Pakistan's election hopefuls have expressed strong and vocal opposition to U.S. drone strikes within the country.
Pakistan People's Party chairman Bilawal Bhutto Zardari, who participated in a government that visibly failed to do much to prevent drone strikes for five years, recently insisted that such strikes are "counter-productive."
Nawaz Sharif, leader of the Pakistan Muslim League-Nawaz and two-time former prime minister, similarly lambasted the U.S. policy saying that "Drone attacks are against the national sovereignty and a challenge for the country's autonomy and independence. Therefore, we won't tolerate these attacks in our territorial jurisdictions."
And no one has been more vocal and stringent in his opposition to drones than the chairman of the Pakistan Tehreek-e-Insaaf party, Imran Khan, the increasingly popular and charismatic contender for prime minister. Khan has even gone so far as to promise that, if elected, his government will shoot down any drone that crosses into Pakistan after May 11.
Yet, despite all the heavy pre-election posturing and rhetoric, the million rupee question remains: is Pakistan legally entitled to shoot down U.S. drones that enter its territory?
The short answer is yes. Unless it has consented to the use of drones in its territory, Pakistan most certainly can shoot them down as a matter of international law.
The United Nations Charter-a treaty which virtually all states in the world have agreed to follow and one that is sometimes touted as the "constitution of the international community"-forbids states from using force in another state unless it is used 1) in self-defense to repel an "armed attack"; 2) with the approval of the U.N. Security Council; or 3) because the state in which force is being used has consented to it.
That is, the U.S. drone war must fall within one of these exceptions to be legal.
We know the U.N. Security Council has never authorized the use of U.S. drones in Pakistan. And neither has Pakistan ever engaged in an "armed attack" against the United States, nor has the United States claimed as much. That leaves consent as the only legal justification for the program.
While, as I have previously written, claims of a denial of consent by the Pakistani government should be viewed with some skepticism-especially in light of former president Pervez Musharraf's admission that he allowed a ‘few' drone strikes to take place-publicly and for all official purposes, the Pakistani government vehemently denies that it has ever consented to U.S. drones being operated in its territory. In fact, in 2011, Pakistan shut down a CIA base which was being used to launch drones.
Further, Ben Emmerson QC, the U.N. Special Rapporteur on Counter-Terrorism and Human Rights, has certainly been persuaded by Pakistan's narrative that there is no "tacit consent by Pakistan to the use of drones on its territory". In a recent news article, he categorically stated that drone strikes were a "violation of Pakistan's sovereignty".
Assuming then that consent has not been given by Pakistan, the use of drones in its territory would prima facie be an illegal use of force against a sovereign nation. Pakistan would thus be well within its rights, under international law, to destroy any drone that crosses into its airspace.
Now, here's where things do get slightly complicated. Sometimes when military force is used abroad in countries which have not really attacked the "defending state," new theories can be innovated to justify such force; and the drone war in Pakistan is no exception.
Some U.S. lawyers, including Eric Holder, John Brennan, and John Bellinger have argued that drone strikes in Pakistan are a legal form of "self-defense" because Pakistan is "unwilling or unable" to prevent threats to the United States.
This is also one of the main messages of the Department of Justice memo which essentially argues that the United States has a right, under international law, to kill persons in other countries-via drones or other means-that it determines are "associated" with al-Qaeda and who pose an "imminent threat" to the United States if the country where such individuals are allegedly based is "unwilling or unable" to do so itself. Consent is desirable but not necessary.
As I wrote in a recent journal article, this argument is very controversial and has little legal traction. Pakistan could, if it wanted to, easily challenge this doctrine as being of dubious and weak legal pedigree.
First, international law does not allow a state to unilaterally attack targets within another state to eliminate potential "threats." An armed attack must have occurred or at least be imminent against the self-defending state for an argument of self-defense to have any legal grounding.
Second, while Pakistan is legally obliged to use "best efforts" to prevent individuals on its territory from launching armed attacks against other states, unless it can be proven that Pakistan has in fact supported these individuals by, for example, supplying them with weapons or other forms of assistance, Pakistani territory cannot be attacked simply because Pakistan is allegedly "unwilling or unable" to suppress such individuals.
To be sure, Pakistan may still be liable for reparations or other measures for failing to prevent an attack against another state, but this failure does not translate into a right for another state to conduct lethal drone attacks in its territory as a unilateral "self-help" measure.
Third, prominent American legal scholars, including Mary Ellen O'Connell and Eric Posner, have rejected the international legality of the "unwilling or unable" doctrine. In fact, apart from the United States, only three countries-Israel, Russia, and Turkey-have explicitly invoked some variant of this theory in the past fifty years or more. But even these countries, on the rare occasion when they have done so, have never justified their actions as motivated by a legal obligation.
And most importantly, the International Court of Justice-the principal judicial organ of the United Nations and popularly known as the "World Court"-agrees. It has on two recent occasions-one concerning Uganda and the other Israel-passed judgment that weak states cannot be attacked and invaded because they failed to prevent individuals in their territory from launching attacks abroad.
And for good reason too. A theory that permits the use of force in a state such as Pakistan because it is "unwilling or unable" to do something opens up far too many loopholes for aggression and makes the prohibition against the use of force contained in the U.N. Charter somewhat redundant.
To put it succinctly, if the new Pakistani government were to argue that the use of drones within its territory are illegal and were indeed bold enough to take the unprecedented step of shooting one down, it would have a strong case under international law that it was acting in "self-defense," provided it has not consented to drone strikes.
Of course, just because an action is legally sound does not mean that it is politically feasible. The Wall Street Journal previously reported that "Pakistan has considered shooting down a drone to reassert control over the country's airspace but shelved the idea as needlessly provocative." And one can see why.
Unfortunately, that is one limitation that smaller states sometimes face when they try to assert their international legal rights against a far more powerful state.
Nevertheless, as far as international law goes, yes Mr. Khan, absent consent, you are free to shoot down any drones that enter into Pakistani territory.
Dawood I. Ahmed is a lawyer and a doctoral candidate in international law at the University of Chicago. He is the author of the forthcoming article "Defending Weak States Against the ‘Unwilling or Unable' Doctrine of Self-Defense," which can be found online here
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