Anne-Sophie Traversac
This chapter gives an understanding on how Defence subjects are addressed in public law and what methodology is best suited to investigate such research topics. From an international perspective on the one hand, most studies focus mainly on institutional aspects. Each institution related to the Defence area is considered independently. Comparison is often made between different organizations. As an example, the history and development of NATO is analysed among its contribution to European Defence. The most relevant part of the complexity lies on interactions between NATO and the European Common Security and Defence Policy, as underlined in Article 7 of Treaty on European Union. From an International Public Law point of view, most of the studies tackle this matter by focusing mainly on military external operations analysis. It is key to distinguish in these studies difference between legitimacy and legality (refer to Article 51 of UN Charter). On the other hand, from an internal point of view, Defence studies are sprayed in different fields. Constitutional Law mostly describes the leading role of the president. Decision power is concentrated on his hands. French constitutional reform (2008) leads Parliament to discuss more than ever, even if no vote is required. As a counter example, in the UK, Westminster Parliament has refused an operation suggested by the prime minister (Syria, 2013).
Introduction
What public law and defence have in common is that they allow us to reflect on the settlement and perpetuation of the state. Defence in this sense might be one of the key issues of public law. While taking a closer look, this intricate dependence between defence and public law seems to be established but not verified when analysing security and defence studies. It seems to be a work in progress regarding research in security and defence. This leads to an accurate need of methodology in this field, which will be further developped in this chapter.
When focusing on methods regarding defence and security issues we may first keep in mind the traditional distinction in the French legal order. Fundamental distinction for French jurists is made between public law and private law. This distinction goes back to Roman law: when the state is a party implied, public law should be enforced. Another way of defining public law confirms this distinction by mainly relying on the notion of general interest, as a goal to protect a Nation. Every system worldwide integrates a distinction between public law and private law. The essential question relies on how we conceive it. France considers that relations where the state is implied should be governed by rules that are different from the rules applying between particulars. French-law developed rules that could be defined as those of a “protecting” state. Before the French Revolution, the Fundamental Laws of the Kingdom constituted the material constitutional law of the French Monarchy. After the Revolution, the distinction between private and public law could be clearly expressed by the construction of two orders of jur- isdiction: one is an administrative Supreme Court – the Conseil d’Etat (State Council) – the other is the Judiciary Supreme Court – the Cour de Cassation (Court of Cassation) dealing with civil, commercial, social or criminal cases. Even if they are organized in a similar manner, they apply different rules. One jurisdic- tion could distinguish any conflictual matter, the Tribunal des Conflits (the Court of conflicts).
The distinction between public and private law is essential to explain the classical structure of French law regarding defence issues. This explains consequently the organization of law studies in French universities. This is the point we may keep in mind for defence studies. This underlines, too, the way research is growing and how researchers can conceive their work and accordingly their career. The teaching and research methods concerning the defence field are supposed to acknowledge the powerful meaning of two separate branches. In this chapter we will particularly rely on the French case concerning methodological elements of domestic public law.
Another key to understanding French law and the place for defence in public law within French law consists in establishing a pyramidal conception of rules. The French Revolution legislators considered in 1789 that fundamental rights and rules regarding separation of powers needed to be written down clearly. In this regard French constitutional issues are henceforth mostly expressed through writ- ten laws. Methodologically this means that the core method for research in public law is the analysis of this written material and the correlation between the differ- ent texts. Public law, which comprises defence law, incarnates the pyramidal con- struction of norms in the French legal system. Following Kelsen’s “pure theory of law” (Kelsen 2017; Herrera 1997), this means that public law (and consequently defence public law as a small branch of public law) considers the Constitution as the top of the pyramid. All the other branches of public law should thus conform to the Constitution: international (including European) law should conform to constitutional law (Art. 55 of the French Constitution), laws voted by the Parlia- ment (or by the people directly, which is very rare) and also administrative reg- ulatory texts (decrees, for instance). Defence issues borrow from all of these matters, and, in parallel, the same questions arise about methodology. This means there is a difficulty in correctly identifying the field, this means there is also a key challenge to determine the most effective methods. Therefore in this chapter we will concentrate in a more restrictive way on a contemporary approach and par- ticularly focus on the last two decades. Security and defence have been the recur- rent subjects of laws and moreover it has been a research topic in public law. Regarding the French conception of public law, defence studies are not a classical field from an academic point of view. This chapter thus aims at explaining how these questions have become an object of research and teaching in the last decades in public law and what consequences is has on methodology. The chapter first examines how defence issues can be investigated by relying on external law (international and European law). This raises a challenge because of the frag- mentation of defence and security rules and norms in different fields. Then the second part will focus on domestic law and how defence issues tend to convey the need for mixed methods (mainly derived from law and political science) so as to better grasp the complexity of domestic legal measures concerning defence issues. In this part we will observe how defence studies emerged as a major research topic and spread into general public law in the recent years. We will draw our argu- ments from the case of French domestic law, as each country’s normative system implies a wide variety of defence-law systems in the democratic states, let alone worldwide. This example enables yet to derive general conclusions concerning methodology.
