War, State and Sovereignty: Interdisciplinary Challenges and Perspectives for the Social Sciences 9783031336607, 9783031336614, 3031336607

Table of contents :
Foreword
Acknowledgements
Book’s Presentation
Contents
Notes on Contributors
List of Figures
1 The Contingency of the War–State–Sovereignty Triad: Updating a Canonical Debate
Trivialising War in the Scope of Human and Social Sciences
Renegotiated Sovereignties
A Changing Security Environment
(Re)Positioning of Armies at the Heart of the Field of Security
Structure of the Book
References
Part I Revisiting the Link Between War, State and Sovereignty
2 Is War Still an Expression of State Sovereignty? Multidisciplinary Round-Table
War and Sovereignty: A Paradoxical Relationship Viewed Through the Prism of the State
National and International Sovereignty of the State: The Right to Wage War vs. the Law of War?
Towards a New Relationship Between State, War, and Sovereignty?
References
3 Vladimir Putin’s Territorial Trap: What the Invasion of Ukraine Reveals About the Contemporary War-Sovereignty Nexus
Putin, Sovereignty, War and Geopolitical Order
Sovereignty, Power, and Territory in Putin’s War
Putin’s Contradictory Discourse About Sovereignty and Territory (Classical and Imperialist)
Sovereignty Regimes and Modalities of Power
How Contradictory Russian Sovereignty Claims Have Worked Out in the War
Vladimir Putin’s Territorial Trap
References
4 The Omnipresent Absent: The State at the Centre of the War-Sovereignty Dialectic
The Persistence of the State in the War-Sovereignty Dialectic
Observation of the Resistance of the State
Justification for the Persistence of the State
The Relativisation of the State in the War-Sovereignty Dialectic
Renouncing War or Calling Sovereignty into Question
Considering the War-Sovereignty Dialectic Without the State
References
5 The Failed Gamble of the 1920s: Sovereignty Without War
The Legitimacy of War Questioned or Sovereignty Curtailed
War, the Driving Force Behind the History of States
The Conversion of Violence into an International Pact
The Forbidden War
The Discredited Nation-State
References
6 Political-Military Relations. Civil Supremacy Under the Test of Sovereignty
Maintenance of Emergency Power and Presidentialisation of Crisis Management
Extension of the Political (Mis)use of the Military Institution
Politicisation of Military Officers
Return of Competition Between Powers in an Era of Interdependence
References
Part II Case Studies of Contested and Renegotiated Sovereignty
7 Security and Regional Integration Through a Maritime Lens: Shared Sovereignty and Non-cooperation in the Inter-American Region
The Increasing Maritimisation of Crime in the Inter-American Region
A Shared Perception of Threats and the Construction of Communities of Actors
Developing Common Practices and Strengthening Regional Integration Processes
A Fall in Border Effects Remains Limited and Vulnerable to Non-Cooperation
References
8 When the “War on Terror” Undermines the Sovereignty of Fragile, Failing and Failed States
State Failure: A Deficiency in the Effective Exercise of State Sovereignty
The Consequences of State Failure and the Weakening of Respect for Its Sovereignty from Other States
References
9 De Facto Sovereignty and Multilateral Sanctions for a Return to Constitutional Order in a Context of Regional Armed Conflict: The Case of Mali
The Unprecedented Context of a Double Coup D’état in Mali
The Regional Organisations’ Role in Managing the Malian Crisis
Sanctions, Sovereignty and the Responsibility to Protect Under International Law
The Uncertain Impact of the ECOWAS and WAEMU Sanctions
References
10 Outer Space, War and Sovereignty
Space as a Singular Vector of National Security During the Cold War, 1957–1983
Space as the Undisputed Infrastructure of American Military Superiority, 1983–1994
The United States’ Supremacy in Space Facing a Potential Challenge, 1995–2006
Space as a Theatre of Military Operations, Myths and Realities, 2006–2019
National Positions: Between Deterrence and Operational Means, 2019–2022
Conclusion
References
11 Foreign Military Bases and the Sovereignty of Local Communities: The Case of Poland
Foreign Military Bases and Sovereignty
Historical Context of Foreign Troops in Poland
Local Views of a Foreign Military Presence
Drawbacks and Disadvantages
Benefits, Opportunities, and Positive Impacts
Expectations and Disappointments
References
12 War and Sovereignty: “Words that Go Together Well” for an Interdisciplinary Approach
Law and History: A Consubstantiality Between War, Sovereignty and the Formation of States?
Law, Political Science and History: Sovereignty, War, Powers, Institutions and Actors
Political Science, Economics and History: The Variations and Limits of Sovereignty
Geography, Political Science and History: Spaces and Territories in the Reconfiguration of Sovereignties in the Face of War
References
Index

Citation preview

War, State and Sovereignty Interdisciplinary Challenges and Perspectives for the Social Sciences

Edited by Grégory Daho · Yann Richard

War, State and Sovereignty

Grégory Daho · Yann Richard Editors

War, State and Sovereignty Interdisciplinary Challenges and Perspectives for the Social Sciences

Editors Grégory Daho University Paris 1 Panthéon-Sorbonne Paris, France

Yann Richard University Paris 1 Panthéon-Sorbonne Paris, France

ISBN 978-3-031-33660-7 ISBN 978-3-031-33661-4 (eBook) https://doi.org/10.1007/978-3-031-33661-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

This book is the result of several years of collective research conducted within the Sorbonne War Studies (SWS) programme of the University of Paris 1 Panthéon-Sorbonne in France: https://sorbonnewarstudies.pan theonsorbonne.fr. After three decades of relative neglect, international security, defence and military action are coming back to the forefront of public debates and government concerns. Most research programmes are confined to niche markets. It is necessary to formulate an original and ambitious research proposal that addresses the transformation of the role of armies in our contemporary societies and, in its wake, the transformation of the exercise of authority and the legitimacy of the state.

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FOREWORD

In this respect, the SWS interdisciplinary research programme aims to trivialise the study of war—traditionally seen as an exceptional object deserving specific grids—and to decompartmentalise it by recasting its study in the scope of the ordinary tools of social and human sciences. Grégory Daho Yann Richard

Acknowledgements

The editors would like to thank the French Ministry of Higher Education and Research and the University of Paris 1 Panthéon-Sorbonne for their financial support for the development of the Sorbonne War Studies (SWS) programme. The publication of this collective work would not have been possible without the investment of Lina Benqassmi (communication officer, SWS), Barthélémy Zyla (financial officer, Centre Européen de Sociologie et de Science Politique), Clare Ferguson, Sam Ferguson, Meg Morley, Ros Schwartz and Jon Templeman (translators).

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Book’s Presentation

The originality of this book, which echoes the return of war to Europe since the Ukrainian invasion, lies in the canonical nature of the subject and the renewal of interdisciplinary and comparative approaches. Bringing together some twenty researchers from different generations, disciplines and countries, it combines theoretical approach and case studies. The first part is devoted to the contributions of interdisciplinarity in the analysis of the transformation of states, the expression of sovereignty and the wage of war. The second part extends this reflection by exploring different case studies of contested and renegotiated sovereignty in contexts of war. Avoiding the narrowly strategical and functionalist debates reducing the analysis to the adaptation of the states to the changing security environment (the plethora of literature on asymmetrical and hybrid wars, the return of high intensity and the new spaces of expression of sovereignty testifies to this), this book investigates the transformation of the state through the practices of security governance. This framework is an effective way to question together the evolution of authority and legitimacy of state violence and the organisation of human societies. It provides the means to identify the evolution of the regalian contours, the legal and technical forms of regulating violence and the legitimisation of public power. It shows that the contribution of the social sciences is decisive for understanding the changes of the role of armed forces in their political, social and professional environments.

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BOOK’S PRESENTATION

In this perspective, it is intended for researchers and students in social sciences, journalists, experts, administrative and political authorities wishing to understand how the transformation of adversity and conflictuality affects the exercise of sovereignty and vice versa.

Contents

1

The Contingency of the War–State–Sovereignty Triad: Updating a Canonical Debate Grégory Daho and Yann Richard

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Part I Revisiting the Link Between War, State and Sovereignty 2

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Is War Still an Expression of State Sovereignty? Multidisciplinary Round-Table Stéphane Rodrigues, Alya Aglan, Grégory Daho, Yann Richard, and Jean-Christophe Videlin Vladimir Putin’s Territorial Trap: What the Invasion of Ukraine Reveals About the Contemporary War-Sovereignty Nexus John Agnew

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The Omnipresent Absent: The State at the Centre of the War-Sovereignty Dialectic Thibaud Mulier

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The Failed Gamble of the 1920s: Sovereignty Without War Alya Aglan

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CONTENTS

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Political-Military Relations. Civil Supremacy Under the Test of Sovereignty Grégory Daho and Luc Klein

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Part II Case Studies of Contested and Renegotiated Sovereignty 7

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Security and Regional Integration Through a Maritime Lens: Shared Sovereignty and Non-cooperation in the Inter-American Region Sylvain Domergue When the “War on Terror” Undermines the Sovereignty of Fragile, Failing and Failed States Mélanie Dubuy De Facto Sovereignty and Multilateral Sanctions for a Return to Constitutional Order in a Context of Regional Armed Conflict: The Case of Mali Aminata Diaby and Nicolas Klingelschmitt

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Outer Space, War and Sovereignty Isabelle Sourbès-Verger

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Foreign Military Bases and the Sovereignty of Local Communities: The Case of Poland Grzegorz Smułek

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War and Sovereignty: “Words that Go Together Well” for an Interdisciplinary Approach Robert Frank

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Index

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Notes on Contributors

Alya Aglan is Professor of Contemporary History at the University of Paris 1 Panthéon-Sorbonne (SIRICE) and Director of the Pierre Renouvin Institute. Her research focuses on European resistance and the Second World War. She has published in 2020 La France à l’envers. La guerre de Vichy 1940–1945. John Agnew is Distinguished Professor in the Department of Geography at the University of California, Los Angeles. He is a specialist in political geography. In 2022, he published “Hidden Geopolitics: Governance in a Globalized World”. Grégory Daho is Associate Professor of Political Science, co-founder of the Sorbonne War Studies programme and co-head of the M.A. “International Conflict and Crisis” at University Paris 1 Panthéon-Sorbonne in France. His research focuses on political-military relations, international security, military interventions and foreign policy decision-making process. He has recently published (in English), “Political Sociology of International Interventions: Peacebuilders and the Ground”, with N. Duclos et C. Jouhanneau, Journal of Intervention and Statebuilding, in 2019, “A revenge of the generals. The rebalancing of the civil-military relations in France”, Journal of Intervention and Statebuilding, in 2019 and “France: Civil-Military Relations in the anti-terrorist frame”, Oxford Research Encyclopedia, in 2020.

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NOTES ON CONTRIBUTORS

Yves Buchet de Neuilly is Professor of Political Science at the University of Paris 1 Panthéon-Sorbonne. His research focuses on foreign policy decision-making processes and in particular on the launching of multilateral collective security operations. He has published in 2019: “Presence on the ground: Expectations, resources and tactical moves in the negotiation of a UN Peacekeeping Operation in the Central African Republic”. Aminata Diaby is a Ph.D. candidate in International Economic Law at Université de Bourgogne. She is affiliated to the Centre de Recherche sur le Droit des Marchés et des Investissements Internationaux. Sylvain Domergue holds a Ph.D. in Geography from the University Paris 1 Panthéon-Sorbonne. He teaches geography at Sciences Po Bordeaux and is attached to the research team PRODIG. He has been working for ten years on international cooperation and regional integration issues related to maritime security, in collaboration with the French Ministry of Defence and the French Navy. Mélanie Dubuy is Associate Professor in Public International Law at the University of Lorraine. Her main research areas are international peace and security law and the evolution of states (fragilities/fragmentation of states). She has notably written in 2020 “Fragilités étatiques et lutte contre le terrorisme: la digue de la souveraineté résistera-t-elle ?” Robert Frank is Professor Emeritus at the University of Paris 1 Panthéon-Sorbonne and specialist in contemporary history. His research focuses on the history of international relations and the Second World War. He has coordinated the publication of several collective works, including: “Pour l’histoire des relations internationales” in 2012, and “1937–1947. La guerre-monde” in 2015 (with Alya Aglan). Luc Klein is Professor of public law at the University of Reims Champagne-Ardenne, and holds his Ph.D. from the University of Strasbourg. He specialises in comparative constitutional law, French administrative law and military law, and did his dissertation on the subject of civilian control of the armed forces in contemporary democracies. Nicolas Klingelschmitt is a Ph.D. candidate in Political Science at Université du Québec, à Montréal and a researcher in residence at the Franco Peace Center within the Chaire Raoul Dandurand in Strategic Studies.

NOTES ON CONTRIBUTORS

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Thibaud Mulier is a Constitutional scholar, Associate Professor in Public Law at the University of Paris Nanterre. He works on State theory and constitutional law. His research focuses on diplomatic and military action of and within the State, as well as on the regulation of arms trade. He is the author of The Foreign Relations of the State in French Constitutional Law (Mare & Martin, 2020). Yann Richard is Professor of Geography at University Paris 1 PanthéonSorbonne since 2011 and co-founder of the Sorbonne War Studies programme. His research topics are Europe, regional integration, regionalisation of the world, political geography and geopolitics applied to Europe, European Union and the peripheries of the former Soviet Union. His recent publications include La guerre. De près et de loin, with Alya Aglan and Pierre Vermeren (Eds), in 2023; “Where in the world is Ukraine? Confronting Russian and European representations of Ukraine”, Demokratizatsiya: The Journal of Post-Soviet Democratisation, in 2021; “La géographie à la recherche des civilisations de Huntington. Analyse des représentations du monde”, Bulletin de la Société Géographique de Liège in 2021 with Clarisse Didelon-Loiseau. Stéphane Rodrigues is Associate Professor in European Union Law Sorbonne Law School and Director of the Master of Laws on Industrial Strategies and Public Defence Policies at the University Paris I PanthéonSorbonne. Upcoming publication: Commentary of Articles 346, 347 et 348 of the Treaty on the functioning of the European Union, in The Treaty on the Functioning of the European Union, vols. I–IV. Grzegorz Smułek is Geographer from the Institute of Geography and Spatial Management and a doctoral candidate at the Doctoral School of Social Sciences (Jagiellonian University, Krakow, Poland). He is a graduate of the Military Academy in Warsaw in the field of international Military Relations and a member of the European Research Group on Military and Society. Isabelle Sourbès-Verger is Research director in Geography, Centre National de la Recherche Scientifique (CNRS). Her research focuses on outer space occupation and related national space policy. She is currently working on international issues such as strategic matters and space security as well as scientific exploration and exploitation of the Moon. She contributed to one of the first books on space geography, the Cambridge Encyclopedia of Space (2003).

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NOTES ON CONTRIBUTORS

Jean-Christophe Videlin is Dean of the Faculty of Law of the University of Grenoble Alpes, and Professor of public law. He works on national defence law (military status, arms industry, etc.). He is the author of “National Defense Law”, 2014, and numerous articles on this subject.

List of Figures

Fig. 3.1 Fig. 3.2 Fig. 7.1 Fig. 7.2

Fig. 7.3

Fig. 7.4

Fig. 7.5

Divided forces, divided purposes Presumed axes of advance Maritime boundaries in the Caribbean (Sylvain Domergue, 2023) Summary of the dynamics of maritime drug trafficking in the inter-American region (Sylvain Domergue, 2023. Note Light orange: maritime areas where drug trafficking is increasing. Bright orange: area of highest trafficking, as recorded by military authorities in the inter-American region. Orange arrows: land and sea routes for trafficking outside the region) Geographic representation of the Treaty of San José (Sylvain Domergue, 2023. Sources OAS, 2018, FAA, 2019, State Department, 2020, fieldwork [2017–2021]) Theoretical representation of regional maritime crime cooperation protocols in the Caribbean (Sylvain Domergue, 2023) The reduction of border effects through the development of regional integration in maritime security (Sylvain Domergue, 2023)

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CHAPTER 1

The Contingency of the War–State–Sovereignty Triad: Updating a Canonical Debate Grégory Daho and Yann Richard

Russia’s invasion of Ukraine has resulted in an ongoing war, with combat lasting much longer than what the Russian leadership seemingly wanted or expected. The failure to achieve a decisive outcome reveals a notable lack of preparation on the part of the Russian general command. It has also triggered display of NATO members’ solidarity with Ukraine, even as they seek to avoid direct confrontation with Russia. It can be inferred that this military aggression is also indicative of a strictly territorial conception

G. Daho (B) Centre Européen de Sociologie et de Science Politique (CESSP), University of Paris 1 Panthéon–Sorbonne, Paris, France e-mail: [email protected] Y. Richard Pôle de Recherche pour l’Organisation et la Diffusion de l’Information Géographique (PRODIG), University of Paris 1 Panthéon–Sorbonne, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_1

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of sovereignty, based on highly classical principles: by expanding its territory, Russia would increase its power, or at least reduce the power of other states. The large territory and resources of Russia ensure that the country can be self-sufficient, independent of any political or economic influence (especially imports) from beyond its borders, with only minimal alliances. With the return of “hot” war in Europe, where, between “the end of history” (Fukuyama, 1992) and the peace dividend, violent confrontation between political entities was thought to be at thing of the past, this unanticipated prolongation of the Russian “special military operation” invites us to renew and update some fundamental questions on the uses of force in the post-Cold War world. The current situation raises the question of whether the link between war and sovereignty has changed in the globalised world of complex interdependence. It is the role of the social sciences to consider and explore a possible paradigm shift.

Trivialising War in the Scope of Human and Social Sciences Warfare, as an expression of the forces at work in all human societies, is one of various means of political action (von Clausewitz, 1832). Although the role of military organisations has changed considerably since the end of the Cold War, both within and beyond the national borders of liberal democracies, international relations and war-related issues receive relatively little attention, especially in French-language academic circles. The study of war completely disappeared from both military training and university lecture halls from the early 1990s to the mid-2000s, and was replaced by teaching on security or development. Today, social scientists are sharply reminded of the possibility of “old-fashioned” territorial warfare in Europe. The success and diffusion of “solution-oriented” studies (and all their variations, on war, strategy, military, security, intelligence) reflect not only the praxeological and performative dimension of this type of research, but above all their dispersion and fragmentation. Two essential steps must be taken to breathe fresh life into war studies and to link them firmly to the development of the humanities and social sciences. The first is to banish war as something “exceptional” and to cease to regard the state as a “black box” and the military as a “total institution” cut off from the rest of society (Goffman, 1968). The aim is not to study war for its own sake, but for what it can reveal to us more broadly

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about what holds societies together—or fractures them—in the twentyfirst century. Not only is war the most ordinary collective activity in human history, in the light of its recurrence, it also teaches us a great deal about the organisation of contemporary societies. Secondly, new political uses of the military and the transformed relationships between armies and their environment are indicative of wider changes in political and social relations. In other words, armies are a locus of heuristic experimentation in political and social change that has not been sufficiently explored and researched by academics in human and social sciences. The epistemological normalisation of war implies a focus on analysis of the ecosystems of armed forces. This approach to subjects in the academic canon (war, state, legitimacy, the specific nature of the military in liberal democracies, etc.) is the most effective way to examine both changes in conflict situations and changes in the ways authority is exercised and power legitimated. Demystifying war as a research programme and as an analytical framework raises two notable difficulties. First, war may be a common enough phenomenon in the sense that it recurs throughout history, and it is nonetheless difficult to capture its full meaning in a comprehensive definition that accounts for its many forms and distinctive dynamics. Moreover, it is counterproductive to observe war from a narrow technical and strategical perspective, outside of the political, economic and social context in which it erupts; context is a significant factor in the outbreak and spread of war, on every scale of time and space. The challenge is therefore to comprehend war without presupposing that there is anything exceptional about it, and to analyse it using methods that are devoid of any pejorative, prescriptive/meliorative or performative connotations. War does not suspend social relations, although it may modify or strengthen them. On the contrary, for the observer, it reveals the structural forms of a given society. There are of course various standard definitions of war. We will stick to the most classical ones, to begin with: war is an act of violence designed to force the adversary to do as the aggressor wishes (von Clausewitz, 1832) and is subject to variable legal rules (Bouthoul, 1957) that allow two or more groups to conduct this armed conflict (Wright, 1942). In these definitions, marked by the centrality of organised violence, the state is often implicitly or explicitly seen as the sole or principal protagonist or in any case as the one most deserving of attention (Aron, 1962). Empirical reality, however, does not fit neatly with these standard definitions. How can we make sense of the typological descriptions (“civil,”

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“inter-state,” “limited,” “total,” “revolutionary,” “nuclear,” “asymmetrical” or “hybrid”) and the functional qualifications (“urban,” “cyber,” “space,” “of religion,” “economic” or even “psychological”) of war that are employed by those who wage war? War theoreticians now associate a multitude of adjectives with risk and “security” (“international,” “human,” “economic,” “environmental,” “food,” “health,” “societal”); how can we read these associations in relation to our reference points of 30 years ago?

Renegotiated Sovereignties States have given each other unprecedented guarantees of survival since the end of the Second World War. In this sense, they have strongly consolidated the norms of sovereignty and its corollaries (Badalassi, 2014; Biersteker & Weber, 1996; Dardot & Laval, 2020), particularly in relation to war (Glanville, 2013; Patrick, 2019). From a legal perspective, the principle of sovereignty underpins the modern definition of the state and refers to the power of command, above which there is no other power. This principle applies in domestic politics and in external relations as well. In the first case, a state is sovereign insofar as it exercises a legitimate, inalienable and impersonal domination over a given territory (Weber, 2003). Within its territory, it makes and abrogates laws, enforces them, renders justice, resorts to force and so on. Externally, i.e. in the Westphalian legal order, the sovereignty of a state is, in theory, recognised by other states on diplomatic and military levels, as stated in the Charter of the United Nations (‘the Organisation is founded on the principle of the sovereign equality of all its members’, article 2, paragraph 1). However, this internal/external definition of sovereignty is only a legal ideal, which does not cover all possible approaches, and perhaps not the most relevant ones. Sovereignty as defined by Bodin (1576) and Hobbes (1651) does not coincide exactly with the sovereignty in Rousseau’s Du contrat social (1762) or with Sieyès’ sovereignty (1789). State sovereignty is not necessarily the same as sovereignty of the people or sovereignty of the nation, even if the concept of nation-state was developed precisely to make these two sovereignties coexist and even coincide. This issue must be examined in a socio-historic light to clarify the legal concept of state and, it follows, to reveal its attributes, including those that enable it to “want” and to “make” war.

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Even though war is traditionally seen as a way of establishing states (Tilly, 2000), and as a way in which states relate to each other (Waltz, 1979), many authors have pointed out that war also involves nongovernmental stakeholders, which may be infra-state, supra-state or even transstate individual or collective entities (Flint, 2005; Gros, 2006; Kaldor, 2012; Leander, 2005; Strachan & Shiepers, 2011). This is reflected, for example, in the long-term decline in the number of wars between states. Today, the vast majority of armed conflicts are asymmetric wars between states and non-state actors, often also involving trans-state actors. This trend reflects a deeper change, marked by a toppling of our conventional markers concerning Westphalian territoriality, Weber’s understanding of state legitimacy and a redeployment of states’ role in the dynamics of societies (Agnew, 1994; Castells, 1996; Hibou, 1999; Sassen, 1995; Strange, 1996). Since the end of the Cold War, there has been a reconfiguration of the traditional forms of civilian supremacy over armies in both social representations and collective practices. While the sovereign nation-state model remains largely predominant as a framework and setting of social practices, the sovereignty of states has been realigned under the effect of long-term trends that change the ways in which wars are planned, prepared, launched and conducted. These trends are not merely exogenous, i.e. reducible to the strategic environment. Our analysis should therefore not be limited to the adaptation of the military to the transformed post-bipolar context. New conflicts may reshape the state, and simultaneously, the exercise of sovereignty and the ways in which people are governed have been transformed, changing the comprehension and conduct of war. Among these trends, the developments most commonly covered in the strategic literature are the neomanagerial turn in public policymaking, financial globalisation and the complex interdependence of economies, the proliferation of nonstate stakeholders, the rise of networks and interconnected organisations, the emergence of new forms of governance and regionalism, the reinforcement of international institutions and law, the reconfiguration of the traditional forms of civilian supremacy over armies, etc. Study of the evolution of conflicts therefore calls for analysis of the transformation of the contours of the state and examination of the reshaping of the exercise of sovereignty. It will also contribute to the understanding of the war phenomenon. War too plays a part in redefining the boundaries of sovereignty and the ways in which it is exercised in domestic politics and foreign affairs. For this reason, it is necessary to pay

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particular attention to the relationships between states’ sovereignty and the ways in which they envisage or wage war in non-territorialised spaces such as the high seas, outer space and cyberspace. Although cyberspace was initially conceived as a neutral and free space where ideas were to circulate without control and without hindrance, this conception was quickly challenged by certain states. For the United States and France, for example, cyberspace should be a space of freedom in which sovereignty can be exercised, in order to guarantee their national integrity and protect their state interests and domestic users. For other countries, the exercise of sovereignty goes further: they wish to exercise more or less stringent control over information content and circulation. This is no more or less than transposition of territorial borders to cyberspace.

A Changing Security Environment For most contractualist philosophers (Hobbes, 1651; Locke, 1690; Rousseau, 2011) and socio-historians of state-building (Elias, 1973; Weber, 1921), the foundation of the social pact lies in concept of security. Security is understood as the reduction of the uncertainty experienced by individuals in the state of nature and continues to characterise the structural form (Waltz, 1979), culture (Wendt, 1999) or society (Bull, 1977) of international relations. Judging by the proliferation of qualifiers attached to it, security has undergone a remarkable expansion since the end of the Cold War. It is no longer just a matter for states, but for everyone, i.e. for individuals and whole populations. Within the field of defence that has now grown into the field of security, military institutions must manage internal (domestic) risks in addition to external (foreign and international) threats. The military must anticipate crises and no longer simply prepare for the eventuality of war (Daho, 2016). In the current anti-terrorism framework, this evolution is a sign of the advent of a “risk society” (Beck, 1992). This contributes to a general crisis of legitimacy in industrial societies—such societies themselves produce risks that cannot be calculated and which are beyond their control—and also affects other regalian functions and missions such as those of diplomats, police officers, magistrates and prefects. For thirty years now, the strategic literature has questioned the transformation of the nature of war (Van Creveld, 1998) and the professionalisation of modern armies (Irondelle, 2011). As suggested above, the transformation of war has most often been interpreted as the result of the

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obsolescence of inter-state wars (Mueller, 1989), at least until the invasion of Ukraine. In addition, post-Second World War, interventions by Western armies have been undertaken to prevent the collapse (Zartman, 1995) and failure (Helman & Ratner, 1992) of quasi states in the South (Jackson, 1990) rather than to wage war. Three factors are put forward to explain the metamorphosis of the role of armies. First in the list is the transformation of the enemy, which as a non-state actor is non-territorial or deterritorialised, and eludes the grasp of traditional military action. Second, as a consequence, the internal/external dichotomy has become obsolete, making the interpenetration of threats and risks a part of the defence–security continuum. States must devise and implement policies that involve various ministries, and coordinate the actions of the judiciary, the military and internal security agencies. Third, we note the emergence of private actors, which reflects a repositioning of states at the very core of security action. This broadening of the notion of security has been mainly the work of authors claiming to be “critical” in their approach. Since the early 1990s, the Copenhagen School has stressed the non-military aspects of security and has insisted on the praxeological properties of security discourse through the concept of securitisation This concept refers to “an articulated assemblage of practices” (metaphors, policy tools, image repertoires, analogies, stereotypes, emotions, etc.) “contextually mobilised by a securitising actor, who works to prompt an audience to build a coherent network of implications (feelings, sensations, thoughts, and intuitions), about the critical vulnerability of a referent object” (Balzacq, 2011, 3). Security is first and foremost a statement, made by anyone in authority, which legitimates new actors in five sub-sectors: military, societal, economic, environmental and political (Buzan, 1991). Societal security is defined as the ability of a society to persist in its essential character and to sustain traditional modes of language, culture, association, religious and national identity (Waever et al., 1993). The 1994 White Paper released by the French government included a nearly identical definition, well before the broadening of security more explicit in the 2008 and 2013 versions of this document: “National cohesion […] is an essential condition of defence. Power comes not so much from the size of the national territory as from its social organisation, the education of men and women, their solidarity and the values that bind them. In this sense, defence is inseparable from the idea of the nation. It therefore concerns both the French model of integration and social

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organisation, the common values of the Republic, their universal vocation and the influence of the language” (Livre blanc sur la Défense, 1994, 28).1 These critical works point to the factors that have transformed the field of defence, and their consequences on the use of armed force over the last thirty years increased cross-border movements of population, the multidimensional nature of crises, the obsolescence of the internal/ external dichotomy, the blurring of the categories of threat/risk, peace/ war, defence/security, the prevalence of identity issues at the heart of contemporary conflicts, the institutionalisation of various forms of multilateral intervention, the emergence of private actors, the appearance of new communication tools and the mass application of surveillance technologies. On the other hand, if discourse alone is analysed, we may fail to grasp the nature of the phenomenon (Chandler & Hynek, 2013). Furthermore, by focusing almost exclusively on new non-state actors, we may too rapidly conclude that states and therefore the military are peripheral or secondary in security action. For our part, we are not convinced that outsourcing within the armed forces automatically signifies a loss of sovereignty, rather than a refocusing of states on their “core business.”

(Re)Positioning of Armies at the Heart of the Field of Security In their operations, the military are confronted with a multitude of actors with divergent interests (guerrilla belligerents, regular armies, militias, nongovernmental organisations, international organisations, opinion leaders, journalists, criminal or terrorist groups, etc.). Decision-making processes involve the political, administrative, diplomatic, industrial and humanitarian sectors in a multilateral framework. The broadening of the notion of security is consensual among theorists and practitioners alike. There is also a general consensus regarding doctrines (global or integrated approach) and transversality of organisational models (inter-ministry and cabinet committees, task forces, agencies, crisis cells), “continuums” (defence–security, internal–external) and other “nexuses” (such as the security–development nexus). The effects of the broad security model 1 It is crucial to note the extent to which the use of the concept of “societal security” in official French documents prefigures the success of the particularly vague category of resilience advanced twenty years later by political authorities as a collective response to terrorist and/or pandemic risk.

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on the place and role of public power—and therefore of the military— remain difficult to assess. Strategists find it difficult to positively qualify contemporary conflicts, which can be described as guerrilla warfare, asymmetric, irregular, unconventional, counter-insurgency and counterterrorism, among others. This reflects the breakdown of the analytical categories used by theorists and the professional benchmarks used by practitioners: external threats and internal risks are intertwined, the distinction between public and private actors is increasingly inoperative, and military victories often lead to political defeats. A field of security is supplanting the field of defence. The prime characteristics of this field are its plasticity and porosity.2 International relations and the defence of national interests no longer rely solely on the complementarity of the diplomat and the strategist. But what is happening at the structural level? Is it a decentralisation of the state, an externalisation of regalian services, a reconfiguration of relations between public and private actors, a rearrangement of professional relations, the emergence of a new division of labour both within and beyond borders? Is this phenomenon, historically speaking, a reversible trend? Have there been periods and configurations in the modern era when provision of security was “outsourced” by states? How do states around the world react to these challenges, in different regions of the world, with their specific modes of public action and the representations of legitimacy associated with them? Is there convergence in the modalities of cooperation and intervention of states at the international level as a result of this new security agenda? The aim of this interdisciplinary book is to anchor the debates specific to critical security studies to an operational framework, with two simple

2 The “field” (champ), defined as a “network or a configuration of objective relations between positions” (Bourdieu, 1994, 72–73), enables us to examine the changing boundaries between professional groups involved in international security, and to trace how these actors relate to one another. “First, the social space of the professionals of security functions as a “field of force, or a magnetic field”, the dynamic of which creates homogeneity of interests – not of identity. […] Second, this social space is a field of struggles. Of course, actors neither share the same means nor pursue a similar end. […]. Third […] the social space of the professionals of security is a field of domination. Although fields are distinct social spaces, their boundaries remain permeable. Indeed, and this is the fourth trait, the field of (in)security professionals is a transversal field, the trajectory of which reconfigures formerly autonomous social universes and shifts the borders of these former realms to include them totally or partially in the new field” (CASE, 2006, 458).

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questions in mind. What do the current forms of conflict, from asymmetric to high-intensity warfare, teach us about the reconfiguration of the relationship between the state, war and sovereignty? How can the human and social sciences, still strongly marked by the internal/external dichotomy in the discussion of the uses of force, renew the analysis of these phenomena from an interdisciplinary perspective, i.e. by integrating information, data, techniques, tools, perspectives, concepts and/ or theories from two or more disciplines to advance fundamental understanding beyond the scope of a single discipline or area of research practice (National Academy of Science, 2005)? Postulating a shift in the contemporary exercise of sovereignty through war and redistribution of roles and resources between security actors, this collective book proposes a rigorous analysis of the evolution of interactions between the armed forces and their social and political environment.

Structure of the Book This book proposal is the result of several years of collective research conducted within the Sorbonne War Studies (SWS) programme of the University of Paris 1 Panthéon–Sorbonne.3 This programme is part of a process of breaking down barriers between war studies and the social sciences. In other words, it aims to put an end to the exceptionalism of war studies, by making war and the military a commonplace object of study, using the normal tools and methods of social sciences. Heretofore, war studies have been given short shrift in the field of human and social sciences in a number of countries and notably in France. The interdisciplinary contribution of the social sciences is decisive for understanding the changes in the role and insertion of the armed forces in their political, social and professional environment, particularly in liberal democracies, where the military agenda is once again in the forefront of public concerns. This book brings together contributions from 16 academics across a range of generations and nationalities—six jurists, five geographers, three political scientists and two historians. These scholars were asked to work in pairs of two different disciplines or to write individually but using

3 https://sorbonnewarstudies.pantheonsorbonne.fr/.

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concepts from outside their original discipline. The book is divided into two parts. The first part comprises five chapters on the epistemological and theoretical challenges posed by the renewal of approaches to the links between war, state and sovereignty. After this general introduction entitled “The Contingency of the War–State–Sovereignty Triad,” Chapter 2 presents the work of a round-table discussion moderated by Stéphane Rodrigues, with geographer Yann Richard, historian Alya Aglan, jurist Jean-Christophe Videlin and political scientist Grégory Daho. The panel addresses the following question: Is war still an expression of sovereignty for the state? Unlike the rest of the book, this chapter is multidisciplinary rather than interdisciplinary. The aim is to show how these four academic disciplines conceptually rework this central issue, with an emphasis on their convergent questioning and the ways in which they operate a paradigm shift in the relationship between state, war and sovereignty: state sovereignty may be no longer expressed solely through defence and territorial conquest. Chapter 3 explores in detail how the successive stages of geopolitical order—European/British 1815–1875, Inter-Imperial Rivalry 1875– 1945, Cold War 1945–1990 and Global Geopolitical Order—led to different regimes of sovereignty. With these regimes, successively classic, imperialist, integrationist and then globalist, we see that domination is no longer sufficient in itself to achieve political objectives. Almost thirty years after publication of The territorial trap (1994), in which John Agnew raised the question of the obsolescence of the assertion of sovereignty through territorial objectives (thereby consolidating disciplinary bridges notably between geography and political science at the heart of International Relations theory), he now analyses the Russian invasion of Ukraine as a hierarchical–territorial conception of politics and governance. Focusing on the how rather than on the why of the invasion, he offers a refreshing vision of the long-standing contingent nature of sovereignty in a global perspective. Is war less state-centric that in the past? In Chapter 4, Thibaud Mulier pursues the discussion on the reconfiguration of sovereignty at the legal level, questioning the essentialised relationship and the persistent positioning of the state at the centre of the sovereignty–war dialectic, despite the reconfigurations of sovereignty and the relativisation of the state monopoly over regalian activities. He considers war as a social activity

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and develops a theory of the state derived from public law and political science concerns, and invites us to reconsider the war–sovereignty dialectic without the state. Is the limitation of sovereignty between states a way to guarantee prevention of war? In Chapter 5, Alya Aglan, specialised in the history of the Second World War, looks back at the effects of the rise of totalitarianism during the interwar period. She argues that it was a time of intense reflection and international initiatives to limit or even exclude the right to declare war on the basis of state sovereignty. With the Briand– Kellogg pact, state sovereignty, embodied most absolutely in the capacity to wage war, was gradually rethought, notably in the framework of the European community project, for one, and in the anti-fascist project of abolition of the state. Once again, using the tools of contemporary history, Aglan highlights the contingency of the links between war, state and sovereignty. In Chapter 6, a political scientist and a specialist in public law observe sovereignty through the lens of the practice of the state decision-making process. Authors Grégory Daho and Luc Klein, both specialists of civil– military relations, explore the limits of the principle of civilian supremacy in liberal democracies, at a time of extension of the political uses of the military to ensure homeland security in a counter-terrorist context. Their work brings a comparative Franco-American perspective to the possibility of a politicisation of military elites. The second part of the book pursues this reflection with different case studies of contested and renegotiated sovereignty, notably in contexts of war. Chapter 7 explores the inter-American space, the most fragmented maritime area in the world and a major crossroads of global maritime activity. In this chapter, Sylvain Domergue studies how the fight against transnational criminal activity at sea raises the issue of the sovereignty of states and enforcement of their territorial rights. Pooling theories, tools and methods drawn from political science and geography, this chapter sheds new light on the processes that bypass the national grid work and on the regional integration underway in this vast maritime area. It also reveals the increasing deployment of multilevel cooperation mechanisms to improve the efficiency of action to prevent and combat regionalised threats. To what extent do these cooperation mechanisms advance regional integration in this part of the world? What are the obstacles encountered?

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In Chapter 8, Mélanie Dubuy, specialist in international public law, underscores how the “war” against terrorism undermines the sovereignty of fragile states. She cites examples of armed drones and targeted assassinations against the leaders of terrorist groups. The fight against terrorism has called into question the classic models of conflict between states. The inability of fragile states to exercise their authority and provide security and basic services to their population throughout their territory jeopardises respect for their equality and sovereignty in international relations, even though this is an absolute and cardinal principle in public international law. The author proposes a new approach, beyond the classical link between sovereignty and the use of armed force as a manifestation of that sovereign power. Chapter 9 evaluates the effects of the transfers of extensive prerogatives to international and regional organisations under the new peace and security architecture in Africa, specifically in Mali. Aminata Diaby and Nicolas Klingelschmitt, respectively specialists of public law and political science, explore the role and capacity of these supranational organisations and their legitimacy to validate or invalidate the sovereignty of their member state governments in the event of a change of leadership in the context of war. This study shows that the sanction mechanisms implemented by supranational organisations were strengthened following the coups of 2020 and 2021 in Mali. Despite these mechanisms, the two regional organisations with competency to intervene in the Republic of Mali were unable to quickly and durably restore constitutional order in that country. In Chapter 10, Isabelle Sourbès-Verger asks to what extent outer space transforms the exercise of sovereignty by states. She starts with the observation that everything concurs to reinforce the idea of future confrontations in the outer space environment. The discourse goes even further in the United States, where the Chinese threat to American space systems, which guarantee national security, is denounced. And yet, does this projection of war into the 4th environment which would complete the continuum of battles on land, at sea and in the air, really make sense when the fundamental categories of sovereignty and territory no longer have a place in it any more? Chapter 11 highlights the theoretical and practical contradictions raised by the implementation of military bases outside state borders. Grzegorz Smulek focuses on the example of the mobilisation of local antibase movements in countries on the eastern flank of the NATO alliance.

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For instance, a state that hosts a foreign military force effectively loses sovereignty over part of its territory. In the context of the aggressive policy of the Russian Federation and the invasion of Ukraine, the author looks at civil–military relations in areas where NATO foreign military bases are located in countries that were previously part of the Warsaw Pact. In Poland, the military bases of foreign powers have negative impacts and generate hostile social attitudes among the local population who are concerned for their security and sovereignty. This reaction is strongly influenced by the rotation of foreign troops and the lack of support from political actors at the national level.

References Agnew, J. (1994). The territorial trap. Review of International Political Economy, 1(1), 53–80. Aron, R. (1962). Paix et guerre entre les nations. Calmann-Lévy. Badalassi, N. (2014). En finir avec la guerre froide. Presses Universitaires de Rennes. Balzacq, T. (2011). Securitization theory: How security problems emerge and dissolve. Routledge. Beck, U. (1992). Risk Society. Sage. Biersteker, T., & Weber, C. (1996). State sovereignty as social construct. Cambridge University Press. Bodin, J. (1576). Les Six livres de la Republique de J. Bodin Angevin. À Monseigneur du Faur, Seigneur de Pibrac, Conseiller du Roy en son Conseil privé. Jacques du Puis. Bouthoul, G. (1957). La guerre. PUF. Bourdieu, P. (1994). Raisons pratiques. Sur la théorie de l’action. Editions du Seuil. Bull, H. (1977). The anarchical society: A study of order in world politics. Columbia University Press. Buzan, B. (1991). New patterns of global security in the twenty-first century. International Affairs, 67 (3), 431–451. CASE Manifesto (2006). Critical Approaches to Security in Europe: A Networked Manifesto. Security Dialogue, 37 (4), 443–487. Castells, M. (1996). The rise of the network society. Blackwell. Chandler, D., & Hynek, N. (2013). No emancipatory alternative, no critical security studies. Critical Studies in Security, 1(1), 46–63. Daho, G. (2016). La transformation des armées. Enquête sur les relations civilomilitaires en France. Le (bien) commun, Editions de la Maison des Sciences de l’Homme.

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Dardot, P., & Laval, C. (2020). Dominer. La découverte. Elias, N. (1939/1973). La civilisation des mœurs. Calmann-Lévy. Flint, C. (2005). Introduction to geopolitics. Routledge. Fukuyama, F. (1992). The end of history and the last man. Free Press. Glanville, L. (2013). Sovereignty and the responsibility to protect: A new history. Chicago University Press. Goffman, E. (1968). Asiles. Etudes sur la condition sociale des malades mentaux et autres reclus. Les éditions de Minuit. Gros, F. (2006). Etats de violence. Essai sur la fin de la guerre. Gallimard. Helman, G. B., & Ratner, S. R. (1992–1993). Saving failed states. Foreign Policy, 89, 3–20. Hibou, B. (1999). La privatisation des États. Karthala. Hobbes, T. (1651). Léviathan, or, The Matter, Forme, & Power of a Commonwealth Ecclesiasticall and Civil. Andrew Crroke. Irondelle, B. (2011). La réforme des armées en France. Sociologie de la décision. Presses de Sciences Po. Jackson, R. H. (1990). Quasi states: Sovereignty, international relations and the third world. Cambridge University Press. Kaldor, M. (2012). New and old wars: Organized violence in a global era. Stanford University Press. Leander, A. (2005). The power to construct international security: On the significance of private military companies. Millennium, 33(3), 803–825. Livre Blanc sur la Défense. (1994). La documentation française. Locke, J. (1690). Two treatises of government. Awnsham Churchill. Mueller, J. (1989). Retreat from doomsday. The obsolescence of major war. Basic Books. Patrick, S. (2019). The sovereignty wars. Reconciling America with the world. Brooking Institution Press. Rousseau, J.-J. (1754/2011). Discours sur l’origine et les fondements de l’inégalité parmi les hommes. GF. Rousseau, J.-J. (1762/2017). Du contrat social social. J’ai lu. Sassen, S. (1995). Losing control: Sovereignty in an age of globalisation. Columbia University Press. Sieyès, E. (1789). Qu’est-ce que le Tiers Etat? Strachan, H., & Shiepers, S. (Eds.). (2011). The changing character of war. Oxford University Press. Strange, S. (1996). The retreat of the state: The diffusion of power in the world economy. Cambridge University Press. Tilly, C. (2000). La guerre et la construction de l’Etat en tant que crime organisé. Politix, 13(49), 97–117. Van Creveld, M. (1998). La transformation de la guerre. Editions du Rocher. von Clausewitz, C. (1832/2014). De la guerre. Perrin.

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Waever, O., Buzan, B., Kelstrup, M., & Lemaitre, P. (1993). Identity migration and the new security agenda in Europe. St Martin’s Press. Waltz, K. (1979). Theory of international politics. McGraw-Hill Professional. Weber, M. (1921/1968). Economy and society. Bedminster Press. Weber, M. (2003). Le savant et le politique. La Découverte Wendt, A. (1999). Social theory of international politics. Cambridge University Press. Wright, Q. (1942). A study of war. University of Chicago Press. Zartman, I. W. (1995). Collapsed states: The disintegration and restoration of legitimate authority. Lynne Rienner.

Part I Revisiting the Link Between War, State and Sovereignty

Introduction Stéphane Rodrigues Associate Professor in Public and European Law University Paris 1 Panthéon-Sorbonne 24 February 2022: Europe is once again the theatre of a war between states. The invasion of Ukraine by the Russian Federation has disrupted the security architecture of an entire continent and reshuffled the cards of the post-Cold War balance of power. The North Atlantic Treaty Organisation (NATO) has come back from “brain death”, to quote the president of the French Republic Emmanuel Macron. The European Union and its member states have come together to provide unwavering support to the Ukrainian government. From the point of view of the social sciences, this new geopolitical situation leads us to revisit the links between war, state and sovereignty. Indeed, it is now urgent to reflect on a new grammar and vocabulary of war. Can we still think of war, state and sovereignty as inseparable? In what ways do they relate to each other? In other words, is war still the expression of sovereignty for the state? To answer these questions, we must favour a multidisciplinary approach to allow the emergence of a common language. The proliferation of different definitions for each of the elements of the triptych “state, war and sovereignty” blurs the perception of the relations between them.

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This is the case first of all with the concept of the state itself: the state is a contingent product of history, not an immutable legal construct. It can be called into question precisely by war, as with conquered or failed states. The prerogatives of the state may be relativised by international rules in the name of peace: the Westphalian spirit of 1648 opposes the “right to war” ( jus ad bellum) to “law of war” ( jus in bello). The state may even be associated with pooled sovereignty, as illustrated by the construction of the European Union, which 70 years on has revived the question of a European defence force today. The political horizon established by the nation-state—which is no more or less than a contingent form of political organisation—can no longer be considered irreplaceable. Secondly, we must look at the concept of war. War is no longer a military-centric affair and territory is no longer the ultimate political objective of the competition between states. Confrontation of armed forces on a given territory is no longer the only battlefield. Hybrid warfare is a fact: war is waged in cyberspace, on the Internet and in social media, and even on the sea bed in the depths of the oceans. New spaces are opening up for warfare. The principle of civilian supremacy over the military has been gradually imposed, in both democratic and authoritarian regimes. In some cases, it is accompanied by a form of privatisation of security functions. Here again, the Russian-Ukrainian conflict provides examples, with the Russian army under Putin’s leadership assisted by the Wagner mercenary group, and with New Space companies who provide the Ukrainian government with satellite communications and observation capacity (via Starlink). Lastly, the distinction between inter-state war and civil war has been blurred. The Ukrainian conflict is both a fratricidal war, between “sister” nations and a proxy war, involving NATO and the EU not as belligerents but as suppliers of lethal weaponry. The traditional patterns of war are corroding. We see that the very concept of sovereignty is also being challenged. The absolutist and unitary approach to sovereignty, cherished by Jean Bodin, who saw sovereignty as the absolute and perpetual power of a Republic, is no longer self-evident. The classical definition of sovereignty, based on territory, is called into question. Or rather, it has been fragmented: as with the evolution of forms of warfare described above, sovereignty is no longer limited to the military conquest of geographically defined territories. Sovereignty is exercised, or sought, in all domains: economy, industry, energy resources, extra-terrestrial space, digital communication and information, even food supply and the natural

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environment. This is version 3.0 of sovereignty. The conflict in Ukraine shows how a war is not conducted solely through military operations, and is no longer lost in the field alone. Other parameters enter the equation: the determination and unshakeable morale of the Ukrainian population, control of social networks, economic sanctions against Russia and the diplomatic alliances Russia has established to circumvent them, among others. Above all, the new dimensions of sovereignty mark a significant change in the framework of nation-states under international law. In a low-key reversal of history, the proponents of the right to make war (legitimated war) are attacking the rules of warfare (regulated war). Putin ignores and tramples underfoot the most basic rules of international humanitarian law. The United Nations is lethargic, neutralised by its mode of governance and paralysed by outdate voting procedures in the Security Council. At the beginning of the Russian-Ukrainian conflict, it was hoped that a European Defence Union or, at the very least an effective and operational European pillar within NATO, would emerge. These hopes were quickly dashed. Under cover of strategic autonomy, a notion freely interpreted by the EU countries, the debate on European sovereignty is framed as an extension of and/or addition to national sovereignties. This issue cannot be resolved until the question of political commitment, i.e. the willingness and ability to decide has been addressed. Management of the ways and means of action will follow. In other words: a European army, why not, but above all for what purpose? These developments lead us to believe that Clausewit’s formula has lost none of its relevance: war is simply the continuation of politics by other means. In light of the multiple facets of sovereignty, it is more relevant than ever: what if politics today were in fact only the continuation of war by another means of expressing sovereignty?

CHAPTER 2

Is War Still an Expression of State Sovereignty? Multidisciplinary Round-Table Stéphane Rodrigues, Alya Aglan, Grégory Daho, Yann Richard, and Jean-Christophe Videlin

Sovereignty is not a structuring notion for all academic disciplines. In this respect, it is interesting to note that, although the Dictionnaire de la guerre et de la paix published in 2017 by Presses Universitaires de France (Ramel et al., 2017) devotes several pages to the notion of the state, it does not contain an entry for “sovereignty” at all. In contrast, an entry on

S. Rodrigues Institut de Recherche en Droit International et Européen de la Sorbonne (IREDIES), University of Paris 1 Panthéon–Sorbonne, Paris, France A. Aglan Sorbonne-Identités, Relations Internationales et Civilisations de l’Europe (SIRICE), University of Paris 1 Panthéon–Sorbonne, Paris, France G. Daho Centre Européen de Sociologie et de Science Politique (CESSP), University of Paris 1 Panthéon–Sorbonne, Paris, France e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_2

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“sovereignty” can be found in the Dictionnaire de la culture juridique, published in 2003 by the same publisher (Alland & Rials, 2003), together with entries on “the state” and “war”. The difference between these two works of reference reflects the fact that different disciplines have different ways of approaching war as an object of study. To take the example of geography, although this discipline does indeed study conflicts and wars, since these are “spatialisable” social phenomena, there are relatively few geographers who study violent armed conflicts involving one or more states. In other words, with few exceptions, war is not central to this discipline (Flint, 2005; Lacoste, 1976). Nevertheless, some geographers specialise in geopolitics are thus interested in the relationship between space and power. They share a field of study that is also explored by political scientists, who use this specialism to assert the autonomy of political science as a discipline in relation to its origins in the domains of law and history. The latter two disciplines, conversely, have perhaps been more interested than others in the links between war and sovereignty, particularly through the prism of the state. Accordingly, jurists make sovereignty itself (one of whose original attributes is the power to wage war) both the foundation and justification of the state: there is a state because it is sovereign, and there is sovereignty because there is a state. Historians, meanwhile, observe and analyse periods of conflict and war by studying the impact of military activity on the sovereignty of states, concluding sometimes that sovereignty has become more pronounced, and sometimes that it has been weakened or has even disappeared. In the light of these varied disciplinary approaches to war and sovereignty, two important questions arise. Firstly, is there a paradox or even a schizophrenic aspect to the relationship between war and sovereignty, since war can be both a supreme expression of sovereignty Y. Richard (B) Pôle de Recherche pour l’Organisation et la Diffusion de l’Information Géographique (PRODIG), University of Paris 1 Panthéon–Sorbonne, Paris, France e-mail: [email protected] J.-C. Videlin Faculty of Law, University Grenoble Alpes, Grenoble, France

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(territorial conquest, reorganisation of borders) and an admission that sovereignty has been abandoned (occupied or failed states, military invasion)? Secondly, should we speak of a continuum or of a discontinuity between the internal and external dimensions of state sovereignty? In other words, does the international level supersede the national level in framing or even constraining the use of war (e.g. when national sovereignty is constrained or limited by international law)? Or, alternatively, is the international level just another expression of national sovereignty, used in this case to mask the latter’s inability to totally prohibit war? Could we then argue that sovereignty is magnified by the will of states to reorganise themselves, as can be seen in the construction of a European Defence Union?

