Letter

from the Executive Board

Honble Delegates,
Greetings! We welcome you all to the simulation of the United Nations Security Council
meeting at Maitreyi Model United Nations Conference 2016.
We request all participant delegates to keep a few pointers in mind before reading the
background guide. The background guide is divided into different sections.
The first section is about the UNSC and its function and powers. The functions and
powers of all councils and committees are outlined by their mandate, which also defines
the scope of debate in council. The mandate also defines what kind of actions can be
taken by the UNSC and how it is separate from the actions taken by other committees.
The second section clearly marks the sources that will be accepted as proof/evidence in
the committee. In situations where the Executive Board asks a delegate for
proof/evidence to back up their statements, any source might be brought up for debate
if it has institutional backing, and might even be accepted as the belief of the country.
But no sources, other than those mentioned in this section, will be accepted as credible.
However please remember that research can be done using any source as such. Even
Wikipedia is a source (yes!), but only to understand the overview of the theme and not
to gather facts and figures. Delegates are advised to cross-check statements and
speeches with the mentioned credible sources to be on a safe side. Many sections are
followed by or include links which will help in understanding the agenda better,
attaining relevant documents and guide you for further research on the issue. Delegates
are requested to visit and explore these links too.
In the third section we have a brief study of the given agenda. This is the part where you
start to understand the agenda and start researching on it. Do take note that we only
intend to guide you through this agenda, which simply means that we will try and
introduce you to various aspects and then let you further research them on your own.
So we would request all the delegates to put sincere efforts in preparation and research
thoroughly.
Lastly, dont bother too much about the procedure of the Security Council. The
Executive board has that covered for you.
Feel free to contact us via email if you have any queries or doubts.
Regards,
Saptarshi Bakshi | [email protected]
DM Varun | [email protected]

 .......................................................................................................................................................................................

Section I:
Understanding the Security Council

About UN Security Council @ Maitreyi Model United Nations

Conference 2016
Under the Charter of the United Nations, the Security Council has primary responsibility
for the maintenance of international peace and security. It has 15 Members, and each
Member has one vote. Under the Charter, all Member States are obligated to comply
with Council decisions. The Security Council takes the lead in determining the existence
of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle
it by peaceful means and recommends methods of adjustment or terms of settlement. In
some cases, the Security Council can resort to imposing sanctions or even authorize the
use of force to maintain or restore international peace and security.
The Security Council also recommends to the General Assembly the appointment of the
Secretary-General and the admission of new Members to the United Nations. And,
together with the General Assembly, it elects the judges of the International Court of
Justice.
You are also advised to look into the practice of the UN Security Council and how the
Charter affects the same. This will be highly informative as to the inner workings of the
SC and hence, debate on it.
http://www.un.org/en/sc/repertoire/actions.shtml
http://www.un.org/en/sc/
The Charter of the United Nation

Also note, that this session of the UN Security Council will be a regular session. By a
regular session we simply mean two things:

1. We are simulating a meeting which has been called within the regular schedule
of Security Council to discuss a matter of utmost urgency and concerning
international peace and security. (Please refer to Rule 1-3 of the Provisional Rules
of Procedure of the Security Council)
2. Most Rules of Procedures (ROP) remain the same, however certain deviations in
the same may be notified by the President in order to ensure smooth functioning.
Delegates shall have the right to ask questions and seek clarifications on the ROP,
but will not be allowed to raise Points of Order on the same as these deviations,
if any, are done only to aid debate, and the President has the powers under the
SC Procedure Guidelines to do the same. (Please refer to Article 30 of the UN
Charter)
Please remember that a regular session does not mean that the delegates will be given a
crisis situation eventually. The delegates are requested not to ask the Executive
Board for the same.
Also, we request delegates not to questions the validity of the meeting itself, as it is very
well valid under the UN Charter. We also request you not to utilize too much time
discussing the ROP in case you feel that it is not the ROP you know about! The
Presidents decision on all matters relating to the Rules of Procedure shall be
final. Furthermore, the President will, at the start of the meeting, convey to all
delegates the relevant deviations in the ROP that they must take note of for this
meeting.

