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After Action: The U.S. Drone Program’s Expansion of International Law Justification for Use of Force Against Imminent Threats

Posted by on Friday, January 27, 2023 in Notes, Volume 76, Volume 76, Number 1.

Elodie O. Currier | 76 Vand. L. Rev. 259

Until the 2000s, the United States’ attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. It traces the history of the imminence exception to Article 2(4)’s prohibition on use of force, U.S. attempts to expand that exception, and the history of drone use outside of armed conflict. It then analyzes recent opinio juris and state practice to point to the adoption of elongated imminence into customary international law. Finally, it identifies some of the dangers of the current permissive paradigm and presents opportunities for U.S. leadership in forming a more advantageous and secure definition of imminence.

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Elodie O. Currier