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On Saturday, April 11, Michael Van Alstine (University of Maryland) moderated a panel on “Comparative Perspectives on Executive Unilateralism in Foreign Affairs.” The panelists were Rebecca Ingber (Columbia Law School), Shiri Krebs (Stanford University), Heinz Klug (University of Wisconsin) and Gavin Phillipson (Durham University). They examined the scope of executive power, respectively, in the United States, Israel, South African and the UK.
Rebecca Ingber started by examining the U.S. perspective on executive unilateral action. She examined whether the involvement of other branches of government constrains the executive, but concluded that is not necessarily the case. She also examined how international law affects power dynamics.
She noted much rhetoric that the executive must speak with “one voice’ in foreign affairs, but also noted that it is really the courts, Congress and the President acting in conjunction. She noted that sometimes it is easier for the executive to act alone and Congressional involvement in declaring war seems to have fallen into disused, so the President has more power than it seems from the Constitution. Examples of areas lacking significant oversight include killing on the battlefield, drone attacks far from the battlefield, and targeted killing of U.S. citizens. (While Congress held hearings as to the latter, the court dismissed the case.) Yet, in terms of detention practices, there has been review in U.S. courts, and Congress has acted.
Ingber also posited that assertions by the Executive of compliance with international law do not really act as a constraint, because the Executive is using discretion to interpret international law. Also, the public and Congress may lack knowledge of international law, so it may be perceived that the President is constrained by it, while the executive actually has a fair amount of discretion.
Shiri Krebs spoke of the separation of powers in Israel. There, foreign affairs power is vested solely in the executive. While the executive can be restricted by Parliament, it is hesitant to do so.
There has never been a formal Constitution in Israel, so, from early on, military security issues were decided solely by the government (and not the judiciary). The judiciary was sometimes involved, but often reviewing procedural, not substantive issues. The Supreme Court is more active now, implementing two laws on basic rights and freedoms. The Supreme Court even reviews security measures, such as the use of torture. The High Court also undertook judicial review of Operation Cast Lead and a targeted killing case.
Krebs concluded that as to the conduct of foreign affairs, because of the lack of a formal Constitution, Israel has faced an ongoing power-struggle between its branches of government.
Heinz Klug spoke of the issue from the perspective of South Africa. South Africa has a Constitution, but it must be interpreted with reference to international law.
He provided a number of examples where international law is at issue regarding the conduct of foreign affairs. One is the tension over the relationship with Zimbabwe, and whether South Africa should be criticizing Zimbabwe on its human rights record. He noted that in the case of a recent arms shipment from China destined to Zimbabwe, court action blocked the unloading of the weapons.
In another case, South Africa collaborated to capture a suspected embassy bomber in Cape Town. But he was surrendered without process despite the fact that the South African Constitution does not allow use of the death penalty, which the individual could face in US courts.
When 49 South Africans were arrested in Harare Zimbabwe on suspected links to a coup in Equatorial Guinea, there was a court case. Yet, it resulted in significant deference to the executive in fashioning diplomatic protections. While the decision did not demand return of the individuals, they ultimately were returned.
After examination of several other instances, Klug concluded that despite the Constitution, there is deference to the Executive in situations of foreign policy.
Gavin Philipson examined the situation from the UK’s perspective. Unlike the United States, the UK has no Constitution, so the executive legally is non-constrained. He also noted that swift executive action should be possible because Parliament and the executive are from the same party. Yet, Parliament does have significant power in that it can bring down the Prime Minister by a no-confidence vote. While, in terms of having a Constitution (or not), the United States and UK look a long way apart, in practice, the relationship between legislature and executive is more similar.
As to military intervention in Syria, there was a 2013 vote in Parliament, and it was voted down. Phillipson pondered that perhaps this has changed the role of Parliament in weighing in on future interventions, although there may be carve-outs in urgent or secret situations. He noted that the Syria vote was probably motivated by the experience regarding authorization for the use of military force in Iraq (Gulf War II).
As to the Libya intervention, that was debated and approved overwhelmingly. The vote may have been influenced by the fact that military action had actually started prior to the vote. As to Syria, the debate occurred before any military action, providing a situation allowing genuine debate.
Phillipson concluded that international law really does matter, as one can see from the UK’s “agonized” debate regarding whether to intervene in the Iraq War. Now that there is a practice of seeking Parliamentary consent, that will likely heighten scrutiny of interventions and cause a more cautious approach.
Jennifer Trahan, Associate Professor of Global Affairs, NYU-SPS.