257 / 536
243
CYIL 7 ȍ2016Ȏ
INTERNATIONAL LAW AND THE USE OF ARMED DRONES…
isolated violation of sovereign airspace usually does not suffice for triggering the
lawful action of self-defence according to Article 51 of the UN Charter.
Secondly, it is important to clarify whether Article 51 of the UN Charter actually
permits the use of force against a non-state actor located within the territory of another
sovereign state. Because of the extensive practice of the use of armed drones by the U.S.
in Pakistan and Yemen, this issue represents the biggest unsettled controversy over the
use of armed drones.
Despite Article 51 of the UN Charter being silent in respect of whom the right
may be used against, it is a natural conclusion that states should have a right to protect
themselves against an armed attack, disregarding whether it was initiated by a state or
non-state actor. Nowadays, it is almost a fact that states are no longer exclusive actors
on the international scene, and that non-state actors are gradually coming to be their
natural counter parts; therefore, if concluded otherwise, the inherent right of states
for self-defence would be factually eroded.
Obviously, the use of an armed drone by a victim state in self-defence in reaction
to an act of a non-state actor brings a number of questions on the spot to which
a state may not always find satisfactory answers. The key and central one is whether
acts of a non-state actor are attributable to a particular state or not.
Having in mind the well settled international legal order based on sovereignty of
states, the approach of the victim state before undertaking any actions in self-defence
should always be to search for attribution to another sovereign state. According to
a settled jurisprudence of the ICJ, every state is obliged “not to allow knowingly its
territory to be used for acts in a manner contrary to the rights of other States”.
16
Additionally, it is acknowledged that state sovereignty should not serve as protection
of a state if such a state is unable or unwilling to exercise its sovereignty within its
territory. This principle was confirmed in the
Lotus
case where it is stated that “a State
is bound to use due diligence to prevent the commission within its dominions of
criminal acts against another nation or its people.”
17
Therefore, if a territorial state is unable to act against a non-state actor, such
a state must be prepared to limit its own sovereignty in order to allow a victim state
to redress the situation. If a territorial state would be unwilling, the consequences
may differ as acts of such a state could be interpreted as a certain degree of support to
the aggressor (non-state actor). Furthermore, if established that there is a connection
world-middle-east-28920361 (visited on 10 August 2016) or on 17 July 2016 Russian UAV (not
known whether armed or unarmed) crossed Israeli airspace from Syria and conducted surveillance.
Israel unsuccessfully attemped to bring down this UAV. See more at
http://www.timesofisrael.com/russia-not-hezbollah-sent-drone-into-israel-report/ (visited on 10 August 2016).
16
ICJ, Corfu Channel Case, 1949, para 4, 22.
17
P.C.I. J., The Case of S.S. Lotus (Fr. v. Turk.), 1927, (Ser. A), No.10 (Sept. 7), at 4, 88.