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Legality of drone use.

 

Legality of drone strikes. 1

Introduction.. 1

Research Aims and Objectives. 2

Methodology. 3

Literature Review.. 5

Research Constraints. 8

Doctrinal Research.. 9

Bibliography. 10

Introduction

Previously thought to be used in agriculture, emergency-management, lately the energy industry, drones have come to be wholeheartedly adopted and used by the militaries of both state and non-state forces. The use of drones to strike targets has gained unprecedented traction in the last couples years, with Teal Group (2014) suggesting that drone industry will constitute a $11.5-billion industry by 2020.  Countries operating drones to strikes tend to be oblivious to the aviation rules in place, and harbinger some perilous incidents. There has been a number of incidents involving drone crashes, which have highlighted the issue of their legality.  The notorious incident involving US military deploying drones to shrike in some areas of Pakistan further substantiated how legality of drone use remains one of the obscure aspects of drone use. Since drones are a relatively new phenomenon and the Article 2 (4) of the Charter of United Nations does not apply to drone strikes, there is a gap in academic research into the rules and regulations regulating the drone use international public law. This research aims to analyze the international legal framework pertaining to the use of drones by USA military and other actors, and provide recommendations as to how to make the current legal more pro-active and effective in preventing more precarious incidents in the USA.

Research Aims and Objectives

The drone use by armed forces of countries whether for targeted killing or not uses has been inexorably rising, and so the international laws are evolving on a constant basis. The research questions of this current legal research are;

  • What are the laws regulating drone use by countries on the international level?
  • What improvement can be implemented in the laws regulating drone use by state and non-state actors to ensure the safety of others, and ensure compliance?

Methodology

Methodology refers to a mix of strategies and methods employed by researcher to achieve the research objectives of the researchers. For law dissertations, doctrinal and non-doctrinal research methods are considered the most prevalent ones (McConville and Wing, 2007)

Notwithstanding how common law doctrines are contained in either statues, and cases, merely analyzing them disparately does not result in researcher deriving a complete overview of legal doctrines. To ensure that the research aims, as outlined in the preceding chapter, are fulfilled, the researcher has decided to utilize the so-called doctrinal research method. Doctrinal research involves the exhaustive analysis of legislation, cases, and legal opinions to answer research questions and achieve research objectives (McConville and Wing, 2007).  Doctrinal research is one of the most prevalent research methods in common law legal systems.  Doctrinal research method has been defined a research method which involves ‘a critical conceptual analysis of all relevant legislation and case law to reveal a statement of the law relevant to the matter under investigation’ (Hutchinson, 2014). Council of Australian Law Deans (2005) ventured to define doctrinal research as a ‘rigorous analysis and creative synthesis’ of disparate doctrinal doctrines, and case precedent.

For doctrinal research method, the researcher collects primary data- derived from legislations, case precedent, and other sources of primary data- and then analyzes and synthesizes to construct principles predicated upon the exhaustive analysis.  These principles will then be applied to research questions.  There are number of key legislations at on international level regulating the use of drones by States to strike targets on air and on the ground.

To achieve the second research objective, which is to recommend law reform as to how make the use of drones  strikes better regulated, the researcher plans to complement doctrinal research with law reform research method. The Pearce Committee has furnished as somehow lucid definition of what law reform research entails, by suggesting that law reform research ‘intensively evaluates the adequacy of existing rules and which recommends changes to any rules found wanting’. Furthermore, law reform research is considered as separate research method than doctrinal research. Hutchinson (2016) suggests that doctrinal research’s overriding aim is to analyze the current legal framework, whereas, law reform research (i.e. reform-driven research) aims to make recommendations to fill the gaps in law itself. Hutchins (2016) cites how legal researcher can combine two of the research methods to better achieve their research objectives.  Based on the above analysis, the research will be using the reform-oriented research method which are predicated on the results of the doctrinal research method.

To conclude, the doctrinal research has been chosen by the researcher since doctrinal research method enables the researcher to conduct a thorough analysis of legal framework regulating use of drones for military puposes, and the so-called reform-oriented research has been implemented to ensure that the researcher utilizes the results of the current data to devise recommendations as to how make the legal issues more transparent and effective.

Literature Review

There has been a number of studies researching the interrelationship between law, drones, and military. The most studies seem to exclusively focus on improving the laws regulating drone usage to ensure that the privacy and human rights of individuals are not breached whenever drones are deployed to strike forces.