What place for Defence Studies in public law?
When looking at the place occupied by security and defence issues in public law, they spread into classical and historical structures of French public law. In this part we will show and explain why security and defence issues are fragmented into different sub- fields of public law. We observe that despite the demonstrated spread, the same meth- odology tools are useful.
A fragmentation of security and defence studies in public law: origins and effects in external law and their methodological consequences
In the last decades, security and defence studies have spread more and more within French public law. This phenomenon is the result of both distant and more immediate origins. The distinction between domestic and international law is a good start to understand this fragmentation.
External law refers to norms having an external origin. France consents to these norms, France is also part of several international organizations which can enforce norms having a direct or indirect application (like in the case of the EU for instance). Focusing on defence issues leads us to observe the place and role of international and European laws in the French legal system and how the evolution of these laws combine with the emergence of a normative apparatus concerning defence issues.
International public law and defence: what method for a valid research?
As far as international public law is concerned it is quite clear that the place of defence and security matters. This comes from the evolution of international relations and its effects on the international normative order since World War II. After 1945 more and more treaties and international agreements have been signed coinciding with the development of more and more international organizations in different fields (and not only concerning military issues). These organizations have been created not only to offer economic forums but also to help build peace and develop human rights and democracy values worldwide. In the defence field different organizations tend to over- lap and fulfil the same types of commitments: the collective defence clause of NATO in 1949 is the most common example on a regional scale (Zarka 1997). This clause con- cerning collective defence as set up by the Washington Treaty of 1949 is the result of different commitments. Indeed in 1947 France and United Kingdom signed the Treaty of Dunkirk. This treaty of alliance and mutual assistance was the first of its kind after World War II. In the text the enemy has been clearly pointed out: the essential moti- vation was to protect France and the United Kingdom against the potentiality of an act of aggression from Germany. This tells us a lot about the original way in which the European security system has been conceived. After this first attempt the idea of common assistance has been brought further to a wider scale with the Treaty of Brussels signed in 1948 between France, United Kingdom, Belgium, Luxembourg and The Netherlands (Van Ackere 1995). With this treaty these European partners gave birth to the Western Union (WU) which is the first European intergovernmental organization after World War II. The treaty aimed at different objectives including economic, social and cultural cooperation among member states. The member states essentially accepted a mutual defence clause (Art. IV).
We underline so far the need to follow the classical method used by researchers in law: the primary research tools here are mainly texts, treaties and conventions for the examples above, whatever number of states implied, whatever the success of neither the treaty nor the organization. These sources are relatively easy to obtain as many are open-source data, like in the case of a treaty or an official legal agreement for instance. But the difficulty here is the period before the text is officially released, which can be very long as long as the legal negotiations are not closed. The researcher might rely on press releasees, and even sometimes interviews (see Chapter 4 on this issue) to get information. This leads to an important challenge: first, we may ask which information can be used, and then, we must question at what stage can we use it? Regarding security and defence, a small number of blogs are very useful (“Bruxelles2” provides a good example, as a blog both in French and English), a large number of Internet sources can be helpful but can’t be considered as scientific material. Law researchers are first and consequently deprived of a substantial amount of information: they need to give themselves a methodology to analyse which media can be used, with necessary discernment. This methodology is very close to the one used in political science; researchers are more used to questioning the media, and to using media sources in their own researches.
