Drones and the Chicago convention : an examination of the concepts of aerial sovereignty, the war on terror and the notion of self-defence in relation to the Chicago convention

Abstract

From 2004 to the present the United States Government has employed drones for cross-border law enforcement purposes in the sovereign territory of Pakistan. Various opinions exist as to whether the US is justified in its intrusion into the territory of another sovereign state. Matters regarding to both the integrity of territorial sovereignty and the use of force by a foreign country within the sovereign domain of another state are confirmed by both customary and treaty law. The United States and Pakistan are both parties to the two treaties that enshrine the principle of sovereignty - the UN Charter and the Chicago Convention of 1944. Drones are being used increasingly by governments and private individuals for a host of reasons, ranging from military aggression to aerial recreation. They fulfil various military and useful other tasks, with the result that they are becoming increasingly indispensable. But, as with all technological innovations, the beneficial aspects of these inventions are counterbalanced by the aggressive and destructive use that can be made of them. Some see the employment of drones for military purposes, such as the elimination of terrorist leaders linked to Al Qaeda in Pakistan, as preferable to whole scale destructive warfare. By the same token though, the argument can be made that the reasoning offered to justify intrusions into the sovereign territory of another state is insubstantial to the point of being dispensable and that the abuse of drones as weapons on these insubstantial grounds thereby becomes a real threat to civilised society and to international peace and security. The purpose - and burden - of this study are to debate the legality and the justifications for the use of drones for law enforcement (seemingly military) purposes by the United States in the sovereign territory of Pakistan. A clear view of the permissibility and legality of this campaign in Pakistan is of considerable consequence to other countries that could find their sovereignty compromised. Two essential ‘tools’ used to establish legal clarity in this matter are the Chicago Convention of 1944 and the UN Charter of 1945. The relevant provisions of these international agreements will therefore be studied in detail. Both these conventions were signed by Pakistan and the United States, and both contain provisions protecting the territorial integrity and sovereignty of states. Reference will additionally be made to the Vienna Convention on the Law of Treaties in order to interpret the provisions of the Chicago Convention which is viewed by some as appropriate to regulate drone warfare. The writer intends to use this Convention to show that the applicability of the Chicago Convention may be open to dispute and that, instead, cross-border drone operations and the protection of aerial sovereignty depend on the purport of article 2(4) of the UN Charter and the customary principle of aerial sovereignty. Therefore, the need to thoroughly examine and understand the concepts of the so-called ‘war on terror’ and the principle of preemptive self-defence is considered critical for the purpose in hand, as the United States uses these elements as justification for their infringement of Pakistani sovereign territory and their cross-border use of force in drone operations. These matters will, therefore, receive appropriate attention by reference to the relevant provisions in the UN Charter as well as the principles set out in international case law dealing with the subject matter.