Proof/Evidence in Council
Evidence or proof is from the following sources will be accepted as credible in the
committee:
1. News Sources
a. UN News - http://www.un.org/news/ - Any article that has been
published directly by the UN or endorsed by the UN News website as
being authentic and accurate portrayal of facts shall be considered as
credible proof in the council.
b. REUTERS Any Reuters article which clearly makes mention of the fact
stated or is in contradiction of the fact being stated by another delegate in
council can be used to substantiate arguments in the committee.
However, Reuters is not an absolute source and can be challenged by
other delegates. (http://www.reuters.com/ )
c. State operated News Agencies These reports can be used in the
support of or against the State that owns the News Agency. These reports,
if credible or substantial enough, can be used in support of or against any
country as such but in that situation, they can be denied by any other
country in the council. Some examples are
i. RIA Novosti (Russia) http://en.rian.ru/
ii. IRNA (Iran) http://www.irna.ir/ENIndex.htm
iii. Xinhua
News
Agency
and
CCTV
(P.R.
China)
http://cctvnews.cntv.cn/

2. Government Reports: These reports can be used in a similar way as the State
Operated News Agencies reports and can, in all circumstances, be denied by
another country. However, a nuance is that a report that is being denied by a
certain country can still be accepted by the Executive Board as credible
information. Some examples are,
a. Government Websites like the State Department of the United States of
America http://www.state.gov/index.htm or the Ministry of Defence of
the Russian Federation http://www.eng.mil.ru/en/index.htm
i. Ministry of Foreign Affairs of various nations like India
(http://www.mea.gov.in/) or Peoples Republic of China
(http://www.fmprc.gov.cn/eng/).
ii. Permanent Representatives to the United Nations Reports
http://www.un.org/en/members/ (Click on any country to get the
website of the Office of its Permanent Representative.)
iii. Multilateral
Organizations
like
the
(http://www.nato.int/cps/en/natolive/index.htm),
(http://www.aseansec.org/
),
(http://www.opec.org/opec_web/en/ ), etc.

NATO
ASEAN
OPEC


3. UN Reports: All UN Reports are considered are credible sources of information
a. UN Bodies like the UNSC (http://www.un.org/Docs/sc/) or UNGA
(http://www.un.org/en/ga/).
b. UN Affiliated bodies like the International Atomic Energy Agency
(http://www.iaea.org/ ), World Bank (http://www.worldbank.org/ ),
International Monetary Fund (http://www.imf.org/external/index.htm ),
International
Committee
of
the
Red
Cross
(http://www.icrc.org/eng/index.jsp ), etc.
c. Treaty Based Bodies like the Antarctic Treaty System
(http://www.ats.aq/e/ats.htm ), the International Criminal Court
(http://www.icc-cpi.int/Menus/ICC )

NOTE: Under no circumstances will sources like Wikipedia (http://www.wikipedia.org/
), Amnesty International (http://www.amnesty.org/ ), Human Rights Watch
(http://www.hrw.org/
)
or
newspapers
like
the
Guardian
(http://www.guardian.co.uk/), Times of India (http://timesofindia.indiatimes.com/ ),
etc. be accepted as PROOF/EVIDENCE. But they can be used for better understanding of
any issue or even be brought up in debate if the information given in such sources is in
line with the beliefs of a Government.

Section-II
Basic things to know

How to research?
Following is a suggested pattern for researching (if required). The delegates however
should feel absolutely free to devise their own pattern which suits them most.

Read the background guide thoroughly.

Research and understand the United Nations and the Committee/Council being
simulated its Mandate, powers and functions etc.

Research the agenda on your own accord by using the internet, books etc.

Research on the allotted country. Understanding its polity, economy, culture, and
history etc. especially those relevant to the agenda at hand.

Understand the foreign policy of the allotted country. It includes understanding

the ideology and principles adopted by the country on the agenda. It further
includes studying past actions taken by the country on the agenda and other
related issues specifically analysing their causes and consequences.

Research further upon the agenda using the footnotes and links given in the
guide and from other sources such as academic papers, institutional reports,
national reports, news articles, blogs etc.

Understand the policies adopted by different blocs of countries (example: NATO,

EU etc.) and major countries involved in the agenda - including their position,
ideology and past actions.