As for the content, we can underline that recalling these treaties is an important element to understanding what collective defence means and how it translates into legal norms. Studying defence clauses leads us on the one hand to take into account the United Nations Charter and its Article 51 on legitimate defence for instance (see Verhoeven 2002; Cassese 2005). Even though many criticisms had been raised in the previous decades towards the functioning of the Security Council and the use of veto by some powerful states (like Russia or China in the last decade) the UN remains the only universal international organization providing for collective security and defence and giving directives on how to achieve them by using peaceful means to solve inter- state disputes (particularly in Chapter 6 and Chapter 7 of the UN Charter) (see Anderson 2009 considering the Security Council as a Talking Shop in an age of rising multipolarity). On the other hand it also leads us to consider the regional collective or mutual defence clauses such as the famous article V from the Washington Treaty in the case of the most powerful military alliance (NATO) in the world in the contemporary era. These two examples provide the basis of collective defence at the global level and at the regional level (NATO here, but it is also true for the EU, for instance) which builds upon the international norms derived from the UN Charter as the basis of contemporary international law. Again, we can highlight the main difficulty for the researcher in public law: the main weaknesses of the Security Council are not made of classical materials for law researchers. In fact, the method needs here focus on content analysis of the positive material, but also and mostly what is not in the material texts: the analysis of the Security Council’s action in this field relies more on what isn’t done nor written. This leads to common methodology challenges between research in law and in political science.
Moreover, this brief analysis of collective defence clauses enable us to highlight an interesting element in line with the purpose of this edited volume: the main handbooks on international public law dedicate pages to collective security, but not more than a chapter, even not more than 20 pages (out of 800) on collective security (see, for instance, Armstrong 2009; Aust 2010). In these pages (or chapters) much attention is paid to the history of limitation of the use of force or to the focus on classical authors like Grotius (De jure belli ac pacis, 1625) or Vattel (The Law of Nations, 1758). The often cited example are the League of nations (1919) and the Briand-Kellogg Pact (1928) to explain the UN Charter: “All Members shall refrain in their international relations from the threat or use of force” (Art. 2 §4 of the UN Charter; see Schrijver 2005). Many pages could be written here, cross-fertilizing law and political science by relying on similar methodological tools.
Defence issues are only one matter over plenty of examples of the development of international public law. The place of these issues is yet essential given the history of war and peace between nations, but this topic is still given a minor place in most international law handbooks. As a matter of fact, defence materials and norms are mostly presented and developed in dedicated fields such as international law for armed conflicts or international humanitarian law (see for instance Fleck et al. 1999; Bothe 2013; Clapham et al. 2014; Weller et al. 2015). Security and defence are only a small part of international public law, even though collective security and peace making is the inherent aim of the United Nations given by the San Francisco Charter of 1945.
What are the consequences of this marginal position of defence norms when researching and teaching international public law? This mainly results in the fact that before reaching the master’s level of study most public law students (in the French case) only tackle defence issues as one example among many others. This lack of specific teaching on defence issues in French universities is also linked to the content of security and defence on an international scale and the disciplinary divide in teaching those matters at Bachelor level. In most French universities international relations are considered as a branch of political science as much as of international law. The terror attacks of 2015 even started raising the awareness of the French aca- demia on the lack of war studies in France (Holeindre 2015; Holeindre and Vilmer 2015). The multiplication of treaties and organizations within the international order born after 1945 leave the field of international relations open to different disciplinary investigations including in law. Even though law studies are not the only relevant matter on this kind of issue, law remains an important part of the research and teaching in defence issues.
International public law is closely linked to international relations and interna- tional politics investigated by political science. The close link between both different academic fields is also a point that we need to explore further. The French academic system tends to separate these two fields. In international public law security and defence questions are studied basically in the first years of Law studies (Bachelor degree). Deep attention is paid at master’s level (4th and 5th year of study), when students choose to specialize in international public law. They are then offered a complete overview of security and defence issues. Furthermore, this insulated position of defence issues is a bit unfortunate as many issues of international law could fun- damentally be treated through the prism of defence studies. One good illustration of this point could be environmental law. This is now a good example of a rapidly emerging issue both quantitatively and qualitatively. Some aspects of environmental law became, obviously, major security and defence issues: the consequences of armed conflicts on environment is the topic of a PhD in public law and of many more papers from students, as it’s a subject of teachings of qualified publicists (see for instance Kiss 1989; Beurier 2017).
Methodological issues in the European Union law research investigating defence issues
The regional development of the European Union is also a good way of understanding how defence found a place in research and teaching in public law. Here we will not discuss the question of the nature of European Union, as it not crucial to our argument (see for instance Grard 2012). Indeed the legal history and development of the Eur- opean Union implied first the marginalization of security and defence issues.
