The Caroline Incident and Article 51 of the United Nations Charter

Throughout the Canadian Rebellions of 1837, Majority of US Canadian nationals living with US nationals
both have same interest to build strong support for the Canadian rebels in an effort to beat British rule. 1
Even though government of US did not supported its citizens for Canadian rebellion, on December 29
1837, Caroline build a craft to make a tour between Canada and New York to shift all men as well as
weapons to help rebellion.2 When British started observing Caroline activities and marked to demolish
the steamer to avert it from future strengthening of rebels while the ship was attack by British when
she was near in Fort Schlosser, New York. 3 The Caroline went up in smoke and sent over Niagara Falls,
killing US nationals. The Britishers pretended to be innocent in all this game and claiming no wrong
doing against the Caroline as an act of Self Preservation and Self defense. 4

Soon United States of America protested against Britishers 5but it was not until 1841 that incident of
Caroline became one of the hallmarks of customary international law vis-à-vis the doctrine of
proportionality and right of self defense. 6 The US Secretary of State Daniel Webster wrote a letter to
Henry Fox, the British Minister.7 The letter was referred to as the “Caroline Doctrine”. In response to the
claim of British for self defense, in order in order to be justified, the use of force in self defense must be
necessary8 and proportionate9, in the action of contemplation in this situation of the particular case. 10

1
See Timothy Kearley, Raising the Caroline, 17 Wis. INT'L L.J. 325, 328 (1999).
2
See id.
3
See id.
4
See id.
5
See Martin A. Rogoff & Edward Collins, Jr., The Caroline Incident and the Development of International Law, 16
BROOK. J. INT'L L. 493, 496 (1990) (stating that U.S. Secretary of StateJohn Forsyth sent a note of protest to the
British Minister in Washington, D.C., Henry Fox).
6
See Kearley, supra note 45, at 328-29
7
The most relevant language from that letter is found in an excerpt that appeared in a later letter sent by U.S.
Secretary of State Webster to Lord Ashburton. See THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER
WHILE SECRETARY OF STATE 104-11 (New York, Harper & Bros. 1848).
8
id. at 110 ("It will be for [the British] government to show a necessity of self-defense, instant, overwhelming,
leaving no choice of means, and no moment for deliberation."). The necessity prong of the self-defense doctrine
will not be analyzed in this Note. Furthermore, for purposes of the proportionality analysis provided here, this
Note assumes that the U.S. use of force in self-defense to combat international terrorism satisfies the necessity
requirement. However, it must be noted that the question of necessity in the context of the U.S. War on Terrorism
is fertile ground for further study.
9
Id. ("It will be for [the British government] to show, also, that... [it] did nothing unreasonable or excessive; since
the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.").
10
But the extent of this right [to self-defense] is a question to be judged of by the circumstances of each particular
case; and when its alleged exercise has led to the commission of hostile acts within the territory of a power at
peace, nothing less than a clear and absolute necessity can afford ground of justification. Id. at 105.
Later on Caroline doctrine became a standard rule of customary international law controlling and
managing all the uses of forces by the state acting in self defense. fOr this reason the major impact was
held on Caroline doctrine on how a state makes a way out to use of force for self defense which has
been seen under the eye of international law. 11

Article 51 is one of two exceptions to the ban, allowing uses of force if taken pursuant to the inherent
right of individual or collective self-defense.61 These are the rules for the international use of force that,
in theory, hold the greatest authority in the modern global arena. It is widely accepted that Webster's
Caroline doctrine, and the principles of necessity and proportionality contained therein, remain the
norm of customary international law62 and, in fact, heavily influenced the formulation of Article 51 of
the U.N. Charter. As one scholar has stated:

In the contemporary world beyond all indefinable norms of customary international law- the current
rules of international law, involving all those which are comparing the use of force by states, and
preserved in the charter of United Nation. Article 2, Paragraph 4 of the U.N charter 12 which foist ban on
practically all international use of forces.

11
For an interesting discussion of the use of the Caroline doctrine within the context of the Judgment at
Nuremberg in 1946-rejecting a self-defense claim by Germany in defense of its invasion of Norway in 1940 and
condemning the invasion as a "crime against peace"-see Rogoff & Collins, supra note 51, at 504-05.
12
U.N. CHARTER art. 2, para. 4 ("All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.").