USE OF FORCE AS SELF DEFENCE AGAINST NON-STATE ACTORS AND TWAIL

CONSIDERATIONS: A CRITICAL ANALYSIS OF INDIA’S STATE PRACTICE

(BY SRINIVAS BURRA)
CONTEXT OF THIS ARTICLE- Legal framework of Use of Force as self defence; Scope of
self-defense against non-state actors; India’s state practice in this regard; Third world
approaches on this issue.
● What are non-state actors? The term “non-state actor” means a non-sovereign
entity that—
o exercises significant political power and territorial control;
o is outside the control of a sovereign government; and
o often employs violence in pursuit of its objectives.
● What are the statutes in consideration?
o Article 2(4), UN Charter- prohibits the use of force in international
law. States “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 in any other manner inconsistent with the Purposes of the United Nations.”
o Article 51, UN Charter- use of force as self defense- states “Nothing in
the present Charter shall impair the inherent right of individual or collective
self-defence 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.”
● What is the legal framework on the use of force? As given earlier, while the UN
Charter prohibits the use of force, it also provides for two exceptions-
o Article 51- Permissible if done for self-defence. “Immediate response of
the victim state”
o Article 42- Permissible if done with the authorization of the UNSC.
Envisions “institutional collective security response; could be individual
or collective.” States “Should the Security Council consider that measures provided
for in Article 41 would be inadequate or have proved to be inadequate, it may take
such action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security.”
● What makes this discussion significant? Considering growing terrorist activities, it is
important to determine at which point a state’s right to use force under
self-defence as envisioned in Art.51 arises and whether it can be exercised even
if it is against non-state actors like terrorist groups.
● What are the standpoints to justify the possibility or impossibility of exercising the right of
self-defence by the victim state?
o Textual analysis- Proponents of this standpoint argue that the text of
Art.51 only points towards an “armed attack” and not “armed attacks
from the state”. The weight is on the presence of the attack and not on
the source of it.

Criticism (logical incoherence of the textual analysis)- Fails to take into

consideration that Art. 51 is an exception to the all-encompassing
Art.2(4) and that the subsequent Articles 3 and 4, refer only to states
(original and new members respectively). Therefore, the intention was to
confine the framework of the Charter to only interstate use of force.
This becomes even more logical because “the confines of the latter are
determined by the scope of the former.” An exception must be interpreted
only in relation to the general framework.

Response (logical continuity between provisions was not intended)- Drafters

introduced a disconnect between the two provisions. If they had wanted
logical continuity, the phrasing of both would have been similar, i.e., Art.
51 would have had a similar construction. This is, however, not
considered a strong viewpoint.

o CIL perspective- Argues that the right of self-defence exists as part of

customary intl. law. Art. 51 does not create a right, but recognises an
existing right. The language states “Nothing in the present Charter shall impair
the inherent right of individual or collective self-defence.” The reference to
“inherent” implies pre-existing.

IMPORTANT- Origins of CIL on self-defence flow from the Caroline

Incident (1837)
Parties- Between USA and UK in relation to Canadian territory under
British control, there were violent resistances taking place near
Canada-US border territories.
Facts- Caroline, a vessel was destroyed by the UK (responding to
non-state actors) while it was in US waters. Daniel Webster (USA) and
Lord Ashburton (UK) exchanged letters, laying the foundation of law on
self-defence.
 UK- Pleaded necessity.
The US responded by noting that “use of force must be confined to cases in
which the necessity of self-defence is instant, overwhelming and leaves no
choice of means or no moment of deliberation.” Additionally, the action
must not be unreasonable or excessive.
Criticism- Comprehensive prohibition of the use of force only arose in
1945 as a part of the UN charter. Before that, there was no such
conception. Hence, it cannot be said that the law of self-defence
developed at a time when there was no clear legal prohibition on the use
of force and thus no legal necessity to prove that the right of
self-defence existed for the purpose of legally justifying the use of force.
Self-defence as an exception can only be envisioned when the legal
framework for the prohibition on use of force is present. Without it,
what even is the need for an exception to be considered.
o Analysis based on state practice- Given in a separate section
highlighting India’s state practice.
o What are the incidents being referred to assess India’s state practice?
▪ Surgical Strikes of 2016- There were two sets of justifications-
● That it was under self-defence against the terrorist attacks
on Uri and that the Charter does not lay down a prescribed
time limit. That it was not, legally speaking, an armed
action in the territory of another state.
● “Unable and unwilling” test justification- That there was
an inability of Pak to prevent its territory from being a
haven for terrorists.
▪ Balakot Strikes of 2019- Neither India nor Pakistan wanted to
legally categorise their actions as the use of force based on
self-defence. India did not even rely on the “unable and unwilling”
test to justify its attack.
Therefore, India remains ambiguous when it comes to its position. It has
indulged in using force against NSAs but remains silent on the legal
position with respect to the same.
● What is the TWAIL perspective?
o The “unwilling or unable” doctrine is seen as a manifestation of
imperial aspirations and as a continuation of older international legal
 structures, but the text acknowledges the need to strike a balance
between history and the present in the critique of international law.
o The text argues that TWAIL is not limited to critiquing historical
oppression but can also generate methodological tools to analyse
changes in international law, including ruptures.
o It highlights the complexity of evaluating the law on the prohibition of
the use of force, as it can both prohibit and allow for exceptions like the
“unwilling or unable” doctrine. The text suggests that a selective critique
of international law can be seen as “principled opportunism” to address
fundamental problems while using contextual opportunities for critique.
CRUX
In recent years, the right of self-defence against Non-State Actors (NSAs)
from another state has faced scrutiny, particularly since 9/11. There are two
contrasting views: one supporting permissibility and another advocating for
restrictions. Despite claims of emerging state practice favouring self-defence
against NSAs, India has not endorsed this view. The analysis suggests that
existing international law, including treaties and customary practices, does
not support this right. Third World Approaches to International Law
(TWAIL) can critique oppressive historical trends while identifying
significant ruptures in international law, like the UN Charter, that may help
counter problematic doctrines like the “unwilling or unable” test.