Clarke (2014) underscores the importance of how drones came to be a threat to human rights, citing how it has exacerbated the problem posed by surveillance cameras.   Clarke (2014) also identified the shortfall in the current legal framework regarding the regulation of drones use in international law and suggested a number of measures (i.e. steps) to be taken on international level to counteract the privacy issues caused by drones.  Schlag (2013) came to comparable conclusions as to how drones undermine personal privacy and how the laws in place omit to ensure protection of human rights of individuals. Both Clarke (2014) and Schlag (2013) both came to similar findings as to how drones pose a present danger to human rights, and how the current legislations on both national and international level level are not conducive to the protection of human rights across the globe.  Furthermore, Azriel (2017) cites how drones give rise to a number human rights issues, and how the laws vary from State to State, highlighting the lack of uniformity between States laws. Azriel (2017 underlines how a handful of states including countries have laws in place which prohibit the use of drones to collect information from individual without his or her consent by their military.

Information and Privacy Commissioner (2012) notes that the increase in the use of drones (i.e. unmanned aerial vehicles) can facilitate the unlawful collections, storage, dissemination of personal data. Information and Privacy Commissioner (2012) also highlights how drones can be inimical to personal human rights due to their nature, and considers that the laws currently in place to regulate drones are far from perfect, and fail to effectively and efficiently regulate the use of drones for commercial and personal purposes. Calo (2011) postulates analogous views, by stressing the implications of drones on human rights and how the current legislations on international level needs to be overhauled to ensure that human rights of individuals is not violated with the unprecedented increase in the use of drones.  Calo (2011) positions himself as the most adamant critic of drones, and advocated for more stringent rules and laws. Oyenunle (2013) suggests how the use of drones can impact human rights, and personal information, and researched the efficacy of the FAA Modernization and Reform Act of 2012 in ensuring the safety in US air traffic following the use of drones. Oyenunle (2013) cites how the FAA Act of 2012 does not provide for an unambiguous process whereby individuals can obtain licenses to operated drones. She furthermore suggests how the FAA Act does not specify entities (i.e. and individuals) who can be eligible for FAA license to operate drones in US airspace.  Nonetheless, Oyenunle (2013) posits how the fact that licensing is only required of individuals and entities intending to use their drones for commercial purposes. The above analysis suggests that the legal research into drone use has been concentrated on privacy issues, with drone strikes garnering less academic attention.

Gardam (2004) has delved into how the current FAA has a loophole in enabling individuals operate drones without express licensing. Gardam (2004) suggest that even though Article 2 of the United Nations Charter stipulates that  any use of force by countries have to be authorized, states deploying their successfully tap on a number of defenses, and cite the inapplicability of Article 2. His conclusion seems to be in line with Oyengule (2013) and other who advocated for more laws regulating the use of drones for military purposes on international levels.

Overall, most of the pertaining journal articles – Calo (2011), Information and Privacy Commissioner (2012), Schlag (2013) and Clarke (2014) concentrate on the impact of drones use on privacy and highlight the insufficiencies within the current legal framework regulatory drone use by militaries, and how they contradict human rights.

On the other hand, most legal researchers concentrate on the security risks posed by individuals or institutions deploying drones for a plethora of purposes. Voss (2013) suggests that the use of drones for justice and security purposes can be economically-attractive. Nonetheless, Voss (2013) posits that laws in place to ensure the security of individuals when surveilled by a drone do not successfully ensure safety in spaces where drones are operated, and highlights a number of areas which need to be reconsidered in compliance with the increased use of drones by miliatires across the globe. Haddal et al.  (2010) concentrates on how the accident rates are higher with UAVs, compared to those manned by humans, and discovered a positive relationship between the incident involving drones, and the likelihood of CBP obtaining the requisites certifications from individual states to deploy drones on their respective borders. Haddal et al.  (2010) also make a number of suggestion to Congress as to how make the use of drones by CBP agents.  Jason (2004) also studies the use of drones, but also predominantly concentrated on the use of drones in military and in homeland security.  Nonetheless, their research is exclusively focused on the use of drones to protect the US borders by the Department of Homeland Security. Therefore, the applicability and reliability of their research to the use of drones by private individuals, or the laws governing how individuals use their drones is limited, at best.

To conclude, the literature review suggests that notwithstanding the subject areas being new, there have been a number of studies conducted into the use of drones by militaries around the world and their implications on human rights and security. Nonetheless, most of the academic literature concentrated on the relationship between drones and security or human rights, with a tentative consensus as to how drones can lead to human rights and security issues. Therefore, this particular research aims to fill the gap and formulate the legal framework of drone strikes, and advise on international law.

