Caroline test
Encyclopedia
The Caroline test is a 19th century formulation
of customary international law
, reaffirmed by the Nuremberg Tribunal
after World War II
, which said that the necessity for preemptive self–defense
must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The test takes its name from the Caroline affair
.
rebelled against the British
colonial government. The United States
remained officially neutral about the rebellion, but American sympathizers assisted the rebels with men and supplies, transported by a steamboat
named The Caroline. In response, a British force from Canada entered United States territory at night, seized The Caroline, set the ship on fire, and sent it over Niagara falls
. At least one American was killed. The British claimed that the attack was an act of self–defense. In a letter to the British Ambassador, Secretary of State Daniel Webster
argued that a self–defense claimant would have to show that the:
In Webster's original formulation, the necessity criterion is described as "instant, overwhelming, leaving no choice of means, and no moment of deliberation". This has later come to be referred to as "instant and overwhelming necessity".
.
The threat or use of force is prohibited by customary international law
and the UN Charter when it is part of a preventive war waged against the territory of any State. In the Lotus case, the World Court
decided, "the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State." The Caroline test was recognized and endorsed by the Nuremberg Tribunal, who adopted the same words used in the test in judging Germany's invasion of Norway and Denmark
during World War II
.
The right of self–defense is permitted, when the conditions of customary international law regarding necessity and proportionality are met. Article 51 of the UN Charter recognizes "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." The Caroline test applies in cases where Article 51 is not a permissive rule because a defensive action was taken before an armed attack occurred.
To this day, the Caroline test is considered the customary law standard in determining the legitimacy of self–defense action. In 2008, Thomas Nichols wrote:
Legal tests
Legal tests are various kinds of commonly applied methods of evaluation used to resolve matters of jurisprudence. In the context of a trial, a hearing, discovery, or other kinds of legal proceedings, the resolution of certain questions of fact or law may hinge on the application of one or more...
of customary international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, reaffirmed by the Nuremberg Tribunal
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, which said that the necessity for preemptive self–defense
Preemptive war
A preemptive war is a war that is commenced in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending war before that threat materializes. It is a war which preemptively 'breaks the peace'. The term: 'preemptive war' is...
must be "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." The test takes its name from the Caroline affair
Caroline affair
The Caroline affair was a series of events beginning in 1837 that strained relations between the United States and Britain....
.
Historical background
In 1837, settlers in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
rebelled against the British
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
colonial government. The United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
remained officially neutral about the rebellion, but American sympathizers assisted the rebels with men and supplies, transported by a steamboat
Steamboat
A steamboat or steamship, sometimes called a steamer, is a ship in which the primary method of propulsion is steam power, typically driving propellers or paddlewheels...
named The Caroline. In response, a British force from Canada entered United States territory at night, seized The Caroline, set the ship on fire, and sent it over Niagara falls
Niagara Falls
The Niagara Falls, located on the Niagara River draining Lake Erie into Lake Ontario, is the collective name for the Horseshoe Falls and the adjacent American Falls along with the comparatively small Bridal Veil Falls, which combined form the highest flow rate of any waterfalls in the world and has...
. At least one American was killed. The British claimed that the attack was an act of self–defense. In a letter to the British Ambassador, Secretary of State Daniel Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...
argued that a self–defense claimant would have to show that the:
Requirements
The terms "anticipatory self–defense", "preemptive self–defense" and "preemption" traditionally refers to a state's right to strike first in self–defense when faced with imminent attack. In order to justify such an action, the Caroline test has two distinct requirements:- The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option (necessity);
- The response must be proportionate to the threat (proportionality).
In Webster's original formulation, the necessity criterion is described as "instant, overwhelming, leaving no choice of means, and no moment of deliberation". This has later come to be referred to as "instant and overwhelming necessity".
Significance
The principle of self–defense had been acknowledged prior to the Caroline test, but it was notable for setting out specific criteria by which it could be determined whether there had been a legitimate exercise of that right. The test was accepted by the United Kingdom and came to be accepted as part of customary international lawCustomary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
.
The threat or use of force is prohibited by customary international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and the UN Charter when it is part of a preventive war waged against the territory of any State. In the Lotus case, the World Court
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...
decided, "the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State." The Caroline test was recognized and endorsed by the Nuremberg Tribunal, who adopted the same words used in the test in judging Germany's invasion of Norway and Denmark
Operation Weserübung
Operation Weserübung was the code name for Germany's assault on Denmark and Norway during the Second World War and the opening operation of the Norwegian Campaign...
during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
.
The right of self–defense is permitted, when the conditions of customary international law regarding necessity and proportionality are met. Article 51 of the UN Charter recognizes "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." The Caroline test applies in cases where Article 51 is not a permissive rule because a defensive action was taken before an armed attack occurred.
To this day, the Caroline test is considered the customary law standard in determining the legitimacy of self–defense action. In 2008, Thomas Nichols wrote:
See also
- Use of force by statesUse of force by statesThe use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2: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...
- Preemptive warPreemptive warA preemptive war is a war that is commenced in an attempt to repel or defeat a perceived inevitable offensive or invasion, or to gain a strategic advantage in an impending war before that threat materializes. It is a war which preemptively 'breaks the peace'. The term: 'preemptive war' is...
- Self-defence in international law