Not a redundant concept

Published Jun 08, 2012 12:10am

FEW things irk Pakistanis more than American violations of Pakistan’s sovereignty. Under international law, states are given near-absolute sovereignty domestically, i.e. non-interference by outsiders in their domestic affairs.

All states cede part of this sovereignty by joining international treaties and organisations which place restrictions on what they can do even domestically. For example, by joining the WTO, Pakistan has lost the freedom to provide certain subsidies to its domestic firms.

However, sovereignty is still not a redundant concept, for states have the right to decide which parts of their sovereignty they will cede and can rightfully protest if the non-ceded aspects are violated by outsiders. Thus, non-consensual violations of sovereignty are largely forbidden under international law.

States can violate another state’s sovereignty only in self-defence if attacked and even pre-emptively when another state is clearly poised to attack them. The UN Security Council has the right to approve violations of national sovereignty if a state poses a threat to international peace even if it has directly not attacked others. However, this option is utilised rarely due to disagreements among veto-wielding states.

So, is Pakistan justified in objecting to American drone attacks? Clearly, it has not attacked the US nor has the Security Council approved drone attacks. While there may have been a tacit understanding between the two on using drones earlier, Pakistan’s vociferous objections to them now mean clearly that it no longer abides by this agreement.

The problem with tacit agreements is that either side can withdraw from them unilaterally, leaving the other side with no legal remedy. Thus, Pakistan can justifiably object to drone attacks.

However, preserving one’s sovereignty requires that one respects others’ sovereignty. This means not only that a state does not violate others’ sovereignty itself but also that it takes responsibility for the action of its residents and does not allow them to violate the sovereignty of others.

Pakistan itself has admitted that non-state actors have used its territory to attack other states. Its defence is that it does not have the resources to tackle them. Unfortunately, this defence weakens its position further. How can Pakistan wax proud about its sovereignty while in the same breath indicating that it is too weak to control ragtag non-state actors?

Impotence and pride are strange bedfellows. This means that Pakistan is unwittingly delegating part of its defence and foreign policy to non-state actors —something no sovereignty-conscious state should do.

If it is too weak itself to tackle these actors presently, which are hurting Pakistan as well as others, then why not swallow its pride and ask for help from others instead of expecting its own citizens and others to suffer indefinitely while it develops the capacities to tackle them?

Fortunately, the Swat operation clearly demonstrates that Pakistan can tackle militants itself without external support. What is lacking now is the will not capacity.

While Pakistan’s failure to tackle non-state actors is evident, it is unclear whether this justifies American drone attacks. International law allows reactive or pre-emptive attacks against clearly identifiable state militaries but provides no guidance on cases where a state fails to tackle unmarked, violent non-state actors. Thus, drone attacks raise three legal issues.

First, they constitute attacks on a state which is not directly attacking America.

Second, they go beyond being pre-emptive attacks and constitute preventative attacks since the people usually targeted are not immediately in the act of attacking but are part of an organisation which may be planning future attacks against America. Preventative attacks have no legal basis and rely on the subjective judgment of a state without being verified by a neutral party.

Finally, there is the possibility of high civilian casualties since the determination of civilian-looking targets as combatants is based on intelligence operations whose level of accuracy is unknown.

The failure of American intelligence on the matter of Iraqi WMDs raises natural doubts about the accuracy of American intelligence operations everywhere. The last two objections would remain extant even if Pakistan agrees to American drone attacks.

America could take Pakistan to the Security Council arguing that Pakistan’s failure to tackle militants threatens international peace. However, it will undoubtedly not get the agreement of all veto-wielding states. Even so, it has many other options beyond drone attacks. Such attacks target both the Taliban and Al Qaeda.

For the Afghan Taliban, who only attack Afghanistan, the US can enhance the monitoring of the Pakistani border and attack armed Taliban fighters coming from Pakistan, using drones as well as conventional weapons. Such attacks will clearly constitute pre-emptive attacks and will not violate anyone’s sovereignty since Afghanistan has officially invited Nato troops. While this strategy may spare the Pakistan-based Taliban leaders, this omission may actually facilitate American desires to engage them peacefully.

Al Qaeda’s targets are global and its means more covert. Thus, its operations often are more difficult to stop pre-emptively. However, the US itself asserts that Al Qaeda is too weak to cause serious damage now. Furthermore, Pakistan has few compunctions about capturing Al Qaeda leaders. Thus, incentives to encourage Pakistan to capture Al Qaeda leaders through ground operations could replace drone attacks.

This strategy will require restraint which the US is often loath to exercise even though it preaches this quality to other states targeted by cross-border militants, e.g. Turkey and India. However, in the case of itself and Israel, the US behaves differently. Thus, the present Pakistan-American impasse can be broken through bilateral maturity and restraint. Unfortunately, neither country is famous for possessing these traits.

