International law is dead, long live international law: the state practice of drone strikes

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

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The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The Italian Yearbook of International Law Online ◽

10.1163/22116133-03001012 ◽

2021 ◽

Vol 30 (1) ◽

pp. 209-225

Author(s):

Raffaella Nigro

Keyword(s):

International Law ◽

Current Practice ◽

The State ◽

Arbitral Tribunal ◽

Customary International Law ◽

Criminal Jurisdiction ◽

State Practice ◽

Majority Judgment ◽

Functional Immunity ◽

The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

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Emergence of the Individual as an International Juristic Entity: Enforcement of International Human Rights

Deakin Law Review ◽

10.21153/dlr2004vol9no2art255 ◽

2004 ◽

Vol 9 (2) ◽

pp. 534-572 ◽

Cited By ~ 4

Author(s):

Julie Cassidy

Keyword(s):

Human Rights ◽

International Law ◽

Minority Groups ◽

The State ◽

International Human Rights ◽

International Norm ◽

State Practice ◽

International Rights ◽

The Many ◽

The Individual

In this article it is contended that state practice, as evidenced in the declarations of the judiciary and the many treaties and conventions guaranteeing human rights, reveals a consensus of opinion acknowledging the individual to be an international juristic entity. So extensive is this practice that it could be seen as marking the emergence of a new customary international norm; or at least a general principle of international law, yet to crystallise into a custom; acknowledging the individual as the beneficiary of international rights. This is important for individuals and minority groups because if they possess international rights independently of the State, enforcement of their rights will no longer depend on the interests of the State. Where the State is often the offender of human rights, international law will not effectively confer any real rights unless the individual is so recognised as an inter- national juristic entity.

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Part III The Current International Law of State Immunity, 11 The Consent of the Foreign State: Waiver and the Arbitration Exception

The Law of State Immunity ◽

10.1093/law/9780198744412.003.0012 ◽

2015 ◽

Author(s):

Fox Hazel ◽

Webb Philippa

Keyword(s):

International Law ◽

The State ◽

General Requirement ◽

State Immunity ◽

Foreign State ◽

State Practice

This chapter examines UNCSI's provisions in respect of the consent of the State to the exercise of jurisdiction by the forum State, whether or not a restrictive doctrine is applied, by reference to state practice. State practice supports a general requirement of express and separate consent to both adjudication and enforcement of State immunity; which is set out in a detailed scheme in UNCSI in Articles 7, 8, 9, and 17 on express consent, participation in proceedings, counterclaims, and the effect of an arbitration agreement as an exception to immunity and in Part IV, particularly in Article 20, on the effect of consent to jurisdiction to measures of constraint.

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Pakistan

The Oxford Handbook of International Law in Asia and the Pacific ◽

10.1093/law/9780198793854.003.0024 ◽

2019 ◽

pp. 575-603

Author(s):

Ahmer Bilal Soofi

Keyword(s):

United Nations ◽

International Law ◽

The State ◽

International Treaties ◽

International Peace ◽

Sovereign State ◽

Governmental Organizations ◽

State Practice ◽

Peace And Security

This chapter evaluates international law in Pakistan. In the international arena, Pakistan was collectively recognized as a sovereign state within the community of nations by gaining membership of the United Nations. Pakistan is also a member of various other international and regional governmental organizations. Now enshrined in the country’s Constitution of 1973 are principles of policy for the state to ‘promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means’. With regards to its international law obligations, Pakistan operates as a dualist state: The Rules of Business 1973 empower the Cabinet to sign and ratify international treaties and agreements on behalf of the state, following which the Parliament is tasked with their incorporation via implementing legislation. The chapter then highlights Pakistan’s contribution to international law, through state practice or otherwise, as well as the role of international law in Pakistan’s domestic jurisprudence.

