The use of drones for cross-border law enforcement and military purposes in another state's sovereign airspace: a legal analysis

Martha Bradley, Annelize Nienaber

Research output: Contribution to journalArticlepeer-review

Abstract

Traditional methods of warfare and traditionally-defined battlefields have given way to targeted killings in both law enforcement and military operations. The beginning of the twenty-first century has heralded an upsurge in non-international armed conflicts where civilian population centres have become targets of insurgents and terrorist groups. Even our ideas of what constitutes a war are challenged by the US which proclaims that it is fighting a ‘war on terror’ which entitles it to hunt down terrorists associated with Al Quaeda anywhere in the world. Weaponry, too, has changed from traditional arms to unmanned robotic devices, including unmanned aerial vehicles (UAVs) or drones. All indications are that the use of UAVs is on the increase: during 2009 the US purchased more unmanned than manned aircraft. Some claim that these UAVs are a cleaner and more precise method of warfare and that, therefore, we should applaud their use. However, such claims disregard the potential ethical and legal challenges imbedded in the appropriate use of these weapons, not to mention the array of infringements of international law that occur when these weapons are used inappropriately. A review of the current legal framework governing aerial sovereignty and territorial integrity against intrusions and cross-border use of force by means of UAVs is the starting point in determining whether US action in Pakistan is legal. Next the concept of aerial sovereignty pertaining to state and military aircraft as mentioned in the Chicago Convention is explored and the Vienna Convention on the Law of Treaties is employed to show conclusively that, under the laws of treaty interpretation, UAVs are not subject to the provisions of the Chicago Convention. In order to further the object of ascertaining the legality of US drone operations in Pakistan, Article 2(4) of the UN Charter is invoked in as far as it deals with sovereignty and sovereign integrity due to the illegal use of force. As it is the premise of this article that US drone operations in Pakistan may violate Pakistani aerial sovereignty, it is apposite that the discussion begins with an excavation of the concept of sovereignty.
Original languageEnglish
Pages (from-to)411-430
Number of pages20
JournalHungarian Yearbook of International Law & European Law
Volume3
Issue number1
Publication statusPublished - 24 Feb 2016
Externally publishedYes

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