Finally, since the present state-focused international rules do not deal with cross-border militants effectively, clearer and effective rules must be developed multilaterally so that states are restrained both from tolerating militants within their territories and unilaterally pursuing dubious means in targeting them. Targeting terrorists is a worthy goal. The means used should be equally worthy.

The writer is a political economist at the University of California, Berkeley.

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Comments (8) (Closed)

zaka mirani
Jun 08, 2012 01:46pm
Permission to play drone strikes on pakistani soil was sought during musharaf reign,who,for the sake of getting an international recognition and respectable place in politics,left no stone unturned to fulfill his ambitions.the cause is neither the incapacity of one of the world's finest military to combat the terrorism,but these are the interests of politicians and rulers that hinder the progress. All issues will grow in intensity with time if our politicians dont realise that their interests are threatening the lives of many economically,socially and physically; And policymakers should start realizing that terrorism is a menace that needs to be wiped out.
Cyrus Howell
Jun 09, 2012 05:14pm
The Pakistan behavior of both the citizens and the government are making Pakistanis living in America outcasts. They are blaming Pakistan not America.
Cyrus Howell
Jun 09, 2012 05:12pm
"Few things irk Pakistanis more than American violations of Pakistan’s sovereignty." If I were a citizen of Pakistan I would feel exactly the same way - angry. + "Under international law, states are given near-absolute sovereignty domestically, i.e. non-interference by outsiders in their domestic affairs." Meaning that Pakistan's domestic affairs are (A) control by organized crime (in Karachi) (B) separatism (in Balochistan) (C) robbery and murder (in the NW Frontier Province) and (D) cross border raids and infiltration by Taliban (E) and kidnap gangs in Lahore. + Ask yourselves this question: What are Taliban doing in Karachi. There is a simple answer. + The USA certainly made a mistake intervening in Pakistan's domestic affairs.
Cyrus Howell
Jun 09, 2012 04:58pm
He who dares wins. The are times and places when only bandits can become kings.
Jun 08, 2012 05:49am
Very balanced article! Thanks. Another dimension is that the war on terror is proving to be very costly to the people fighting against terror - both in money and lives. Drones seem to be the only effective tool they have. Denying them the use of drones would be to ask them to fight with their hands tied behind. Not fair! I do not agree that Pakistan is unable to tackle terrorists within its borders! Despite having suffered the most at the hands of terrorists, they seem to suffer from a conviction deficit in fighting them.
Jun 08, 2012 06:36am
Nice article. Brings up good questions. If Pakistan's motives were not suspect, its apparent excuse - inability to take action against militants, would have been sympathetically received, and its involvement in drone actions jointly would have been pursued. However, Pakistan's motives are suspect, and its double dealings is interpreted as siding with the militants, and therefore the US and NATO have no choice but to deal with the militants in FATA and Waziristan themselves. Having let militants walk all over the land for 20 years, without any case for its sovereignty, it seems silly now for Pakistan to try to enforce its sovereignty or complain about it. The harm these militants cause Afgahnistan and India over the last 20 years has been immense. Pakistan has therefore forfeited its rights, by inaction.
Jun 08, 2012 06:38am
Two proverbs 'jis de ghar dane ohde kamale vi syane' (family which has sufficient to feed itself, its naives are intelligent) and 'ghareeb ki joru sab ki bhojai (bhabhi)' (poor man's wife is everyone's sister in law) explains the dilemma faced by Pakistan. I doubt in present day world primarily believing in free trade and foreign direct investment based on Dollar ($) economy; any country can claim same level of sovereignty as is enjoyed by USA. The first proverb explains the status of USA in 21st century and second proverb describes the plight of most of the countries of Asia including Pakistan The front line states bordering Afghanistan are ready to provide route for transportation for few $s it is immaterial whether it is 250 or 5000. why insist on USA and NATO allies treating Pakistan as equal partner in Afghanistan.
Jun 08, 2012 12:21pm
"While Pakistan’s failure to tackle non-state actors is evident, it is unclear whether this justifies American drone attacks. International law allows reactive or pre-emptive attacks against clearly identifiable state militaries but provides no guidance on cases where a state fails to tackle unmarked, violent non-state actors." Your knowledge is out-of-date. Under post-9/11 U.N. Security Council Resolution 1373 (binding Chapter VII resolution) Pakistan has the binding sovereign obligation to root out terrorists, terror networks, etc. from its territory. No action - Pakistan has refused to commit to doing this in the Wazirstans - means Pakistan has no sovereignty claim when other nations attack terrorists in these areas. It is understandable that you haven't heard much about this: since 2006 country reports from UNSCR 1373's intelligence arm, the Counter-Terrorism Committee, have been classified: