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Parution : 01/2018
Editeur : Brill
ISBN : 978-9-0043-5497-5
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Origins of the Right of Self-Defence in International Law

From the Caroline Incident to the United Nations Charte

Tadashi Mori

Présentation de l'éditeur

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.

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.

 

Sommaire

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

International Law in Japanese Perspective , Vol. 12  €154