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

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

Author: Tadashi Mori
Publisher: Brill Nijhoff
ISBN: 9789004354975
Published In: January 2018
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 2,181.20

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Contents

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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.

Preface

List of Abbreviations

Introduction

Part 1: Re-formation of Perspectives

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

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

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

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

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

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

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