Drones, Discretion, and the Duty to Protect the Right to Life: Germany and its Role in the US Drone Programme before the Higher Administrative Court of Münster
German Yearbook of International Law, Forthcoming
27 Pages Posted: 19 Dec 2019 Last revised: 3 Jan 2020
Date Written: December 19, 2019
In 2014, three Yemeni claimants filed an administrative complaint against the German government addressing Germany’s role in the US drone programme. Relying on the right to life under the German Basic Law, the claimants argued that German authorities must prevent the US from using its air base in Ramstein, Germany, for purposes of conducting drone strikes that might unlawfully harm the claimants. On 19th March 2019, the Higher Administrative Court of Münster overruled the court of first instance and partly decided in favour of the claimants. In what is a highly interesting and thought-provoking judgment, the Court not only finds strong reasons to suspect that US drone strikes in Yemen, at least partially, violate international law. Even more, it orders the German government to ‘ascertain’ that the US drone strikes conducted via Ramstein Air Base are compatible with international law and, ‘if necessary’, to ‘work towards’ compliance with international law. Remarkable enough, this outcome is not the only reason why the judgment is worth being discussed: It furthermore raises interesting and difficult questions as to the material and territorial reach of fundamental rights under the German Basic Law, their inter-relation with international law, as well as the scope – and limits – of judicial review in matters of international law and foreign affairs.
Keywords: extraterritorial applicability of fundamental rights; duty to protect the right to life; judicial review in foreign affairs; interaction of domestic law and international law; international humanitarian law; international human rights law; prohibition on the use of force
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