War and Sovereignty: A Paradoxical Relationship Viewed Through the Prism of the State The perspective of jurists allows us to establish the terms framing this debate. If we look at the case of France, the sovereign constructed their authority through war: “Even before appearing as a vigilante and then a legislator, the King appears as a warrior” (Rigaudière, 1993, 14).1 The Merovingian, Carolingian, and Capetian kings relied on this political and social model to establish their authority by conquering territory and imposing an obligation of military service on their vassals (Drévillon & Wieviorka, 2018). Later in the medieval period (from the thirteenth century onwards), taxation was implemented at the national level (both the gabelle—a levy on goods such as salt—and the taille—a form of direct taxation) as a way of financing war, thus establishing a direct link between tax and the nation (Turgot, 1775). Nevertheless, until the right to wage war became centralised, the state could not be considered as being constituted as such. Indeed, even during periods when truces were in place between kingdoms, militias and mercenaries continued to wage private wars. In practice, these wars took the form of banditry. A state is thus constituted as such above all by the possession of its own currency and its own army. The King asserts himself as the decision-maker on matters of war and peace within his kingdom,

1 Except when indicated otherwise, translations from texts in languages other than English are our own.

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and Royalty as a central power asserts itself in its ability to prohibit war between lords (as prescribed in the “Grande ordonnance pour la réforme du royaume” of 1254). In the view of Max Weber, who characterises the state as an entity possessing a monopoly on the legitimate use of physical force (Weber, 2003), it is unthinkable for a sovereign state not to have its own army, that is, one that is both national and independent. Charles de Gaulle reiterated this link in a speech on 14 June 1952 in Bayeux: “Defence! This is the primary reason for the existence of the state. If it fails in this, it will destroy itself”. When de Gaulle became head of state, he restated his position in these terms: “France is a sovereign country […] it cannot accept subordination. Defence policy follows from this […]. It was therefore necessary, and as quickly as possible, to acquire the means for an independent policy” (Institut Charles de Gaulle, 1992). This intellectual construction could lead to the view that state sovereignty cannot be constituted without military power. However, this conclusion would be excessive and needs to be nuanced in two ways. Firstly, sovereignty is more of a legal notion, which characterises the legal capacities of the state at the internal and international levels. It cannot, of course, be detached from a consideration of reality, which concerns the effective capacity of a state to defend and/or impose its interests. In this respect, sovereignty is polymorphous: economic, industrial, diplomatic, cultural, and of course military. Secondly, there are thirty states without armies (including Costa Rica, Panama, Mauritius, Monaco, Lichtenstein, and the Pacific states) and others whose possession of armed forces is restricted (Japan and Germany since the Second World War), yet the sovereignty of these states is not contested for that reason. The partial or total invasion of a state’s territory, on the other hand, is an important factor in challenging that state’s sovereignty. The Hundred Years’ War, the two World Wars, and, more recently, the Russian invasion of Ukraine provide examples of this. States without an army, or with an army that is under-equipped or under-trained, whether voluntarily or not, can therefore be seen as abandoning part of their “effective” sovereignty to the mercy of either neighbouring states, sub-state organisations (militias, regional movements), or trans-state organisations (terrorist groups, mafia, cyber criminals). The ability to either initiate a war or respond to it in various forms, including cyber warfare and information warfare, thus once again becomes a criterion of sovereignty. The approach used by historians supports this conclusion. In the 1930s, several imperial projects in Europe, Asia, and Africa were pursued

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with the avowed aim of reshaping, through war, the world order for several generations. In so doing, they contributed to a significant weakening of the concept of sovereignty of the conquered states, which were then subjected to various forms of domination. This series of expansionist dictatorships began with the Japanese invasion of Manchuria in September 1931, followed a year later by the Manchukuo, a puppet state under the control of Japan, who aimed to establish a vast “Greater East Asia Co-Prosperity Sphere” (1940–1945). Fascist Italy, which saw itself as the third Rome, instigated the Ethiopian War of 1935 as part of its aim to reconnect with an ancient tradition by laying the foundations of a Euro-African empire. Nazi Germany, meanwhile, came to believe that the conquest of a Lebensraum (“living space”) in Eastern Europe derived from its alleged racial superiority. The subjugation of the European continent, which was almost completely accomplished by 1942, was conceived as being only the prelude to a thousand years of global domination. The conquering hypertrophy of fascist regimes in Italy, Japan, and Germany aimed to integrate vast spaces into new, imposed vassal hierarchical structures, thus creating by extension new forms of territorial sovereignty through the dilution of old ones (Aglan & Frank, 2015). The creation of the League of Nations at the end of the First World War, which specifically identified the states responsible for the outbreak of war as a result of “the aggression of Germany and her allies” (Article 231 of the Treaty of Versailles), overturned what might have seemed a self-evident link between war and sovereignty. According to the earlier view, the decision to declare war belonged to the right of governments, who alone could justify their actions, and indeed, the law resulting from the Hague Conventions of 1899 and 1907 was more concerned with jus in bello, that is, the conduct of war and the protection of civilians and prisoners of war. In Part VII of the Treaty of Versailles, devoted to “sanctions”, Article 227 “publicly arraign[s]” Wilhelm II of Hohenzollern, former Emperor of Germany, for “a supreme offence against international morality and the sanctity of treaties”, in particular the violation of Belgian neutrality and sovereignty. It also announces the intention to try him— and anyone else accused of committing “acts in violation of the laws and customs of war” (Article 228)—by “special tribunal”, to be composed of five judges appointed by the US, Britain, France, Italy, and Japan, respectively. As it turned out, the Netherlands, where the former Kaiser had taken refuge, refused his extradition, and it was subsequently only a small group of soldiers who found themselves on trial in Leipzig between May

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and July 1921, where they were either acquitted or convicted with only light sentences, generally for the ill-treatment of prisoners. In spite of the many conferences in the interwar period devoted to disarmament (of both land and naval forces), and the attempts at arbitration and conciliation conducted by the League of Nations (which Germany joined in 1926), this intergovernmental organisation failed to curb the global rise of totalitarian imperialism and the threat that it posed to the sovereignty of other states, because it did not have the power to enforce its own judgements. Although the Second World War and the years leading up to it witnessed a strengthening of the role of states, this was also the time when the welfare state and social security projects were conceived on a national scale, so that “men in all the lands may live out their lives in freedom from fear and want” (according to the goals espoused by the US and Britain in the Atlantic Charter in August 1941). Yet the increase in the number of people governed by belligerent states was paradoxically accompanied by an overall decline in sovereignties, which were subject to the vagaries of war at a time when many people were formulating federalist ideas for a world government, that is, a supranational authority capable of putting a definitive end to war, and which would thus be less subject to the instincts of authoritarian nation-states. The military successes of Nazi Germany in Europe led to the complete disappearance of sovereignty in several instances, with the annexation of numerous territories and the dismantling of entire countries, including states that had emerged from the disappearance of the Austro-Hungarian Empire in 1918, such as Czechoslovakia, Poland, and the dismantled Yugoslavia. New configurations emerged in occupied Europe, giving rise to various different situations: governments in exile, such as those of Belgium and the Netherlands that were contested by rival partisan organisations, as in Greece and Yugoslavia; satellite governments, as in Norway; separatist states that owed their existence to their alliance with the Nazis, such as the “independent state of Croatia” led by Ante Paveli´c’s organisation Ustaše, although this territory was nevertheless occupied by the Wehrmacht and the Italian army; and finally, the Vichy regime, established in the so-called “free” zone of France, which was characterised from the outset by a lack of sovereignty, and “la France libre”, which claimed sovereignty—two entities that entered into conflict both on national soil and in French colonial territories abroad. Temporary losses of state sovereignty due to upheavals associated with alliances with dominant regimes (German, Japanese, or Italian) generally led to further warfare, in terms of both

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its intensity and its duration, and situations in which civilians became involved in localised conflicts that were not resolved by the end of the Second World War. This historical analysis leads to a territorialised view of the exercise of sovereignty by the state. But is it still relevant today? From the point of view of political science, this vision, centred on the balance of power between states and rooted in Weber’s foundational definition of the state,2 has become somewhat outdated as a way of accounting for the exercise of sovereignty. Within national borders, security is the basis of the social contract: it is by renouncing the exercise of their absolute freedom that men create the power of Leviathan (Hobbes, 1651). On the legal level, sovereignty is the basis of the very principle of the authority of states as legitimate forms of political organisation (De Guibert, 1790). On the socio-historical level, sovereignty resides not only in the progressive monopolisation of regalian prerogatives—first and foremost the levying of an army and taxes (Elias, 1939)—but also in the consent of the governed to legal-rational domination (Weber, 1921) and in the capacity of the state to wage wars (Tilly, 2000). Sovereignty is thus never fully effective, even in the European nation-states that have been elevated to the rank of models, and is fundamentally an assertion. Outside borders and between states, war is a litmus test of sovereignty, whose outcome reveals the hierarchy of power within the international system. For a state, going to war is a means of defending or asserting its sovereignty. In the balance of power that characterises inter-state relations, war, or at least an expression of one’s determination to wage war, is also theoretically a way of containing the expansionist impulses of other states. Whether it is a matter of controlling it, conquering it, defending it, or denying access to others, territory is therefore central to the traditional understanding of the exercise of sovereignty within and between states. However, in the post-Cold War world, the forms, modalities, and effects of power are being redefined, and we might ask whether the assertion of sovereignty now resides less in the control of territories than in the exertion of influence over populations for some political scientists (Badie, 1999; Walker, 1993) and geographer (Agnew, 2005). In this post-Westphalian international order, characterised by the 2 “An institutionally organised political enterprise (Anstaltsbetrieb) will be called a state if, and to the extent that, its administrative staff can lay claim to a monopoly of legitimate physical force in the execution of its orders” (Weber, 2019, 495).

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extra-territorialisation of the exercise of sovereignty (we are thinking in particular of the “new spaces” of assertions of sovereignty, such as outer space, cyberspace, the sphere of information, the seabed, and the poles), there may be more effective ways of securing respect for a state’s sovereignty than through violent conflict. When research in the domain of political science shifts the question of the link between state, war, and sovereignty to the territory, it coincides with the approach used by geographers, whose main entry point into the subject is precisely that of space, both as a social construct and as an object of representation. Geographers study the relations between war and states by examining the spatial deployment of war and its consequences on the organisation of populations and activities. This perspective opens up four avenues of research, starting with the analysis of conflicts involving trans-state actors and the description of systems of regional conflict. This includes the analysis of situations where state sovereignty is challenged, with various forms of territorial violations (Agnew, 2005; Storey, 2017). The African continent offers many examples, such as the Kivu conflict which began in 2004 and which constituted a form of transgression of sovereignty. Roland Pourtier (2016) has extensively investigated the involvement of external actors in this conflict, showing, for example, that Rwanda is a key actor in the destabilisation of the eastern Democratic Republic of Congo. The Rwandan government has tried to exert control over eastern Kivu province, both to protect its own security and to appropriate local land and mineral resources. Pourtier also examines the link between this armed conflict and the overlapping of cross-border ethnic identities and national affiliations, which give rise to complex configurations and ambiguous statuses. Similarly, geographers specialising in armed violence, such as Emmanuel Chauvin and Géraud Magrin (2020), have addressed several objects of study in Central Africa: the regional circulation of arms; cross-border flows of irregular fighters, who connect local areas of violence to the rest of northern Central Africa and who recycle their experiences from this weak link of Central Africa, thus provoking a regional escalation of conflict; and the tendency for regional trade flows to become invisible, with the development of “hidden” trade hubs and routes, which make it possible to avoid the violence of armed actors. A second avenue of enquiry is particularly concerned with borders, which are of interest to geographers who study the dynamics of their functioning and reshaping during violent conflicts. One such example is that of the transformations in the nature, functions, and management of

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borders in situations of conflict in the Near and Middle East, with a particular focus on the borders of Syria. Analyses in this area have addressed the political and territorial fragmentation of Syria, the emergence of multiple internal fronts and borders, the segmentation of the external border into a series of sections controlled by different forces, and the variation in social practices depending on the scale of action of the actors involved in the war. Geographers are also interested in borders after the end of a period of violence (Vignal, 2017, 2021). In particular, they observe the existence of what are known as de facto states or pseudo-states, especially in the peripheries of the former USSR (O’Loughlin & Kolosov, 2002). On this subject, they address important questions. How can we explain the geographical distribution of de facto states in general and their emergence in certain locations and not in others? And after the end of the violent conflict that accompanied their creation, how do they assert their de facto sovereignty and how do they construct their borders, at the expense of the sovereignty of the state in whose territory they are included de jure? The construction of the Abkhazian border is a tangible illustration of the relevance of such questions: the Abkhazian authorities have pursued a policy of territorial reappropriation in cooperation with Russia (demarcating and securing the border, controlling flows, and reorganising the identitarian space); meanwhile, Georgia has implemented a policy of reconciliation and attractiveness by promoting the development of the border area, while also trying to make this border as inconspicuous as possible, since it specifically undermines Georgia’s definition of its own international borders (Bachelet & Richard, 2018). For geographers, the situation thus presents several questions: what is the status of the line that now separates Abkhazia from the rest of Georgia? Is it an inter-state border in the classical sense? Or is it an internal administrative boundary within the Georgian state? And how does this boundary or border influence the social practices of local populations? A third avenue of enquiry for geographers is that of conflicts in cyberspace, an area in which geographers agree with the analysis of political scientists in identifying the emergence of new spaces in which sovereignty can be asserted. Geographers in particular observe that, in the discourse of states, cyberspace is generally seen to constitute a “territory” to be conquered, controlled, monitored, and reappropriated (Douzet, 2014; Limonier, 2014). This view contrasts with the earlier dominant representation of cyberspace, which instead depicted it as a very libertarian space. It has become a “space” in which the state aims to enforce

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its borders, its sovereignty, and its laws. Cyberspace can pose a threat to state sovereignty, national security, and national interests. However, it is also a difficult object of study for geography to apprehend, as this discipline is faced with the fundamental question: is cyberspace a space? The boundaries between jurisdictions, which are a favoured object of study in geography, are more blurred in cyberspace than in physical space. Geographical research on cyberspace can be linked to war, such as in recent studies on the link between conflictuality and the geography of data routing (Pétiniaud, 2022). One example of this is the conflict in Crimea and concomitant changes in connectivity in this territory: since 2019, Crimea has been completely integrated into the Russian internet network. Similarly, dynamics of power are being deployed by means of internet infrastructure in the Donbass region of Ukraine: this region has recently experienced significant changes in connectivity, with an increased dependence on the networks of southern Russia (the main source of connection for the networks of the self-proclaimed People’s Republics of Donetsk and Luhansk). Through these actions, the Russian state is making itself more visible in internet networks outside its borders, while also developing mechanisms for the transfer of sovereignty, and increasing the division between separatist or annexed areas and non-occupied Ukraine. Finally, geographers frequently analyse intra-state conflicts (even though these sometimes spill over into the territories of neighbouring countries). They then observe the geographical deployment of asymmetric wars in which states are confronted with non-state armed groups, sometimes supported by foreign states (Rosière, 2011). In these wars, there is usually no clear front, unlike in inter-state wars. For geographers, this situation raises several questions: how do armed groups move across the territory in question? What are their tactics? How do guerrilla fighters act? How do government troops fight against these armed groups? Do these groups succeed in controlling parts of the territory (leading to the formation of grey zones), and if so, which groups are successful, and why?

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National and International Sovereignty of the State: The Right to Wage War vs. the Law of War? Armed conflicts, whether inter-state or infra-state, occur and develop in a new context: that of globalisation, which affects both economic and legal relations between states, and is also accompanied by a growing relativisation of the relationship between war and national sovereignty, under the guise of a new international order that is still seeking its bearings. The question of whether there is a continuum or discontinuity between national and international sovereignty be considered in the light of a preliminary observation: that of the marginalisation of the role of military force. Political science faces the theoretical challenge of situating, the belief in the obsolescence of the classical ways of asserting sovereignty through war in time and space. The conviction that military force alone has become ineffective as a means of asserting sovereignty started with the structuring of Cold War conflictuality through bipolarity and deterrence. It continued with the post-Cold War Fukuyama’s conception of the “end of history” (1992). The obsolescence of inter-state wars is also a Western belief marked by the influence of the precepts of democratic peace (Doyle, 1983), as formulated in the Washington Consensus, Fukuyama’s conception of the “end of history” (1992), Robert Keohane and Joseph Nye’s assertion of the stabilising effects of interdependence (1977), and even dating back to Montequieu’s evocation of the pacifying virtues of “doux commerce” (1748). Although many Western commentators have considered, from the beginning of Russia’s so-called “special military operation” in Ukraine, that this invasion is an anachronism and that Putin’s power grab should be seen above all as a sign of weakness, the fact remains that direct confrontations—while being unlikely to occur between “large” states, probably owing more to their possession of nuclear weapons than to the democratic nature of their regimes—continue to be possible between “medium” states and are even recurrent between “small” states (as demonstrated by the ongoing territorial disputes between Armenia and Azerbaijan, India and Pakistan, China and Taiwan, Israel and Palestine, Algeria and Morocco, etc.). Three structural explanations pointed out by political scientists and deepen by historians are generally provided to demonstrate the obsolescence of inter-state wars. The first explanation is the transformation of the very nature of warfare (leading to civil and ethno-nationalist conflicts,

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multilateral interventions, and the international fight against terrorism) and of the nature of the organisations that wage it (terrorist groups, guerrilla fighters, private militias).3 Historians follow this explanation especially through the civil dimension of wars (Deluermoz & Foa, 2022). If one considers the example of France during the Second World War, both the state and sovereignty literally disappeared in favour of rival and poorly-defined entities. The new regime took the vague form of a “French state”, without reference to the Republic, which was set aside. As this state was committed to a policy of collaboration with the occupiers, it became so dependent that on several occasions it came close to forming an alliance with Germany. In order to defend its empire against anyone at all—the British, the Axis forces, or the Gaullists—the French state had to make concessions that further weakened its sovereignty (Aglan, 2020). “La France libre”, which was originally a volunteer corps, aimed to take on the role of the only legitimate French state and formed itself into the “comité français de libération nationale” (French Committee for National Liberation) in June 1943, before becoming the provisional government of the French Republic a year later. At the time of the Allied landing in North Africa in November 1942, total confusion reigned, to the extent that the Vichy forces defending North Africa fired on the Anglo-American troops that had come to liberate them. The latter, once established, recognised the authority of the Vichy French state in the person of Admiral Darlan, one of the foremost representatives of military collaboration with the Third Reich, and then that of General Giraud, who was General de Gaulle’s rival. Through states’ de facto submission to Italian, German, or Japanese occupation authorities, their state sovereignty became largely fictitious and revealed its flaws, especially in imperial lands where the defence of colonial possessions depended on the new conquering authorities. The second explanation is that the rise in the power of transnational actors favours a “retreat” of the state (Strange, 1996) from the regulation of international conflict and is reshaping sovereignty practices. One of the most fruitful fields of historical research in recent decades has been the study of transnational movements, which served as a laboratory for 3 This explanation, when developed on the basis of Al-Qaeda’s broad pursuit of a deterritorialised jihad, needs to be qualified in two ways: firstly, by recognising the attempt made by Daesh to establish a caliphate in Iraq and Syria, and secondly by recalling that jihadist groups follow a local rather than a global agenda, such as in the Sahel.

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the international constructions of the post-war period, outside traditional state frameworks. Whereas the historical research into states at war draws not only on the resources of archives, but also on the instruments of political analysis, the study of national or international clandestine movements tends to draw instead on the methods of sociology, combined with political science and cultural and religious history. The aftermath of the Second World War highlights the challenges that arose to the nation-state model. The nation-state then came to be characterised as a form of organisation that fostered autarky, expansion, and consequently war, and was criticised on this basis by some underground Europeanist resistance fighters, who advocated the creation of a European organisation whose federal structure would necessarily entail the disappearance of traditional sovereignties (Aglan, 2008). The link between war and state sovereignty, clearly observable in fascist regimes, came to be seen as being intrinsically destructive, and it was therefore deemed necessary to challenge and rethink it in order to offer the world the guarantee of an ideal global democracy. Just as, in earlier times of peace—notably the periods of peace when international conventions were conceived (second half of the nineteenth century)—international conventions had been expected to establish limitations on war, the European federalist resistance groups now envisaged a European future in which a United States of Europe would act as a bulwark against war, through the construction of new forms of shared sovereignty, and as a step towards a “United States of the World”. However, in the case of the Third Reich, the main effect of international mechanisms for prohibiting or limiting war during the interwar period was, on the contrary, to reinforce the nationalist claim to the right to war as an expression of demographic vitality and of ambitions to re-establish Germany’s power through a project to dominate the entire continent. For Fascist Italy, which developed the theme of the “proletarian nation” and claimed the right to “a place in the sun”, which was used in particular to justify the conquest of Ethiopia and the annexation of Albania, the expression of the empire’s sovereignty lay precisely in its capacity to wage war. Finally, globalisation—more specifically the increase in interdependence, networked governance, and the atomisation of spatio-temporal reference points—is considered as contributing to explain the marginalisation of expansionist territorial aims. Jurists also question the internal/external dimension of the affirmation of sovereignty through the double restriction on the use of war (applied

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to the right to wage war and from the law of war). In domestic law, the submission of military power to civil power, according to the ancient principle cedant arma togae (“let arms yield to the toga”; Cicero, De Officiis, I, 77), constructs a political model that makes civil power—albeit an “idealised” one—into the guarantor of peace. History is littered with too many examples demonstrating that civil power is not, in reality, this “idealised” guarantor of peace, but this principle nonetheless remains a foundation of civil liberal democracy, and is very often incorporated into constitutions by the fact that the head of state is also the head of the army (as in Article 15 of the Constitution of the Fifth Republic of France). This principle does not therefore address the question of the sovereignty of the state, but it supports a theory—far removed from reality—that considers war to be a political abnormality. The situation is different in public international law (Daillier et al., 2022, 1031 ff.). The right to war is not recognised, but it is also not prohibited. The restriction on the free use of force by one state against another may have its first manifestation in the medieval period with the so-called “paix de Dieu” (“peace of God”, i.e. a truce during a conflict, resulting from the Catholic Church’s desire to regulate war, Barthélemy, 1997). However, its implementation did not pose any challenge to states’ sovereign right to wage war. Although treaties contributed to pacifying relations between states, they do not give rise to a general principle prohibiting the use of force. The emergence of such a principle did not occur until the beginning of the twentieth century, with the Hague Convention of 1907, known as the Drago-Porter Convention, and then later to a limited extent—despite the horrors and international scope of the First World War—with the Covenant of the League of Nations (1919). Some wars would nonetheless remain lawful. The Kellog-Briand Pact (1928) was the first to prohibit the use of force: “The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another”. Nevertheless, it was only with the United Nations Charter (UNC, 1945) that an unequivocal principle was adopted “that armed force shall not be used, save in the common interest” (Preamble), with the only exception being self-defence (UNC, Article 51) or a decision of the UN Security Council authorising the use of force (UNC, Article 41). Thus, given that states exercise their

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own sovereignty precisely by agreeing to limit their actions, this historical marker of state sovereignty is effectively obsolete. It then seemed to be necessary to establish a law of war, through the sovereign will of states, and subsequently, rules for the conduct of warfare to protect civilians have been adopted: armed forces are subject to the four Geneva Conventions adopted on 12 August 1949, which still form the basis of international humanitarian law today. They concern, respectively: the wounded and sick (civilians and soldiers); shipwrecked persons; prisoners of war; and, finally, civilian populations (within which women and children receive special protection). Two additional protocols to these conventions were adopted in 1977. Furthermore, numerous international treaties have been drawn up to ban certain categories of weapons (chemical, biological, nuclear, cluster munitions, anti-personnel mines, etc.). However, state sovereignty has not led to the creation of a supranational authority that would be the custodian of an international armed force. In order to preserve the appearance of respect for the sovereignty of the attacked state, particularly during the Cold War, wars have occurred in which the aggressor has sometimes called on a third party. Doing so, the aggressor state creates an “internal” armed conflict in the aggressed state. In all cases, the principle of non-interference in the internal affairs of a state (UNC, Article 2§1) has not been respected (see, for example, the judgement of the International Court of Justice in the “Case concerning the military and paramilitary activities in and against Nicaragua” [Nicaragua v. United States of America], 27 June 1986). A state can disregard this double restriction on the use of war (on the right to wage war and from the law of war) to which it has voluntarily committed itself (as in the case of the action of the United States in Vietnam, or of Russia in Syria and Ukraine) without running the risk of being prosecuted and convicted. This fragility of public international law attests to the ultimate primacy of state sovereignty in the conduct of war. For the jurist, war thus remains a manifestation of state sovereignty, which can be seen to be full and complete. This observation is echoed by work in political science that aims to downplay the significance of international phenomena, which may seem more noble and daunting than domestic phenomena. It is a trivialisation of phenomena such as war, i.e. an attempt to get away from the exceptionalism applied to the analysis of warlike or violent phenomena, which

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consists in saying that phenomena of such a magnitude must be analysed with different tools than “normal” social ones. Political scientists working on issues with an international dimension thus maintain— whether consciously or not—a normative distinction between “high politics”, which is concerned with the war/peace dialectic, and “low politics”, which is concerned only with the day-to-day affairs within states. When it comes to distinguishing between international and domestic phenomena, especially with regard to the recurrence of war, the approaches used in the social sciences are therefore marked by a distinction between the uses of violence within and outside borders: in the former case, there is a hierarchical civil state, that is, one with a political centre, and on the other hand, there is an anarchic state of nature lacking a super-Leviathan. Beyond the relativisation of the internal/external boundary (regarding the circulation and uses of violence and also the implementation of crisis management mechanisms), this approach aims above all to mobilise the ordinary tools of the social sciences to explain international phenomena, and especially those related to conflict. The stakes of this undertaking are high, for several reasons. First, the methodological exceptionalism still surrounds the apprehension of military phenomena: they are still studied as objects like no other, because of their nature, their scale, and their consequences, and examined by means of the analytical grids used by the actors concerned (such as “the return of high intensity” and “hybrid warfare”). The second reason is connected to the excessive reification and homogenisation inherent in the designation of intangible collective actors (“NATO forces”, “Françafrique”, “the intransigence of the Kremlin”, “Brussels”, etc.): precisely because “all political activity (even at the international level) takes place somewhere” (Siméant et al., 2015, 14– 15), it is important to clarify the link between the research question and the empirical protocol being applied. Any terrain of international activity can be situated and localised. Finally, the performative effects of indigenous categories (“globalisation”, “radicalisation”, “resilience”, etc.), which undoubtedly make sense in the context of the processes by which the actors being studied name their reality, can obfuscate the analysis from the perspective of the observer. In this sense, the relativisation of the international dimension is a way of escaping from a narrow focus on strategy: it is then not a matter of studying war for its own sake, but for what it can reveal to us more broadly about what holds societies together—or not—in the twenty-first

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century. This is a final and fundamental issue concerning the extraterritoriality of research on war in the various disciplines of the social sciences4 : war studies will regain its centrality at the moment when scholars working on different objects will use it to advance their own research.

Towards a New Relationship Between State, War, and Sovereignty? There is a paradigm shift under way in the relationship between state, war, and sovereignty. But it is not enough to highlight the way in which states are adapting to the transformations of the strategic environment. New conflicts are reshaping the state, and, concomitantly, transformations in how people are governed and how sovereignty is exercised are changing the nature of war. This considerable evolution—state sovereignty is no longer expressed solely through defence and territorial conquest—is reflected in new labels of security public policies. The wide international circulation of “global” or “integrated” approaches (in the fields of “3D defence”, diplomacy, and development), “continuums” (defence-security, internal–external), and other “nexuses” (such as the security-development nexus) shows the extent to which the horizontal and vertical coordination of a multitude of actors, of different natures and located at different levels of governance, is considered to be crucial to crisis management. This coordination is also central to geographical research focused on the co-construction of regional security by states, which can involve combining the action of states with that of non-state actors of different levels and different natures. From a geographical perspective, one can then consider how the geographical limits of state sovereignty can be transcended with a view to combating insecurity and build security. Several lines of research emerged on this subject in the 2000s, such as that focused on the growing involvement of regional organisations in conventional security in Africa, with the deployment of regional military forces

4 The “extra-territoriality” of war studies is based on the conviction that such a phenomenon can only be studied with specific tools or concepts (this is not the same thing as disciplinary dispersion, which explains the lack of institutionalisation of war studies more than its lack of consistency).

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in theatres of war.5 The inter-American maritime basin presents another interesting field of study for geographers, as illustrated by the work of Sylvain Domergue (2021) on asymmetric warfare against traffickers. Finally, we should mention Pauline Pic’s work (2022), which highlights the role of security as a factor in the construction of a large Arctic region, and which points to a broader question: how are security issues shaped by spatial dynamics, the observation of which could potentially lead to the identification of distinct “regional” logics in matters of security? In other words, do the security processes at work in a given space allow us to say that this space thereby constitutes a “region”? All of this research is carried out by geographers, who are also keen to draw on the work of political scientists in an interdisciplinary manner, particularly with regard to the concept of regional integration. However, political science warns us that military practices are not simply the result of exogenous factors linked to the transformation of the enemy, the nature of asymmetrical conflict, the effects of interdependence in a globalised context, and the co-construction of a security space. They are also the result of internal processes within states. We should therefore replace the hypothesis of the “withdrawal” of the state with that of a redeployment, while paying attention to the recomposition of relations between the actors participating in state sovereignty, and especially the reconfiguration of techniques of governmentality (Bonditti, 2004; Bonditti et al., 2017; Foucault, 2004) and the partial privatisation of states (Hibou, 1999). Within the field of defence—which, during the Cold War, was dominated by diplomats and strategists, and which has subsequently developed into the broader and more porous field of security—the military specialist now no longer simply conducts wars, but rather manages crises. We are thinking here of the extension of the political uses of the military institution in most so-called “liberal democracies”: for example, in France, the use of personnel from the anti-terrorist operation Sentinelle as part of law enforcement by supplementing police forces during the Gilets Jaunes demonstrations, the use of the universal national service programme as a symbol for promoting “youth engagement”, and the launch of Opération Résilience in March 2020 to support the 5 Between 1990 and 2017, forty-two peace operations were undertaken under the aegis of the UN, mostly with the involvement of African forces, including sixteen with the involvement of the African Union (AU), and seven with the involvement of the Economic Community of West African States (ECOWAS).

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fight against the pandemic by deploying military transport and hospital resources. The hypothesis emerging from the work of political science in this area is not that of a redrawing of borders within the state or of a renegotiation of sovereignty within regional groupings, but rather that of a new division of security work, involving both national and transnational actors. From this point of view, although it is difficult to determine whether the actions of non-state actors reinforce, diminish, or transform state sovereignty, an interdisciplinary observation can be made with greater certainty: it is time to think in a joined-up way about the transformation of war and the recomposition of states. In this respect, the debates that are currently feeding into the political agenda of a programme for European defence should also contribute to making sovereignty—both economic and military—into a shared endeavour and a common interest (Rodrigues, 2022).

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CHAPTER 3

Vladimir Putin’s Territorial Trap: What the Invasion of Ukraine Reveals About the Contemporary War-Sovereignty Nexus John Agnew

Vladimir Putin may well have “aged into a classic oil state autocrat” (Sharma, 2022) or been led into invading Ukraine by “hubris and isolation” (Sonne et al., 2022). He is certainly a dictator who does not need to worry much about open political opposition. Most of his opponents are in prison or exile. He also has an aging population dependent to a significant extent on largesse from state coffers. Fully one-third of the population depends largely on government handouts. They may have no alternative but to go along except they also seem to share in Putin’s fatalism about an encircled and threatened Russia (e.g. Kolesnikov, 2023; Troianovski & Hopkins, 2023). We can then acknowledge that the expansion of NATO into the former Soviet “lands” to the west of Russia has been an intolerable insult to the former KGB operative in the former DDR (East Germany) as the Soviet Union and its sphere of influence disintegrated in

J. Agnew (B) University of California, Los Angeles, Los Angeles, CA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_3

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1989–1991, whatever the deficiencies in his accounts of US and NATO actions at the time and subsequently (Sarotte, 2021). But we need to take most seriously what Putin himself has said about how he views Ukraine and what assumptions about sovereignty and warfare he seems to have brought to the conflict (Tallis, 2016). The conduct of the war, such as the initial multi-front invasion versus the later retreat to the east and south, followed by a Ukraine-wide massive bombardment of civilian infrastructure, provides a set of clues, as would be commended by a classic writer on warfare such as Von Clausewitz (1968/1832). Focusing on the how rather than immediately jumping to the why of the invasion (NATO expansion versus Putin’s dreams of empire, for example), as have most commentaries (see, for example, Benjamin & Davies, 2022; Cardini & Mini, 2022; Walt, 2022), is the way I propose trying to understand what has been afoot. This represents an effort at bringing together elements of political theory and political sociology concerning war and sovereignty with a practical political-geographic viewpoint about the historicity of sovereignty and territory (e.g. Agnew, 2016, 2018). To set the scene, Clausewitz’s approach to warfare is useful in identifying the factors that plausibly lead to military success or failure (e.g. Simpson, 2012). Basic is the idea that “war is the continuation of politics by other means” suggesting that military goals should bear a direct relationship to political objectives. In practice, this boils down to the need to combine three factors that make this possible: strategy, plan, and battle, in which only a careful calibration of the three can lead to a positive outcome. While Clausewitz also identifies morale on the part of protagonists as crucial, he does not clearly articulate how much the outcome of warfare is determined exactly by the geographical disposition of forces and their supply lines, and how they match the territorial goals of the war (Jo, 2021). Although if Clausewitz does offer the timeless caution: “Pursue one great decisive aim with force and determination…” it remains abstract. What, then, if the territorial goals at stake in the war are fuzzy or based on contradictory objectives, such as both taking over a distant administrative center and redeeming co-ethnics in a nearby border region? In this case, troop deployments may be divided and the defensive forces may readily advance a counter-offensive, particularly if defending their homeland/territory is at stake and the morale of the offensive forces is weak or questionable. The Russian invasion of Ukraine in February 2022 is a clear demonstration of how the conduct of a war can highlight what purpose(s) the war is supposed to serve. Rather than projecting from

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various beloved universal theories about realpolitik or the machinations of arms manufacturers, the statements of protagonists and the ongoing conduct of the war provide the clues as to what is afoot. In pursuing this approach, I begin with a discussion of President Vladimir Putin’s putative objectives in the Ukraine war and connect them to the war-sovereignty nexus through the concept of geopolitical order, arguing that war fulfills different objectives under different geopolitical conditions. Attention then turns to the discourse of sovereignty adopted by Putin and how it reflects a certain set of understandings about sovereignty implicit in the conduct of the war. That these have proven contradictory is an understatement. They reflect a deficient conception of how sovereignty has worked and continues to work through different “regimes” or sets of practices of power and authority. These involve different modalities of power in which domination is rarely ever sufficient in itself to achieve political objectives. The military impasse into which the Russian invasion quickly fell reflects the confused territorial objectives and conceptions of sovereignty that underpinned them as much as it does failures of intelligence, logistics, and morale, notwithstanding their own relative importance. A final section identifies the various elements of a territorial trap into which Vladimir Putin’s military intervention in Ukraine has fallen. Whatever the future course of the war, springing out of this trap will likely prove extremely difficult (e.g. Charab & Priebe, 2023). The assumptions about sovereignty and war on which it rests have turned out to be fateful.

Putin, Sovereignty, War and Geopolitical Order Putin’s actions in relation to Ukraine raise significant questions about war and sovereignty. I am using the case of the 2022 Russian invasion of Ukraine to explore how seeing sovereignty today in strictly territorialized terms undermines the use of war to extend one state’s sovereignty when other spatial modalities of sovereignty limit its effects. Not all sovereignty is simply territorial (see the next section). I frame this argument in terms of a conception of sovereignty that includes networked as well as territorialized forms of power and which sees power as involving modalities other than simply that of domination. Various forms of “soft” power, for example, can be more fruitful politically than military coercion alone (see, e.g. Freedman, 2022; Krugman, 2023; Slaughter, 2016). Ukraine’s ability to organize its defenses with massive external support and Russia’s

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vulnerability, given its dependence on manufactured imports and limited alliances, are examples in point. The invasion of Ukraine has been ill organized and with apparently shifting goals. But it was also based on failing to take into account that contemporary Russia is not a truly autarkic territory organized to exist separate from the rest of the world. Its dependence on manufactured imports is particularly extensive. Its resource economy (oil and gas) also proved to provide less leverage over possible allies of its adversary than envisaged. Twenty-first-century warfare is thus not best based on a nineteenth-century model of national-imperial sovereignty. The precise character of statehood and its relative significance in relation to global governance (and, thus, sovereignty and war) has varied historically according to the nature of the broader cultural-geopolitical order operative at a given time (Dussouy, 2001; Sassen, 2006). In Agnew and Corbridge (1995), we argued for three epochs of geopolitical order beginning with the Congress of Vienna in 1815 and ending in 1875 (the Concert of Europe-British Geopolitical Order), the Geopolitical Order of Inter-Imperial Rivalry (1875–1945), and the Cold War Geopolitical Order (1945–1990). As of the early 1990s, an emergent Global Geopolitical Order was in the offing (Agnew, 2003), and for which, there is still enormous continuing evidence. But this now seems in some eyes to be under challenge from something that is more akin to the period of InterImperial Rivalry, depending on what happens to relations between the US, China, Russia, Japan, and the European Union, in particular, in the years to come. Each geopolitical order divided up the world in different ways as the “rules” governing the order were established. Thus, in the first order, Britain operated politically to balance power across Europe, but its navy and relatively open economy served to both institutionalize colonial rule elsewhere and provide public goods to the world economy such as commodity markets and insurance services. In the second order, territorial geopolitics based on competitive inter-imperial behavior prevailed. In the third one, the US and the Soviet Union were two imperial states that engaged in ideological and military competition by recruiting client states yet also gave rise to a set of international institutions (particularly on the US side) that by the 1960s were providing the regulatory basis for a more globalized world economy. This only reached its fruition globally after 1990. Varied regimes of trade, investment, diplomacy, and military competition prevailed across the different geopolitical orders. But these were not just the fruit of coercion by singular global hegemons or regional ones.

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This is often the meaning given to the term “hegemony” (Agnew, 2005; Dutkiewicz et al., 2021). Rather, even if countries such as Britain and the US played outsize roles in different epochs, the different orders resulted from the broad acceptance of common understandings and norms of conduct until these were no longer acceptable to significant constituencies or with the rise of new “powers,” such as Germany, Japan, and the US in the late 1800s, and China and non-state actors today, who try to change the rules to their presumed advantage. “Planning” on the part of the government of a singular hegemonic power was never part of the historical structures that characterized the world during the various geopolitical orders (Woodley, 2015). It has been much more accidental. In the case of what has become the post-Cold War era of globalization, it was the projection of what had been the US historical experience inside the US (an expanding national market, the reduction of barriers to trade and investment, the creation of a national polity following the New Deal of the 1930s), allied to technological changes such as containerization, satellite-based telecommunications, and new types of ship propulsion, and its appeal beyond US shores, above all in Europe and Japan, allied of course to US political-military power, that enabled this projection, and that produced the “model” of globalization with US companies leading the charge because of their declining rates of profits in the late 1960s and early 1970s (Agnew, 2005; Smil, 2010; Stein, 2010). What marks off current globalization from the past geopolitical epochs as noted above is twofold: it is based on the rapid diffusion of ideas and information worldwide rather than just trade and it has produced an increased convergence between Europe and the US, on the one hand, and East Asia, on the other, as the dominant regions in the world economy when they had hitherto quite different geopolitical roles (Baldwin, 2016). But each geopolitical order has relied on distinctive ways of managing two central processes of the modern capitalist world economy: the dominant scale of capital accumulation and the dominant space of political support and regulation for that accumulation. The former has had two tendencies: the territorial intensive and the interactive extensive and the latter has had three tendencies: national state, imperial state, and international state (Agnew & Corbridge, 1995, 19–23). Thus, the first geopolitical order (1815–1875) rested on a set of territorial economies and national states in Europe with a growing interactional tendency outside of Europe managed through Britain. In this construction, Britain was the first international state. The second order (1875–1945) involved

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an explosion of inter-imperial rivalries as leading states in Europe plus the US and Japan competed for dominance over resource and marketrich territories. As the epoch wore on, the creation of exclusive colonial zones and increasingly protectionist policies at the national level led to the overall primacy of the territorial scale of accumulation in a world of competing imperial states. The third order (1945–1990) saw a combination of two imperial states (the US and the Soviet Union) with the US sponsoring much expanded interactional accumulation as it came to assert its role as an international state, particularly in relation to Western Europe and Japan. Increasingly, the joint impact of extensive accumulation (initially by US-based multinational businesses) and global regulatory institutions gave rise to the globalization of the world economy that emerged into full efflorescence only in the 1990s and early 2000s. In this order, many states are internationalized and increasingly intertwined with political regulation that is no longer solely national-territorial but involves supra-regional (such as the EU), international (such as the WTO and IMF), and private (such as credit-rating agencies) regulatory bodies. Buried within this order, however, are numerous imperial legacies left over from previous epochs not least such features as the persisting role of London as a global financial center, the Euro-American “export” of the national-state model, and US military bases scattered far and wide (e.g. Halperin & Palan, 2015). The geopolitical order underpinning globalization since the 1980s has been characterized in terms of a mixed model of increased global governance dependent on states, international organizations, and private regulatory agencies (Agnew, 2022). The conventional schemas used to map global geopolitics during the Cold War era—First, Second, and Third Worlds, East and West, Core and Periphery, North and South—have lost their significance. In their place is an emergent order not based in homogenization, as globalization is sometimes erroneously held to entail, but in relatively novel spatial differentiations with the rise of new economic centers (particularly in and around China) and declining prospects in the historic homelands of global capitalism (such as England and the US Midwest, to mention just two). There are three elements behind this: increasing US displacement, the rise of other centers of capital accumulation and regulation, and the jockeying of places hitherto on the margins of the global system to find their way into it. The arrival of Trump, the US debacle in Afghanistan, the COVID-19 pandemic, and the increased dependence of Western Europe on Russian oil and natural gas have all

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further contributed to a sense in Russia that the opportunity to return to a geopolitical order in which its place would be more secure than within that of US-dominated globalization was opening up. It is in this context that Vladimir Putin has intervened in Ukraine, beginning with the annexation of Crimea and support for secessionists in the Donbas in 2014, followed by the full-fledged invasion in 2022. The Soviet “imperial legacy” takes on meaning as an exercise in returning not so much to the Cold War but to the older logic of inter-imperial rivalry. Indeed, Putin is arguably reaching back before the Soviet period for his inspiration by asserting a Russian-imperial identity and decrying what is left of the Soviet-era one (e.g. Baunov, 2023). The ideological cast of the Cold War has been replaced by that of a re-bordering of continental states that Putin shares with other anti-globalist nationalists such as Trump in the US, Orban in Hungary, Modi in India, Erdogan in Turkey, and Bolsonaro in Brazil, to name just a few. The negative memory of the post-Soviet economic disruption in the 1990s, following the advice of famous US economists, is widely shared among Russians and serves to emphasize their greater comfort with the more autarkic regime that Putin has brought them, notwithstanding its own contradictions such as the looting of natural resources by pro-regime oligarchs who invest much more outside Russia than in the country itself. More specifically, a hierarchical-territorial conception of politics and governance is central to the worldview at work in Russia’s recent invasion of Ukraine. Yet, the current geopolitical order is not solely territorial, as the sanctions imposed on Russia as a result of its invasion illustrate. It is heavily networked, as the basic business models of Russian oligarchs, draining resources from Russia for investment elsewhere, suggest. In the case of President Putin, Ukraine is viewed as representing an integral part of the long-standing Russian/Soviet empires. Its “independence” is a threat to the very existence of the Russian “sphere” because any affiliation it has to the West (NATO and the EU in particular) means that it has betrayed its position within a Russian world that is fundamentally (in the Manichean sense) opposed to a decadent West. The civil war in the Donbas beginning in 2014 provides evidence in this conception for the sidelining of Russian speakers in Ukrainian politics and hence the justification this provides for subsequent Russian intervention in 2022 (e.g. Arel & Driscoll, 2023). Contradictorily, the Russian government also claims to adhere to the so-called Westphalian conception of stateterritorial sovereignty in which other states should not intervene beyond

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their borders except as part of formal alliances. Obviously, therefore, in practice, not all sovereigns are always equal. Russia has repeatedly intervened across the territory of the former Soviet Union since the 1990s; Georgia in 2008 and Ukraine in 2014 and 2022 are good examples. From this perspective, in Putin’s eyes, the Westphalian rule simply does not apply to Russia in relation to Ukraine. Indeed, in justifying the 2014 annexation of Crimea, Putin claimed that this act was in line with international legal sovereignty with respect to national self-determination (of Russian speakers), humanitarian emergency, and Russia’s self-defense. On using this score, of course, Putin is not alone. Even though the dominant geopolitical order today may be globalist, the US and other powers have also had frequent recourse to territorial-military interventions around the world for one reason or another, often based on dubious intelligence. That most of these have turned out badly for the countries in question (the US in Iraq and Afghanistan, France in West Africa, etc.) is small compensation. I turn now to a discussion of the intersection between sovereignty and territory that has previously characterized official Russian pronouncements but in the context of my previous writing about so-called sovereignty regimes: classic, imperialist, integrationist, and globalist. I describe how Putin has approached the conflict with Ukraine, particularly in the lead-up to the invasion. The various justifications he has offered for this, from denying separate national status to Ukrainians and rescuing Russian speakers from Ukrainian “Nazis,” to seeing Ukraine as an appendage of “the West” threatening Russian civilization, suggest that no single motivation has inspired the invasion. The conduct of the war itself suggests that Putin had competing goals: taking over Ukraine in its entirety by implanting a puppet regime or partitioning the country through separating the Donbas and perhaps the Black Sea coast. This can be visualized in terms of the original map of the invasion forces separated into northern and eastern-southern groupings. Some foreign observers expected quick victories with rapid movement of Russian forces to the west that would not require making a choice.

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Sovereignty, Power, and Territory in Putin’s War Putin’s Contradictory Discourse About Sovereignty and Territory (Classical and Imperialist) Crucial to how the war has been conducted by Russian forces is how it started with the collapse of Putin’s favored regime in Ukraine in 2014, as well as the annexation of Crimea that year, and the emerging civil war between Russian speakers in the Donbas. That war came about because the locally dominant political party, the Party of the Regions, and its Moscow-oriented leader and then-President of Ukraine lost its hold on the central government in Kyiv (Arel & Driscoll, 2023). In 2022, instead of simply “cleaning up the map” in the Donbas by consolidating the Russian hold over the two major provinces of Donetsk and Luhansk, Putin joined that irredentist goal to the broader ones of expanding into southern Ukraine (under the pretext of “the Russian world”) with an effort at overthrowing the Kyiv government (Fig. 3.1). Consistently, in Putin’s discourse about the “special military operation” in Ukraine have been the dual motifs of liberating Russian speakers from a Ukrainian nationalist regime (labeled as “Nazi” to associate it with anti-Soviet fighters in World War II) intent on their erasure and challenging Ukraine as a weapon pointed at Russia by a decadent West intent on reducing Russia’s status as a Great Power. The former theme figures prominently in the 5000-word treatise Putin published in July 2021 entitled “On the Historical Unity of Russians and Ukrainians.” But that also includes claims about a larger Slavic union of post-Soviet states. Not just the Donbas, but large parts of Ukraine are regarded as intrinsically parts of a historic Russia (Hill & Stent, 2022). Although brought together in this piece, none of the claims made by Putin is new (e.g. Toal, 2017). In fact, he has been making these sorts of claims for years, sometimes in the dressing of the new “Eurasianism” for its neighborhood, justified sometimes as the Russian equivalent to the US’s Monroe Doctrine, but more often than not in terms of the dangers posed to Russia by the new (post-2014) Western-oriented government in Kyiv. So, at one and the same time, Putin has made both classic nationalist territorial claims in regard of the Russian-speaking minority in Ukraine and the need to annex their areas to Russia to protect them from Ukrainian assimilation and much broader imperialist claims about absorbing all of Ukraine into Russia to complete the Russian “body politic” dismembered by the Bolsheviks when they created Ukraine as republic within the Soviet Union

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and which was continued by Krushchev when he took Crimea from Russia and attached it to the Ukrainian SSR in 1954. Putin has long claimed, then, that Russia’s sovereignty is under threat from an expansionist West that, in a return to Cold War Manichean logic, wishes to extend socio-political practices (open elections, judicial independence from executive power, etc.) that in his view do not fit with those long dominant in the Russian cultural realm (e.g. Trofimov, 2022). Ukraine is then slotted into the framing as the latest in a series of surrogates threatening Russia on behalf of an emboldened West. The geopolitical abstractions “Russia” and “the West” take on a central role in this approach. A surrounded and embattled Russia, personified by Putin, is then justified in resisting the incursion of the West by invading Ukraine, which was long part of the Russian world (including when both were in the Soviet Union); it is not really historically distinctive from Russia, for it has a large persecuted Russian-speaking population (particularly in Crimea and the eastern Donbas) awaiting liberation and is dominated by a political elite hostile to Russia and Russians. So, at one and the same time, Putin is claiming that Ukrainian territorial

Fig. 3.1 Divided forces, divided purposes

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sovereignty, including the integrity of its borders as recognized in international law, lacks authenticity because it is simply an appendage of Russia, yet that it must be expunged by conquest because its continuing practical existence threatens Russia’s domestic and Westphalian sovereignty. Thus, sovereignty figures centrally in the justification for the invasion of Ukraine made by Vladimir Putin, but does so contradictorily. This is so because Putin is mixing together two different sovereignties, the classic territorial and the imperialist, as he tries to portray the destruction of another country’s sovereignty in terms of the preservation of his. Of course, for their part, Ukrainian nationalists mobilize popular support by focusing on the loss of “territorial integrity” to Russian forces as violating Ukraine’s sovereignty. Such border insecurity has long been a focal point for nationalist mobilization (Agnew, 2007). On critical examination, therefore, it is Putin’s imperial reclamation of Ukraine that is really at work in generating the conflict, notwithstanding the rhetoric about the expansionist West, which of course does have some basis in the US policy, particularly prominent in the late 1990s and early 2000s, of presenting membership in NATO as a half-way house to joining the EU on the part of former Soviet satellites fearful of Russian revanchism. Popular memory across Central and Eastern Europe of Stalin’s brutality and repeated Soviet/Russian military interventions underpin this fear. In this light, many political strategies relating to improving Russia-Ukraine relations by neutralizing such fear could have been pursued by Putin, including ones involving the Russian-speaking minorities and mutual cooperation between governments. But this was never done because he, like most national-populists, has long been locked into a zero-sum territorial view of the world: either they control it or I, or my surrogates, must do so. There is no other art to the deal. When power is entirely about domination over territory, no other outcome is possible. Sovereignty Regimes and Modalities of Power Putin’s framing of sovereignty/territory needs putting in the wider context of thinking about sovereignty and its contingent rather than fixed relationship to territory (Agnew, 2018). In European political theory, the earliest and most widespread discussions about states, statehood, and their grounding in sovereignty date from the late sixteenth and early seventeenth centuries (Skinner, 2010, 27). Much debated, the meanings of

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sovereignty have long been contested and confusing. One of the clearest typologies of what is actually meant when the word is invoked comes relatively recently from Stephen Krasner (1999). He identifies two basic principles and one assumption of political practice associated with the term (Krasner, 2010, 96): (1) international legal sovereignty (juridical equality among states, membership in international organizations) based in mutual recognition among states; (2) Westphalian sovereignty based in the absence of submission to external rule as expressed in the formula from the end of the Thirty-Years War in 1648: cuius regio, eius religio (to whom is the region or territory his is the religion); (3) domestic sovereignty or the effective control over the state’s territory, including cross-border flows. Krasner says that these do not constitute an organic whole so much as contradict one another. Most of the world’s selfdeclared states today have international legal sovereignty but cannot readily resist the intervention of external powers/authorities or exercise much by way of effective domestic sovereignty. In practice, deviations from the rules of absolute state sovereignty are almost the norm. In Krasner’s memorable phrase, the typical rendition of state sovereignty is “organized hypocrisy.” The entire logic of much thinking about state sovereignty, therefore, is based in the timeless spaces of sovereign territorial statehood that once established are taken as permanent givens (Galli, 2019; Jackson, 2003). To the extent that there has been much debate until recently about state sovereignty, it was based on the idea of “the persistence vs. the disappearance of the territorial state as the principal form of political organization in the Westphalian system” (Gazit, 2018, 223). There has been little or no attention to the imperfect past and imperfect present of sovereignty in the world as it is rather than in the world of either legal fiat, or the “let’s pretend” empiricism of a world of “equal” states (except, e.g. AdlerNissen & Gammeltoft-Hansen, 2008; Howland & White, 2009). The very Westphalian system so ritually invoked to date the presumed onset of modern state sovereignty was never imagined at first as “a system of mutually recognized sovereign territorial states; it became the standard that European states subsequently maintained as they expanded globally [through empire]. The Westphalian model also imagined that the international system would maintain itself through a coordinated system on international law, treaties, and diplomatic exchanges” (Howland & White, 2009, 3).

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This is the “myth of 1648.” Its origins in fact lay in restricting the rule of the papacy and other overlapping authorities across Western Europe. It also provided the groundwork for the explosion of competitive colonialism inside and outside of Europe on the part of the newly minted states, even if some had historic cores of ethnic groups and monarchies that could use these to expand nearby and at a distance. European statehood was born with and into a world that was made more by colonialism and commercial expansion than by the delimitation of territorial borders with quiescent neighbors. Territorial exclusivity, for example, was based in the importation back home of mapping and partition strategies developed abroad (Branch, 2010). In turn, with the decline of the European colonial empires as a by-product of world wars and nationalist-democratic struggles, “a people could only become sovereign as a state form” (Howland & White, 2009, 10) even when “Populations were diverse and often divided, and territories had indistinct borders.” The long-standing contingency of sovereignty also has powerful roots in the hierarchical nature of the state system since the nineteenth century. Two aspects of this are worth attention. One is the way in which certain powerful states (and interest groups therein such as businesses) defined international law in terms of legal norms and practices that privileged private property rights worldwide irrespective of nominal jurisdiction where such rights might be located. The conversion of land for useful purpose through labor was the usual justification for imposing defined property rights in colonial territories where they had been collective or absent (Koskenniemi, 2017, 362). The domestic territory was just too limited to facilitate the accumulation of resources and capital that colonial expansion could provide. When property disputes arose, they would be settled inevitably at the behest of the more powerful party with the investments and lawyers to enforce their claims. Sovereignty and property have thus always operated together to limit the sovereignty of some and expand it for others (e.g. Fitzmaurice, 2014; Ince, 2014). Ignoring the pairing of these two concepts/practices has long been a way of maintaining the fiction of equality between states. With the globalization of global production and financial services, intensifying since the 1970s, if hardly absent before, global centers such as New York and London have become centers for the enforcement of global property rights worldwide. Corporations and trade associations exercise powers

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that are akin to those of states but often are even greater in geographical scope and influence (Garrett, 2008). Some actors are always more sovereign than others. Their identities and locations change over time. The other root lies in the military-political domination of some states relative to others. States are neither born equal nor can a dominant position relative to others be equally available to all (Agnew & Corbridge, 1995). This is particularly important in relation to domestic sovereignty, as defined by Krasner, and the capacity to resist external interference (as in so-called Westphalian sovereignty). The long trajectory of invasions and interventions by the so-called Great Powers, from Britain and France to the US and Russia, suggests how fictive it is to limit the exercise of sovereign powers to the borders of the colored blocs of space on the world political map. Sovereign powers can be projected over space through alliances and base networks that usually involve the extraterritorial jurisdiction of the distant power trumping the local one. Sovereignty thereby travels over space for some but not for others. Yet there are continuing powerful normative and administrative arguments for locking in some degree of sovereignty into territorial units with which people have familiarity (e.g. Galli, 2019; Koskenniemi, 2011; Rodrik, 2013). The recent populist “backlash against globalization,” although it seems in practice to be more about immigration and the challenge to cultural homogeneity that it poses, suggests that there is a substantial basis to what can be called “nation-statehood” (the combination of a social group with a national identity and a state apparatus), where it actually exists. States potentially do positive things for their populations that are not otherwise provided. In theory, they provide security from both domestic and foreign threats and dangers. The linkage between territory and sovereignty pervades everyday life. The world political map is naturalized into thinking about the world whatever the meaningfulness of the designations on the ground. The language of politics is likewise filled with terms such as the “body politic,” “national territory,” and “territorial integrity” that captures the presupposed essential unity between territory and sovereignty. They are opposite signs of the same coin. In distinguishing despotic from infrastructural power, Michael Mann (1984) identifies two different ways in which a state acquires and uses centralized power. These words refer to two different functions that states perform for populations and that jointly underpin their claim to sovereignty: respectively, the struggle among elites within and between states and the provision of public goods by states as a result of placating

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various social groups and pursuing and legitimizing despotic power. Before the eighteenth century, infrastructural power was relatively less important than it is today. This is because elites have been forced by political struggles to be more responsive to their populations through providing more public goods. But economic development has also mandated increased provision of roads, weights and measures, elementary education, and so on, that will always be absent or underprovided with reliance on private provision. This boosted the territorialization of sovereignty because demand was defined in terms of territorial populations and provision was oriented to satisfying that demand. The main theoretical conundrum in terms of the “where” or spatiality of sovereignty is the question of the relative balance between territory and networks in the operational scope of the sovereignty of states and the agents they license. The two dimensions of sovereignty define the degree of state autonomy and the extent to which it is territorial. From these, four extreme or ideal-type categories or what I term “sovereignty regimes” can be identified. These are relational in character. They refer to the character of sovereignty as manifested by differing combinations of effective central state authority, on the one hand, and territorialized provision of public goods in different places, on the other. They are not best thought of as characterizing particular states in all their aspects; no particular state fits exactly into any of the boxes in question. But they do provide a heuristic basis for identifying the relative complexity of sovereignty around the world today. This is a patchwork of more-andless sovereign spaces and flows, not a rigidly territorial order, with some states and organizations more sovereign (in terms of their effectiveness) than others. The simplified relational categories are seen as representing stronger and weaker central state authority and consolidated and open territoriality. The purpose of thinking relationally about sovereignty is to move away from trapping thinking in absolute as opposed to relative distinctions. From this viewpoint, there is no simple “either/or” to sovereignty when it is, on the one hand, either completely territorialized or, on the other, is not manifested territorially and therefore ceases to exist. This has been the trap into which much thinking about sovereignty has fallen. Of the four ideal types, I would identify, the first one, the classic, comes closest to the conventional story about sovereignty as completely territorial. Both despotic power and infrastructural power are largely territorialized and central state authority remains effective. Contemporary

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China perhaps best fits this case. But it is not alone. Even here, however, many transactions and movements violate the norm of absolute territorial sovereignty. Of course, historically, China, like Russia, Iran, and Turkey, to name the most prominent examples, was a territorial empire that has had to come to terms with a world of nominally territorial states on the European model. The second case, the imperialist, represents best the case of hierarchy in world politics but with networked as well as territorialized reach. It is the complete opposite of the classic case. Central state authority is seriously in question, often exercised by outsiders if in collusion with local elites, and infrastructural power is weak or reliant on external support. Much of the Middle East and sub-Saharan Africa falls under this regime. Border controls are at best nominal and when present unenforceable by the central governments of the states in question. Putin seemingly aspires to place Ukraine in this relation to Russia. The other two regimes are more complicated. The first, the integrative, is a regime where authority has migrated to both higher and lower tiers of government as a result of a sharing of sovereignty among states and infrastructural power takes both territorialized and networked forms. Various sorts of unions or confederations of states take this form, for example the US before the US Civil War. The fullest contemporary example would be the European Union from the perspective of its member states. In theory, the external border of the bloc rather the borders of individual member states constitutes the main membrane separating the bloc from the world. In practice, things do not always work out this way as member states and the bloc’s central apparatus wait on each other. The second of the two more complex sovereignty regimes is the globalist. This regime is closely associated today with the globalization of the world brought about since the 1960s under US auspices. In this construction, the world city system, particularly the cities at the top of it, such as New York and London, provides the geographical nodes for the agents who are central to this regime. They exercise sovereignty wherever states have ceded authority to external agents because of debt dependence or regulatory oversight. This regime has a potentially worldwide reach, but its effects are particularly strong in those parts of the world most integrated into the world economy and without the limits set on integration by, for example, managed exchange rates and capital controls, by states with greater effective central state authority (such as China). The historic basis of this regime in US hegemony means that at least until recently US governments were able to use this regime as an alternative to the

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imperialist one. But as authority has slowly seeped out of US governmental hands, other agencies including many private as well as public organizations have picked up the slack. In this context, border controls are necessarily slack and limited. Even sovereignty, therefore, hitherto perhaps the most territorialized of political concepts, can be rethought as exhibiting more complexity both in the past and today. Relatively few of the world’s borders, therefore, are truly ones between absolutely territorialized spaces. They largely reflect the differential workings of distinctive sovereignty regimes across historical time and global space. In no specific case can exactness of fit be expected between specific states and the classification of sovereignty regimes. Thus, the contemporary US exhibits classic sovereignty at home, particularly in relation to immigrants and refugees, while being the base for the globalist regime elsewhere. At the same time, while the European Union is an integrative regime internally, it exhibits a mix of features of the globalist and classic regimes in relation to the rest of the world: globalist in relation to the US and classic, for example, in relation to Russia. Some European states, such as France, also have an imperialist relationship to some former African colonies. Putin’s Russia has seemingly declared that it desires classic sovereignty at home (plus its claimed territories in Crimea and eastern and southern Ukraine) but wants an imperialist relationship with its Ukrainian neighbor. Yet it does not attend to the difficulty of doing both at the same time when it comes to the conduct of warfare. The classification of sovereignty regimes is a guide to understanding the variety of forms that sovereignty can take, not a simple set of categories that each state slots into neatly and completely. The identity of sovereignty regimes with specific countries or world regions as used above is as of the present day, historically different countries have moved through sovereignty regimes rather simply remained embedded entirely in one. For example, the US today is itself the product of an integrative regime that began with political independence in 1787 but only came to a close after the US Civil War in 1865. The imperialist regime was once much more pervasive and involved clear territorial accretion as opposed to dominance over networked transactions when the big European empires stretched across the continents. The globalist regime is only characteristic of periods when “free-trade imperialism” prevails under the auspices of a relatively open state providing public goods (such as Britain at one time and the US today) as well as the capacity to coerce others. The terms themselves, recall, are ideal types or

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models that cannot map exactly onto real-world cases. Given this caveat, however, a strong case can be made for a historical patterning to their co-appearance. Recently, the imperialist regime (particularly in its more territorial rather than interactional-networked manifestations) has been in net retreat in face of the globalist one even while the others prevail in different degrees in different parts of the contemporary world. How Contradictory Russian Sovereignty Claims Have Worked Out in the War The spatial disposition of Russian forces at the outset of the invasion (23 February 2022) revealed the competing objectives at hand and, with the limited number of troops and equipment available, the difficulty posed for the conquest and occupation of a country as large as Ukraine (e.g. Bull & Ollivant, 2022; Financial Times, 2023; Kagan & Clark, 2022). Much initial commentary focused on the four different fronts that would supposedly lead—given the popular idea that Russian forces would quickly overwhelm those of Ukraine—to conquest of the country and the overthrow of its government in Kyiv (Fig. 3.2). The problem then would be scaling up from the 120,000 or so troops to the 900,000 or so that would be needed for a full-fledged occupation. Yet, little or no attention seems to have been paid to this requirement by the Russian military or to the diminished possibilities on each front when the forces were so fragmented. Incredibly poor Russian military intelligence and a badly equipped and poorly led army quickly led to revision of initial optimism about the course of the invasion (Bump, 2022; Jones et al., 2022; Kaplan, 2023). Ukraine’s defensive capability, expanded rapidly with foreign suppliers, and the surprising emergence of its young President Zelensky as a charismatic leader, also played a significant role (e.g. Boot, 2022; Economist, 2022a; Hall, 2022; Judah, 2023; Onuch & Hale, 2022). Expecting extensive collaboration, particularly from Russian speakers (Kramer, 2022a), the divided forces only moved with relative ease on the southern front from Crimea into Kherson. Elsewhere, and beginning as early as March, Russian forces were trapped and then withdrawn, as with the first front near Kyiv, repelled, as around the second front in Kharkiv, or subject to a grinding artillery-trench warfare in the Donbas, the third front in the war (e.g. Parker & Karklis, 2022). Later in 2022 the Ukrainians were able to retake Kherson on the fourth

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front, the only major city captured by the Russians following the invasion. So, the division of forces was crucial to the failure of the invasion to accomplish any of its apparent political goals. In response, the Russian military undertook a campaign of missile and drone attacks on civilian targets building on the example of the massive destruction visited on the city of Mariupol (e.g. Brown & Umlauf, 2022) to undermine Ukrainian morale and suggest to a Russian domestic audience that all was not yet lost (O’Brien, 2022). That much of the destruction was visited on areas occupied by the Russian speakers, supposedly the subject of “rescue” by Putin’s Russia, serves only to reinforce the irony of an invasion subject to serious internal contradictions (e.g. Santora et al., 2023). Many Russian speakers seem to have become all the more Ukrainian in identity as a result (e.g. Economist, 2022b; Kramer, 2022b). The war devolved by late 2022 into a largely “frozen conflict” with Russian ground forces largely penned up in the Donbas and some parts of southern Ukraine. Neither Russian Westphalian nor its claimed imperialist sovereignty seems well served by this impasse. Whatever the final outcome of the war, Russian military conduct through its first year revealed a contradictory set of objectives based on confused understandings of competing conceptions of territorial sovereignty in the context of a geopolitical order in which complex globalist and integrative sovereignties have tended to sideline or limit the rigidly territorial imperialist and classical conceptions central to the Russian invasion. ∗ ∗ ∗

Vladimir Putin’s Territorial Trap As I have tried to show, the Russian invasion of Ukraine in 2022 rested on several crucial assumptions about Russia and the contemporary meaning of territorial sovereignty on the part of Putin that do not hold up to close scrutiny. Together they constitute what can be termed a practical “territorial trap.” The first is the fact that Russia’s economy is not the isolated imperialterritorial entity that the act of invasion presupposed. Its vulnerability to foreign sanctions and the lack of leverage offered by its dependency on oil and gas exports were discounted (e.g. Sonnenfeld, 2022). Russia is also a relatively poor country by world standards with much of its

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Fig. 3.2 Presumed axes of advance

wealth concentrated in the hands of relatively few billionaires and political operatives. It is also one of the world’s most unequal countries. With a Gini coefficient of 88.0 indicating a massive inequality in wealth in 2021 (surpassed marginally by Brazil at 89.2), Russian billionaires owned 37% of national GDP (the highest share worldwide) and the top 1% of the income distribution owned 58.6% of the wealth (the world’s highest concentration) (Credit Suisse, 2022). Following the Soviet collapse in the 1990s, both Russia and Ukraine saw a concentration of wealth and power in the hands of so-called oligarchs as the assets of the former statecontrolled economies were privatized in the hands of a privileged and politically connected few. The oligarchs then used these assets to invest abroad more than at home through offshore financial centers such as London, New York, and Cyprus. In exchange for resources, both countries import manufactured goods rather than making them locally (e.g. Ivanova & Seddon, 2022). This “business model” is transnational, not just national, and has been a major channel for Russian and Ukrainian integration into the wider world economy. Quite how this model could be rebuilt in a Russia under global sanctions seems unlikely indeed (Sonin, 2022; Sonnenfeld & Tian, 2023). Second, Russia is itself a historically imperial entity rather than a classic nation-state. This was visible in the ethnically diverse faces of many of

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the soldiers representing Russia at least in the earliest phases of the invasion and then at the time of the September 2022 mobilization of fresh troops (e.g. Couch, 2022). But the official Russian story is that Russia is an anti-colonial power and nothing like the European empires because its rule was “welcomed” by the other ethnicities (see, e.g. McGlynn, 2023). Tell that to the Chechens (e.g. Galeotti, 2022). In fact, there are as many non-Russians “at home” as Russian speakers abroad (in Ukraine, Latvia, and Kazakhstan, for example). Some of this is down to the long-term demographic decline of Russians as a proportion of the total population with declining birthrates and decreased expectation of life. Since the invasion began, a mass exodus of the young and better educated ethnic-Russians suggests that the decline is as much qualitative as quantitative (e.g. Charrel, 2022). An older and less educated population will not only provide fewer military recruits but also lower economic growth. But Russia has a settler-colonial history akin to that of other continental empires (such as the US) that the 1917 Revolution and the subsequent confusion between Russification and Sovietization never finally resolved (e.g. Silver, 1974). What sort of “federation,” as Russia is self-described, is run entirely from one man’s office? The morale and military command problems arising from this model have outweighed the force ratio that the Russians initially brought to bear in Ukraine even with the massive use of expendable convicts to replace the huge loss of life that Russian artillery/ trench warfare entailed from the outset (e.g. Cooper et al., 2023; Kovalev, 2022). Third, Putin’s view of power assumes that only domination can produce assent when, of course, he could have attempted to seduce or coopt Ukrainians (including his presumably “beloved” Russian speakers) rather than destroying their homes and occupations. Anything from encouraging beneficial investment to cultural collaboration rather than denying Ukraine had anything of its own to offer Russia could have done this. This reflects the either/or view of territorial control that lies behind both imperialist and nationalist views of sovereignty that Putin moves between. He also misjudged the strength of Ukrainian nationalism and the extent to which Russian speakers outside Russia have moved over the past thirty years away from the “besieged fortress” mentality of the Soviet Union/Russia to more horizontal-societal/networked understandings of power (Economist, 2022a; Ostrovsky, 2015). He believed his own propaganda about linguistic divisions in Ukraine generating a weakened sense of Ukrainian national identity that was anything but accurate.

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Fourth, for many residents of Ukraine, the Russian invasions of 2014 and 2022 have resurrected memories of the imperial past and the Soviet experience that have become diametrically opposed to Putin’s renditions of the “common history” he claims for Russia and Ukraine (Kolesnikov, 2022; Plokhy, 2022). Thus, the explosion of Ukrainian nationalism in recent years is down to Putin’s actions to deny Ukraine any sort of sovereignty (not just on its own but as part of the EU) as much as any essential pre-existing Ukrainian identity. The “civil war” among Russian speakers in the Donbas turned out to be anything other than lighting the tinder under the Russian-Ukrainian cleavage that Putin had convinced himself it would be (Arel & Driscoll, 2023; Harding, 2022). Finally, Putin seems to think of political life and political identities entirely in terms of states as static storage containers of people, resources, and sentiments. From this perspective, Ukraine simply has no meaning as a separate state or society because of its historic subordination to Russia. The current Ukrainian government is viewed as illegitimate because masquerading as autonomous of Russia it cannot be anything more than an anti-Russian front (Snyder, 2022). When it turned out to be very effective at mobilizing a sense of national identity that suggested much more than just a US or EU “front” at work, he was at a loss. This is the final spring in Putin’s territorial trap. There was no way given his understanding of territory and sovereignty that Ukraine could be brought into the fold except by invasion and subjugation. If he had been clearer about whether his priority was the irredentist cause in the east or regime change and wider conquest, he might have met with more and quicker success. In mixing up both, in the end he has probably failed at both.

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Hill, F., & Stent, A. (2022, September/October). The world Putin wants. Foreign Affairs. https://www.foreignaffairs.com/russian-federation/worldputin-wants-fiona-hill-angela-stent Howland, D., & White, L. (Eds.). (2009). The state of sovereignty: Territories, laws, and populations. Indiana University Press. Ince, O. U. (2014). Primitive accumulation, new enclosures, and global land grabs: A theoretical intervention. Rural Sociology, 79(1), 104–131. Ivanova, P., & Seddon, M. (2022, December 13). Russia’s wartime economy: learning to live without imports. Financial Times. https://www.ft.com/con tent/6c01e84b-5333-4024-aaf1-521cf1207eb4 Jackson, J. H. (2003). Sovereignty-modern: A new approach to an outdated concept. American Journal of International Law, 97 , 782–802. Jo, K.-H. (2021). The role and place of ‘military territoriality’ in the Clausewitzian conception of war. Territory, Politics, Governance, online first. https:/ /doi.org/10.1080/21622671.2021.2009016 Jones, S., Rathbone, J., & Sevastopulo, D. (2022, March 11). “A serious failure:” Scale of Russia’s military blunders becomes clear. Financial Times. https:// www.ft.com/content/90421972-2f1e-4871-a4c6-0a9e9257e9b0 Judah, T. (2023, January 19). Ukraine’s volunteers. New York Review of Books, 22–24. https://www.nybooks.com/articles/2023/01/19/ukrainesvolunteers-tim-judah/ Kagan, F. W., & Clark, M. (2022, April 29). How not to invade a nation. Foreign Affairs. https://www.foreignaffairs.com/articles/ukraine/2022-04-29/hownot-invade-nation Kaplan, F. (2023, February 9). Putin’s miscalculation. New York Review of Books. https://www.nybooks.com/articles/2023/02/09/putins-wars-fromchechnya-to-ukraine-galeotti/ Kolesnikov, A. (2022, May 26). Putin against history. How his war has erased Russia’s past—And endangered its future. Foreign Affairs. https://www.for eignaffairs.com/articles/ukraine/2022-05-26/putin-against-history Kolesnikov, A. (2023, February 1). How Russians learned to stop worrying and love the war. Foreign Affairs. https://www.foreignaffairs.com/ukraine/howrussians-learned-stop-worrying-and-love-war Koskenniemi, M. (2011). What use for sovereignty today? Asian Journal of International Law, 1, 61–70. Koskenniemi, M. (2017). Sovereignty, property, and empire: Early English contexts. Theoretical Inquiries in Law, 18, 355–389. Kovalev, A. (2022, May 20). For opposition to Putin’s war, look to the fringes of his empire. Foreign Policy. https://foreignpolicy.com/2022/05/20/russiaukraine-war-casualties-deaths-putin-ethnic-minorities-racism/

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Kramer, A. (2022a, May 7). Russia’s grave miscalculation: Ukrainians would collaborate. New York Times. https://www.nytimes.com/2022/05/07/ world/europe/russia-putin-ukraine-politicians.html Kramer, A. (2022b, November 13). Russia tried to absorb a Ukrainian city. It didn’t work. New York Times. https://www.nytimes.com/2022/11/13/ world/europe/russia-kherson-ukraine.html Krasner, S. D. (1999). Sovereignty: Organized hypocrisy. Princeton University Press. Krasner, S. D. (2010). The durability of organized hypocrisy. In H. Kalmo & Q. Skinner (Eds.), Sovereignty in fragments: The past, present and future of a contested concept (pp. 96–113). Cambridge University Press. Krugman, P. (2023, January 6). What Ukraine teaches us about power. New York Times. https://www.nytimes.com/2023/01/06/opinion/ukraine-russia-war. html Mann, M. (1984). The autonomous power of the state: Its origins, powers and results. European Journal of Sociology, 25, 185–213. McGlynn, J. (2023, February 8). Why Russia markets itself as an anti-colonial power to Africans. Foreign Policy. https://foreignpolicy.com/2023/02/08/ russia-ukraine-colonialism-diplomacy-africa/ O’Brien, P. P. (2022, October 12). Russia just showed why it’s floundering in Ukraine. The Atlantic. https://www.theatlantic.com/ideas/archive/2022/ 10/how-russia-and-ukraine-wage-war-differently/671705/ Onuch, O., & Hale, H. E. (2022). The Zelensky effect. Hurst. Ostrovsky, A. (2015). The Invention of Russia: From Gorbachev’s Freedom to Putin’s War. Viking. Parker, C., & Karklis, L. (2022, May 17). Why Russia is struggling in eastern Ukraine, in maps. Washington Post. https://www.washingtonpost. com/world/2022/05/17/eastern-ukraine-maps-russia-war/ Plokhy, S. (2022). The frontline: Essays on Ukraine’s past and present. Harvard Ukrainian Research Institute, Harvard University. Rodrik, D. (2013). Who needs the nation-state? Economic Geography, 89(1), 1–18. Santora, M., Holder, J., Hernandez, M., & Kramer, A. (2023, February 10). The war’s violent next stage. New York Times. https://www.nytimes.com/int eractive/2023/02/10/world/europe/russia-ukraine-offensives-maps.html Sarotte, M. E. (2021). Not one inch: America, Russia, and the making of postCold War stalemate. Yale University Press. Sassen, S. (2006). Territory, authority, rights: From medieval to global assemblages. Princeton University Press. Sharma, R. (2022, April 10). How Putin aged into a classic oil state autocrat. Financial Times. https://www.ft.com/content/ff617dd8-e713-48efbd07-efb5fb725d50

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Silver, B. (1974). Social mobilization and the Russification of Soviet nationalities. American Political Science Review, 68(1), 45–66. Simpson, E. (2012). War from the ground up: Twenty-first-century combat as politics. Hurst. Skinner, Q. (2010). The sovereign state: A genealogy. In H. Kalmo & Q. Skinner (Eds.), Sovereignty in fragments: The past, present and future of a contested concept (pp. 26–46). Cambridge University Press. Slaughter, A.-M. (2016, April 18). Connections, not armies, make countries powerful. Financial Times. https://www.ft.com/content/21973144-054411e6-9b51-0fb5e65703ce Smil, V. (2010). Prime movers of globalization: The history and impact of diesel engines and gas turbines. MIT Press. Snyder, T. (2022, April 28). The war in Ukraine is a colonial war. New https://www.newyorker.com/news/essay/the-war-in-ukraine-is-aYorker. colonial-war#:~:text=For%20centuries%2C%20the%20country%20has,the% 20key%20to%20its%20present.&text=When%20Vladimir%20Putin%20denies% 20the,the%20familiar%20language%20of%20empire. Sonin, K. (2022, November 15). Russia’s road to economic ruin. Foreign Affairs. https://www.foreignaffairs.com/russian-federation/russias-road-eco nomic-ruin Sonnenfeld, J. (2022, October 20). While Putin doubles down in Ukraine, his gas gambit is failing. Financial Times. https://www.ft.com/content/be3 31b8e-3a24-4941-b6d0-aa3041f789cf Sonnenfeld, J., & Tian, S. (2023, January 19). The world economy no longer needs Russia. Foreign Policy. https://foreignpolicy.com/2023/01/19/russiaukraine-economy-europe-energy/ Sonne, P., Nakashima, E., Harris, D., & Hudson, J. (2022, April 11). Hubris and isolation led Vladimir Putin to misjudge Ukraine. Washington Post. https://www.washingtonpost.com/national-security/2022/04/ 11/putin-misjudged-ukraine-hubris-isolation/ Stein, J. (2010). Pivotal decade: How the United States traded factories for finance in the seventies. Yale University Press. Tallis, B. (2016). Living in post-truth: Power/knowledge/responsibility. New Perspectives, 24(1), 7–18. Toal, G. (2017). The near abroad: Putin, the West, and the contest over Ukraine and the Caucasus. Oxford University Press. Trofimov, Y. (2022, June 24). How far do Putin’s imperial ambitions go? Wall Street Journal. https://www.wsj.com/articles/how-far-do-putins-imp erial-ambitions-go-11656085978

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Troianovski, A., & Hopkins, V. (2023, February 19). One year into war, Putin is crafting the Russia he craves. New York Times. https://www.nytimes.com/ 2023/02/19/world/europe/ukraine-war-russia-putin.html Von Clausewitz, C. (1968/1832). On war (A. Rapoport, Ed.). Penguin. Walt, R. M. (2022, January 19). Liberal illusions caused the Ukraine crisis. Foreign Policy. https://foreignpolicy.com/2022/01/19/ukraine-russia-natocrisis-liberal-illusions/ Woodley, D. (2015). Globalization and capitalist geopolitics: Sovereignty and state power in a multipolar world. Routledge.

CHAPTER 4

The Omnipresent Absent: The State at the Centre of the War-Sovereignty Dialectic Thibaud Mulier

Because the command of the Militia, without other Institution, maketh him that hath it Soveraign. And therefore whosoever is made Generall of an Army, he that hath the Soveraign Power is alwayes Generalissimo. Thomas Hobbes, Leviathan, XVIII, 92.

For the jurist, the war-sovereignty dialectic contains an omnipresent absentee: the state. Indeed, even without any mention of the state, it is apparent that the dyad “war-sovereignty” actually entails the triad “war-state-sovereignty”. While “state thinking”1 cuts across all fields of the social sciences (Bourdieu, 2012), some disciplines relativise the state-centric approach to war and, more broadly, to international relations (Battistella, 2015, 25). Indeed, to fail to do so would amount to denying the contributions 1 Except when indicated otherwise, translations from texts in languages other than English are our own.

T. Mulier (B) Centre de Théorie et Analyse du Droit, Paris Nanterre University, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_4

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made to these fields by anthropology and social history. War, as a “bloody and armed struggle between organised groups” (Bouthoul, 1991, 35), is a collective human activity regulated by social and legal norms, whereas the state is a historical product that has evolved and is likely to disappear. As a social fact, war will therefore outlive the state. However, the state continues to be the cradle of power in general, and of sovereignty in particular, inasmuch as it is necessary for the use of physical violence (Dardot & Laval, 2020, 26–29). For legal science and culture, the state is even the “initial or (and) ultimate referent” and the “paradigmatic model of the organisation and exercise of power” (Poirat, 2003, 642). We can thus observe an almost essentialised relationship between war, state, and sovereignty. The Relationship Between the State and Sovereignty In public law, the relationship between the state and sovereignty almost takes the form of a truism. Since the modern (and juridical) formalisation of the concept of sovereignty by Jean Bodin (writing in 1576), jurists have conceived of sovereignty as “a power that has the characteristic, on the one hand, of being unique, indivisible, and superior to any other power within its circle of jurisdiction, and, on the other hand, of being in its external order (its relation to others) incapable of being dominated in law by another power, that is, by another state or states” (Beaud, 2009, 40). In other words, sovereignty relates to the “capacity to enforce certain rules and the power to make decisions in the final instance” (Thomson, 1995, 78)—a capacity that constitutes the criterion of the state. This state-centric reading of sovereignty was not intuitive, however. Bodin (2013) attributes sovereignty to the republic, but he is more concerned with the legislative sovereignty of the prince. Similarly, Hobbes (1996) refers to the sovereignty of the prince or the assembly, rather than of the state as a political unit. In the thought of the political philosophers of the sixteenth and seventeenth centuries, it is therefore possible to conceive of the existence of several holders of sovereignty. The history of the revolutionary period serves as a reminder of the extent to which the holder of sovereignty can change, without sovereignty necessarily being attributed to the state. However, the theory of the state has gradually amalgamated the state with the sovereign. Emer de Vattel (writing in 1758), who considered that there is a “sovereignty attributed to this moral being, this legal person that we nowadays call the state”, argued that “the attribution

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of sovereign power to the state – or its imputation to this kind of legal person – will be the result of the work of the doctrine of public international law” (Beaud, 2022, 121). This approach was followed by German doctrine, forming a lasting assimilation of sovereignty and state (Jellinek, 2005), and by French doctrine in the Third Republic, which led to an assimilation of state and sovereign nation (Carré de Malberg, 2003). This remarkable work of European doctrine, which was concerned with lending legitimacy to sovereign power (Troper, 1994, II-I, 13), sometimes with ideological overtones (Schmitt, 1988), ended up providing “a solid legal foundation” for sovereignty, in order to “fuse the uncertainties of politics with the certainties of law” (Bigot, 2021, 12). Sovereignty was then seen as “the characteristic power of the state” (Carré de Malberg, 2003, 13). Sovereignty’s encounter with the law makes it legal, inasmuch as sovereignty formalises power in law. Sovereignty thus provides the state with a legal definition, to the extent that some positivists closely associate state and law, conceiving of the former as “the personification of the legal order” (Kelsen, 1990, 33). Subsequently, although constitutionalism and modern legal theory have criticised the doctrine of sovereignty (Troper, 1994, II-I, 13), the consubstantiality between state and sovereignty has remained firmly anchored in legal thought (Beaud, 1994, 9–25), where they are viewed as two equivalent concepts (Austin, 1995). The Relationship Between the State and War The relationship between the state and war can be illuminated by the intersection of social history, anthropology, and public law. Firstly, the anthropologist Pierre Clastres observes that the state has a “deep connection” with war (Clastres, 1980, 206). According to Clastres, it was Hobbes who identified this connection: war reveals both the idea of preserving the integrity of the political community and that of its unity as such. The state therefore does not annihilate war; on the contrary, it maintains it. In this regard, Charles Tilly (1992) shows that the institutionalisation of the state is not correlated with a reduction in armed conflicts, and conversely that the use of physical violence has been the main vector for shaping and strengthening the modern state through the elimination or neutralisation of local rivals. The state therefore has both a negative and a positive relationship with war. On the one hand, even though the law has generally prohibited war, in accordance with an essential principle of international law prohibiting the use of armed force, the existence of states has not minimised the prospect of war. They

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maintain an apparatus of defence and build alliances in order to preserve their existence. Indeed, since the application of a rule prohibiting war is a cultural manifestation, it depends on the developments encountered by “the system within which it is born” (de Béchillon, 1997, 131). In this respect, the aggression inflicted on Ukraine by the Russian Federation since 24 February 2022 reminds us that nothing is immutable. On the other hand, the potentiality of war justifies the role of the state and its continuity as such. Consequently, war plays a role in the perpetuation of the state: “[the state] needs [war] to guarantee its uniqueness in relation to the Other” (Mulier, 2021, 176). Secondly, as wars—in the form of privately conducted banditry—disappeared from intra-societal relations (Hauriou, 1916, 442–444), leading to the success of the state in claiming a monopoly over the legitimate use of physical force (Weber, 1995), war became a “public thing” and mastery of military instruments attained a new degree of specialisation, making it necessary to maintain standing armies (Strayer, 1979, 117). Thus, public law, which took over from a theological-moral framework (Aquinas, 2006, VI, 10), worked to restrict war to the inter-state level. This shift led Jean-Jacques Rousseau to state that war was no longer a “relationship between man and man, but between state and state” (Rousseau, 2011, I, 4). The Jus gentium (The Law of Nations ) was the starting point for a vast undertaking to regulate, limit, and even prohibit war, even though it continued to be a manifestation of state sovereignty. Indeed, the limitation of violence is far from being inherent to war (Baechler, 2017). War therefore gave rise to law that could function as mechanisms, procedures, and measures capable of framing and managing it. However, since the state is the sole producer and subject of law as a sovereign entity, it alone can produce jus ad bellum (law pertaining to the right to wage war) and jus in bello (the law of war, law governing conduct in war). The Relationship Between State, Sovereignty, and War From the perspective of jurists, it therefore seems self-evident that there is a triadic relationship at work: that of war-state-sovereignty. To a certain extent, the state lies at the intersection between war and sovereignty. Insofar as the sovereign state succeeded in prohibiting the use of means of coercion by the public and by any competing institution, it changed the established legal order. Regardless of its form, war has come to be the sole responsibility of the state.

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While public international law does not deny the existence of nonstate combatants and provides for peacekeeping operations within a UN or regional framework, it more or less establishes a monopoly in favour of the state through Articles 2 and 51 of the UN Charter, which make the UN Security Council dependent on state agents for the implementation of its resolutions. It also enshrines states’ natural right to self-defence. The Treaty on European Union (in consolidated version, 2012) concords with that position when it states that the competence to initiate and wage war—henceforth viewed through the concept of national security—lies with Member States. Article 4 of that treaty states that the European Union “shall respect [the] essential State functions [of Member States] […]. In particular, national security remains the sole responsibility of each Member State”. Finally, state constitutions also place war in the hands of the sovereign state, either explicitly, as manifested in Articles 22, 75 §27, and 126 of the 1994 Argentine Constitution, or implicitly, as suggested by the Preamble to the 1946 French Constitution or those of the 1787 US and 1949 German Constitutions. Persistence and Relativisation Within this framework, the state remains the paradigmatic form of organisation for initiating and conducting warfare because of its sovereign character. However, this remarkable stability has itself been affected by events and developments in the law. The sphere of regalian activities has “become fragmented and no longer constitutes the prerogative of the state” (Chevallier, 2008, 54). Of course, its “guarantor function” remains, particularly with regard to matters of security, but “the context and modalities of the exercise [of the state]” lead it to act at different levels and to have recourse to multiple actors—some of them private (Chevallier, 2008, 56–59). For example, in France, the end of conscription, synonymous with the loss of military manpower, and cuts in defense budgets have led the authorities to emphasize the benefits of outsourcing for services, training, support, equipment and real estate (Danet, 2002). Although French law generally prohibits the use of mercenaries (Law No. 2003-340, 14 April 2003), it does provide an exception for the protection of ships (Law No. 2014-742, 1 July 2014), while other states, such as the UK, the US, and Russia, authorise—with varying degrees of formality—private military companies to be deployed in theatres of military operations. However, this does not amount to a contradiction with state sovereignty, but only its relativisation. Sovereignty allows the state

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to maintain a monopoly of the enactment of positive law (Beaud, 1994), thus remaining the “master of all that is public” (Freund, 2004, 293). The state can therefore produce law (the “container”) that preserves war’s position in the public arena, even when an increasing proportion of its organisation and conduct (the “content”) is private. A similar relativisation can be seen in the case of Russian aggression in Ukraine. This situation has contributed to a strengthening of the ties of interdependence between several states within NATO, and the forthcoming accession of Sweden and Finland as Member States, as well as a reinforcement of relations within the EU, as evidenced by Denmark’s withdrawal of its “opt out” from European defence policy. These are all signs that states are reassessing their understanding of their own sovereignty as an institutional fact (Walker, 2003, 3–32), even in relation to war. Consequently, the consubstantial link between war, state, and sovereignty is by no means immutable. It can be broken apart, even if, for the moment, the essential element of this link is safe. The situation can be summarised by the following two propositions, which are examined in greater detail in the two parts of the present chapter: the state is formally sovereign and persists in being the only instance competent to initiate and wage war (Part I); nonetheless, the position of the state at the intersection of war and sovereignty is not immutable and can be relativised (Part II).

The Persistence of the State in the War-Sovereignty Dialectic At first glance, it seems that the role of the state has been relativised by the “gnawing away” of whole swathes of sovereignty by the EU (Beaud, 2022, 118). However, while a Member State becomes a state within a union, it is also true to say that the union is integrated into the Member States (Nabli, 2019). The latter may resist integration, especially in the military field. Several instances of French and EU jurisprudence provide examples of this (as discussed in section A below). Behind this resistance lies the persistence of an understanding of the state as central to the relationship between war and sovereignty (section B).

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Observation of the Resistance of the State Many national constitutions do not make explicit a state monopoly over matters of war. This is probably because the state’s monopoly of the legitimate use of physical force has become such a “commonplace” in state theory (Anters, 2014, 29) that it has become redundant to spell it out. If necessary, this monopoly can be deduced from the powers held by the authorised bodies, at least when these are interpreted by the relevant judicial authority. For example, the French Constitutional Council, called upon to respond to two “questions prioritaires de constitutionnalité” (“priority ruling on constitutionality”, QPC), produced two decisions (No. 2014-432 QPC, 28 Nov. 2014; No. 2014-450 QPC, 27 Feb. 2015) enshrining a “principle of the necessary free disposal of armed force” derived from the interpretation of Articles 5, 15, 20, and 21 of the Constitution. According to this principle, which was unprecedented in French constitutional history (Foch, 1903, 8), certain rights and freedoms accorded to citizens may be limited when applied to military personnel. The case at hand concerned a serving soldier’s exercise of his electoral rights and the disciplinary sanctions that could affect his status. For our present purposes, this principle effectively entails that the authorised bodies—“the Government, under the authority of the President of the Republic”—are able to use force at any time and under any circumstances, for example to safeguard the integrity of the state or national independence within the scope of Article 5 of the French Constitution. A similar principle was addressed once again when a Slovenian court referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling after a non-commissioned officer raised the issue of working time for guarding military installations. The Slovenian non-commissioned officer wanted to be paid for overtime worked during his guard duty. However, there are several different phases of guard duty, namely: active guard duty, on-call duty, and off-duty time. During on-call duty, the soldier does not carry out actual guard duty, but they must be available at all times and in all places. The application of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time for the armed forces was therefore at issue. Some Member States, including France, had refused to implement the directive on the grounds that they did not consider it applicable to military personnel. Primary law does not confer competence on the EU in this area (Legras, 2021). In the case of B. K. v Slovenia, the

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Grand Chamber of the CJEU concluded that the directive in question was nevertheless applicable to military personnel. Although the EU must respect the essential functions of the state, the Member State’s retention of competence in matters of national security does not exempt it from applying the directive to military personnel, except where its application would be contrary to the proper performance of those essential functions. For this reason, many exceptions exist in order to reconcile the health and safety of military personnel with the need for the availability of the armed forces. Thus, not all of the military sector is exempt from the directive, but some of its activities may be, including operational activities where a system of rotation of military personnel would make the directive’s application impossible (CJEU, Case C-742/19, 15 Jul. 2021, §40, §44, §46, §56, and §88). This judgement from the CJEU is in line with its previous case law, which more or less reiterated the state monopoly in matters of the organisation and deployment of armed forces. For example, in Dory v Germany, the Court held that only states may take measures to ensure their external security (CJEC, Case C-186/01, 11 Mar. 2003, §35–36). In the cases Commission v Spain (CJEC, Case C-132/04, 12 Jan. 2006, §24) and Sindicatul Familia Constanta v Romania (CJEU, Case C-147/ 17, 20 Nov. 2018, §55), it recalled that Member States have an absolute duty to “guarantee effective protection of the community at large”. In Shepherd v Germany, it asserted that only states have a “legitimate right to maintain an armed force” (CJEU, Case C-472/13, 26 Feb. 2015, §52). Finally, the French Council of State has confirmed the continued role of the state in this matter (CE ass., 17 Dec. 2021, M. Q., req. 437 125). In this case, a non-commissioned officer of a departmental gendarmerie had asked the Minister of the Interior to take the necessary measures to implement Article 6 of the directive in question. The non-commissioned officer considered that the regulations in place did not comply with the objectives of that article. The Minister explicitly refused his request. The applicant then challenged the Minister’s refusal to act by means of an action for ultra vires (action beyond the legal competence of the administrative authority that issued it), considering that the regulatory authority had disregarded the constitutional requirement to transpose directives guaranteed by Article 88-1 of the Constitution (§6). Having recalled the case law established by its own judgements in the cases of Société Arcelor and French Data Network, which reconciled French constitutional principles with EU law (CE ass., 8 Feb. 2007, req. 287 110; CE ass., 21

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Apr. 2021, req. 393 099), the administrative judge applied the aforementioned constitutional (§12–13) and European (§14–15) case law, and concluded that EU law applied to the case in question, that of departmental gendarmes. It then analysed whether the national provisions at issue complied with EU law. Informed by the case law of the CJEU, the Council of State found that the provisions governing working time in the departmental gendarmerie complied with the objectives of the directive. In the framework of its litigation function, the Council of State thus reasserted the “constitutional requirement” for free disposal of the armed forces, which had previously been used only in an advisory opinion on the law on military spending for 2015–2019 (CE, opinion no. 390047, 13 May 2015, §11). The above examples from these three jurisdictions (the French Constitutional Council, the CJEU, and the French Council of State) show that the central role of the state in military matters continues to exist. These instances of resistance to a potential reduction in that role reveal the persistence of the state in the war-sovereignty dialectic. Justification for the Persistence of the State The fact that the state persists in the war-sovereignty dialectic may seem obvious. Yet the case law created by the CJEU has been the object of severe criticism, particularly by a former Secretary General of the Constitutional Council (Schoettl, 2021) and a former Prime Minister of France (Philippe, 2021), both of whom are Councillors of State (Conseillers d’État, that is, high-level officials in the Council of State). It is true that European integration diminishes the sovereignty of Member States, and ultimately their ability to make decisions without limitation. Member States adopt budgets constrained by rules of budgetary discipline that affect their own means of defence. Moreover, EU law, because of its market logic, makes the boundary between the public and the private more porous, bringing with it the risk of aligning public sector working conditions with those of the private sector (TouzeilDivina, 2010), or even of entirely privatising state functions (CJEU, Case C-262/20, 24 Feb. 2022, VB v Bulgaria). The communitarisation of the national laws of Member States thus reduces the state’s control over public affairs (Freund, 2004, 293). Under the effect of the previously mentioned Directive 2003/88/EC, the individualisation of

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working time, its capping, and the distinction it makes between operational activities (operations, training, special activities) and daily activities contribute to relativising the uniqueness and specificity of the status of the military. It is therefore clear that European integration has led to the loss of the absolute character of the state’s regalian attributes “which were supposed to constitute the irreducible core and ultimate purpose of its institution” (Chevallier, 2008, 54). At the same time, public international law and EU law continue to place the state at the heart of the organisation of armed forces and the decision-making process regarding their use (Mulier, 2020, I-I, 2). In this context, it is necessary to qualify the critical claims previously mentioned. Indeed, an analysis of the case law mentioned above allows us to affirm the decisive role of the state in deciding on and waging war by virtue of its sovereign status. Three lines of argumentation can help to support this point. Firstly, in the two QPC decisions mentioned above, the Constitutional Council recalled two essential points. On the one hand, the French Constitution stands at the top of the legal order of the state. National defence, which includes the use and conduct of war, is understood to be a matter of sovereignty. Consequently, it ultimately falls to the constitutional judge alone, whose decisions are binding on all public authorities (French Constitution, Art. 62), to act as the guarantor of the availability and effectiveness of the armed forces. It is therefore up to the judge to determine the extent to which the legislator can standardise or limit the status of military personnel without undermining the effectiveness of this principle. In other words, it is up to the organs of the state, which are responsible for the conduct of the state (Kelsen, 1997, 245), to provide themselves with sufficient means to wage war. On the other hand, the Constitutional Council has given substance to the principle of free disposal, which is by no means trivial. The armed force must be “à disposition de” (“available”), not “à la disposition de…” (“at the disposal of…”) a given body (Le Corre, 2021)—which recalls the intention of Article 12 of the Declaration of the Rights of Man and of the Citizen, established by France’s National Constituent Assembly in 1789. It is a legal means for ensuring the availability and effectiveness of armed force at the disposal of the civil authority (Baude, 2016, 86–88) and thus for safeguarding territorial integrity and national independence, which are components of the fundamental interests of the nation (French Penal Code, Art. 410-1). The second line of argumentation relates to the assertion by the CJEU that the state alone is competent to initiate and conduct warfare. This is

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why the state must have armed force at its disposal at all times and in all places. The principle of the free disposal of armed force seems to be so well established in people’s minds that it seems self-evident (CJEU, case C-742/19, 15 Jul. 2021, §84). On the one hand, this principle is internalised positively, because it underlies the exclusions pertaining to activities inherent to the military functions provided for by the contested Directive 2003/88/EC (§88). On the other hand, this same principle is internalised negatively, because activities that are not exclusively military (unlike a function such as guard duty) can be excluded on a case-by-case basis if the application of the directive would jeopardise the availability of the armed forces (§72). In this respect, the words of Advocate General Henrik Saugmandsgaard are particularly revealing. In his view, the principle of availability does not seem to refer to the constitutional identity of the state in question, that is, to the “hard core” of national constitutional rules, which define the very identity of the constitutional order in question (Saugmandsgaard, 2021, §96, note 114). According to this view, the principle of availability of armed force does not seem to distinguish one Member State from another. On the contrary, it unites them. The status of a sovereign state presupposes this principle, which is then applied in each of the constitutional orders, as the two QPC decisions of the Constitutional Council attest. However, French doctrine is not unanimous on this point. Some believe that the CJEU has given precedence to EU law over national security requirements or the essential functions of the state (Mainguy, 2021, §3). In this context, the principle of the free disposal of armed force is therefore diminished by EU case law, and ultimately, the persistence of the role of the state in the war-sovereignty dialectic is thereby called into question. Such a position is hardly convincing. The CJEU has not considered the status of military personnel as a whole, as the European Court of Human Rights had done previously (ECHR, 2 Oct. 2014, Matelly v France, req. 10 609/10). For several years, the CJEU has considered any professional activity in terms of the tasks involved, on the grounds of the importance of social harmonisation (Robin-Olivier, 2022). In this case, it is precisely because the Court seems to have internalised the principle of the free disposal of armed force that its decision appears measured. At no point has the EU judge recognised a “general and absolute application” of the directive to military personnel (Videlin, 2021, 27). The Court has even confirmed that it is up to Member States to organise their armed forces themselves—on the basis of states’ autonomy in “the organisation

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of the working time of military personnel” and “the essential functions of the state” (CJEU, Case C-742/19, 15 Jul. 2021, §43), and on the basis of respect for the sovereignty of states (Robin-Olivier, 2022). Furthermore, although certain activities are subject to the directive because the harmonisation of working time is a matter of EU jurisdiction, including for personnel in the armed forces, derogations are possible and can be applied on a case-by-case basis (§39–40). There does not seem to be any “civilianisation” of military status under way. Unlike others (Mainguy, 2021, §6), the Court has never argued that military personnel should be viewed as employees or workers like any others. Moreover, it also avoided making this claim in relation to certain civilian workers—in this case, police officers—in the case Syndicat des cadres de la sécurité intérieure v France (CJEU, Case C-254/18, 11 Apr. 2019). The fact that military personnel have such a unique function does not prevent them from also being considered as workers, with the proviso that not all workers are the same. In short, “there is not ONE military job, but multiple functions for military personnel” (Videlin, 2021, 27). Admittedly, the CJEU has accepted that there are oversights in the directive as a result of its wording (CJEU, Case C-742/19, 15 Jul. 2021, §69–70). However, these do not call into question the central role of the state in the organisation of its armed forces. When the jurist David Mainguy points to a “competitive, economic type of reasoning, expressed in terms of the substitutability of functions” (Mainguy, 2021, §7), his criticism is more concerned with the fact that both Member States and the EU allow recourse to outsourcing in the field of defence or show themselves to be in favour of a greater porosity between the public and private sectors. This choice is indeed open to debate—after all, France was one of the first states to recruit personnel by contract to “defend its sovereignty” (Videlin, 2021, 28). But the CJEU seems to have taken into consideration the specificity of the status of military personnel, while fulfilling its duty to apply secondary EU law—even if it has done so in a “cold” and “bookkeeping” manner (Mainguy, 2021, §10). The legal order of the EU is not equipped—either institutionally or materially—to guarantee the territorial integrity of the EU and its independence (Mulier, 2020, I-I, 2–2). It is excessive to accuse the CJEU of being so cynical as to act to eliminate Member States’ autonomy in the organisation of their armed forces. Such a move would, moreover, be contrary to what seems to be an invariant of all political units: the primacy of assuring one’s own self-preservation (Mulier, 2021, 171–178).

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The third and final line of argumentation concerns the role of the French Council of State as a “jurisdictional shield” (Videlin, 2022, 1). It is true that, in the case mentioned above, the regulations in force in France were not considered to be contrary to the objectives of the directive with regard to on-call duty, rest periods, and the maximum working time of departmental gendarmes. The Council of State, as the highest administrative court, did not have to rule on the question of whether the directive undermined the effective safeguards for the constitutional requirement of the free use of armed force. Nevertheless, the directive in question does not appear to contravene such a principle. The numerous exceptions and limitations reiterated by the CJEU bear witness to this, but, above all, the Council of State drew attention to two particularly salient points. On the one hand, the Council of State did not use the same terms as the Constitutional Council, referring to a principle of “necessary free disposal of armed force”. It thus followed the conclusions of the public rapporteur (Le Corre, 2021) in preferring to use the term “constitutional requirement” and, at the same time, establishing the legal value of this principle—something that the Constitutional Council had refrained from doing (Mulier, 2015, 6–7). The term “necessary” is thus absent from the Council of State’s decision, as if the administrative judge were suggesting that the constitutional value of the free disposal of armed force made this term superfluous: according to this view, its necessity is self-evident and no longer needs to be repeated. On the other hand, the Council of State considered that there was no provision or principle in EU law equivalent to the free disposal of armed force. It remains an open question whether the rejection of a rule enshrined in national law on the grounds that it conflicts with EU law would undermine the effective safeguards for the constitutional requirement of the free use of armed force. The reasoning of the Council of State in this case seems debatable. Indeed, in the case of an applicant who had been deprived of his liberty because of his desertion, the CJEU had maintained that this measure had been necessary in order “for the State concerned to exercise its legitimate right to maintain an armed force” (CJEU, Case C-472/13, 26 Feb. 2015, §52). There therefore appears to be an equivalence in EU law. In its decision, the Council of State presumably sought to assert the constitutional scope of the free disposal of armed force in order to ensure that military organisation remains a “sovereign choice,” to use the expression of the Director of Legal Affairs

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of the Ministry of the Armed Forces (Legras, 2021). It is precisely because “the Constitution guarantees the necessary freedom of disposal of armed force” (CE ass., 17 Dec. 2021, M. Q., req. 437 125, §13) that the administrative judge considered that he must ensure that national law is compatible with the objectives of the directive in question, and, if necessary, that EU law is applied in accordance with this constitutional requirement. The Council of State is thus in a position, should a future dispute invite it to do so, to define a ring-fenced area of sovereignty that would reinforce the role of the state in the war-sovereignty dialectic. In the light of these judgements, the persistence of the role of the state is hardly surprising. This is especially the case in a country such as France, which, in military matters, follows the “Valmeysian” paradigm (in reference to the Battle of Valmy), according to which the regalian public service of national defence is the immutable responsibility of the state (Farde, 2020). This should not, however, put an end to reflection on the subject. In the current state of the law, the dispossession of the state’s competence to initiate and wage war is a purely theoretical possibility. However, there is nothing to prevent us from taking seriously the relativisation of the state mentioned in the introduction above.

The Relativisation of the State in the War-Sovereignty Dialectic War is a “universal” social fact (Clastres, 1980, 174–175). Of course, the diversity of political societies explains why war manifests such great variations in time and space (Baechler, 2019, 14). The state, on the other hand, is “by no means a power imposed on society from without […]. Rather, it is a product of society at a particular stage of its development” (Engels, 1940, 193–194). Whereas war is a constant, the state is contingent. Yet we can observe an “intimate intertwining” of the state with war (Gros, 2023, 83), as if war could only be the prerogative of the state because of the latter’s sovereign status. Indeed, it seems that, because war concerns the common good, it has become a public thing (Behrendt & Bouhon, 2009, 15) that is the sole responsibility of the state. If the state renounces its “sovereign right” (Berns, 2000) to wage war, this calls into question its very status as sovereign (as discussed in section A below). According to this hypothesis, the war-sovereignty dialectic could become separated from the state (section B).

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Renouncing War or Calling Sovereignty into Question The problem at hand is as old as the modern state itself (Kant, 2011, §53–54): if the state gives up its power in relation to war, it seems almost instinctive to come to the conclusion that it thereby loses its sovereignty. Let us examine this line of reasoning. The state possesses “competence over its own competence” (Jellinek, 2005). It is an “absolute power, at most self-limited by the regulations it produces to rationalise its own functioning” (Rials, 1987, 200), and especially when it produces international law (Kelsen, 1999, 330). Surely, such a framework allows us to envisage a scenario in which the state renounces its competence in relation to war? All things considered, the state differs from other political units not so much in its ability to perform functions related to war, as in its specialisation in waging war. Nevertheless, the state would have to be a consenting party at the moment of the co-production of the norm that would dispossess it of that competence. Indeed, the state creates not only the positive law of its own legal order, but also that of non-state orders. Its sovereignty is, according to the jurist Herbert Krüger, a “general power with a blank cheque” that acts in accordance with the public good (Beaud, 1994, 146). In other words, it is omni-competent, which makes it impossible to limit the scope of state action (Beaud, 1994, 144). It is therefore conceivable that the state could renounce a social activity, even that of war, in the same way that it was able to take on that competence when it was instituted. A form of symmetry can be envisaged here, whereby the omni-competence of the state has two dimensions: a positive one (extension of its field of action) and a negative one (reduction of its field of action). To reinforce this point, it is useful to make a small digression into the activity of “minting money,” since this highlights the possibility of limiting the power of the state without compromising its sovereignty (Beaud, 1994, 215). Since antiquity, currency has been a means of establishing the power of its holder, as shown by Herodotus’ writings on the first gold and silver coins, which are attributed to King Croesus in the kingdom of Lydia (Herodotus, 2018, I.94). It was a tool for the development of trade, but also a means to facilitate the collection of taxes, to the extent that currency gradually acquired a new status. It became “the exclusive privilege of the sovereign power” (Le Rider, 2001, 81). In parallel with the institutionalisation of the modern state, the benefits conferred by currency led to its inclusion as a central component

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of sovereignty (Libchaber, 1992, 60). The Permanent Court of International Justice (attached to the League of Nations, and the precursor to the International Court of Justice) made the same observation in the early twentieth century when it referred to “a generally accepted principle that a State is entitled to regulate its own currency” (PCIJ, 12 Jul. 1929, France v Kingdom of the Serbs, Croats and Slovenes, Series A, No. 20/21, §96). In this respect, it should be recalled that the sociogenesis of the state is characterised by the law of monopoly—both military and fiscal—through which currency came to serve as a tool for rationalising bureaucratic action, in order to raise taxes and thus to equip and pay the armed forces (Elias, 2007, I). Of course, the question of whether currency is an exclusive creation of the state and its law has been a matter of debate (Knapp, 2013; Nussbaum, 1950), but monetary sovereignty does not necessarily entail that currency is reducible to the state (Bismuth, 2014, 639). Indeed, the state does not have a monopoly on its creation (Libchaber, 1992, 57). It is necessary here to differentiate between the object—currency—and what one decides to do with it—that is, monetary sovereignty. The example of crypto-currencies is useful here: most of them are not created by a state, but the state regulates them, for example, by prohibiting people from paying their taxes with them. In other words, the loss of state control over currency does not mean the loss of its (monetary) sovereignty, that is, the fact of minting money, fixing its price, or deciding on its status as a means of exchange. If we transpose this reasoning to the domain of war, it is then necessary to distinguish the activity—war—from what one decides to do with it—military sovereignty, that is providing for the maintenance of armed forces, their organisation, and their availability, and exercising the choice to wage war or to make peace. At the time of the signing of the UN Charter, the main state parties accepted this distinction, although it was not ultimately implemented, through proposals to share personnel in order to form an army under the authority of a joint headquarters and a Security Council empowered to authorise the use of force (UN Charter, Chapter VII, Articles 42–47). A similar pattern can be observed at the moment when some EU Member States joined the single currency, the Euro, under the authority of the European Central Bank. The case of East Timor provides another useful example, although this concerns the international administration of a territory, rather than a model of regional integration: when Indonesian troops withdrew from East Timor in the autumn of 1999, the legitimate representatives of East Timor needed the

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United Nations to temporarily take over the administration of the territory, as they did not have sufficient material resources to ensure their power of domination over the territory. This was a period of “suspended sovereignty” for East Timor (Yannis, 2002). While there are limits to this parallel, a state’s willingness to relinquish its power in matters of war neutralises its sovereignty, without annihilating it entirely. Such limitations and transfers of competences remain a sovereign decision and are therefore reversible. In this case, sovereignty is a somewhat artificial construct, mobilised with a view to a specific objective, without being able to prove its positive existence (Pusterla, 2016, 79–126). Sometimes the state suspends sovereignty so that it does not produce the effect of domination, either because it is incapable of doing so or because it consents to such an action; and sometimes the state asserts sovereignty so that it is thereby authorised to exercise command within a system of instituted rational rules, whose validity is recognised by all and which are followed by all (Weber, 2015, 60). It could be argued that such an assertion is devoid of empirical significance. How can we then account for a state that is incapable of reneging on an international treaty that has led it to delegate its power over war? Political science may explain it through the concept of path dependence (Pierson, 2000). It is not inconceivable that such a hypothesis could be verified, in cases where it is deemed that the political costs of withdrawing from the treaty are higher than remaining in it. One way out of this impasse consists in finding a different way to understand the concept of sovereignty in place of that of summa potestas (supreme or absolute power), which implies a qualitative approach to sovereignty (and which we identify as sovereignty-quality). Legal thinking tends to understand sovereignty in this way, which amounts to a formal and static conception. Although the concept can cover several meanings (Troper, 2011, II, 2), it is often reduced to an alternative that the jurist Alain Pellet summarises bluntly as follows: “sovereignty is like virginity: you either have it or you don’t; you can’t have it ‘a little’ or ‘a lot’ or ‘in part’!” (Pellet, 2014, 64). “It is, on the contrary, a concept that takes shape only through its use and interpretation. While sovereignty, as a legal principle, is undoubtedly a reality, only its usage allows us to see the diverse forms it takes” (Saurugger, 2012, 2). In this sense, the observation of sovereignty “through the practice” of states brings to light adaptations and redefinitions of the concept, without it losing its “existential value in political and legal life” (Saurugger, 2012, 9).

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Sovereignty, apprehended in a concrete way, can then be understood as a social fact that produces effects on the state structure, and this approach therefore allows for a more realistic view. Consequently, the Member States of the EU have a different understanding of their own sovereignty when they alternate between two common decision-making processes: respectively, community decision-making by majority vote and intergovernmental decision-making by unanimity. This differentiation is enshrined in the primary treaties, which distinguish between decisionmaking methods according to the activity in question. However, the possibility of revising these treaties also makes this distinction contingent. European Commission President Ursula von der Leyen, in her closing speech on the future of Europe on 9 May 2022, against the background of Russian aggression in Ukraine, said that “unanimity voting in some key areas simply no longer makes sense” and that “[the EU] should play a greater role – for example, in health or defence”. Until now, the choice of unanimity in defence matters has been explained by the desire to preserve sovereignty as understood by Member States. However, the proposed revision in favour of majority decision-making demonstrates the extent to which the institutionalisation of sovereignty is an ongoing process. It is “continually being made and re-made” (Lagroye & Offerlé, 2010, 12), to the extent that its initial logic can be left behind (Krasner, 1993) through the re-evaluation of the concept by European Union and state institutions. A more concrete approach to sovereignty therefore makes it possible to nuance the formal understanding of sovereignty used by jurists. Moreover, sovereignty has been constantly reconfigured throughout history (Dardot & Laval, 2020). Although the state may appear to be overwhelmed by, and indeed in competition with instances of regional integration or private transnational actors, it remains indispensable both for the rule of law—even in cases of deregulating entire sections of world trade—and for governing—even in an international space governed by the imperative of neoliberal competitiveness that characterises just about all public policies, including defence policy (Dardot & Laval, 2020, 660–673). In order to make sense of this proposition, it is also necessary to understand sovereignty through a quantitative approach (which we identify as sovereignty-quantity), starting from its etymological root in the medieval Latin term superanus, referring to supremacy of power (Mulier, 2020, §431). This is a way to overcome the paradox inherent in the formal understanding of sovereignty, where the transfer of sovereignty

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is euphemised as a transfer of competence. Depending on the period and the constraints acting on states, the latter make decisions to modulate the amount of power assigned to each public action or policy. Some EU Member States do this in the military sphere by engaging in joint armament programmes, such as the Future Combat Air System, which involves Germany, Spain, and France. In this perspective, the level of available power invested by the state can be assessed and increased or decreased depending on the area of intervention in question (Mulier, 2022). The state’s changing apprehension of its own sovereignty suggests that it should be viewed in terms of a graduated scale of power, in which an indicator moves according to the amount of power the state is willing to invest. This proposition allows for a better identification of situations where the state seems to renounce rights through which it would otherwise exercise its sovereignty (Bodin, 2013, I, 10; Hobbes, 1996, XVIII), but chooses instead to modulate its power to mint money, dispense justice for certain international crimes, or wage war. We therefore find that there is no dispossession of sovereignty in the case of the state’s renunciation of power over war, provided that the concept of sovereignty is enriched by a quantitative form of apprehension. This approach then also allows us to explore the war-sovereignty dialectic without recourse to the concept of the state. Considering the War-Sovereignty Dialectic Without the State Since its institutionalisation, the state has successfully claimed a monopoly over the legitimate use of physical force. The remarkable consistency of this fact (Hinsley, 1986, 214–218) has led to the intertwining of war, sovereignty, and the state—a relationship through which the first two concepts have been “statised” (Tilly, 1992). Consequently, the state’s abandonment of power over war seems inconceivable, because of the state-centric character of sovereignty: a state that renounces war would then no longer be a state. Let us examine this line of reasoning. The doctrine of “Reason of state” (ratio status ) refers to the Roman adage “necessity has no law” (necessitas non habet legem). In line with this principle, “the formal systematisation of sovereignty as public power” no longer leads to the determination of the state’s competences by their object, but rather “by their formal imputation to the Sovereign and his capacity to create positive law” (Beaud, 1994, 144). This claim refers to the problem of the “unavailable content” of sovereignty (Rials, 1987,

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212). In other words, the aims of the state vary depending on causes, places, and times. However, unlike for all other political units, only the public power, which has been unitary and indivisible since the institutionalisation of the state, can define those aims. Within this framework, the state cannot alienate its means of power, such as its internal and military public force, without which it could no longer adopt and execute the law, which is the first mark of sovereignty according to Bodin (Beaud, 1994, 150). The theory of the state presents a paradox here. It refuses to address the material content of sovereignty, yet it allows itself to consider the means by which sovereignty is made effective. Thus, the jurist Herbert Krüger considers that the “reserves of the state”—that is, the inalienable and indelegable rights and duties reserved to it—include the power to decide what the situation requires. According to Beaud, this power entails a “duty of policing”, which obliges the state to institute a public force (Beaud, 1994, 150–151), but whose legal scope is constantly being questioned: is such a duty not purely a matter of fact, and is its validity not merely assumed? In any case, such an approach proceeds to a substantialisation of public law, which is criticised by Hans Kelsen, although he himself succumbs to it when he refers to the “specific means of power” of the state. According to Kelsen, the effectiveness of the state as an instance of constraint is dependent on means, including public force, which he considers to be “such an essential attribute of the state” (Kelsen, 1999, 284–285). Every political society needs to possess a physical force in order to preserve its being in relation to the Other (Mulier, 2021). For example, federative external security is envisaged “in common” through the guarantee provided by the Federation, which acts “like a sword arm” (Beaud, 2009, 287–288). In the same vein, many so-called “primitive societies” or “stateless societies” (societies that do not conform to the political organisation of the modern state) see the practice of war as a means of preserving their “political autonomy” (Adler, 1987, 98). War preserves the very consistency of any political unit (Gros, 2006). It is therefore important not to conflate the dominant status of the state with the very possibility of domination. There is no doubt that the state is currently the dominant form of political unity, with no truly credible competitor (Dardot & Laval, 2020), yet it is not the only political unity capable of dominating a collective, that is, possessing an “authoritarian power to give orders” with the prospect of being obeyed (Weber, 2015, 49). This is the reason why, in some territories where the state is lacking or absent, other

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groupings, such as mafia organisations, manage to exercise domination. A renunciation of the state’s power over war would therefore not necessarily lead to a break-up of international society, followed by a descent into anarchy (Bull, 2012, 3–22). Although the state has established itself as “the most complete form of power,” it is by no means “irreplaceable” (Chantebout, 1993, 55) or unsurpassable. In this sense, war has never been “a necessary or sufficient condition for the formation of the state” (Bayart, 2022, 303). From this perspective, the question could be reconceived so as to ask whether sovereignty can be dissolved into other forms of political unity than the state. It is not entirely incongruous to imagine a “destatised sovereignty,” in the light of the historical genesis of the concept of sovereignty, which was first envisaged through the function of making war and peace, then that of dispensing justice, and, finally, that of enforcing established customs and order (Rigaudière, 1993). It was only from the fifteenth century onwards, following its theorisation by Bodin, that sovereignty became statised in its relation to the law (Berns, 2002). It is even possible that the de-statisation of sovereignty could be already at work. Indeed, the statisation of war has not prevented the “institution of a global security market” in which regalian functions are delegated “to private operators – companies, militias, paramilitary bodies, gangs – in matters of national defence” (Bayart, 2022, 308). An exploration of the war-sovereignty dialectic without the state seems to have been under way among revolutionaries during discussions leading to the draft of the Declaration of the Rights of Man and the Citizen. These revolutionaries linked the guarantee of rights, as the goal of any political association, to public force. This force has a corollary, namely the need for a public contribution in order to maintain that force (Declaration of 1789, art. 2, 12, and 13). However, the founding act of 1789 and the public law that accompanied it were accomplished without the state. In this period, the nation became the holder of sovereignty—the state was not the legal locus of its attribution (Bigot, 2021, 8–9). The revolutionaries redefined the society-nation as an association of free and equal individuals, and rejected the conception of a nation assembled by Orders or Provinces (Bouaziz, 2019, §452–462). Article 12 of the Declaration of 1789 confirms this conception: the public force is “therefore instituted for the advantage of all, and not for the particular utility of those to whom it is entrusted”. This formulation is not insignificant (§576 in Bouaziz,

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2019): this public force is indeed entrusted to the instituted government—the King and his ministers—yet, insofar as sovereignty resides in the society-nation, a declaration of war must be made by a decree of the legislative body, which is henceforth co-representative of the sovereign nation (French Constitution of 3–4 September 1791, Title III, Chapter III, Section I, Article 2). Within this framework, the revolutionaries envisaged a different relationship between war and sovereignty without any concern for the state. “The [National Constituent Assembly] recognised as a legal person only the individual of the Declaration of Rights” (Bigot, 2021, 13). Subsequently, the state returned to the centre of political and doctrinal concerns, to the point of being amalgamated with sovereignty from the beginning of the nineteenth century (Bigot, 2021, 9–10). However, Article L4111-1 of the current French Defence Code seems compatible with this de-statised approach to sovereignty handed down by the French Revolution: “the army of the Republic is at the service of the Nation. Its mission is to prepare for and ensure by force of arms the defence of the homeland and the higher interests of the Nation”. Although, in the minds of legislators, the sovereign nation, the Republic, and the state are often substitutable, this formulation shows that it is not so much the relationship between war and sovereignty that can be relativised, as the role of the state within it. ∗ ∗ ∗ Ultimately, an absence of any mention of the state in the war-sovereignty dialectic is an illusion. It is omnipresent, right down to the tip of the pen of the judges who apply the law, which proves that the state, as an institutional figure, is neither outdated nor moribund (Loughlin, 2009). However, the role of the state within this dialectic can be relativised, in its quality both as sovereign and as the political unit most capable of waging war. The application of an interdisciplinary approach and the insights that such an approach provides have made it possible, at least in part, to move beyond the disciplinary constructs and biases of jurists in dealing with the relationship between war and sovereignty. Indeed, interdisciplinarity is an indispensable tool for overcoming state-centric habits of thought, and, consequently, for “putting [the state] back in its rightful place” (Scott, 2021, 46–47): that of a political unit of modest scope in the history of humanity.

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Bull, H. (2012 [1977]). The anarchical society: A study of order in world politics (4th ed.). Palgrave Macmillan. Carré de Malberg, R. (2003 [1920]). Contribution à la Théorie générale de l’État. Dalloz. Chantebout, B. (1993). L’État selon Georges Burdeau. In B. Chantebout (Ed.), Le pouvoir et l’État dans l’œuvre de Georges Burdeau (pp. 21–32). Economica. Chevallier, J. (2008). L’État post-moderne (3th ed.). LGDJ. Clastres, P. (1980). Archéologie de la violence: La guerre dans les sociétés primitives. In P. Clastres (Ed.), Recherches d’anthropologie politique (pp. 171–207). Seuil. Danet, D. (2002). Réussir l’externalisation des fonctions stratégiques de la Défense. Les Champs de Mars, 11(2), 259–273. Dardot, P., & Laval, C. (2020). Dominer: Enquête sur la souveraineté de l’État en Occident. La Découverte. de Béchillon, D. (1997). Qu’est-ce qu’une règle de Droit? Odile Jacob. Élias, N. (2007 [1939]). La dynamique de l’Occident. Calmann- Lévy. Engels, F. (1940 [1884]). The origin of the family, private property, and the state. Lawrench and Wishart. Farde, G. (2020). Le continuum de sécurité nationale. Quelles externalisations pour demain? Hermann. Foch, F. (1903). Des principes de la guerre – Conférences faites à l’École supérieure de la guerre. Berger-Levrault et Compagnies. Freund, J. (2004). L’Essence du politique (3rd ed.). Dalloz. Gros, F. (2006). États de violence. Essai sur la fin de la guerre. Gallimard. Gros, F. (2023). Pourquoi la guerre? Albin Michel. Hauriou, M. (1916). Principes de droit public (2nd ed.). L. Tenin. Hérodote. (2018 [5th century BC]). Histoires. Les éditions Adames. Hinsley, F. (1986). Sovereignty (2nd ed.). Cambridge University Press. Hobbes, T. (1996 [1651]). Le Léviathan. Gallimard. Jellinek, G. (2005 [1911]). L’État moderne et son droit. Éditions PanthéonAssas/LGDJ. Kant, E. (2011 [1795]). Métaphysique des mœurs. Vrin. Kelsen, H. (1990). L’essence de l’État. Cahiers de Philosophie Politique et Juridique, 17 , 17–34. Kelsen, H. (1997 [1946]). Théorie générale du droit et de l’État. Bruylant/ LGDJ. Kelsen, H. (1999 [1934]). Théorie pure du droit. Bruylant/LGDJ. Knapp, G. (2013 [1895]). The state theory of money. Martino Publishing. Krasner, S. (1993). Westphalia and all that. In J. Goldstein & R. Keohane (Eds.), Ideas and foreign policy: Beliefs, institutions and political change (pp. 253– 264). Cornell University Press. Lagroye, J., & Offerlé, M. (2010). Sociologie de l’institution. Belin.

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Le Corre, M. (2021), Conclusions du rapporteur public sous CE ass., 17 déc. 2021, M. Q., req. 437125. https://www.conseil-etat.fr/fr/arianeweb/CRP/ conclusion/2021-12-17/437125?download_pdf Legras, C. (2021). Limitation du temps de travail des militaires: Déçu mais pas surpris. Receuil Dalloz, 31, 1664. Le Rider, G. (2001). La naissance de la monnaie: Pratiques monétaires de l’Orient ancien. PUF. Libchaber, R. (1992). Recherches sur la monnaie en droit privé. LGDJ. Loughlin, M. (2009). In defense of Staatslehre. Der Staat, 48(1), 1–27. Mainguy, D. (2021). La singularité militaire: Retour sur la question du temps de ‘travail’ des militaires. Recueil Dalloz, 38, 1996. Mulier, T. (2015). Emploi de la force armée: Entre l’Élysée et Matignon, le Conseil constitutionnel a tranché! Les Petites Affiches, 142, 3–8. Mulier, T. (2020). Les relations extérieures de l’État en droit constitutionnel français. Mare & Martin. Mulier, T. (2021). Invariant et variations des relations extérieures entre sociétés politiques. Étude croisée entre la théorie générale de l’État et l’anthropologie. Droit & Philosophie, 12(9), 165–188. http://droitphilosophie.com/upload/ files/pdf/dp12-t09_mulier.pdf Mulier, T. (2022). Un droit international français? Point de vue d’un constitutionnaliste. In N. C. Bicudo et al. (Eds.), Un droit international français? Pratiques françaises du droit international (pp. 27–54). Pedone. Nabli, B. (2019). L’État intégré. Contribution à l’étude de l’État membre de l’Union européenne. Pedone. Nussbaum, A. (1950). Money in the law, national and international. A comparative study in the borderline of law and economies. The Foundation Press, Brooklyn. Pellet, A. (2014). Le droit international entre souveraineté et communauté. Pedone. Philippe, É. (2021, July 15). La décision des juges européens sur le temps de travail de nos soldats touche au cœur de la souveraineté et de la sécurité de la France. Le Monde. https://www.lemonde.fr/idees/article/2021/07/17/ edouard-philippe-la-decision-des-juges-europeens-sur-le-temps-de-travail-denos-soldats-touche-au-c-ur-de-la-souverainete-et-de-la-securite-de-la-france_ 6088572_3232.html Pierson, P. (2000). Increasing returns, path dependence, and the study of politics. The American Political Science Review, 94(2), 251–267. Poirat, F. (2003). État. In D. Alland & S. Rials (Eds.), Dictionnaire de culture juridique (pp. 642–648). PUF. Pusterla, E. (2016). The credibility of sovereignty—The political fiction of a concept. Springer Cham.

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Rials, S. (1987). La puissance étatique et le droit dans l’ordre international. Éléments d’une critique de la notion usuelle de “souveraineté externe.” Archives de Philosophie du Droit, 32, 189–218. Rigaudière, A. (1993). L’invention de la souveraineté. Pouvoirs, 67 (4), 5–21. Robin-Olivier, S. (2022). Chronique Politique sociale de l’UE - Le champ d’application du droit social de l’Union: Trop vaste ou trop étroit? Rtdeur. Revue Trimestrielle de Droit Européen, 2, 289–296. Rousseau, J.-J. (2011 [1762]). Du contrat social. Flammarion. Saugmandsgaard, H. (2021, January 28). Opinion of advocate general. Affaire C-742/19 – B. K. v. Slovenia. https://curia.europa.eu/juris/document/doc ument.jsf?text=&docid=237084&pageIndex=0&doclang=EN&mode=lst& dir=&occ=first&part=1&cid=350798 Saurugger, S. (2012). Théoriser l’État dans l’Union européenne ou la souveraineté au concret. Jus Politicum, 8, 1–22. http://juspoliticum.com/ article/Theoriser-l-Etat-dans-l-Union-europeenne-ou-la-souverainete-au-con cret-538.html Schmitt, C. (1998 [1922]). Théologie politique. Gallimard. Schoettl, J.-É. (2021, February 18). Armée, frontières, renseignement… L’Union européenne renonce à protéger. Le Figaro. https://www.lefigaro. fr/vox/monde/jean-eric-schoettl-armee-frontieres-renseignements-l-unioneuropeenne-renonce-a-proteger-20210218 Scott, J. C. (2021). Homo domesticus. Une histoire profonde des premiers États. La Découverte/Poche. Strayer, J. (1979). Les origines médiévales de l’État. Payot. Touzeil-Divina, M. (2010). “Travaillisation” ou “privatisation” des fonctions publiques? AJFP Actualité Juridique Fonctions Publiques, 5, 228–233. Thomson, J. (1995). State sovereignty in International relations: Bridging the gap between theory and empirical research. International Studies Quarterly, 39(2), 213–233. Tilly, C. (1992). Contrainte et capital dans la formation de l’Europe (990-1990). Aubier. Troper, M. (1994). Pour une théorie juridique de l’État. PUF. Troper, M. (2011). Le droit et la nécessité. PUF. Videlin, J.-C. (2021, October). Comm. 39. Les militaires français et le temps de travail: Une mise au pas européenne. Droit Administratif, 10, 26–28. Videlin, J.-C. (2022, February 21). 2059. Les militaires français et le temps de travail: Suite française… mais pas fin. La Semaine Juridique - Administrations et Collectivités Territoriales (JCP A), 7 , 1–5. Walker, N. (2003). Sovereignty in transition. Hart Publishing. Weber, M. (1995 [1921]). Économie et société (vol. I). Pocket. Weber, M. (2015). La domination. La Découverte/Poche. Yannis, A. (2002). The concept of suspended sovereignty in international law and its implications in international politics. European Journal of International Law, 13(5), 1037–1052.

CHAPTER 5

The Failed Gamble of the 1920s: Sovereignty Without War Alya Aglan

In the aftermath of the mass slaughter of First World War, the idea of educating people for peace through better mutual understanding, instigated by the League of Nations (LN), became a necessity in line with the “peace through law” movement that had emerged in the late nineteenth century. The aim was to spread the international spirit by specifically educating young people in all member states to raise awareness of the LN and its objectives.1 On the initiative of the International Institute of Intellectual Cooperation,2 (Riondet, 2020), the forerunner of UNESCO, established in Paris in 1926, an exchange of letters between Sigmund Freud and Albert Einstein entitled Warum Krieg ? (Why War?) 1 Resolution of the General Assembly of the League of Nations of 27 September 1923. 2 The executive body of the International Institute of Intellectual Cooperation (IIIC)

established in 1921 by the LN. Comprising twelve intellectuals, this institution created to spread pacifist and internationalist ideals among young people, played a consultative role.

A. Aglan (B) Sorbonne-Identités, Relations Internationales et Civilisations de L’Europe (SIRICE), University Paris 1 Panthéon-Sorbonne, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_5

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was published in pamphlet form in 1933—the year Adolf Hitler was appointed chancellor of Germany in a Europe rife with authoritarian regimes, most of them fascistic. In the summer of 1932 from Potsdam, free to choose his subject and his interlocutor, the famous Nobel Prize in Physics of 1921 asked the Viennese neurologist and founder of psychoanalysis a “vital” question, in his view: “the most important in the order of civilisation”: “Is there any way of delivering mankind from the menace of war?” This eternal question tormented their contemporaries, fresh from a world war, too prematurely dubbed “the war to end all wars”. Europe had just suffered the fallout from the Wall Street crash of 1929 and was plunged, with a certain time lag compared to the United States, into an unprecedented economic crisis (Hesse et al., 2014). The “Great Depression” caused a global contraction in trade, mass unemployment and the suspension of currency convertibility into gold. This prompted states to withdraw into autarky, which gradually turned into a rearmament spiral. According to the writings of General Erich Ludendorff, who joined the National Socialist German Workers’ Party (NSDAP) as soon as it was founded, total and racial war, which was inevitable, had the advantage of a complete and permanent mobilisation of all strata of society, both in times of war and in times of peace. This was a major condition of an “animic” community between the people, the army and the state, the best guarantee of the autarkic strength of a nation that he considered under constant threat from its external and internal enemies (Jews, Freemasons and the Catholic Church) (Ludendorff, 1935). At the end of 1935, after three years of intense preparation for a war that was supposed to prove the fighting virtues of the “Third Rome”, fascist Italy attacked Ethiopia (Matard Bonucci, 2018), a member of the League of Nations since 1928. This act triggered an international crisis before Italy was condemned for having flouted the Geneva protocol of 17 June 1925 prohibiting the “use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare”, a protocol signed by 37 states and ratified in April 1928.3

3 https://ihl-databases.icrc.org/en/ihl-treaties/geneva-gas-prot-1925/state-parties?act iveTab=undefined#footnote-2.

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The Legitimacy of War Questioned or Sovereignty Curtailed But, in the 1930s, was war still an integral part of state sovereignty? With the second industrial revolution, war itself became an industrial enterprise, both through the massive production of weapons and munitions and through the continuous technical improvement of the means of destruction. Following many pacifist authors of the late nineteenth century, including the Polish engineer and banker Jean de Bloch,4 author of a six-volume work entitled The Future of War, the first of which, entitled “In its Technical Economic and Political Relations”, was translated into English from the Russian in 1899, Einstein pointed out that technical progress had made weapons so lethal that war was becoming a “matter of life and death for civilisation”. He echoes the observation made by an entire generation who, in the trenches, realised that, as the German painter Franz Marc pointed out, the First World War was nothing more than a “European civil war, a war against the inner invisible enemy of the European spirit”.5 Europe at war with itself. Freud and Einstein, both convinced by their respective practices of the superiority of sublimation over the reasoning of opportunity alone, write from a scientific and not a political point of view. They note the failure of collective security initiatives designed to guard against war by seeking recourse to a third arbitrator: The Hague Court of International Justice (Permanent Court of Arbitration) established in 1899, whose role was to find a solution to problems arising between two states. “The quest of international security involves the unconditional surrender by every nation, in a certain measure, of its liberty of action, its sovereignty that is to say” Einstein posits as a first principle, subjecting disputes between states to the scrutiny of an authority above national law. The limitation of sovereignty, ideally consented to in the interests of an international community, is identified as the only rational path to convince all nations to renounce war, which can be considered in itself as a sovereign act. The blatant failure of a vision, which might seem more utopian than rational, is at the root of this questioning by Freud, in the 4 Along with Tsar Nicholas II, he was one of the organisers of The Hague Peace Conference of 1899, https://gallica.bnf.fr/ark:/12148/bpt6k96040616.texteImage. 5 Cited by Enzo Traverso, 1914–1945 Fire and Blood: The European Civil War 1914– 1945, trans. David Fernbach, London, Verso, 2015.

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midst of war, in his “Current considerations on war and death (1915)” (Freud, 1916). Noting that from the start of the hostilities, flagrant violations of the Law of Nations were committed by the warring “civilised” countries, Freud felt vindicated in condemning the methods and the aims of war (Freud, 1916, 5)—with regard to the current one as well as all wars: “Civilisation is based upon the renunciation of impulse gratification and in turn demands the same renunciation of impulses from every newcomer” (Freud, 1916, 5). The many disarmament conferences that followed the Great War, as well as the edifice of the League of Nations, wrongly assumed that this renunciation took the form of relinquishing a degree of sovereignty, agreed to by the nations seeking to join the growing international community, the number of countries having considerably increased following the collapse of the Austro-Hungarian, Ottoman and German empires. Furthermore, to use the terminology of psychoanalysis, world peace could only be based on a “transformation of impulse” (Freud, 1916, 11) under the aegis of the League of Nations, whose founding pact specifies the essential commitment of the member states: “to promote international cooperation and achieve international peace and security by the acceptance of obligations not to resort to war”.6 To renounce war and behind-the-scenes diplomacy in favour of arbitration and to abide by international rules without limiting the sovereignty of the countries that voluntarily adhere to the new norms, this was the impossible challenge that the League of Nations set out to meet from its inception. In his response to Einstein, Freud identifies the powerful psychological restraints or instincts at work in nations’ resistance to a peaceful world order, once it has been established that the ruling political and economic elites consider that inter-state warfare is the means for them to consolidate their power and profits, controlling their populations’ opinions through schools, the press and religious organisations. The instincts of hatred and destruction that propel individuals towards and into war— which Einstein called a “collective psychosis”—are impulses that can only be controlled by the “might of a community” that transforms the unleashing of the original endemic violence into law. But this supreme authority, the League of Nations, founded on shared ideals, does not

6 The Covenant of the League of Nations, Official Journal, February 1920, https://lib raryresources.unog.ch/ld.php?content_id=32971179.

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have the power of constraint that would enable it to impose its arbitrations, comments Freud, who advocates as an antidote to war everything that favours bonds of identification as well as the development of culture. These renowned exchanges show the lucidity with which the multiple forms of state organisation converge towards the construction of bigger territorial units—empires or federations—by extending their domain of sovereignty. Following the example of the Pax Romana, they seek to the spectre of inter-state war at bay, reducing internal conflicts to the maintenance of order and highlighting the intrinsic link between war, sovereignty and the merging of culture as the best bulwark against war. But at the time when Einstein and Freud were writing, the classical ideal of war heroism had died in the trenches of 14–18, leaving only the alternative of “kill” or “be killed” (Prost, 1994). Glory in the act of war was tarnished in favour of the clandestine anti-fascist fighters’ position during the Second World War.

War, the Driving Force Behind the History of States War, which both brings people together and divides them, creates new power configurations and has epitomised the sovereignty of political entities—cities, leagues and empires—since antiquity. Aristotle sees it as a purely commercial activity dictated and justified by the desire to acquire plunder, material goods or slaves (Aristotle, Politics, 1981). Minting coins, meting out justice and declaring war are the pillars of state sovereignty and the sovereign monopolies of princes. Conquest on a variable scale remains the expression of essential sovereignty and power, out of necessity or in the quest for unity or glory, possibly embodied in an illustrious figurehead such as Napoleon. Every warmonger dreams he is a descendent of Alexander the Great, Hannibal, Frederick II of Prussia or another legendary strategist. A powerful sovereign necessarily sees himself as a war leader and seeks to be depicted in this role. The succession of wars throughout the seventeenth century in Europe, from the Thirty Years’ War to the War of the Spanish Succession, appears as a demonstration of absolutist monarchical power, argues Joël Cornette (Cornette, 2000). The wars were not only waged in the king’s name, but his presence on the battlefield at the head of his armies also established in the most spectacular way possible the very foundations of his sovereign power and the legitimacy of the state he embodied. The exercise and proof of monarchic

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sovereignty are deployed, as of right, in military activity. And this to such an extent that when Napoleon III was taken prisoner on the battlefield by the Prussians at Sedan on 2 September 1870, his empire collapsed and the Republic was proclaimed two days later. In Western history, the state as a political and social organisation has visibly been closely bound up with war and peace in a tense balance between external warfare—designed to strengthen or even create internal unity—and the essential upholding of domestic peace to keep any unrest, rebellion or sedition at bay. The birth of the modern state in Europe in the seventeenth century was a response to the need to put an end to the wars of religion and civil strife by ensuring that temporal power prevailed over spiritual power, so as to pacify the interior of fragmented territories and principalities, distant heirs of the Roman Empire. At that time, sovereignty, henceforth delimited by geographical borders, was defined as the monopolistic exercise of the enactment of law ( jurisdictio) and of the legal imperative to enforce it (imperium) within this framework (Bodin, 1576 cited by Barroche, 2017). Public power rested on three monopolies: justice, police and army, and taxation. The root cause of the American Civil War (1861–1865), which saw the opposition of two models of society, was the northern states’ refusal to accept the secession of the southern states, which would have amputated the sovereignty of the federal power. This shows that territory is the essential historical sovereignty factor, far from today’s metaphorical uses, where the expressions “food sovereignty” and “energy sovereignty” refer to interdependencies that have become problematic. At the time of the Roman Empire, the territorium legionis designated an area of influence, politically constructed from a military and then administrative and economic centre, an area necessary for the maintenance of a legion, limited by the territories of neighbouring cities (Bérard, 1992). This model of power organises space according to the needs of the dominating power and not ex nihilo. From this perspective, sovereignty is defined as much as the capacity to pacify and to order as to conquer new territories. The Westphalian system created a legal framework for war between sovereign states, with a view to achieving a balance of power, whereas the French Revolution gave a national content to the state by identifying sovereignty as emanating from the people. Whereas the theory of natural borders, developed at the time of Mazarin, introduced a territorial demarcation to the sovereignty of the French monarchy of divine right and the nation, the principles of 1789 founded a nation

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that led to a new form of French state. In nineteenth-century Europe, when the state as an organising principle was confronted with national demands, which gave rise to nationalities movements, the nature of war changed. It became the expression of the aspirations of minorities imprisoned in Austro-Hungarian imperial structures—known as the “prison of the peoples”, Russian or Ottoman—who demanded to be transformed into national sovereignties through the foundation of new states such as Greece (1821–1829) or Belgium (1830–1831), respectively carved out from the Ottoman Empire and the Kingdom of the Netherlands. While new sovereignties linked to new independent states are constituted through war, national rivalries can also emerge when other ethnic, cultural or religious principles complicate the identification between state, nation and territory. The historian Nadine Picaudou has described as “territorial barbarism” the emergence of national demands tending to homogenise states by excluding the diversity of indigenous and non-indigenous populations, as exemplified in particular by the Balkan wars of 1912–1913 (Bled & Deschodt, 2014). A major development since the middle of the nineteenth century, after the Crimean War (1853–1856), has been the awareness that the practice of war goes beyond its traditional motivations (conquests, resources, prestige). This has contributed to the emergence of an international humanitarian law aiming to alleviate “the evils that are inseparable from war”, without calling into question the exercise of sovereignty. International provisions forming the basis of the first Geneva Convention were made “for the amelioration of the condition of military personnel wounded in the field” of 22 August 1864. This convention was also contemporary with the Lieber Code of 1863: “Instructions for the Armies in the Field of the United States of America”, drafted at the request of President Lincoln, prohibiting various forms of “cruelty”, a sign of the law intervening in the sovereign exercise of state violence.

The Conversion of Violence into an International Pact From the regulation of the practice of war to the construction of an international society based on conventions subject to ratification by states, the conversion of violence into a pact initially reinforces the very exercise of sovereignty.

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But the post-First World War settlements called into question the legitimacy of going to war, introducing a clear rupture with previous centuries, as Carl Schmitt (Cumin, 2005) underlines in his Theory of the Partisan, two lectures he gave in Franco’s Spain and published in 1962 as the Algerian War of Independence came to an end. The former German jurist and prominent member of the Nazi party develops the idea that by designating the defeated Germany as culpable in 1918, the victors implemented a major mutation in the law of war, breaking with the old European law of nations ( jus publicum europaeum). The law of war ( jus ad bellum) became a law against war ( jus contra bellum), deplores the jurist. The “criminalisation of the enemy”, he claims, contributed to transforming inter-state war between sovereign states into an international civil war that substitutes the partisan for the soldier as a warmonger. According to Schmitt, the erosion of the distinctions between enemy and criminal and between civilians and soldiers completed the collapse of international humanitarian law ( jus in bello), the main restraint on the aggravation of violence. In his view, the League of Nations and its Council, dominated by the victors of the First World War, by attributing to itself the right to decide which wars were licit or illicit, introduced an inequality between states with regard to sovereignty. Some retained the right to wage war because it was deemed “just”; others had this same right withdrawn (Schmitt, 2007). Paradoxically, the League of Nations system destroyed all the instruments for limiting war by prohibiting it, with the effect of internationalising and intensifying conflicts, as in the Spanish Civil War of 1936–1939, instead of reducing, containing or preventing them (Schmitt, 2007). When the battle between friend and foe is replaced by that of good versus evil, as Roosevelt announced in his December 1941 speech, war is subverted, according to Schmitt, to become an action of justice against a criminal state, deprived of its sovereignty when designated as the aggressor by a law with universalist and supranational ambitions (Schmitt, 2007). But contrary to what Carl Schmitt—an unrepentant defender of the Third Reich and the Wehrmacht—declared after Nuremberg, where the charges of “conspiracy against peace” and the outbreak of a war of aggression had been brought, prohibiting war should concern all states and not only those convicted of carrying out criminal actions.

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The Forbidden War An unprecedented attempt to outlaw war as a means of enforcing state sovereignty was the Kellogg-Briand Pact—known as the “General Treaty for Renunciation of War as an Instrument of National Policy”. Signed in Paris on 27 August 1928, it was a milestone in an era marked by “pactmania”, even though, far from achieving its objective, it was never respected and was very quickly forgotten. An act of full sovereignty, subscribed to by most of the world’s most powerful empires, the text was signed first by the “President of the German Reich”, followed by the “President of the United States of America, His Majesty the King of the Belgians, the President of the French Republic, His Majesty the King of Great Britain, Ireland and British Overseas Territories, the Emperor of India, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Poland, the President of the Republic of Czechoslovakia”, who together declare that they are “deeply sensible of their solemn duty to promote the welfare of mankind”.7 The invitation to all “the civilised nations of the world”8 to follow them in contracting a general renunciation of war in favour of peaceful means to settle their disputes seems to have been heard, since it was ratified by sixty-two states, that is to say, most of the states that existed at that time. Far from instituting a supranational authority imposing rules from above, the provision of the ratification was “in accordance with their respective constitutional requirements”,9 so as to preserve and perpetuate harmonious relations between states, in strict respect of state sovereignty. Although it remained a dead letter, this treaty attests to the existence of a will to create international cooperation based on shared priorities and instruments guaranteeing—beyond checks and balances between nations based on power relations—an international democratic project that put states, large and small, old and new, on the same footing. This pact is in many ways revolutionary insofar as it aims to establish a new world in which, by renouncing the use of force through free choice, states would undertake a civilising self-education of all humanity, 7 League of Nations, Treaty Series, Publication of Treaties and International Engagements registered with the Secretariat of the League of Nations, vol. XCIV Nos. 1, 2, 3, 4, 1929, p. 59. 8 League of Nations, op.cit., p. 61. 9 League of Nations, op.cit., p. 63.

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putting their commitment above traditional customs and reactions and relegating war to an archaism—a commitment that modernity and technical prowess would not be able to erase. It aligns with the arguments of two eminent late nineteenth-century jurists, the Scotsman James Lorimer, professor in Edinburgh, and the Swiss-born German, Johann Caspar Bluntschli, professor in Heidelberg (Arcidiacono, 2012), both convinced that only a social pact between sovereign states would make it possible to eradicate war from the European continent. Although they differed on the measures to be taken—a federal union with limited jurisdiction for Lorimer, suited to the ancient rootedness of the European states, or for Bluntschli, an association similar to a confederation governed by a sort of union of the major powers—in order to pacify the naturally conflicting relations between nations, to establish the law in place of the systematic recourse to force required by the irrational attachment to the principle of absolute sovereignty. Even though the Kellogg-Briand pact was unable to banish the practice of war from relations between states, it nevertheless formulated the observation that was essential to those who had lived through the First World War—the moral discrediting of war—so clear was it that war was self-perpetuating in an uncontrollable manner on a large scale, whereas the initial objectives that had triggered it tended to fade in the face of the colossal losses, both human and material, and in the face of a toll of 9 million dead and 21 million wounded. Drieu La Rochelle’s semi-autobiographical novel, Gilles, published in 1939, explores the impossibility of reintegrating into society for those who had undergone the ordeal of fire, which was more destructive than exhilarating, and who believed that fascism offered them the only revitalising vanguard against the sense of an inevitable decline. In contrast to this gloomy vision, on 12 October 1929, the jurists of the Institute of International Law, set up in New York, drew up its Declaration on the International Rights of Man. This document states that “the juridical conscience of the civilized world demands the recognition for the individual of rights, preserved from all infringement on the part of the State”, and opposes discrimination, “direct or indirect”, based on “sex, race, language or religion”, (Kévonian, 2021)10 with the aim of impeding the omnipotence of totalitarian regimes.

10 https://www.idi-iil.org/app/uploads/2017/06/1929_nyork_03_fr.pdf.

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The Discredited Nation-State During the Second World War, the Nazi conquest and occupation of most of Europe destroyed the very notion of national sovereignty (Ermakoff, 2008). Entire states appeared and disappeared, suddenly subject to the appetites of bloated totalitarian states (Aglan & Frank, 2015; Chickering et al., 2005). The programmatic writings (Dumoulin, 1995; Lipgens, 1968) of the clandestine anti-fascist movements examined the reasons why Europe had been unified by force and was in the process of being integrated into the “Thousand Year Reich”. The desire to see the conquered territories liberated soon prompted intensive soul-searching as to the world of the future, resulting in a harsh critique of the nation-state in Resistance, anti-fascist, socialist and Europeanist circles (Aglan, 2008): “Many of us are turning today towards the idea of a federation of peoples after the war”, the Catholic philosopher Jacques Maritain summed up in a radio broadcast in New York in the spring of 1944. “The newspapers of the Resistance are in favour of this idea (…) The federal idea seems the only one capable of solving problems that would remain insoluble in national terms”.11 Looking back to the pre-war years, a number of clandestine writings point to capitalist imperialism, nationalism—economic nationalism in particular—promoted by the nation-state, a discredited framework because it leads to war, totalitarian dictatorship and autarky, in accordance with the widely shared conviction that a centralised state cannot remain democratic. The recurrent argument consists of blaming autarkic economic policies for the development of authoritarian ideologies which, in turn, are said to be the cause of the war, at first economic and then expansionist. A new world and then European order would have the advantage of diluting ideology in peace and prosperity by building a decompartmentalised space without hegemonic power. Europe is therefore seen as the major instrument in the fight against totalitarianism and against exacerbated nationalism in all its forms.

11 Jacques Maritain, talk broadcast on the New York radio and reproduced in the 25 March and 1 April 1944 issues of La Quatrième République, a weekly paper published in Algiers, texts published in L’Europe de demain, centre d’action pour la fédération européenne, Neuchâtel, Éditions de la Baconnière, 1945, pp. 204–205.

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Political federalism and the disappearance of the dogma of absolute state sovereignty to guarantee a viable peace thus made a strong comeback in the anticipation of a Europe delivered from war and fascism once and for all. The Europe dreamed of by federalist, French, Italian, German and Belgian resistance fighters would have to reconcile patriotism and pacifism, and unite citizens as opposed to states, replacing allegiances by small-scale solidarity circles, leaving a supranational entity to take charge of maintaining international armed forces (Blum, 1931) capable of defending it. The lessons learned from the disastrous failures of the League of Nations led to the rejection of the nation as an organising principle, both political and economic. All the more so since the federal entity to which European states would relinquish part of their sovereignty appeared to be the only possibility for confronting the two superpowers whose hegemonic aspirations were already feared—the United States and the USSR. Even the most conservative German resistance groups (Mommsen, 2000), around Carl Goerdeler (Reich, 1997), resigned themselves to the idea because, unlike the others, deprived of external support (Klemperer, 1992), they saw a European federation as the only chance of saving the German nation, now threatened with destruction as a result of the Nazis’ diehard war. At a time when nations with restored sovereignties were being reborn and when the inevitable political, economic and social reforms to be accomplished at the time of liberation were being hammered out, European questions took on a burning urgency because they appeared to be linked to the survival of democracies. But in the future Europe, constructed to prevent war, the nation would only be preserved as a sentimental, even quaint notion, just as borders would be reduced to mere administrative boundaries, the entire “United States of Europe” constituting the first step towards the “United States of the world”. And so, a few days before the capitulation of Fascist Italy on 8 September 1943, the underground newspaper Libération-Sud wrote: “Because the nation remains a sentimental and moral resource, because the state remains an administrator, we hold onto a national ideal. We conceive of the behaviour of this nation, the structure of this state, but this ideal is dominated, conditioned, by an international ideal in which the national ideal cannot satisfy our pacifist and humane views. Should we be called dreamers, we who live a miserable, anxious life, we have indeed

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forged a secret homeland, but with a view to a human homeland” (De la Résistance à la Révolution. Anthologie de la presse clandestine française, 1945). In the effort to avoid the risks of knee-jerk recourse to war, beyond the perennial question of sovereignty’s limits, ultimately it is the idea of the state itself that is being called into question: “The absolute sovereignty of national states has given each the desire to dominate, since each one feels threatened by the strength of others and considers as its living space an increasingly vast territory wherein it will have the right of free movement and can ensure itself of the means of a practically autonomous existence. This desire to dominate cannot be placated except by the predominance of the strongest state”, states the manifesto written in August 1941 on the island of Ventotene12 in the Gulf of Gaeta by two anti-fascists, Ernesto Rossi13 and Altiero Spinelli,14 both of whom were interned with hundreds of opponents of the regime. Starting from the observation that the absolute sovereignty of national states encouraged their propensity to dominate neighbouring states, each feeling threatened by the strength of the other, and that citizens lost their freedom to become “vassals bound into servitude” of the totalitarian state, Rossi and Spinelli believed that the war thus triggered by appetites for “living space” had provided the objective conditions of the European moment by making the historical 12 https://www.cvce.eu/en/obj/the_manifesto_of_ventotene_1941-en-316aa96c-e7ff4b9e-b43a-958e96afbecc.html. 13 Ernesto Rossi (1897–1967) was born in Florence and volunteered in 1916. He studied law in Siena while writing for L’Unita and Rivoluzione liberale. After the assassination of Matteotti, he joined the “Alleanza Nazionale” and was a founder member of the secret anti-fascist association “Italia libera”, which published, between 1924 and 1925, Non Mollare, one of the first clandestine newspapers. Wanted by the police, he lived in hiding in Italy for five years, teaching in Bergamo and writing articles for Luigi Einaudi’s Riforma sociale. Co-founder of Giustizia e Libertà in 1929, he was arrested in 1930 along with the entire leading group. After nine years in prison in Rome, he was transferred to Ventotene in 1939. Upon his release, after the fall of Mussolini in July 1943, he founded the Movimento Federalista Europeo (MFE) with Spinelli and Eugenio Colorni. The first congress was held in Milan on 27 and 28 August 1943. He took part in the clandestine federalist meetings in Geneva in the spring of 1944 at the home of the Dutch pastor Willem Visser t’Hooft. 14 Altiero Spinelli (1907–1986) joined the Italian Communist Party as a young man before becoming involved in the anti-fascist struggle. Arrested in 1927, he was sentenced to ten years in prison and was banished for six years. In Ventotene, he abandoned communism for federalism, inspired by the work of Luigi Einaudi and the English federalists of the Federal Union.

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crisis of the national state evolve into a political crisis.15 This key document was widely circulated by the European underground press and was long lived. It provided the theoretical basis of the Movimento Federalista Europeo (Purro, 1977),16 founded in Milan at the end of August 1943 and becoming a supranational movement in 1959. While the ideal of a united Europe, over and above nations, was reborn in Resistance circles because it gave meaning to the common fight against fascism and for the dignity of the human being, the old Europeanist militancy, critical of the dogma of absolute sovereignty, found its confirmation and its revitalisation in war. In December 1944, the underground newspaper Il Partigiano Alpino, the mouthpiece of the Giustizia e Libertà movement in the Piedmont region, invited “Partisans of all Europe, unite!”, underlining that the victory of the European resistance could not be complete without the abolition of nationalism. “In the fight against a common enemy, in this great international civil war, we have not yet succeeded in forging close links of understanding with all our brothers who are fighting and dying like us, with the same means and the same ideals. The time has come to do away with the old frontiers, to nip in the bud any revival of nationalism, our own or that of others, and to unite a great front of European liberation” (Lipgens, 1985). Without the positive unity of the European continent in a federation, which was the stated aim of several partisan movements, the risk of seeing the same causes of future divisions and confrontations, inherent in nation-states, prompts us to think of the saving novelty of a Europe without nations or “beyond nations”. The negation of the nation and the abolition of the state, merged in a European federation destined to become global with a leadership accountable to the citizens, would have the immense advantage of making war definitively illegitimate. The exponential death toll of the two world wars as well as the use of nuclear weapons in the summer of 1945 should, according to the Italian federalist resistance, prohibit forever the anarchy of inter-state rivalries; nations should be invited to submit to a common and universal law, the only guarantor of their existence in a peaceful world (Levi, 1994).

15 Spinelli, Altiero; Rossi, Ernesto. The Ventotene Manifesto. Ventotene: The Altiero Spinelli Institute for Federalist Studies, [n.d.]. 16 The MFE held its first non-clandestine conference in Venice in 1946.

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References Aglan, A. (2008). Le Temps de la Résistance. Actes Sud. Aglan, A., & Frank, R. (Eds.) (2015). 1937–1947 La guerre-monde. Gallimard. Arcidiacono, B. (2012). La paix par le droit international dans la vision de deux juristes du XIXe siècle: Le débat Lorimer-Bluntschli. Relations Internationales, 149, 13–26 (Peace through International Law, as Seen by Two NineteenthCentury Jurists: The Lorimer-Bluntschli Debate | Cairn International Edition (cairn-int.info)). Aristotle. (1981). The politics. Penguin Classics. Barroche, J. (2017). “État”. In Durieux, B., Jeangène-Vilmer, J.-B., & Ramel, F. (Eds.), Dictionnaire de la guerre et de la paix (p. 491) PUF. Bérard, F. (1992). Territorium legionis: Camps militaires et administrations civiles aux premiers siècles de l’empire. Cahiers du Centre Gustave Glotz, 3, 75–105. Bled, J.-P., & Deschodt, J.-P. (Eds.) (2014). Les guerres balkaniques 1912–1913. Sorbonne Université Presses. Blum, L. (1931). Les problèmes de la paix. Stock. Bodin, J. (2013 [1576]). Les six livres de la République. Classiques Garnier. Les Cahiers du Rhône. (1945). De la Résistance à la Révolution. Anthologie de la presse clandestine française. Editions De La Baconnière. Chickering, R., Förster, S., & Greiner, B. (Eds.) (2005). A world at total war: Global conflicts and the politics of destruction, 1937–1945. Publications of the German Historical Institute. Cornette, J. (2000). Le roi de guerre. Essai sur la souveraineté dans la France du Grand siècle. Payot. Cumin, D. (2005). Carl Schmitt. Biographie politique et intellectuelle. Cerf. Dumoulin, M. (Ed.) (1995). Plans des temps de guerre pour l’Europe d’aprèsguerre, 1940–1947 . Bruylant, LGDF, Nomos Verlag. Ermakoff, I. (2008). Ruling oneself out: A theory of collective abdications. Duke University Press. Freud, S. (2011 [1916]). Thoughts for the times on war and death. In Brill, A., & Kuttner, A. B. (Eds.), Reflections on war and death. Moffat, Yard and Company. https://www.gutenberg.org/files/35875/35875-h/35875-h.htm Hesse, J.-O., Köster, R., & Plumpe, W. (2014). Die Große depression. Die Weltwirtschaftskrise 1929–1939. Campus Verlag. Kévonian, D. (2021). La danse du pendule: Les juristes et l’internationalisation des droits de l’homme, 1920–1939. Éditions de la Sorbonne. von Klemperer, K. (1992). German resistance against Hitler: The search for allies abroad, 1938–1945. Clarendon Press. Levi, L. (1994). Mouvement fédéraliste européen (en Italie). In de Rougemont, D. (Ed.), Dictionnaire international du fédéralisme (p. 400). Bruylant. Lipgens, W. (1985). Documents on the history of European integration, vol. I, Continental plans for European union, 1939–1945. W. de Gruyter.

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Lipgens, W. (1968). Europa-Föderations Pläne der Widerstandsbewegungen: 1940–1945. Oldenbourg. Ludendorff, E. (1936). Der totale Krieg, Ludendorffs Verlag, 1935. Published in English as The Total War. Friends of Europe. Matard Bonucci, M.-A. (2018). Totalitarisme fasciste. CNRS Éditions. Mommsen, H. (2000). Alternative zu Hitler. Studien zur Geschichte des deutschen Widerstandes. C. H. Beck Verlag. Prost, A. (1994). Les représentations de la guerre dans la culture française de l’entre-deux-guerres. Vingtième Siècle, Revue D’histoire, 41, 23–31. Purro, J.-M. (1977). L’Europe des Congrès: Principes et problèmes (1944–1949). Fribourg Éditions Universitaires. Reich, I. (1997). Carl Friedrich Goerdeler. Ein Oberbürgermeister gegen den NSStaat. Böhlau. Riondet, X. (2020). L’institut international de coopération intellectuelle: Comment promouvoir un enseignement répondant à l’idéal internationaliste (1931–1937)? Relations Internationales, 3, 77–93. Schmitt, C. (2007). The concept of the political. The University of Chicago Press.

CHAPTER 6

Political-Military Relations. Civil Supremacy Under the Test of Sovereignty Grégory Daho and Luc Klein

The consubstantiality between the conduct of war and the formation of states permeates philosophical (Hobbes, 1651; Locke, 1690; Rousseau, 1754), legal (De Guibert, 2005 [1790]; Hauriou, 1905, 1923; Chantebout, 1967) and sociohistorical (Elias, 1994 [1939]; Tilly, 2000; Weber, 1968) representations on the legitimacy of public power. Societies have been constructed in the shadow of war, forced to organise themselves to survive it, that is to be in a position to opt for and engage in war or risk dying by the sword. However, they seem to follow the direction of a domestication of the armed forces by civil structures. This process can be summarised with two expressions. First, ultima ratio regis (the king’s final argument), a motto engraved on Louis XIV’s cannons, makes war the exclusive prerogative of the state. From a legal perspective, the notions of state and sovereignty are intertwined (Troper,

G. Daho (B) University of Paris 1 Panthéon-Sorbonne, Paris, France e-mail: [email protected] L. Klein University of Reims Champagne-Ardenne, Reims, France © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_6

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1994). Starting with a consensual definition of war (“an act of force to compel the enemy to do our will,” Clausewitz, 1976 [1832], 75), we note the historical formalisation of an institution responsible for waging war, namely “the military.” In so-called modern states, the military is now composed of professional soldiers. Following the legal perspective, war is subject to norms applied temporarily, until one side reaches “victory,” that is the surrender of the enemy’s political will follow the destruction or capitulation of its armed forces. In this respect, war is, in theory, spatially and temporally limited.1 The second expression is cedant arma togae (let the arms yield to the toga). This famous maxim from Cicero reflects the principle that the civilian holders of state power control the military. Civil control of the military came about as a consequence of the division of labour, which led to the gradual emergence of legitimating power external to military force (Finer, 1962). This principle of political organisation was initially religious and/or ritual (as demonstrated by the tripartition of functions in IndoEuropean civilisations, Dumézil, 1986), and became incorporated into diverse ideologies, including the Maoist doctrine (“the Party commands the gun”) or the French republican model. Civil control presents itself as a key principle of state organisation—civil supremacy—that can be found in most constitutional traditions all over the world despite their diversity (Klein, 2020, 2023). If we stick to this principle, understanding the relations between military and political authorities means studying how, why, in what forms and to what extent a given political society has succeeded or failed to organise the civil control of its armed forces. The Civil-Military Studies, inherited from the debates on the influence of the American militaryindustrial complex in the aftermath of the Second World War, tend to be polarised around two normative and prescriptive models. The separation model, which prescribes “objective civil control” (Desch, 1999; Huntington, 1957), valorises the professionalisation of the armed forces because it contributes to achieving two objectives: keep the military away from political life, and limit the intrusion of civilians into military command. Officers are thus confined to the role of professionals of the management of violence. Conversely, the integration model postulates 1 We add “in theory” because of the tendency towards extremes principle, which holds that war can always become autonomous from the political conditions that brought it about (Clausewitz, 1976 [1832], 80).

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that conscription favours a “convergence” (Finer, 1962; Janowitz, 1960) between liberal political authorities and conservative military leaders separated by a “gap,” a subject widely discussed in the American literature since the 1990s (Feaver & Kohn, 2001). The social rooting of the armed forces is thought to guarantee democratic stability through an assimilation between elites.2 Civil supremacy, which has never been questioned as a principle, is therefore presented as a given of democratic “good practices.” However, in the French and American cases, professionalisation has not guaranteed better democratic control of the armed forces (Brooks, 2020; Daho, 2020), any more than conscription once did. It explains our mistrust of the models conveyed by the Civil-Military Studies. Behind its apparent stability throughout history, the post-Cold War period saw a shift in interpreting and exercising civil supremacy. The combined lenses of the jurist and the political scientist shed light on this reconfiguration (Daho & Klein, 2023). This chapter therefore proposes to revisit four concomitant phenomena whose contemporary interconnection, while it does not directly challenge the civil supremacy principle in most of the representations associated with a healthy democracy, nevertheless invites us to question the practical implementation of civil supremacy by and between political authorities and military leaders.

Maintenance of Emergency Power and Presidentialisation of Crisis Management In France, the last few years have been marked by repeated crises and the maintaining of successive forms of emergency powers [“régimes d’exception”]3 : state of emergency (implemented from November 2015, after the terrorist attacks in Paris and Saint-Denis, to 2017), Sentinelle Operation (launched in the wake of the Charlie Hebdo attacks in January 2015 and extended until the present day) and COVID-19 pandemic crisis (repeated lockdowns from 2020 to 2021). This normalisation of 2 This chapter does not cover civil-military relations in the broad sense (between armed forces and society) but deals with political-military relations in the narrow sense (between civil authorities, i.e. administrative and political, and military leaders), although obviously the two levels of observation can be complementary. 3 Unless otherwise indicated, all quotations from French sources have been translated into English.

