APPENDIX 4: PARLIAMENTARY OVERSIGHT
OF THE DEPLOYMENT POWER: INTERNATIONAL COMPARISONS
Note by Professor C J Warbrick[172]
1. The following are some brief notes on the constitutional
positions of other states about the exercise of the war power
and the deployment of the forces of the state. In each case, the
note begins with a box summarising the formal constitutional arrangements
(if there are any), followed by outlines of such practice and
case law as I have been able to ascertain. Often, the matters
with which we are concerned are of high controversy and it is
undoubtedly true that a consistent theme is that executive requirements
seem to chafe against formal requirements. I have been able to
take advantage of some of the evidence which has been submitted
to the Committee, a note produced by the House of Commons Library[173],
and a very useful collection of essays.[174]
The Committee's evidence included very wide ranging documents
from Dr Ziegler.[175]
2. It hardly needs to be said that a state's constitutional
arrangements can only be fully understood when considered in their
overall context and in the light of that state's general practice.
It is also the case that the nature of deployments of armed forces
has been undergoing significant change—UNSC authorisation,
multilateral actions, peacekeeping and so on—with the result
that established mechanisms have been undergoing some modification
in some states.
3. Although I do not expressly mention it in the
summaries, it is important to note that in all cases a state's
Parliament/Legislature will have power over supply; the potential
for the exercise of that power will be something of a constraint
on governmental decision-making, though to what extent will depend
upon the legislative/executive balance.
4. It was put to us in evidence that constitutional
comparisons were of limited use, not just because of the undoubted
differences in constitutional structure between the United Kingdom
and most other states but because the United Kingdom is one of
only a very few states (the US and France were the others mentioned)
able and willing to deploy its armed forces with global reach
and in the whole range of military operations which take place
today. The concern was that the more formal and demanding the
legislative conditions for the deployment of the armed forces,
the more difficult would it be to gain the authority to send the
troops; this could prove burdensome for a state like the United
Kingdom but much less so for those states which were likely to
deploy their forces less frequently and to less serious conflicts.
5. It hardly needs to be said that any system of
political accountability will contain the possibility of fulsome
endorsement by the legislature of the plans and actions of the
government, as well as the possibility of constraint. In most
constitutional systems, where there is such joint resolve, the
prospects for judicial intervention to the contrary will be at
their weakest.
AUSTRALIA
Commonwealth of Australia Constitution Act
Chapter II: The Executive Government:
"61. The executive power of the Commonwealth
is vested in the Queen and is exercisable by the Governor-General
as the Queen's representative, and extends to the execution and
maintenance of this Constitution, and of the laws of the Commonwealth.
68. The command in chief of the naval and military
forces of the Commonwealth is vested in the Governor-General as
the Queen's representative."
6. The Australian High Commissioner told us that
"the decision to commit the Australian Defence Force to an
armed conflict is a decision of the executive government. The
executive power of the Commonwealth is vested in the Queen and
is exercisable by the Governor-General. However, by convention,
the Governor-General acts on the advice of government. As a matter
of practice, Parliament is informed of such decisions and a Parliamentary
debate may well ensue."[176]
7. The Executive Power includes such Prerogative
Powers of the Crown as existed in 1900—which included the
War Power and the Power to Deploy the Crown's Forces—which
have not been superseded by legislation. Australia's constitutional
arrangements are, thus, much like those in the United Kingdom
for, although they have a constitutional base, that base assumes
the continued existence of prerogative powers in the same terms
as those for the United Kingdom. They may be taken as an example
of what would be the case in the United Kingdom if the deployment
power were put on a statutory footing, without further provision
about how the statutory powers were to be exercised.
Recent practice
8. As noted above, Australian governments have in
practice put motions to the House of Representatives about the
deployment of troops abroad, but not necessarily prior to the
deployment. In 2003, for example, the government had committed
forces to Iraq before any decision of the House. In September
1999, Australia's decision to agree to lead the UN authorised
force in East Timor was taken without any Parliamentary approval;
troops were committed to INTERFET on 20 September 1999; parliamentary
consideration followed the day after the troops were sent, when
the government motion to support the decision was approved without
objection. Australia has contributed troops to the coalition carrying
out counter-terrorism operations in Afghanistan since October
2001; the practice has been for the Prime Minster to announce
deployment details from time to time, most recently on 9 May 2006
of a contribution to a Netherlands-led Provincial Reconstruction
team (although the troops will not be deployed until later this
year).
