, Human Rights Law Commons, and the Second Amendment Commons Recommended Citation David B. Kopel, Paul Gallant, and Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU J. Pub. L. 43 (2007). Available at: https://digitalcommons.law.byu.edu/jpl/vol22/iss1/3 This Article is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Brigham Young University Journal of Public Law by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 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-op02- weapons_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.”). 43 44 BYU JOURNAL OF PUBLIC LAW [Volume 22 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 well- established 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 subsidized the proponents of an October 2005 national gun confiscation referendum in Brazil.8 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 6. See U.N. Human Rights Council, Sub-Comm’n on the Promotion and Prot. of Human Rights, 58th Sess., Adoption of the Report on the Fifty-eighth Session to the Human Rights Council, U.N. Doc. A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006), available at http://hrp.cla.umn.edu/documents/ A.HRC.Sub.1.58.L.11.Add.1.pdf. [hereinafter U.N. Human Rights Council]. 7. See, e.g., David B. Kopel, Paul Gallant & Joanne D. Eisen, Micro-disarmament: The Consequences for Public Safety and Human Rights, 73 UMKC L. REV. 969 (2005) (describing efforts to confiscate guns from citizens in Cambodia, Albania, Mali, and other nations). 8. See UNESCO, International Programme for the Development of Cooperation, New Projects Approved 2005: Part III: Latin American and the Caribbean (UNESCO headquarters: Paris, Mar. 7–9, 2005), at 13–18, available at http://portal.unesco.org/ci/en/files/18699/ 11134898021Latin_America_and_Caribbean_2005__new_projects_approved_.pdf/Latin+America+ and+Caribbean+2005++new+projects+approved+.pdf (UNESCO grant to the Brazilian gun prohibition lobby Viva Rio, to promote women’s participation in the gun confiscation referendum); UN highlights Brazil gun crisis, BBC NEWS, June 27, 2005, available at http://news.bbc.co.uk/2/hi/ americas/4628813.stm (“The UN has urged lawmakers to approve plans for a referendum in October on whether to ban the sale of firearms . The UN and disarmament groups are using shocking statistics to put pressure on Brazil’s parliamentarians.”); Cf. Tip of the Hat, SMALL ARMS & HUMAN SEC. BULL., Oct. 2004, at 7 (UNESCO awarded a prize to the Brazilian gun prohibition lobby Viva Rio for a campaign to urge Brazilians to voluntarily surrender their guns to the government), available at http://www.iansa.org/documents/2005/Bul4English.pdf. The referendum was defeated. See Brazilians Reject Gun Sales Ban, BBC NEWS, Oct. 24, 2005. Rubem Fernandes, the head of Viva Rio, explained what he had learned from the experience: “First lesson is, don’t trust direct democracy.” Rebum Fernandes, Lessons From the Brazilian Referendum, Remarks to the World Council of Churches, (Jan. 17, 2006) in WAYNE LAPIERRE, THE GLOBAL WAR ON YOUR GUNS 187 (2006). He also noted that the argument “I have a right to own a gun” became “a very profound matter” in the debate on the referendum. Id. Fernandes was speaking at PrepCom 2006, a UN-sponsored meeting to prepare participants for the major UN gun control conference in June–July 2006. Side Events, Prepcom 2006 (Preparatory Committee for the Conference to Review Progress in the Implementation of the Programme of Action to Prevent, Combat, and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects), United Nations, Jan. 9–20, 2006, available at http://www.un.org/events/smallarms2006/prepcom/side- events.html. 43] THE HUMAN RIGHT OF SELF-DEFENSE 45 governments are required to enforce immediately. 9 The full Human Rights Council is expected to take up the issue and promulgate similar orders.10 The declaration implements a report for the HRC prepared by Special Rapporteur Barbara Frey.11 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. For example, a person in New York City who obtains a permit to possess a shotgun may use that shotgun for a variety of purposes (e.g., collecting, shooting clay pigeons, bird hunting, or home-defense), whereas the UN and Frey would require that a license enumerate “specific purposes” for which a gun could be used.12 In addition, every jurisdiction in the United States is in violation of present human rights law (according to the UN) in that state laws allow law enforcement officials to use deadly force (e.g., a handgun) to prevent the commission of certain crimes (such as rape or sexual assault on a child) even when the law enforcement officer has no reason to believe that the victim might be killed or seriously injured.13 The anti-self-defense and anti-firearms ownership mandates from the United Nations are unlikely to be directly adopted as law by Congress or by state legislatures in the United States. Nevertheless, there are a variety of ways, discussed infra, in which purported international law mandates can be imposed on American citizens without legislative consent.14 Part II of this Article sets forth the basic claims about human rights and firearms made by the United Nations and by international gun prohibition activists. Part III details the report on gun control, self- defense, and human rights prepared by the United Nations Special 9.
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