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the exception (Hennette-Vauchez, 2022) coincides with a trend noted in each of the three cases mentioned above: the executive power, personified by the president himself as “head of the armed forces” (Art. 15 of the French Constitution), seems to resort more easily to the military tool. The continuation of some forms of emergency powers and the ease with which martial and military symbolisms are now displayed to show off political determination have accentuated the blurring of traditional reference points (peace/war, defence/security, public/private, state/nonstate actor, military victory/political defeat), not least between external threats and internal risks. The dilation of the field of defence, traditionally embodied by the diplomat and the strategist, into the broader and more porous field of national security, including internal forces, has been noted since the 1990s notably by Critical Security Studies (Bigo, 2001; Buzan et al., 1998). The dilution of the notion of war (“civil,” “inter-state,” “limited,” “total,” “revolutionary,” “nuclear,” “asymmetrical” or “hybrid”), the broadening of the notion of security (“international,” “human,” “economic” or “environmental”) and the proliferation of studies on “continuums” (“defence-security,” “internalexternal”) or “nexuses” (“security-development,” “security-migration,” “security-religion”) show a doctrinal consensus among theorists and practitioners. The key characteristic of the post-Cold War security agenda remains the convergence of internal security and external defence. In this new security field, the military must now manage risks as well as threats and must anticipate crises, not just prepare for war while the political authorities must implement public policies that involve different ministries and coordinate the judiciary, the military and internal security agencies. This internal/external security convergence has in turn impacted legal frameworks. Indeed, there has been an extension of the argument of necessity that has run counter to the representations of Western legal traditions. Historically, necessity was closely associated with the idea of obviousness. In other words, a legal form of emergency was put into effect when it was obvious that the ordinary course of the law had to be set aside in the face of a situation whose exceptional nature was immediately understandable by all (Saint-Bonnet, 2001). The logic is different now. Necessity is put forward as an argument of authority and as a justification for the creation and maintenance of so-called “emergencies.” This legality built for the management of crises then filters into ordinary law. French law offers an example of this phenomenon. In 2017, the state of emergency was lifted, but, at the same time, Parliament modified the ordinary legal framework.

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Extraordinary powers granted by the state of emergency were incorporated into ordinary law, such as the power to restrict travelling for some individuals, and the power to close places of worship. Therefore, the end of the “emergency” did not mean the return to the law as it was before the crisis, but to a new legal system, modified for and by the crisis.4 The tendency to extend the legal exception and to display the military tool has simultaneously been accompanied by and fed into the presidentialisation of crises management steering. Crisis situations also make it possible to accentuate the concentration of power and the control of decision-making process into executive, and more precisely, presidential institution. The progressive weekly routinisation of the Defence and National Security Council [Conseil de Défense et de Sécurité Nationale], under the François Hollande presidency, is an archetypal example of this. Highest level of decision in the French political-military hierarchy, this Council made a habit of meeting at the time of the Gulf War in 1991, with its main figures François Mitterrand, president, Pierre Joxe, ministry of defence and Admiral Jacques Lanxade, special chief of staff attached to the office of the president [Chef de l’Etat-major particulier du president]. The Council takes two forms around the president: a political and restricted formation bringing together the ministries and a political-administrative plenary formation joining the directors of the main central administrations concerned. The Council began to meet weekly after the attacks in Paris in January and November 2015 and above all after the attack in Nice in July 2016. In a context where states no longer declare war on each other, this Council transforms the president’s word into orders to use military forces. While the content of this Defence and National Security Council is classified, the interviews show that issues not directly related to external threats and the immediate use of military force are regularly dealt with. It is held every Wednesday before the Council of Ministers [Conseil des Ministres]. The Council of Ministers, where, according to the Constitution, executive decision-making takes place, has effectively been reduced to a “recording session” for decisions already taken by the president and his closest advisors during the defence council meetings. The COVID-19 health crisis took this phenomenon to a whole new level with the creation

4 See the Strengthening internal security and fight against terrorism Act, enacted on the 30th of October 2017, which transposed into the Internal Security Code several mechanisms from the 1955 State of Emergency Act (as modified by the 2015 Act).

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of a Health Defence Council [Conseil de défense sanitaire] as a replication in reduced format of the Defence and National Security Council. While the media have pointed to its undemocratic use as a substitute for the Council of Ministers, the decree of 24 December 2009 provides for an expandable view of the scope of action of the National Defence and Security Council in terms of “planning responses to major crises.” Presidentialisation of crisis management steering must not be reduced to either the personal inclinations, however “Jupiterian,” of presidential office holders5 or a simplistic reading of the distribution of constitutional prerogatives. We have been witnessing for some years now a disinhibition in the display of warlike violence claimed at the highest state level. This disinhibition can be observed in France, as in most of liberal democracies, through the systematisation of the word “war.” On 16 November 2015, three days after the attacks in Paris and Saint-Denis, the president at the time, François Hollande, began his speech before the Parliament in Versailles with the phrase “France is at war” [La France est en guerre]. On 16 March 2020, president Emmanuel Macron justified the use of the military during the COVID-19 crisis with reference to the anaphora “we are at war” [Nous sommes en guerre]. The systematisation of the use of the military in homeland security crises is not just attributable to the government’s communication strategy aiming at mobilising the national population behind the “resilience” banner. More fundamentally, the effectiveness and immediacy of the results produced by the military tool sidesteps the usual constraint of visibility and accountability of any public policy. However, the French Constitution is not as limpid as its applications might suggest. While the president is the “head of the armed forces” (Art. 15) and “guarantor of national independence,” “territorial integrity and adherence to treaties” (Art. 5), the prime minister is “responsible for national defence” (Art. 21) and “has the armed force at his disposal” (Art. 20). To understand the articulation between these two executive bodies, one has to turn to the Defence Code, whose provisions show a real diarchy in the management of the French military forces. From a legal point of view, the Prime Minister holds the power to make the

5 To quote the qualifier used by candidate Emmanuel Macron during the campaign in an interview with Challenges magazine (16 October 2016) to distinguish himself from the « normal» practice of his predecessor François Hollande.

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decisions regarding the use of military force, but he has a legal obligation to exercise this power within the Defence and National Security Council, chaired by the president. As chairman, the president convenes the meetings of the Council, and conducts its proceedings. The president decides on the plenary or restricted formation of the Council and sets the agenda. On one side of the table seat the president and his staff (special chief of staff, cabinet secretary, general secretary, foreign affairs advisor); on the other side are the prime minister, the foreign affairs and defence ministers and the chief of staff of the armed forces. As a result of the anti-terrorist framing, the home office [ministère de l’Intérieur], the justice minister and internal security administrations (in particular the Directorate-General for Internal Security [Direction Générale de la Sécurité Intérieure]), come to play a more important role. Combined with its political supremacy over the other members of the executive branch, which manifests itself primarily in his power to appoint senior officials, generals and diplomats, his centrality in the decision-making process and his control over the political calendar, the president dictate what can and cannot be done (Klein, 2020). Therefore, the presidential authority is more of a political rather than legal nature. In addition to the Council of Ministers, two other major political actors are marginalised, not least Members of the Parliament [Parlement]6 and diplomats. The limitations of parliamentary control highlights the asymmetry between executive and legislative powers in terms of access to information concerning, for example, external military operations, war materials exports or intelligence services. This asymmetry steps more in the self-disqualification of the specialised commission of the Parliament than in the distribution of powers by the constitution (Aulnette & HadjAhmed, 2022; Mulier, 2022). The institutionalisation of the “restricted area” [domaine réservé] that foreign and defence policies constitute for the president lies on two practical leverages: the pairing of the president and the highest military hierarchy7 and the asymmetry between

6 The Parlement is France’s legislature and is made up of the national assembly [Assemblée Nationale] and the senate [Sénat]. 7 Embodied by the special chief of staff attached to the office of the president [Chef de l’Etat-major particulier du president] and the chief of staff of the armed forces [chef d’Etat-major des armées]. They serve both as advisors to the president and as a conduit between the government and the military. While the physical presence of the special chief of staff in close proximity to the president is justified in functional terms by the nuclear

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the Elysée’s diplomatic cell and the ministry for Europe and Foreign Affairs in the decision-making circuit. In other words, this presidentialisation process is based above all on the perceptions and representations of legislative power holders, senior civil servants and ministerial advisors (Pouponneau, 2022).

Extension of the Political (Mis)use of the Military Institution Among liberal democracies, the French political-military relations are usually described as an example of subordination of the military command to political authorities (Feaver, 2011; Katzenstein, 1976; Risse-Kappen, 1991). The French civil supremacy has been structured, at least since the revolutionary origins of the Republic, by a deep mistrust between executive authorities—the president and the ministries—and military leaders. This mistrust can be summarised by the fear of betrayal that punctuates, on both sides, this tradition: for the political authorities, the fear of a military coup d’état, and for the military leaders, the fear of political resignation. If the numerous episodes of the tumultuous French politicalmilitary history are regularly discussed by historians,8 the Algerian War remains the latest milestone. The military coup in Algiers in 1958 led to the return to power of General Charles de Gaulle and the birth of the Fifth Republic. De Gaulle’s double-dealing, on 4 June 1958 (“I understood you”) was considered to be a betrayal by most senior officers. Although the Algerian taboos had multiple dimensions, they designate the inherited structure of ordinary relations between political authorities and military leaders in the French post-colonial context (Daho, 2019). Subordination of the military is interpreted as both the legacy of the attempted Putsches (1958 and 1961) and the consequence of nuclear weapons, that left the ultimate decision “in the hands” of the president of the Republic (Cohen, 1986). The extent to which the military instrument is now being systematically mobilised during national security crises and without arousing consistent dissuasion doctrine, this officer may also have a decisive influence on operations as they unfold. The chief of staff of the armed forces is not integrated into the office of the president, because he is in charge of the operational deployment of the armed forces. 8 Battle of Valmy (1792), the Paris Commune (1871), the Dreyfus Affair (1894–1906), La Débâcle (1940).

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questioning is rather disconcerting for the observer of the French tradition. In this respect, Sentinelle Operation marked a turning point in the militarisation of anti-terrorism. The “terrorist attack risk” level of alert was proclaimed on 7 January 2015, and a ramped-up Vigipirate plan was implemented, calling for use of military personnel to protect sensitive sites, in particular Jewish schools.9 With more than 10,000 soldiers, about 10% of the army force, deployed throughout the national territory (the first time since the Algerian War), Sentinelle mobilises more soldiers in France than all external operations combined. Over the 2015–2021 period, there has been a considerable extension of the political (mis)uses of the military institution on French national territory. The 20th March 2019, the president has informed the Council of Ministers of its decision to recourse to Army forces to secure certain buildings and free up police personnel during the “Yellow Vests” [Gilets Jaunes] weekly demonstrations. Even if the reasoning behind this decision is consistent with the political expedients of Sentinelle, i.e. a posture to convey governmental authority in order to reassure the population more than to carry out anti-terrorist actions, and the logic of available resources to maintain order, it constitutes a new threshold in the use of military forces on metropolitan soil under the Fifth Republic.10 The launch of “Résilience” Operation in March 2020 to provide military transport and hospitals during the COVID-19 pandemic also illustrates the ease and presidential discretionary power in using the military tool. This extension has considerably increased the military’s visibility and popularity in comparison with 1990s and 2000s distant expeditions. It is an empirically indisputable fact that the military is returning to the everyday landscape in France. Soldiers can be seen in railway stations, at monuments, on seafronts and officers on television screens. Their popularity has remained very stable. Indeed, the army is the most trusted

9 In 1978, the first interministerial provisions related to anti-terrorist vigilance were the predecessors to the Pirate and Vigipirate plans issued respectively in 1981 and 1991. After the terrorists attacks of the Armed Islamic Group perpetrated in Paris in 1995, 2000 Army soldiers were assigned to ensure security at sensitive sites and to border control. 10 In the early days of the French Republic, military action to maintain order was used to control revolutionary outbreaks and rioting. In the circumstances of a “state of siege,” prefects can requisition military forces up to and including units specialised in maintaining order (Gendarmerie mobile, Compagnie Républicaine de Sécurité).

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institution in France after hospitals and small and medium-sized companies.11 Within a span of three decades, French officers have gone from being seen as threats to the republican political-military balance to being presented as idealised figures of public services commitment. The military seems to be recasted in its role as the forge of the national community. This is evident, for example, in the appointment of the former chief of staff of the armed forces [Chef d’Etat-Major des Armées], Jean-Louis Georgelin, to lead the reconstruction of Notre Dame Cathedral after the fire on 15 April 2019 and in the idea often put forward to reform the training of the elite of senior civil servants at the École Nationale d’Administration in line with the model of the officer training at the École de Guerre. Contrary to the predictions of Civil-Military Studies’ typologies, the political authorities’ drive to professionalise the armed forces, despite the views of the majority of army officers in favour of maintaining the conscription model (Irondelle, 2011), has produced the unintended effect of valorising military expertise. The visibility associated with the return to national territory is only the latest stage in a process of rehabilitation of the place and role of the military forces since their professionalisation in 1996. Professional military officers’ skills and knowhow, developed both at the administrative and operational levels, and which are not easily replaceable by civilians, have proved considerable resources in their daily interactions with senior civil servants and political authorities. The increasing technical nature of multilateral military interventions from the humanitarian interposition in the 1990s to the counter-insurgency strategy in Afghanistan in 2000s is a consequence of the operational constraints on the uses of force. The technicalisation of operations has strengthened the role of intermediate levels of decision, decentralised command and structures and favoured the dissemination and the assimilation of neo-managerial norms among French officers. Permanent delegations at international organisations, missions of defence attachés in embassies, integrated crisis management cells in Kosovo, Afghanistan and the Sahel region: these are the theatres of professional socialisation between military leaders and senior civil servant. In these arenas, officers rely on extra-military resources, for they must first

11 77% between 2012 and 2019 according to the Centre de recherches politiques de Sciences Po (CEVIPOF) annual survey of trust levels among the French public.

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and foremost “translate” their activity between the terms of the military institution and those of the diplomatic corps. Officers have always been able to make their voices heard on subjects such as the means allocated to their missions or the right to professional representation. However, more recently, contesting an alignment with American strategy,12 mobilising against immigration,13 marriage rights for all14 or restoring the republican values of order and authority, they seem to increasingly interpret public voicing, as not conflicting with their military commitment. The interpretation of professionalism now tends to point not so much to a duty to retain a certain reserve as to a duty to engage public debates. The repertoires of action are changing and are becoming even more direct. Officers are increasingly expressing themselves in their own name and not just from a (pre-)retirement position, thus exposing themselves to more than just symbolic sanctions. They identify the responsibilities and the personal orientations of the head of state and do not just refer to abstract entities like “government” or “Europe.” For example, the day after the Arc de Triomphe was vandalised during the Yellow Vests protests on 01 December 2018, General Didier Tauzin addressed the president directly on Facebook: “A few of we general officers are quite willing to come and teach you how to do politics. And maybe even to take your place if you want to go, which I think you will do soon.”15 As evidenced by their publishing successes (De Villiers, 2017, 2018), their increased presence on television and the proliferation of specialised blogs (Planiol, 2018), military officers now engage public debate through mass media that allow them to address the general public.

12 Colonel F-R. Legrier’s article on the battle for Hajin was withdrawn from the journal Défense Nationale after the minister of defence’s office reproached him for a “kneejerk” reaction. The article was shared on military blogs such as La voie de l’ Epée and l’Association de Soutien à l’Armée Française. 13 General C. Piquemal was arrested in Calais on 6 February 2016 during a demonstration against migrants that had been banned by the prefecture. 14 General B. Dary is a co-organiser of “La Manif pour tous,” a movement that brings together various organisations opposed to homosexual marriage. 15 6 December 2018, https://www.facebook.com/soutientauzin/posts/198598997 8135045/, accessed 2 September 2020.

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Politicisation of Military Officers From the resignation of the chief of staff of the armed forces Pierre de Villiers in July 2017 to the publication of senior officers’ collective stand on the far right Valeurs actuelles website in the spring of 2021, there was an unprecedented publicisation of the tensions between the political authorities and military leaders. In the first case, the press reported that in response to the 850 million euros spending freeze on military equipment, general De Villiers said before the defence commission of the French National Assembly [Assemblée Nationale] on 12 July 2017: “I’m not going to be screwed over like that.” The following day, president Macron took a stern stance in his public reframing: “Bad habits have sometimes been taken on these topics, considering that the evolution of the army should follow the evolution of the other sectors, I regret this. I like the sense of duty. I like the sense of reserve that has kept our armed forces where they are today.”16 On 14 July, a national holiday in France, De Villiers posted a warning in his “letter to a young soldier” on Facebook that seemed to be addressed as much as to the new president, who was enjoying a meteoric political rise at the time, as to new recruits: “I will end with some advice. Because trust exposes you, you need to be lucid. Beware of blind trust, whether you bestow it or it is bestowed on you. It is stamped with the hallmark of convenience. Because everyone has their shortcomings, no one deserves to be followed blindly.”17 De Villiers was to resign five days later. In the Valeurs actuelles website case, an opinion piece signed by approximately twenty generals was opportunely published at the launch of the 2022 presidential campaign. For the 60th anniversary of the second “generals’ putsch” in Algiers on 21 April 1961, these general officers called for the “intervention” of the military in the name of “honour” and the preservation of “civilisational values.” They precise that they would “support the policies” that would “safeguard the nation.” A second opinion piece from a group of junior officers lending their support to the first article was published on the same site on 9 May 2021.18 16 President Macron’s speech, 13 July 2017, https://www.elysee.fr/emmanuel-mac ron/2017/07/13/discours-d-emmanuel-macron-a-l-hotel-de-brienne. 17 https://www.facebook.com/notes/chef-détat-major-des-armées/confiance/154845 1188570705/, accessed 2 September 2020. 18 Sign our service personnel’s new opinion piece. Valeurs actuelles, 11 May 2021.

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The politicisation of the military is interpreted in different ways by Civil-Military Studies specialists. For some, it refers primarily to the process of civilianisation, in the sense of tightening civilian control over the army. In this view, the quality of the political-military relations is a matter of balancing as politicisation intends to neutralise ideological preferences within the military. For others, politicisation means the empowerment of a partisan army serving notably the ideology of a single or dominant party within a state. So far in this chapter, we have mainly insisted on two facts: first, presidentialisation is a derived form of civil control based on political rather than legal dynamics; second, the extension of the political (mis)uses of the military on the national territory has favoured the valorisation of their expertise in the whole society.19 In other words, the presidential facility to use armed force has increased the social space for demands from officers. We would like to highlight two under-reported forms of politicisation. One, functional, refers to the senior civil servants propensity to anticipate the consequences for their political authority of the public policies they contribute to implement. Functional politicisation invites us to take distance from the Weberian model of a neutral administration and the image of the bureaucrat as a mere executor. Senior civil servants in ministerial cabinet offices and in central administrations co-construct the “sensitivity” of certain options and measures of the public policies they contribute to implement. This sensitivity relies notably on the ministry’s agenda, its interministerial relations, its reputation or the risk of leaks in the press (Eymeri-Douzans, 2003). Simultaneously translating political constraints into technical options as well as technical limitations into political resources, military advisors as civil servants turn the vagueness of political objectives into operational margins for manoeuvre and vice versa by anticipating the political consequences of the military options they promote. Besides, different forms of bureaucratic resistance and covert or even open dissent (Brooks & Erickson, 2022; Hundman, 2021) coexist inside central administrations and cabinet offices: thanks to their knowledge of decision-making circuits and their interpersonal relations developed throughout their career with senior civil servants, officers are capable of circumventing civilian supremacy. Professionalisation and, in 19 For example, this valorisation in the wake of Operation Barkhane has marginalised diplomats specialists of regional security in West Africa (Pouponneau, Coutereel, Beaufils, Montini, 2022).

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its wake, the valorisation of military expertise, the pairing of the president and the highest military hierarchy and the marginalisation of members of parliament and diplomats on foreign and defence matters accelerate the functional politicisation of general officers. The second form of politicisation, partisan, refers to an investment in “the mechanics of the political positioning space” (Gaxie, 1978, 22) manifested by the desire to influence the political agenda and therefore to challenge “the differentiation of activity spaces” (Lagroye, 2003, 361). Notably through the themes they have spread in their opinion piece published on Valeurs actuelles website, officers’ public statement is not limited to purely military matters. Partisan politicisation denotes first of all a reinterpretation of professionalism as a duty to intervene in the public debate. In this respect, the signatories of the opinion piece presented themselves as “servants” who had demonstrated their “commitment” during their “career.” Conversely, the exhortation to professionalism through reservation and self-restraint is a social control tool (Evetts, 2003). Partisan politicisation also refers to officers’ involvement in political parties which is a very recent phenomenon in France. Six officer candidates ran in the 2017 French legislative elections.20 For the first time since 1918, a serving military personnel, Captain Laetitia SaintPaul, has been elected as the Member of Parliament. Once again, while this politicisation may seem trivial, particularly to an observer of American political-military relations, which are marked by the political weight of veterans, it is highly relevant in the French case. The valorisation of expertise associated with the change in the meaning of professional commitment has also been noted in the United Kingdom (Makki, 2023) and the United States (Brooks, 2020) where the global anti-terrorist frame opens up the use of the military in domestic affairs (Bove et al., 2020; Ulrich & Cook, 2006). American historians have already noted an “erosion” (Kohn, 2002), a “deterioration” (Desch, 1999) or a “substantial renegotiation” (Owens, 2011) of political-military relations since the end of the Cold War. As with the so-called “revolt of the generals,” officers address public opinion in the mainstream media,

20 Marion Buchet (La République En Marche!, 5th constituency of Meurthe-etMoselle), Loïc Corregé (La République En Marche!, 4th constituency of Pyrénées Atlantiques), Laetitia Saint-Paul (La République En Marche!, 4th constituency of Maineet-Loire), Dominique de Lorgeril (independent, Charente), Bertrand Soubelet (10th constituency of Hauts de Seine) and Bertrand Ract-Madoux (1st constituency of Drôme).

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directly targeting political authorities.21 Many arguments have been put forward to explain the relativisation of civil supremacy in practice. The absence of direct strategic threats has maintained the lack of knowledge of military matters among political leaders while the diagnostic of the obsolescence of inter-state wars has spread the influence of the precepts of democratic peace (Doyle, 1983) among western elites. An open letter signed by 124 retired US officers in 2021 was strikingly similar to the French generals’ opinion piece published a few weeks earlier.22 It set out the risks, in their view, associated with the laxity of Joe Biden’s administration in the tense context that marked the storming of the Capitol. Their letter emphasises a nation “in deep peril,” a constitutional republic “lost,” a country divided into “warring factions” and refer to similar themes as the “border controls” and the ravages of “Politically Correct policies like the divisive critical race theory.” As noted by US civil-military relations observers, this kind of statement resonates with the expectations of a section of the population, a fortiori in a context of mistrust of the mainstream media (Bryant et al., 2021). It shows officers’ ability to echo the government’s communication on security, which have historically exploited the figure of the officer as a model state servant in an even more intense way than in France. Not only have military officers increasingly felt that interventions in the public arena do not conflict with their military commitment, but also these interventions have positioned them quite clearly on the right of the national political spectrum. Recent French examples show that officers who have taken a stand on social issues have chosen politically rightwing themes. In so doing, these officers challenge the classic republican conception of civil supremacy, as it stems from the works of the great legal scholars of the early twentieth century, such as Maurice Hauriou. As summed up by the expression “legal cantonment” [cantonnement juridique], the soldier has in a way traded the privilege of arms for a restriction of his individual rights (Hauriou, 1923). This model now goes against the emphasis put on individual rights since the second half of the 21 During the spring of 2006, retired American generals have pointed out Donald Rumsfeld, secretary of defence, to be responsible for the failure of the intervention in Iraq. Paul Eaton, “For his failures, Rumsfeld must go,” The New York Times, March 19, 2006, Greg Newbold, “Why Iraq was a mistake,” Times Magazine, April 9, 2006, John Batiste, “A case for accountability,” Washington Post, April 19, 2006. 22 Open Letter from Retired Generals and Admirals, Flag Officers 4 America.

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twentieth century, through the development of constitutional review. The restrictions put in place in the nineteenth-century and twentieth-century laws are challenged in the courts, and officers today do not hesitate to seize upon the opportunity to free themselves from the “straitjacket” that the French republican tradition tried to keep them in (Klein, 2023).

Return of Competition Between Powers in an Era of Interdependence The Russian invasion of Ukraine in February 2022 has reminded the world of a harsh reality. Geopolitics can also be played out on that most classic warfare. Inter-states wars are not so obsolete. Western democracies are rediscovering the risks of conventional warfare, which brings with it different issues to those that prevailed in the anti-terrorist strategic frame of the last two decades. The Russian military threat has revived the need felt by Western states to join forces, which they are doing within NATO, with all the legal and political issues that this entails. The integration of European armed forces into the NATO framework has inevitably risked the dilution of its political decision-making in military matters. The NATO allies are not all equal, and the economic and military weight of the United States hangs heavy in the balance of interests. Moreover, this internationalised decision-making framework is not neutral when it comes to political-military relations. It puts the spotlight back on political-military dialogue and thus over-valorises the executive at the expense of the other constitutional branches as suggested once again through the staging of the president’s personal diplomatic action.23 This is certainly not a new phenomenon. The executive is always the most strengthened actor in the context of international tensions, for the simple reason that he holds the tools of state power in its hands. It controls the armed forces and is the hierarchical head of the intelligence services especially through its power of military and diplomatic appointment, its position in the decision-making circuit, its mastery of political timing and,

23 The documentary “A President, Europe and the War” [Un président l’Europe et la Guerre, Guy Lagache, L’Éléphant Breath Films / Mile Productions] depicts a direct and virile telephone discussion between Presidents Macron and Putin four days before the invasion of Ukraine while the members of the Elysée’s diplomatic cell passively listen to the exchanges.

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as suggested before by the perceptions and representations of administrative elite in cabinet offices and central administrations. It also authorises missions abroad, and foreign diplomatic missions are accredited to it. The executive branch is therefore, by definition, the beginning and end point for all international decision-making. In this respect, one can note a sort of constant, which is that the institutions of Western democracies, in particular the legislatures, are always late in adapting their control mechanisms regarding the executive. The return of high-intensity forms of confrontation, in particular in the cyber and the information domains, considerably complicates a legislature’s control. The face-off between powers is happening on multiple terrains, and this requires greater adaptability and flexibility in terms of decision-making. The executives of Western democracies are the only bodies able to deliver these arbitrations in real time. Moreover, the multifactorial complexity of the decisions to be taken valorises the military advisors’ influence in ministerial and presidential cabinet offices. In other words, the revived spectre of war in Europe refocuses attention on military expertise, and this is undoubtedly reconfiguring politicalmilitary relations at the heart of Western democracies. Researchers will have to report on developments in the months and years to come, both within the executive branch and between the executive and the other constitutional branches. It is not so much civil supremacy that is disrupted, but the legal and political context in which it takes place. It is therefore not a question of challenging civil supremacy, which remains the legal principle for organising political-military relations in Western democracies. However, this principle of power organisation and labour division appears to be reaching its limits today. It no longer ensures the delicate balance between the military authority’s submission to civil power and the democratic legitimisation of defence decisions. To take an extreme example, when the Russians attack or threaten another state, the internal democratic legitimisation of that state’s response through discussion in the legislature and the legal subtleties of the rule of law carries little weight. ∗ ∗ ∗ From the omnipresence of the “war on terror” both outside and inside borders to the return of high intensity warfare, from the disinhibition

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of officers public voicing to their growing visibility and consistent popularity in comparison to political institutions or parties, the study of the relationship between political authorities and military leaders comes back into fashion. This can be taken as further evidence that civil control of the armed forces remains an important research area for the social sciences. This evolution, welcomed in view of the importance of the issues raised, is embodied by a new generation of researchers particularly in public law and political science (Feaver, 2016; Joana, 2019; Pion-Berlin & Dudley, 2020), even in France where political-military relations are still confidential. While the ways in which we study political-military relations may be evolving, it remains an essential subject for those interested in the concrete exercise of sovereignty and its consequences in terms of balance of power and acceptance of state legitimacy and authority.

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Part II Case Studies of Contested and Renegotiated Sovereignty

Introduction Yves Buchet de Neuilly Professor of Political Science University Paris 1 Panthéon-Sorbonne In the aftermath of the Second World War, and then during the processes of decolonisation and the collapse of the Soviet bloc, states worked to establish guarantees for their mutual survival. This reciprocal security arrangement was without precedent in the history of international political relations. The territorial integrity of states was preserved from possible violent action on the part of neighbouring states to seize land, even when large swathes of territory were no longer controlled by their historical central authority, and were de facto administered by other, competing, authorities. In terms of territory, the highest risk for a state whose authority is violently contested is the successful political secession of a part of its territory, with the support of outside states; examples are South Sudan, Kosovo, Eritrea, and also South Ossetia, Abkhazia, Upper Karabakh and Transnistria. In the rare cases of invasion or attempted annexation of a large part or all of a state by another state, or moves to significantly modify borders—e.g., the invasion of Kuwait by Iraq in August 1990, and the claims of the proto-Islamic State to parts of Syria and Iraq in the mid-2010s—broad coalitions of states mustered considerable means of warfare to combat these attempts. Territorial integrity, a major corollary of the principle of sovereignty, is strongly defended by states. The

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invasion of Ukraine and the annexation of several oblasts by Russia test the limits of this capacity of states for collective protection. The force of this attachment to and vigilant defence of territorial borders by government authorities, regardless of the arbitrary nature of the historical carving up and division of land, is without equivalent among the other dimensions of the notion of sovereignty, in particular the judicial principle of non-interference in the internal affairs of other states. While the principle of non-interference is frequently invoked and proclaimed by the United Nations Security Council to justify rejection of one resolution or another, in practice this principle is continually challenged. It is often undermined by political, diplomatic and economic pressure between states, and more broadly by the many forms of action, more or less visible, that states deploy to influence the government action of other states. In its most coercive form, military intervention is sometimes sought for humanitarian reasons, to compensate for the failures of political authorities, notably the failure to protect their people. In other cases, military intervention is held to be justified to protect the citizens of a state that is threatened by the presence and circulation of international terrorist groups, and by the complacency of government authorities in states where these groups might find refuge. In a world in which anarchy continues to be the organising principle, states must build up their means of protection and dissuasion to counter the forces that they perceive as a threat. And they cannot do this alone. In addition, the borders that separate states are not unbreachable walls between autarchic groups of humans. States, and their inhabitants, have interdependent relationships. The transnational dimensions of violence and threats are sometimes particularly acute. On the continuum of individual and collective management of security, intervention is only one of the extremes. At the other end of this continuum is the mutualisation of sovereignty in supranational institutions. In the vast space between these two extremities, states negotiate their security interdependence, and sometimes suffer the consequences, as seen in the chapters of the second part of this book. When they take part in military alliances, states are obliged to harmonise the operational modes of their armed forces, and to allow the military of other states to move about and even establish bases in their territory. They must invest in security equipment that is manufactured abroad. Security interdependence implies technological and industrial interdependence. States and their inhabitants are interconnected by digital

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networks and communication, which generate new areas of vulnerability. Likewise, the production of ever more sophisticated arms is dependent on global supply networks, in particular for raw materials and electronic components. And when it comes to using these means of warfare, states do not act entirely on their own. Even the most powerful among them are dependent, at the very least, on cooperation with the intelligence services of other authorities, on access to the land, maritime territory or airspace of other countries... While it may seem paradoxical, the direct and indirect pressures exerted by states on other states are probably a counterpart to their pledges of mutual survival and territorial integrity, a counterpart to their renunciation of territorial aggression. Exposed to the negative externalities of the political and security action and the economic and social policies of other sovereign states, and with the aim of increasing the benefits of interdependence, state authorities address their requirements and expectations—for treatment of minorities, human rights, good governance, free markets, etc.—to other states. They deploy positive and negative incentives, unilaterally or through the agency of international bodies. Of course, the outcomes of these pressures are not necessarily those anticipated. For example, it is quite difficult to obtain the desired changes from a state via economic sanctions. The use of this controversial tool often even reinforces the targeted government by bolstering its hold over the population of the country, as the inhabitants are made more vulnerable and dependent by the sanctions. Under the postcolonial international system dominated by the model of the sovereign state, the most egregious and massive attempts of interference by states have proven to be very costly and ultimately lead to intractable situations.

CHAPTER 7

Security and Regional Integration Through a Maritime Lens: Shared Sovereignty and Non-cooperation in the Inter-American Region Sylvain Domergue

The inter-American region is a vital crossroads for global maritime activity, criss-crossed as it is by east-west and north-south flows (Ducruet & Notteboom, 2012; McCalla et al., 2005). It contains multiple connections between North and South America and the Atlantic and Pacific Oceans, resulting in high levels of trafficking and crime. Maritime drug trafficking has been on the rise, along with illegal high-seas and coastal fishing, fuel and arms trafficking, and sometimes human smuggling. All of these pose serious security issues. For more than half a century, states have used military tactics to combat such threats. Today, nearly 93% of illicit drug flows pass through this area by sea, presenting a major

S. Domergue (B) University Paris 1 Panthéon-Sorbonne, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_7

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challenge for societies in the Caribbean basin.1 The region covers a vast maritime area which is highly divided both legally and politically, being “fragmented” (Maillard, 1999) into forty-five states or territories and containing ninety-eight territorial boundaries or delimitations (see Fig. 7.1).2 As a result, this maritime region is by far the most fragmented in the world (State Department, 1990). The extreme legal and political fragmentation within this web of contiguous spaces under the sovereignty of different actors generates numerous discontinuities and threshold effects (Domergue, 2020). Moreover, the degree of sovereignty of states at sea is inversely proportional to the distance from the coast: according to the rules established by the Montego Bay Convention, the further away from the baseline established by the coastline, the less legal capacity states have to intervene at sea. We define sovereignty as a state’s legitimate, inalienable, and impersonal exercise of domination over a territory (Weber et al., 1995). This fragmentation itself is a source of vulnerability which those involved in maritime security are trying to overcome. Maritime security is defined as the objective, on the part of an actor or group of actors, to remove or at least reduce any risks and threats that directly or indirectly threaten maritime interests, and/or that may be generated, vectorised, or concentrated by the maritime space itself. Once this is achieved, maritime security can be thought of as a state in which the integrity of maritime interests is preserved (Domergue, 2020). This chapter combines approaches from political science and geography to examine the integration processes implemented by maritime security actors in this area. How does this interdisciplinary approach offer a new perspective on discussions about sovereignty, insecurity, and regional integration in maritime spaces? This study, which is based on an empirical and inductive research protocol, has two stages. The first covers the entire Wider Caribbean Region, and is based on nine field observations and ninety-eight interviews with public and private sector 1 Interviews with the US Coast Guard, 2021, Javier Guerrero, Innovation in the War on Drugs: Narcosubs, The Maritime Executive, published June 19, 2018, https://www. maritime-executive.com/editorials/innovation-in-the-war-on-drugs-narcosubs. 2 As the term is used in the State Department report cited below, the term “delimitation” applies to theoretical administrative limits which are not yet recognised by all parties. These include, for instance, some proposals to extend the boundaries of the continental shelf. Forty-two of these boundaries and delimitations are set by international treaties, and six are under arbitration—in other words, only 48.9% of the total.

Fig. 7.1 Maritime boundaries in the Caribbean (Sylvain Domergue, 2023)

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maritime administrations, ministries, embassies, and military headquarters in Central America, the Caribbean, South America, North America, and Western Europe between 2018 and 2021. The second focuses specifically on the coastal maritime area of the Guiana Shield (Venezuela, Guyana, Suriname, French Guiana, and northern Brazil), based on several dozen interviews with high-level military authorities, ambassadors, academics, and maritime professionals from these states between 2022 and 2023. By using the combined approaches of political science and geography, we highlight how these maritime security issues encourage the transfer of particular sovereign capacities from the national to the regional level through the development of institutionalised cooperation mechanisms. These dynamics gradually spur the emergence of a “community of practice” (Adler & Barnett, 1998; Wenger, 1998), but this remains limited, uneven, and subject to “spill-back” effects (Haas, 1958) as particular state actors opt to withdraw.

The Increasing Maritimisation of Crime in the Inter-American Region The fight against drug trafficking has been the main security challenge in the western hemisphere for almost half a century, fuelling violence and political and social instability. Starting in the 1970s, powerful cartels emerged in response to high demand from North America, beginning with the Medellin Cartel in 1976, leading to significant transnational flows from south to north. Regional history, culture, and above all favourable geographic conditions make the Andean region the world’s only global producer of coca leaves, which are used to make cocaine and account for the majority of drug trafficking in the inter-American region.3 Mexico remains the primary producer of cannabis (derived from hemp) and heroin (derived from opium) on the continent. As illustrated by data from the United Nations Office on Drugs and Crime (UNODC), the volumes of trafficked drugs are large and almost constantly rising. In 2016,4 2,700 tons of drugs were intercepted in the inter-American 3 The majority is produced in three countries: Colombia, which makes 70–80% of the total, Peru, and Bolivia. Colombian production is growing rapidly, with UNODC reporting a 44% increase in surface area cultivated and a 14% increase in cocaine production in 2022. 4 This is the date for which the most recent combined statistics are available.

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region, rising to 4,000 tons if we include seizures on US soil. Of this, cannabis accounted for 50.8%, cocaine for 45.5%, opioids for 0.3%, and other drugs 3%. For cocaine alone, the UNODC (2019) estimates production at around 1,976 tons per year, showing a constant and rapid increase (+25% compared to 2016, +222% compared to 2008). The revenue generated by such trafficking is difficult to estimate at the continental scale, but the RAND Corporation places the figure at more than $150 billion for the US market alone,5 with significant margins for the traffickers and armed groups involved.6 As many authors have pointed out (Cruse, 2009; Deler, 2000; Deler et al., 2003; Piro, 1998) such trafficking increases the region’s integration into the global economy, generating transcontinental outflows on a global scale and financial inflows which are generally laundered in the tax havens that dot the greater Caribbean (Cruse, 2009). The unique geographical situation of the Caribbean basin and changes in major international trafficking have placed maritime areas at the heart of the issue. Beginning in the 1980s, security questions have rapidly maritimised. Logistics play an essential role: an increased volume of drugs gradually encourages faster vessels with greater capacity for deliveries to the North American market (Morris, 2016). Exploiting the greater capacity of ocean-going vessels, and above all the limited naval capabilities of states in the region, drug traffickers have developed powerful transnational networks that force us to ask whether the national level is the correct one for combating these destabilising activities. As a result of multiple factors, these flows have been reorganised into hybrid routes dominated by maritime segments. The kinematics and hierarchy of the routes and methods used are constantly evolving, a mark of the cartels’ remarkable adaptability. As the security chief of a major shipping company said in July 2021, “drug traffickers are pure products of globalisation, adapting constantly and totally fluidly to the opportunities and constraints it generates.” As a symbol of this adaptability, several Colombian cartels have been using submarines or semi-submersibles since the 1990s to increase their capacity and range (Eudeline, 2015).

5 “Americans’ Spending on Illicit Drugs Nears $150 Billion Annually; Appears to Rival What Is Spent on Alcohol”, Rand Corporation, 2019, https://www.rand.org/news/ press/2019/08/20.html. 6 Interview, Bridgetown, March 2019.

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The maritime dimension of the drug trade has continued to increase over the past twenty years, with data from participant observations and interviews showing that 90–93% of trafficking in the inter-American region now occurs by sea. The sea has become a crossroads (see Fig. 7.2), the geographical foundation of the “anti-world”—that is, the “informal, illegal, and unregulated spaces” (Cruse, 2009, 674; State Department, 1990) which Roger Brunet called a “part of the world that is poorly understood and wants to remain so” (Brunet et al., 1993, 35). Using the tools of geography like field investigations and quantitative data mapping, we can explain the regionalisation of this phenomenon, which is gradually bringing every part of the Caribbean basin into a “community of destiny” regarding these security issues (Domergue, 2020). Different parts of the region are affected by maritime security issues beyond drug trafficking. Illegal maritime migration remains relatively limited, localised to areas like the Straits of Florida and the waters around Santo Domingo and Puerto Rico. While piracy is not a major concern in the region compared to Southeast Asia or West Africa, Latin America and the Caribbean are the world’s second-largest hotspot for armed theft, which is particularly prevalent in the Caribbean. While uncommon,

Fig. 7.2 Summary of the dynamics of maritime drug trafficking in the interAmerican region (Sylvain Domergue, 2023. Note Light orange: maritime areas where drug trafficking is increasing. Bright orange: area of highest trafficking, as recorded by military authorities in the inter-American region. Orange arrows: land and sea routes for trafficking outside the region)

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maritime terrorism remains a concern for regional actors due to the importance of the cruise industry in the region, which remains the world’s top cruise destination. Literature and interviews also make clear that illegal, unreported, and unregulated (IUU) fishing is a major security issue. This occurs in several areas, particularly off the Guiana Shield (Guyana, Suriname, French Guiana, Brazil) and the coasts of Ecuador and Panama. Illegal fishing causes direct security issues, including clashes between fishermen of different nationalities in the Caribbean, and the arrest of Guyanese fishermen by Venezuela in January 2021. Moreover, economic and environmental risks arise when illegal fishermen ignore quotas and use environmentally harmful practices, destroying the seabed, disrupting breeding seasons, and fishing in marine preserves. Based on field observations since 2018 and testimonies from longstanding security actors in the region, the trend is towards the hybridisation of maritime threats. This latent, multifaceted insecurity is exacerbated by its transnational, regionalised nature, and considerably complicates the actions of states in their sovereign waters. As Professor Robin Mahon of the University of the West Indies pointed out in an interview conducted as part of this study, “this hybridisation and the networked, trans-border nature of maritime threats are unfortunately now widespread, causing instability and acting as a real obstacle to the development of certain economic sectors for states in the region.”7

A Shared Perception of Threats and the Construction of Communities of Actors The inter-American region has numerous common characteristics—above all, a high concentration of illicit activities in its maritime spaces. The scientific literature as well as the experts and researchers we met during fieldwork are unanimous on this point, with the British researcher Ben Bowling has even calling it a “territory of the sea” (Bowling, 2010). The region is distinguished from the global ocean around it by the importance of the sea, as demonstrated by the strength, concentration, density, and degree of interaction of various flows. Despite significant sub-regional variation, the geography of flows and illicit activities across the space

7 Op. cit. See footnote 5.

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enable us to identify a maritime region, however vague, characterised by a relative community of situation. Political science can contribute much to this work. The constructivist approach, for example, uses discourse analysis to study how a community of actors is socially constructed around issues they perceive as shared (Buzan, 1983, 1997; Wæver, 1993). The construction of a given subject as a security issue—that is, “securitisation”—is easy to see in the interAmerican region. In 1971, Richard Nixon’s declaration of the “war on drugs” led to new strategies to combat international trade in the illegal goods which were flooding North America (Bruske, 2008; Morris, 2016). In April 1986, Presidential Directive NSDD 221 designated drug trafficking as a threat to the US national security (Ordonez Martinez, 2018; Walther, 2012). Under pressure from the Reagan administration, Mexico’s Plan Global de Desarollo for 1980–1982 also made the fight against drug trafficking a national security issue. Gradually, the same priority was adopted by most Latin American states over the 1980s and 1990s. Since the 2010s, illegal fishing off the coasts of Central America, the Caribbean, and the Guiana Shield has also been increasingly securitised by local authorities. The political fragmentation of the space was quickly and clearly identified as a main source of vulnerability to these threats. At the regional level, a senior official of CARICOM IMPACS emphasised the need to “develop networks to fight networks,” prioritising geographic proximity.8 As early as the 1950s, following the collapse of the West Indies Federation and decolonisation, states in the former British West Indies recognised that police and military cooperation and training across the Caribbean had “fragmented and atomised” (Bowling, 2010), resulting in a significant deterioration of local forces’ capabilities. In addition to these states’ modest naval capacities, the archipelagic nature of the Caribbean and the small size of many maritime jurisdictions, particularly in the Eastern Caribbean and Central America, limit the effectiveness of security measures taken by regional actors. As a result, politicians, military leaders, and civilian experts have all called for efforts to defragment and even share sovereignty, particularly over maritime territories, as a crucial step in the fight against insecurity in the region (Bishop, 2002; Bowling, 2010; Griffith, 1995, 2004; Henke, 1998; Knight & Persaud, 2001; Tulchin & Espach, 2000).

8 Op. cit. See footnote 5.

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Between the late 1970s and the early 1980s this dynamic began to reverse, and initiatives emerged which aimed to increase cooperation and pool resources between states. Under the impetus of the United States and Europe and in collaboration with states in the region and international institutions like UNODC, a security regionalism has gradually emerged, leading to the construction of a regional security cooperation architecture. This initiative is reflected in increased regional integration (Mareï & Richard, 2018), understood in political-scientific terms as the construction of supra-national institutional mechanisms (Brichambaut et al., 2002; Haas, 1958; Hoffmann, 1966; Mitrany, 1943; Moravcsik, 1993). This dynamic has led to the emergence of joint forums for exchange and supra-regional operational reflection, such as the Joint Interagency Task Force South (1989) under the leadership of the United States Southern Command (SOUTHCOM), and specialised regional and sub-regional political dialogue forums, such as the Central American Security Conference (CENTSEC, 2011), Caribbean Nations Security Conference (CANSEC, 2012) and Caribbean Security Conference (CABSEC, 2013). At the global level, UNODC implemented the Global Maritime Crime Programme in 2010. The Caribbean Forum on Maritime Crime (CFMC), one regional offshoot of this programme and the most recent of five such initiatives globally, was founded in 2015 on the model of Indian Ocean Forum on Maritime Crime (IOFMC). These mechanisms, whether promoted by States or intergovernmental organisations, typically aim to provide a framework for technical and political coordination in fighting maritime crime, including drug trafficking, smuggling, illegal migration, illegal fishing, and industrial waste dumping. They provide assistance for maintaining police and maritime affairs vessels, training, initiative sharing, improving cooperation networks, overcoming national differences, and politically and legally defragmenting the Caribbean region. Alongside these regionalisms are initiatives by Caribbean and Central American states. The Caribbean small states (Domergue, 2021) use institutionalised cooperation mechanisms to pool maritime intelligence and surveillance resources, and for operational coordination. In the Caribbean, such systems are quite advanced, including the Regional Security System (1983) and CARICOM’s internal security mechanisms. By contrast, they remain underdeveloped in Central America.

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Developing Common Practices and Strengthening Regional Integration Processes The tools of geography enrich our understanding of regional integration in response to security issues, and complement political science approaches, which primarily view integration as a matter of creating supranational institutions. By contrast, geography studies the development of political practices at the regional level (Escudé-Joffres, 2020; Mareï & Richard, 2018; Neumann, 1994; Paasi, 1991). Examining the reality of these practices through fieldwork, we confirm that there has been convergence in the adoption of common norms, measures, and protocols, in the sharing of certain resources and infrastructure, and in the delegation of certain competencies to governance mechanisms at the sub-regional or regional level. These practices result in a partial defragmentation of the maritime territorial network, reducing discontinuities by sharing the security governance of particular territories. Given the urgent need to accelerate maritime cooperation and simplify cross-border pursuit and intervention procedures, the United States and several small states in the region put in place a bundle of bilateral agreements as early as 1996. These aim to bypass major obstacles involving the territorial sovereignty (Bellayer-Roille, 2014). They are made up of several types of agreement. Firstly, “Shiprider Agreements” authorise US vessels to patrol the territorial waters of another state with an agent from that state on board. The United States has signed such agreements with the Bahamas, Haiti, Jamaica, the Dominican Republic, Barbados, the Netherlands Antilles, Grenada, the British Virgin Islands, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, Belize, Costa Rica, Panama, Suriname, and Guyana. Secondly, “Hot Pursuit Agreements” allow a US vessel to pursue a suspect vessel in the territorial waters of a signatory state without an agent from that state on board. The United States has signed such agreements with Haiti, Jamaica, the Dominican Republic, Antigua and Barbuda, Barbados, the Netherlands Antilles, Grenada, the British Virgin Islands, Saint Lucia, Trinidad and Tobago, Belize, Costa Rica, Panama, Suriname, and Venezuela. Finally, “Entry to Investigate Agreements” authorise patrols in the territorial waters of signatory states without an agent from that state on board. Such agreements have been signed with Haiti, the Dominican Republic, Antigua and Barbuda, the Netherlands Antilles, Saint Lucia, Barbados, Belize, Grenada, and Saint Vincent and the Grenadines. These US

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regionalisms are often complemented by other, more in-depth bilateral cooperation agreements, like the Salas-Becker Agreement between the US and Panama, signed in February 2002 and strengthened by an addendum in May 2004, which gives the US Coast Guard and Navy the right to board any Panamanian-flagged vessel in national and international waters during missions to combat drug trafficking, weapons of mass destruction, or terrorism. Alongside this tangle of bilateral agreements and the development of a multi-level institutional security architecture, there exist multilateral agreements to facilitate intelligence sharing, standardise practices, and facilitate interceptions by improving resource coordination between states and legally defragmenting the region. The Treaty of San José, also called the Aruba Agreement or the Caribbean Regional Maritime Agreement (CRA), came into effect in 2008, and is an important step towards the defragmentation of the regional maritime space (see Fig. 7.3). It improves existing bilateral collaborative tools by allowing accelerated procedures for authorising entry into territorial waters, ports, and airports for vessels, aircraft, and agents of other parties, improved coordination between law enforcement services, and increased training cooperation.

Fig. 7.3 Geographic representation of the Treaty of San José (Sylvain Domergue, 2023. Sources OAS, 2018, FAA, 2019, State Department, 2020, fieldwork [2017–2021])

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Through these agreements, signatory states have taken step towards partially sharing sovereignty of their maritime territories, theoretically facilitating actions by partners in their own waters. Cooperation agreements form the legal basis for organisations like the RSS, and help to reduce differences between territories under the sovereignty of different states by formalising privileged relationships between states. Security exchanges, including joint exercises—for example, the annual Tradewinds exercise conducted by the United States—officer exchanges, coordination, training, and feedback are more intense and encourage the adoption of shared operational languages, norms, procedures, and legal protocols. They thereby make it easier for regional administrations to share information and investigations, to transfer drug traffickers, maritime criminals, and illegal fishermen for prosecution, and to dismantle transnational networks (see Fig. 7.4). Based on these findings, we approach regional integration from a constructivist perspective, as a process of strengthening ties and reducing differences between contiguous territorial units (see Fig. 7.5). From a maritime security perspective, this is expressed particularly through a reduction in border effects (Mareï & Richard, 2020) as a result of increased interactions between actors. A border or barrier effect is typically understood in geography as a break between two distinct territories,

Fig. 7.4 Theoretical representation of regional maritime crime cooperation protocols in the Caribbean (Sylvain Domergue, 2023)

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networks, or systems. In security matters, this is reflected in a lack of flows or interactions (for example, lack of data or feedback exchange) and in incompatibilities between systems of practices, norms, and procedures (for example, lack of judicial cooperation agreements, different intervention protocols). A qualitative and quantitative increase in security cooperation reduces differences between territorial units to varying degrees.

A Fall in Border Effects Remains Limited and Vulnerable to Non-Cooperation While this integrative dynamic reduces border effects by mitigating spatial discontinuities between the territories and actors involved, in reality it is unevenly implemented. The question of states’ sovereignty over their maritime areas remains sensitive, as Ivelaw Griffith anticipated in his 1997 book, Drugs and Security in the Caribbean: Sovereignty Under Siege (Griffith, 1997). At the regional scale there are still numerous examples of inconsistency in information sharing, resource coordination, and the transfer of competencies and rights regard trans-border actions. The intensity and durability of security interactions among coastal actors depend on various determinants, including developmental inequalities, political will, constraints imposed by distance, and the capacities of states in the region. Based on our results, we identify three main factors which limit the regional integration of maritime security in this area. There remain significant internal operational dysfunctions in even the most advanced cooperation mechanisms. For instance, exchanges between actors in the JIATF-S remain unequal and above all highly asymmetric: while American, British, French, Dutch, and Colombian actors interact intensively, participating Caribbean and Central American states play a very secondary role in the decision-making process, mainly due to their limited operational capacities. With the exception of Trinidad and Tobago, the small island states in the Lesser Antilles do not have the material or human resources to appoint a permanent liaison officer. Finally, although the main objective of the JIATF-S is to facilitate coordination of anti-trafficking actions among naval forces in the region, such forces are still above all sovereign tools, and regularly perform missions that do not require or allow for information sharing. As we observed during fieldwork, these regional/national divergences can cause dysfunction. In 2019, a European and a US frigate met in the northern Lesser Antilles without either being previously informed of the other’s presence.

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Fig. 7.5 The reduction of border effects through the development of regional integration in maritime security (Sylvain Domergue, 2023)

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The “national sovereignty” focus of their missions led to an absence of communication, creating an operational conflict and compromising both ships’ objectives. We observed similar situations in the course of research in the southern Lesser Antilles, during an international anti-trafficking operation. Poor coordination between the parties involved and a Trinidadian Coast Guard ship patrolling its own EEZ led the target, a group of “go-fasts,” to change their route, complicating the plan. In interviews with representatives of most of the security forces in the region, the constraints imposed by distance were often mentioned. As the commander of a French Naval frigate pointed out, it takes between four and six days at sea to cross the entire Caribbean Basin—even longer if the ship is originally deployed on the Pacific coast and has to go through the Panama Canal. The naval capabilities of most states in the region do not easily allow for such journeys. For reasons of manpower and finance, when participating in the joint training and exercises regularly carried out across the region, these states prefer to use individual agents rather than to systematically deploy ships. However, as Colette Ranely Vergé-Depré and Patrice Roth have shown, point-to-point air connections are uneven in the Caribbean, centring on a small number of hubs, notably Miami and Panama (Ranély Vergé-Depré & Roth, 2017). As a result, exchanges of officers or officials between islands or between South America and certain Central American countries are very difficult. Testimonies collected during fieldwork and activity reports from regional and sub-regional organisations emphasise the difficulty of making such trips regularly. But geographic distance and differences in development are not always the decisive factors which inhibit regional security integration. Failures in regional integration processes derive largely from political motives. Political tensions between the United States, Venezuela, and Cuba hamper the implementation of particular cooperation mechanisms. For instance, Cuba and Venezuela do not participate in most regional anti-trafficking coordination mechanisms. In some cases the lack of participation is imposed by the United States, which since 1962 has excluded Havana from the OAS and associated security organisations like the Inter-American Defence Board (IADB). It can also be voluntary, as with the Venezuelan and Cuban refusal to participate in CABSEC and SAMSEC. Similarly, multi- and bilateral accords like the Shiprider Agreements can be blocked if a state does not make an agent available when a foreign ship wishes to carry out patrols in its waters. Since the establishment of the Bolivarian regime, Venezuela has stopped implementing

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the Shiprider Agreement it signed with the United States in the late 1990s. These bilateral agreements have sparked numerous debates, as François Taglioni noted in 1998: “This new direction in American policy is controversial, as the United States sometimes violates these agreements and interferes reasons that go beyond the drug trade” (Taglioni, 1998, 14). The first series of Shiprider Agreements, signed in 1995, did not grant Caribbean countries reciprocity. In theory, American officers who exceeded their mandates had total immunity. Jamaica, Barbados, and Trinidad and Tobago, in particular, had significant reservations about the proposal of the United States, and refused to sign. In 1996, an editorial in the Barbados Advocates described the Shiprider Agreements as an “obscene and cowardly assault” on the integrity of Caribbean nations, with the pursuit of American national interests being “disguised as a generous and unselfish offer of assistance to states unable to help themselves.” In 1997, Shridath Ramphal, a Guyanese politician and former Secretary-General of the Commonwealth, said that with these agreements the United States was proposing to “turn back the clock of history and take away from the West Indies the right to determine the nature of our engagement with the rest of the world” (cited in Watson, 2003), and described the proposals as “recolonisation.” The situation generated misunderstandings and political tensions with the United States, which viewed the recalcitrance of Jamaica and Barbados, in particular, to sign the agreement as “a lack of appreciation of the drug problem, even for their own countries” (Henke, 1998, 27–28). The controversy ended in May 1997 with the signing of the Bridgetown Declaration by President Clinton and the leaders of the Caribbean states, opening the possibility that the agreements could be rewritten to offer more reciprocity— including authorisation for Caribbean forces to enter and operate in US territorial waters (Bowling, 2010). In practice, these agreements seem not to have given rise to significant diplomatic incidents, and no longer appear to generate major political debates in the inter-American region, except in Venezuela and Cuba. On the contrary, some fragile states now see them as a guarantee of security against troublesome neighbours, and a way of overcoming their own security forces’ profound deficiencies in the face of transnational threats. The latest illustration of this is the finalisation of a Shiprider-type cooperation agreement between Guyana and the United States in January 2021, shortly after the Venezuelan President Nicolas Maduro declared his intention to “reconquer” the terrestrial and maritime territory of Essequibo. These defragmentation agreements are evidence

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that the extent of regional cooperation can vary greatly, and consequently that, in terms of maritime security, the inter-American region is not yet fully integrated, with nations still sometimes reflexively reasserting their sovereignty. ∗ ∗ ∗ By approaching the concept of regional integration from a transdisciplinary perspective, drawing on the theories, tools, and methods of both political science and geography, we gain a multifaceted understanding of the subject. This combined approach shows that, given the distinctive character of maritime spaces and the transnational nature of threats within them, approaches to security should move beyond the national level by partially transferring sovereignty and/or pooling sovereign defence capabilities to build cooperative frameworks at the sub-regional or regional level. These dynamics reinforce regional integration processes by gradually reducing discontinuities between contiguous territorial units. But the region still suffers from numerous border effects, including persistent legal and administrative constraints, different approaches to prioritising particular risks, and shortfalls in the regularity and effectiveness of operational exchanges. In an interview for this study, a European senior officer in charge of defence in the region said that: The discourse of states in the region, particularly the smaller ones, is strongly proactive about creating more synergies and security integration. They often say such things in international settings. But when it comes to putting these ideas into practice, our counterparts often instinctively withdraw—in other words, they resort to the mindset that ”this is my island”, which often sums up the attitude of local authorities when we try to implement concrete cooperation actions.

