In his recent Security Council speech on conflict resolution, the representative of the US remarked that ‘all that is needed [for a military intervention] is political will and an invitation’. This statement is problematic for two reasons. First, it is clearly reflective of the casual attitude of Western States towards military aggression. Even more concerning is the resort to the defence of the host State’s consent.
During the discussions preceding the adoption of the UN Charter, Article 2(1) (which ‘is based on the principle of sovereign equality to all Member States’) was widely interpreted to guarantee and protect the sovereignty of Member States. While the facets of this State sovereignty have undergone continuous change in the decades following the adoption of the Charter, there is still consensus that a State can ostensibly govern all activity that is carried out within its own territory. It is this notion that has now been extended to States’ ability to consent to military intervention by third States.
Traditionally, the prohibition on the use of force under Article 2(4) of the Charter could only be excused if a State was acting in self-defence (pursuant to Article 51) or subject to express authorisation of the Security Council. However, if the host State consents to the use of force by another State in its territory by exercising its own agency, then such specific use of force is removed from the jus ad bellum framework of the Charter and will be deemed to be permissible as another exception to Article 2(4). In fact, in its report on aggression and the use of force, the International Law Association’s Use of Force Committee went so far as to distinguish consent from the ‘excused violations’ of sovereignty as consent involves no violation of state sovereignty ab initio. States have, predictably, been very forthcoming in adducing a consent-based justification for intervention, with the intervention by the US and UK against the ISIL in Iraq being the most recent example.
The lex generalis for the law on consent can be found in Article 20 of the Draft Articles of State Responsibility (hereinafter referred as ‘DASR’) and the accompanying commentary by the ILC. According to Article 20, valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.
Interestingly, the DASR also notes that consent (and other circumstances in Articles 21 to 25) cannot preclude the wrongfulness of the violation of a peremptory norm. This naturally means that the status of Article 2(4) as a jus cogens norm needs to be revisited. One way of looking at it, as Professor Green argues, is that if the prohibition on the use of force is indeed jus cogens i.e. non-derogable, then even the two traditional exceptions should not be permitted. The alternative, which is the dominant view in status quo, is to treat Article 2(4) and its exceptions (now with the inclusion of consent) as one non-derogable unit.
Assuming either of the two theories are correct, once we acknowledge the existence of the exception of consent, we encounter more complex questions pertaining to when a State can invite third States to intervene, who can consent on behalf of the State and what is the breadth of the rights thus conferred on third States.
When Can Consent be Given?
Just like the self-defence exception is fettered by the requirements of proportionality and necessity, even States’ right to consent to intervention has been accepted as not being unlimited. One aspect of these fetters pertains to the conditions in which consent can be given.
One aspect of these fetters pertains to the conditions in which consent can be given. There has been very little objection to foreign intervention in settling local unrests and armed mutinies since the post-Cold War era. But this has not spilled over to conflicts of a more systemic nature characterised by the uncertainty in the internal determination of government, because that would internationalise a case of internal self-determination and possibly even violate Article 2(1).
This view can be traced to the UN Declaration on Friendly Relations which noted that States were duty-bound to ‘refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State’.
However, with the Security Council’s approval of the French intervention in Mali (which was a quintessential case of an internal strife), the intervention in Iraq and the American intervention in Afghanistan, an urgent need to either reconsider the availability of consent in civil strife or debunk it altogether surfaced.
Accordingly, attempts were made to identify a threshold beyond which the host State can request external aid. A popular view that emerged was that the conflict must at least be a non-international armed conflict or one that reaches this intensity. Case in point is the justification proffered by the US in response to its drone attacks in Pakistan. As one would expect, it was not easy to crystallise an intensity threshold on the basis of state practice. Instead, efforts were made to resolve this question in conjunction with that of the competence of the entity giving consent.
Who Can Give Consent ?
Article 20 of the DASR itself recognises consent by the ‘State’ as a circumstance precluding wrongfulness. And the government is said to represent the ‘State’ in matters concerning the body politic. But such authority may not necessarily persist during civil wars or similar internal conflicts.
Pre-UNC arbitral decisions evidence a favourable finding of legitimacy through de facto control. This is illustrated through the Dreyfus case and the Tinoco arbitration, wherein de facto control was privileged over legal control. The underlying assumption was that once a government had lost control to such a degree that it is merely one of two or several parties to a civil war, it could no longer be understood to speak on behalf of the state. This explains why the Security Council had no objections to French forces intervening in Mali at the request of the transitional government to combat the growing presence of the AQIM.
However, divergent views emerged in the post-Cold War regime. Some States displaced the previous standard with that of de jure control. This rationale most notably surfaced in the justifications offered by Russia for intervention in Ukraine in 2014. One of these was that President Yanukovych, who was exiled after the anti-constitutional coup, had invited its armed forces to act. But de jure control could hardly gain relative dominance. Interestingly in response to Russia’s claims, the UK, USA and France accused Russia of violating Ukrainian sovereignty, with the UK specifically observing that the intervention could not be legitimised by placing reliance upon an invitation extended by a ‘leader who had abandoned his office and his country’.
To What Extent Can Consent be Given ?
It is important to acknowledge that consent-based intervention in abstraction may exacerbate the looming climate of rights suppression. That the requesting state may not be able to investigate whether the consenting state is acting inconsistently with its own international or domestic law obligations.
Therefore, unlike the traditional exceptions to Article 2(4), consent is understood not to be absolutely exculpatory, and only removes the use of force from the jus ad bellum framework. This means that when the host State is engaged in an armed conflict, it should be able to extend the international humanitarian rules on targeting an individual to the intervening State as well.
Likewise, if such a conflict does not exist, then the intervening State is not left with the option of unilaterally applying the international humanitarian law rules of targeting. Instead, it must comply with the human rights obligations of the host State such as refraining from use of lethal use of force unless there is an imminent threat to limb and life. Conversely, the host State is duty-bound to ensure that it does not facilitate or be complicit in such violations by foreign authorities on its territory.
Preliminarily, such a model appears to hold the host State responsible for the violations committed by the intervening State. It seemingly ignores the fact that the intervening State can also be held directly responsible for violations of erga omnes obligations such as the obligation to protect the right to life. However, for all other violations, this model seems to be the only way to both make the liability regime bilateral and avoid a culture of impunity.
The Way Forward
While it is sufficiently clear that States’ right to consent to intervention is delimited temporally and legally, the exact content of these limitations is far from certain. Nevertheless, it is likely that in the absence of an authoritative statement by the Security Council, the future of consent-based intervention will solely be moulded by state practice. One can only hope that respect for human rights (even if salutary) and not politics will likely guide their decisions.