Author: Duncan B. Hollis

HILJ Symposium: Consent to the Use of Force, Jus Cogens, and Manifest Violations of Domestic Law

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In my previous response to Ashley Deeks’ article, "Consent to the Use of Force and the Supremacy of International Law," I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent. Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context.

HILJ Symposium: International Versus Domestic Law: Supremacy, Surrender, or Co-existence?

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Ashley Deeks’ Article, "Consent to the Use of Force and International Law Supremacy," is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law). Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints.