Towards Unilateralism? House of Commons Oversight of the Use of Force

Abstract

Use policyThe full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro t purposes provided that:• a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders.Please consult the full DRO policy for further details. ABSTRACTEngaging democratically elected assemblies in national decision-making over the extraterritorial use of force seemingly provides a secure check on executive abuses of power. Many liberal democracies therefore maintain constitutional requirements that their elected national assembly must authorise decisions to use military force. By comparison, the UK Parliament has historically played a limited and often indirect role in authorising the use of force. From the vote on the Iraq War in 2003 onwards, however, the UK Parliament's role has increased to the point where, in August 2013, the defeat of a Government motion seeking approval for the use of force undermined efforts to build an international coalition to intervene in the on-going Syrian conflict. Whilst debate regarding this shift has hitherto concentrated on the degree to which parliamentary oversight of the war prerogative is desirable, in this article we consider what Parliament's evolving role heralds for the general relationship between domestic and UN mechanisms. We challenge the underlying assumption that Parliament's interventions mark an indisputably positive development in constraining the use of force. When coupled with the focus upon the doctrine of humanitarian intervention which has accompanied many controversial exercises of UK military force since the end of the Cold War, the involvement of Parliament in the decision-making process risks hollowing out UN Charter safeguards. Successive UK Governments have acquiesced to the extension of Parliament's role, with the effect of shifting the locus for legitimating uses of force away from UN institutions, where the UK cannot control the actions of other states, and into a domestic sphere which is susceptible to executive influence.

War, International Law and the Rise of Parliament

“…Relying upon domestic assemblies to provide the sole necessary authorization point for certain uses of force might appear to offer a means to unblock international institutional processes -but this course turns away from international constraints upon the use of force and opens the door to new forms of unilateralism. 55 Murray and O'Donoghue for example show that in the domestic legislatures claims to self-defence have been stretched far beyond what international law envisages, to include collective self-defence in relation to Afghanistan, situations of pre-emptive self-defence, and targeted killings. 56 Similarly, Parliament's Secret War maps out how multiple legal bases are being used by the Government before UK Parliament to make claims about the legality of military action, even though international law excludes accumulation of such arguments (e.g.…”

“…58 On international level, such claims would not be (or indeed are not successful) since the UK cannot control action of other States, yet domestically they succeed because the legislature is 'more susceptible to executive influence'. 59 This is especially true in the UK, where due to the fusion of power between Government and Parliament and the control the former enjoys in the Commons, its decisions are regularly upheld by the House. 60 Ultimately, the victim of the process of 'domesticating decisions on military action has been international law, and in particular the UN Charter.…”

No tyranny for failing Donald Trump – sad! Law, constitutionalism and tyranny in the twenty-first century

“…A threshold for violent rebellion or revolution remains, though it is increasingly of last resort, but one held by constituent power-holders and recognised in legal forms such as remedial or anticolonial self-determination or anti-apartheid movements.27 Albeit, this does not always legitimate violence by either the constituents (though it does not rule it out) or by the international community entering into humanitarian intervention to 'save' a population. 28 The nexus between the constituent and the tyrant is critical: it is their right and their duty to remove the tyrant, and it is for them to determine the legitimate means of doing so. 29 However, constitutionalism's relationship with tyranny far predates the Federalists, or the theorists of pre-revolutionary France.30 This longer history points to the ways in which tyranny emerges from and through law.…”