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Select Committee on Constitution Fifteenth Report


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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