In 1951 six European countries created the European Coal and Steel Community (ECSC). Belgium, France, Italy, Luxembourg, the Netherlands and West Germany founded an organization to regulate the industrial production of coal and steel. Before pursuing and founding in Rome two other communities, they attempted to set up a European Defence Community (EDC) in 1950 (based on a French plan, the Pleven Plan). After years of negotiations to get all the partners’ agreements on the EDC Treaty (also called the Paris Treaty), the French Assembly failed in ratifying the text in 1954 as the opposition against the Treaty won the parliament over (see Aron and Lerner 1956; Vial 1992; Buton 2004). This led to the first failure in the attempt to build a European security system by the European States themselves as they simultaneously ratified the Washington Treaty and committed to NATO ruled by the American leadership (see Deschaux-Dutard 2018). The consequence of this historical sequence is a twisted conception of European security by European States still prevailing in the 21st century.
If European defence is a current teaching subject in many Anglo-Saxon uni- versities (in Germany, the UK, the Netherlands …), it is still quite marginal in French law Bachelor degrees but became a raising research topic in the last two decades for PhD students and researchers in political science and public law (see for instance Irondelle and Vennesson 2002; Irondelle 2002; Mérand 2008; Terpan and Saurugger 2018). As we pointed out that security and defence issues globally occupy a small part of international public law handbooks, the same applies to handbooks on the European Union. It is of course different in the Anglo-Saxon academic lit- erature were plenty of edited books and handbooks can be found on European defence (see for instance, Mérand 2008; Biscop and Whitman 2012; Meijer and Wyss 2018). Different reasons could explain this. First of all, European defence has had some failures and mostly relies on intergovernmental non-constraining rules. From 1954, when France decided not to continue any further in the establishment of the EDC, and sanction from the Lisbon Treaty, European defence did not generate so many binding legal rules (even though it seems to be changing in the Brexit context since 2017 and the adoption of Permanent Structured Cooperation (PESCO), for instance). European defence relies on a long list of negotiations and summits and numerous small steps. The Treaty of Maastricht (Treaty on European Union, 1992) is one of them. It adopts a cautious formulation: “The common for- eign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence” (Article J.4). This Article demonstrates the common progresses of European defence. From 1954 to 1992, there has been a constant construction of European “conception” of defence. In 1992 the Maastricht Treaty altered the former treaties and created a European Union based on three different pillars, including the Common Foreign and Security Policy (CFSP) which was renamed Common Security and Defence Policy (CSDP) by the Lisbon Treaty (2007). During the general evolution of the Union, moving faster on some policies also explains the minor place of defence studies even if we can underline a coherent construction of European rules of law in security and defence issues.
As well as for international public law, European law research tends to leave defence issues under-investigated. As defence has long been apart from the integration process, handbooks are progressively adding defence issues as it becomes more and more sub- ject to discussions and analysis (see for instance, Blumann and Dubouis 2016).
Regarding the methodology to investigate European defence relying on public law, we can conclude in the same way as for international public law. Indeed, researchers in law are mostly using treaties and the rules deriving from those treaties. All mate- rials existing before the treaties can be referred as “grey materials”: these are key to understand defence issues in the EU but this soft law is not yet the first material for research in public law. This means that law researchers on this field are not numerous because their object is not yet clearly identified as a law research object. The con- sequence of this is major for the career of young researchers in law wanting to uncover European defence issues; when researchers are interested in this field, they can hesitate when choosing a PhD subject: one can ask if this subject, borrowing from public law and political science, can be relevant for the a researcher aspiring to a tenure position in the academia.
Regarding the teaching methodology on such issues, the situation is quite similar as the one described above concerning international public law. Bachelor degrees in law mainly focus on non-security and defence aspects of EU law. Only students who want to pursue a master’s degree in international and/or European law are actually confronted with defence issues and given legal perspective on these issues. Unlike international public law researches which can focus on security and defence studies as a subpart of this academic field, European law students and researchers who want to focus on defence issues are confronted with a new reading of Eur- opean history, focusing on defence. It is an interesting specialization though. For instance, legal understanding of European defence issues can help understand how neutral states have accepted to ratify articles enabling other states to cooperate further and faster on defence issues with the PESCO mechanism adopted in 2017 by the European Council without having to commit into PESCO themselves.1 Even if defence has not yet moved from cooperation to integration, public law is more and more accurate on these issues and needs to be completed by others academic fields, such as political science or economics. Research in European law becomes all the more relevant on defence issues as the Lisbon Treaty has increased the level of norms applying in the field of European defence and security. This translates to handbooks on European Union law tend to start devoting more substance to issues related to CFSP and CSDP. Likewise the increasing role of security and defence issues in the EU will call for more defence developments in the near future with an emerging role for the Court of Justice of the European Union (see for instance Terpan and Saurugger 2018).
