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Origins of the Right of Self-Defence in International Law: From the Caroline Incident to the United Nations Charter

Tadashi Mori

ISBN13: 9789004354975

Published: January 2018

Publisher: Brill Nijhoff

Country of Publication: The Netherlands

Format: Hardback

Price: £156.00

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This book examines a long-standing dispute regarding the prerequisite for the exercise of the right to self-defence and aims to offer a possible better alternatives for interpreting the significance of the precondition provided for in the Article 51 of the United Nations Charter, by taking a historical perspective on the development of that concept from the mid-19th century to 1945.

The book defines the right of self-defence as understood in and before 1945, suggesting the typology which represents the strata of the concept. It will contribute to the current debate regarding the right of self-defence in contemporary international law, including that against terrorism, by providing a framework to analyse the state practice since 1945.

Subjects:: Public International Law

Contents:: Preface; List of Abbreviations; Introduction; Part 1: Re-formation of Perspectives; 1. Framework of the Conventional Debate; Bowett and Brownlie; Interpretation of the Text of the United Nations Charter; Right of Self-defence in Pre-1945 Customary International Law and the un Charter; A Bowett: Three Issues and One General Statement; Three Issues; Rechtsgüter and Prior Conduct; General Statement; B Brownlie: Re-formulation of Bowett’s General Statement; Counter-argument to Bowett; Prior Conduct; Rechtsgüter; i>Counter-argument to Bowett’s General Statement; C Beyond the Framework of Debate Set by Brownlie; 1 Influence of this Framework over Current Arguments; 2 Beyond the Consensus Framework; 2. Great Confusion over the Right of Self-defence: The Caroline Incident Revisited; Why the Caroline Incident?; A Divisions over the Caroline Incident; The Caroline Incident; Divisions; Conflict over the Right of Self-defence and the Caroline Incident; B Background to the Divisions: The Necessity Doctrine and the Self-defence Doctrine; 1 Necessity Doctrine; 2 Self-defence Doctrine; 3 Difference in the Function of the Right of Self-defence; C Differences in the Concepts: Self-preservation Doctrine; 1 Self-preservation Doctrine; 2 Limits of the Self-preservation Doctrine; D Perspectives; Part 2: Two Distinct Concepts; 3. The Right of Self-defence before World War i; A State Practice; Incidents and Cases to be Examined; Viewpoints to Examine; B Doctrine; Relationship to the Concept of War; Relationship to the Concept of the Right of Self-preservation; C Policing Concept of the Right of Self-defence; The Policing Concept of the Right of Self-defence; Pre-World War i Self-defence and the Doctrine; Differences in Context; 4. The Right of Self-defence as it Developed in the Inter-war Period; The Restrictive Interpretation and Its Reading of the Inter-war Period; ‘Resort to Force’ and ‘Armed Attack’; Relationship between the Right of Self-defence as Developed in the Inter-war Period and the Pre-World War i Right; A The Basic Function of Self-defence: Resistance to Acts of Aggression; Development of the Outlawry of War; B Scope of the Inter-war Right; Structure of this Section; C Significance of the Inter-war Period’s Conception of Self-defence: Self-defence as Defensive War; The Policing Conception of Self-defence and the Defensive War Conception of Self-defence; Legal Status of Policing and Defensive War Conceptions; The Right of Defensive War and the Definition of Aggression; Part 3: The Pre-1945 Right of Self-defence; 5. The Relationship between the Two Conceptions of Self-defence Alive in 1945; Existing Views of this Relationship; Structure of this Chapter; A Coexistence of the Two Conceptions of the Right of Self-defence; 1 The Pact of Paris and Protection of Nationals Abroad; 2 The League of Nations Codification Conference; 3 The United States-Mexico Mixed Claims Commission; B The Relationship between the Two Conceptions of Self-defence; The Normative Relation; The Structure of this Section; 1 The Right of Self-defence in Customary International Law and Treaty Law; 2 Violations of Territory and Resort to War; 3 From Outlawry of War to Prohibition of the Use of Force; C ‘Outlawry of War’ and the Two Conceptions of the Right of Self-defence; 6. The Right of Self-defence in the Travaux Préparatoires of the United Nations Charter; Past Enquiries and Newly Released Documents; Structure of this Chapter; A Formulation of the Non-use of Force Principle; 1 The Formulation Process; 2 From the Moscow Declaration to the Dumbarton Oaks Proposals; 3 Deliberations at the San Francisco Conference; 4 Conclusions of Section A; B The Perception of the Right of Self-defence as Policing Measures; The un Charter and the Right of Self-defence as Policing Measures; 1 Internal Discussions of the us Department of State; 2 From Dumbarton Oaks to San Francisco; 3 Theoretical Status of the Policing Conception of Self-defence; C ‘Insertion’ of the Right of Self-defence as Defensive War; The Process by Which Article 51 was Inserted; The Process of Article 51’s Formulation; 1 From Dumbarton Oaks to San Francisco: The Two Contexts in Which the Right of Self-defence was Discussed; 2 The Birth of Article 51; 3 Collective Self-defence against Armed Attack and Individual Self-defence against Aggression; D The Meaning of the Right of Self-defence in the Drafting Process of the un Charter; Right of Self-defence in Terms of Policing Measures; Self-defence in Terms of Defensive War; The Rechtsgüter and Legal Status of the Right(s) of the Self-defence; Conclusion; Bibliography; Index