INTRODUCTION

The notion of the right to self-defense by use of force by a state dates back to
the famous Caroline Incident in 1837. The Caroline case is dominant in
international customary law because the doctrine arises out of the case called
the doctrine of self-defence. This article will attempt to study the Caroline case
and will establish elements like necessity or proportionality as an unarguably
important aspect to use force with respect to self-defence. The British Canadian
troops destroyed the American Caroline Boat and sunk in the Niagara Falls. The
boat was used by Americans to supply arms and ammunition to the group of
Canadian rebels who were fighting against the Canadian government. One
American was killed in this raid. The American government saw the act as
unprovoked act against a neutral state. While the British government justified
the attack by claiming the right to self-defense against the threat emanating
from the US territory. The British government was put on trial for this act of
aggression.

This incident led to several diplomatic efforts between two states which gave an
initial outline to the idea of legitimate self-defense. In Webster-Ashburton Treaty
following this incident, US secretary of State Daniel Webster stated that, for the
act of anticipatory self-defense to be lawful in the international law, the British
government must prove �a necessity of self-defense, instant, overwhelming,
leaving no choice of means and no moment for deliberation� [4]. And the
intensity of the counteract justified by its necessity must be and proportionate to
the necessity and exercised within its limits [5]. These statements set out the
definition of customary International law for the right to use self-defense. The
Caroline incident is considered a touchstone to the international laws and right
of self-defense.

Concepts

1) II. BRIEF INTRODUCTION TO CUSTOMARY INTERNATIONAL LAW Though there are

several sources of international law, this article will focus on custom as the basis of
the inherent right of self-defense and the Caroline doctrine's place in custom. Since
the basis of common analysis of national self-defense is that the Caroline doctrine is
international law, a brief introduction to custom, and its place in international law, is
appropriate. Custom is not a static written code. It is forever evolving and changing.
Court cases can be helpful in distilling custom; but, unlike the usage in common law,
precedent is not binding authority in international law. What states actually do in
practice matters more than what a court says. However, some cases may give insight
as to what the court will apply as custom. When defining custom, in addition to state
 practice, the opinions of scholars and publicists are important.4 The Statute of the
International Court of Justice defines custom as "evidenced by state practice. '5 The
Restatement (Third) of the Foreign Relations Law of the United States defines
customary law as the general practice of nations followed from a sense of legal
obligation.6 The International Court of Justice, has stated that the substance of
customary law must be found primarily in the actual practice and feeling of
obligation of states . Voluntary adherence to the law is a key feature of international
law. All states are equally sovereign and no state may deem another to have given
up rights without the other state's authorization. That is why a 3. For purposes of
this Comment, I will be focusing only on the Caroline doctrine's imminence
requirement in customary international law at the time of the Caroline incident and
how that effects the current standard by which to judge the legality of self-defense
as a response to modem terrorist attacks. state's practice and its feeling of obligation
to follow a given rule are important elements of international law. The mere writings
of scholars and publicists will not suffice to define a rule of international law; if state
practice shows that a particular rule is not actually followed because the states do
not feel an obligation to follow it, then it is not a rule
2) Right of Self Defense: Article 51 of the UN Charter
Article 51 of the United Nations Charter upholds the inherent right of states to
exercise the act of self-defense against an armed attack. The right of self-
defense which was earlier a part of the customary international law was also
reproduced in the UN charter and later established by the International Court of
Justice [6]. However, it was emphasised by the ICJ that the provisions under
Article 51 of the UN charter is based on the natural right of self-defense and
hence cannot subsume or supervene international customary law.

Article 51 of the UN Charter states that �nothing in the present Charter shall
impair the inherent right of individual or collective self-defense if an armed
attack occurs against a Member of the United Nations until the Security Council
has taken measures necessary to maintain international peace and security�
[7]. This allows a member state to defend itself using force in response to an act
of armed attack; however, this is not permitted under all the circumstances and
subject to the satisfaction of certain conditions.

A member can invoke Article 51 to resort to use of force in self-defense if, it is a

necessary defensive measure against the armed attack [7], or it has been
authorised by the UN Security Council when it deems necessary to maintain
international peace [8].

A member state can exercise the right to use of force in self-defense only when
it suffers an armed attack, and the state carries the burden of proof [9]. The
framework to define an armed attack was initially not clear in international law.
In the US-Nicaragua case [6], ICJ led down categories of acts of armed attacks
that could prompt the invocation of article 51, when faced by a member state.
These categories include attack by regular armed forces or mercenaries of
another state, state encouraging the establishment of armed groups by
providing logistics, financial support and intelligence. Hence proxy attacks
carried out by state using armed bangs, irregulars, terrorist groups or
mercenaries also qualifies as armed attacks by a state and may subject to
pushback by a member state for self-defense under Article 51. Along with this,
attacks by non-state actors like terrorist organisations were also included in the
�armed attacks' category after the 9/11 terrorist attack on the USA [10].