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Introduction to the AJIL Unbound Symposium on Recognition of Governments and Customary International Law

AJIL Unbound ◽

10.1017/s2398772300002166 ◽

2014 ◽

Vol 108 ◽

pp. 199-200

Author(s):

James Gathii

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Democratic Governance ◽

The State ◽

Effective Control ◽

Post Cold War ◽

Customary International Law ◽

Regime Changes ◽

State Practice

In the lead essay in this symposium, Professor Erika de Wet contends that notwithstanding all of the post-Cold War enthusiasm for a right to democratic governance and the non-recognition of governments resulting from coups and unconstitutional changes of government, a customary international law norm on the nonrecognition of governments established anti-democratically has not emerged. De Wet’s position, primarily based on state practice in Africa, is vigorously debated by six commentators.Jure Vidmar agrees with de Wet that the representative legitimacy of governments still lies primarily in effective control over the territory of the state. Vidmar, in his contribution, examines recent collective practice when neither the incumbent government nor the insurgents control the territory exclusively, arguing that in such cases states may apply human rights considerations. Like de Wet, however, Vidmar regards state practice as ambivalent and unamenable to ideal-type distinctions between coups (against a democratically legitimate government) and regime changes (to a democratically legitimate government).

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Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

AJIL Unbound ◽

10.1017/aju.2018.8 ◽

2018 ◽

Vol 112 ◽

pp. 4-8 ◽

Cited By ~ 2

Author(s):

Sean D. Murphy

Keyword(s):

International Law ◽

War Crimes ◽

The State ◽

Crimes Against Humanity ◽

Draft Article ◽

Criminal Jurisdiction ◽

State Practice ◽

International Law Commission ◽

Law Commission

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

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The State Duty to Protect against Human Rights Violations through Transnational Business Activities

Deakin Law Review ◽

10.21153/dlr2018vol23no0art804 ◽

2018 ◽

Vol 23 ◽

pp. 13-40 ◽

Cited By ~ 1

Author(s):

Markus Krajewski

Keyword(s):

Human Rights ◽

International Law ◽

The State ◽

Human Rights Violations ◽

Due Diligence ◽

Environmental Laws ◽

Human Rights Abuses ◽

State Practice ◽

Duty To Protect ◽

Respective State

Transnational corporations are currently not formally bound by international human rights obligations. Instead, states have a duty to protect individuals against human rights abuses by third parties, including corporations. While it is undisputed that this obligation extends to all individuals living on the territory of the respective state, the extraterritorial scope of the duty to protect remains contested. This is especially the case for human rights violations through transnational business activities. The state on whose territory the violation occurs has a duty to protect human rights by adopting and implementing labour and environmental laws applicable in that state. However, it is less clear if and to what extent the state of the main seat of the mother company or the global ordering company — the ‘home state’ — also has a human rights duty to regulate transnational business activity. This article argues that such a duty can be based on existing human rights doctrine and standards of general international law such as the ‘no harm’ rule and the due diligence principle. It argues that states have a duty to regulate transnational business activities of corporations over which they exercise jurisdiction if human rights violations caused by such activities are predictable and preventable. In its final part, the article assesses various approaches in state practice which could be seen as instruments in the fulfilment of the duty to regulate transnational business activities.

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Nationality, State Succession, and the Right of Option: The Case of Québec

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800006901 ◽

1999 ◽

Vol 36 ◽

pp. 151-180

Author(s):

Gibran van Ert

Keyword(s):

Human Rights ◽

International Law ◽

The State ◽

Human Right ◽

State Practice ◽

State Succession ◽

The Law ◽

The Right ◽

Nationality Law

SummarySome advocates of Québec separatism claim that Quebecers could retain their Canadian nationality following Québec’s secession from Canada. This article examines international nationality law to test the accuracy of that claim. A device known as an option exists in international law as a means of allowing individuals to determine for themselves the effect of state succession upon their nationality. This article considers the place of options in the law of state succession, both as it now stands and as proposed by the International Law Commission’s Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States, 1997. Four possible arguments in favour of a Québécois option are given, the most convincing of which arises by analogy to state practice in the use of plebiscites. This argument suggests that international law would require the state of Québec to grant all Canadians affected by Québec’s secession a right to opt for Canadian nationality instead of Québécois nationality with the caveat that those opting to retain Canadian nationality could face expulsion from Québec. Finally, the article suggests that the development of human rights in international law should extend to recognize a true human right of option in cases of state succession. Regrettably, the ILC Draft hinders, rather than encourages, this desirable development.

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