WHAT’S THE SELF-DEFENCE CLAUSE IN GLOBAL LAW?

THE CONTEXT: The 10 May cease‑fire agreement has reopened an old debate: how far can India lawfully go, under contemporary international law, when the next cross‑border terror attack emanates from Pakistani soil? The answer lies at the intersection of Article 51 of the United Nations (UN) Charter, the still‑contested “unwilling‑or‑unable” doctrine, and India’s own evolving counter‑terrorism doctrine.

INTERNATIONAL LEGAL FRAMEWORK

• • Prohibition and Exception: Article 2(4) of the UN Charter prohibits the threat or use of force against the territorial integrity of any state. Article 51 recognises an “inherent right of individual or collective self‑defence if an armed attack occurs” until the Security Council acts.
  • Self‑defence Against Non‑State Actors: The International Court of Justice (ICJ) in Nicaragua v. United States (1986) and Democratic Republic of the Congo v. Uganda (2005) required that armed attacks by non‑state actors (NSAs) be “by or on behalf of a state” to justify self‑defence.
    India’s official statement linked the Pahalgam attack to “Pakistan‑trained terrorists”, thereby attributing the attack to the Pakistani state and satisfying the ICJ’s attribution threshold.
  • The “Unwilling or Unable” Doctrine: After 9/11, the United States posited that a victim state may act in self‑defence on the territory of another state that is unwilling or unable to suppress the threat. The doctrine—spelled out most clearly in U.S. State Department legal adviser speeches—is still an emerging norm, lacking consistent state practice and opinio juris. India’s assertion that Pakistan “took no demonstrable step in the fortnight after Pahalgam” implicitly leans on this doctrine.
  • Necessity and Proportionality: Customary law, rooted in the Caroline correspondence, demands that defensive force be necessary (no feasible alternative) and proportionate (no more than reasonably required to repel and prevent further attacks). Operation Sindoor, confined to terrorist infrastructure and leaving civilian settlements intact, broadly meets both tests.

Indian Policy Framework

CURRENT THREAT PICTURE:

• • LoC Infiltration: The Ministry of Home Affairs (MHA) Annual Report 2023‑- 24 records 96 infiltration attempts in 2023, down from 121 in 2022, but with a higher success rate (31%).
  • Terror Support Ecosystem: Over 400 “terror infrastructure sites” identified by Indian intelligence in PoK—training camps, launch pads, and transhipment depots.
  • Nuclear Overhang: Both states maintain first-use moratoria, but divergent nuclear red lines keep the escalation ladder opaque.

GLOBAL REACTIONS AND PRECEDENTS

NOTE: Operation Sindoor fits this pattern of “short, sharp, signalling strikes” calibrated to avoid strategic-level escalation.

THE CHALLENGES:

• • Credibility of Attribution and Evidentiary Standards: In an era of asymmetric warfare and plausible deniability, attributing terrorist attacks to a state actor demands robust, verifiable, and preferably declassified evidence.
  • A lack of transparent evidence invites scepticism and dilutes international support. India’s Balakot strike (2019) and May 2025 precision strikes have suffered from limited international traction partly due to insufficient public disclosure of actionable intelligence, weakening India’s strategic narrative.
  • Escalation Management and Nuclear Thresholds: India’s strategic doctrine must operate within a fragile deterrence matrix. Pakistan’s Full Spectrum Deterrence (FSD), which encompasses tactical nuclear weapons (TNWs), creates a deterrence-stability paradox: any kinetic retaliation risks escalation into nuclear conflict, but the absence of retaliation risks normalising cross-border terrorism.
  • The lack of an institutionalized and publicly articulated escalation control ladder, especially in the absence of a published National Security Strategy (NSS), complicates civil-military synchronization and strategic signaling to adversaries and allies alike.
  • Legal Consistency and Procedural Integrity under the UN Charter: Article 51 of the UN Charter mandates that any member state exercising the right of self-defence must immediately report its action to the UN Security Council (UNSC). Failure to comply undermines legal credibility and weakens the argument that the use of force was defensive and necessary.
  • Such procedural lapses weaken India’s legal position in multilateral fora and expose it to allegations of violating the prohibition against the use of force under Article 2(4).
  • Information Warfare and Narrative Control: The international perception of legitimacy in the use of force is increasingly shaped by narrative dominance. Competing accounts of the civilian impact of India’s strikes—amplified through digital platforms and geopolitical echo chambers—pose strategic and diplomatic risks.