As shown in this part defence studies are increasingly tackled by international and European laws. We will now analyse the situation of defence issues in French domestic law and show its consequences in terms of methodology.
Understanding the fragmentation of security and defence studies in public law: the methodology of domestic law in defence studies Research on defence issues has overcome an important evolution in the last decades. As in the case of external law, domestic law (mainly constitutional law but not only) develops a growing interest for defence issues. If the contemporary context (the after- math of the terror attacks in France and Europe) is one of the main reasons, a reasonable and major development is also underway: when law was considered as a constraint before, it seems to be socially better accepted.
The first purpose of constitutional law is the reference to texts and practices incar- nating the way a state is ruled. Devolution and separation of powers are developed in the French Constitution (the Constitution of the 5th Republic adopted in 1958). Thought and designed by General Charles de Gaulle, the Constitution of 1958 mainly relies on principles which exacerbate the role and powers of the French President. The practice of government by Charles de Gaulle during the first decade is still relevant today to investigate how French institutions work. Methodologically speaking we need to underline again here the proximity between law and political science, even though contrary to a political scientist, a public law researcher who wants to investigate the practice of legal texts is confronted with the difficulty of lacking experience concerning research interviews. So he/she needs to focus on the analysis of content, even though legal texts may sometimes be parsimonious.
Indeed regarding defence the French Constitution is not very revealing. Few clauses concern defence but the main elements on defence are not written in this very text. The only and major point is the leader’s identification: defence relies on the decision of the President of the Republic. According to the Article 15: “The President of the Republic shall be Commander-in-Chief of the Armed Forces. He shall preside over the higher national defence councils and committees”.2 Further- more the government “shall have at its disposal the civil service and the armed forces” (Article 20) and the Prime Minister “shall be responsible for national defence” (Article 21).3 Yet confronting the text and practice under the current 5th Republic, the President is the essential player. He is the only one in charge of the nomination of his Prime Minister, who should have the confidence of the lower House of Parliament (Assemblée nationale). France knew three periods of distortion of majority, named “cohabitation” between the President and the lower House:
1986–1988, 1993–1995, and 1997–2002. French President François Mitterrand let there be no doubt about who had the power of decision in the defence field in 1986. The cohabitation between a president and a prime minister of different political colours raised the question of the adaptation of the text to this new practice. 1988 was the first time since 1958 that the Parliament had a political majority different from the one supporting the President. The answer of President Mitterrand to this context was clear. The Constitution should apply with a simple principle: the whole Constitution, nothing but the Constitution (address to the lower House in 1986). This practice revealed the perpetuation and confirmation that the 5th Republic is a parliamentary regime. The defence field is a very interesting subject to investigate the functioning of the regime. At this exact period when President Mitterrand ana- lysed how the fundamental norm would apply, he tried simultaneously to preserve the fundamental powers that the Constitution gives to the President (see Howorth 1992). One aspect is particularly clear. When the Prime Minister had been chosen among the new majority in the Parliament, he had to compose the government. He expressed clear concerns about who would be appointed as defence minister and as minister of foreign affairs. This clearly shows that he wanted to keep the defence and international relations areas under his supervision. Years later the last cohabitation in France made no exception on this issue. From 1997 to 2002, President Chirac and Prime Minister Jospin attended together meetings on defence and foreign affairs matters. Even if the Prime Minister could have the Parliament vote on different aspects of defence, defence historically remains an issue under the private turf of the executive power (domaine reservé; see Howorth 1992).
The text of the French Constitution gives the main responsibility of defence to the executive. The President of the Republic “shall preside over the higher national defence councils and committees” (Article 15). Nevertheless the role of the Parliament increased slightly in the last decades in this field (see Deschaux-Dutard 2017). Histori- cally the Parliament disposes of the war powers: “A declaration of war shall be authorized by the Parliament” (Article 35 §1). Yet in practice there has been no use of this article under the 5th Republic. For instance the “war on terror” that President Hollande launched after the terror attacks in Paris in November 2015 is legally not a war. The role of Parliament increased with regard to defence issues since the last amendment of the Constitution initiated in 2008.