Take a blank A4 sheet and using flow charts start characterizing the agenda into
sub-topics and preparing speeches and statements on them. (This way you also
have a ready list of Moderated Caucus topics you can raise in the committee!)

Prepare a list of possible solutions and actions the UNSC can adopt on the issue
as per your countrys policies.

Assemble proof/evidence for any important piece of information/allegation you

are going to use in committee

Keeping your research updated using various news sources, especially news
websites given in the proof/evidence section.

Again, please note, that this is not by any means an exhaustive list. It is only indicative of
what all can be done by delegates to refine their research. Feel free to explore! J

Basic documents, treaties, conventions etc.

Following is the list of documents that need to be perused by all delegates before they
come to the council. Please understand that you need to know the following aspects
regarding each of the mentioned documents:

The reason why this document exists (for e.g. the Geneva Conventions were
enacted to lay down the rules of war and for the treatment of all parties
concerned in the wars.)

The nature of the document and the force it carries, i.e. whether it is a treaty, a
convention, a doctrine, or a universally accepted custom or norm.

The areas where the document can be applied or has jurisdiction on (for e.g.
international humanitarian law applies only to situations of armed conflict,
whereas the human rights laws applies at all times of war and peace alike.)

The contents of the document at hand. You need not memorize any articles or
rules of any convention or treaty, but should know what the document has to say
in various situations that may arise in the council.

The delegates must have the understanding of the following:

UN Charter
The Charter of the United Nations was signed on 26 June 1945 at San Francisco by the
nations represented at the United Nations Conference on International Organization,
most of them earlier allies in the Second World War. The allies began being referred to
as the 'United Nations' towards the end of that war. The Charter came into force on
October 24 1945. Since that time all members joining have had to declare themselves
bound by both documents - though practice has demonstrated on too many occasions
that that declaration has not been taken too seriously. Once again, a written constitution
is one thing, actual behaviour is another.

http://www.un.org/en/documents/charter/
http://research.un.org/en/docs/charter

Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that
establish the standards of international law for the humanitarian treatment of war. The
singular term Geneva Convention usually denotes the agreements of 1949, negotiated in
the aftermath of the Second World War (193945), which updated the terms of the first
three treaties (1864, 1906, 1929), and added a fourth treaty. The Geneva Conventions
extensively defined the basic, wartime rights of prisoners (civil and military);
established protections for the wounded; and established protections for the civilians in
and around a war-zone. Moreover, the Geneva Convention also defines the rights and
protections afforded to non-combatants, yet, because the Geneva Conventions are about
people in war, the articles do not address warfare proper the use of weapons of war
which is the subject of the Hague Conventions (First Hague Conference, 1899; Second
Hague Conference 1907), and the biochemical warfare Geneva Protocol (Protocol for

the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of
Bacteriological Methods of Warfare, 1925).

http://en.wikipedia.org/wiki/Geneva_Conventions
https://www.icrc.org/en/war-and-law/treaties-customary-law/genevaconventions

Responsibility to Protect
The Responsibility to Protect (R2P or RtoP) is an emerging norm that sovereignty is not
a right, but that states must protect their populations from mass atrocity crimes
namely genocide, crimes against humanity, war crimes and ethnic cleansing. The R2P
has three foundation "pillars":
1. A state has a responsibility to protect its population from genocide, war crimes,
crimes against humanity, and ethnic cleansing.
2. The international community has a responsibility to assist the state to fulfil its
primary responsibility.
3. If the state manifestly fails to protect its citizens from the four above mass
atrocities and peaceful measures have failed, the international community has
the responsibility to intervene through coercive measures such as economic
sanctions. Military intervention is considered the last resort.

While R2P is a norm and not a law, it is firmly grounded in international law, especially
the laws relating to sovereignty, peace and security, human rights and armed
conflict. R2P provides a framework for using tools that already exist, i.e. mediation,
early warning mechanisms, economic sanctioning, and chapter VII powers, to prevent
mass atrocities. Civil society organizations, states, regional organizations, and
international institutions all have a role to play in the R2P process. The authority to
employ the last resort and intervene militarily rests solely with United Nations Security
Council.
Criticisms of the R2P include a "moral outrage and hysteria [that] often serve as a
pretext for interventions by the civilised world or 'the international community' and
for humanitarian interventions, which often conceal the true strategic motives, and it
thus becomes another name for proxy wars."
http://en.wikipedia.org/wiki/Responsibility_to_protect
http://en.wikipedia.org/wiki/International_Commission_on_Intervention
_and_State_Sovereignty
http://responsibilitytoprotect.org/ICISS%20Report.pdf
http://www.globalr2p.org/media/files/2010_a64864.pdf
http://www.globalr2p.org/media/files/2011_a65877.pdf
http://www.globalr2p.org/media/files/unsg-report_timely-and-decisiveresponse.pdf
http://www.globalr2p.org/media/files/n1338693.pdf

