It has been the killing of Anwar al-Awlaki that has made the headlines, though it appears that among the others killed were two other US targets (report here). Among the reactions worth reading are Juan Cole, the Disorder of Things and John Protevi. From the last:
Here’s the key: the Treaty of Westphalia gives nation-states sovereignty over the population within their borders. So, to abide by the principles laid out in the Treaty — principles which serve as the basis for evolved international law / just war theory — killings by agents of one nation-state within the borders of another can only be done after a declaration of war by one of the states. IOW, war is a relation between states.
This is misleading. The treaties of the Peace of Westphalia – the Treaty of Münster and the Treaty of Osnabrück – actually did very little of what is regularly claimed that they did. In the Treaty of Münster the key clause is 64:
And to prevent for the future any Differences arising in the Politick State, all and every one of the Electors, Princes and States of the Roman Empire, are so establish’d and confirm’d in their antient Rights, Prerogatives, Libertys, Privileges, free exercise of Territorial Right, as well Ecclesiastick, as Politick Lordships, Regales, by virtue of this present Transaction: that they never can or ought to be molested therein by any whomsoever upon any manner of pretence.
Several things to be noted. This is a constitutional agreement for the Holy Roman Empire, and concerns the relation between its constituent parts. It was not a wider settlement; did not apply to states outside of the Empire, let alone nation-states; nor did it set out norms of international law. ‘Westphalia’ has become a standard shorthand in International Relations, but has little to do with the treaties. Many of the claims made of it long predate the treaties; many did not become standard until much later. There is quite an extensive debunking literature now, of which Benno Teschke’s The Myth of 1648 is a good start.
But leave that aside. The idea that a state is sovereign within its borders, within its territory, became part of international law. It’s enshrined in the UN Charter, among other places in the idea of territorial integrity, which – at least when the Charter was formulated – meant both that states should have their existing borders preserved and have exclusive sovereignty within them. Now those two ideas have distinct lineages – sovereignty within a defined geographical area long predates the idea that this area is fixed – but the two elements are increasingly being torn apart. The ‘war on terror’ is one example, but ‘humanitarian intervention’ in places such as Kosovo was an earlier example of the challenge to the idea of exclusive sovereignty. Sovereignty became contingent, and the example of treatment of civilian populations broadened to include harbouring of terrorists or pursuit of weapons of mass destruction. I’ve discussed this at length in Terror and Territory.
One of the first instances of this being articulated – rather than just practiced – was in the 1989 invasion of Panama to apprehend Manuel Noriega, when the notion of extraterritoriality was invoked to say that his drug-related activities justified because his actions affected US citizens, business interests and national security. Despite happening abroad, they could be be acted upon as if they had happened at home. Jeremy Elkins has recently provided a helpful discussion of this case, noting the extraordinary parallel that was drawn between Noriega’s involvement in the distribution of drugs that ended up in the US with someone firing a bullet across the Canadian border to hit someone in the US. (Of course, the Panama war was also about strategic control of the Panama canal, a key geopolitical focus in terms of flow fo goods and capital.)
But that last example, of a bullet fired across a border, is interesting in terms of what the US has done in the al-Awlaki case. While US involvement in Yemen is long-standing, the use of a drone did not require a US citizen to be present, but rather for a CIA operative in some other location to launch the attack. There are many interesting – and alarming – elements of this case, and the relation between sovereignty, judicial process, and territory are definitely among them.