Modern Self-Defense: The Use of Force Against Non-Military Threats

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José Luis Aragón Cardiel, Amanda Davis, & Lauranne Macherel each earned their LL.M. from Columbia Law School in 2016 and are international law practitioners. This article is a revised version of a paper initially prepared in a Columbia Law School seminar entitled “International Lawyering for Governments” under the instruction of Professor Sarah Cleveland.

As conventionally understood, a State cannot use self-defense to justify the response to non-military threats because they do not constitute “armed attacks.” Humanitarian intervention conceives the use of force to respond to humanitarian suffering, but it is not an independent legal basis for the use of force without Security Council authorization. However, a State cannot be expected to stand by in the face of an overwhelming danger, whether military or not, threatening to storm into its territory and destroy its population or property. This would seem inconsistent with fundamental norms of sovereignty and integrity.” Thus, this Article explores whether a use of force in such cases could be justified on the basis of a-cautiously-broad interpretation of Article 51 of the U.N. Charter, the doctrine of humanitarian intervention or other “strands of legal argument,” such as international obligations outlawing genocide, torture, and the use of chemical weapons, or the doctrine of necessity. This Article argues that the use of military force in self-defense could be justified in response to a threat that is non-military in nature if (i) the Security Council has failed to act; (ii) the potential scale and effects of the non-military threat are equivalent to those of an “armed attack” in the traditional sense; (iii) the territorial State from which the threat emanates is unwilling or unable to eliminate the threat; (iv) the territorial State has a specific obligation vis-A-vis the State in jeopardy to eliminate the threat; and (v) the use of force is subject to the parameters of necessity, proportionality, and immediacy. However, humanitarian intervention is a better “fit” than self-defense in justifying the use of force to address a humanitarian situation produced by a non-military threat. A military intervention can be better explained as a State intervening to address humanitarian suffering than by attempting to characterize a non-military occurrence as an armed attack justifying the use of force in self-defense. Humanitarian intervention is not currently accepted by States as an independent legal basis for using force, but this Article outlines State practice and arguments that could support its use.

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Introducing a “New” Human Right: Learning From Others, Bringing Legal Capacity Home

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Kristin Booth Glen is University Professor and Dean Emerita, CUNY School of Law; Director, Supported Decision Making New York (SDMNY); Surrogate, New York County (Ret.).

The human right of legal capacity, most recently enunciated in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), potentially transforms the way we see, understand, and treat people with a wide range of intellectual, developmental, and cognitive disabilities. This Article considers how the human right of legal capacity, specifically for persons with disabilities, can be incorporated into legal discourse and practice in the United States. It recognizes the many challenges such an endeavor confronts. As well, it notes opportunities to enhance and improve the dignity, autonomy, and self-determination of persons who are routinely deprived of the right, most commonly through systems of substituted decision-making, like guardianship and conservatorship, or, in the case of persons with psychosocial disabilities, forced treatment or confinement.

This Article also looks at the ways in which legal capacity and the corresponding practice of supported decision-making (SDM) have been introduced in countries around the world and draws on those countries’ experiences. Some countries have focused exclusively on legislative reform; others have utilized pilot projects demonstrating that protecting legal capacity through the use of SDM can constitute an effective and rights-enhancing alternative to guardianship. Incorporating references to some of these efforts in Europe, Africa, and Australia, this Article focuses on two of the longest-standing and most-developed efforts—those in Canada and Bulgaria—for lessons that might be learned. It considers efforts in the United States, which have, thus far, concentrated on SDM to the exclusion of the specific right of legal capacity. This Article concludes with some observations about what it will take to bring this critical human right “home.”

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Cultural Heritage Protection and Sacred Spaces: Considering Alternative Approaches from Within the Human Rights Framework

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Leonard Hammer (B.A., J.D., LL.M., Ph.D) lectures at Hebrew University, Israel, and the University of Arizona, United States.

In many respects, the international system fails to protect cultural heritage. Both in times of warfare and civil strife and in times of peace, existing avenues for cultural heritage protection do not always succeed at preserving important cultural heritage sites. Even when the international community seeks to protect cultural heritage through judicial oversight, the effort is usually ex post facto and thus too late to actually preserve the destroyed cultural heritage. Challenges to cultural heritage protection are exacerbated considering that sacred spaces might not solely be a focus for preservation, but also include notions of use and protection given the spiritual significance of the site itself. Sacred space protection not only aims to preserve cultural property for the welfare of humankind writ large, but also considers the use of such space for religious practices or pilgrimages and seeks to ensure the preservation of a holy site on behalf of a particular group given its spiritual connection to a space. The unique nature of sacred space further suggests that it merits some form of international protection beyond what is available under the current cultural heritage regime. This Article will analyze potential sources for sacred space protection under the cultural heritage protection regime, noting some of the problems created by the current framework and the challenges they present for sacred space protection. The Article will then offer a potential source for protection of sacred spaces based on the international human right to freedom of religion or belief, pursuant to the current interpretation accorded to the right. Previous attempts to use the freedom of religion to protect sacred space have relied on the right when the use of the sacred space is part of a mandated and necessarily manifested religious act or when the sacred site is used by indigenous peoples. The interpretation of the right to freedom of religion or belief in this Article embraces an emerging group approach that includes indigenous people and centers on defining the contours of a belief. It also reflects broader understandings emerging in international human rights bodies and tribunals. The Article also will incorporate into its analysis a social constructivist approach to human rights, whereby the socialization process of human rights may encourage reliance on the human right to freedom of religion or belief as a potential ground for long-term sacred space protection. Reliance on freedom of religion, as opposed to cultural heritage protection, provides a relevant and conceptually-aligned basis for sacred space protection that better encapsulates the interests and meaning of necessary protection.

