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.

What I’m less certain about, however, is what kind of problem this is? Is it the problem that acting States are violating the host State’s domestic laws? I don’t think that can be right – otherwise, Deeks’ prescriptions would reach espionage activities, which international law appears to permit (or at least not prohibit) and which are almost uniformly a violation of the laws of the State where they occur. Nor am I convinced this is a problem of international law, i.e., the notion of pacta sunt servanda – State consent binds States. Indeed, Deeks assumes that host State consent is “given in advance by an individual who is lawfully entitled to bind the host state.” (p. 112) Rather, the problem seems to be a failure of domestic law. It is domestic law after all that allows a State agent to bind the State under international law in ways that do not comport with other domestic rules (alternatively, an agent may politically commit a State to acts in violation of domestic law, but as I’ve noted elsewhere, I think this is equally problematic for domestic legal orders).

So, if it is a domestic law problem, shouldn’t the solution lie in adjustments to domestic law? My own view largely tracks that of Judge Anzillotti’s dissent in the Eastern Greenland Case, where he responded to the possibility that Ihlen’s declaration not to interfere with Danish sovereignty claims to Eastern Greenland had not comported with Norwegian Law:

As regards the question whether Norwegian constitutional law authorized the Minister for Foreign Affairs to make the declaration, that is a point which, in my opinion, does not concern the Danish Government: it was M. Ihlen’s duty to refrain from giving his reply until he had obtained any assent that might be requisite under the Norwegian laws.

Deeks, of course, is cognizant of this domestic law problem, but she suggests it is difficult to expect domestic legal actors to resolve it where there are so many incentives not to (e.g., executive dominance, the nature of the military or intelligence activity in question). Her solution? Get international law to defer to the very domestic law rules the “lawfully authorized agent” of the host State was willing to ignore by forcing the acting State to be responsible for ascertaining the existence of such inconsistencies (and foregoing action until they are resolved).

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.

To alter the international law supremacy framework could, therefore, have far-reaching consequences for the autonomy of the international legal order (an autonomy that is already threatened from within by questions of fragmentation and treaty conflicts). Once a legal system admits that the rules of another legal system have priority in a given area – as each U.S. state has done, for example, with respect to the U.S. Constitution and the federal law – that system is no longer independent, but a subordinate and component part of the prioritized legal order.

Now, I suspect Deeks is not suggesting such a surrender of the international legal order in toto to the domestic laws of nation States. Indeed, she makes an effort to specify contours for when international law should invalidate unreconciled consent. I’m less sanguine than she is, however, that such line-drawing can work. For starters, there’s the indeterminacy of the domestic law against which host State consent is to be measured. Domestic law may be unclear at the outset (i.e., does consent in violation of a non-self executing treaty violate domestic law?) or arise over time (i.e., whatever the United States thought U.S. law allowed when foreign States participated or consented to rendering individuals to Guantanamo, “U.S. law” turned out to be quite different once the Supreme Court weighed in again and again). As a result, I think it may be quite had to discern the scope and content of the domestic law for purposes of assessing if a State’s consent should survive the duty to inquire.

Perhaps more importantly, the central role consent plays in the international legal order must also be acknowledged. Consent is not just an add-on basis for using force; it is the primary vehicle for creating international legal obligations. Indeed, notwithstanding the tautology, States appear to rely on consent as a formal source of international law itself – that is States consent to the rules for rule-making (e.g., the VCLT). I fear, therefore, that once the supremacy of consent can be overridden in one area, it becomes difficult to explain how or why it shouldn’t occur elsewhere. For example, Deeks suggests that States’ consent to the UN Charter (and accompanying Security Council authorizations of the use of force) are distinguishable from bilateral instances of unreconciled consent. But it’s not clear why the rationale for prioritizing fundamental domestic rules shouldn’t hold even in the face of consent to the Charter? Indeed, the Kadi case reveals that possibility is more than a mere hypothetical. And once States start devaluing State consent to uses of force – the regulation of which is arguably the primary function of international law – it is not hard to imagine rationalizing similar overrides in other areas of international law like trade or the environment.

None of this is to suggest that Ashley Deeks’ article isn’t worthy of close attention or praise. It is deserves both. Indeed, her article is that rare piece that identifies an assumption the conventional wisdom has left unexamined and under-theorized. Reading her article requires readers to engage with the question of why international law regards itself as supreme over domestic law and whether that status quo is worth retaining. I may come out reasoning in favor of retaining international law’s supremacy, but I’m certainly better off for having had to make that effort thanks to Deeks’ timely and impressive article.