The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed by a vote.(§2)
“Where the said intervention shall exceed four months, the Government shall submit the extension to Parliament for authorization. It may ask the National Assembly to make the final decision” (§3). The 24th renewal of the text of the Constitution in 2008 was the most extensive since 1958. More than half of the articles were modified. The aim was to revalorize the Parliament and to promote a better control of the executive. Actually defence is not a pertinent illustration of the aim and result of this constitu- tional reform. The Parliament takes benefit of a scrutiny that had never existed before. When the government decides to send armed forces abroad, he has to inform the Par- liament. The Prime Minister is also only informed. This is a positive evolution but the information is totally controlled by the government. Moreover the Parliament has also seen its scrutiny competences increased concerning French military interventions abroad: should the intervention exceed four months, the Members of Parliament (MoPs) have to authorize the extension of the intervention. This is also a new power for the legislative body (Gohin 2014). Yet the practice of the last decade shows sparsity from the MoPs. Defence matters in France usually benefit from a global national con- sensus among the political elites which makes it difficult for a political party to assume the burden of breaching this consensus. France has until recently not been used to debate on defence issues. This is slowly changing. More politicians are assuming dis- cordant voices after executive decision in this field, as shown when MoPs are debating on defence matters. This could come from a stricter interpretation of the self-defence disposition of the UN Charter (Article 51) that France tended to support for few years. Terrorism has clearly influenced the way France decides to interpret this clause. The operations lead in Iraq and Syria in the recent years are a good illustration of this trend. From a methodological perspective, this means that research in public law on defence issues needs to take international relations into account so as to grasp the complexity of legal measures and their context of application. Which means press content analysis, and discourse analysis in many cases. There again, this pleads for more cross-fertilization with other disciplines, such as political science.
Back to the French case, even if the national consensus on defence is slightly weaker than before, the last Parliamentary votes on defence issues convey three remarks. First of all, all operations were extended without much debate in the Parliament. As only simple majority is required, it is not an obstacle: defence issues are traditionally not used by the opposition to tackle the government contrary to financial or social issues for instance. The Parliament would not risk a government crisis by opposing the extension of a military intervention. This is even truer given the high level of public opinion support towards the French armed forces and their interventions abroad since the terror attacks of 2015.Yet this high level of support could slightly change with the last missions in Sahel. Operations Serval (2013) and Barkhane (since 2015) tend to last for a very long time and have no precise deadlines yet (they should go on as long as terrorism destabilizes this region). Eventually the practice of the renewed Article 35 shows that the Parliament voted when the Executive decided (see Deschaux-Dutard 2017). In the French tradition, when it comes to military intervention abroad, the Executive decisions – which really means the presidential decisions – have generally been accepted with no (or very few) discussion.
However some criticisms occurred recently (yet not enough to change the executive decision). The Serval operation provides a good example here. In January 2013 Pre- sident Hollande decided to send armed forces in Mali. Despite some hesitations about the first legal arguments conveyed the decision occurred after Malian authorities asked for a French military intervention (see for instance, Traversac 2014). As the operation was embedded in the global fight against terrorism outside French borders it has been easily accepted by the MoPs and the public opinion. Few voices including the former President Giscard d’Estaing considered this intervention in Africa as neocolonialism whereas such consideration is typical in France when it comes to relations a fortiori military ones with former colonies.
Likewise even before the terror attacks in 2015, Paris has decided to lead targeted attacks on Syria which shows an extended interpretation of self-defence. Some legal experts expressed concerns on the legality of these strikes (Fernandez 2015). If their legitimacy has not (yet?) been much of an issue, legality has become a little more of a concern than before. However, these arguments were put aside after November 2015 as France witnessed a “rally around the flag” phenomenon after the massive terror attacks in Paris.
In this section we tried to show that defence occupies a limited space in constitu- tional law be it in the text or in practice. Defence issues in constitutional law are essential but remain marginal in most handbooks on French constitutional law. They also clearly benefit from cross-fertilization with political science to investigate the gap between the texts and their practice. This leads to the same conclusion as in the case of international or European Law: defence studies are conceptually essential for the state and yet defence issues remain under investigated in many academia and particularly in the French academia. However, the dramatic increase of terrorism on the French ground led to an evolution with the concept of “state of emergency”.
A new golden era for research on defence: methodology and the weight of political actuality in public law research on defence issues
The increase in terrorist activities both on the French territory and abroad called for renewed norms and a cultural change towards security and defence issues. The example of the amended Article 35 of the French Constitution has been extensively explained above. Defence took a more important place in the Constitution. Indeed the terror attacks of November 2015 shed a new light on the interpretation the French Con- stitution. At this time legal researchers discovered that some constitutional tools were of no use. To start with Article 16 has become useless. It states Where the institutions of the Republic, the independence of the Nation, the integ- rity of its territory or the fulfillment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitu- tional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council.