• • • India’s Ministry of External Affairs (MEA), while denying collateral damage, failed to proactively publish strike footage or humanitarian assessments, leaving a vacuum exploited by adversarial narratives.

• • Doctrine Deficit and Strategic Ambiguity: India lacks a publicly articulated National Security Strategy (NSS). This doctrinal deficit:

• • • Undermines policy coherence,
    • Creates ambiguity about redlines and thresholds,
    • Obstructs inter-agency coordination in crises,
    • Weakens democratic accountability and civilian oversight.

• • More than 130 UN member states have published NSS documents, including major democracies and regional powers like Indonesia and Nigeria. India’s absence in this list is a glaring anomaly given its global ambitions.

THE WAY FORWARD:

• • Establish a Rapid Article 51 Compliance and Evidence Protocol: The Balakot air‑strike in February 2019 set a helpful precedent when New Delhi wrote immediately to the Council outlining the factual basis of its action.
    • A standard operating procedure—under the Cabinet Secretariat—must now formalise (a) satellite or drone imagery certified by the Defence Space Agency, (b) intercepted communications verified by the National Technical Research Organisation, and (c) casualty‑minimising assessments. Early submission builds legal credibility and preempts adversarial propaganda, as recommended by several international law scholars following the Balakot incident.
  • Upgrade Financial Sanctions Diplomacy and Norm Setting: India should lead a new Coalition of the Converging Wallets—G20 finance ministries, the Group of Financial Intelligence Units, and Gulf Cooperation Council partners—to impose automatic banking curbs on any entity named by the United Nations Security Council Resolution 1267 Committee. To reinforce the long game, India should revive its stalled Comprehensive Convention on International Terrorism draft and add a Proxy‑Terror Responsibility Clause that mirrors the 1974 Definition of Aggression Resolution—thereby hard-wiring state accountability for nonstate actors.
  • Create an Integrated Multi-Domain Counter‑Terror Strike Network: A single three-star Theatre Commander on the Western front should command:

• • • Defence Space Agency assets—including the fifty‑two surveillance satellites cleared in 2024—to give meter‑level revisit imagery every fifteen minutes.
    • High‑Altitude Long‑Endurance drones with Synthetic Aperture Radar, already under induction by the Indian Air Force, to slash the sensor‑to‑shooter cycle below fifteen minutes.
    • Phase‑II Ballistic Missile Defence interceptors, successfully flight‑tested in July 2024, to neutralise potential Pakistani retaliation at both endo‑ and exo‑atmospheric altitudes.

• • Legislate a National Security Doctrine Act with Parliamentary Oversight: Twenty-five years after the Group of Ministers’ reforms, India still lacks an approved National Security Strategy. A National Security Doctrine Act should therefore:

• • • mandate a quinquennial public summary of the Doctrine,
    • require an annual closed‑door briefing to the Standing Committee on Defence, and
    • empower the Comptroller and Auditor General to audit implementation baselines drawn from the Shekatkar Committee’s force‑restructuring targets.

THE CONCLUSION:

India’s calibrated use of force after Pahalgam illustrates a “deterrence‑by‑punishment” model that seeks to remain within the bounds of international law while signalling high political resolve. To sustain strategic credibility, New Delhi must pair kinetic responses with scrupulous legal compliance, diplomatic coalition‑building, and rigorous domestic oversight.

UPSC PAST YEAR QUESTION:

Q. Terrorism has become a significant threat to global peace and security.’ Evaluate the effectiveness of the United Nations Security Council’s Counter Terrorism Committee (CTC) and its associated bodies in addressing and mitigating this threat at the international level. 2024

MAINS PRACTICE QUESTION:

Q. Discuss the operational and strategic challenges for India in executing cross‑border counter‑terror strikes. Suggest policy measures to minimise escalation risks while preserving deterrence credibility.

SOURCE:

https://epaper.thehindu.com/reader