Consent to the Use of Force and International Law Supremacy

61 Pages Posted: 6 Mar 2013 Last revised: 13 May 2013

See all articles by Ashley Deeks

Ashley Deeks

University of Virginia School of Law

Date Written: March 5, 2013

Abstract

Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.

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.

Keywords: use of force, international law

Suggested Citation

Deeks, Ashley, Consent to the Use of Force and International Law Supremacy (March 5, 2013). Harvard International Law Journal, Vol. 54, No. 1, 2013, Virginia Public Law and Legal Theory Research Paper No. 2013-14, Available at SSRN: https://ssrn.com/abstract=2228714

Ashley Deeks (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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