CANADA
National Defence Act 1985
"Forces to continue to be vested in the Queen
The Command-in-Chief of the Land and Naval Militia,
and of all Naval and Military Forces, of and in Canada, is hereby
declared to continue and be vested in the Queen.
Active Service: Placing forces on active service
31. (1) The Governor in Council may place the Canadian
Forces or any component, unit or other element thereof or any
officer or non-commissioned member thereof on active service anywhere
in or beyond Canada at any time when it appears advisable to do
so
(a) by reason of an emergency, for the
defence of Canada;
(b) in consequence of any action undertaken
by Canada under the United Nations Charter; or
(c) in consequence of any action undertaken
by Canada under the North Atlantic Treaty, the North American
Aerospace Defence Command Agreement or any other similar instrument
to which Canada is a party."
9. The source of the Federal Government's power to
deploy its armed forces overseas is the National Defence Act and,
perhaps, beyond that, the royal prerogative. The legislation quoted
above highlights the difficulty of finding satisfactory language
to describe the military activities to which legislation is intended
to apply (here, "active service"), an issue made more
pressing by the escalation of the mandates of certain UN operations
in which Canada has participated, notably in Yugoslavia. The existence
of a UN mandate has been an important feature of Canadian participation
in action abroad. While Parliamentary debates have taken place,
they have not been on motions presented by the government seeking
authorisation for the action proposed. Even for the bombing of
Yugoslavia in 1999, for which there was no UN authority but which
Canada justified as humanitarian intervention, there was a debate
in the House of Commons but no approval was sought. The courts
have been reluctant to involve themselves in review of deployment
decisions. The Aleksic case[177]
shows that there remains doubt in Canada about whether the National
Defence Act has completely displaced the prerogative, but the
court said that it would make no difference to any power of judicial
review.
10. For Canada, the principal concern has been the
deployment of Canadian forces to UN peacekeeping operations. While
Canada had been one of the principal contributing States to UN
peace-keeping operations, one commentator has noted that the growing
range and complexity of UN operations was causing disquiet in
Canada—"growing crisis of legitimacy, accountability,
resources, and systems of governance within institutions themselves."[178]
The result has been debates in Parliament on general matters about
peace-keeping and ex post facto inquiries about the conduct of
Canadian units acting under UN authorisation, notably in Somalia.
11. The events surrounding Canada's participation
in the Gulf conflict in 1990-1991 are of some interest. The House
of Commons approved government motions on the sending of ships
and troops to the region but a motion of October 1990 was amended
to provide that a further resolution would be put in the event
of the outbreak of hostilities involving Canadian forces. One
was put and passed in January 1991.[179]
It is a device not without interest, given "threat"
deployments in support of diplomatic measures, as providing a
further role for Parliament before the final commitment of the
forces to action.
12. More recently, the Canadian House of Commons
voted on 17 May 2006, by 149-145, in favour of a two-year extension
to February 2009 of missions in Afghanistan. The Conservative
party came to power as a minority government in January 2006.
During the election campaign it had promised to put "international
treaties and military engagements" to a vote. Before the
vote, the Prime Minister had said that if the Government lost
the vote, Canadian forces would remain in Afghanistan under their
existing mandate for another year, during which time the Government
would seek to broaden support for its policy. If it could not
do so, it would dissolve Parliament and seek a popular mandate
for its policy. The outcome of the vote perhaps undermined one
of the Government's objectives, which was to demonstrate to the
troops that they enjoyed the full support of Parliament.
GERMANY[180]
Constitution
The Constitutional provisions concerning the Armed
Forces are in Article 87a of the Basic Law. Article 87(1) gives
the Federation the power to establish armed forces for "the
purposes of defence" and only for defence except where expressly
permitted by the Basic Law (none relevant to present purposes).
However, Article 24(2), which gives the Federation the power to
make agreements for collective security, has been interpreted
as covering Germany's participation in, inter alia, UN arrangements
and NATO but also that the deployment of armed forces under these
arrangements requires the prior consent of the Bundestag.
