International Humanitarian Law and Human Rights Law
The Law of Consent-Based Interventions
Just Security (Oct. 13, 2016) (with Sarah Weiner)
Consent is Not Enough: Respecting the Intensity Threshold in Transnational Conflict
165 U. Pa. L. Rev. 1 (2016) (with Oona A. Hathaway, Daniel Hessel, Julia Shu, and Sarah Weiner)
It is widely accepted that a state cannot treat a conflict with an organized non-state actor as an armed conflict until the violence crosses a minimum threshold of intensity. But can a host state consent to a use of force that would be illegal for the host state to use itself? And can an intervening state always presume that host state consent is valid?
This article argues that host state consent is limited and that intervening states cannot treat consent as a blank check. Accordingly, even in consent-based interventions, the logic and foundational norms of the international legal order require both the consent-giving and consent-receiving states to independently evaluate which legal regime governs—which will often turn on whether the intensity threshold has been met. If a non-international armed conflict exists, the intervening state may act pursuant to international humanitarian law; if not, its lawful actions are limited by its own and the host state’s human rights obligations.
Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law
96 Minn. L. Rev. 1883 (2012) (with Oona A. Hathway, Philip Levitz, Haley Nix, William Perdue, Chelsea Purvis, and Julia Spiegel)
Although international human rights and humanitarian law share common roots in their respective efforts to protect human dignity, the two bodies of law appear to have incompatible requirements in armed conflicts. This Article draws on jurisprudence, state practice, and scholarship to describe three approaches to evaluating what is lawful in armed conflicts, explores the consequences of the various applications, and recommends that the United States employ interpretive strategies to minimize discrepancies. In situations where states’ obligations remain irreconcilable, the Article endorses a “specificity decision rule” to determine the applicable legal regime.