The Caroline as the ‘Joker’ of the Law of Self-Defence – A Ghost Ship’s Message for the 21st Century

Abstract

The last few years featured several important statements and documents aiming to change the customary international law on ius contra bellum, as enshrined in the UN Charter, that have relied extensively on the Caroline doctrine. As a point of departure of the present analysis, a brief overview of the most eminent appearances of the Caroline in most recent statements on the law of self-defence will follow. Former State Department Legal Advisor Brian Egan, in his speech at the American Society of International Law’s 2016 Annual Conference, invoked ‘the oft-cited Caroline incident’ to justify US military actions on the territory of another state against non-state actors under the right of self-defence. In his speech delivered in January 2017 at the International Institute for Strategic Studies (London) on ‘The Modern Law of Self-Defence’, the UK’s Attorney-General Jeremy Wright QC MP claimed that the principles of the modern law on imminence have their origins in the Caroline incident. The Caroline has been also resurrected also in the Tallinn Manual 2.0 published in February 2017 in Rule 73 regarding the criteria of imminence and immediacy. The above most recent reliance on the Caroline clearly shows that the ship did not, in fact, sink in 1837 but still proves to be a decisive player on the waters of ius contra bellum even in the 21st century. These invocations of the Caroline are all the more remarkable given that the legal relevance of the Caroline ‘precedent’ can be challenged by the fact that the ICJ has never referred to it, by reiterating the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts Commentary relating to necessity in Article 25, by the lack of state practice relying on the Caroline in the past 180 years, and also by scholarly literature commenting on customary international law. The present article aims at proving first, that having a Janus-faced character, one of the peculiarities of the Caroline precedent is that it is used as a Joker card for both narrowing and broadening the scope of the right to self-defence enshrined in Article 51 UN Charter. Second, that the Caroline concerned a necessity issue and had no connections and thus relevance to the modern right to self-defence. Thirdly, that the Caroline was consequently not invoked and applied for a century, not until Judge Jennings’ famous article in 1938, where the author admitted that the parties did not distinguish between self-defence and self-preservation and also that the literature of that time used them as synonyms. Jennings also pointed out that the diplomats dealing with the Caroline did not intend to introduce a new legal concept. Thus, the Caroline at best serves as an antagonistic element in the modern law of jus contra bellum and is nothing more than a romantic-tragic memory from the past. Finally, the article will argue that although the Caroline has no legal relevance for the modern right to self-defence, it is relevant for legal history as she carries an important moral lesson for all of us in the 21st century.