The German Basic Law does not have a specific provision on the
deployment of armed force, but the Constitutional Court has described
the armed forces as a "parliamentary army".
13. There have been conflicting interpretations of
the case law of the Constitutional Court, but it has been said
that "the consent of the Bundestag is required for
all those deployments where the armed forces are directly and
actively involved in hostile confrontations or armed conflicts".[181]
The same report goes on to suggest that a range of actions which
might include some force by German troops, but of a limited kind
(personal self-defence), do not require prior parliamentary authorisation.
14. Where prior authorisation is required, it is
restricted to the question of participation only—the operational
management of approved participation is in the hands of the government.
The matter is now regulated by the "Bundestag Participation
Act 2005", which applies to the "deployment of armed
German military forces outside [Germany]". This requires
the consent of the Bundestag. "Deployment" is
defined positively—when the forces are engaged or their
involvement is anticipated in "armed engagements"—and
negatively—deployment does not include humanitarian assistance
involving only the risk of action in personal self-defence. The
Government must seek the consent of the Bundestag "in
a timely manner before the start of the deployment", with
certain specific questions dealt with.[182]
The Bundestag may only approve or reject a request. Where
events did not admit of delay to obtain approval in advance of
deployment, a retrospective procedure was laid down for the Bundestag
to be informed after action had been taken. An informal mechanism
is provided for what are called deployments of "limited intensity",
which can also apply to the extension of existing consents. The
Bundestag may withdraw its consent during the currency
of a deployment.
15. German deployment decisions may be subject to
judicial review. The "Awacs" case about the deployment
of German surveillance aircraft to Turkey in early 2003 shows
how legal questions will arise about the limits of exceptional
powers, and also how difficult they can be to resolve when all
the evidence is not in the public domain.
JAPAN[183]
Constitution
"Chapter II Renunciation of War
Article 9
(1) Aspiring sincerely to an international peace
based on justice and order, the Japanese people forever renounce
war as a sovereign right of the nation and the threat or use of
force as means of settling international disputes.
(2) In order to accomplish the aim of the preceding
paragraph, land, sea, and air forces, as well as other war potential,
will never be maintained. The right of aggression of the state
will not be recognized."
16. The Japanese Armed Forces are called the "Self-defence
Force" (SDF). Article 9(1) has not been interpreted as committing
the state to pacifism but as allowing the deployment of its forces
in self-defence of Japan. Attempts to expand the operational competence
of the Japanese forces have been made by considering the reach
of the idea of "self-defence" and in accordance with
the War Contingency Act 2003.
17. The original position taken by the government
was that Japanese forces could take part in UN operations only
if they did not involve the use of force. "Peace-keeping
operations" were considered to involve force, so Japan could
not constitutionally contribute forces to them. Even then, Japanese
forces could participate only in UN operations and not in uses
of force authorised by the Security Council. Japan said that it
was constitutionally unable to contribute to INTERFET (UN peacekeeping
in East Timor) in 1999.
18. The conditions of the Peacekeeping Act 1992 were
designed as safeguards against the unconstitutional deployment
of Japan's forces. Article 98(1) makes the Constitution the supreme
law and Article 98(2) requires that Japan comply with treaties
and customary international law. So, any use of force must be
legal in international law but, even if it is, it must also fall
within the constitutional competence of the armed forces. Article
100-8 of the Self-defence Forces Law allows armed forces to be
used abroad to rescue Japanese nationals and foreign nationals.[184]
19. There is no explicit "war power" or
"deployment power" in the Japanese Constitution. Control
of the SDF is with the Prime Minister. In some cases, the participation
of the National Legislature is required for the deployment of
the SDF—a Bill must be presented to authorise participation
in UN operations and such deployments involve only a limited capacity
for Japanese troops to use force. To take part in SC-authorised
operations which envisage the use of force under national command,
direct legislative authorisation is required. There are now specific
laws for anti-terrorism operations and for Japanese participation
in the reconstruction of Iraq.
NETHERLANDS
Constitution
Article 96
(1) A declaration that the kingdom is in a state
of war shall not be made without the prior approval of the Parliament.
(2) Such approval shall not be required in cases
where consultation with Parliament proves impossible as a consequence
of the actual existence of a state of war.
(3) The two Chambers of the Parliament shall
consider and decide upon the matter in joint session.