The instinct to sovereignty remains strong, and territorial control over vast maritime spaces is increasingly important in the geopolitical representation of societies and states worldwide. As a result, transferring or sharing sovereignty remains a sensitive question, even when dealing with shared problems.

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References Adler, E., & Barnett, M. (Eds.). (1998). Security communities. Cambridge University Press. Bellayer-Roille, A. (2014). Entre souveraineté et transnationalité, les défis du droit de la mer. Revue Internationale Et Stratégique, 95(3), 111–119. https:/ /doi.org/10.3917/ris.095.0111 Bishop, C. W. (2002). Caribbean regional security: The challenges to creating formal military relationships in the English-speaking Caribbean. Thesis presented to the Faculty of the U.S. Army Command and General Staff College in partial fulfillment of the requirements for the degree. Fort Leavenworth, Kansas. Bowling, B. (2010). Policing the Caribbean: Transnational security cooperation in practice. Oxford University Press. Brunet, R., Théry, H., & Ferras, R. (1993). Les mots de la géographie : dictionnaire critique. RECLUS, La Documentation française. Bruske, J. S. (2008). The war on drugs—America’s other war. Naval War College Newport RI, Joint Military Operations Dept. https://apps.dtic.mil/sti/citati ons/ADA484455 Buzan, B. (1983). People, states and fear; the national security problem in international relation. The University of North Carolina Press. http://digilib.fis ipol.ugm.ac.id/handle/15717717/12454 Buzan, B. (1997). Security: A new framework for analysis. Lynne Rienner Publishers Inc. Cruse, R. (2009). L’Antimonde caribéen, entre les Amériques et le Monde. Thèse de doctorat, Université d’Artois. https://www.theses.fr/2009ARTO0005 de Brichambaut, M. P., Dobelle, J.-F., & d’Haussy, M.-R. (2002). Leçons de droit international public. Les Presses de Sciences Po. Deler, J.-P. (2000). Sur l’Amérique latine, miroir de la mondialisation. Les Cahiers D’outre-Mer, 53(212), 305–316. https://doi.org/10.3406/caoum. 2000.3780 Deler, J. P., Dollfus, O., & Godard, H. (2003). Le bassin caraïbe: interface et relais entre production et consommation de drogues. Mappemonde, 72, 16–20. Domergue, S. (2020). La construction des échelles de la sécurité maritime dans un contexte d’intégration régionale : le cas de la grande région Caraïbes et ses façades Atlantique et Pacifique. Cybergeo: European Journal of Geography. https://doi.org/10.4000/cybergeo.35486 Domergue, S. (2021). Le régionalisme sécuritaire maritime des petits et microEtats de la grande région caraïbe : entre vulnérabilités, autonomisation, et dépendances. Belgeo. Revue belge de géographie, 1. https://doi.org/10.4000/ belgeo.46720

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Ducruet, C., & Notteboom, T. (2012). The worldwide maritime network of container shipping: Spatial structure and regional dynamics. Global Networks, 12(3), 395–423. https://doi.org/10.1111/j.1471-0374.2011.00355.x Escudé-Joffres, C. (2020). Coopération politique et intégration régionale en Arctique : naissance, développement et critique d’une région. Belgeo. Revue belge de géographie, 4. https://doi.org/10.4000/belgeo.43757 Eudeline, H. (2015). Sous-marins et semi-submersibles des trafiquants de drogue en Colombie. Outre-Terre, 43, 119–136. https://doi.org/10.3917/oute1. 043.0119 Griffith, I. L. (1995). Caribbean security: Retrospect and prospect. Latin American Research Review, 30(2), 3–32. Griffith, I. L. (2004). Understanding Caribbean security: Back to basics and building blocks. Social and Economic Studies, 53(1), 1–33. Griffith, I. L. (1997). Drugs and security in the Caribbean: Sovereignty under siege. Pennsylvania State University Press. Griffith, I. L. (2003). Security and sovereignty in the contemporary Caribbean : probing elements of the local-global nexus. In C. Barrow-Giles & D. Marshall (Eds.), Living at the borderlines: Issues in Caribbean sovereignty and development (pp. 209–225). Ian Randle Publishers. Haas, E. B. (1958). The challenge of regionalism. International Organization, 12(4), 440–458. https://doi.org/10.1017/S0020818300031349 Henke, H. W. (1998). Drugs in the Caribbean: The “shiprider” controversy and the question of sovereignty. European Review of Latin American and Caribbean Studies / Revista Europea De Estudios Latinoamericanos y Del Caribe, 64, 27–47. Hoffmann, S. (1966). Obstinate or obsolete? The fate of the nation-state and the case of Western Europe. Daedalus, 95(3), 862–915. Knight, W. A., & Persaud, R. B. (2001). Subsidiarity, regional governance, and Caribbean security. Latin American Politics and Society, 43(1), 29–56. https:/ /doi.org/10.1111/j.1548-2456.2001.tb00169.x Maillard, J.-C. (1999). Musset Alain, L’Amérique centrale et les Antilles, une approche géographique, 1998. Les Cahiers D’outre-Mer, 52(206), 222–224. Mareï, N., & Richard, Y. (2018). Dictionnaire de la régionalisation du monde. Atlande. Mareï, N., & Richard, Y. (2020). Global regionalization processes and (macro)regional integration. In favor of generalization in geography. Belgeo. Revue belge de géographie, 4. https://doi.org/10.4000/belgeo.43451. McCalla, R., Slack, B., & Comtois, C. (2005). The Caribbean basin: Adjusting to global trends in containerization. Maritime Policy & Management, 32(3), 245–261. https://doi.org/10.1080/03088830500139729 Mitrany, D. (1943). A working peace system. Royal Institute of International Affairs.

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Moravcsik, A. (1993). Preferences and power in the European Community: A liberal intergovernmentalist approach. Journal of Common Market Studies, 31(4), 473–524. https://doi.org/10.1111/j.1468-5965.1993.tb00477.x Morris, M. A. (2016). Caribbean maritime security. Springer. Neumann, I. B. (1994). A region-building approach to Northern Europe. Review of International Studies, 20(1), 53–74. Ordonez Martinez, G. E. (2018). Les Guerres Contre La Drogue. Armées, Sécurité Intérieure et Narcotrafic En Amérique Latine. Consulted on July 4th 2022. https://www.ifri.org/en/publications/etudes-de-lifri/focus-strate gique/guerres-contre-drogue-armees-securite-interieure Paasi, A. (1991). Deconstructing regions: Notes on the scales of spatial life. Environment and Planning a: Economy and Space, 23(2), 239–256. https:// doi.org/10.1068/a230239 Piro, P. (1998). Drogue: les fruits amers de la mondialisation. ECLM. Ranély Vergé-Dépré, C., & Roth, P. (2017). L’avion, facteur d’unification du Bassin caraïbe ? Mappemonde, 120. https://doi.org/10.4000/mappemonde. 2759 State Department. (1990). Limits in the seas: Maritime boundaries of the world. Bureau of Oceans and International Environmental and Scientific Affairs. Taglioni, F. (1998). Les revendications frontalières maritimes dans le bassin caraïbe: état des lieux et perspectives. Norois, 180(1), 617–630. https://doi. org/10.3406/noroi.1998.6902 Tulchin, J. S., & Espach, R. H. (2000). Security in the Caribbean Basin: The challenge of regional cooperation. Woodrow Wilson Center Current Studies on Latin America. Lynne Rienner Publishers. Walther, M. F. (2012). Insanity: Four decades of U.S. counterdrug strategy. Strategic Studies Institute, U.S. Army War College. Weber, M., Freund, J., Kamnitzer, P., Bertrand, P., Chavy, J., & de Dampierre, E. (1995). Économie et société. Pocket. Wenger, E. (1998). Communities of practice: Learning, meaning, and identity. Communities of practice: Learning, meaning, and identity. Cambridge University Press. https://doi.org/10.1017/CBO9780511803932 Wæver, O. (1989). Conflicts of vision: Visions of conflict. In O. Wæver, P. Lemaitre, & E. Tromer (Eds.), European polyphony: Perspectives beyond East-West confrontation (pp. 283–325). Palgrave Macmillan. Wæver, O. (1993). Securitization and desecuritization. Centre for Peace and Conflict Research. Watson, H. (2003). The “shiprider solution” and Post-Cold War imperialism: Beyond ontologies of state sovereignty in the Caribbean. In C. BarrowGiles & D. G. Marshal (Eds.), Living at the borderlines: Issues in Caribbean sovereignty and development (pp. 226–274). Ian Randle Publishers.

CHAPTER 8

When the “War on Terror” Undermines the Sovereignty of Fragile, Failing and Failed States Mélanie Dubuy

The fight against terrorism in the post-11 September 2001 period has challenged the classic models of interstate conflict constructed by international law and has therefore brought a change of paradigm (Chinkin & Kaldor, 2017, 3). A state can now be in conflict with a non-state group whose attacks are of such intensity that they may be equivalent to a state act of armed aggression and trigger a self-defence response (Stahn, 2003; Trapp, 2015).1 Especially after 2001, states have been divided with regard to the possibility of invoking self-defence against a terrorist threat of armed attack. With the “Bush doctrine” and even after (O’Meara, 1 The exercise of self-defence is embedded in article 51 of the Charter of the United Nations and customary law that belong to the rules of the jus ad bellum, for a general overview, see Kolb 2019, 375 ff.; Corten 2021, 401 ff.

M. Dubuy (B) Public International Law, Université de Lorraine, Faculté de Droit, IRENEE, Nancy, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_8

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2022, 284 and 335; Kattan, 2018; Wood, 2020), the United States was defending the possibility of invoking preventive self-defence, i.e. against a threat that was certain but not imminent, defending a new conception of imminence that would not be deemed in a chronological way but in a contextual one, encompassing the gravity of the threat and the capability of the terrorist groups. Such right has been largely rejected by most of the states (Henderson, 2018, 285–296; Gray, 2018, 248–261; Corten, 2021, 403–435; Kolb, 2019, 385 ff). If states have also been divided with regard to the possibility of invoking the right of self-defence against terrorist groups, in contrast with the classical conception in a state-tostate reaction, some of them estimate that terrorist groups can perpetrate armed attack triggering a riposte in self-defence (Arrocha Olabuenaga, 2019; Henderson, 2018, 210, 320; Gray, 2018, 238–240). For instance, France accepts the principle of anticipatory self-defence against an imminent threat (Schmitt, 2019),2 or a terrorist group whose action is not attributable to a state in exceptional circumstances, when this group had the characteristics of “quasi state”, for example in 2015 with the intervention in Syria against the Islamic State in Iraq and Syria (ISIS, Haque, 2021). Structured like a state, with ministries and powers resembling sovereign state prerogatives (levying taxes, minting currency), ISIS has asserted its territorial claims even if it was not considered as a state in the legal sense of international law because notably of the ineffectiveness of its territorial control and the fact that the scope of application of the governmental powers was uncertain and not stable (Longobardo, 2017, speaking of “a group of insurgents with a territorial basis”). The ISIS state model, a Caliphate without frontiers, was innovative in comparison with Al Qaeda’s one whose aim was practising a global jihadism.

2 There are different types of self-defence which interpretations divide academic debates. For “restrictionists”, self-defence is only acceptable in positive international law if an armed attack is consumed; while for “expansionists”, self-defence can be activated against a threat of armed attack. Henderson speaks about “preventative self-defence as an umbrella term” to encompass all types of self-defence that are not reactive, i.e. that “prevent the physical manifestation of an armed attack from occurring” (Henderson, 2018, 275). These different perceptions and justifications of self-defence can lead to misinterpretations. “Anticipatory” self-defence corresponds to the right of self-defence against a threat of armed attack that is imminent; while “preventive” self-defence corresponds to a riposte in self-defence against a future threat without certainty as regards the occurrence of the attack. For further precisions, defining anticipatory, pre-emptive and preventive selfdefence and describing the use of force, see Deeks, 2017, 662.

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After the 9/11 attacks, the use of the expression “war on terror” (on the relevance of the concept, see O’Connell, 2005, 2012)3 became widespread. Originally intended as an attention-grabbing symbolic slogan, the term is no longer seen as controversial today and is readily used by heads of state (Hollande, 2015).4 However, the term “war” has not been used in international law since it was replaced by the term “armed conflict” in the twentieth century in the contexts of jus ad bellum and jus in bello. The belli gerandi potestas (the power to make war) has always been a manifestation of sovereign power (Dubuy, 2012). However, in the context of the “war” against terrorism, this classic mode of expressing sovereignty, the power to wage war, can impact sovereignty negatively. The sovereignty of states presenting signs of increased fragility has been severely tested in their efforts to drive out terrorist groups and thwart their attacks. The question of state fragility was originally assessed exclusively from an economic and humanitarian perspective, but is now also understood from a security point of view (Cahin, 2013, 2020; Mouton, 2012). Fragile states have been presented in security strategies as a global destabilising factor especially since the 9/11 attacks. This has been particularly the case with US security strategies5 (USA, 2017, 39),6 the United States Strategy to Prevent Conflict and Promote Stability 2020 (USA, 2020, 4),7 the Interim National Security Guidance (Quirk, 2021; USA, 2021) and

3 The global “war on terror” was led by the Bush and Obama administrations. Barack

Obama does no longer speak about “global war on terror” but about “a war against Al-Qaida and its affiliates” (Obama, 2009). 4 “What happened yesterday in Paris and Saint-Denis near the Stade de France is an

act of war and when faced with war, the country must take the appropriate decisions”. Unless otherwise indicated, all quotations from French sources have been translated into English. 5 National Security Strategy 2002, 2015 and National Security Strategy, 2017 under Trump. 6 “The United States will also assist fragile states to prevent threats to the U.S. homeland. Transnational threat organizations, such as jihadist terrorists and organized crime, often operate freely from fragile states and undermine sovereign governments. Failing states can destabilize entire regions”. 7 “We will give priority to strengthening states where state weaknesses or failure would magnify threats to the American homeland. For instance, engagement in Afghanistan seeks to prevent the re-emergence of terrorist safe havens”.

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the National security strategy (USA, 2022, 19). These documents insist on the political instability of fragile states and their porous borders to terrorist groups and criminal networks (Underhill, 2014, 54 ff; Pasagic, 2020; Puccetti, 2021). Failed states have therefore been classified as states of concern in the preservation of international peace and security on several grounds (Lax, 2012, 42). First, the fact that state’s institutions have collapsed and that corruption is rife in its territory means that terrorist groups can move in without fear of capture or reprisal. Second, a failed state territory allows terrorist groups to establish a base with access to the resources they need (organised crime, maritime piracy, arms trafficking, organisation of recruitment, etc.). Third, terrorist groups can hide behind the shield of state sovereignty, because neighbouring states will not want to cross the host state’s borders (Dunlap, 2004, 460). This concept of failed, failing and fragile state has been developed by political science commentators (Helman & Ratner, 1992; Newman, 2009; Verhoeven, 2009; Woodward, 2017; Englehart, 2017, 36 ff.) and then, much later, by international law commentators (Pustorino, 2010; Thürer, 1999). The failed state, a concept very much in vogue in the 1990s and 2000s, has been defined as the opposite of a state that fully exercises its control and authority. This dysfunction was first described by Rosa Brooks: “Successful states control defined territories and populations […] Failed states, their dark mirror image, lose control over the means of violence, and cannot create peace or stability for their populations or control their territories” (Brooks, 2005, 1160). The failed or failing (to varying degrees, therefore) state is thus defined negatively (Rotberg, 2002; Underhill, 2014, 19) in relation to an ideal type, the Weberian model, which is based on the idea of the state’s monopoly of legitimate violence within its territory (Weber, 1919, 2019, p. 136; Chan, 2013, 399; Newman, 2009, 427). This description corresponds to the constitutive elements of the state in public international law, i.e. the full exercise of sovereign powers over a defined territory and a population, a coercive political organisation that exercises legitimate violence and provides public services (Crawford, 2011). It also includes responsibilities to meet its population’s needs (Saeed, 2020, 770).8 A failed state is one that cannot provide economic growth for its population, the distribution of

8 Weber focused on the “monopoly of legitimate violence”, but this view has been judged inadequate (Englehart, 2017, 39). According to Englehart, the functional

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services or security within its territory.9 It is characterised by an extreme stage of failure in the exercise of its duties, while the fragile state is defined by a partial failure. Today, the labels “failed” and “failing” are generally replaced by the less stigmatising terms “situations of fragility” (France, 2018, for instance, 7 or 10), “states of fragility” (OECD, 2022) or “state fragility” (USIP, 2018a), with levels ranging from minor to severe. For more than fifteen years now, official reports of international organizations have been classifying states according to their fragility (World Bank, 2023; IMF, 2022; OECD, 2022; European Union (EU), 2015), think tanks such as the Fund for Peace. The classification framework is based on economic, social and political criteria, both endogenous (increase of civil wars or coups d’état) and exogenous (natural disasters and pandemics). It also takes into account multifactorial economic (unemployment), environmental (epidemics), political (corruption), security (organised crime) and societal (vertical and horizontal inequalities) factors (Fund for peace, 2022).10 In an empirical analysis, which is not that of public international law, fragile states only partially correspond to the Westphalian state model (Newman, 2009). The fight against terrorist groups may put into danger the cardinal protection of state sovereignty by international law that is compelled to take into account and react to the state incapacity or difficulty to exercise effectively its sovereignty inside its borders. The aim of this chapter is to show that a state’s inability to carry out its functions within its borders (internal aspect) raises questions about sovereignty in its external aspect, that is in its relations with other states, which are subject to international law and must therefore respect the principles of non-interference and of non-violation of its territorial integrity (article 2§4 of the Charter of the United Nations, Kolb, 2019; Corten, 2021). In public international law, approach, that of delivering services returns more to Durkheim’s thinking which encompasses the maintenance of order but also requires the furniture of a wide range of services. 9 Definitions vary. Some strategic reports use the lack of effective government control as the defining criterion of a failed state, some use the absence of a central government, and some use the inability of a state to meet certain obligations (Woolaver, 2014, 601; Bingham, 2014). 10 It uses the following criteria: cohesion indicators (security apparatus, organised crime, etc.), economic indicators (economic decline, brain drain, etc.), political indicators (public services, state legitimacy), social indicators (demographic pressure, external interventions).

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external and internal sovereignty are “two necessary sides of the same coin” (Besson, 2011, §29). State fragility, decline or failure, depending on the degree of weakening, is a pathology caused by a deficiency in the exercise of state authority (I). A weakening of state authority at the internal level leads to a weakening of respect for that state’s sovereignty at the external level, and a powerful victim state will be resolved to intervene by armed force on a weakened host state’s territory to drive out the terrorist group in question (II).

State Failure: A Deficiency in the Effective Exercise of State Sovereignty In the Weberian conception, the state holds the monopoly of legitimate physical violence within its territory (A). If it fails to ensure the material security of its population, a breakdown of trust ensues among that population (B). A. The state’s loss of monopoly on legitimate force A state loses control of the armed forces monopoly if it is challenged by a terrorist group settled on its territory. Its primary mission is nevertheless to provide security for its citizens. This is a quality of the state first noted by Rotberg: “The state’s prime function is to provide that political good of security—to prevent cross-border invasions and infiltrations, and any loss of territory; to eliminate domestic threats to or attacks upon the national order and social structure; to prevent crime and any related dangers to domestic human security; and to enable citizens to resolve their disputes with the state and with their fellow inhabitants without recourse to arms or other forms of physical coercion” (Rotberg, 2003, 3). State failure thus manifests first in the loss of the exercise of authority over parts of its territory. This was the case, for example, when ISIS took control of several cities in Syria (Raqqa – capital of the IS jihadists’ selfproclaimed caliphate, Palmyra, etc.) and Iraq (the provinces of Anbar, Ninewah, Salah Al-Din, Diyala). When a state loses its authority, it is unable to engage in the fight against a terrorist group. A concept has emerged to describe this incapacity called the “unwilling or unable state” (Starski, 2015; Martin, 2019; Gray, 2018, 247 ff.), which corresponds, respectively, to the hypothesis of a state that either does not have the

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political will to expel terrorist groups or is unable to (Mahmoudi, 2021). In this context, a state that has terrorist camps (sanctuaries) established on its territory is obliged to not only refrain from assisting such groups but also to exercise due diligence to ensure its territory is not used to harm other states (Trapp, 2020). This doctrine, consisting in considering that a failing state does not respect these obligations will expose its territorial integrity to a limited violation, is explicitly adopted notably by the United States (USA, 2016, 10),11 Australia, the United Kingdom, Turkey, Canada (Henderson, 2018, 332) but rejected by a large number of states (no express reference to this formula from Belgium or Germany, rejection from France, deep concern from Latin America States, Schmitt, 2019; Arrocha-Olabuenga, 2019, speaking of “scarce practice” about the invocation of this doctrine). When a state is no longer able to perform its primary functions, its legitimacy suffers a clear capitis deminutio.12 B. The loss of state legitimacy as a consequence of its inability to provide political goods and services A failing state is characterised by its inability to properly provide societal governance through service delivery and through ensuring the welfare of its population,13 which leads to a loss of legitimacy.14 As Rotberg observed, “nation-states fail because they are convulsed by internal violence and can no longer deliver positive political goods to their inhabitants. Their governments lose legitimacy, and the very nature of the particular nation-state itself becomes illegitimate in the eyes and in the

11 According to this doctrine, the United States considers that the negligence of a state that is unable or lacking the political will to drive out terrorist groups leaves the field open for victim states to act militarily on the basis of the right to self-defence and that, there is no need to obtain the consent of the host state to intervene (Gray 2018, 245). 12 In Roman law, capitis deminutio means the total or partial disappearance of a person’s status and legal capacity. 13 “State failure can be seen as a condition in which State is unable to provide political goods to its citizens and to the international community” (Giorgetti, 2010a, 473). 14 Legitimacy is another element in the definition of a failed state (Englehart, 2017,

40).

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hearts of a growing plurality of its citizens” (Rotberg, 2003, 1).15 Those states have to face significant economic difficulties and they suffer from a limited capacity to deal with multidimensional risks (economic, political, environmental…). For example, their infrastructure and transport systems are completely deteriorateby a lack of maintenance. Inflation soars, food insecurity is endemic, and civil servants’ pay is stopped so the continuity of public services is no longer ensured. In addition, wealth is not distributed equitably, citizens lose faith in the judicial system, and there is a lack of democratic debate and respect for the rule of law (talking about the difficulty of those states to implement the legal infrastructure with physical, social, financial infrastructures as well, see Sarkar (2020) by the state.16 The population then loses confidence in the state (Stewart & Brown, 2010, 6; Ezrow & Frantz, 2013, 20; Piazza, 2008, 470; USIP, 2018b). The state’s provision of resources covers a number of elements, including political participation, health and social protection, education, economic management, the rule of law and human security (Rotberg, 2003, 3–4). Failure affects the whole structure of the state. A failed state is unable to fulfil four types of responsibilities: create an environment for equitable and sustainable economic growth, construct legitimate, transparent, accountable political institutions, protect its population from violent conflict and control its territory and to meet the population’s basic human needs (Patrick & Rice, 2008, 3). This implies a graduation in the exercise of sovereign capacity according to the degree of state failure (Giorgetti, 2010a, 2010b a, 474). In the context of state incapacity, various actors (terrorist groups, warlords) will take advantage of the power vacuum to offer security and services to the population (food and medicine) that the state no longer provides (USIP, 2018b). Total or partial failure leads to a form of breach of the social contract between the state and its people17 and additionally between the state and 15 The failing state’s inability to coerce and impose its authority over its entire territory is also coupled with an inability to manage and provide services (Rotberg, 2020). 16 “The “international law essence” of State failure is defined by the loss of capacity of the State in question, to: (a) represent, enforce and apply the prerequisites and obligations of sovereignty, (including—most importantly—the capacity to mediate conflict and “deal with” disaffection internally), (b) in compliance with that State’s international obligations” (McLaughlin, 2021, 183). 17 USIP, 2018a. On the reference to the social contract in relation to state failure, see Carment, Samy, & Prest, 2008; Holsti, 1996; Englehart, 2017, 39 ff.; on the state failing to fulfil its part of the social contract, see Giorgetti, 2010a, 475, 2010b b, 47 ff.).

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other states, who will be tempted, in the name of conducting an effective “war” against terrorism, to take liberties with the cardinal principle of respect for the sovereignty of a state that causes concern from a security standpoint. Victim states will subrogate themselves to the rights of the host state, acting in its stead and unilaterally assessing whether the state is in difficulty and unable to combat the terrorist groups established on its territory. The sovereignty of the failing state therefore becomes porous to the exercise of other sovereignties, and states waging a “war” on terrorism feel vested with the mission to intervene militarily.

The Consequences of State Failure and the Weakening of Respect for Its Sovereignty from Other States There is a presumption in international law of the continuity of the state. The question of effective government is therefore assessed less rigorously during the life of a state than when an entity obtains the status of a state. The state is thus considered not as a “conceptual variable” (Englehart, 2017, 36, referring to the writings of J. P. Nettl), as it is in political science, but as a constant in international law. The Somalian state did not cease to be a member state of the United Nations when it was in severe difficulty. States and international organisations have always affirmed respect for the territorial integrity and sovereign equality of states in difficulties. Government failure is not state failure in international law: “there is a distinction between the creation of a new State on the one hand and the subsistence or extinction of an established State on the other. In the former situation, the criterion of effective government may be applied more strictly” (Crawford, 2006, 59). In the context of the fight against terrorism, there is a security/ sovereignty dilemma that relies on the tension between respect for the sovereignty of a failing or fragile host state and the preservation of the victim state (Proulx, 2012, 245). While the idea of a relative, conditional, contingent sovereignty (Krasner, 2004) is now gradually creeping in, public international law continues not to differentiate between states or establish any hierarchy between them. Failed states are sometimes regarded by other states as de facto “unequal” (A). This is particularly the case in the context of the practice of targeted killings using armed drones within the territory of a host state (B).

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A. A de facto “inequality”? International law has established a monolithic approach to internal (state is the supreme authority for its population on its territory, see Carrillo-Salcedo, 1991, 60), external (states are not the subject of any superior power in their international relations; see Besson, 2011, §26 ff) sovereignty.18 The concept displays two further aspects: the negative side (i.e. the negation of submission of a state to another one) and the positive one (the right to exercise the fullness of state powers, Carrillo-Salcedo, 1991, 60). When an entity becomes a state, other states must respect the cardinal principle in international law of sovereign equality (article 2§1, Charter of the United Nations), and this sovereign equality must be respected externally even if a state fails to exercise its powers internally.19 International law is thus not much concerned once a state is created and is ultimately not interested in the fate of that state.20 Jackson (1992, 26 ff.) refers to states that fail to fully exercise positive sovereignty (i.e. fulfilment of the state’s obligations to its population as well as to other states by providing order and security within its territory) as “quasi-states”. He notes that in cases where a de facto state is able to perform its duties effectively, a failed or failing state certainly exercises de jure sovereignty, because it is protected from external intervention, but not a de facto sovereignty, because it is unable to provide services and security for its population. A failure to exercise internal sovereignty may call into question the obligation of respect for sovereignty in its external dimension (Newman, 2009, 424). In the context of the fight against terrorism, a number of authors (Fenstein, 2004; Stahn, 2003; Wedgwood, 1999, 565; Reinold, 2011,

18 Lax (2012) identifies three elements to describe state sovereignty: legal and political sovereignty; the principle of non-intervention; and territorial integrity with fixed and inviolable borders. 19 See Giorgetti, 2010b, 53; Lax, 2012, 49: “Once sovereign status is obtained and internationally recognized, international law provides no means by which to alter this status, even where a State no longer has the effective capacity to govern or exert authority over its population or is perpetuating outrageous human rights abuses against its own citizenry”. 20 Kreijen, 2004, 102: “The statehood of quasi states is positively judicial instead of being empirical”.

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285; Dunlap, 2004, 475) and, above all the United States21 have put forward the idea that a right to use armed force to expel terrorist groups from their training camps should be granted to victim states.22 Any state allowing terrorist groups to flourish on its territory should forfeit the protection of its territory in the name of another state’s legitimate selfdefence: “A state, which does not prevent the use of its territory for terrorist activities directed against and injurious to another state, cannot justifiably complain if the target State uses force in order to quell the danger that threatens it” (Feinstein, 2004, 78). Some states have questioned this obligation to respect the sovereignty of failed states that are no longer able to impose their authority over parts of their territory. In the manner of negotiorum gestio,23 the victim state acts in place of the weak state that is unable to drive out the terrorist group. Several arguments have been put forward in the literature to justify an armed intervention on a host state’s territory without its consent, which would amount to a violation of its sovereignty under international law. One such argument is that when a state does not exercise authority over parts of its territory (ungoverned spaces—on the concept, see Dubuy, 2020, note 5), there is no risk of infringing its sovereignty (Hakimi, 2015, 26). Another is that if a host state is unable to exercise authority over its territory, it loses all legitimacy, and armed intervention by a victim state is therefore legitimate (see Starski’s extensive review, 2015, 494 ff).24 21 See Gray, 2018, 226; Chan, 2013, 423 ff; Reinold, 2011, 251: The USA “upheld the claim that a state is responsible for the actions of private actors operating on its territory even if does not exercise effective or overall control over them, and that self-defense may therefore be exercised against the non-state actor and its state sponsor alike”. 22 See Dunlap, 2004, 475: “States that are the targets of terrorist attacks should be able to use preemptive military force against terrorist groups in failed states, where the collapse of security institutions makes fighting terrorists impossible”. 23 Management of business: It is a situation in which a person spontaneously and opportunely interferes in the affairs of another person, in a disinterested way, as a favour to that person. 24 The arguments P. Starki identified include: the notion of “estoppel”, in other words a state that is unable to control its territory should not expect respect for its sovereignty and will not be able to claim a breach of its right to respect for sovereignty; if a state fails in its duty to expel terrorists from its territory, it forfeits respect for its sovereignty and for the principle of non-interference; failed states remain states but lose their external sovereignty and consequently the possibility of invoking art. 51 of the Charter of the United Nations. In ungoverned spaces, because terrorist groups are positioned outside

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The problem here, however, is that a state that fails to expel terrorist groups because it has lost control of parts of its territory cannot be held responsible for the loss of authority that results in an increase in terrorist acts. Momentary incapacity should certainly not be confused with a lack of political will. Some states have nevertheless tended not to differentiate between the two, lumping together states lacking the means to drive out terrorist groups (unable) and those lacking the political will to do so (unwilling). The use of armed force by a victim state on the territory of an “unable” host state seems to reflect a variable geometry conception of sovereignty. This conception contrasts sharply with the classical view of international law, which holds that strong states are no more sovereign than weak states. A state is either sovereign, or it is not. It can never be half or three-quarters sovereign. However, as Ohlin wisely noted, with this conception of the failing state in which sovereignty is contextualised (according to the degree of state control), sovereignty may be insufficiently strong to be effective against a terrorist group but strong enough to protect it against interference from other states.25 The use of armed drones to execute terrorist leaders has been a common modus operandi in particular by the United States under all presidencies since 2001 (O’Connell, 2022; Sterman, 2022). B. The case of targeted killings using armed drones Under international law, respect for state sovereignty requires that a victim state obtain authorisation from the host state to carry out an armed intervention, that is it requires a consented intervention clearly given by the official authorities in power. The use of drone strikes for targeted killings in counterterrorism is not different because of the use of armed force on the territory of a host state in a cross-border operation. Those killings are intentional, premeditated and deliberate uses of lethal force against specific individuals (definition and references Casey Maslen, 2012 note 11; for a general presentation see Henderson, 2018, 233 ff). Targeted killings have raised a number of thorny questions the fold of sovereignty, the state therefore loses its protection. Another explanation is that de facto sovereignty is non-existent, so de jure sovereignty does not have to be respected. 25 “When a state is unable, the state’s sovereignty is diminished in proportion to its level of control. This assumes that sovereignty has graduation which is very controversial”, Ohlin, 2021, 122–123.

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with regard to their legality in international law by causing tremendous damages among civilian population ( jus ad bellum, humanitarian law, human rights law; Casey Maslen, 2012). This is a new way of practising war, an individualised and a dematerialised one (Mignot-Mahdavi, 2020). Victim states may invoke anticipatory self-defence for the use of armed force as the United Kingdom did and the targeted killing operation in Syria against two of its citizens in 2015 (Birsdall, 2022). However, the state wishing to take action must seek and obtain the host state’s agreement within the context of a consented intervention (Candelmo, 2019, 96; for a different position, see Paust, 2010, 237–280).26 Some states have put forward the fight against terrorism argument to justify their less than scrupulous respect for the sovereignty of a failing host state (Abbas khan & Ali, 2017, 193–194). With the killing of Al Qaeda leader Al Zawahiri, in Afghanistan in August 2022, the legal basis invoked to justify this “over the horizon counter-terrorism operation” by the United States was not clear at all. There was no evidence of imminent threat triggering self-defence and “it was unclear that necessity required a use of force without consultation with the government of Afghanistan” (Martin, 2022, 7; Dunlap, 2022). Martin then explains that according to the “unable and unwilling doctrine” for which the requirement of consent would not operate, in the case that it would be accepted, it was not even clear that the Taliban government of Afghanistan was in this situation. There must be a reasonable and objective determination of this inability or lack of will the burden of which must be on the defending state. This double standard may be described as follows: “States are not all the same when it comes to terrorism, in other words. No rational US leader is going to take the solemn international law admonition of the ‘sovereign equality of states’ too seriously in these matters and the United States has never regarded a refusal to do so as contrary to international law but instead as something built into international law as a qualification on the reach of the ‘sovereign equality’ of states” (Anderson, 2011, 10). The United States’s practice of using armed drones in targeted assassinations has shown that, in the name of the fight against terrorism, they have cheapened or at the very least undermined the sovereignty of states with 26 Candelmo, 2019, 96: “an operation of force…. Would inevitably violate or, in any case, impact on the territory inside the borders of a sovereign State. Such an operation needs to be accepted by the State itself, and consent by the territorial State to the drone strike must be verified in order to establish its lawfulness”.

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defined fragilities, such as Pakistan, Yemen and Somalia (for a different position, Woolaver, 2014, 617).27 Hence, even if they did take steps to seek the consent or at least the approval of the authorities in power in Afghanistan,28 Yemen (Emmerson, 2014, §28; Deeks, 2014), Somalia (USA, 2019, p. 6; Sauvage, Schmitt, & Latif Dahir, 2022)29 and Pakistan (Dawn, 2016), the United States generally seemed satisfied with a controversial or implicit agreement, for example, whereas international law requires a clearly expressed agreement.30 Uncertainty regarding the official nature of the authorities giving their consent to an intervention presents another difficulty, because these failed or failing states and those with defined fragilities are characterised by political instability (Giorgetti, 2010a, 179). This factor has long posed a problem with regard to Somalia. Uncertainty in terms of consent also characterised Yemen in 2015, when the incumbent president, Hadi, fled to Saudi Arabia for six months (Moorhead, 2017; Lederman, 2016). In Pakistan, an implicit or even secret agreement, which was eventually uncovered by WikiLeaks,31 was obtained (O’Connell, 2015, 69 ff.) between 2007 and 2011 from the Pakistani secret services department, not an authority officially authorised to decide on an armed intervention. In 2013, Pakistan’s prime minister expressly refused to give his consent (Woods, 2012; Bowcott, 2013; Sharif, 2013) 27 According to the Fund for Peace (2022), Yemen is the most fragile state, Somalia the second, Afghanistan the eighth and Pakistan the thirtieth out of 179 states analysed. The OECD has categorised Somalia and Yemen as ‘contexts of extreme fragility’ (OECD, 2022). 28 The Afghan authorities called the assassination of Al-Zawahiri in August 2022 a violation of the principles of international law and the Doha agreement. At that time, the United States had withdrawn its troops and was no longer engaged alongside Afghanistan in a conflict on its territory. The Secretary of State Anthony Blinken replied that hosting the Al Qaida leader and fighters contradicted the Taliban’s engagement with regard to the Doha agreement (Cristiani, 2022; Martin, 2022). 29 On the drone strikes at the request of Somali’s president (Jones, 2022). 30 Consent was not always clear in the case of Yemen. The United States only actually

indicated that it had the consent of the Yemeni authorities in 2016 (Moorehead, 2017). This difficulty of obtaining valid consent from the appropriate authority was acknowledged by the United States (Schwedler, 2015). 31 There was a secret agreement between the CIA and Pakistan’s intelligence services to launch drone strikes in Waziristan (Brookman-Byrne, 2020, 75). Brookman-Byrne argued that neither the international law of accountability nor the law of the use of armed force requires that consent be given publicly.

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and had all drone launch bases shut down (Brookman-Byrne, 2017, 19; Fair et al., 2014; Welsh, 2015, 41). He reiterated his refusal in 2016, denouncing it as a violation of Pakistan’s sovereignty (Abbas Khan & Ali, 2017; Dawn, 2016). Pakistan’s parliament had also refused its consent to the US drone strikes. The Peshawar High Court recognised a violation of Pakistan’s sovereignty in 2013. The targeted assassinations using drones nevertheless continued (see statistics for 2004–2018, The bureau of investigative journalism, 2018) even after this explicit refusal (Sixta Rinehart, 2016, 46–47; Ullah, 2022, 103–104). In 2018, Pakistan’s foreign minister denounced again a violation of sovereignty following drone strikes against members of the Taliban-affiliated Haqqani group, designated as a terrorist entity by the United States (Massoud, 2018). These states, even though they were in a weakened position, thus did not accept this violation of their sovereignty and officially and clearly condemned it as they could be states particularly impacted by a potential reception of this doctrine in public international law. In the fight against terrorism then, it seems that equality has been maintained formally but not in reality (Anderson, 2011, 8 ff.). Anderson identified this difference in treatment between a healthy state, capable of meeting the requirements of the rule of law, and failing states that are struggling: “this is not to say that the United States could or would use drones anywhere it wished. Places that have the rule of law and the ability to respond to terrorists on their territory are different from weakly governed or ungoverned places. There won’t be drones over Paris or London—this canard is popular among campaigners and the media but ought to be put to rest. But the vast, weakly governed spaces, where states are often threatened by Islamist insurgency, such as Mali or Yemen, are a different case altogether” (Anderson, 2013, 21–22). This is the manifestation of what Simpson referred to in relation to outlaw states as the hegemonic approach to international law (Simpson, 2004; Martin, 2022).32 With regard to states that do not respect international law, such as Saddam Hussein’s Iraq, Simpson indicated that the regime for the use of armed force increased as the respect for state sovereignty decreased. This variable geometry respect for sovereignty can

32 See Brookman-Byrne 2020, 100: “intervention by invitation is a doctrine with the clear capacity to act as a legal tool of neo-colonial policing and militarism, engendering modern practices of liquid warfare and entrenching hegemony”.

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be seen in the case of fragile states. This was a prevalent conception of sovereignty in the nineteenth century. Many internationalists in the late nineteenth and early twentieth centuries classified states according to their level of development (Lorimer, Hall, Baty quoted by Woolaver, 2014, 599). They considered that a state’s use of armed force was possible when it could not remain impassive in the face of destabilising states that would lose their statehood because of a lack of effective government. Baty, for example, was very uncompromising on the subject of states experiencing internal difficulties: “If there is no single government in control or struggling to maintain its control, it is unreasonable to expect foreign countries to stand by and watch with folded hands the development of anarchy. There is neither precedent nor authority directing them to do so, and common sense may well forbid it” (Baty, 1934, 455). This is a very dangerous path to go down, but it could prove tempting in the context of the fight against terrorism. However, it would contribute to further weakening the legitimacy of an extremely fragile host state vis-à-vis its population (Ahmad, 2014, 24–25). A weakened respect for the sovereignty of a failing host state leaves it with little chance of reclaiming its sovereignty. Somalia has attempted to do just this by refusing to allow states to enter its territorial waters to capture pirates who have taken refuge there. The UN Security Council actually took this refusal on board in March 2022 when it did not renew the most recent authorisation (S/2608/2021) allowing states to intervene in Somalia’s maritime sovereignty. ∗ ∗ ∗ Problems in states that are failed, failing or have defined fragilities are often referred to using medical vocabulary, which mobilises the image of a state that is viewed as sick to some degree and as not properly functioning. The vocabulary of pathologisation is advancing in the study of state fragilities evolution: “Just as sick people have less autonomy than those who are well, sick states have less sovereignty than healthy ones” (Manjikian, 2008, 335). In the name of the imperative of this “war on terror”, a failing host state’s vulnerability is likely to increase if its autonomy in decision-making decreases. There is a huge temptation for powerful victim states to put such host states under a trusteeship by dispossessing them. Trusteeship would consist, in this instance, of acting in place of the host state judged unable or unwilling to take on its share

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of the responsibility. The idea of this contextualised sovereignty would have catastrophic consequences for the principle of sovereign equality. Although it is sometimes weakened, international law values the sovereign equality of states and would therefore resist this development and reject such a dangerous return to the past.

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Rotberg R. (2020). Failed states and weak states in theory and practice. Oxford bibliographies. Sarkar, R. (2020). International development law. Rule of law, human rights & global finance. Springer. Saeed, R. (2020). The ubiquity of state fragility: Fault lines in the categorisation and conceptualisation of failed and fragile states. Social and Legal Studies, 29(6), 767–789. Sauvage, Ch., Schmitt, E., & Latif Dahir, A. (2022, October 27). Somalia Asks U.S. to step up drone strikes against Qaeda-Linked Fighters. The New York Times. https://www.nytimes.com/2022/10/27/us/politics/som alia-shabab-us-strikes.html Simpson, G. (2004). Great powers and outlaw states: Unequal sovereigns in the international legal order (p. 325). Cambridge University Press. Sixta Rinehart, C. (2016). Drones and targeted killings in the middle east and Africa: An apraisal of American Counterterrorism policy. Lexington books. Schmitt, M. (2019, September 16). France’s major statement on international law and cyber: An assessment. Use of force, sovereignty and more. Just security. https://www.justsecurity.org/66194/frances-major-statement-on-intern ational-law-and-cyber-an-assessment/ Sharif, N. (2013, October 23). Prime Minister Nawaz Sharif’s address to United States Institute for Peace. United States Institute of Peace. http://www.emb assyofpakistanusa.org/PM_Visit_1021_23_2013_US_images.php Stahn, C. (2003). Terrorist acts as “armed attack”: The right to self-defense, Article 51 (½) of the UN Charter, and International Terrorism. Fletcher Forum of World Affairs, 27 (2), 35–54. Starsky, P. (2015). Right to self-defense, attribution and the non-state actor— Birth of the “unable or unwilling” standard? Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht, 75, 455–501. Sterman, D. (2022, December 14). The State of America’s Drone Wars in 2022. New America. https://www.newamerica.org/international-security/ blog/the-state-of-americas-drone-wars-in-2022/ Stewart, F., & Brown, G. (2010). Fragile states. CRISE Report, 3. https://ass ets.publishing.service.gov.uk/media/57a08b17ed915d3cfd000b1c/CRISEOverview-3.pdf Schwedler, J. (2015, September 28). Is the US drone program in Yemen working? Brookings. https://www.brookings.edu/blog/markaz/2015/09/ 28/is-the-u-s-drone-program-in-yemen-working/ The Bureau of Investigative Journalism. (2018). Drone warfare. https://www. thebureauinvestigates.com/projects/drone-war Thürer, D. (1999). The failed states and international law. International Review of the International Committee of the Red Cross, 81(836), 731–761.

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Trapp, K. (2015). Can no states actors mount an armed attack? In M. Weller (Ed.), The oxford handbook of the use of force in international law (pp. 679– 696). Oxford University Press. Trapp, K. (2020). Terrorism and the international law of state responsibility. In B. Saul (Ed.), Research handbook on international law and terrorism (pp. 31–46). Edward Elgar publishing. Ullah. (2022). Terrorism and the US drone attacks in Pakistan. Routledge. Underhill, N. (2014). Countering global terrorism and insurgency. Palgrave Macmillan. USA. (2016). Report on the legal and policy frameworks guiding the united States’ use of military force and related national security operations. The White House. https://www.justsecurity.org/wp-content/uploads/2016/12/ framework.Report_Final.pdf, USA. (2017). National security strategy. The White House. https://trumpwhit ehouse.archives.gov/wp-content/uploads/2017/12/NSS-Final-12-18-20170905.pdf USA. (2019). Report to congress. The White House. https://www.state.gov/ wp-content/uploads/2019/10/Report-to-Congress-on-legal-and-policy-fra meworks-guiding-use-of-military-force-.pdf USA. (2020). United States strategy to prevent conflict and promote stability. The White House. https://www.state.gov/stability-strategy/ USA (2021). Interim national security guidance. The White House. https:// www.whitehouse.gov/wp-content/uploads/2021/03/NSC-1v2.pdf USA. (2022). National security strategy. https://www.whitehouse.gov/wp-con tent/uploads/2022/10/Biden-Harris-Administrations-National-Security-Str ategy-10.2022.pdf USIP—United States Institute For Peace. (2018a). Fragile States Fail Their Citizens and Threaten Global Security. https://www.usip.org/blog/2018a/09/ fragile-states-fail-their-citizens-and-threaten-global-security USIP—United States Institute For Peace. (2018b). How Extremists Exploit Fragile States. https://www.usip.org/blog/2018b/09/how-extremists-exp loit-fragile-states Verhoeven, H. (2009). The self-fulfilling prophecy of failed states: Somalia, state collapse and the global war on terror. Journal of Eastern African Studies, 3(3), 405–425. Weber, M. (1919). Politics as a Vocation (extract). https://www.balliol.ox.ac.uk/ sites/default/files/politics_as_a_vocation_extract.pdf Weber, M. (2019). In K. Tribe (Ed. & trans). Economy and society. A new translation. University Press Pilot Project. Welsh, J. (2015). The morality of drone warfare. In D. Cortright, R. Fairhurst, & K. Wall (Eds.), Drones and the future of armed conflict. Ethical, legal, and strategic implications (24–45). The University of Chicago Press.

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CHAPTER 9

De Facto Sovereignty and Multilateral Sanctions for a Return to Constitutional Order in a Context of Regional Armed Conflict: The Case of Mali Aminata Diaby and Nicolas Klingelschmitt

List of Abbreviations APSA ECOWAS REC CNSP ECOMOG

African Peace and Security Architecture Economic Community of West African States Regional Economic Community Comité National de Salut du Peuple (national committee for the salvation of the people) ECOWAS Ceasefire Monitoring Group

A. Diaby Department of Law, Université de Bourgogne, Dijon, France e-mail: [email protected] N. Klingelschmitt (B) Department of Political Science, Université du Québec À Montréal, Montreal, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_9

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MINUSMA

OAU AU WAEMU

Mission Multidimensionnelle Intégrée des Nations Unies pour la Stabilisation au Mali (United Nations integrated multidimensional mission for stabilisation in Mali) Organisation of African Unity African Union West African Economic and Monetary Union

Between 2020 and 2022, the Malian state was subject to joint and complementary political, economic and financial sanctions from two regional organisations of which it was a member, namely the Economic Community of West African States (ECOWAS) and the West African Economic and Monetary Union (WAEMU). These sanctions were imposed following the military’s unconstitutional seizures of executive power, or coups d’état, two of which occurred within a year of one another on 18 August 2020 and 24 May 2021. While the exceptional nature of this iteration should be relativised in a West African region that had been profoundly shaken over the previous decade by a new wave of coups d’état, the initially complementary but then contradictory responses of ECOWAS and WAEMU were unprecedented. This chapter proposes an interdisciplinary reflection that combines the fields of public international law and the political science sub-discipline of international relations. More specifically, it focuses on the legal bases and political scope of the sanctions that the two subregional organisations imposed on a member state whose government had come to power unconstitutionally in a conflict situation. In other words, it explores the role and capacity to act of these supranational organisations as well as their legitimacy to validate or invalidate the sovereignty of their member states’ governments in the event of a leadership change in a war context. It also addresses, from an intersubjectivity perspective concerning the Malian state and these supranational organisations, the organisations’ legitimacy, decision-making sovereignty to declare sanctions and capacity to end a conflict through these sanctions. We will not revisit here the causes and consequences of the war in Mali, which began against armed terrorist groups in 2013 and was protean, cross-border (because it extended across the entire Sahel (Charbonneau et al., 2021) and still ongoing at the time of writing. Neither will we examine the effectiveness of the different operations successively

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implemented by the various state security actors, regional coalitions, the UN (Charbonneau, 2017) and more recently private mercenary groups, which have already been the subject of a prolific body of literature (Aning & Edu-Afful, 2016; Smirnova, 2022). Instead, we will focus on the sovereignty, from a foreign policy point of view, of the Malian transitional government as a member of supraregional organisations following the coups d’état of 2020 and 2021 and more especially on how this sovereignty was organised in relation to the competences of these organisations and the sanctions they imposed on Malian sovereignty. We thus investigate the interactions between ECOWAS, WAEMU and the Malian transitional government during the most recent years of this war. This chapter provides answers to several questions. Can the Malian government’s sovereignty be challenged by the resolutions of multilateral organisations? How effective are the sanctions regimes that have been adopted? More broadly, in the context of war in a destabilised region, can a regional organisation challenge the exercise of sovereignty by the de facto government or military junta in power in one of its member states in order to re-establish constitutional order? First, we briefly review the sequence of events in the two successive coups d’état experienced by Mali in 2020 and 2021, presenting their similarities and differences with regard to past coups that have unsettled the region and indeed the whole continent. In the second section, we explain the historical, political and legal bases for the sanctioning powers available to ECOWAS and WAEMU that have been used in the Malian situation. In the third, we establish, with regard to international law, the links between the responsibility to protect populations, the declaration of sanctions and the challenge to the sovereignty of a member state’s regime from the multilateral organisations’ point of view. Finally, we show that the responses formulated by the regional organisations have not succeeded in resolving these coups d’état or in providing appropriate responses to a phenomenon that is expanding in the region. Our results indicate that the sanctions mechanisms of the two regional organisations competent to intervene in the Republic of Mali have not succeeded in rapidly and permanently restoring constitutional order. On the contrary, the responses of ECOWAS and WAEMU even seem to some extent to have been at odds with one another, especially given that WAEMU’s Court of Justice decided to suspend the sanctions a few months after they had been adopted by the two organisations. We demonstrate, through this mutual opposition, that two paradoxes emerged.

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One was the conflict between the international law principle of nonintervention in internal affairs and the ECOWAS and African Union (AU) principle of non-indifference. The other was reflected in the conflicting aims we describe below between the two regional organisations’ executive and judicial bodies, namely the objective of sanctioning the de facto sovereignty of a non-elected government and the obligation to protect the population. With this in mind, we review the possibility that the sanctions might further weaken Mali’s public institutions and impoverish its population, which could in turn increase the levels of violence and destabilisation in the region.