Any other treaty or convention or custom that has relevance to the theme of armed
conflict, terrorism and/or external aggression must also be perused by the delegates in
the same manner as described above. One relevant examples could be:

Customary International Law / Customary International Humanitarian Law

Customary international law consists of rules that come from "a general practice
accepted as law" and exist independent of treaty law. Customary IHL is of crucial
importance in todays armed conflicts because it fills gaps left by treaty law and so
strengthens the protection offered to victims.

https://www.icrc.org/en/war-and-law/treaties-customarylaw/customary-law
https://www.icrc.org/customary-ihl/eng/docs/Home
http://www.law.cornell.edu/wex/customary_international_law

The concept of jus cogens or peremptory norms

And so on..


Please note: This is not an exhaustive list! There are many more sources that you may
find very useful as a delegate within committee proceedings. Feel free to research on
them and use them as part of your arguments in the committee.

Section-III:
The Agenda: Conceptualization of Right to
Anticipatory Self Defence

The Caroline Test and Contemporary International Law

The Caroline incident concerns a steamboat bearing that name used for
revolutionary purposes in the rebellion of Upper Canada, a Province of the
Dominion of Great Britain; nowadays the Province of Ontario, Canada. The
rebellion of 1837 was rooted in the political system of cronyism that
pervaded colonial politics in the British colonies of the Canadas, both
Lower and Upper. It flared because of insensitivities of the British
authorities towards the complaints of the inhabitants of the Canada and the
confrontationist attitude of the Crown]. While much have been made of the
democratic and nationalistic issues of the Quebeckers, the rebellion had
more to do with a non-representative system and underlying patronage.
The rebellion of Lower Canada was over by the end of the summer and that
of Upper Canada was in disarray by December 1837.At that time, the
remnants of the rebels fled to the United States where they tried to raise
support for further continuation of the rebellion in Buffalo (New York). The
American authorities knew this presence and threat caused to international
peace between Great Britain and the United States. Instructions were
issued to the districts attorneys of Vermont, Michigan and New York stating
the Presidents intention to respect its international obligations and
abstaining from any intervention in the domestic affairs of another nation.
On December 13, 1837 the rebel MacKenzie issued a proclamation for
rebellion and recruited American help for the invasion of Upper
Canada. A headquarter was set up on Navy island, a small island part of
British territory across the Niagara River where the shores between
Canada and the United States are at a very close point. These movements
created enough attention on the British side of the river as to have the
Lieutenant-Governor of Upper Canada send a message to the Governor of
the State of New York to inform him of the situation. No answer came back.
Between the 13th and the 28th of December, 1837, up to 300 men under the
leadership of an appointed an American general named Van Rausselear
were armed and joined the headquarters of the Canadian rebels on Navy
Island. By the night of December 29, 1837, this force was seen growing to
1000-armed men. Reinforcements were made through constant
movements from the American shore to Navy Island between three in the
afternoon and dusk.
Seeing the use made of the ship, Colonel Allan Napier McNab, the officer
commanding the British forces at Chippewa, judged that the destruction of
the Caroline would prevent further reinforcements to Navy Island and
deprive the rebels of their mean of invasion. He therefore ordered an
expedition to be sent out for this purpose. According to the master of the
Caroline, the ship was docked and moored at Fort Schlosser for the night
with ten officers and crew on board, as well as twenty-three Americans

