The EU and armed drones – epilogue
The countries of the European Union are moving into the era of weaponized drones. While the United Kingdom remains the only EU country to deploy armed drones, several other EU member states are seeking to acquire weapons-equipped unmanned aerial vehicles (UAVs) or are debating their acquisition. Many European countries are also now involved in projects to develop weapons-capable drones themselves, though it is expected that European-made drones will not be ready for deployment for at least 10 years. Nevertheless, despite these developments and despite the extensive use of armed drones by the United States, the EU has not yet adopted any collective public position on some of the most hotly debated issues associated with the use of UAVs. Even individual member states have been slow to expound clear positions on the legal parameters for drone strikes. From one perspective, it might be thought odd that the development of a new weapons platform should give rise to demands for a defined European position. Admittedly, the acquisition of armed UAVs raises some questions for military forces that are different from those associated with other weapons systems: their combination of targeting precision, ability to remain over the battlespace for an extended period and elimination of any physical risk to the forces operating them are qualitatively different from other available military technologies and change the nature of the military engagement with the enemy. However the most striking feature of the global debate about drones has been the degree to which it has come to revolve around the way the United States has used UAVs to target suspected terrorists outside of battlefield conditions as part of its global campaign against al-Qaeda and associated groups. Calls for the EU to adopt a position on drones can most often be reduced to a request for clarification of the European view on the legality and morality of targeted killing conducted against individuals who do not pose an immediate threat to the forces attacking them. US practice in this area has gone beyond the boundaries that most western countries previously regarded as defining the limits of legitimate use of force. There are several reasons why it would be desirable for the EU to adopt a clearer line on this question. Bruno Oliveira Martins and Benedikt Backhaus (2015) highlight what is perhaps the most important one: given Europe’s long-standing role in helping define international norms, it would be regrettable for the EU not to participate in establishing the correct standards for a practice that could, under the legal regime asserted by the United States, cause significant damage to the international rule of law. As Elisabeth Schweiger (2015) argues, European silence should not necessarily be read as consent, but the
The European Union and armed drones: framing the debate
Armed drones – and their usage – are a topic extremely relevant for the EU. Several developments testify to this argument: the recent emergence of targeted killings as a common counter-terrorism technique; the existence of several EU member states using armed and surveillance drones in military scenarios; the presence of member states troops in areas where armed drones have been active; the US use of European-originated intelligence to execute targeted killings; and the broader status of international law, to mention a few. Yet, the EU still does not have an official position on armed drones. In 2014 the European Parliament recognized that this is problematic, adopting a Resolution that expressed “grave concern over the use of armed drones outside the international legal framework” and that urged the EU to “develop an appropriate policy response at both European and global level”. This Forum answers the European Parliament Resolution's call for the development of strategies for enhancing the international regulation of armed drones. It is composed of six articles that expand the contours of this debate aiming at presenting concrete ideas and policy recommendations for an EU position on armed drones, which in turn could contribute to the international regulation of this contending issue.
Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems
Uncertainty abounds in international law and customary international law is no exception. This article seeks to delineate this uncertainty and explain its causes. Not only is there uncertainty surrounding the exact nature of the two elements considered necessary for custom-formation - state practice and opinio juris - we also do not know how custom-formation works. It is not clear what precisely 'state practice' is, nor do we know how we can have a belief that something is already law in order to create it. The particular uncertainties of customary international law point directly to systemic uncertainties at a higher level. Article 38 of the Statute of the International Court of Justice is convenient, but is it authoritative? What is the basis of our knowledge regarding customary law-making? This article argues that two commonly used approaches to provide a theoretical underpinning - deduction and induction - are fundamentally flawed in their pure forms. Their problems are alleviated, but not solved, by combining them. Without a dominant legal culture and without a written constitution to blind us to other possibilities, not even a pragmatic outlook can save us from uncertainty. However, even where the law is not disputed, it remains an ideal, not real. Law is based on the fiction that it exists.