Origins of the Right of Self-Defence in International Law

From the Caroline Incident to the United Nations Charter

Series:

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.

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Biographical Note

Tadashi Mori, Ph.D. (2008), the University of Tokyo, Japan, is Professor of International Law at that university. He has published many articles on the right of self-defence in international law and has received awards including Japan Academy Medal.

Table of contents

Contents

Preface
List of Abbreviations
Introduction

Part 1
Re-formation of Perspectives
1 Framework of the Conventional Debate
A Bowett: Three Issues and One General Statement
B Brownlie: Re-formulation of 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
A Divisions over 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
1 Justification for the Violation of the Territory of Another State
2 Justification for the Violation of the Flag-State Jurisdiction of
Another State
B Doctrine
1 Mid-19th Century
2 Late-19th Century and Later
C Policing Concept of the Right of Self-Defence

4 The Right of Self-Defence as it Developed in the Inter-war Period
A The Basic Function of Self-Defence: Resistance to Acts of
Aggression
1 The Covenant of the League of Nations (1919)
2 The Protocol for the Pacific Settlement of International Disputes
(1924)
3 Rhineland Pact (Locarno Treaties) (1925)
4 The Pact of Paris (1928)
5 Summary of Section A
B Scope of the Inter-war Right
1 The Problem of Defining Aggression
2 The Existence of Limits: League of Nations Practice 110
3 Vague Boundaries
4 Precursor of Collective Self-Defence, and the Preconditions for Its
Operation
C Significance of the Inter-war Period’s Conception of Self-Defence:
Self-Defence as Defensive War

Part 3
The Pre-1945 Right of Self-Defence
5 The Relationship between the Two Conceptions of Self-Defence 141
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 US-Mexico Mixed Claims Commission
B The Relationship between the Two Conceptions of Self-Defence
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
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
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
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

Conclusion
Bibliography
Index

Readership

All interested in the history of international law, the long-standing debate on the function and scope of the right of self-defence, and the war on terrorism.

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