(4) The provisions of the first and third paragraphs
shall apply by analogy to a declaration that a state of war has
ceased.
Article 97
(1) There shall be armed forces for the defence
and protection of the interests of the Kingdom, and in order to
maintain and promote the international legal order.
(2) The Government shall have supreme authority
over the armed forces.
Article 100
(1) The Government shall inform the States General
in advance if the armed forces are to be deployed or made available
to maintain or promote the international legal order. This shall
include the provision of humanitarian aid in the event of armed
conflict.
(2) The provisions of paragraph 1 shall not apply
if compelling reasons exist to prevent the provision of information
in advance. In this event, information shall be supplied as soon
as possible.
20. These provisions require that the government
inform Parliament about deployments. The general prescriptions
of the constitution are supplemented by a detailed "Review
Protocol 2001" setting out the information which the Government
will supply to Parliament. Although there is no formal obligation
to obtain parliamentary consent to deployment, in practice government
would not commit troops without support, as the negotiations and
debates before the deployment of Dutch troops to Afghanistan in
2006 showed. The background to this is that, in December 2005,
NATO agreed to extend its operation in Afghanistan by expanding
the NATO-led ISAF operation (under UNSC authority). Dutch participation
was proposed by the government in December 2005, but there were
objections of various kinds in the Dutch Parliament, including
concerns about the safety of the troops and the fate of detainees
handed over by Dutch forces to the Afghan authorities. The government
did not gain the support of Parliament for the deployment until
February 2006, following parliamentary debates about its concerns.
The separate mandates of ISAF and the US-led Operation Enduring
Freedom were emphasised before the authorisations were given.
The delays caused by the need to gain parliamentary approval were
cited by witnesses as operationally disadvantageous when deployment
was being considered.
UNITED STATES
The Constitution of the United States
Article I,
Section 1: All legislative Powers herein granted
shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.
Section 8:The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout
the United States … To declare War, grant Letters of Marque
and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years; To provide
and maintain a Navy; To make Rules for the Government and Regulation
of the land and naval Forces; --And To make all Laws which shall
be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer
thereof.
Article 2
Section 2: The President shall be Commander in Chief
of the Army and Navy of the United States, and of the Militia
of the several States, when called into the actual Service of
the United States."
21. While the Congress has the specific authority
to declare war according to Article 1 s.8, we have seen that this
is an obsolescent power. Presidents have not felt constrained
from deploying troops abroad in the absence of Congressional authorisation,
nor from interpreting express Congressional mandates in a broad
way. The President has claimed wide powers under his Commander-in-Chief
authority. If the decision to deploy troops is constitutional,
there is little argument that the President has broad powers to
conduct hostilities, subject only to the effect of other restraints
in the Constitution (though, as the present controversies about
unlawful combatants show, perhaps not even to these). The combination
of generous interpretation of Congressional resolutions and wide
powers of implementation caused severe political controversy during
the Vietnam War. As part of the reaction to that, Congress passed
the War Powers Act 1973 over President Nixon's veto.
The War Powers Act (or War Powers Resolution)
22. The War Powers Act was passed after the end of
the Vietnam War when Congress sought to ensure that, in accordance
with the Constitution, the "collective judgment of both Congress
and the President would apply to future exercises of the war-making
power". The legislation was enacted over the veto of President
Nixon and subsequent Presidents have questioned its constitutionality.
The Act does not confer any power on the President to deploy forces
that he does not otherwise have. It says that the power of the
President to introduce US forces into "hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances" arises only under a declaration
of war, under specific statutory authority or in self-defence.
The Act imposes on the President "in every possible instance"
an obligation to consult with Congress before introducing US Forces
in category 2 of Sec.2(c) and thereafter until the forces are
no longer engaged in hostilities. The President is required to
submit a Report to Congress setting out the reasons for the deployment,
the legal authority for it and the estimated scope and duration
of the "hostilities or involvement" where, in the absence
of a declaration of war, US Forces are introduced
a. into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by the
circumstances;
b. into the territory, airspace or waters of
a foreign nation, while equipped for combat, except for deployments
which relate solely to supply, replacement, repair, or training
of such forces; or
c. in numbers which substantially enlarge United
States Armed Forces equipped for combat already located in a foreign
nation.
23. The sanction on the President is supplied in
Sec.5(b), which requires the termination of any deployment of
US forces within sixty days of (or for) the submission of a report
under Sec.4 unless the Congress has declared war, enacted a specific
authorisation for the deployment, legislated to extend the sixty
day period or is unable to meet because of an attack against the
United States. The obligation is subject to certain exigency exceptions.
Furthermore, by Sec.5(c) the President must withdraw US forces
engaged in hostilities abroad without a declaration of war or
a statutory authorisation if the Congress so resolves. The War
Powers Act sets out the procedures for its implementation which
are specific to the constitutional arrangements of the US. The
requirements on the President are mandatory and he cannot avoid
its provisions by simply taking no action.
24. When the President and the Congress are of one
mind to deploy force, the legislative procedures are not an encumbrance.
Indeed, recent US practice has featured Congressional endorsement
of exceptional powers to the President to use force under the
general pursuit of the "war against terror". Where there
are differences, the Executive has been astute to avoid the constraints
of the War Powers Act and the Congress reluctant to stand on its
prerogatives.
25. Practice under the War Powers Act is inconclusive.
Presidents have submitted well over one hundred reports to Congress,
all accompanied by the language "consistent with the War
Powers resolution," but there has been little consultation
with Congress before the decisions have been taken to deploy troops.
Troops are currently deployed under two broad Congressional authorisations,
PL 107-40 following the attack of 11th September 2001
and PL 107-43 authorising the use of force against Iraq (which
may be used for the enforcement of future (i.e. after October
2002) SC resolutions about Iraq). Extracts from these authorisations
are quoted in paragraph 26 below.
26. Professor Glennon warns against too high expectations
of legislative control of executive decisions on deployments through
the War Powers Act. He said that "The most that a statute
can do … is to facilitate the efforts of individual members
of Congress to carry out their responsibilities under the Constitution.
To do that requires understanding, and it also requires courage
… For a Congress composed of such members, no War Powers
resolution would be necessary; for a Congress without them no
War Powers resolution would be sufficient."[185]
27. It is not just that Congress has been reluctant
to use the powers it claimed for itself and to enforce the duties
it supposed of the President, but Congress has granted broad powers
in specific circumstances which make redundant the procedural
steps in the War Powers Act. The most recent examples are the
Joint Resolution of Congress after 11 September 2001, which authorises
the President
"to use all necessary and appropriate force
against those nations, organisations or persons he determines
planned, authorised, committed or aided the terrorist attacks
that occurred on September 11, 2001, or harboured such organisations
or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organisations
or persons."
and the resolution about Iraq, which authorises the
President to use force
"as he determines to be necessary and appropriate
in order to (1) defend the national security of the United States
against the continuing threat posed by Iraq; and (2) enforce all
relevant United Nations Security Council resolutions regarding
Iraq."
28. The War Powers Act is special (even if not unique)
in requiring the participation of both Houses of the Legislature
and providing arrangements for dealing with disagreement between
them. This is an established feature of US constitutional practice
and may not be easily replicable elsewhere.
172 Professor of Law, Durham University; Specialist
Adviser to the Select Committee. Back
173
House of Commons Library Standard Note, "Parliamentary approval
of participation in armed conflict-some international comparisons"-SN/PC/3776,
October 2005. Back
174
C Ku and H Jacobson (eds), "Democratic Accountability and
the use of Force in International Law" (Cambridge University
Press (2003)). Back
175
Volume II: Evidence, Pages 31 and 56 Back
176
Volume II: Evidence, Page 208 Back
177
Aleksic v Canada (Attorney-General) (2002) 215 DLR (4th)
720 (Ont Div Ct). Back
178
Osler Hampson in Ku and Jacobson, Op cit. p.153. Back
179
Rossignol, (Canadian) Library of Parliament, BP-303E (1992) Back
180
See also Volume II: Evidence, Pages 56 and 214 Back
181
Volume II: Evidence, Page 214 (Appendix, para 9) Back
182
Volume II: Evidence, Page 214 (Appendix, Article 3(2)) Back
183
Volume II: Evidence, Page 227. Back
184
Shibata in Ku and Jacobson, Op cit, p.217 Back
185
Michael J Glennon, "Constitutional Diplomacy" (Princeton
University Press 1991), p 122 Back
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