The Unprecedented Context of a Double Coup D’état in Mali The period examined here begins with the first coup d’état, on 18 August 2020, which saw President Ibrahim Boubacar Keïta overthrown by military officers, including Colonel Assimi Goïta, and the establishment of the Comité National de Salut du Peuple (CNSP). A few weeks later, on 12 September 2020, the CNSP announced the launch of an 18-month transition period and the appointment of Bah N’Daw (a colonel major and former defence minister under the previous presidency of Ibrahim Boubakar Keïta) as transitional president, Assimi Goïta as vice-president and Moctar Ouane as prime minister. On 15 September 2020, ECOWAS agreed to the CNSP’s proposed roadmap for the transition in an extraordinary session of the Authority of Heads of State and Government and recorded the commitment to hold the elections in February 2022. Less than a year later, on 24 May 2021, there was a second coup d’état. Two officers who had participated in the first coup led by President N’Daw were removed from their posts, and President N’Daw and Prime Minister Ouane were taken in for questioning by the military and “stripped of their privileges”1 for “proven intent to sabotage the transition”. Colonel Assimi Goïta became president of the new transition. The beginnings of a narrative strategy that the Malian military junta, led by Assimi Goïta, was to deploy more intensively in the months to come were already visible at this point. The army claimed popular sovereignty

1 Unless otherwise indicated, all quotations from French sources have been translated into English in this chapter.

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in the absence of an institutional sovereignty, drawing on the narrative of the corrective coups d’état of the 1960s and 1990s (Boisvert et al., 2022), and the deposed civil power was presented as corrupt and accused of seeking to maintain a neo-patrimonial system in the pay of foreign powers. On 31 December 2021, Mali’s transitional government announced the postponement of the elections that had been scheduled for February 2022, effectively extending its time in office. It also ordered the expulsion of ECOWAS’s representative in Mali. These two successive coups d’état carried out by relatively high-ranking officers in the Malian army were, at the macro level, part of a “third wave” of coups d’état on the African continent that had begun in 2012. Other countries in the West African region that had experienced a similar situation to Mali, all within a few years of one another, included its neighbour Guinea, Sudan, Egypt and the Central African Republic. The most strikingly similar was that of Burkina Faso, which borders Mali and which was also the scene of two coups d’état within a few months of one another, in January and September 2022. A close examination of these events over this decade shows that they did not fit the typologies of the two previous waves of coups d’état experienced on the continent. The literature on coups d’état in Africa has so far identified two major waves with very specific and distinct typologies. The first, in the 1960s, was characterised by coups that sought to “rectify” the trajectory of a particular state in which the military assumed the right to intervene when the civil government’s exercise of sovereignty did not meet its expectations. The second wave, in the 1990s, saw the emergence of both “good coups d’état”, which put an end to ageing failed autocratic regimes and aimed to protect the population from the excesses of power, and “bad coups d’état”, which saw strongmen maintain or return to power. This third wave that had begun in 2012 drew on some of the dynamics of the previous two waves but added new elements that must be taken into account if we are to understand the communication strategy used by the military junta to legitimise, notably through exploiting the security context, both their position and a sovereignty that they had not obtained through the ballot box (Boisvert et al., 2022). Many of these coups (notably the Malian crisis of 2012, a consequence of the Azawad region’s attempts to gain independence in the 1990s) were rooted in longstanding secessionist trends marked by postcolonial border disputes (Thomas & Falola, 2020). While a number of states

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in the West African region had enjoyed relatively smooth political transitions and democratic leadership changes for some decades (Loada & Wheatley, 2015), these coups d’état orchestrated by national military factions were, alongside the authoritarian regimes that remained in power with no democratic change of government, one of the greatest political scourges in the region and indeed on the African continent as a whole. They undermined people’s confidence in their governments and generated or sustained regional insecurity (Boulden, 2013). In the Malian case, security was in fact the central issue in the military junta’s condemnation of the civil authorities. It denounced their inability to put an end to the violent acts of armed terrorist groups and even the failure of previous leaders to tackle the presence and impunity of these groups. The deterioration of the security context in Mali was linked not just to these terrorist groups, however, but to a whole set of more complex phenomena. One of the most significant of these was intercommunity conflicts, sometimes including clashes between vigilante militias. These conflicts testify to the state’s withdrawal from its responsibilities to ensure public order in the country. In addition, the inability of national and international interventions to hold these phenomena in check, despite mandates from the UN Security Council for Opération Barkhane and the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), shows that the “responsibility to protect” principle that was incumbent on states and on organisations with competences in the areas of peace and security was not being properly implemented. This failure was therefore attributable as much to the regional organisations that had tried to intervene in Mali since 2013 as to the Malian political class in power until 2020. The putschists were able to mobilise this blame against both sets of actors but more particularly against the Malian government to stir up popular discontent and oust Keïta’s government in 2020, and then to legitimise their stay in power thereafter. The context of war and instability in Mali allowed a transfer of the exercise of sovereignty from the political to the military power. This seizure of power by the military junta, which failed to respect the original deadlines set down for the elections to allow a return to constitutional order, was sanctioned by the regional organisations of which Mali was a member.

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The Regional Organisations’ Role in Managing the Malian Crisis The West African regional organisations ECOWAS and WAEMU act as guarantors for their member states’ populations and democratic institutions. The competences of these two organisations are attributed to them by their member states, which effectively delegate part of their sovereignty to them. When the political and security situation of one of these member states is altered, as in the case of a coup d’état, these organisations have a crucial role to play in protecting the state’s population and government institutions with the aim of facilitating a rapid return to constitutional order. They achieve this through negotiating a roadmap with the transitional authority to ensure executive and legislative elections will be held within a reasonable time frame. If this roadmap is altered, the sovereignty of the transitional authority is called into question, and sanctions may be imposed on the member state concerned. This configuration in which regional organisations act as guarantors of the democracy and legitimate sovereignty of their member states’ governments can be explained by the recent historical context in the West African region. At continental level, the now defunct Organisation of African Unity (OAU) was characterised by its inertia, which had stemmed from the uneasy compromise reached at the OAU’s inception in 1963 between the supporters of a pan-African organisation, with an integrating or even federating mission, and the defenders of a single cooperation platform that would respect the Westphalian sovereignty of African states, with well-defined physical and political borders. Although the OAU played a very limited role, its founding charter at least had the merit of enshrining equal sovereignty between its member states. This was one of the founding principles of South-South Cooperation and was only properly institutionalised almost half a century later when the AU succeeded the OAU in 2002. However, the OAU’s charter was silent on rule of law principles such as democracy and good governance. The absence of a genuine drive for integration within the first pan-African organisation and its total non-interference in its members’ internal affairs saw the emergence of regional initiatives over the decades that followed (Songolé, 2020). One such initiative was ECOWAS, which was founded in 1975 with 12 member states. Its original purpose was to create an economic integration zone, reclassified as a Regional Economic Community (REC),

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made up of its member states (ECOWAS had 15 member states in 2023). However, the 1990s and the major security crises in Sierra Leone and Liberia prompted the organisation’s member states to broaden its competences beyond simple economic cooperation and to develop collective means of responding to security crises. In July 1993, the member states thus adopted the ECOWAS Revised Treaty, which notably tasked the organisation with the “prevention and resolution of intra-state and inter-state conflicts” and the “maintenance of peace, stability and security within the region” (ECOWAS, 1993). These objectives were operationalised even before the treaty had been signed through the creation of a regional armed squad called the ECOWAS Ceasefire Monitoring Group (ECOMOG), which was charged with establishing and enforcing a ceasefire in Liberia in August 1990. In addition to the potential to engage in peace operations, ECOWAS also acquired the power to impose sanctions on its member states in the event of non-compliance with its treaty and the various common agreements. In 1997, the organisation cooperated with the UN Security Council when it decided to embargo arms and oil products destined for Sierra Leone and entrusted ECOWAS with the task of ensuring its implementation (Moutou-Nkounkou, 2019). Another regional initiative, WAEMU, was created in 1994 and was composed of 8 of the 15 ECOWAS member states. Its aim was to strengthen economic integration between its 8 member states, which formed the (West African) CFA franc monetary union under the aegis of the Central Bank of West African States. This integration involved the creation of a common market with no customs barriers as well as the harmonisation of business law in the member states. Although the fact that all WAEMU’s member states also belonged to ECOWAS facilitated a priori cooperation between the two regional organisations, their partnership was nevertheless institutionalised through a legal act that cemented their complementarity. In Abuja (Nigeria) on 5 May 2004, the presidents of both organisations’ committees officially signed a “cooperation and partnership agreement” consisting of 9 articles establishing “close cooperation and partnership links” (Sall, 2016). The formalisation of this partnership marked the culmination of several years of initiatives to align and coordinate the two organisations’ activities that had begun with the summit of the subregion’s heads of state and government, which was held in Lomé in December 1999 and aimed at the “harmonisation of integration programmes in West Africa”, and ended with an ECOWAS-WAEMU consultation meeting in Ouagadougou in

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March 2003 (Sall, 2016). Synergy between ECOWAS and WAEMU was ensured by a joint technical secretariat that met at least twice a year and was composed of the two organisations’ presidents and technical commissioners. At continental level, the AU had officially recognised 8 RECs across the continent since the Protocol on Relations between the African Union (AU) and the Regional Economic Communities (RECs) was signed in Accra in July 2007. ECOWAS was the only REC recognised in West Africa by this document. In terms of continental economic cooperation and integration, WAEMU was nevertheless seen as a body with an “integration agenda that could contribute to the African Economic Community” (Karangizi, 2013). In the areas of peace and security, the AU prioritised the resolutions of regional organisations and was generally content to acknowledge and endorse them through its communiqués in the belief that local responses were the most legitimate and also the most effective in terms of reach. This idea of African regional organisations imposing sanctions endorsed by the AU stemmed from a determination to prevent interference as far as possible from powers outside the continent while allowing African multilateral organisations to exercise their responsibility to protect by intervening in the affairs of an African state. Every member state of the AU was therefore involved in peacekeeping on the continent (Kwasi Tieku, 2013). Politically, the international organisations’ sanctions and the African regional organisations’ sanctions were complementary. Those declared by endogenous African Peace and Security Architecture (APSA) units (ECOWAS in the Malian case) related to specific peace and security issues, including unconstitutional changes of government (Mve Ebang, 2018), which did not fall directly within the UN Security Council’s remit but which the RECs and the AU’s Peace and Security Council (Feukeu Tchoumba, 2021) were able to deal with (Charron, 2013). While not always acted upon (Avoulete, 2022) or even imposed, these sanctions were intended to prompt the UN Security Council to include this type of event in its agenda and to encourage it to act. Although the effectiveness of the sanctions remains unconfirmed, Souaré’s study of 88 coups d’état on the African continent between 1952 and 2012 showed a clear increase in the effectiveness of the sanctions declared by African organisations, including those from the AU since its inception and from its regional and international partners (Souaré, 2014).

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Sanctions, Sovereignty and the Responsibility to Protect Under International Law As already mentioned, all these responses, whether regional or continental, were rooted in the objective of protecting populations, which was enshrined in the founding charters of the various APSA organisations competent to manage the Malian case, namely ECOWAS, WAEMU and the AU. Underpinning this objective was the international law principle of the responsibility to protect, which was first introduced by Kouchner and Bettati and was one of the corollaries of the right to humanitarian assistance. This principle is often accompanied by the following question: a responsibility to protect or a duty to interfere (Bettati, 2012)? What principle confers the right to interfere in the internal affairs of a sovereign state? Human rights are inalienable, and it is incumbent on all states in the international community to protect those rights and to provide assistance to populations at risk. The Malian population’s firstgeneration fundamental rights (civil and political rights) were infringed when the right to free elections was threatened and there was constitutional instability. A “moral interference” right (Thouvenin, 2013) was therefore granted to ECOWAS and WAEMU so that they could fulfil this obligation to protect. However, this is a very Eurocentric concept, and it was far from being unanimously accepted by the regional actors, but it could be presented as one of the legal bases for an interventionist policy in certain cases. The sanctions imposed by ECOWAS and WAEMU were thus part of a dynamic of repression against a regime that did not correspond to member states’ shared values when the constitutive acts were drawn up. However, these responses invite us to examine their foundations, because they undermined the key principle of sovereignty so valued in international law. As a first step, it will be useful to go back over some definitions to ensure a clear understanding of this complex notion of sovereignty. We will not attempt to give an exhaustive definition of this notion in international law here, because its connection with international law is relatively complex and has been the subject of several doctoral theses and scientific publications (Guiheux, 1999). We will say, however, that there are two sides to sovereignty, that is it is at once internal and international. The internal side manifests as the “supreme nature of a power that is not subject to any other”. Sovereignty is exercised by “an organ that is not subject to the control of others and that is vested with the highest

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powers” (Cornu, 2007). It is also “the power to govern, to command and to decide who essentially belongs to the state” (Bal, 2012) in the internal order. The state authority is the de facto guarantor of this sovereignty. In the Malian case, the military junta governed, commanded and decided on actions to be taken in Mali. It exercised sovereign power over the territory. In this capacity, it took the decision to suspend the broadcasting of certain French news channels in April 2022. This was a highly symbolic act, a soft-power tool that the military junta used to assert its power and legitimacy. The exercise of sovereign power can therefore be analysed from both an internal point of view (return to constitutional order encouraged by UN resolutions) and an international point of view (recognition of the authority at international level). The international side of sovereignty implies equality between all states globally. According to this principle, a state cannot attempt to intervene in the affairs of another sovereign state. This is the principle of non-intervention, a corollary of sovereignty. However, over the years, the international scene has seen a succession of sometimes interventionist (Tobar Doctrine, 1907) and sometimes abstentionist (Estrada Doctrine, 1930) doctrines relating to the international recognition of states, and practice has fluctuated. In the twenty-first century, there is so much importance now placed on standards of democracy and good governance that it is not possible to ignore intrastate changes that might significantly impact them. In 1986, the African Charter on Human and Peoples’ Rights entered into force just as the debates about reforming the OAU began to emerge following considerable criticism of its passivity. Inspired by the Universal Declaration of Human Rights, the Charter enshrined the individual’s political, civil, economic, social and cultural rights in its preamble. While it did not call into question the principle of state sovereignty and while it contained gaps with regard to some of these first- and second-generation human rights, it did endorse the human principles that must be respected, and this inevitably had an impact on the internal dimension of state sovereignty. These principles were oriented towards an ideal that was envisioned as democratic and that complemented state sovereignty. This trend was confirmed in the 2000s with the adoption of the Lomé Declaration in the wake of an upsurge in political upheavals (repeated coups d’état), which were hampering economic and human development. The Declaration condemned unconstitutional regime changes and marked the first time the term “unconstitutional” had appeared in the institutional context

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(Ben Achour, 2016). It was subsequently used again in the Constitutive Act of the African Union, in article 4(p), which stated that one of the operational principles of the AU would be the “condemnation and rejection of unconstitutional changes of government”, and then in article 30, which stated that “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union”. The AU’s Peace and Security Council was mandated to “impose sanctions, in accordance with the Lomé Declaration, whenever an unconstitutional change of government occurs in a Member State”. These articles thus established the basis for the AU’s powers in cases of unconstitutional regime change but without a clear and precise definition of what unconstitutional regime change involved. The recurrent coups d’état nevertheless left little doubt as to their unconstitutional nature. Unconstitutional regime change, which was initially considered an extralegal fact in the establishment of states, obtained a normative framework that guaranteed good governance (Fau-Nougaret, 2012). In Mali’s case, the seizure of power in 2020 had taken place following a coup d’état led by the military junta. This event therefore fell into the category of unconstitutional regime change, which the AU had the power to intervene in. In accordance with the principle of subsidiarity, however, action by regional organisations within the framework of their own peace and security policies was seen as the preferred option. Given that Mali was a member state of ECOWAS and WAEMU and had a de facto active government at the head of state, in what contexts could the exercise of sovereign power be challenged by international and regional bodies? Mali was a republic with a priori a democratic regime, implying elections took place (a well-defined process that legitimises power). United Nations Security Council Resolution 2131 of 21 December 1965 established the inalienable right of every state to “choose its political, economic, social and cultural systems, without interference in any form by another State”. Furthermore, in the African Charter on Democracy (2012), which was signed but not ratified by Mali, article 4 provided that “- 1. State Parties shall commit themselves to promote democracy, the principle of the rule of law and human rights.—2. State Parties shall recognize popular participation through universal suffrage as the inalienable right of the people”, and article 5, that “State Parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power” (Moine, 2013). The fact that Mali did not submit the instruments of ratification in time (the Malian crisis was

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just beginning in 2012) does not call into question the symbolic significance of its signing of this charter and thus its willingness to adhere to democratic and constitutional values. In the cases in question, the transitional authorities in Mali were neither elected nor properly appointed following a failure of the authorities legitimately elected in an electoral process. Power was seized twice “by force”, leading to both internal and international instability. A return to constitutional order in Mali was therefore essential for internal and international relations to return to “normal”. Concerned by the threats to peace, the respective international and regional organisations acted as guarantors of this return to constitutional order, notably by jointly drawing up an electoral calendar in a transparent process that was overseen by an independent commission. This roadmap can be found in UN Security Council Resolution 2590 of 30 August 2021, which urged “the Malian authorities to implement these arrangements S/RES/ 2590 (2021) 2/3 21–12,014 within the established 18-month timeline, including the organization of the presidential election on 27 February 2022 as per the electoral calendar”. While the de facto situation (conflicts between ethnic groups and terrorism) had led to a great deal of tolerance from international bodies regarding the long transition process, they did not accept the transitional authorities, because they had come to power in violation of domestic and international law. Any authority whose sovereign power was de facto and not de jure because it was installed by a coup d’état was therefore strictly temporary and should not remain in power. The various United Nations resolutions and AU and ECOWAS Decisions thus advocated and contributed to a return to constitutional order, a guarantee of stability (S/RES/2423, (2018)). The regional treaties all converged in this direction. Article 58(1) of ECOWAS’s Revised Treaty stated that “Member States undertake to work to safeguard and consolidate relations conducive to the maintenance of peace, stability and security within the region”. In addition, ECOWAS adopted two protocols entitled “Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security” and “Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security”. These two instruments reinforced the contours of a democratic framework that could be implemented by states and provided for sanctions in the event of a failure to meet the obligations initially set out.

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Article 77 of ECOWAS’s Revised Treaty presented a (non-exhaustive) list of examples of sanctions that might be imposed in the event of a breach of obligations.

The Uncertain Impact of the ECOWAS and WAEMU Sanctions The various multilateral organisations within APSA with sanctioning powers applicable to the Malian case seemed to question the sovereignty of the Malian government in place since the 2020 coup d’état. However, international organisations were obliged to uphold the sovereign equality of their member states, as set out in article 2 of the Charter of the United Nations. This equality meant that the member states had the capacity to be independent and autonomous both within their own territory and in their relations with other states, which presupposed that one state was prohibited from interfering in the affairs of another according to the principle of non-intervention. One of the foundations of the coexistence and cooperation of states at international level, this principle of non-intervention conflicted with the principle of non-indifference, which, as already mentioned, was enshrined in the charters of the AU and ECOWAS and authorised interference in the affairs of a member state in situations where peace was threatened. From the point of view of competences, the UN Security Council and regional organisations within the APSA system (WAEMU, ECOWAS, AU) had the power and means to bring about a peaceful settlement of disputes based on the Charter of the United Nations through mediation processes (Chapter 6) and through taking action in the event of a threat to “international peace and security” (Chapter 7, articles 39, 40 et seq.) (Aning & Edu-Afful, 2016). In the Malian case, the sanctions imposed by the two RECs were directed at a particular type of threat to peace and security, namely the unconstitutional change of government, pursuant to articles 58 and 77 of ECOWAS’s Revised Treaty, as stated above. In 2021, symbolising the urgency of the situation after the failure of numerous mediation attempts, ECOWAS’s Authority of the Heads of State and Government met in an extraordinary session as a first step towards putting an end to the situation in Mali. The outcome was Decision MSC A/DEC. 02/11/2021 Imposing Targeted Sanctions against the Transition Authorities and all other Persons Hindering the Return

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to Constitutional Order in Mali. In addition to referencing article 58 of ECOWAS’s Revised Treaty and the various protocols cited above, this Decision also referred to ECOWAS’s Supplementary Act A./SA.13/02/ 12 of 17 February 2012 on the regime of sanctions imposable on member states who do not honour their obligations towards ECOWAS. In 2022, ECOWAS decided to take additional measures, which were subsequently endorsed by WAEMU. These sanctions included a “freezing of the assets of the Republic of Mali domiciled in the Central Banks and Commercial Banks of all ECOWAS Member States” and “of public and parastatal enterprises” as well as the “suspension of all financial assistance and transactions in favour of Mali by ECOWAS Financial Institutions”. In addition to these measures targeting the financial sector, there was a resolution to close Mali’s borders and suspend “all commercial and financial transactions between ECOWAS Member States and Mali”, heavily impacting the Malian economy. The Malian case shows that there are exceptions to the principle of non-intervention. The instruments adopted and ratified by the ECOWAS member states gave the suprastate organisation the right to intervene, in other words to non-indifference, when peace and security were under threat. We have already established that the Malian situation fell within this category. Clearly, the determination to preserve peace and security was such that it was considered acceptable to undermine a state’s sovereignty over its own territory in order to re-establish institutional balance and territorial integrity in an area that had been destabilised by terrorism and successive coups d’état. The measures adopted could have taken several forms, from military intervention to economic measures. In the present case, the two RECs decided to impose economic sanctions. Although these measures were ostensibly less coercive, they nevertheless raise questions concerning their rather heavy repercussions for Mali’s population. At continental level, the AU’s Peace and Security Council endorsed ECOWAS’s resolutions a few days after they were announced in January, 2022 by supporting the sanctions against Mali, reaffirming the need for the transitional authorities to respect the elections deadline and threatening further sanctions. While the UN Security Council expressed concern about the situation in Mali and called for early elections, it did not formally support ECOWAS’s sanctions, a passive position that

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stemmed from Russia’s and China’s veto. However, France, supported by the United States, tried to push through a resolution supporting these principles. The impact of the joint ECOWAS-WAEMU economic and financial sanctions is difficult to assess for four reasons. First, most of the daily economy in Mali depended on the informal sector. This means that a large part of trade was done at the microeconomic level and that, with the exception of exports from large companies, there was no traceability of the goods crossing Mali’s borders, making any macroeconomic analysis using the classical indicators difficult. The fact that most of the economy escaped institutionalised control also called into question the intrinsic effectiveness of the sanctions, because this economic system was also predominant among Mali’s trading partners in the West African region. Second, the official communication from Mali’s government suggested that it had anticipated the sanctions and had put in place a plan to nullify their effect during the period they were in place. While the findings from the interviews we conducted during this period with residents of Bamako and other major Malian cities, who spoke of a country in the midst of an economic crisis, tend to support the hypothesis that the sanctions were having a real impact, there are no reliable reports or studies that allow us to draw conclusions one way or the other. The country’s precarious economic situation even before the sanctions were imposed added to the uncertainty. Third, the sanctions were not uniformly applied. Many products and consumer goods were exempted from the embargo, and these exemptions were moreover interpreted very broadly, allowing the import– export trade to continue in some sectors. Fourth, Mali’s neighbour Guinea, not one of its main trading partners but nonetheless significant given its major port infrastructure and access to the Atlantic coastline, had been under de facto rule by a military junta headed by Colonel Mamadi Doumbouya, also president of the Comité National du Rassemblement pour le Développement, since a successful coup d’état led by Doumbouya on 5 September 2021. Doumbouya’s government officially condemned the ECOWAS and WAEMU sanctions and announced that it would not be applying them, offering Mali an import–export solution. The sanctions came in for some criticism. Concerning the effects of economic sanctions generally, the United Nations Commission on Human Rights had published a report in 2000 entitled “The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights” (Bossuyt, 2000), which reviewed the principles of legitimacy and

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proportionality of sanctions and advised that they must be targeted at those responsible and must be effective. It reported that populations were the first to be affected when economic sanctions were too broad and incompatible with the individual’s economic and social rights (Thouvenin, 2013). It also highlighted a paradox. Sanctions imposed to preserve a population’s civil and political rights undermined its economic and social rights. ECOWAS and WAEMU had difficulty finding an essential middle ground in the Malian situation. At the multilateral level, the sanctions generated tensions, because the governments of the two regional organisations’ member states were not all agreed on their relevance. These tensions led to an unusual situation for the two organisations, which were partners and complementary actors by agreement. ECOWAS’s sanctions, which had been endorsed by WAEMU on 9 January, 2022, were challenged within WAEMU by Malian lawyers. WAEMU’s Court of Justice upheld the grievances and threw out the sanctions in a ruling of 24 March 2022, which ordered a “stay of execution for the sanctions”. Emblematic of the crises of legitimacy facing the West African regional organisations at the time, this interim court decision was not ultimately applied until four months later, however. The fact that this ruling was not immediately applied was legally interpreted as a challenge to the enforceability of the Court’s decisions. In the field of international relations, this can be seen as a lack of uniformity between the subregional suprastate actors—the decision-making bodies— on the appropriate responses to an unconstitutional seizure of power. The coordination of the two organisations seems to have been called into question since this ruling, as evidenced by the need for the Accra summit in Ghana on 4 and 5 June 2022, where meetings between the two organisations’ member states were held successively. Representatives from Mali and Guinea did not attend the ECOWAS summit but were invited to the WAEMU summit. In July 2022, ECOWAS officially suspended the sanctions against Mali in a communiqué endorsed by WAEMU. The dissensions between the two organisations reflected the differences between their member states’ governments and also to some extent a growing scepticism among their populations. Although ECOWAS’s “2020 vision” roadmap for development aimed to create an “ECOWAS of the people” through a series of programmes and reforms, many activists denounced the organisation as a “union of heads of state”. This slogan, which circulated around the Sahelian social networks, brought ECOWAS face to face with its paradoxes. The activists criticised the fact that it

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sanctioned unconstitutional changes of government through coups d’état while remaining silent both on the constitutional changes introduced by Alassane Ouattara’s government in Côte d’Ivoire that allowed him to serve a third consecutive term and on the political situation in Togo, which was regularly tainted by electoral irregularities and where the office of president had been in the same family since 1967 (Faure Gnassimbé succeeded his father, Gnassingbé Eyadéma, who was president from 1967 to 2005). The supplementary measures announced by ECOWAS in January, 2022 and endorsed by WAEMU backed the Malian authorities into a corner. They nevertheless managed to find a means of recourse that guaranteed legal certainty and a favourable outcome. The emergency interim judge ruled in favour of Mali in March 2022, ordering a suspension of the measures proposed by ECOWAS and WAEMU pending the Court’s final judgement. Financial assistance from WAEMU’s funding institutions was also reinstated for Mali. This communiqué evidences a unification with regard to the two regional organisations’ decision-making, even if it came almost 6 months after the emergency interim judge’s ruling. Alongside this challenge to the legitimacy of the sanctions, there were other major issues such as the impact of these decisions on the Malian population. Action had to be taken and quickly. *** The sanctions imposed by ECOWAS and WAEMU were not outside their competences. It is important to emphasise that these two RECs had a fairly wide range of competences, from the elaboration of common rules in economic matters to prerogatives in matters of peace and security. While this singular architecture is sometimes difficult to interpret because it was so unique, it had the merit of being able to address the many problems faced by the states in the subregion. This made both organisations pillars of African cooperation and integration at the regional level. ECOWAS and WAEMU had the power to sanction member states in the event of a breach of the principles set out in their charters. This competence was a way of ensuring that the law of international organisations was effective and of guaranteeing that the obligations subscribed to by the member states were abided by. Over the decades, the member states had increasingly conferred powers on the regional and international organisations in the name of economic, legal and political integration, ceding some of their autonomy and sovereignty to multilateral actors in the process (Pellet, 2007). As a result, the two RECs had introduced

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supplementary protocols, particularly in the areas of democracy and good governance, and adopted resolutions to this effect to ensure respect for the rule of law while reiterating their commitment to the preservation of state sovereignty. The situation in Mali, which ran counter to the principles enshrined in the ECOWAS and WAEMU charters and therefore shared by their member states, was unfortunately not unusual. It is clear the RECs were tightening the screws to ensure that these extraordinary situations did not become permanent and that there was a minimum possible recurrence. However, it is important to stress that the principle of sovereign equality, which was frequently reaffirmed by the African states, presented an obstacle to the use of binding measures such as sanctions. These states, which had gained their sovereignty much more recently than their Western counterparts, found it difficult to strike a balance at either the internal or the international level (within the regional institutions). While the RECs were not hampered by these obstacles, the solutions they proposed required adjustment, because their legitimacy was sometimes questioned not just within the institutions themselves but also by the populations in question, who were on the front line when it came to the impact of their sanctions. In an area that remains destabilised, whether due to terrorism or to coups d’état, the regional organisations also act as guarantors of their member states’ sovereignty. By protecting the various values that the states subscribed to, they ensure that the states continue to function. This does not mean, however, that the measures taken are always appropriate. The validity of the embargo in the Malian case has been strongly criticised, and the responsiveness of WAEMU’s Court of Justice has been highly commended in this respect. This balance of powers between the Court, as a judicial body, and the executive bodies guarantees legal certainty and provides a safeguard in the event of excessive sanctions. The objective is thus to preserve both the member states’ sovereignty and the populations’ rights. A second criticism of the ECOWAS and WAEMU sanctions is that they were not uniformly applied to the various threats to peace arising from breaches of democracy within the member states. While the coups d’état in Mali (2020, 2021), Guinea (2020) and Burkina Faso (2021, 2022) were sanctioned and were the subject of communiqués, no measures were taken to open up Togo’s regime, presided over by the Gnassimbé family for over five decades, to greater transparency, democracy and good

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governance, and there was no concrete reaction from the RECs or the AU to the contested constitutional amendment introduced in 2020 by Ouattara’s government in Côte d’Ivoire to allow him to serve a third consecutive term under a new republic, despite the fact it had generated strong protests from the opposition. In political and legal terms, ECOWAS and WAEMU would thus benefit from greater coherence and consistency in their decision-making not just internally but also between one another and vis-à-vis all their member states. This was the conclusion reached by a reflection forum organised by the AU on 17 March 2022 in Accra. This forum, which brought together institutional actors and civil society, resulted in a new declaration (“Declaration on Unconstitutional Changes of Government in Africa”) that reaffirmed the preceding declarations and consolidated the guidelines for pan-African organisations concerning the need for and proportionality of the measures to be adopted.

References Ahoulouma, F. B., Alipoé, P.-P., Baba, K., Lawson, F., Maditoma, W., & Malou, T. (2022, January 26). Sanctions internationales contre le Mali: Et après? La Tribune. https://afrique.latribune.fr/think-tank/tribunes/2022-01-26/ sanctions-internationales-contre-le-mali-et-apres-902777.html Aning, K., & Edu-Afful, F. (2016). African agency in R2P: Interventions by African Union and ECOWAS in Mali, Cote D’ivoire, and Libya. International Studies Review, 18(1), 120–133. Avoulete, K. (2022). Should ECOWAS rethink its approach to coups? Foreign Policy Research Institute. https://policycommons.net/artifacts/2232800/ should-ecowas-rethink-its-approach-to-coups/2990718/ Bal, L. (2012). Le mythe de la souveraineté en droit international: La souveraineté des Etats à l’épreuve des mutations de l’ordre juridique international. Doctoral dissertation. Bettati, M. (2012). Du devoir d’ingérence à la responsabilité de protéger. PUF. Ben Achour, R. (2016). Changements anticonstitutionnels de gouvernement et droit international. The Hague Academy collected courses online. Brill. Boisvert, M.-A., Dwyer, M., Ramasy, J., Ngartebaye, E. L.-Y., Bako, H., Jobbins, M., & Ndiaye, B. (2022). Coups d’État en Afrique: Le Retour de l’Uniforme en Politique. Bulletin Francopaix. UQAM. https://dandurand.uqam.ca/wpcontent/uploads/2022/02/Bulletin_janvier-fevrier_Coups-dÉtat.pdf Bossuyt, M. (2000). The adverse consequences of economic sanctions on the enjoyment of human rights. United Nations. ECOSOC.

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Boulden, J. (2013). The United Nations Security Council and conflict in Africa. In J. Boulden (Ed.), Responding to conflict in Africa: The United Nations and regional organizations (pp. 13–32). Palgrave Macmillan. Charbonneau, B. (2017). Les Dilemmes de l’Intervention Internationale Au Mali [Project report]. Centre Franco-Paix, Chaire Raoul Dandurand en Études Stratégiques et Diplomatiques. https://dandurand.uqam.ca/wp-content/upl oads/2017/10/Rapport-Charbonneau-Fran%C3%A7ais.pdf Charbonneau, B., Debos, M., Hanon, J.-P., Olsson, C., & Wasinski, C. (2021). De la “guerre contre le terrorisme” aux guerres sans fins: La co-production de la violence en Afghanistan, au Mali et au Tchad. Cultures & Conflits, 123–124(3), 67–82. Charron, A. (2013). Sanctions and Africa: United Nations and regional responses. In J. Boulden (Ed.), Responding to conflict in Africa: The United Nations and regional organizations (pp. 77–98). Palgrave Macmillan. Cornu, G. (2007). Vocabulaire juridique. PUF. Déclaration d’Accra sur les changements anticonstitutionnels de gouvernement en Afrique. http://peaceau.org/fr/article/declaration-d-accra-sur-les-change ments-anticonstitutionnels-de-gouvernement-en-afrique ECOWAS. (1993). ECOWAS revised treaty. 08023646203 c. 08023646203. https://ecowas.int/publication/traites/?lang=fr Euronews. (2022, July 4). Mali: levée des sanctions de la Cédéao, soulagement à Bamako. https://fr.euronews.com/2022/07/04/mali-levee-de-sanctionsde-la-cedeao-soulagement-a-bamako#:~:text=Mali%20%3A%20lev%C3%A9e% 20des%20sanctions%20de%20la%20C%C3%A9d%C3%A9ao%2C%20soulage ment%20%C3%A0%20Bamako,-Discussion&text=Les%20habitants%20de% 20Bamako%20se,l’ouest%20(C%C3%A9d%C3%A9ao). Fau-Nougaret, M. (2012). (Ed.). La concurrence des organisations régionales en Afrique. L’Harmattan. Feukeu Tchoumba, M. A. (2021). Le pouvoir de sanction de l’Union africaine: analyse des mécanismes de coercition du système d’intégration régionale africain. L’Harmattan. Guiheux G. (1999). La théorie générale de l’État de Raymond Carre de Malberg. Revue juridique de l’Ouest, 1, 81–90. Helali, M. S. (2013). Le conseil de sécurité et la crise malienne. Civitas Europa, 31(2). International Criminal Court (ICC). (1984). Activités militaires et paramilitaires au Nicaragua (Nicaragua c. États-Unis d’Amérique). https://www.icj-cij.org/ fr/affaire/70 Karangizi, S. (2013). Les Communautés Économiques Régionales. In A. A. Yusuf & F. Ouguergouz (Eds.), L’Union africaine: Cadre juridique et institutionnel manuel sur l’organisation panafricaine (pp. 207–222). Pedone.

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Kwasi Tieku, T. (2013). The African Union. In J. Boulden (Ed.), Responding to conflict in Africa: The United Nations and regional organizations (pp. 33–50). Palgrave Macmillan. La Tribune Afrique. (2022, January 10). Mali: la CEDEAO durcit les sanctions, Bamako riposte. https://afrique.latribune.fr/politique/2022-01-10/mali-lacedeao-durcit-les-sanctions-bamako-riposte-899887.html Le Monde & AFP. (2022, April 28). Au Mali, les médias français RFI et France 24 définitivement suspendus. Le Monde. https://www.lemonde.fr/afrique/ article/2022/04/28/au-mali-les-medias-francais-rfi-et-france-24-definitiv ement-suspendus_6124002_3212.html#:~:text=Le%20couperet%20est%20t omb%C3%A9%20pour,tensions%20entre%20Paris%20et%20Bamako. Loada, A., & Wheatley, J. (2015). Transitions démocratiques en Afrique de l’Ouest. Processus constitutionnels, société civile et institutions démocratiques. L’Harmattan. Mahiou, A. (1993a). Le cadre juridique de la coopération Sud-Sud Quelques expériences ou tentatives d’intégration. Collected Courses of the Hague Academy of International Law, 241. Mahiou, A. (1993b). La Communauté économique africaine. Annuaire Français De Droit International, 39, 798–819. Moine, A. (2013). La prise en compte internationale de la nature du pouvoir au Mali. Civitas Europa, 31, 59–87. Moutou-Nkounkou, S.-M. (2019). Étude comparative de deux processus d’intégration régionale économique en Afrique subsaharienne: le cas de la CEEAC et de la CEDEAO [Master’s Dissertation, Université du Québec à Montréal]. http://oatd.org/oatd/record?record=oai%5C%3Aarchipel.uqam. ca%5C%3A12540 Mve Ebang, B. (2018). Les organisations régionales et la promotion de la démocratie en Afrique: cas de la CEEAC et de la CEDEAO. African Journal of Democracy and Governance, 5(4). https://doi.org/10.10520/EJC-1520d7 2779 Pellet, A. (2007). L’adaptation du droit international aux besoins changeant de la société internationale. Recueil des cours de l’académie de droit international, 13–47. Sall, A. (2016). Les relations extérieures de la CEDEAO. L’Harmattan. Smirnova, T. (2022). Les stratégies d’influence du Kremlin au Sahel. Bulletin FrancoPaix, 7 (9), 2–6. Songolé, R. (2020). Les rivalités entre organisations africaines. Civitas Europa, 45(2), 259–277. Souaré, I. K. (2014). The African Union as a norm entrepreneur on military coups d’état in Africa (1952–2012): An empirical assessment. The Journal of Modern African Studies, 52(1), 69–94.

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CHAPTER 10

Outer Space, War and Sovereignty Isabelle Sourbès-Verger

War in outer space is inevitable. This conviction of the United States Department of Defense, which appeared in the mid-1990s, has only grown stronger over the years. The question of the existence and use of weapons in space is a recurrent subject of debate in international forums such as the United Nations Conference on Disarmament, where, since 2008, Russia and China have been unsuccessfully proposing a Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT). The year 2019 represents a turning point and testifies to the increased attention of states regarding the possible use of force in this environment, which should has been preserved under international law. Indeed, we are witnessing multiple signs of preparation for possible confrontations: the reorganisation of forces and means with the creation of entities of various kinds in charge of preparing military operations (United States, France, India, Canada…), technical tests of destruction of national

I. Sourbès-Verger (B) Centre Alexandre-Koyré, Centre National de la Recherche Scientifique (CNRS), Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_10

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satellites (India, Russia) and, in parallel, a renewal of proposals in international forums to preserve security in space around confidence-building measures. The convergence of these events reinforces the idea that the nature of space activities is changing. The trivialisation of space as a theatre of military action after the land, sea and air ones is readily presented as a logical sequence, in line with the curse of the human species bringing war to all the places where its technological capacities allow it. The crucial role of satellites in the political, economic and above all military power of states would be the inexorable cause of a strategic rivalry, at the very least, and, in the long term, of confrontations in this new environment. This particular view amounts to distinguishing several categories of actors: those who are present in space and have military means, those who possess vulnerable satellites, and those who are mere users. However dominant it may be in current discourses, this approach overlooks several legal elements whose value should not be underestimated, as all actors are always keen to refer to them. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967 was developed very quickly, in 10 years, in parallel with the first space programmes, and signed by 105 states.1 It recognises in its Preamble “the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes”.2 Article 1 states that “the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”. It states that “space… shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law…”. Article II states that it “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. As for Article III, it stipulates that “States Parties to the Treaty shall carry on activities… in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding”. In

1 105 signatories in December 2022. 2 This reference to peaceful purposes is found in Articles IV, IX and X.

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fact, these obligations are not at all contested as such by states, which recognise them as a safeguard but choose to interpret them differently. This leads to a profound contradiction that explains why the relationship between space, war and sovereignty is difficult to describe. On the one hand, the nature of this environment, where there is no territorial base and where there is no possibility of appropriation, and therefore of sovereignty, should a priori disqualify it as a theatre of conflict. On the other hand, space is where objects circulate, namely satellites, which participate in the exercise by states of their power on Earth. The tipping point is the extent to which these systems feature in the national interest of states and therefore the crucial character of their security in orbit. From there, two paths open up. The sanctuarisation of the space environment, which corresponds to the spirit of the Treaty, was initially favoured. Today it is being challenged by the United States, which is officially asserting its desire for space dominance and space control in order to preserve its national security. This expression of a completely different vision tends to trivialise the space environment as a place of strategic confrontation, if not a place of military operations. What could be the implications of the national policy of a space hyperpower on the forms of occupation of the space environment, both in practice and in the framework of international relations? Finally, if these dimensions are of direct interest to political science and law, their geographical aspect, often forgotten, is nevertheless very real insofar as security concerns depend on the development of the respective technological capacities of states and their modalities of presence in space. However, there is an obligatory 10- to 20-year gap between the conditions of international relations at the time of the decision of the programmes and those which exist at the time of their use, which contributes to blurring the framework of interpretation. In order to get away from illusory images, which are very present in the representations of the practical conditions of the exercise of space activities and their future, it is, therefore, necessary to revisit the way in which the relations between war, sovereignty and outer space have been woven over time. Why did states choose, when the 1967 Treaty was drawn up, and then in their practices throughout the Cold War, to consider that war had no place in space? How do the states that are considering military action today position themselves in regard to international law and inter-state relations? Finally, what would be the characteristics of a “war” in space and what could it propose in terms of hegemonic power sharing?

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Space as a Singular Vector of National Security During the Cold War, 1957–1983 The beginning of space exploration falls within the particular framework of the International Geophysical Year (IGY), a scientific event devoted to the study of the Earth’s environment. The event took place from July 1957 to December 1958, in order to study the effects of a period of strong solar activity. The satellites that the United States and then the Soviet Union proposed to launch were intended to complement the information collected on Earth by all participating countries, thereby providing the first measurements taken in space (Siddiqi, 1997). The founding framework was one of cooperation and the data from the Sputnik and Explorer satellites would allow for the discovery of the Earth’s radiation belts. This disinterested contribution to knowledge is only within the reach of the two great actors of the Cold War, manifesting their superiority over all the other states (Krige & Oreskes, 2014). While the period of Earth exploration is over, the discovery of space and the capacity to make a man live outside his planet have become, after the control of nuclear energy, the mark of scientific and technological competence par excellence. But the Soviet Union’s success in launching not only Earth’s first “Little Moon”, as contemporary media described it,3 but also the first human, and their discovery of the hidden face of the Moon, revealed an unexpected hierarchy (Dickson, 2007). Space activity was part of an ideological competition characteristic of the Cold War, and it became a symbol of national pride as well as an element of international influence (McDougall, 1997). Until the Americans countered with Man’s walk on the Moon, space is first and foremost, in the eyes of public opinion, a place where scientific, technological and financial superiority can be demonstrated. To a lesser degree, the launching of a first satellite continues this perspective at a national level as well and aptly captures the essential symbolic value of a possible access for all states according to their rhythm of development. Negotiations on the content of the Space Treaty were unblocked in 1966, when both the Soviet Luna and American Apollo programmes 3 New York Times of October 5, 1957, Times Magazine of October 14, 1957, Life Magazine of October 21, 1957, «La petite Lune Rouge des Soviétiques», in Paris Match of October 12, 1957.

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were ready for the lunar landing. Each of them wanted a legal framework to exist. The Americans accepted the Soviet need for a binding Treaty, instead of Principles, and admitted that space activities should be carried out by states, private companies being able to intervene only under state responsibility. The final agreement was made on three essential elements: non-discrimination between the states, non-appropriation and application of international law—founding the legal regime of freedom of space. Under this regime, territorial sovereignty is explicitly banned, whatever the means of appropriation. In doing so, the Treaty gave satisfaction to all states which were thus also guaranteed the right to explore and use space when they had the technical capacity to do so. For the two superpowers, it prevented any dispute, moreso regarding the Moon and other celestial bodies than space per se. Finally, the Treaty took into account the particular nature of the space environment which, like the high seas, is not susceptible to occupation. It is important to note that this denial of sovereignty is fundamental. The comments on the Treaty even point out that this poses a problem insofar as it will not be possible, as with other gaps in international law, to refer to the principle of sovereignty as it is customary to do in order to define the applicable rule. The legal impasses will, therefore, have to be resolved by settlement and connecting rules. Thus, spacecrafts circulate in an environment that is not susceptible to national appropriation, which does not change the nature of the property rights that are exercised over them. This acquired framework concerns exclusively peaceful uses since they are the only ones authorised. Even if the integral demilitarisation desired by India was not accepted, and the Article IV concerning the Moon and other celestial bodies left a doubt as to the meaning of « space» since the word itself was not mentioned, the consensus of peaceful uses was acquired from the beginning of the negotiations—if only because the states did not have the technical means to intervene against the satellites in orbit. That being said, the follow-up of annual launches, declared to COSPAR and the IUT, shows the substantial share of military satellites since 1958 (Sourbès-Verger, 1991). The United States and the Soviet Union, therefore, chose to use them very discreetly and not to discuss them in international forums. This is why the 1965 British proposal for

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the creation of an international space organisation had no chance of being heard, no more than the later proposals made by France and Canada in the 1970s (Wolter, 2006). Here we find a blind spot in regard to the way national priorities concerning the use of military satellites are thought of in the context of nuclear strategy. The respective positions of the United States and the Soviet Union were, however, different. The initial American proposal to launch a satellite within the framework of the IGY was in fact inseparable from the American government’s desire to have reliable and up-to-date information on the territory of the Soviet Union, its cartography and its defence capabilities. The observation satellite, known as a reconnaissance satellite, was the only way to achieve this since the Chicago Convention, which governs air law, prohibits the overflight of territories without prior authorisation. Free movement in space was in line with the logic of the Open Skies policy defended by President Eisenhower but not with the Soviet Union’s position, which has always refused the policy. In June 1962, the Soviet Union led an active campaign at the United Nations affirming that the use of an artificial satellite for the collection of information on the territory of foreign states is incompatible with the objectives of humanity in its conquest of outer space. In this approach, it is not the principle of overflight but the fact that its use as a spy satellite interferes with the security of the observed state that justifies their right to destroy it (Zadorozhnyi, 1962). In response, the United States considered that no relevant separation could be made between military and non-military uses of space and referred to the law of the high seas to refute the Soviet position. Alongside the negotiations on the Treaty, both the Soviet Union and the United States, worried about the space capabilities of their adversary, conducted their first attack tests on their own satellites. These demonstrate that the option of offensive action in space has not been abandoned, but also show the technical difficulty of this type of operation (Stares, 1987). The material conditions of the time (the impossibility of identifying the mission of a satellite in orbit and the impossibility of intercepting it at an altitude exceeding 100 km) finally led the Soviets to renounce their desire to prohibit the observation of territories from space. Nevertheless, the very sensitive character of this practice remains. The United States practised it from 1960 in the utmost secrecy (Day, 1997). The

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satellites code-named KH (Key Hole) are declared under the name «Discoverer» and their mission will only be officially recognised after the declassification of the Corona programme in February 1995. Actually, the information provided by American (and soon after Soviet) reconnaissance satellites played an essential stabilising role, as soon as the non-existence of the Missile Gap denounced by the CIA was proven (Jasani, 1982). The gradual improvement of diplomatic relations between the two great powers finally led, in 1972, to the signing of the bilateral SALT-ABM agreement on the limitation of strategic arms, the first major agreement on the control of nuclear capabilities. The text specified that the United States and the Soviet Union undertake to not interfere with the National Technical Means, which include satellites, recognised as indispensable for verifying compliance with the commitments of each party. Satellites are now part of the Détente and are essential to ensure strategic stability (Krepon, 2003). The existence of satellites for detecting nuclear explosions and providing early warning of missile launches was part of the same logic, but with an even more fundamental importance, since they guaranteed the possibility of a second strike, which was at the heart of the doctrine of Mutual Assured Destruction. The development of military programmes, which became increasingly important in the 1970s, did not only concern surveillance but also telecommunications and positioning (Verger et al., 2003). The progress made by the United States in its systems’ performance compared to Soviet means was evident from the beginning of the 1980s (Johnson, 1987). These programmes corresponded to a new approach to their global superiority in which the collection and processing of information became essential on the civilian and military levels. Satellites offer a global presence and provide an incomparable infrastructure for conducting military operations. It is, therefore, essential for national security that they be protected from any enemy attack. Two options then appeared: either space could evolve towards a sanctuary or it could become a locus of domination. The Carter administration pursued the first, and in 1978 undertook negotiations with the USSR on the limitation of activities conducted against space objects, while developing new airborne antisatellite capabilities. The idea of avoiding confrontations in space was confirmed as being mutually beneficial. In 1981, the Soviet Union proposed to the United Nations Assembly a first draft on the prohibition of anti-satellite weapons in space. Two years later, in 1983, the new Secretary General Y. Andropov, who succeeded L. Brezhnev, pursued the peace

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initiative by declaring unilaterally that his country would renounce the first use of ASATs. He also announced a moratorium on ASAT tests, and, in August of the same year, the Soviet delegation submitted a new draft to the United Nations General Assembly that intended to prohibit “the use of force in outer space and from space on Earth”.4 The mention of a possible offensive use of satellites refers to a turning point in American policy initiated by President Reagan when he came to power.

Space as the Undisputed Infrastructure of American Military Superiority, 1983–1994 The link between nuclear deterrence and space has been at the heart of American policy since 1946, 10 years before the beginning of the Space Age. Space capabilities became an essential tool of sovereignty since they contribute to nuclear deterrence (Pasco, 1997). For the United States and the Soviet Union, the only two space powers at the time, the budgets allocated and the experience acquired led them during the first 20 years to prioritise the search for security. They sought to exclude conflicts in space, the potential benefits having less value than the guarantees of stability provided by space technology.5 If the violation of the Soviet Union’s full sovereignty over its territory by the overflight of satellites represented a weakness for the country, which it had to adapt to, it was undeniably an asset for the United States. Space was a new environment that reinforced its status as a global power. It was also part of the theme of the Frontier, which was central to the American imagination in regard to space. President Kennedy mentioned this “New Frontier” in the context of the Apollo programme, and President Reagan talked about the “High Frontier”, which played on the notion of a high point, underlining the military value of space. The growing scale of investments in the development of new programmes intended to increase their terrestrial capabilities, both civilian and military, and since the beginning of the 1980s has resulted in an indisputable superiority in space activities (Lupton, 1988).

4 UN General Assembly, document A/38/194, August 22, 1983, annexed to the OTA report “Anti-Satellite Weapons, Countermeasures and Arms Control”, September 1985. 5 The very small number of ASAT tests, around ten, shows the fundamental difference in approach compared to the hundreds of nuclear weapons tests carried out by the two countries.

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In 1983, this technological advance led to President Reagan’s televised announcement of the Strategic Defense Initiative programme, which formalised a complete reversal of perspective. Immediately dubbed “Star Wars” by the media, in reference to George Lukas’ trilogy which was then released on screens and to his great displeasure, the project does not, however, concern a war between space systems but the will to render obsolete the doctrine of mutual assured deterrence. Reagan’s objective was to protect the territory of the United States from enemy missiles by intercepting them during their trajectory, thanks to hundreds of small satellites, Brilliant Eyes and Brilliant Pebbles, associated with destruction systems that included directed energy weapons. The declared ambition was to create a shield in space. However, insofar as these means could also be used against satellites, this amounted to promoting the installation of offensive capabilities in space. As long as military satellites did not have offensive capabilities their nature was interpreted broadly as peaceful, but this interpretation was suddenly undermined. It was indeed weapons that President Reagan suggested to place in orbit by extending missile defence to space, a choice whose underlying principle would remain even after President Clinton officially abandoned the SDI programme in 1993 (Bowen, 2020). The aims of the American approach raised many questions (Bulkeley & Graham, 1986). On the one hand, American scientists considered that the 100% reliability that the programme had to satisfy was not realistic. On the other hand, by proposing the use of offensive systems in space, the United States was opening a Pandora’s box, while its dependence on its satellites was much greater than that of its adversaries (Klein, 2006). If it had to replace the destroyed satellites, its launching capacities based on the Space Shuttle were much inferior to those of the Soviet Union, which had a wide range of reliable and inexpensive launchers. The denunciation of the SDI by the Soviet Union focused mainly on how it revisited the strategic balance that had shaped the Cold War, even if the feasibility of the programme was not considered credible. It gave rise to the reactivation of anti-satellite programmes, while the defence industries demanded new budgets to maintain parity with the United States by conducting research and development programmes. This financial dimension was decisive. While SDI represented a windfall for American industry, which was assured of long-term budgets, the opposite effect was occurring in the Soviet Union, where the arrival of Mr Gorbachev in power marked a new approach to national security (Sagdeev, 1994).

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While new states, such as Europe, Japan, China and India, were building their own space capabilities, and the Soviet Union, with its faltering economy, was reducing its ambitions, the United States pursued newfound technological ambitions in space and further widened its lead amidst relative indifference from the international community (Bormann & Sheehan, 2009). The 1990s mark the culmination of this new paradigm in which space became the privileged place for the exercise of American hegemony, which was made official by the disappearance of the Soviet Union. In 1991, the war against Iraq for the liberation of Kuwait became the “first space war”, an interesting expression insofar as it was indeed a terrestrial war but a highly technological one, in which systems in orbit were largely mobilised. During Operation Desert Storm, the command and the troops on the ground exploited the entire space infrastructure: navigation satellites, communications satellites, meteorological satellites, reconnaissance satellites and anti-missile warning satellites. Space officially became the new “High Ground”, that of strategic superiority, a dimension confirmed in the years that followed with continued investment in new, more efficient programmes, the results of which were even more impressive in 2003, during the second Gulf War. Beyond the contribution of space to the economic and industrial superiority of the United States, the importance of the budgetary efforts made since the beginning of the space era was justified by the advantage conferred both in the preparation and in the follow-up of operations, even if it appears that improvements are to be taken into account. At the same time, the initial conviction that space is a key element of deterrence is coupled with the recognition of satellites as indispensable tools for leveraging traditional capabilities. Ensuring their security has become a priority. The idea of controlling space is becoming more and more popular in the United States, while new actors are appearing with their own capabilities, another major change compared to the former duopoly with the Soviet Union (Sadeh, 2012).

The United States’ Supremacy in Space Facing a Potential Challenge, 1995–2006 In 1995, the Pentagon, concerned with preserving its technological superiority on Earth through its space fleet, introduced the notion of Space Dominance (Lutes et al., 2011). In the continuity of Air Dominance,

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Space Dominance conveys the desire to have the necessary capabilities to ensure the full use of space assets. However, it should be noted that considering the aerospace environment as a whole is an illusion. Indeed, the laws of celestial mechanics mean that the rules of air operations cannot be transposed to space. This is particularly the case with satellites, which do not have the flexibility to manoeuvre and only cover theatres of operation for limited periods of time. In fact, the question of space superiority is moot: the disappearance of the Soviet Union and the rapid weakening of its space capabilities mean that the United States has no competitor. The gradual increase in American discourse of a will to control space is an acknowledgement of a factual situation (Sourbès-Verger, 2004). Space is a privileged place to express their hegemonic position in this period of Pax Americana where satellites do not know any other threat than space debris. The year 2001 marked a sharp inflection point. The space capabilities that China was gradually acquiring played a triggering role in American concerns (Dean, 2012). Celebrated as decisive in American superiority, space is now seen as a place that can be threatened in asymmetric warfare (Havercroft & Duvall, 2009). In Congress, the Commission to Assess United States National Security Space Management and Organization, chaired by D. Rumsfeld, validated a report without appeal: space warfare is “a virtual certainty” as shown by the lessons of history according to which “every medium — air, land, and sea — has seen conflict. Reality indicates that space will be no different”. This analogy is pushed to the point of evoking the risk of a “Space Pearl Harbor”. It concludes with the necessity to develop a superiority designed to allow “power projection in, from, and through space” in order to “negate the hostile use of space against U.S. interests”.6 The second war in Iraq is an even more spectacular demonstration of the United States’ interest in space capabilities, especially with regard to technological superiority and their ability to reach victory from a military point of view. Satellites provide the infrastructure for a new type of warfare resulting from the Revolution on Military Affairs (RMA). The concept supposes the combination of 3 factors: a military-technical revolution which takes into account the military applications of new technologies, 6 “Executive Summary”, in Report of the Commission to Assess United States National Security Space Management and Organization (Washington, DC: Commission to Assess United States National Security Space, January 11, 2001), pp. vii–xxxv.