This article was used only once since 1958 during the decolonization war in Algeria. The conditions mentioned are clearly not suited for the actual 21st-century context. A few hours after the attacks on the Bataclan Theater, and even before the situation was totally under control, the Ministers had a meeting in the presidential palace to discuss a much needed evolution on this point.
Another constitutional article turned out to be useless. Article 36 calling upon “A state of siege” which “shall be decreed in the Council of Ministers”. Like Article 16, Article 36 implies powers that would have been disproportionate to the threat by transferring the decision power from civilian to military authorities.
Another tool has been developed in the field of defence and security law in France since 2015. It is the state of emergency created in a law of 1955 again in the context of the decolonization warfare in Algeria. In a state of emergency, a first decree must be issued by the executive and if the state of emergency shall continue, the Parliament should then extend its application by a law in a period of 12 days. On 16 November 2015, President Hollande pronounced a speech before the Congress4 where he proposed a constitutional reform in order to amend the different legal tools needed if the nation is put at risk. This reform essentially aimed at introducing in the Constitution the only tool which was not of constitutional level: the state of emergency. This state of emergency had been proclaimed by decree less than three days before. We will not discuss here the question of the possibility to amend the Constitution during such a period. Such an amendment would have not been unconstitutional (Article 89 of the French Constitution does not forbid it), but this could be a means to underline the vacuity of the existing French legal tools when such a specific and dramatic context leads to the worst decisions. Surprisingly the constitutional reform did not succeed for a reason. In addition to the reform of emergency legal procedures, the French Pre- sident aimed at adding a clause enabling the loss of citizenship in case of participa- tion to a terrorist activity. This implied an important political debate on this issue among French political elites whereas the defence issues were not disputed as much … This example provides for the relative political consensus on defence issues that we underlined above among the French political elites. It is also interesting to note that this constitutional reform could have given Parliament more competences to discuss different possibilities to answer the terrorist threat through legal defence and security tools. But as many proposals of constitutional reform before, this proposal has mainly been designed to answer the threat as quickly as possible and without taking the time for a global debate on the process of creating new legal defence and security tools.
The state of emergency (2015–2017) has had several consequences to take into account, as observed by a law researcher on defence issues. What is striking is the tre- mendous amount of books related to the state of emergency (see for instance Beaud and Bargues 2016; Cassia 2016). This aftermath of the terrorist attack can be qualified as a golden age for defence studies in public law in France. This increased legal mate- rials for research on defence issues in public law. Yet again the methods should not only focus on legal measure but also on other sources of information (such as media, political discourses …) for which he/she needs to combine its method with political science methodology (see Chapters 4 and 5 in this volume).
The example of how the news also impacts research on defence issues for researchers in public law (and appeals for more multidisciplinary cross-fertilization) is well illustrated by the example of the state of emergency in France. A classical legal debate particularly found an important echo during this period: it is the debate on the balance between security and the preservation of civil liberties. By essence the state of emergency supposes measures that can result in reducing civil liberties for the sake of the nation’s protection. Looking at French institutions we should highlight that after the decree proclaiming the state of emergency, the Parliament voted on the perpetuation of this exceptional legal measure concerning defence and security on the French territory. This law of 20 November 2015 could have been checked by the Constitutional Court which is entitled to give an advice on a legal text under eight days in a case of emergency. As the national consensus was strong on the issue after the terrible trauma caused by the Paris attacks no Member of Parliament (they need to be 60 Congressman or 60 Senators), nor the Pre- sident of the Republic or the Prime Minister, neither the Presidents of the lower or upper House of Parliament made use of their right to ask the Constitutional Court for judicial advice. Thus there has been no control of conformity of the law declaring the state of emergency towards the French constitutional norms.
The constitutional reform in 2008 introduced the priority question on con- stitutionality (the so called QPC). This tool completes the former control tools hap- pening a priori (before a text is passed as a law) with an a posteriori control (after the law has been passed). Beyond the constitutional field constitutional decisions (named QPC) reveal the influence of the state of emergency on different matters. For instance concerning administrative law, the chapter on administrative police was renewed and completed. In the field of Fundamental Rights number of civil liberties found a new illustration of the conciliation between security and civil liberty.