The member states are required to report the measures taken them in
exercising the right to defense and the necessity of the same to the UN Security
Council. And all the actions by the member states should cease in effect after the
security council has taken necessary measures to resolve the conflict and
maintain international peace and security. This practice was also exhibited in the
international customary law [11].

1. US Military Activities against Nicaragua, (Nicaragua vs US), ICJ Reports,

1986 - https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-
00-EN.pdf
2. Article 51 of UN charter -
https://treaties.un.org/doc/publication/ctc/uncharter.pdf
3. Article 42 of UN charter -
https://treaties.un.org/doc/publication/ctc/uncharter.pdf
4. The Case Concerning Oil Platforms,

Constraints in the Rights of Self Defense (Article 51)

In the Customary International Law formulated after the Caroline Incident, three
elements need to be confirmed while exercising the right of self-defense which
were, necessity of the response, proportionality of the response and the
instantaneous nature of the response. The Principle of Necessity & Principle of
Proportionality are key to the right of self in International Law to prevent
excessive use of force by a member state. In comparison, the importance of
immediacy of response is lesser because of the delay in gathering evidence of
the armed attack, attacker's identity and other intelligence to counter in a
targeted manner and present these evidence in the UN Security Council to
establish the legitimacy of the act of self-defense [12].

Principle of Necessity: The necessity principle is a necessary evidential and

substantive issue to be considered in the right of self-defense. It is important for
the member state to substantiate the conclusion on the necessity of the use of
power against the armed attack based on reasonable facts known at that time.
Any kind of use of power under self-defense will be considered as illegitimate if
it has not been deemed necessary by the United Nations security council.

3) Principle of Proportionality:
Principle of proportionality has two major aspects, a. Proportionality of the
response to the attack, and b. Protection of humanitarian laws of war in the
response.

a. Proportionality of the response to attack:

Estimating the correct proportionality of response can be a difficult task.

In the Iranian Oil Platform Case [12], ICJ viewed it necessary to measure
the scale of operation which included demolition of two Iranian oil
platforms and many aircraft and naval vessels, though there was zero
human casualty. This was reckoned as a disproportionate magnitude of
counterattack relative to the imminent threat. The types of weapons used
in the act of self-defense can be considered as a proportionality criterion.
The proportionality principle does not specifically exclude the use of
nuclear weapons, but such a response should be strictly in accordance
with the requirements of proportionality [13]. The issue in the
incorporation of the principle is that the state undertaking such action will
first have to make that determination which will be later deliberated by
international courts or UN Security Council.

b. Protection of humanitarian laws of war in the response:

The act of self-defense by a member should be abided by the obligations

under humanitarian law. The proportionality principle does not preclude
the derogation of human rights in the conduct of self-defense. It was
contentious to not explicitly forbid the use of nuclear weapons in the self-
defense act. However, the ICJ deliberated over the breach of
environmental obligations by member states when using nuclear
weapons. The court does not prohibit state from exercising self-defense
because of its obligations towards environmental law, however it is
advised by states to take into consideration the environmental impact
when assessing the proportionate use of force in defending themselves.
 Environmental impact can be taken into consideration while assessing the
action against the principle of proportionality.

FACTS

The timeline of the event starts from December 29, 1837, involving the state of
the United States of America, the state of the United Kingdom and the Canadian
rebels from the Canadian independence movement. In the year 1837, when
some Canadian rebels including William Lyon Mackenzie (he was a Scottish-
born Canadian-American journalist and politician) fled to the Niagara River, the
river is the part of the border between the province of Ontario in Canada (on
the west) and the state of New York in the United States (on the east), in the
ship Caroline, a small steamboat.

These rebels were supported by the natives of America. To supply the men at
Navy Island, the rebels hired Caroline, a small steamboat, to bring support and
more troops. Further, British militia from Upper Canada crossed to the US shore
of the Niagara River and set adrift a small rebel-operated vessel, the Caroline
(which drifted over the Niagara Falls).

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A brief struggle ensued where several Americans were injured and an American
named Amos Durfee was killed. In retaliation, a private militia composed of
both US citizens and Canadians attacked a British vessel and destroyed it. In
1838, there were several other clashes pitting British forces against the private
militia. Historians recall after the death of Amos Durfee, Americans were very
infuriated.

The question among Americans was who murder Amos Durfee. They were
considering this death a murder instead of an act of war. The diplomatic
relations between the state of the United States of America and the state of the
United Kingdom ran high for many years.

