A qualified defense of American drone attacks in northwest Pakistan under international humanitarian law

Since the terrorist attacks of September 11, 2001, international law has had to grapple with the fundamental challenges that large-scale violence carried out by non-State actors poses to the traditional inter- State orientation of international law. Questions related to the “adequacy” and “effectiveness” of international humanitarian law, international human rights law and the law related to the use of force have been particularly pronounced. This paper focuses on the international humanitarian law implications of American drone attacks in northwest Pakistan. A highly-advanced modality of modern warfare, armed drones highlight the possibilities, problems, prospects and pitfalls of high-tech warfare. How is the battlefield to be defined and delineated geographically and temporally? Who can be targeted, and by whom? Ultimately, this paper concludes that American drone attacks in northwest Pakistan are not unlawful as such under international humanitarian law, though, like any tactical decision in the context of asymmetric warfare, they should be continuously and closely monitored according to the dictates of law with sensitivity to facts on the ground.

Redefining the outer boundaries of EU Law: the Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens.These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of ‘depriving citizens of the Union of the genuine enjoyment of the substance’ of their rights (the ‘Zambrano principle’).The cases can, at the same time, also be read as a confirmation that the free movement provisions do – still – require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts.6 Moreover, the ‘reverse discrimination Pandora’s box’, the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to – once again – broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis.As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.