This article is authored by Ojaswa Pathak, a student at Gujarat National Law University, Gandhinagar. This article attempts to provide an overview of the debate around the legality of the right to anticipatory self-defence by arguing in favour of it.

Abstract

International law has evolved from allowing all forms of interstate use of force to limiting it to some circumstances and eventually prohibiting it completely in the post-Charter era. However, it has been maintained that this complete prohibition on the use of force is subject to exceptions, such as the ‘inherent’ right of self-defence recognized under Article 51 of the United Nations Charter. The contours of this right and the validity of anticipatory actions under this right have recently come under intense academic scrutiny owing to most cross-border counterterrorism operations basing their legality on this right. The paper aims to understand and settle the debate around legality of anticipatory self-defence by arguing in favour of such a right. Furthermore, it shall also posit the changes that this customary right has undergone since the events of the 9/11 attacks. Accordingly, the climatic part of this paper shall explain the new Doval Doctrine of India that involves cross border counterterror operations which include land-based strike operations, aerial strikes and even artillery strikes against the non-state actors based in foreign soil. This part shall also analyse the legality of such a policy based on the principles of general international law discussed herein. Lastly, the paper shall also give certain recommendations that can strengthen India’s diplomatic and legal position in conducting such operations in the future.