Article 51 of the UN Charter: Clause on self-defense in international law. lets learn more!

India defended its military strikes on terrorist targets in Pakistan by citing the “unwilling or unable doctrine” along with conventional principles of necessity and proportionality.

Article 51 of the United Nations Charter

Article 51 of the UN Charter allows for the use of force in self-defense solely when an armed attack takes place. It serves as an exception to Article 2(4) of the UN Charter, which forbids using force against the territorial integrity or political independence of any nation.

Military operations conducted under Article 51 must adhere to two essential principles:

• Requirement (Compulsion must be the sole choice remaining)
• Proportionality (the reaction must not be greater than the magnitude of the assault).

Article 51 places a duty on member states to promptly inform the UNSC of any military actions undertaken in self-defense. The UNSC subsequently takes on the power to initiate measures to uphold or reinstate global peace and security.

Is it possible to be applied to Non-State Actors?

Historically, the conduct between sovereign states is regulated by the UN Charter. After 9/11, many nations, notably the US, have contended that Article 51 applies to non-state actors (NSAs) like terrorist groups, even if they function from the territory of another nation.

Nonetheless, the International Court of Justice (ICJ) has upheld a more limited position. It maintained that self-defense can only be claimed when an armed assault is conducted by or for a state. Therefore, state attribution is an essential requirement.

What does the ‘unwilling or unable’ doctrine refer to?

Newly developing principles in international law allow for the use of force in self-defense against non-state actors (NSAs) based in another nation's territory, particularly when that nation is “unwilling or unable” to address the threat.

The US used it to defend the 2011 military action that resulted in the death of al-Qaeda chief Osama bin Laden in Pakistan and the 2014 air attacks on ISIS in Syria.

Is proportionality necessary?

Military actions in accordance with Article 51 must adhere to the principles of necessity and proportionality. It is widely recognized that a host state's failure or reluctance to neutralize NSAs might satisfy the necessity criterion.

The Leiden Policy Recommendations on Counter-Terrorism and International Law (2010) stress that military actions against the armed forces or facilities of the host state are allowed only in "exceptional circumstances," like when the state is actively aiding the terrorists.

This guarantees that self-defense does not serve as a general excuse for excessive or aggressive military actions, particularly in situations with non-state actors.

What does the future hold?

Should the ceasefire agreement between India and Pakistan not succeed, the UNSC might pass a resolution demanding an immediate halt to hostilities.

It can also decide on a later resolution to tackle any additional violations, which may involve sanction imposition or the deployment of its own military or peacekeeping forces.

Nevertheless, the actions of the UNSC are largely influenced by the geopolitical interests of the five permanent members (P5), all of whom possess veto power. This complicates the passage of any robust resolution regarding India-Pakistan matters.