who asked to be permitted to spend the night as they could not found
lodging at the tavern near by. Around midnight, a force of 70 to 80 from
several small boats boarded the Caroline and commenced warfare with
muskets, swords and cutlasses. All hands, the only efforts of its crew being
to flee, abandoned the vessel. Thus captured, the vessel was left to the
possession of the British forces that cut her loose, towed her into the
current of the river, set her on fire and let her descend the current towards
the Niagara Falls, where she was destroyed. Twelve persons were initially
said to have been killed or disappeared.
As was established after investigations, it is a force of 45 men in 5 boats
under the command of Commander Andrew Drew (Royal Navy), acting
upon orders of Colonel McNab, that boarded, set fire to and let the ship
descend adrift. The place where the Caroline was moored was at Schlosser,
a small landing point in the State of New York less than 5 kilometers
upstream from the Niagara Falls, rather than Fort Schlosser, an old and
abandoned American fort of the War of 1812 between the United States
and Great Britain which was higher upstream from the falls.
Contrary to the opinions expressed at first, it is not 12 persons that died
during that night, but two: Amos Durfee, killed on the docks by a bullet in
the head, and a cabin boy known as Little Billy, shot while trying to
escape the Caroline. Two prisoners were made: an American citizen of 19
years old and a Canadian fugitive. Both were let go: the American with
enough money to pay for the ferry back to the United States and the
Canadian after spending some time in the guard room at Chippewa.
On January 5, 1838, President Van Buren sent a message to Congress to ask
for full power to prevent injuries being inflicted upon neighboring nations
by unlawful acts of American citizens or persons within the territories of
the United States and General Scott was sent to the frontier with letters to
the Governors of New York and Vermont, calling the militias. The rebels
were dispersed, but some continued the struggle within secret societies
called Hunters Lodges. This led to another short-lived rebellion in Canada
in 1838, but it was harshly and swiftly dealt with. In Canada, the impact of
these rebellions was the Act of the Union of both Canadas into a single
province of the Dominion, attempting to assimilate French-Canadian to
diminish the likelihood of another attempt. The impact on the relations of
the United States and the British Crown was one where a true settlement of
the North-eastern boundary had to be reached if war was to be averted.
While the facts of the incident could be made light of were it not for the
death of two persons, they are nonetheless of much importance as the
whole doctrine of anticipatory self-defence rest upon them.
The legal argument concerning the case started with the note sent on
January 5, 1838 by the American Secretary of State Forsyth to the British

Minister at Washington, Fox, expressing surprise and regret for this

incident and warning that this incident would be made the subject of a
demand for redress. Mr. Fox replied by letter on February 6, 1838 and
stated three defences for the actions of the British forces, namely: 1) the
piratical nature of the vessel, 2) the fact that the ordinary laws of the
United States were not being enforced at the time, and were in fact overtly
overborne by the rebels and 3) self-defence and self-preservation. This curt
response to the American government marked an attitude of not taking the
matter too seriously by the British Authorities. This exchange prompted
the report of the Law Officers, but did not move the British Authorities to
recognize any wrongdoing. This being judged unsatisfactory by the
American government, the matter was brought up by the American
ambassador in London, Stevenson, to the British Foreign Secretary, Lord
Palmerston, who promised to look into the matter. The matter was indeed
looked upon once more by the Law Officers. But their conclusion of March
25, 1838 and added to their report of February 21, 1838, was while the
incident was regrettable, they felt that the actions of the British Authorities
were absolutely necessary for the future and not retaliation for the past. As
a result, they believed that the conduct of the British force had been, under
the circumstances, justifiable by the Law of Nations. Arguments and
reminders were made back and forth during the ensuing period, but none
led to a satisfactory settlement of the question.
Meanwhile, the relations between the two nations remained difficult. The
local population at Buffalo seemed inclined toward retaliation and conflict
was quite possible. Also, British nationals in the United States suspected of
having taken part in the events of the Caroline were made to stand Juridical
Examination on charges of participating in the attack. A man named
Christie was arrested those charges on August 23, 1838. The Queens
Advocate, seized of the case, counseled the British Minister in Washington,
Fox, in a dispatch dated November 6, 1838, that such an arrest cannot hold
due to the fact that the actions that Mr. Christie is accused of are acts of
public persons obeying the orders of superior authorities. Therefore, Mr.
Christie could not be held accountable for theses acts even if he had taken
part in them.
Following this, a Canadian deputy sheriff named Alexander McLeod
boasted of his part in the events of the Caroline during a passage through
Lewiston, New York, on November 12, 1840. Acting on his ill-advised
words, the American authorities arrested him immediately on charges of
the murder of Amos Durfee and arson in connection of the burning of the
Caroline.
On December 13, 1840, Fox addressed a note to Forsyth taking again the
principles laid in the Christie case and by which public persons could not

