The right of self-defense and Article 51 of the United Nations Charter.
Buckle. Up. 🧵
2. On August 1, 1951, the UN Security Council met to discuss "Restrictions imposed by Egypt on the passage of ships through the Suez Canal" bound for Israel.
3. Mahmoud Fawzi, Egypt's UN representative, claimed that a state of war still existed between Egypt and Israel, despite their 1949 General Armistice Agreement, and that Egypt retained its belligerent right to visit and search neutral vessels for war materials.
4. Fawzi grounded this right in "the right of self-preservation and self-defence, which ... transcends all other rights," and even hinted that Article 51 of the UN Charter may not limit the right of self-defense.
5. And then ...
... it happened.
Fawzi quoted Hans Kelsen ...
... suggesting that the right of self-defense was ...
jus cogens.
A peremptory norm of general international law that "cannot be affected by any treaty," not even the Charter.
6. THIS WAS THE FIRST MENTION OF JUS COGENS IN THE SECURITY COUNCIL EVER.***
*99% sure about this.
**Today, self-defense is not widely considered jus cogens.
7. Sir Gladwyn Jebb, the U.K. representative, replied that Article 51 acknowledges a right to defend against "unprovoked aggression."
But Egypt was not "even" under any imminent threat of attack from Israel.
So Egypt could not exercise belligerent rights over neutral shipping.
(Sidenote: Gladwyn Jebb was Acting UN Secretary-General from October 1945 to February 1946, until the appointment of the first Secretary-General, Trygve Lie).
8. Exactly one month later, Security Council Resolution 95 adopted the U.K. position and called upon Egypt to end its restrictions.
9. The following year, Fawzi was appointed Ambassador ... to the United Kingdom.
He later became Foreign Minister under Nasser, then Prime Minister and Vice President under Sadat.
10. In 1952, Hans Kelsen published Principles of International Law.
He did not mention Fawzi's speech.
11. Kelsen wrote that the Charter "must stipulate" the right of self-defense, and "restricts" the right to cases of armed attack, before the Security Council intervenes.
That doesn't sound like a rule that "cannot be affected by any treaty."
12. Later, Kelsen wrote that "it can hardly be denied" that States *may* renounce the right to protect their own citizens. But this may be a typo.
13. Now look at the footnote.
Hans Kelsen, legendary positivist, cites Vattel for the claim that States cannot contract out of the "necessary law of nations" ... which is an application of *natural law*. What?
14. By the way, Kelsen also wrote that the UN Charter may have "repealed" the law of neutrality among its members, and that the Charter may constitute general international law even though it's not universally ratified.
15. As for Egypt, it insisted throughout the drafting of the Definition of Aggression that there is no right of self-defense outside of Article 51. (1968, 1972)
16. So either self-defense was never jus cogens, or it was and article 51 codified it, or it was but the Charter modified it ... because the Charter is jus cogens.
And the Charter can only be jus cogens if it's general international law ... just as Hans Kelsen suggested. #Legend
17. Or, maybe, by 1968, Egypt had a political motive to wrap itself in the Charter. Who can say?
18. Anyway, this has been your sip of jus cogens for the day.
Stay safe. Be kind.
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2. The thirteen-power draft stated in its preamble that the use of force by one State or a group of States against another State or group of States violated a peremptory norm of international law.
Supports my sense that, when original meaning is ambiguous, Barrett will adopt neither a presumption of constitutionality, nor a presumption of liberty. The best understanding controls.
Supports my sense that Barrett's Kanter dissent took a disjunctive approach: gun regulations are constitutional if they are either historically rooted or satisfy the relevant level of scrutiny (strict, in that case).
2. In 2010, Barrett strongly indicated that she rejects the Charming Betsy canon, that is, "the rule that where one
interpretation of a statute would compromise the international obligations of the United States, the court should adopt any other plausible interpretation."
3. Why? Because compliance with international law is a policy value, rather than a constitutional value. And policy questions are for the legislature (and presumably the executive), not for the judiciary.
1. Interestingly, Barrett probably agrees. In 2010, Barrett accepted that statutory textualism was not dictated by original meaning/understanding or historical practice.
2. At that time, Barrett argued that courts are "faithful agents" of the legislature, and textualism best preserves legislative compromises. Later, her view changed.
3. In 2017, Barrett argued that courts are faithful agents of the people, and that fairness to the people requires interpreting statutes according to their public meaning.
Yes, Barrett thinks most super-precedents will never come to the Court. Paper money is safe, etc.
But, Barrett shares "the [originalist] commitment to treat the constitutional text as controlling when the question is called." scholarship.law.upenn.edu/cgi/viewconten…
2. Yes, Barrett thinks overruling precedent requires “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.”
But, its view only needs to be compelling to fellow originalists ("methodological friends" in the literature).
3. Finally, I haven't seen Barrett endorse a particular standard for reversal, like "demonstrably erroneous." My sense from her later writings is that the most plausible reading controls. But this is an inference from her view that original meaning *is* the law.