SELF DEFENCE CLAUSE IN GLOBAL LAW
1. Context
On May 10, India and Pakistan agreed to halt “all firing and military action” following days of escalating tensions between the two nuclear-armed neighbours. The announcement came after the Indian armed forces conducted 24 precision strikes on May 7, targeting terrorist infrastructure in Pakistan and Pakistan-Occupied Kashmir, in response to the Pahalgam massacre that left 26 dead. While India’s Foreign Secretary Vikram Misri described the strikes as “measured and non-escalatory,” Pakistan denounced them as a “blatant act of war” and alleged civilian casualties
2. What does the right to self-defence entail?
- Article 51 of the United Nations Charter provides a notable exception to the general ban on the use of force set out in Article 2(4), which prohibits nations from using or threatening force against another state's sovereignty or territorial integrity.
- Under Article 51, countries may resort to force only in self-defence after being subjected to an armed attack.
- While the Foreign Secretary did not directly reference Article 51, his framing of the missile strikes as a reaction to the Pahalgam terrorist incident suggests a reliance on this legal justification.
- Nonetheless, this self-defence right is subject to certain conditions. Specifically, Article 51 requires that any defensive action be promptly reported to the UN Security Council, which is then responsible for taking measures to preserve or reestablish international peace and stability
3. Can it be applied to non-members?
- The United Nations Charter primarily regulates the actions of states and, by extension, the use of force by or on behalf of states. After the 9/11 attacks, the involvement of non-state actors (NSAs) in armed conflicts led some countries—particularly the United States—to contend that Article 51's self-defence provisions should also apply to armed responses against groups such as al-Qaeda and the Islamic State (IS).
- Despite this interpretation, the International Court of Justice (ICJ) has consistently adopted a narrower view. In rulings such as Nicaragua v. United States (1986) and Democratic Republic of the Congo v. Uganda (2005), the ICJ determined that actions by NSAs qualify as armed attacks under Article 51 only when they are conducted by, or with the backing of, a state.
- Thus, for self-defence claims under international law to be valid, a clear link to a state is required. India’s missile strikes, as presented in the Foreign Secretary’s remarks, do not appear to be framed within this legal context
4. Unwilling or unable doctrine
- The "unwilling or unable" doctrine is a controversial concept in international law that seeks to justify the use of force in self-defence against non-state actors (such as terrorist groups) operating from within the territory of another sovereign state.
- Traditionally, international law—particularly Article 51 of the UN Charter—allows a state to use force in self-defence only in response to an armed attack and usually only when that attack is attributable to another state.
- However, the rise of non-state actors like al-Qaeda and the Islamic State, which often operate independently from any government but still pose significant threats, has challenged this traditional framework.
- According to the “unwilling or unable” doctrine, if a state (State A) is attacked or threatened by a non-state actor based in another state (State B), and if State B is either unwilling or unable to take effective action to eliminate the threat posed by that group, then State A may lawfully use force in self-defence within State B’s territory—even without its consent.
- The core idea is that the defending state does not lose its right to self-defence simply because the threat emanates from a country that fails to control hostile actors within its borders.
- This doctrine has been most notably promoted by the United States, especially after the 9/11 attacks. It was used to justify operations like the 2011 raid that killed Osama bin Laden in Pakistan and the 2014 airstrikes in Syria against ISIS.
- Supporters argue that the doctrine reflects the reality of modern threats and is necessary to protect national security when host states are incapable or unwilling to act.
- However, the doctrine remains legally contested. Critics, including countries like Russia, China, and Mexico, argue that it undermines state sovereignty and violates the UN Charter’s prohibition on the use of force.
- Moreover, many legal scholars assert that the doctrine has not yet achieved the level of widespread state practice and legal acceptance (known as opinio juris) required to become part of customary international law.
- In short, the “unwilling or unable” doctrine represents an attempt to adapt self-defence law to contemporary security challenges, but it continues to face significant legal and political opposition on the international stage
5. Requirement of proportionality
- Military actions taken under Article 51 must adhere to the legal principles of necessity and proportionality. The requirement of necessity is generally considered met when the state from which non-state actors operate is either unwilling or incapable of addressing the threat.
- However, the 2010 Leiden Policy Recommendations on Counter-Terrorism and International Law clarify that using force against the host state’s military or infrastructure is only justified in rare and exceptional situations—specifically, when the host state is found to be actively aiding the terrorist groups.
- Regarding proportionality, there is a divide in interpretation. A stricter approach holds that the use of force should be confined to what is needed to halt an immediate attack.
- In contrast, a more expansive understanding allows for military action aimed not only at stopping current threats but also at preventing future attacks, provided those attacks can reasonably be anticipated based on the circumstances
6. Way Forward
Should the ceasefire between India and Pakistan collapse, the United Nations Security Council (UNSC) has the authority to issue a resolution demanding an immediate end to the violence. It could also follow up with additional resolutions to respond to continued breaches, potentially including sanctions or the deployment of peacekeeping or military forces. However, the adoption of these measures would largely depend on the political agendas of the Council’s five permanent members, all of whom possess veto power that can block any proposed action
|
For Prelims: United Nations Security Council (UNSC), International Court of Justice (ICJ)
For Mains: GS II -Unwilling or unable" doctrine
|
Source: The Hindu
