by Dave Kopel
America's 1st Freedom, November 2006, pp. 26-29, 62-63. More by Kopel on U.N. gun control.
Self-defense is a privilege that governments may choose to grant or withdraw. You have no human right to self-defense. If a government does not impose repressive restrictions on gun ownership—more severe than even the laws in New York City or Washington, D.C.—then that government is guilty of violating international human rights.
So says the United Nations in its latest assault on the Second Amendment.
This July, the National Rifle Association and other pro-freedom groups won a tremendous victory at the U.N. Small Arms Review Conference when they helped block the creation of a global gun control treaty. Winning a very important battle, though, is not the same as winning a war. Since then, the global gun prohibition movement has already opened up a major new front in the war on our rights.
This fall, the General Assembly of the United Nations will be considering a new Arms Trade Treaty. The treaty is backed by many governments, as well as by the world’s leading gun prohibition group, International Action Network on Small Arms (IANSA). Once the final language of the treaty is approved by the General Assembly, the treaty will be open for signature and ratification by all nations.
At the highest level of generality, the Arms Trade Treaty is based on a very good idea: prohibiting the sale of arms to countries that use them to violate human rights. It would be a good idea, for example, if all nations refused to sell arms to the dictatorships in Burma, Zimbabwe or Cuba, all of which have an atrocious record of human rights violations. (And all of which, like other modern nations that are extreme violators of human rights, have extreme laws against citizen gun ownership.)
However, any nation that has a conscience can already ban arms exports to such evil governments. Conversely, nations such as China, which currently supply arms to human rights abusers all over the world, have a long record of flouting the treaties they sign, so it would be foolish to expect that a new treaty would stop their arms exports to their favorite tyrannical allies.
The Arms Trade Treaty will, however, increase international pressure to cut off arms sales to Israel. Although Israel’s human rights record is far superior to any of its neighbors (and superior to the large majority of U.N. members), the United Nations condemns Israel much more than any other nation for supposed violations of human rights.
The Arms Trade Treaty can also be used to attempt to suppress the sale of civilian, police or military arms to the United States. The reason is that the U.N. is working to declare that all American gun laws, as well as the right to self-defense, are violations of human rights.
THE U.N. HAS appointed University of Minnesota Law Professor Barbara Frey as its “Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons.” A “Special Rapporteur” is a U.N.-designated expert and researcher on a subject.
Notably, the title the U.N. gave to Frey required her to look exclusively at how small arms are used to violate human rights—and to ignore how small arms are used to protect human rights, such as when used to resist genocide. But the one-sided nature of Frey’s research mission was consistent with her own views; Frey is a member of IANSA and participated in a 2005 strategy meeting in Brazil designed to support the gun prohibition referendum in that nation.
On July 27, Frey issued her final report, declaring that there is no human right to self-defense and that insufficient gun control is a violation of human rights. (The report, “Prevention of human rights violations committed with small arms and light weapons,” is available on IANSA’s website, www.iansa.org/un/documents/salw_hr_report_2006.pdf.)
On Aug. 21, the U.N. Human Rights Council's Sub-Commission on the Promotion and Protection of Human Rights endorsed the Frey report in total and recommended that the full Human Rights Council (HRC) do so.
It’s important to note that the U.N. Human Rights Council, despite its name, is composed of some of the worst human rights violators in the world, such as Cuba and Saudi Arabia. The U.N. rejected efforts by the United States to join the Human Rights Council, and instead allowed dictatorships such as China and Pakistan to join.
It is all but certain that the Human Rights Council will follow the lead of its sub-commission and adopt the Frey Report as an official statement of HRC policy on human rights. At that point, the global and American gun prohibition lobbies can then begin to attack American gun laws because they “violate human rights.”
According to Frey, governments have an affirmative human rights obligation to protect their subjects from violence. This obligation includes much more than simply making and enforcing laws against crime. According to Frey, the “due diligence” obligations means that:
“It is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them. … The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons.”
