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Posted March 22, 2013
Faculty Q&A

Nations Negotiating Permission to Use Force Abroad Should Take Greater Care, Deeks Argues

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Richard Gross

Ashley Deeks

Nations should ask more questions and take additional steps before obtaining permission to use force in another country, such when taking action against terrorists abroad, argues University of Virginia associate law professor Ashley Deeks in a new paper.

In the Harvard International Law Journal article, "Consent to the Use of Force and International Law Supremacy," Deeks proposes changes to how countries negotiate the use of force in another country's sovereign territory.

An expert in international law, Deeks previously served as the assistant legal adviser for political-military affairs in the U.S. Department of State’s Office of the Legal Adviser and as embassy legal adviser at the U.S. embassy in Baghdad.

What is the central argument of your article?

Contact: Brian McNeill

I make two arguments. The first is that international law should approach consent to the use of force more critically than it has. International law contemplates three situations in which one state may use force in another state's territory: in self-defense in response to an armed attack; when the U.N. Security Council authorizes force; or where the acting state obtains the consent of the state in which it seeks to act. (I'll use the term "acting state" to describe the state receiving consent to act and "host state" to describe the state consenting to another state's use of force on its territory.)

We are seeing an increasing number of cases in which state A seeks permission from state B (or state B asks state A) to use force in state B's territory. It becomes problematic when host states provide that consent without regard to limitations that may exist in their own laws — such as restrictions on the presence of foreign troops in its territory, or prohibitions on the use of particular weapons, or due process requirements. That move by host states stands in tension with the usual understanding of consent in law generally, which is that an actor only may consent to that which she could do herself.

That leads to my second argument. International law currently imposes no obligation on a state to look behind another state's consent, to assess whether that consent is consistent with its domestic laws. This is called "international law supremacy." The idea is that each state may take the other state's consent at face value (with limited exceptions), and that we don't want states to be able to escape their international legal obligations by invoking competing domestic laws. In contexts that implicate military or law enforcement activity, however, this approach seems unsatisfactory, when this consent infringes on the rights of individuals in the host state and undercuts the normative, rights-protective goals that many have for international law. My argument therefore is that we should — in certain circumstances — peel back international law supremacy and require the acting state to inquire about applicable laws in the host state before resorting to forcible actions based on that consent.

Can you give some real-world examples of how countries use international law to circumvent individual rights?

Italy reportedly gave consent to the United States to remove radical Muslim cleric Abu Omar from the streets of Milan; he claims he was sent to a third country for harsh questioning. Poland and Romania allegedly allowed the United States to host secret detention facilities on their territory in the aftermath of the Sept. 11 attacks. And Thailand apparently allowed the United States to detain a suspected terrorist who was in Thailand unlawfully and transfer him out of the country. In those cases, the individuals who were detained quite likely would have received more protections under the domestic laws of the host state than they did under the arrangement that flowed from the host state's consent.

How is the status quo problematic?

Prioritizing consent as an international arrangement without regard to what the host state's laws permit lets acting states obscure the precise basis on which they are using force abroad and allows host states to violate or avoid their own laws, where those laws would have provided certain protections to the people subject to forcible action by the acting state.

Both the acting and host states currently have incentives to use consent this way. Actions involving force and national security tend to be made almost exclusively within the executive branches of states and are cloaked in secrecy, so both acting and territorial states rarely must explain or defend their legal positions publicly. For the acting state, consent often can serve as a supplemental justification for using force — and why wouldn't states want to be able to rely on as many legal justifications as possible? For the host state, allowing another state to fight a hostile non-state actor or terrorist group such as al-Qaida on its territory often makes its own life easier, because it means less work for the host state's military or law enforcement officials. Sometimes the host state affirmatively asks the acting state to help it fight an armed conflict against a rebel group. It redounds to the host state's benefit not to cabin how the acting state may operate against that group.

One difficulty in writing this piece was that there is little public evidence of what the host states are consenting to — a fact that allows problematic uses of consent to transpire in the first place. Yet examples of force pursuant to consent abound: Saudi Arabia in Yemen and Bahrain; France in Somalia and Mali; Turkey in Iraq. One goal of the piece is to open up a wider debate about the role consent actually plays in the types of cases I discuss.