Research Constraints

Doctrinal Research

Firstly, Chynoweth (2012) suggests that legal doctrinal law research overlooks researching the social, cultural implications of laws in place, and considered it as one of the key limitations of doctrinal research. This limitation of doctrinal research method has been cited as one its major limitations as it is not conducive to the formulation of insights into the impacts of law on society (Qureshi, 2015).  The researcher acknowledges that employing doctrinal research method can have a number of limitations. Nonetheless, to ensure the validity and reliability of the research is not undermined, the researcher has decided to complement it with reform-oriented research method, as outlined in Methodology.  Moreover, doctrinal research has been the subject of considerable criticism for being too formalistic in approach (Salter and Mason, 2007).

Legal issues related to the military use of drones are yet to be exhaustively researched by legal researchers, and suggests that there is remains a gap in legal literature as to these legal issues. Therefore, the researcher considers the lack of previous researcher into the area as a limitation. Previous academic literature can be utilized to either confirm or refute the validity of legal research results. Nonetheless, as the literature review suggest, there has not been conducted an exhaustive into legal issues relating drone use by private individuals.

The research aims and objectives were found to be relatively narrow once the available academic literature into drone use and their legal implications has been analyzed.  Narrowly or broadly formulated research aims and objectives can also constitute a limitation.  Therefore, the researcher considers that the way the research questions have been formulated for this research might retard the research process, incurring additional constraints to the researcher. 

Bibliography

  • McConville M and  Chui W H 2007, Research Methods for Law, Edinburgh University Press
  • Salter M and Mason J 2007, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research, Pearson Education Limited
  • Council of Australian Law Deans 2005, Statement on the Nature of Legal Research, accessed 15 February, 2018 <https://cald.asn.au/wp-content/uploads/2017/11/cald-statement-on-the-nature-of-legal-research-20051.pdf>
  • Hutchinson, T 2014, ‘Valé Bunny Watson? Law Librarians, Law Libraries and Legal Research in the Post-Internet Era’Law Library Journal 579, 106(4)
  • Calo, R. 2011 ‘The drone as privacy catalyst.’ 64 Stan. L. Rev. accessed 9 February 2018 <http://www.stanfordlawreview. org/online/drone-privacy-catalyst>
  • Hutchinson, T 2015 ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’, Erasmus Law Review, 3-138
  • Qureshi, Sh 2015 ‘Research Methodology in Law and Its Application to Women’s Human Rights Law’ Journal of Political Studies, Vol. 22, No. 2
  • Azriel, J 2017 ‘Restrictions Against Press and Paparazzi in California: Analysis of Sections 1708.8 and 1708.7 of the California Civil Code’ UCLA Entertainmetn Law Review Vol 21. No. 1 accessed 14 February 2018 <https://escholarship.org/content/qt4bj7x2tb/qt4bj7x2tb.pdf>
  • Schlag, Ch 2013 ‘The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights’ Pitt. J. Tech. L. & Pol’y [i] (2012-2013)
  • Teal Group 2014, Teal Group, accessed 10 February 2018 <http://www.tealgroup.com/index.php/about-teal-group-corporation/press-releases/118-2014-uav-press-release>
  • Mulligan, J 2012 ‘Legal and Policy Issues in the FAA Modernization and Reform Act of 2012’ 11 Issues Aviation L. & Pol’y 395 (2011-2012)
  • Clarke, R 2014 ‘The regulation of civilian drones’ impacts on behavioral privacy’ Computer Law and Security Review, Vol. 30, No.3
  • Oyegunle, A 2013 ‘Drones in the Homeland: A Potential Privacy Obstruction Under the Fourth Amendment and the Common Law Trespass Doctrine’ Commlaw Conspectus, Vol. 21 accessed 10 February 2018 <https://scholarship.law.edu/cgi/viewcontent.cgi?article=1528&context=commlaw>
  • Information and Privacy Commissioner, 2012 ‘Privacy and Drones: Unmanned Aerial Vehicles’ accessed 5 February 2018 <https://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn29822-eng.pdf>
  • Chynoweth, P 2012 ‘Legal Research’ accessed 3 February 2018 <http://www.csas.ed.ac.uk/__data/assets/pdf_file/0005/66542/Legal_Research_Chynoweth_-_Salford_Uni.pdf>
  • Jason, B 2004 ‘Border Security and Unmanned Aerial Vehicles’, The Congressional Research Service (CRS) accessed 1 February 2018 <http://www.dtic.mil/docs/citations/ADA477186>
  • Haddal Ch and Gertler J 2010 ‘Homeland Security: Unmanned Aerial Vehicles and Border Surveillance’, The Congressional Research Service (CRS) accessed 1 February 2018 <http://www.dtic.mil/docs/citations/ADA524297>
  • Voss, W 2013 ‘Privacy law implications of the use of drones for security and justice purposes’ International Journal of Liability and Scientific Enquiry Vol. 5, No. 4
  • Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge University Press, 2004) 156.

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