A Scottish-Canadian who served as sheriff in Niagara, Ontario, Alexander

McLeod bragged about taking part in the attack against Amos Durfee. Further,
Alexander McLeod was arrested by American authorities for the murder and
arson. Under these conditions, it was doubtful that McLeod would get a fair trial
and Britain felt that the release of McLeod was “indispensable to British
honour”.

he Caroline issue further was only worsening during the Martin Van Buren (an
eighth president of the United States) administration. The British Government
demanded his repatriation leading Lord Palmerston (he served as the Prime
minister of the United Kingdom two times) to threaten that a continued refusal
to repatriate McLeod would result in “war immediate and frightful in its
character because it would be a war of retaliation and vengeance”.

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At several points over the years of the dispute, the war between the United
States and Great Britain became a live possibility. Diplomatic efforts, taken over
in 1841 by U.S.Secretary of State Daniel Webster and a new British envoy to the
United States, Lord Ashburton (Alexander Baring), produced an agreement on
the law, and agree to disagree on the facts. Soon thereafter the border issues
were largely resolved by the Webster-Ashburton Treaty.

THE MATTER IN QUESTION

In the aftermath of the attack, the negotiation started between the diplomat of
the state of the United State of America, Secretary of State John Forsyth and the
British diplomat to the United States of America Henry Stevan Fox.

But it took the great intellectual, diplomatic and legal firepower of their much
more esteemed replacement- combined with the timing of their respective
government’s revitalized desire to resolve transatlantic friction- to help provide
some authoritative clarity regarding the customary law of the resort to military
force.

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The big issue Caroline issued was the arrest of McLeod. The replacements Lord
Ashburton who was British secretary at that time and Daniel Webster, American
Secretary of State had several negotiations on international forums.

The British asserted that the New York state courts could not try McLeod and
that he should be sent back to Canada because the British readily took full
responsibility for the attack. Although the United States federal government
agreed, the New York authorities were not willing to cooperate.

THE SAGACITY OF THE CASE

The doctrine which arises from this case is commonly known as the “The
Caroline Doctrine”. Daniel Webster in his letter to Fox wrote:
“Under these circumstances, and under those immediately connected with the
transaction itself, it will be for her majesty’s government to show upon what
state of facts and what rules of national law, the destruction of the “Caroline” is
to be defended.

It will be for that government to show a necessity of self-defence, instant,

overwhelming, leaving no choice of means, and no moment for deliberation. It
will be for it to show, also, that the local authorities of Canada, even supposing
the necessity of the moment authorized them to enter the territories of the
United States at all, did nothing unreasonable or excessive; since the act,
justified by the necessity of self-defence, must be limited by that necessity, and
kept clearly within it.

It must be shown that admonition or remonstrance to the persons on board the

“Caroline” was impracticable, or would have been unavailing.

It must be shown that daylight could not be waited for; that there could be no
attempt at discrimination between the innocent and the guilty; that it would not
have been enough to seize and detain the vessel; but that there was a
necessity, present and inevitable, for attacking her in the darkness of the night,
while moored to the shore, and while unarmed men were asleep on board,
killing some and wounding others, and then drawing her into the current,
above the cataract, setting her on fire, and careless to know whether there
might not be in her the innocent with the guilty, or the living with the dead,
committing her to a fate which fills the imagination with horror.

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A necessity for all this the government of the United States cannot believe to
have existed.”

The test was accepted by the United Kingdom and came to be accepted as part
of customary international law. The Caroline test has two distinct requirements:

 1. The use of force must be necessary because the threat is

imminent and thus pursuing peaceful alternatives is not an option
(necessity)
 2. The response must be proportionate to the threat
(proportionality)
THE ANALYSIS OF THE CIRCUMSTANCE

Many historians and scholars believed that Daniel Webster and Lord Ashburton
agreed on this principle merely to avoid war between states which could result
in a great loss for both countries. The takeaway for Britain and foreign
sovereigns was, in effect, that America’s federal government was not master of
its own house in the conduct of its foreign affairs.

Today, the Caroline affair is considered the customary international legal

principle for anticipatory self-defence. Under Article 51 of the UN Charter, states
have the right to self-defence “if an armed attack occurs” the choice of words
used means that an attack has not yet started, and the use of force on a
sovereign state without being attacked does not qualify under international law
(with the exception of a UN Security Council resolution). However, this
conclusion is not universally accepted.

CONCLUSION

The Caroline doctrine was not even a correct recitation of international law at
the time of the Caroline incident and must be viewed in the context of the
political events taking place. Webster’s definition was divergent from the ideas
of other international law scholars at the time.

While Henry Wheaton’s 1846 treatise on international law recognized an

absolute right to self-defence as an extension of the absolute right and duty of
a state for self-preservation, he never once mentioned the Caroline incident as
an example of customary international law.