In this episode, I speak with Srinivas Burra, professor of law at South Asian University, Faculty of Legal Studies, in New Delhi, India. Srinivas has written extensively on both jus ad bellum and international humanitarian law, often with a focus on India’s practice and position in relation to these legal regimes. We discuss first how India’s position regarding the doctrine of self-defense, as indicated in statements in the recent Arria-formula meeting of the U.N. Security Council, appears to have shifted quite significantly as compared to the posture it adopted in the context of strikes against non-state actors within Pakistan in 2016 and 2019. Srinivas interprets the recent statements to suggest that India accepts both anticipatory self-defense and self-defense against non-state actors, but surprisingly, views its rejection of the “unwilling or unable” doctrine as taking a more expansive and aggressive posture than that doctrine allows when it comes to defending against non-state actors in non-consenting states. Turning to international humanitarian law, we discuss why India has continued to hold out against ratifying the Additional Protocols to the Geneva Conventions. Another fascinating discussion!
Materials:
– “India’s Decisive Turn on the Right to Self-Defence,” Opinio Juris, Mar. 22, 2021.
– “Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice,” 24 Asian Yearbook of International Law (2018).
– “India’s Strange Position on the Additional Protocols of 1977,” EJILTalk!, Feb. 15, 2019.
Recommended Reading:
– B. S. Chimni, “The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective,” 31 European Journal of International Law, volume 1211 (2020).
– Ntina Tzouvala, “TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures,” 109 American Journal of International Law: Unbound 266 (2015).
– Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’, in Anne Orford, ed., International Law and its Others, (2006).