be held accountable for acts of governments. Forsyth replied that the

authorities of the State of New York made the arrest of McLeod and
therefore infringement by the Federal government in the states sphere of
jurisdiction would not be appropriate. It is important to recall that
President Van Buren was a former governor of the State of New York and
was vying for re-election at the time of the exchange between Fox and
Forsyth. The argument about States jurisdiction and Federal competences
was one of the most sensitive political issues in the American Union at that
precise moment. Martin Van Buren lost the elections and the new
government of William Henry Harrison took a more pragmatic approach to
the problem of relations with Great Britain from its inaugural ceremony on
March 4, 1841. Apt Minister, Fox felt the change of Administration
opportune to demand the release of Alexander McLeod and sent a demand
on March 12, 1841 to the new Secretary of State, Daniel Webster, who took
a more lenient view than his predecessor on the matter. Indeed, the
Harrison administration was of the opinion that while the Constitution of
the United States created very clear fields of jurisdiction, the Federal
Government was the one concerned with foreign relations and as a result it
is most apt to intervene with the State of New York and obtain the release
of a foreign national. Webster replied on March 15, 1841 that the American
government is guided by the opinion that an individual who acts as part of
a public force cannot answer personally for those acts. This principle
applied to criminal lawsuits as well as civil ones.
Nonetheless, a last hurdle had to be crossed before McLeod could be
released: that of judicial process. Since McLeod was accused and confined
by reason of judicial process, he could only be released in this manner, this
meaning that he had to be brought to courts so the prosecutor could enter a
plea of nolle prosequi no prosecution. Webster addressed a letter to Fox
on April 24, 1841 explaining that while the laws of Great Britain permitted
the prosecutor to enter this measure of nolle prosequi at any time during
procedure, the laws of the State of New York only permitted this during
sessions of the court.
This displeased Fox immensely as he pointed out that the whole point was
not that McLeod be found not guilty but that he be not judged at all. Still,
the Supreme Court of New York refused leave to enter a nolle prosequi and
also refused a writ of habeas corpus. The only manner in which the court
could see this done was by trial by jury. The trial of The People v. McLeod
took place and no evidence of McLeods participation could be brought to
court. He was acquitted in October 1841.
This long delay of releasing McLeod and the still precarious relations
between the North American neighbours led Great Britain to send a Special
Minister to Washington to negotiate both issues in the person of Alexander

Baring, 1st Baron of Ashburton. During the course of their negotiations,

both he and Secretary of State Webster exchanged a number of letters that
formed the root of anticipatory self-defence.
The first such recorded instance is in the letter of July 27, 1842 where
Webster expresses the notion that the principle of non-intervention is of a
salutary nature and that simple neutrality is not sufficient for the
government of the United States, and that it has therefore actively sought to
prevent injury to Great Britain in its North American Provinces. Webster
position therefore was that since the United States had respected its
obligation under the Law of Nations, it was for Great Britain to justify its
actions by demonstrating 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 strewn that admonition or remonstrance to the
persons on board the "Caroline" was impracticable, or would have been
unavailing; it must be strewn 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.
It was clearly the belief of Webster that Ashburton could not demonstrate
this and that the terms were too strict to be interpreted in such a way as to
justify the British actions, therefore preparing the way for reparations to be
given to the United States. In this, he was sorely disappointed with the
ingenious response of Lord Ashburton in his letter of July 28, 1842.
Ashburton assented to the conditions presented by Webster as general
principles of international law applicable to the case. He fully recognised
the inviolability of the territories of independent nations for the
maintenance of peace and order amongst nations. However, he adds that
there are occasional practices, including that of the United States, where
this principle may and must be suspended.
Ashburton sets such instances as those where, for the shortest possible
time and due to an overruling necessity and within the narrow confines of