By the Frey/HRC standards, every American jurisdiction is a human rights violator because its gun laws are not severe enough. Even in New York City or Washington, D.C., the government does not require a gun license applicant to prove that he or she has “a legitimate purpose.” Once New York City or D.C. finally let you buy a shotgun, you can use it for any legitimate purpose—sporting clays, gunsmithing practice, collecting or even self-defense (assuming that you somehow can retrieve the locked gun in time to use it against a home invader).
At every gun store in the United States, buyers must pass a background check under the National Instant Check System (or a state equivalent). Most states do not require a separate license for handgun purchases and even fewer require a license for long gun purchases. Only a few states mandate that a person who simply wants to continue owning the guns he already has must renew a license from the government every few years. The absence of mandatory, periodic licensing for continued possession of one’s own guns is another human rights violation, according to Frey.
Similarly, the vast majority of American states allow children, under parental supervision, to use firearms; the family, not the government, decides when a particular child is ready to take his or her first shots with the family’s .22 pistol or rifle. Yet this, too, is a human rights violation, according to Frey and the HRC, since the government has not specified a minimum age for a gun license.
The Frey/HRC rules declare almost all American self-defense laws to be human rights violations. The Frey report declares: “When small arms and light weapons are used for self-defence, for instance, unless the action was necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-defence will not alleviate responsibility for violating another’s right to life.”
Moreover, “Because of the lethal nature of these weapons and the jus cogens (a mandatory norm of general international law from which no two or more nations may exempt themselves or release one another) human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged.”
Under international law, a jus cogens standard supersedes any contrary rule. Thus, Frey and the HRC are declaring that their restrictive view of self-defense trumps any contrary state, national or international law.
The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. Yet Frey and the HRC will allow the use of deadly force only against a life-threatening attack, and not against other violent felonies.
Thanks to NRA leadership, 14 states this year have adopted “Castle Doctrine” laws that state that a person may use a firearm (that is, deadly force) against a violent felon without having to calculate whether lesser force might suffice. The large majority of American jurisdictions state that a person who is attacked in his home need not retreat when attacked, and some jurisdictions also apply the no-retreat rule in public spaces. Yet all of these American protections of the right of self-defense are violations of human rights, according to the adopted report of the U.N.’s Special Rapporteur.
You might wonder how the U.N.’s claim that gun control is a human right, and that suppression of self-defense is a human right, can be reconciled with the actual human right of self-defense. Such a reconciliation is impossible, so the U.N., speaking through its Special Rapporteur, has simply declared that there is no human right to self-defense.
The Frey report admits that most criminal justice systems acknowledge self-defense, but the report claims that self-defense is merely a government-granted exemption to criminal liability, and that this exemption must be very narrowly construed.
Frey and the U.N. assert that the traditional sources of international law do not support the existence of a right to self-defense. However, this premise is false.
The United Nations’ own Universal Declaration of Human Rights recognizes, in its preamble, a last-resort right of self-defense against tyranny: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
To list all the sources of human rights law that recognize the right of self-defense would take many thousands of words, but the error of Frey’s assertion can easily be seen simply by looking to three of the great philosophers universally regarded as founders of international law.
Hugo Grotius (Dutch, On the Law of War and Peace): “When our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided … We must observe that this kind of defence derives its origin from the principle of self preservation, which nature has given to every living creature.”
Emerich de Vattel (Swiss, The Law of Nations): “Every nation, as well as every man, has, therefore, a right … to preserve herself from all injuries: and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation … It is this right to preserve herself from all injury that is called the right to security.”
Francisco Suárez (Spanish, 26 volumes, including De Legibus ac Deo Legislatore): Self-defense is “the greatest of rights,” encompassing individual protection against criminals, as well as community self-defense against tyrants.
The only way that the United Nations can use international law to deny the right to self-defense is to ignore the fundamental sources of international law itself. Yet many American officials, including some Supreme Court justices, have taken to using international law in defining the scope of the rights guaranteed by the United States Constitution.
Professor Frey and the misnamed U.N. Human Rights Council are creating the tools that could, in the hands of judges or other government officials who are hostile to the Second Amendment, be used to decimate both our right to arms and our right to self-defense.
Dave Kopel is research director of the Independence Institute. His website is www.davekopel.org. More by Kopel on the U.N. is available here.
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