What is the right of self-defence in international law?
The question running though this book arose in the process of getting a handle on arguments concerning the legal character of the multinational force assembled for the Gulf War (1990–1991). Were its activities an exercise of the right of collective self-defence? Or an operation for collective security? It piqued my interest to see that participants in the vibrant debates of that time meant different things by ‘self-defence’. In Japan at this time, constitutional arguments on collective self-defence and participation in collective security operations also grew more intense, conveying an urgent sense of the need to make clear the meaning of such terms in international law.
It was in this state of mind that I resolved to look thoroughly into the question of what the conception of a right of self-defence actually entailed. The importance of such an inquiry into essentials was later pointed up by the confusion evident in arguments on the right of self-defence against terror attacks on the United States of 2001.
It was in 1997 that I took up the study of the right of self-defence in earnest, after my appointment as a Research Associate at the Institute of Social Science, University of Tokyo. From the beginning, I was uneasy with the positioning of the Caroline incident as a precedent establishing the right of self-defence. This feeling of unease took shape in my article, ‘Karoraingo Jiken ni okeru Jieiken no Kino (The “Right of Self-defence” in the Caroline Case)’ ([1999] 50 Shakai Kagaku Kenkyu (Journal of Social Science (University of Tokyo)) 69–99 (in Japanese)), in which I articulated a view of two rights of self-defence which proved to be the viewpoint and structure that would govern my later enquiry, and ultimately the study presented here. The problem always before me has been to clarify the historical development of the legal conception of a ‘right of self-defence’; I feel now as if that problem has led me, irrespective of any competing intentions I may have formed, to the presentation offered in these pages.
How far my efforts have been successful is for readers to judge. Whether my account of historical development in the years covered by this volume has any real significance, moreover, will be proven only as I proceed to research developments since the Second World War. Awaits me a great labor.
The present work is a translation into English of an updated version of my Jieiken no Kiso (Right of Self-defence in International Law: From the Caroline Incident to the United Nations Charter) published by the University of Tokyo Press, in Japanese, in March of 2009.
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Research is lonely work, but one does not do it alone.
In the short space permitted here, I wish to offer my thanks for the many people whose guidance and help have seen this work to completion.
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Professor Wakamizu Tsutsui set me on the path of a student of international law. The work itself, moreover, owes much to the good fortune of an association with this master in the study of the right of self-defence. From Professor Akira Kotera, my supervisor since the second year of my master’s course, I learned much, in both formal and informal settings. From conception to completion, through development and drafting, this study has been greatly sustained by his wise advice. It fills me with great regret that Professor Kotera, who passed away in February of 2014, will not see this volume. During my residence at Oxford University, though he was under no obligation whatever to do so, Professor Vaughan Lowe (now of Essex Court Chambers), continually offered comments and encouragement on the work I pursued there, which formed the basis of this study.
Professor Soji Yamamato not only offered comment that cut to the heart of this study, but schooled me in what international law is all about. He, too, passed away before he could see the study completed, in September 2013. Professor Yasuaki Onuma pounded into me the rigor with which one must pursue one’s scholarship. Professor Naoya Okuwaki, meanwhile, taught me that the depth of research is in the end the depth of the researcher. It is only now that many of my teachers’ lessons hit home.
Professor Yuji Iwasawa not only reviewed my doctoral thesis but also kept me constantly aware of the work’s interpretative significance. From Professor Junji Nakagawa, at the Institute of Social Science of the University of Tokyo, I received the gift of three years in which to devote myself entirely to this study. Had I not been offered those three years, I would not have been able to attempt a study of a theme so vast as the right of self-defence. Professor Akio Morita invited me to the wonderful research environment of Tokyo Metropolitan University and thereafter advised me continually on all manner of problems. Professors Hisakazu Fujita, Yozo Yokota, and Kazuhiro Nakatani, through their lectures and seminars, taught me the diversity of approaches possible to my field.
I was also supported in pursuing my study by the opportunities I was given to present and discuss my work in such forums as the Japanese Society of International Law and the Japanese Association of World Law, and by the comments and criticisms offered by many scholars in such forums. Another opportunity to rethink was given by the scholars from other fields whose comments and questions at my dissertation defense showed me the limitations of my approach. A further stimulus to deepen my study was provided by the arguments and discussions I enjoyed with many colleagues of my cohort. In that context I recall particularly the vibrant discussions I had, immediately on entering their ranks, with Kazuhiko Hayashida. May he rest in peace.
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Without the help of document repositories and archives in the United States and the United Kingdom, this study could not have been carried out. In order to visit them and use these resources, the support of the Japan Society of the Promotion of Science (Grants-in-Aid for Scientific Research and Overseas Research Fellowships) and the Nomura Foundation was essential. To the staff of such archival institutions I am indebted for all manner of aid.
For his help with publication of this work I am ever grateful to Professor Iwasawa. For their help at the final stage of editing this volume I am thankful to Ingeborg van der Laan and Saskia van der Knaap of Brill. To Mishio Saito of University of Tokyo Press, which published the Japanese version of this study, I offer thanks for agreeing so readily to publication of an English translation. Publication of this study was supported by Egusa Foundation for International Cooperation in the Social Sciences.
An English version of this work would not have been possible without the dedication and skill of its translator, Jonathan Bloch, whose kind interest in its arguments and fine rendering thereof have fortified my desire to bring it out. In the final copyediting of the manuscript I have had the assistance of Jun Okada, Satomi Shintani, Yusuke Kaide, Natsuko Sumi, and Kimihiko Okano.
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I offer my sincerest thanks to all the many people who have contributed to this study, including all those whom I am unable to name in this brief space. When I reflect on how many people have supported me, I understand how greatly I am blessed. I pray that I will discharge in my research and teaching the responsibility laid upon me by this good fortune.
In memoriam Akira Kotera.
May, 2017, Hongo, Tokyo
Tadashi Mori