such a necessity, self-defence may be invoked. He firstly states that selfdefence is the first law of nature and is recognised by every code that
regulates the condition and the relations of man. Doing so, he recognises
fully the general principles laid down by Webster and set his argument
upon them but establishes a difference between expeditions across
national border and the case of the Caroline. He presents the example of a
situation where a man standing on grounds where you have no legal rights
to chase him presents himself with a weapon long enough to reach you. He
then asks how long one is supposed to wait when he has asked for succour
and asked for relief and none are forwarding. By doing so, he recognised
the efforts made by the United States to prevent American taking part in
the Canadian rebellion, by underlines the inefficiency of its attempts.
Furthermore, Ashburton includes in his version of the events that the initial
efforts to capture the Caroline was to seize her in British waters at Navy
Island, and not on the American side but that since the orders of the rebel
leaders were disobeyed, the Caroline went, docked and was moored at
Schlosser point. It is only as he passed the point of Navy Island that
Commander Drew did not see the ship there but on the American shore and
that pursuant with his mission forged ahead. This statement addressed the
question by which not a moment was left to deliberation, that the
expedition was not planned with the intent of invading American territory
from the outset by those circumstances and that the necessity of
preventing the rebels from further use of the ship as a mean of invasion
overwhelmed the normal respect of national territory.
Having recognised the general principles and explained the particulars of
the overwhelming immediacy of the decision, Ashburton then turns toward
the notion of necessity to answer the claims of Webster that nothing could
justify the attack in the middle of the night against men asleep, killing and
wounding some, then drawing the ship into the current, setting her on fire
and letting her adrift into the current to be destroyed in the falls without
knowing if guilty or innocents were on board.
Ashburton responded that the time of the night was purposely selected to
ensure that the mission would result in the least loss of life possible and
that it is the strength of the current that did not permit the vessel to be
carried off to the Canadian side. For this reason, it became necessary to set
her on fire and drawn into the stream to prevent injury to persons or
property at Schlosser. He finishes the letter by recognizing that Her
Majestys Government should have apologised nonetheless for the matter,
but that it does not make it wrongful in itself. And further continues to
support that the treatment of individuals made personally responsible for
acts of government was as unacceptable.
Webster responded to this note on August 6, 1842. In his letter, he further

reaffirms the criterion laid in his letter of July 27 and while agreeing with
the matters of apologies still recognised the general principles debated but
still did not corroborate the facts of the case. Nonetheless, satisfied with the
apologies, the President stipulated through Webster that this matter would
not be brought forward again.
As a result the affair of the Caroline in 1837 and the subsequent case of The
People vs. McLeod have established principles now firmly entrenched in ius
ad bellum and ius in bello. In the case of the laws of armed conflicts,
McLeods case has confirmed the separation between public acts and
individual responsibility. With regards to the right to use force in
international law, the affair of the Caroline case has once again confirmed
the right of self-defence and, more importantly, has established clear
criterion for its invocation and that of anticipatory self-defence.

Chapter VII of the United Nations Charter
Article 51 of the UN Charter states the following:
Article 51: Nothing in the present Charter shall impair the inherent right of
collective or individual self-defence if an armed attack occurs against a
member of the United Nations, until the Security Council has taken the
measures necessary to maintain international peace and security. Measures
taken by members in exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.
International Law recognizes a right of self-defence, as the International
Court of Justice (ICJ) affirmed in the Nicaragua Case on the use of force.
Some commentators believe that the effect of Article 51 is only to preserve
this right when an armed attack occurs, and that other acts of self-defence
are banned by article 2(4). The more widely held opinion is that article 51
acknowledges this general right, and proceeds to lay down procedures for
the specific situation when an armed attack does occur. Under the latter
interpretation, the legitimate use of self-defence in situations when an
armed attack has not actually occurred is still permitted. It is also to be
noted that not every act of violence will constitute an armed attack. The ICJ
has tried to clarify, in the Nicaragua case, what level of force is necessary to
qualify as an armed attack.

