Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force


Ashley Deeks on Consent to Use of Force

Ashley Deeks of the University of Virginia Law School has an interesting article in the Harvard International Law Journal that suggests that there need to be limits on consent to the use of force by third parties:

This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.

To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.

Read it all here.  At Opinio Juris, Temple University Law Professor Duncan Hollis offers some thoughts in response:

Certainly, using international law to invalidate uses of force or similar activities that rely exclusively on unreconciled consent is one way to solve domestic law’s failure to do so. I worry, however, that this cure may be worse than the disease. I envision significant systemic, doctrinal and practical effects from piercing international law supremacy. Practically speaking, won’t a duty to inquire “chill” acting States from seeking consent at all? And, if that’s the case, will there be an increased risk of new threats to international peace and security where host States discover and object to the State’s use of force without permission? As a doctrinal matter, moreover, won’t cabining consent put pressure on States to rely on broader readings of self-defense, UNSC authorization, or less instantiated grounds (e.g., R2P2), which may destabilize whatever legitimacy these doctrines currently enjoy?

Finally, there’s the systemic question of what would it mean for international law to give domestic law supremacy? Most legal systems are “self-contained”, meaning that they provide their own rules for rule-making, conflicts, and indeed, supremacy over inconsistent rules outside the legal order. For example, domestic legal systems like the United States clearly acknowledge and allow for international law violations when those obligations are inconsistent with domestic law (see, e.g., Medellin). And although some states give international law domestic effect, it is inevitably domestic law which dictates when and how international law rules operate domestically (even so-called “monist” States do not incorporate or prioritize all international law obligations, rather as I’ve noted previously, these legal orders clarify when and how some international law obligations will have the status of domestic law). In other words, domestic law supremacy appears to be the norm in domestic legal systems in much the same way as international law supremacy operates within international law.

Read it all here.  What do you think?

Charles A. Blanchard
General Counsel
United States Air Force