In the paper, you propose a different approach that you say would ensure countries consenting to the use of force are acting in a manner consistent with the country's domestic laws. What does your new approach entail?

I propose that we impose a "duty to inquire" on the acting state when it seeks to rely on consent. That duty would require the acting state to take two steps. First, the acting state would need to determine how the host state classifies the situation that calls for force. Does the host state consider the problem to be one that requires a law enforcement response, or is the situation one of armed conflict? After the acting state determines what general legal framework applies, the acting state then should determine whether the host state itself lawfully could perform the action to which it is consenting. This means the acting state would have to ask the host state to identify the domestic laws that would apply to the situation in question.

When the acting state's only legal basis for using force in the host state is the host state's consent (such as when the acting state is helping the host state suppress an internal uprising), my proposal would require the acting state to comply with any restrictions the host state itself would have to follow. For instance, if the host state were a party to treaties banning the use of landmines and cluster munitions, the acting state could not use those weapons in fighting alongside the host state. The idea is to shift our understanding of consent back to the idea that you can only consent to that which you could do yourself.

What do you expect would be the biggest challenges in implementing your proposal?

My proposal faces three implementation challenges. The first is that the current state of affairs redounds (at least on the surface) to the benefit of both the state giving consent and the state receiving it. I don't think my proposal actually would deprive acting states of room to act when their action is urgent, because in those cases the states could rely on self-defense alone as a legal justification. The second is that establishing a "duty to inquire" by treaty probably would require amending the Vienna Convention on the Law of Treaties, and amending treaties always is challenging. That said, I would be content to see states start conducting these inquiries as a matter of policy, even absent a formal legal requirement to do so. Third, my proposal would require one state to probe another state's domestic laws, which could prove to be a hard task when those laws are untested or unclear.

What led you to research this topic?

In the past few years, the United States has talked a lot about when it lawfully may use force in other states against members of al Qaida. The U.S. government argues that it may do so where the host state either consents or is "unwilling or unable" to suppress the threat posed by those actors itself. My previous article explored what the "unwilling or unable" test does and what it should mean. In thinking about the government's legal standard more broadly, I got interested in what actions, precisely, these host states were consenting to. I started to notice instances in which the activities to which they apparently consented were in tension with their own domestic laws. This seemed to flip on its head my traditional assumptions about international law — that it tends to promote individual rights, rather than undercut them. This was the seed of this recent piece.

How did your background at the State Department inform your work on this article?

When I was at State I worked on a lot of issues related to the use of force and the laws of war. The State Department (and the U.S. government generally) has a lot of lawyers who think carefully about these questions, but there are only so many hours in the day to address all of the legal issues that clients throw at you. There rarely is time to take a deep dive and examine from different angles some legal principles that are firmly entrenched as conventional wisdom. That's been one of the rewarding parts of my shift to academia.

What will you be working on next?

My next piece continues to explore national security activities in the executive branch, and focuses on the executive-judicial relationship in national security policymaking. Some scholars celebrate the limited role that courts tend to play in reviewing national security policies, because they think the executive is structurally better suited to make those policy decisions. Some scholars bemoan this deference because they worry that individual rights will go unprotected and they fear an imbalance in the separation of powers. But both sides assume that the courts' role is quite minimal.

I think this assumption is incorrect. While courts rarely intervene directly in national security disputes, the judiciary nevertheless plays a significant role in shaping executive branch security policies. In the national security context, the executive branch is highly sensitive to looming but uncertain judicial oversight, particularly because courts generally have not played a large role here. I call this the "observer effect."  (The term comes from physics, which teaches us that observing a particle alters how it behaves.)  I plan to demonstrate how and why the observer effect leads the executive branch to establish or alter its policies in an effort to avert direct judicial involvement. My hope is to provide a more accurate positive account of national security deference, which will enhance our ability to make more reasoned normative judgments about how frequently courts should intervene in these cases.

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