The Case Study: Bush Doctrine

The following is an excerpt from an article on Anticipatory Self-Defence,
which gives a basic idea of the implications of the concept:
International law is not a suicide pact. Fashioned to ensure the

survival of states in a world still lacking global government, these

binding rules emphasize the right of national self-defense. This
right may be exercised not only after an attack has already been
suffered, but also in advance, if the defensive first strike can meet
certain essential conditions.
Consider Iran. President Bush has assuredly authorized the
Pentagon to prepare plans for the pre-emptive destruction of that
countrys developing nuclear installations. Leaving aside the
difficult tactical side of such an operation and whether or not it
would actually be helpful to American national security a prior
question arises: Would this particular pre-emption be permissible
under international law? Although similar legal questions have
been raised about the current war in Iraq, a defensive first-strike
against Iran would have far narrower strategic goals. Here, with
no obvious humanitarian intention of regime change, Americas
only verifiable target objectives would be specific nuclear
industries and infrastructures.
Pre-emption, of course, is already a codified part of Mr. Bushs
military doctrine. Operation Iraqi Freedom is rooted conceptually
in The National Security Strategy of the United States of America
(Sept. 20, 2002), a document which recognizes explicitly the
customary right of anticipatory self-defense under international
law and which expands this right under American legal practice.
But what do we really know about anticipatory self-defense?
International law has multiple authoritative sources, including
international custom. Although the written law of the U.N. Charter
reserves the right of self-defense to states that have already
suffered an attack (Article 51), equally valid customary law
permits a first use of force if the danger posed is instant,
overwhelming, leaving no choice of means and no moment for
deliberation. Drawn from an 1837 event known as the Caroline
Incident, which concerned the unsuccessful rebellion in Upper

Canada against British rule, this doctrine builds upon the 17thcentury classic formulation of Dutch scholar Hugo Grotius: Selfdefense, says The Law of War and Peace (1625), may be
permitted not only after an attack has already been suffered, but
also in advance, where the deed may be anticipated. Later, in his
classic text of 1758, The Right of Self-Protection and the Effects
of the Sovereignty and Independence of Nations, Swiss jurist
Emmerich de Vattel affirms: A nation has the right to resist the
injury another seeks to inflict upon it, and to use force and every
other just means of resistance against the aggressor. In short,
Article 51 of the U.N. Charter limiting self-defense to
circumstances following an attack does not override the
customary right of anticipatory self-defense. Interestingly enough,
the works of Grotius and Vattel were favorite readings of Thomas
Jefferson, who relied very heavily upon them for crafting the
Declaration of Independence.
Now, if we look very literally at the Caroline case, we note an
implicit distinction between preventive war (which is never legal)
and pre-emptive war. The latter, it seems, is not permitted merely
to protect oneself against an emerging threat, but only where the
danger posed is instant and overwhelming. Using such a literal
framework, it would appear doubtful that the United States could
construct a compelling argument for pre-emption against Iran
under international law. This would be the case even if the
American operation were limited meticulously and precisely to
incontestably nuclear targets.
However, we no longer live in the 17th or 18th or 19th centuries,
and the risks posed by a nuclear Iran could never possibly have
been anticipated by Grotius, Vattel or later jurists focused on the
Caroline case. Indeed, the permissibility of anticipatory selfdefense is much greater in the nuclear age, where waiting
passively to absorb an enemy nuclear attack before striking
defensively oneself could be suicidal. In addition, there is the
special danger posed by terrorist group surrogates. If not
prevented from receiving nuclear weapons from patron states,

such surrogates could inflict terrible harm upon countries out of

the range of nuclear-tipped ballistic missiles.
The United States is not the only country at risk from Iranian
nuclear weapons. Israel is at vastly greater risk. Yet, there is a
long and venerated legal tradition that great powers have special
responsibilities, and it is likely that today we are the only great
power which has any operational chance of accomplishing this
difficult mission. To be sure, in the best of circumstances, an
expression of anticipatory self-defense against Iran would be
broadly multilateral and fully endorsed by the United Nations.
Sadly, we dont yet live in the best of all possible worlds, and the
only viable alternative to an American defensive strike against
Iran may be an unimaginable nuclear nightmare.
International law is not a suicide pact. There can never be any
stable balance of terror in the Middle East. Functioning under
certain Islamic leadership elites, Iran could conceivably consider
using its nuclear weapons against infidels despite the reasoned
expectation of massive nuclear retaliations. In such cases,
deterrence would be immobilized and Iran could even become a
suicide-bomber writ large a state willing to die to achieve
certain presumed religious obligations.