Drones and Pakistan's sovereignty

By Dr Farooq Hassan | Published: February 24, 2009

Psychologically the people of the country were quite bewildered when it transpired from the morning papers of morning of February 14 by reading the reverberating story from Washington that the drones that had killed several hundred of their fellow nationals since the present civilian government took office were actually flying from Pakistan territory itself. Could it be true? Did not the federal government protest several times to the US about these incursions into the county's airspace? Surely, people wondered how was it possible that these planes could do what they were manifestly doing with the knowledge and permission of the present regime?
I had come to know of this startling news item on the previous day when I was in Islamabad. I got word from my US law offices at about midday on the February 13 that it had been reported that Senator Feinstein, the powerful Senator from California, and now serving as the chair of the Senate Intelligence Committee had told the press that "she failed to understand the 'protests' of the Islamabad government" over the flying of drones in the northern parts of the country, as these "pilot-less predators were actually taking of from the territory of Pakistan" itself. I further learnt of this developing story when the Chicago Tribune Website reported of this disclosure that Diane Feinstein had made in Washington DC after on February 12. Soon thereafter it had been carried by LA Times as well.
While it would be foolhardy to deny that many disturbing questions arise as a result of this painful realisation for the people of Pakistan, my legal prediction prompts me to examine one particular aspect of this matter. If this is true as averred by the senator, what implications are we faced with in connection with the notion of sovereignty of Pakistan? Are sovereign nations, let alone those with nuclear capacity, subjected to this kind of treatment? What is the position of international law on this point?
International law had somewhat well defined rules about the "unilateral use of armed force." They were very limited too. Except or the deployment of force in "self-defence" or "retaliation", countries could not us force against the territory of other sovereign states. This is the "dicta" of the Permanent Court in the famous Naulila case. In the last forty years with the advancement of technology, the notion of self-defence changed its conceptions. It was then maintained that there could be-pre-emptive right of self-defence as well to save the subsequent or present the aggressor from possible initial damage from the state that it had attacked. The rider was clear that evidence that this kind of attack was about to occur was manifest. The same is true of the UN Charter which mandates that states categorically refrain from use of force against other member states.
The attacks on mud huts in which admittedly many civilians have died can hardly constitute the basis of pre-emptive strike in law. Since this is happening consistently over a period of several months, it cannot be said to be case of a self-defence of the variety identified by me. As such it looks either a case of attacks during "war" or attacks by "consent". There is obviously no "war" in any sense since not only Pakistan and the US continue to "allied" there is the arrival on almost weekly basis of visits of high visibility from Washington to Islamabad.

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