Re-evaluating no first use n-policy

India’s nuclear doctrine must be reflective of a changed reality in which non-state actors pose a grave threat
Re-evaluating no first use n-policy

With whirlwind policy changes on an almost daily basis, it is rather surprising that India’s nuclear policy remains stuck in time. This paralysis is compounded by the world witnessing far-reaching developments that would directly call for an immediate change to our policy of “No First Use”. It is, therefore, exigent to welcome the defence minister’s call for the doctrine’s reconsideration. 

Today there exists recognition of the threats non-state actors pose. Yet, India’s counter-terrorism strategies had remained restricted to tackling threats retrospectively, until the Balakot air strikes. This prospective neutralisation of threats has made the argument for a change in our nuclear policy a fortiori. Nevertheless, the change is not to target the policies of an individual state but is due to an even graver reality of such states facilitating non-state actors to project force by their potential possession of Weapons of Mass Destruction (WMDs). This possibility is not in the realm of hypothesis. The world has witnessed the use of chemical weapons by terrorists in 1995 itself, with a group releasing a nerve gas into Tokyo’s subway system, killing many. 

This destructive potential of WMDs in the hands of rogue states and non-state actors has caused an overhaul of nuclear policies around the world, in the strongest possible terms. The prime articulation of this came as a consequence of the September 11 attacks, by way of the Bush Doctrine of “pre-emptive self-defence”. The doctrine asserts the right of the US to undertake pre-emptive actions to counter a sufficient threat to its national security, based on the principle: “the greater the threat, the greater the risk of inaction—and more compelling the case for taking anticipatory action.” Since then, the same right has been asserted by the UK, Israel and Russia, who have confirmed that they reserve the right to strike pre-emptively. 

Yet most importantly, if there was ever a reason to reconsider No First Use, it is Pakistan’s refusal to adopt it. Our neighbour’s posture is of asymmetric escalation, which is manifest in its prime minister’s recent warmongering rhetoric. Our policy allows Pakistan to believe that India’s conventional options have been neutralised because of our need to avoid the spiralling of belligerence in the region. According to a policy brief of Harvard’s Kennedy School, since 1998 Pakistan’s leadership believes that the current national nuclear policies have prevented India from escalating or retaliating. This has widely been cited as a reason for India’s subdued response to the 2008 Mumbai attacks. 

Despite the compounding threats of state and non-state actors becoming an intrinsic part of our geopolitical reality, naysayers point towards a changed position’s illegality in international law. The oft-cited provision is Article 2(4) of the Charter of the United Nations that strict constructionists believe reflective of a desire to prohibit transnational conflict generally and not just wars specifically. The broader term in the provision, which prohibits any “threat or use of force”, is said to comprehensively outlaw any form of military force at the first instance. Such scholarship acknowledges only two exceptions to the prohibition on the use of force: first, the authorisations of such use by the UN Security Council (Article 42); and second, the right of states to use force in self-defence (Article 51). For the current analysis, we are only concerned with the latter since it provides for unilateral action by states dehors any endorsement by the UN.

Those principled oppositionists, who argue that Article 2(4) provides for a complete prohibition, point towards the explicit words of Article 51. The article states that the right to self-defence can be exercised by a state only “if an armed attack occurs”. For scholars such as Ian Brownlie and Yoram Dinstein, this effectively forecloses any form of anticipatory action. It is further pointed out that the specific use of the words “armed attack” in Article 51, as opposed to the much broader prohibition on “use of force” in Article 2(4), buttresses the argument that the right to self-defence can only be exercised in situations where a state is exposed to the gravest forms of the use of force. 

Due to the widespread ramifications of a policy of pre-emptive self-defence, it becomes imperative to counter these opposing arguments in law and not just in practice. Thus, firstly, no authoritative source has ever taken a position against the right to pre-emptive self-defence. In fact, the judicial organ of the UN—the International Court of Justice—has not passed any adverse opinions regarding such a right, despite being given an explicit opportunity in the Nicaragua case. Secondly, Article 51 itself notes of an “inherent right” to self-defence.

This implies that the article itself does not create the right but only recognises a right that has existed prior to the Charter. In this light, it must be noted that prior to 1945, international law recognised the ability of a state to defend itself not just against an armed attack but also in anticipation of a threat. Therefore, it is apparent that the Charter itself accommodates for pre-emptive actions to safeguard national security.

India’s nuclear policy must be reflective of a changed reality. India correctly maintains that there must be a complete elimination of nuclear weapons from the world. However, till such a hopeful future is achieved, it is critical that No First Use succumbs to pre-emptive self-defence—if not for anything else, for the greater security of our region.

Pranay Lekhi

The author is a lawyer and currently an LL.M. candidate at the University of Cambridge, specialising in International Law

Email: pranaynathlekhi@gmail.com

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