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電子書籍詳細


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国際法における個人の自衛権

Human Rights and Personal Self-Defense in International Law

Hessbruegge, Jan Arno

Oxford University Press 2016/12
304p.
出版国: US
ISBN: 9780190655020
eISBN: 9780190655044
KNPID: EY00122658
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Full Description

While an abundance of literature covers the right of states to defend themselves against external aggression, this is the first book dedicated to the right to personal self-defense in international law. Drawing on his extensive experience as a human rights practitioner and scholar, Dr. Hessbruegge sets out in careful detail the strict requirements that human rights impose on defensive force by law enforcement authorities, especially police killings in self-defense. The book also discusses the exceptional application of the right to personal self-defense in military-led operations, notably to contain violent civilians who do not directly participate in hostilities.Human rights also establish parameters on how broad or narrow the laws can be drawn on self-defense between private persons. Setting out the prevailing international standards, the book critically examines the ongoing trend to excessively broaden self-defense laws. It also refutes the claim that there is a human right to possess firearms for self-defense purposes.In extraordinary circumstances, the right to personal self-defence sharpens human rights and allows people to defend themselves against the state. Here the author establishes that international law gives individuals the right to forcibly resist human rights violations that pose a serious risk of significant and irreparable harm. At the same time, he calls into question prevailing state practice, which fails to recognize any collective right to organized armed resistance even when it constitutes the last resort to defend against genocide or other mass atrocities.

Table of Contents

AcknowledgmentsChapter 1: IntroductionA. Summary of the argumentB. Delineation of the topic: What is personal self-defense?I. Distinction of self-defense from other concepts of self-helpII. Distinction between personal and interstate self-defenseC. Methodology and sourcesI. Reliance on universal and regional jurisprudenceII. Transposition of jurisprudence from other disciplines of international lawIII. Consideration of arguments from domestic jurisprudenceChapter 2: The right to personal self-defense as a general principle of lawA. No treaty provisions establishing a right to personal self-defenseB. No recognition under customary international lawC. General principles according to Article 38 (1) (c) ICJ StatuteI. Formation of general principlesII. Functions of general principlesD. The right to self-defense as a principle of natural lawI. Personal self-defense: a shared principle across cultural and religious traditionsII. Inherent moral justification of self-defenseE. The right to self-defense as a general principle derived from domestic lawI. Common classification as a right and justificationII. Comparable requirements of applicationF. Transposition of the personal self-defense principle into international lawI. International humanitarian lawII. International criminal lawIII. The law of the seaIV. The law of diplomatic relationsG. Conclusion: A universally recognized right, but no unlimited license for violenceChapter 3: A human right to self-defense?A. Positions in the academic literatureB. Lack of state recognition of a human right to self-defenseI. No recognition of a human right in international treaties or resolutionsII. Insufficient national legislative practice supporting a human rightC. Conceptual differences between the right to self-defense and human rightsI. Inalienable nature as a commonalityII. Auxiliary and relational nature of the right to self-defenseIII. No specific aim of curbing state power and abusesIV. Neutrality of the right to self-defense on the nature of the stateD. Conclusion: Right sui generis, not human rightChapter 4: Defensive force by law enforcement agentsA. Self-defense as a justified limitation of the rights to life and physical securityI. Recognition in universal and regional human rights lawII. Defensive force as a state obligationIII. Self-defense as the sole peacetime justification of deliberately lethal forceB. Formal requirement: Sufficient basis for the use of force in domestic lawI. Minimum specificationsII. PublicityIII. Parliamentary prerogative to regulate lethal forceC. Substantive requirements for self-defense as a ground of justificationI. Unlawful attack against protected individual interestsII. Immediacy of defensive actionIII. Necessity of defensive actionIV. Proportionality of defensive actionV. Defensive IntentD. Burden of Proof and evaluation of evidenceE. Post-action duties of care, accountability and remedyI. Medical care and psychosocial supportII. Duty to investigate incidents involving use of firearms and other forceIII. Duty to prosecute perpetrators of excessive forceIV. Duties to provide compensation and, exceptionally, to make amendsF. Conclusion: A deep, but narrow justification for the use of force in law enforcementChapter 5: Personal self-defense in military-led operationsA. Exceptional relevance of the personal self-defense principle in armed conflictI. Riots, violent demonstrations and opportunistic banditryII. Violent prisoners of war and interned fightersIII. Enforcement of naval blockades and ceasefire linesB. Military involvement in peacetime law enforcementC. "Naked self-defense" - a conflation of personal and interstate self-defenseD. Conclusion: Exceptional relevance of personal self-defense in military-led operationsChapter 6: Human rights standards for self-defense between private personsA. Applicability of human rights standards to self-defense between private personsB. Duty to recognize a right to self-defense between private personsC. Duty to regulate and reasonably circumscribe self-defense between private personsI. Unlawful attack on a defensible interestII. Immediate defense: An exception for victims of intra-family violence?III. Necessity and proportionalityIV. Special requirements regarding private security companiesD. Duty to investigate and prosecute excessive or unwarranted self-defenseI. Immunities from prosecutionII. Burden of proofE. No general right to possess firearms and other means of self-defenseI. Negative impact of gun proliferation on the protection of life and physical securityII. No enhancement of women's right to self-defenseIII. No effective means to pre-empt tyranny or atrocitiesIV. The right to self-defense of unarmed citizensF. Conclusion: Human rights circumscribe the ambit of private self-defenseChapter 7: Self-defense against the state - resistance against human rights violationsA. Resistance against the state - a history of opposing viewsI. Resistance as a legitimate defense against abusive governmentsII. Unassailable authority based on divine mandate or constitutional supremacyIII. Rebellion as a threat to order and stabilityIV. Balancing stability and vindication of the right to self-defenseB. Personal self-defense against unlawful individual acts of law enforcement officialsI. Resistance against extrajudicial killings, torture and other police brutalityII. No resistance against arbitrary arrest and detention if judicial remedies availableIII. Force to escape inhumane conditions of detentionIV. General limits of the right to resist individual human rights violationsC. Collective self-defense below the threshold of direct participation in armed conflictI. Limits based on the right to self-defenseII. Distinction between civilian defense groups and organized armed groupsD. Organized armed resistance against denials of the right to self-determinationI. Legal Basis for a right to organized armed resistanceII. Limits of the right to organized armed resistanceIII. Legal implications of the right to resistanceIV. No right to rebel against undemocratic governmentsE. Organized armed resistance against mass atrocitiesI. No state recognition of a right of armed resistance against mass atrocitiesII. The case for a right of armed struggle against mass atrocitiesIII. Limits of a right to resist mass atrocitiesIV. Legal implications of a right to resist mass atrocitiesV. No justification of unilateral humanitarian interventionsF. Conclusion: A right to resistance only in exceptional circumstancesChapter 8: The right to personal self-defense in a Rechtsstaat - final reflectionsBibliographyIndex