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Consenting to Dispossession: The Problematic Heritage and Complex Future of Consultation and Consent of Indigenous Peoples

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Marina Brilman is a visiting fellow at the London School of Economics and Political Science, Latin America and Caribbean Centre. Ph.D. (London School of Economics and Political Science), LL.M. (University College London), Master of Laws (University of Leiden).

Consultation and consent of indigenous and tribal peoples are matters of human rights law that have given rise recently to a convoluted array of recommendations, regulations, legislation, and judgments of national and international institutions. Regardless of different understandings, the concepts of consultation and consent are usually understood as progressive and indicative of the crossing of an imaginary threshold between epochs. This Article is animated by the idea that, apart from the legal, social, and procedural complexities of design and implementation, the notions of consultation and consent are inherently problematic, thus compromising their progressive potential. This intuition is arguably present in most discussions on consent and consultation, but often remains implicit so as not to jeopardize proceedings or undermine the progressive character of the notions themselves. Since colonial times, these concepts have been employed in different ways. This Article argues that current vocabularies of consultation and consent may reinforce and “buy into” a problematic heritage that needs to be unearthed, made explicit, and amplified. If ignored, this heritage may come back to haunt the rules and procedures so meticulously developed. Consultation and consent are not prohibitive or preventive notions that necessarily deter harmful activities of states and companies. Rather, they are enabling and permissive notions that make such activities possible and give them apparent validity. In other words, consultation and consent present the perfect justification for the dispossession of indigenous peoples, rather than allowing for their recognition and empowerment. This Article does not offer a solution or redefinition that salvages these notions as unequivocally positive and progressive. This is impossible since consultation and consent already implicate both a legitimation of-and a resistance to-inequality. There are, of course, positive aspects to consultation and consent. For example, they play an important role in advocacy for indigenous peoples’ rights. However, anyone using the terms consultation and consent, whether to advance such rights or other interests, should be conscious of the historical, conceptual, and practical difficulties-difficulties that may be “imported” into any domain of application by their mere use.

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Remarks by Illinois Attorney General Lisa Madigan

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Lisa Madigan served as Attorney General of the U.S. state of Illinois from 2003 to 2019, being the first woman to hold that position.

On May 19, 2017, Illinois Attorney General Lisa Madigan offered the introductory keynote remarks at the Bringing Human Rights Home Lawyers’ Network Annual Human Rights in the U.S. Symposium, entitled Localizing Human Rights in the New Era: Strategies for State and Local Implementation of Human Rights in the United States. The following is adapted from her remarks.

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The Local Turn in U.S. Human Rights: Introduction to the Special Symposium Issue

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Risa E. Kaufman is the Director of U.S. Human Rights at the Center for Reproductive Rights. From 2008 to 2017, she was the Executive Director of the Columbia Law School Human Rights Institute.

JoAnn Kamuf Ward is the Director of the Columbia Law School Human Rights Institute’s Human Rights in the U.S. Project.

Human rights in the United States are at an inflection point, and the orientation is local. In the wake of the 2016 presidential election and renewed threats to human rights and democratic institutions, state and local officials and human rights advocates are working locally to resist harmful federal policies and to fill the gaps in federal civil rights enforcement. Indeed, safeguarding and securing human rights at the local level has more urgency than ever. Near daily protests and demonstrations, which consistently invoke human rights language and framing, illustrate the breadth of rights at stake.1 Human rights were front and center at the women’s marches that erupted across the country in January of 2017. Black Lives Matter and the Movement for Black Lives have embedded human rights into their approaches. And recent efforts to repeal the Affordable Care Act (ACA) have sparked public support for healthcare as a human right across the United States.

As rights protections are increasingly threatened, many states and local governments are stepping in, often echoing support for human rights. For example, Minneapolis Mayor Betsy Hodges grounded her call to reject the repeal of the ACA in human rights, stating that it “is immoral that anyone in America would be without affordable access to healthcare, which is [one of] the most basic of human rights.” The National League of Cities has noted the negative human rights implications of state laws that preempt these progressive local policies.

Of course, state and local governments have long played an important role in bringing the United States into compliance with its international human rights commitments. But in recent years, the role of local governments has taken on greater significance, as an increasing number of state, city, county, and municipal level officials embrace a proactive human rights approach, develop new tools and techniques to address local problems, and influence local, state, and national policy. Lawyers and advocates, too, are initiating, encouraging, and promoting innovative efforts to “bring human rights home.” This special issue of the Columbia Human Rights Law Review explores the localization of human rights in greater depth.

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