Yet this exceptional situation is not completely new in France. In the eyes of the Constitutional Court, the state of emergency played the role of a legal tool enabling the perpetuation of the Rule of Law and underlined the role of the Constitutional Court as a nonexclusive but respectful guardian of constitutional principles.
As a matter of fact security and defence studies have a paradoxical connection with public law. Indeed security and defence studies are naturally composed of measures of public law. Yet the place of public law in defence studies has long been relatively weak quantitatively speaking even though defence questions are, qualitatively speaking, essential for a state. The example of constitutional law developed above with the question of the state of emergency in France has demonstrated it well. Taking a close look at domestic law, defence studies are also developing within public law. This is a rather recent evolution that we observe spreading to all the different fields of public law, even though a classical part of administrative law has for long time dealt with security issues of policing.
The subfield of Fundamental Rights studies are also a good way of witnessing the development of defence issues in public law. Here the conciliation debate between defence of the national territory, security in the wider sense and civil liberty is a key for understanding the teaching and thinking process. The French legal Code on Internal Security states that security is a fundamental right and one of the conditions for enjoying individual and collective liberties (Article L. 111–1). This Code is quite new (2012) but the meaning of this article is older (end of 1970s). As it has been extensively developed in the last years among researchers in public law the conciliation between defence, security, and civil liberties implies judicial answers and furthermore also phi- losophical and political approaches.
Emerging defence issues (cyber, intelligence …): a stimulating agenda for research in public law
Finally concerning public law, some subfields have been increasingly tackled by defence issues in the recent years. Two elements can be noticed here. First military intelligence has become an issue of growing importance in the context of the fight against terror- ism. This issue is by essence surrounded by secrecy and the difficulty of its regulation by law. Yet some efforts have been made to set rules concerning military intelligence. A second example is the militarization of cyberspace. This example is particularly inter- esting because it comes against the classical conception of national borders in public law. Cyberattacks could be initiated from everywhere around the world and from individuals, organizations or groups, more or less state-sponsored. A doctrine on this subject is being constructed where public (and more precisely international) law is wit- nessing a growing impact (Bannelier 2014; Tsagourias and Buchan 2015; d’Aspremont 2016; Couzigou 2018; Delerue 2019). Cyber-defence issues raise the question of the appropriateness of legal rules to the cyberspace and new potential cyber conflicts. Studying legal measures that are developing to provide protection for cybersecurity and cyber-defence issues also tend to show that aside the debate about the appropriateness of international law in cases of cyber conflict or cyber-attacks, countries tend to develop a domestic legal approach to the subject (see for instance Bannelier and Christakis 2017) while cyber means are by essence transnational.
Conclusion
As we tried to demonstrate in this chapter defence issues are spread within the dif- ferent fields of public law. Defence studies are not yet a major field among the clas- sical structure of public law. Yet recent years have witnessed a rapid evolution with the growing transnational threats surrounding not only democratic states but each and every state in the world. There is now a great number of questions linked to security and defence issues in public law. Defence is also a rising research field in public law in general and in domestic law in particular as we showed above. More and more researchers started discussing defence issues in the last decade, be they embedded or not in military formation structures such as military universities. Many of these researchers work in public universities and have no direct link to the military institution but develop a strong interest for defence issues in public law. If defence (and by extension security) issues have long tended to occupy a rather marginal position in public law this is quickly changing and will without doubt be of growing interest for public law researchers in the future. In a context of diffused and renewed security and defence threats, defence studies are offering the sovereign state the most important place in the protection of the citizen. The governments have to bear these issues in mind when deciding defence measures for domestic purposes and/or when these measures derive from consenting to apply international norms. Therefore if one wants to grab defence issues as a whole in the future, one also will have to develop research on the legal aspects of defence issues, and cross-fertilize it with other dis- ciplines, such as political science, as we have shown in this chapter. A good way of investigating the legal aspects of defence studies may be inspired by researches on denationalized or transnational law, as defence issues have become more and more embedded with international security since the end of the Cold War (see, for instance, Ancel and Heuschling 2016).
Notes
1 The PESCO mechanism already existed in the Lisbon treaty but had not been used since its ratification in 2009.
2 Source: https://www.conseil-constitutionnel.fr/sites/default/files/2018-10/constitution_anglais.pdf (Consulted on 18 June 2019).
3 Id.
4 The Congress is the reunion of the two Chambers of the French Parliament in the Castle of Versailles.
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