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the adaptation of strategies to the technological revolution and the adaptation of military organisations. In fact, the availability of space means is a decisive element in the use of information technologies which are at the heart of this military-technical revolution. Satellites provide exceptional means for the acquisition of intelligence resources and for the guidance of precision strikes. The pace of operations and the observe-decide-act cycle are considerably accelerated. The theatre of operations is expanding and the integration of equipment allows the coordination of different independent systems. This multiplies their effectiveness by creating a system of systems that combines capabilities to ensure that space data may be accessed at any point (Dolman, 2002). However, if space capabilities are part of the evolution of American concepts, space itself is only concerned by the necessity of free movement. Space at this stage can be compared to the high seas, where the point is not to have a space of sovereignty, but to be able to control lines of communication from support points. However, other principles govern the space environment. In space, satellites’ movements are determined by their orbital parameters, and changes of trajectory are possible but extremely costly in terms of propellants. This leads to a significant shortening of the spacecraft’s life, since refuelling is impossible. Therefore, keeping their orbit determination a secret is mainly how satellites remain protected. And their contribution to battle is proportional to their number, in order to provide global ground coverage. In this context, anything that might interfere with the free use of space becomes a threat. Yet the increase in the number of satellites belonging to new states complicates space surveillance considerably. Very early on, the United States were concerned with their ability to follow all space systems by identifying them with highly developed optical means, both from the ground and with radar technology. However, verifying the nature and objectives of satellite mission is impossible, and the duality of applications represents an additional risk. The Department of Defense’s 2002 publication of the Joint Doctrine for Space Operations (JP3-14), followed by the US Air Force Counterspace Operations Doctrine (2004), opened the debate on the use of weapons in space—whether from Earth, between satellites, or eventually from space against ground-based means. President Bush’s official publication in 2006 of the National Security Space Strategy acknowledges future threats by issuing the Space Control doctrine. It consists in the ability to temporarily or permanently prevent the use of systems deemed

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threatening, including in a preventive manner. The preliminary step is to reinforce the means of space surveillance, a capacity that only the United States possess at this degree of precision, Russia having limited means, and Europe and China almost none.

Space as a Theatre of Military Operations, Myths and Realities, 2006–2019 The theme of possible armed confrontations in space is gradually spreading through the international community (Arbatov, 2011). It reflects different approaches that correspond to the respective technological capacities and strategic objectives of each country (Pasco, 2006). Since 2006, Russia and China have thus been speaking out against the American position, and, in 2008, they proposed to the Conference on Disarmament and the Committee on the Peaceful Uses of Outer Space (COPUOS) that the installation of weapons in orbit be prohibited. They called for the respect of the 1967 Treaty’s spirit regarding peaceful uses and equal treatment in access to space, a prerogative of humanity. Their position was widely supported by the international community, with the exception of the United States and its closest allies, who considered the initiative restrictive and incomplete due to an insufficient definition of the notion of weapon, and to the failure to consider the firing of anti-satellite missiles from the ground. In practice, the position of the United States led to a first wave of resumption of anti-satellite tests. While the United States and the Soviet Union had ceased anti-satellite tests against their own satellites since 1985,7 China carried out its first missile launch from the ground against one of its non-operational satellites in January 2007. This demonstration was followed by a United States launch in February 2008. But the argument put forth by the Pentagon was of a completely different nature: the satellite being no longer controlled, it was necessary to destroy it in order to prevent the ensuing damages of its fall to Earth. In both cases, neither of the two states mentioned the logic of sovereignty. For China, this launch was a technological experiment and part of their effort to catch-up to existing technologies, making it the third space power to gain

7 The last American firing of the twentieth century with an airborne missile was on 13 September 1985. The Soviet Union had announced a unilateral moratorium in 1983.

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a mastery of kinetic interception. For the United States, it was a question of assuming its responsibilities as a launching state and controlling potential damage. The Chinese demonstration, however, had a particular effect on the international community. Since the launch was carried out at a high altitude, the thousands of pieces of debris born from the impact are likely to remain in orbit for several decades, thus increasing the risk of accidental collisions for all satellites, regardless of their status—civilian or military, governmental or private—and their nationality. The international debate is, therefore, shifting towards the notions of safety of systems in orbit: the question of specific responsibility for the production of debris is coming back to the forefront, with an increased concern for commercial actors who are equally, or even more threatened given their lesser protection. The noose is tightening. The United States cannot let the systems at the heart of its national security be threatened. Any sign of its desire to control the space environment will entice their competitors to acquire their own capabilities. In doing so, they will develop precisely the means that the United States wanted to avoid at all costs. For many states, the American position is unfair since their capabilities are far superior to any other power. China can then present its test as a defensive capability. Conversely, transforming space into a battlefield is not in the interest of any of the protagonists, and certainly not of the United States, which is the largest user of space. Moreover, Russia and China, which do not use their military satellites nearly as much, do not wish to invest large sums of money in anti-satellite weapons, even if they are defensive. Finally, third countries can only speak out against pollution or the risk of domination of an environment that is deemed free of ownership. The description of space as “Congested, Competitive and Contested” in President Obama’s 2011 US National Security Space Strategy confirms the desire to guarantee and strengthen US security in space in order to preserve its national security, while at the same time wanting to boost its industrial base. In order to achieve this, the United States favours diplomatic means and international accountability, while still keeping an approach based on deterrence and retaliation to attacks that would threaten national security’s space infrastructure. The need to preserve the status quo finally prevailed under the Obama administration. It had already displayed during its campaign its interest in a reasonable measure of arms control in space. The question of security then shifted to the conditions of shared space surveillance, transparency

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of civilian operations in orbit and the establishment of a code of good conduct—a European proposal from 2012 in Vienna that was part of a multilateral diplomatic process (Sourbès-Verger, 2012). On a practical level, space traffic management is becoming increasingly sensitive. Constellations of several hundred or even thousands of satellites in low earth orbit increase the risk of collision and of the Kessler syndrome, where collisions cascade and produce so much space debris that certain orbits become unusable for long periods of time. The concreteness of the threat, or at least its magnitude, is a decisive element, as the disadvantage of a weaponisation of space is clear to all. For the states who possess such means, the capacity to monitor space becomes crucial since it allows to identify the author of a possible attack, and to prevent it by manoeuvring the threatened satellite if possible. Once again, the interdependence that characterises movements in space calls for restraint. Politically, while self-defence is allowed in space as it is on Earth, the denunciation of aggression greatly reduces this risk. The crux of the debate is whether or not to maintain, and at what cost, the specific advantage that the United States has built up in space. This advantage has taken on a new dimension with the even greater integration of space assets into weapons systems, for which they no longer represent multipliers but rather enablers. It is clear that states that do not possess such means have every interest in keeping them vulnerable, which further disqualifies their position in the eyes of the United States. The fact remains that the cost–benefit analysis is still in favour of general restraint, at least in discourse, since no one can verify the payloads in orbit.

National Positions: Between Deterrence and Operational Means, 2019–2022 From 2019 to 2022, a succession of events shows an implicit consensus on the expectation of a war in space or, at the very least, on the possibility of offensive military operations on space systems. Nevertheless, there is a gradation in national positions that corresponds to the degree of space use and therefore to each state’s dependence on its own space assets,

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and on its own intervention capabilities. Thus, President Trump’s decision in August 2019 to create the Space Force8 as the 6th branch of the Armed Services is an indication of the United States’ determination to ensure its freedom of action in space and to consolidate its status as a space hyperpower in the continuity of the Space Dominance displayed twenty-four years earlier (Dolman, 2019). This decision contributes to the singularity of the United States, which develops an exclusively space-based operational command. The creation by France, in 2019, of the Space Command within the Air Force corresponds to a slightly different position since the concept put forth is that of active defence. The idea is to develop the means to invest in space and to defend oneself if necessary, since the national military strategy includes it as one of its fields of action. Even if this is mainly a position of self-defence in order to preserve the exercise of its power in a space of conflict, France admits the plausible character of potentially offensive actions against its own systems. It, therefore, supports, at least indirectly, the United States’ analysis of the existence of credible threats. Finally, it does not deny itself the use of weapons to ensure this active defence, since lasers are mentioned. China’s position is different still, since the Strategic Support Force was created under the direct responsibility of the Central Military Commission that took place in 2015 as part of the reform of the People’s Liberation Army (PLA). This force is not dedicated exclusively to space but also to its electronic, cyber and information-warfare capabilities. The objective is to bring together common resources for better use of space capabilities within the forces, from launch capability to information acquisition and transmission, with a defence of space systems that includes anti-satellite missile capabilities. Finally, Russia has the old Aerospace Defense Forces, reorganised in 2011, which integrate space and air defence. This format has varied over time, with a more or less marked independence from the Strategic Missile Forces.

8 StratCom’s autonomous Combatant Command was reinstated in 2018 by President Trump. It was then transformed into the Space Force in 2019 (Space Policy Directive-4 of February 19, 2019) and passed by Congress in the National Defense Authorization Act for 2020.

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Apart from these four cases, the other space powers have created space defence agencies that are more oriented towards the acquisition of information for military use, such as Japan and India, but also South Korea, which until then had exclusively civilian space activities. Alongside these reorganisations, India’s 2019 and Russia’s 2021 ASAT tests have reinforced a sense of threat. However, the two cases are quite distinct. Russia has long had ASAT capabilities, which it reactivated in 2015 after a 30-year hiatus with non-target destruction tests. India, on the other hand, has broken with its historical defence stance of exclusively peaceful uses, while taking care to limit debris impacts. Its motivations are both internal and external. Indeed, as soon as he came to power, Prime Minister Modi commissioned a study on the effects that an Indian ASAT launch would have on the international scene. Beyond the desire to demonstrate capabilities identical to those of China, India wants above all to not be penalised by non-proliferation agreements that could intervene in the field of space, like the NPT did with nuclear energy. The test is, therefore, both a demonstration of competence and a precautionary measure. In fact, this overview includes several realities. The reasons behind a war or offensive operation in space would be found in the desire to weaken the capabilities of the enemy before or during a conflict. The aim is to put space systems out of operation, which can represent a very wide range of satellites: intelligence, telecommunications, positioning, meteorological… We thus arrive at a paradox. The more a state has space capabilities, the more it fears for the security of these systems—but it becomes increasingly difficult to weaken it durably without suffering retaliation. This is, therefore, a relative deterrent in the case of asymmetric conflict. For the United States, which shows the greatest concern while being the only one to have vastly superior offensive and defensive capabilities, the advantages that its adversaries can hope to gain from an attack remain small. Significant operations of a real magnitude would only happen in a desperate case, in the context of an already declared war that would imply blind actions with inevitable collateral effects.

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Conclusion There are no claims of national sovereignty of a territorial nature in space because no state questions Article II of the Outer Space Treaty. As for the right of passage in space, which implies the overflight of territories, it is considered inevitable under the combined effect of custom and technology. Space systems are perceived as a physical extension of the sovereignty of the states that own them and that are responsible for their use. This is the meaning of W. Cohen’s 1999 Space Policy Directive (3100-10): any “purposeful interference with space systems shall be viewed as an infringement upon U.S. sovereign rights”. In this case, the practice of military actions in space has every chance of occurring as long as the state concerned has the required technological capabilities. In an international context of growing tensions, there is a consensus that activities in space must be protected because they contribute to national security. But what does this mean in practice? A treaty ban on weapons in space, as proposed by China and Russia, is rejected by the United States, which stresses the possible devastating effects of improvised weapons, such as debris, when verification conditions are not possible. However, considering the installation and use of weapons in space also poses numerous problems, in particular regarding the attribution with certainty of an attack, if one wishes to use one’s right of self-defence. The legal dimension, therefore, remains very present. Academically, the development of a manual such as MILAMOS is based on the principle that legal rules need to be clarified to avoid the risk of an accident in peacetime (Jakhu & Freeland, 2022). Diplomatically, new non-binding proposals are emerging such as the UK’s Open-Ended Working Group initiative (OEWG), adopted in December 2020, that allows experts to consider the measures needed to reduce threats to space systems. Good behaviour standards could thus serve as the basis for a future, more binding treaty. The announcement made in 2022 by the United States that it will stop its ASAT tests is part of the same movement of appeasement (Weeden & Samson, 2022). However, this did not convince China, which ironically noted that this was proof that the United States no longer needed tests to qualify its ASAT systems. Raising the spectre of war in space can also serve as an instrument of dissuasion. The conditions of attack are difficult and conditioned by the knowledge of the space situation, i.e. the characteristics of the targeted systems’ orbit determination. Space Situational Awareness is, therefore, a

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key factor for offensive and defensive operations. The more states have it, the greater the resulting transparency, reducing the overall level of risk. Indeed, the most dangerous operations are those that could not be identified and that would lead to temporary incapacitation. Contrary to the American vulgate, which is increasingly widespread, it is not possible to transpose into outer space the classical approach of war as an exercise of sovereignty, at least in the way it has shaped the history of states on Earth (Gautier, 2021). This is mainly because satellite ownership is the only thing that exists, and in this moving world, the traditional categories of appropriation cannot take place. In a particular environment where the conduct of offensive operations, or even war, would bring few benefits, the physical specificities of the environment, transcribed in the principles of law and in practices, are key to understanding the particular modalities of carrying out space activities.

References Arbatov, A. (2011). Russian perspectives on spacepower. In C.D. Lutes, P. L. Hayes, V. A. Manzo, L. M. Yambrick, M. E. Bunn (Eds.), Toward a theory of spacepower: Selected essays. Institute for National Strategic Studies, National Defense University. Bormann, N., & Sheehan, M. (Eds.). (2009). Securing outer space. Routledge. Bowen, B. E. (2020). War in space: Strategy, spacepower, geopolitics. Edinburgh University Press. Bulkeley, R., & Graham, S. (1986). Space weapons: Deterrence or delusion. Polity Press. Dean, C. (2012). China’s military role in space. Strategic Studies Quarterly, 6(1), 55–77. Day, A. (1997). Cold war military space history; programmes. Journal of the British Interplanetary Society, 50(6), 202–224. Dickson, P. (2007). Sputnik, the shock of the century. Walker & Co. Dolman, E. C. (2002). Astropolitik: Classical geopolitics in the space age. Frank Cass. Dolman, E. C. (2019). Space Force Déjà Vu. Strategic Studies Quarterly, 13(2), 16–22. Gautier, L. (Ed.). (2021). Mondes en guerre, Vol. 1: Guerre sans frontières 1945 à nos jours. Passés composés. Jakhu, R. S., & Freeland, S. (Eds.). (2022). McGill manual on international law applicable to military uses of outer space, Vol. 1: Rules. Centre for Research in Air and Space Law.

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Jasani, B. (Ed.). (1982). Outer space: A new dimension of the arms race. Stockholm International Peace Research Institute. Johnson, N. L. (1987). Soviet military strategy in space. Jane’s Information Group. Klein, J. J. (2006). Space warfare: Strategy, principles, and policy. Routledge. Krepon, M. (2003). Space assurance or space dominance: The case against weaponizing space. The Henry L. Stimson Center. Krige, J., & Oreskes, N. (2014). Science and technology in the global cold war. MIT Press. Havercroft, J., & Duvall, R. (2009). Critical astropolitics: The geopolitics of space control and the transformation of state sovereignty. In N. Bormann & M. Sheehan (Eds.), Securing outer space. Routledge. Lupton, D. (1988). On Space Warfare: A Space Power Doctrine. U.S. G.P.O. Lutes, C. D., Hayes, P. L., Manzo, V. A., Yambrick, L. M., & Bunn, M. E. (2011). Toward a theory of spacepower: Selected essays. National Defense University. McDougall, W. A. (1997). The heavens and the earth: A political history of the space age. Johns Hopkins University Press. Pasco, X. (1997). La politique spatiale des Etats-Unis: technologie, intérêt national et débat public, 1958–1995. L’Harmattan. Pasco, X. (2006). A European approach to space security. American Academy of Arts and Science. Sadeh, E. (Ed.). (2012). Space strategy in the 21st century. Routledge. Sagdeev, R. (1994). The making of a Soviet scientist. Wiley. Siddiqi, A. (1997). Korolev, Sputnik and the international geophysical year. In D. Roger, J. Launius, M. Logsdon, &R. W. Smith (Eds.), Reconsidering Sputnik: Forty years since the Soviet satellite (pp. 1–13). Routledge. Sourbès-Verger, I. (1991). Peaceful and non-peaceful uses of space: Problems of definition for the prevention of an arms race (B. Jasani, Ed.). Taylor & Francis. Sourbès-Verger, I. (2004). La militarisation de l’espace: perspective européenne. Annals of Air and Space Law, 24, 357–379. Sourbès-Verger, I. (2012). Space code of conduct: What is at stake? In A. Lele (Ed.), Decoding the international code of conduct for outer space activities (pp. 82–88). Institute for Defence Studies and Analyses. Stares, P. B. (1985). The militarization of space: US policy, 1945–1984. Cornell University Press. Stares, P. B. (1987). Space and national security. Brookings Institution Press.

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Verger, F., Ghirardi, R., & Sourbès-Verger, I. (2003). The Cambridge encyclopedia of space, missions, applications and exploration. Cambridge University Press. Weeden, B., & Samson, V. (2022, January 14). It’s time for a global ban on destructive antisatellite testing. Scientific American. Wolter, D. (2006). Common security in outer space and international law. UNIDIR. Zadorozhnyi, G. P. (1962). Basic problems of the science of space law. In Y. Korovin (Ed.), The Kosmos and international law. Institut Mezhdunarodnykh Otnosheniy.

CHAPTER 11

Foreign Military Bases and the Sovereignty of Local Communities: The Case of Poland Grzegorz Smułek

Sovereignty is a fundamental attribute of modern states. With the development of political, social, and legal thought this attribute is also extended to the nation, society, and the individual (Rosicki, 2010). Along with population and power, it is a feature that determines the international recognition of a state’s rights to self-determination. According to Krasner (1999), four types of sovereignty can be distinguished in relation to countries and statehood: Westphalian, legal international, internal, and interdependenct. Sovereignty is, therefore, also related to the concept of territory and borders—spatially determined factors and processes. This includes areas on land, in air space, in territorial waters, and below the ground. Today there are various forms of extraterritorial entities,

G. Smułek (B) Social Sciences Doctoral School, Jagiellonian University, Krakow, Poland e-mail: [email protected] Institute of Geography and Spatial Management, Jagiellonian University, Kraków, Poland © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_12

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including ships in territorial waters, diplomatic missions, private diplomatic residences, or parts of neighbourhoods occupied by diplomats (Cassel, 2012). Foreign military bases (FMBs) are a special example of extraterritoriality. They can be defined as installations created to serve as support for military operations and logistics beyond the borders of the home country (Glebov & Rodrigues, 2009). Among other things, within the framework of international alliances, countries send their soldiers and equipment to strategically important locations while strengthening relations with the host country. There are also multinational battle groups within the North Atlantic Treaty Organisation (NATO). Cooperation between these units increases the organisational and operational strength and unity of allied troops and also the effectiveness of their actions in the event of a possible threat or conflict. In Europe, FMBs operate for the most part on the basis of the Status of Force Agreement (SOFA). Currently, in the light of the war in Ukraine, units located in Central and Eastern Europe are of particular importance to NATO. Due to its geographic and strategic location Poland plays a special role, with more than 10,000 soldiers from the armies of NATO countries (mainly the USA) stationed in the country (www.gov.pl/…). On the one hand, this strengthens regional and national security, but, on the other hand, it can have negative consequences on a local scale. Thus, on the scale of the state questions arise about sovereignty, and on the scale of the individual about justice and security. The purpose of this chapter is to present the perspective of leaders who represent local communities in Poland where NATO troops are present, in the context of sovereignty and independence. The chapter is based on data obtained from 40 semi-structured interviews conducted with representatives of local authorities, educational and cultural centres, business owners, and people providing services to foreign troops. The interviews were conducted in the summer of 2021 and the spring of 2022 in municipalities close to bases where US and other NATO troops are stationed. The locations were selected on the basis of previous pilot studies. The areas are listed below by town and city followed by the names of the units and the nationality of the troops stationed nearby. ´ etoszów—Zaga ˙ • Bolesławiec—Swi˛ n´ Team Element—USA)

(Armoured

Brigade

Combat

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• Orzysz—Biała Piska (NATO Enhanced Forward Presence (eFP) Battlegroup—USA, Croatia, Great Britain, Romania) • Łask—Buczek (52nd Operations Group Detachment 1—USA) • Mirosławiec (52nd Operations Group Detachment 2—USA) • Powidz (Rotational Logistic and Aviation—USA) • Słupsk—Redzikowo (Naval Support Facility—Anti-missile Base— USA) In the first part of this chapter, I address the problem of sovereignty in the case of the presence of foreign troops on national territory. Then I present the historical context of the presence of foreign troops and military bases in Poland. The following section is a presentation of the results and analysis of the data from the interviews conducted. Finally, I will discuss topics and issues that emerge from the data and present my conclusions.

Foreign Military Bases and Sovereignty Regardless of the nature of the presence of foreign troops, social, economic, and legal conflicts and disputes can arise in the course of their operations. Over time, host states place greater conditions and demands on the foreign entity. Actors in host states, at both local and national levels, and military planners of “guest” states are now more attentive to issues of sovereignty, law, justice, and civil–military cooperation (Yeo, 2014). In this chapter, I analyse the elements of sovereign military basing, defined as a long-term foreign military presence in time of peace, without interference in the host country’s domestic structures. This form of military base is distinct from a presence associated with temporary circumstances, as in the case of military contingents or intervention during conflict (Schmidt, 2014). The foreign military presence operates mainly on the basis of lease agreements. A lease agreement is an international legal instrument that sets the terms of use of the land by the beneficiary state, while obliging the host state to suspend the exercise of some aspects of its sovereignty there, such as jurisdiction of its institutions or application of its laws (Strauss, 2021). Despite de jure regulation, the host state’s sovereignty may be incomplete de facto. An example can be found in Eastern European states during the Cold War, where state structures were controlled by the Soviet Union and remained dependent on decisions made in Moscow.

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Both at the local level and at other levels, there are examples of people who organise to oppose the military presence of another state on their territory. In the literature social movements against FMBs are collectively referred to as the anti-base movement (ABM) (Vine, 2019). Locally, this opposition is associated with the negative effects observed in the immediate vicinity of bases, including environmental degradation, social erosion, dangers and conflicts in the local political sphere, violence, and inhibition of local economic development. These protests can also express anti-war and anti-imperialist views, based on principles of sovereignty. In the past, FMBs opponents have repeatedly referred to the principles of sovereignty, security, and justice. The authorities of the US military bases in Newfoundland (Canada) had civil and criminal jurisdiction over their personnel and American citizens on the bases and in the immediate vicinity. Americans were also exempt from tariffs and American contractors and non-military personnel were not subject to Canadian taxes. US forces operated in Newfoundland as if it were a US territory, and the lack of equality between soldiers from another country and local citizens was a significant problem for both sides (Blake, 1993). In the process of decolonising Mauritius in 1965, the United Kingdom (UK) established a region henceforth known as the British Indian Ocean Territory (BIOT) where the USA was allowed to establish its Diego Garcia military base. Bashfield (2020) points out that the indigenous islanders’ rights to their territory and Mauritius’ sovereignty claims to the atoll posed a serious threat to US policy. This indicates that even small communities have an indirect impact on international security architecture and the balance of power. Analysing the case of the US base at Guantanamo, Reid-Henry (2007) points out that sovereignty cannot be detached from the history of the space it affects, being closely linked to present and past spatial conditions. Guantanamo, which Reid-Henry calls a “space of exception,” confirms the hypothesis that the precise scope and location of sovereignty and its jurisdiction are never permanent, but always fleeting (Agamben, 2005). The aspect of land rights is related to food sovereignty and to the struggle for access to and control of land (Saturnino et al., 2015). In 1952 the US Civil Administration of the Ryukyu Islands (USCAR) took action to seize the land of Okinawan residents to expand military installations. This met with great resistance from the local community. The land was their main source of livelihood, and their opposition was founded in part on constitutional and ideological grounds (Egami, 1994). In the case of

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the US military presence in the Philippines, opponents pointed to the exercise of extraterritorial jurisdiction as incompatible with the principle of territorial sovereignty, although in this case the main objection was not to the FMBs themselves, but to the reasons behind their location in the region, a constant reminder of the colonial past (Lim, 1987). The experience of post-colonialism and extraterritorial military presence is strongly felt in Africa. The “Horn of Africa” has become particularly important to control and protect trade routes. Soldiers from Japan, China, the USA, France, Italy, Spain, Germany, and (in the near future) India are present in Djibouti. Taking advantage of its strategic location, much of the economy of Djibouti is linked to the FMBs, but it can be argued that the country is rapidly losing its sovereignty (Cobbett & Mason, 2021). Gibraltar is an example of sovereignty versus security disputes. In the past Gibraltar was a staging area for nuclear submarines. This was in contradiction with Spain’s anti-nuclear policy. Although the base was not on Spanish soil, this example shows that the FMB controversy takes on a cross-border and trans-territorial character. Other examples are found in the use of bases and airfields in a host country to attack a third country. Military action supported by bases in Djibouti, Gibraltar, and the Rammstein base in Germany has raised questions about whether the host country of foreign troops also bears responsibility for the damage done and the casualties of the attack (Strauss, 2021). FMBs are examples of the extraterritorial areas where the conventional framing of sovereignty requires special attention, especially in geographical terms. The bases can be described as “bubbles” in space, like prisons, embassies or even churches (Mountz, 2013). Military bases have a special relationship with the territory in which they are located, particularly in countries with a colonial or semi-sovereign past. This makes the case of former Eastern Bloc countries, which have radically changed their political orientation from East to West, all the more interesting.

Historical Context of Foreign Troops in Poland After World War II and with the beginning of the Cold War era, Poland found itself in the so-called Eastern Bloc, under the influence of the Soviet Union. Poland became one of the more important political and military partners of the authorities in Moscow, and from 1955 was a member of

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the Warsaw Pact—Treaty of Friendship, Cooperation and Mutual Assistance (Warsaw Pact, 1955). In addition to national armed forces, Soviet troops had been stationed in the Eastern Bloc countries since the end of World War II. It was not until December 17, 1956, however, that the governments of Poland and the Soviet Union signed a formal agreement “On the Legal Status of Soviet Troops Temporarily Stationed in Poland.” This situation lasted until 1989, when the first free democratic parliamentary elections were held in Poland. During this period between 300,000 and 400,000 Soviet troops were stationed on Polish territory (Sobczynski & Szulczewski, 2020). The withdrawal of Soviet troops officially began on April 8, 1991, and lasted until September 16, 1993. The monetary value of the overall losses incurred as a result of the Soviet army’s presence in Poland between 1945 and 1993 is estimated at PLN 62.6 billion (Parys, 2014). With the departure of the Soviet troops, Poland took back 7,854 estates, and reclaimed for the economy 70,000 hectares of land (including 35,000 hectares of forests), 3 hectares of port wharves, and 23 railroad sidings (Zygmuntowicz, 2007). These areas and their infrastructure were severely neglected, and the retreating soldiers destroyed or took with them all possible items, fittings, machinery and equipment. This damage hindered subsequent use and development of the areas, which in many cases placed the burden on the local authorities. Over the nearly 50 years of Soviet military presence in Poland, certain cultural patterns were formed, and civil–military relations shaped the landscape and characteristics of the municipalities around the military bases. Unfortunately, in these circumstances, the life of local communities was often severely restricted, and the increasingly undisciplined Soviet troops carried out acts of violence against Polish citizens. It should be mentioned here that the soldiers and personnel of the Soviet bases in Poland were not only Russians but also in large part people from areas of Central Asia, the Caucasus, or the eastern part of the Soviet Union. After the Soviet troops left Poland, the government in Warsaw embarked on efforts to integrate with the West and join European structures, most significantly NATO. In January 1994 representatives of the Visegrád Group of countries, in the presence of the President of the USA Bill Clinton, approved the Partnership for Peace programme. This programme provided for the possibility of joint military exercises, participation in peacekeeping and humanitarian operations, and consultation with NATO partners in the event of a threat to the security of the Visegrád countries. Five years later Poland formally became a NATO

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member country. For this to happen, several goals had been achieved (Olearczyk, 2015): 1. Adaptation for interoperability at all levels, from tactical to strategic. 2. Adaptation to interoperability with other NATO Armed Forces abroad. 3. Ability to achieve rapid and independent military resolution of local armed conflict on or around Polish territory. 4. Readiness for immediate participation in designated NATO military units for peace making and peacekeeping activities in local conflict areas outside of Poland. In the years that followed, Poland, along with other NATO members, strengthened its security and countered threats from state and nonstate actors. With technological advances and geopolitical changes, it also countered terrorist attacks, cyber incidents, and hybrid activities. In 2008, the Russian Federation launched an armed aggression against Georgia. One of the reasons invoked was the pro-Western action of the government in Tbilisi. This was a sign to NATO that Russia would not remain indifferent to attempts to expand Western influence in the former Soviet Union. A similar situation occurred in Ukraine in 2014. It was these events that shaped NATO’s security architecture and action, with a special role for Poland and its armed forces. In the case of the conflict in Ukraine, the southern and eastern parts of the country were destabilised and part of its territory occupied. The situation was very unclear, and the frequency of provocative incidents at NATO’s borders increased, which led to changes in security measures and displacement of military forces along NATO’s eastern flank (Wodnicki, 2019). The presence of NATO forces in Poland was decided by the NATO summit meetings held in Newport in 2014 and in Warsaw in 2016. Following the events in Ukraine and threats from the Russian Federation, action was taken to emphasise the unity and solidarity of NATO members. A Readiness Action Plan (RAP) was created which included a comprehensive package of assurance and adaptation measures (Arnold, 2016): • Establishment of the Very High Readiness Joint Task Force (VJTF)—as a main part of NATO Response Forces (NRF).

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• Continuous air, land, and maritime presence in the eastern part of the alliance on a rotational basis. • Creation of command-and-control elements and prepositioned equipment for the VJTF in eastern allied nations—NATO Force Integration Units (NFIU). • An enhanced military exercise programme. • Agreement to reverse the decline in defence budgets within the alliance. For Poland, this meant the permanent stationing of some 5,000 troops of NATO countries on its territory on a rotational basis. Multinational battle groups and US units were also deployed in the other countries of NATO’s eastern flank. Prior to the implementation of the RAP, American military personnel were stationed only in Redzikowo, where an anti-missile shield (Anti-Ballistic Missile Defence Interceptor Base) was located under the terms of a bilateral agreement between the Polish and US governments. At the same time that RAP was being implemented in Poland, Polish soldiers from the NATO Response Force (NRF) joined French and Romanian units in the NATO Multinational Battle Group in Romania. The RAP strengthened security in the eastern countries and the deterrence factor. However, it did not stabilise the situation in the region, as attested by the invasion of Ukraine by the Russian Federation on February 24, 2022. Responding to this conflict, additional NATO forces (mainly US troops located in the south-eastern part of the country) were deployed to Poland in the following months, raising the foreign military presence there to more than 10,000 troops. From the point of view of the former Eastern Bloc countries, the RAP also represents an important commitment by Western European countries to defend and support countries that were formerly their adversaries. This has strengthened the sovereignty and security of NATO member states. At the same time, the increased presence of foreign troops can have a negative impact on the communities surrounding FMBs areas. Among other factors, particular jurisdictional and legal terms lead to unequal treatment of the parties to these international agreements. My field research conducted in Poland and analysis of data extracted from selected academic studies indicate that public attitudes towards the presence of foreign troops at the local level are also in large part related to issues of security and sovereignty. This in turn affects political actors at the state level.

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Local Views of a Foreign Military Presence In municipalities in Poland where FMBs are located, the attitudes of local residents reflect their views of the links and interdependence between NATO, the US, and Polish governments. The first signs of public discontent emerged with the construction of the US “missile shield” that has began in Redzikowo in 2008. Public opinion focused on two significant issues: the fact that the Polish authorities could be deprived of the ability to decide on the use of weapons deployed on the national territory, and the question of authority over the personnel of the future base (Zachara & Michnik, 2008). The protests and dissenting voices that emerged at this time were anti-war, anti-American, and anti-armament in nature. They were often more forceful than the opposition expressed later, in the wake of the Newport and Warsaw NATO summit meetings in 2014 and 2016. This was before the Russian Federation’s aggression against Georgia in 2008 and long before the invasion of Ukraine in 2014 and 2022. There fore, opposition to American military involvement in Poland was greater in 2008 than in 2017 when NATO troops began to be stationed in Poland. According to information obtained in the interviews, it was most often through unofficial channels of communication that local governments and residents learned about the establishment of FMBs in their districts. Since 2017 these communities have had direct contact of varying frequency with representatives of the US military or multinational units composed of soldiers from the American, British, Romanian, and Croatian armies (Orzysz area). How are local communities’ relations with foreign soldiers shaped? After several years of living near a FMB, do residents express objections that are based on security, justice, and sovereignty issues? The respondents who were interviewed indicate that in the face of the presence of foreign troops and the establishment of FMBs on Polish territory, individual protests and acts of opposition have occurred in local communities. In addition to attitudes with an ideological basis—against the military in general, against the US military, or against potential threats of attack—the basis of social discontent was the lack of involvement of local residents in the decision-making processes about the location of the base. To date the voices of opposition and dissatisfaction have been mainly

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related to the negative effects of the operations of foreign troops. These issues raised include: – aggressive behaviour of soldiers in public places; – transportation dangers—road accidents, increased traffic of heavy vehicles unsuitable for local infrastructure; – damage to roads and residential infrastructure; – ecological damage—destruction and pollution of the natural environment, occupation of forested areas; – noise, vibration, excessive military exercises, explosions on firing ranges. I classify the above examples of the detrimental impact of FMB activity as NIMBY (Not In My Backyard) protests. It should be mentioned that these protests are generally not of an organised or widespread nature. They are often individual or group complaints made by residents to local governments. Similar attitudes are posted by respondents on groups and pages associated with the area in social media, as well as in local, regional, and national media. The interviews conducted and field observation in selected municipalities where FMBs are located form a picture of both the constraints and opportunities associated with the presence of foreign troops in individual municipalities in Poland. Based on the data and information obtained, I present the perception of the presence of foreign troops in the vicinity of local communities in three parts: (1) the negative effects of impacts and the resulting negative attitudes, (2) the benefits and positive effects, and (3) local expectations and disappointments expressed after several years of FMB presence and operations. Drawbacks and Disadvantages Lack of communication between authorities at the local and central levels is noted as the primary problem affecting local governments and residents close to FMBs. This applies to the period before the foreign troops arrived, as well as in later years. Representatives of local authorities indicate that they had not been adequately informed or prepared beforehand to foreign troops presence (this does not include meetings held before

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construction of the base in Redzikowo started in 2008). It was, therefore, difficult or impossible to create an appropriate local development strategy to address the permanent presence of a foreign military unit. The local governments authorities approached central authorities for support and assistance to build good relations with the foreign troops and to adapt the area for better functioning, but in many cases, these requests had no effect. On behalf of all these local governments, we wrote letters to our government, to the Ministry of Defence, and either there was no answer, or these answers were so laconic that ‘it is as it is’, and in general ‘be happy that you have Americans’. —R1, Powidz area (Rx—respondent number) I know that the residents of Redzikowo feel some kind of bitterness that no one talked to them about foreign soldiers are coming; that nothing at all was consulted with the local community. —R5, Slupsk-Redzikowo area

Representatives of local authorities point out that they were overlooked or marginalised in decision-making processes and not included in attempts to relations with foreign partners. At the same time, the neutral position of representatives of the Polish army, which is also stationed in the areas under study, is noted. The places where FMBs are located in Poland are often distant from centres of activity and inhabited by an ageing population with lower level of education, for whom adapting to the presence of foreign troops is difficult and requires time and effort. Despite the lack of adequate preparation, local authorities, in cooperation with cultural institutions and NGOs, have taken initiatives to support residents in the face of the presence of foreign troops. They have organised training courses and English language courses for business owners, and employees of catering facilities and hotels. Attempts have also been made to profit economically from the presence of foreign troops. However, it is noted that small towns and rural areas do not always meet the expectations of the foreign troops. Respondents indicate that FMB soldiers often go to larger cities and regional capital cities, looking for services not available in the immediate area or in the host municipality. The increased costs borne by local governments and residents are repeatedly mentioned. These costs are primarily related to road infrastructure, as local roads and bridges that are often unsuited for heavy

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military equipment. In the case of damage, it was difficult to obtain explanations or compensation. Local government budgets have also been burdened with the obligation to supply electricity, gas, and water to a greater number of people. The overuse of municipal infrastructure has not only increased the operating expenses of local governments; it has also forced them to invest in renovation or expansion of current infrastructure. It should also be noted that more money is being spent on law enforcement. In some areas (Powidz and Orzysz) the number of soldiers is equal to or higher than the number of residents in the vicinity of the FMB. This has pushed local authorities to move decisively to give residents a sense of security. In the analyzed areas the perceptions of a foreign military presence are heavily inflected by a sense of economic disadvantage. The emergence of negative attitudes is also related to missed opportunities for significant improvement in the socioeconomic status of the area. The losses are in the billions (...), it’s no longer only the taxes on the property and on this land that is occupied for the base but on potential investors who might have come here. —R5, Slupsk-Redzikowo area

Another aspect perceived as a negative impact on the local economy is the acquisition of land for the construction of new military infrastructure for foreign troops. This results in the clearing of forests, some of which were commercially exploited, and others in the vicinity of protected areas or considered to be of high conservation value. We are incurring all these costs just in terms of providing these necessities, which is water and collecting sewage and rubbish (...) there was a moment when people were in revolt. —R32, Orzysz area Forests are cut down in our area, compensation is paid to the province, the province does not give it back, and yet plantings are planted in another region. —R14, Powidz area As far as our municipality is concerned here, I would say yes – in our area, they are cutting down forests for the power (army). —R15, Orzysz area

Degradation of the natural environment also affects the general image of the area and leads to indirect financial losses, e.g. from tourism. Local

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leaders note that a FMB negatively affects the use and price of properties and land, excessively increasing or decreasing their value. To build a house in our area, even a simple single-family house, is a big problem because of the environment issues. But here, suddenly, such investments are being made, well, because you know – ‘the issue of defence of the country is the most important’. —R21, Powidz area Rental property prices since the base began to be established have increased by 100% (...) Americans were paying very good prices for this rental, so the market reacted naturally by increasing prices. —R22, Slupsk-Redzikowo area

There is also another important factor that influences negative attitudes towards FMBs. Troops rotate through the bases in Poland—although the base operates on a permanent basis, a new group of soldiers appears every six to nine months (according to respondents). This is problematic for building relationships with the soldiers and the base command. A twoway adaptation process must be regularly repeated. Respondents note that successive units may come from culturally or ethnically different places, which also poses a challenge for building cooperation and appropriate civil–military relations. Now we have unit from Puerto Rico, it is very nice to cooperate with them and they are very active but when we had soldiers from Alaska, it was different, very poor. —R2, Powidz area

According to the respondents, the soldiers’ awareness that their stay will be temporary negatively influences their willingness to build relations with the local society, as well as to take care of their surroundings. The type of military unit (e.g. professional army, national guard) also determines ways of functioning and building relationships. This depends, however, on the characteristics of the unit and its commander; respondents note that in some cases foreign soldiers have very limited opportunities to interact with the community. Totally! They do not leave the base at all! —R6, Słupsk-Redzikowo area

Due to their strategic importance, the areas where FMBs are located are subject to cyber-attacks and misinformation campaigns, fake news

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concerning, among other things, aggressive attitudes manifested by foreign soldiers, violence, and crime. Orzysz has already had problems more than once with the functioning of websites, with hackers attacking these sites. —R7, Orzysz area

The above example, as well as the previously quoted excerpts from the interviews, demonstrates the particular importance of these areas and how important it is to build good civil–military relations at the local level. Many of the negative attitudes expressed by representatives of local communities are based on their sense of a lack of justice and reduced security, both of which are aspects of local sovereignty. Benefits, Opportunities, and Positive Impacts Despite the negative impact on the sovereignty of local communities, respondents also point to the positive effects of a FMB in their area. They report that there is a breaking down of stereotypes, a reduction of signs of racism, an opening of minds, and a positive impact on education, primarily English language learning. This was the result of soldiers joining in charity events and patriotic celebrations, and getting involved in ad hoc organisational help or small-scale construction work, among other things. Joint events such as concerts, picnics, sports competitions, and activities for children were organised, and cooperation with schools was undertaken. There was even a community initiative to “invite an American soldier into your home for Christmas.” However, local leaders emphasise that these initiatives come from the local community, not the foreign military. Do you know what has certainly changed? It is known that racism is still a common phenomenon, but now it is not so anymore. —R9, Orzysz area The inhabitants felt such curiosity about the world and, above all, the fact that the kids – young people – were breaking down language barriers. —R9, Mirosławiec area

The presence of foreign troops can also have a positive impact on the image and attractiveness of the region for tourists.

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These NATO troops display their equipment, so it is also such an attraction. It is such a “magnet” for people coming here. —R8, Orzysz area

It is worth mentioning that the presence of foreign soldiers has influenced the transmission of cultural patterns, and on a local scale, there are unofficial names given to places associated with the presence of foreign troops (“Little America,” “Texas”). Respondents also point to the interpersonal aspect—acquaintances, friendships, and partnerships that remain active even after the soldiers have left the base, as well as the “Family Tourism” aspect—soldiers returning to Poland with their families as a leisure activity. With some of them, we had such good contact, we became friends, then we keep in touch all the time through Facebook or WhatsApp and we just text each other all the time there, we call each other, and we just keep this contact. —R10, Powidz area

In many places, the added value in terms of more jobs and the possibility of permanent employment in companies that provide services such as kitchen, laundry, and translations at FMBs are highlighted. An interesting aspect is the emergence in small towns of services that are typical of bigger cities such as barbers, tattoo studios, high-quality restaurants, and taxis. With the arrival of foreign troops, there were also offers and tenders for companies to provide services to FMBs, and these were not exclusively aimed at local businesses. Despite the positive effects of FMBs, local leaders highlight that building appropriate relationships was hampered by the rotational nature of the base, also creating instability in social and economic benefits. A common feature noted by the majority of respondents is the wide gap between the expectations of opportunities due to the location of FMBs in their neighbourhood and the disappointments and problems they faced in reality. Expectations and Disappointments In all the areas surveyed, respondents highlight two aspects that emerged before the arrival of foreign troops: lack of information, and uncertainty, along with hopes for an increase in living standards and quality of life

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for residents. However, after several years of living in the vicinity of an FMB, disappointment and feelings of powerlessness have emerged. At the same time, people have become accustomed to the new situation. Respondents point out that the Polish troops who had been previously stationed in the same location were more strongly involved in local life, and that the commitment and willingness of foreign soldiers to cooperate has weakened over time. I have read media news that here Orzysz will gain, that economically everything will be beautiful, wonderful, people will make money here. That’s not the case, there is no big difference. —R2, Orzysz area We kind of put a lot of hope in it, at least so locally, for the development ´ etoszów of the economy, for some cooperation opportunities. —R3, Swi˛ area Not many new jobs have been created – the existing market has adapted to new military base. —R12, Swietoszow area There were big plans, there was an “American dream” that it would be a ‘San Francisco’. But in fact, it all comes down to politics and money beyond people. —R36, Mirosławiec area

The aspects of FMB operations and civil–military relations described by respondents vary from location to location and depend on the activities and involvement of local institutions and local governments, as well as on the characteristics of the resident unit and its commanders. Despite the negative impacts and unfulfilled expectations, respondents acknowledge that in many locations, after more than five years of proximity with an FMB, certain tools and patterns of action have been developed. According to respondents, local communities see opportunities and chances for their local and regional development thanks to the FMB; they note that “something is happening, the locality has been revived.” At the same time, they underline the lack of a proper action strategy and the absence of involvement on the part of state structures. This research indicates that in the opinion of local community leaders the functioning of FMBs in Poland is strongly dependent on the military unit currently present at the base. Due to the rotational nature of the presence of foreign troops, building relationships between a base and the local community is difficult, which does not mean that there are no benefits or

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positive effects associated with the FMBs. However, these are dependent on factors beyond the control of local residents and local governments. Unfulfilled expectations and missed opportunities compound negative attitudes towards FMBs based on injustice and lack of sovereignty both before the arrival of foreign troops and later during their operation. It can be noted, however, that negative attitudes and recourse to notions of sovereignty, security, and justice do not stem from the foreign presence itself, but are the result of a lack of adequate preparation and support from the state government. Nonetheless, this does not mean that the foreign state is sufficiently implicated or active. An interesting aspect that emerged during the interviews is the reference to the former presence of troops from the Soviet Union or other socialist countries, whose some of the bases were in the same locations where NATO units are stationed nowadays: In those days it was such a quite profitable location to have Soviet soldiers at our place – to have access to everything they were able to sell us, and ´ etoszów area they were able to sell really everything. —R3, Swi˛ There were better contacts when there was a whole regiment from Libya in the 1980s, they trained our Olympic athletes here, then there were more interesting, direct contacts. —R37, Łask area

Although on a national scale, the presence of Soviet troops was imposed by an external regime, and FMBs are now the result of Poland voluntarily joining the NATO alliance. For local communities—who were not involved in the process of locating NATO units—the nature of the presence of Western troops can also be perceived as imposed on them from outside, in some ways. This alludes to issues of sovereignty and social freedom. The presence of NATO troops in the same places where Soviet troops were stationed in the past, can stigmatise a space and impose a military character upon an area or municipality. In these places, cultural patterns developed during the period of dependence on the Soviet Union may still be present. This can be considered as a situation characteristic of postcolonial areas. Such experience can be used positively or inversely may have negative effects. It is worth to note that the situation changed to some extent after the attack of the Russian Federation on Ukraine in February 2022. Respondents indicated that in the face of an external threat, attitudes of local communities towards the presence of foreign

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troops have become less negative, despite the increased activity of military operations and the possibility of more frequent conflicts as a result. At the same time, it is worth emphasising, in light of the cyberattacks mentioned and the spread of misinformation, how important for national and international security forces is to maintain proper civil– military relations at the local level. This demonstrates that working to build the right conditions to guarantee local sovereignty and security has an effect on state defence capabilities. Yeo (2014) argues that the efforts made by the parties, both the foreign state and the host country, need not negatively affect security. On the contrary, a stable relationship with the local community and transparent rules for the operations of foreign troops, especially the legal framework, will positively affect both the military and civilian actors. It can also positively influence the potential development and expansion of the military base, and the operational activities of the units stationed at the base, with simultaneous social and economic benefits for local authorities and residents. An appropriate development strategy is needed—however, thought out by both the military and local authorities supported by local leaders. In that case, historical and geographical conditions are very important. ∗ ∗ ∗ Local communities in Central and Eastern Europe may find themselves in a “sovereignty trap” between local and national scales (Agnew, 1994). On the one hand, for the majority of respondents, the presence of NATO troops in Poland is a positive phenomenon. This was particularly emphasised during interviews conducted in 2022, following the invasion of Ukraine by the Russian Federation. At the same time, the presence of foreign troops gives weight to the idea that security and justice are denied to local communities. In part, they are also deprived of sovereignty due to the “higher goals” of national defence. This may be largely due to the lack of involvement of local representatives in building the national security architecture and neglect or non-recognition of their role. FMBs are among the most strategic facilities found in any state; scientific research that can be used to help develop strategies for local and military operations is of great importance. The current events in Ukraine prove that in the case of Poland and other countries on NATO’s eastern flank, building civil–military relations will become increasingly crucial, and that

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sovereignty at the local level in times of globalisation is as important as state sovereignty.

References Agamben, G. (2005). State of exception. University of Chicago Press. Agnew, J. (1994). The territorial trap: The geographical assumptions of international relations theory. Review of International Political Economy, 1(1), 53–80. Arnold, J. M. (2016). NATO’s readiness action plan: Strategic benefits and outstanding challenges. Strategic Studies Quarterly, 10(1), 74–105. Bashfield, S. M. (2020). Mauritian sovereignty over the Chagos Archipelago? Strategic implications for Diego Garcia from a UK-US perspective. Journal of the Indian Ocean Region, 16(2), 166–181. Blake, R. B. (1993). An old problem in a new province: Canadian sovereignty and the American bases in newfoundland 1948–1952. American Review of Canadian Studies, 23(2), 183–201. https://doi.org/10.1080/027220193 09481825 Borras Jr., S. M., Franco, J. C., & Monsalve Suárez, S. (2015). Land and food sovereignty. Third World Quarterly, 36(3), 600–617. https://doi.org/ 10.1080/01436597.2015.1029225 Cassel, P. (2012). Grounds of judgment. Oxford. Cobbett, E., & Mason, R. (2021). Djiboutian sovereignty: Worlding global security networks. International Affairs, 97 (6), 1767–1784. Egami, T. (1994). Politics in Okinawa since the reversion of sovereignty. Asian Survey, 34(9), 828–840. Glebov, S., & Rodrigues, L. (2009). Military bases: Historical perspectives. IOS Press. Krasner, S. D. (1999). Sovereignty: Organized hypocrisy. Princeton University Press. Lim, M. T. M. (1987). Removal provisions of the Philippine-United States military bases agreement: Can the United States take it all. Loyola of Los Angeles Law Review, 20(2), 421–453. Mountz, A. (2013). Political geography I: Reconfiguring geographies of sovereignty. Progress in Human Geography, 37 (6), 829–841. Olearczyk, S. (2015). Polish way to NATO in the military dimension. Politické Vedy, 18(2), 88–104. Parys, J. (2014). The Soviet army in Poland. Confrontation and Cooperation: 1000 Years of Polish-German-Russian Relations, 1(1), 12–18. https://doi. org/10.2478/conc-2014-0002

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Polish Ministry of National Defence Official Website, Increasing the US military presence in Poland. Accessed on 2 Feb 2023. https://www.gov.pl/web/nat ional-defence/increasing-the-us-military-presence-in-poland Reid, H. S. (2007). Exceptional sovereignty? Guantánamo Bay and the recolonial present. Antipode, 39(4), 627–648. Rosicki, R. (2010). O suwerenno´sci. Przeglad ˛ Naukowo – Metodyczny, 4, 63–72. Schmidt, S. (2014). Foreign military presence and the changing practice of sovereignty: A pragmatist explanation of norm change. American Political Science Review, 108(4), 817–829. Sobczynski, ´ E., & Szulczewski, A. (2020). Camouflaging of areas occupied by units of the Soviet Army Northern Group of Forces (NGF) on Polish and Soviet military topographic maps. Polish Cartographical Review, 52(3), 124– 139. Strauss, M. J. (2021). Foreign bases in host states as a form of invited military assistance: Legal implications. Journal on the Use of Force and International Law, 8(1), 67–90. “Text of Warsaw Pact” (PDF). (1955). United Nations Treaty Collection. Vine, D. (2019). No bases? Assessing the impact of social movements challenging US foreign military bases. Current Anthropology, 60(S19), S158–S172. Wodnicki, J. (2019). Znaczenie Sojuszu Północnoatlantyckiego w umacnianiu bezpieczenstwa ´ na wschodniej flance NATO. Rocznik Bezpieczenstwa ´ Mi˛edzynarodowego, 13(1), 143–157. Yeo, A. I. (2014). Security, sovereignty, and justice in US overseas military presence. International Journal of Peace Studies, 19(2). Zachara, M., & Michnik, W. (2008). Tarcza antyrakietowa i polska suwerenno´sc´ . Znak, 636 (85–94). https://www.miesiecznik.znak.com.pl/6362008malgo rzata-zachara-wojciech-michniktarcza-antyrakietowa-i-polska-suwerennosc/ Zygmuntowicz, J. (2007). Unwanted guests. Polish-Russian relations during the withdrawal of Northern Group of Forces. Torun. ´

CHAPTER 12

War and Sovereignty: “Words that Go Together Well” for an Interdisciplinary Approach Robert Frank

Interdisciplinarity is both a richness and an aporia. It is a richness because it enables us to examine a phenomenon, fact or notion from every angle and from different points of view, which intersect and cross-fertilise each other. Multiple approaches are needed to get close to the truth. But interdisciplinarity is also an aporia, because each discipline has its own identity, and it is essential that identity be preserved. If we must draw parallels, how can we make them intersect, other than by placing ourselves in a non-Euclidean geometry, which is no small matter? How can we ensure our arguments do not fall on deaf ears? There is another difficulty: in principle, a “discipline” refers to a science, but how can we avoid the temptation of also taking into account the “matter” that this “science” studies without necessarily incorporating the contributions of that science? When non-historians invoke history,

R. Frank (B) Panthéon-Sorbonne, Université Paris, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4_13

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are they referring to historical facts? To commonly accepted historical narratives? Or to historical science? When the non-jurist uses the law, for example, the non-geographer geography, the non-sociologist sociology or the non-economist economics, do they use established norms and rules, territorial concerns or social and economic realities? Or do they draw on the respective sciences that analyse these objects? Clearly, the ideal is for each to make use of the matter reconstructed, reconstituted and revisited by the science that is not their own. But that is easier said than done. Omniscience for each specialist is impossible; already, they are cruelly lacking in time to read their peers’ work; how can they not be submerged by the tide of publications by colleagues from other disciplines? So, great is the advantage of teamwork focusing on a specific subject over a given time, if we want to make interdisciplinary cross-fertilisation productive. This enables us to come up with solutions to the seemingly unsolvable while opening the field of possibilities to what seemed impossible. “War and sovereignty” is the subject of this book, and it is well chosen because “these are words that go together well” (Lennon, McCartney, 1965), since we are bringing together several disciplines. They refer at the same time to concepts, ideas, norms, practices and realities which may or may not be part of a system, evolving in time and space, and whose degree of consubstantiality must be measured. Any pair of terms needs other terms better to explain their interconnection. That is why it might be appropriate to add a few ingredients to “war” and “sovereignty”: a sprig of “identity”, a sliver of “emotion” and an armful of thoughts on “death”. Yes, war kills—that we must never forget—and the return of high-intensity warfare in Europe since February 2022 is a cruel reminder, if one were needed: this specificity bestows a particular “majesty” on the actors who more or less sovereignly decide on, wage and manage war.

Law and History: A Consubstantiality Between War, Sovereignty and the Formation of States? There is no sovereignty without majesty. Whether the sovereign is the monarch, the nation or the state, their power, even if constrained by self-imposed or accepted rules, is “greater” (major) than any other within their territory: this majesty, symbolic and real, means that the sovereign cannot be subordinated to any other internal or external power.

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They have the supreme power to decide on the “rise to extremes”— the inherent tendency of war according to Clausewitz—which gives a concrete, physical and majestic dimension to their sovereignty: the higher power to dispose of the life and death of their own people in order to ensure internal order or external independence, which Weber abstractly calls the “monopoly of legitimate physical violence”. A number of chapters in this book take these legal and political considerations as their starting point, citing the great authors, such as Bodin, Hobbes, Clausewitz, Weber or Jellinek, and exploring the distinction between internal and external sovereignty. The sociologist Emil Lederer, writing during the First World War, goes as far as to distinguish between the “internal state” that manages a plural society composed of groups with different interests, and the “external state” aimed at uniting the population in the face of external threats.1 Many of the contributors to this book support these references to law with historical reflections on the gradual construction of the state over time, the nexus of the dialectical link and consubstantiality between sovereignty and war (see Chapter 2 and the chapters by Thibaud Mulier, Grégory Daho and Luc Klein). The example of King Charles VII’s battles is a concrete illustration of the two faces of sovereignty. His war was both a war of independence against the English—with the aid of Joan of Arc—to guarantee his external sovereignty, and a feudal war to impose his royal authority internally on the Duke of Burgundy, an ally of the English. In the following century, the French sovereign consolidated his power over his army itself. The wars in Italy required more and more troops, and men were dispatched across France, carrying out abuses on civilians along the way. This prompted the king to oversee and repress the military to protect his population. The external war enhanced the king’s internal sovereignty.2 The Thirty Years’ War (1618–48) and the Treaties of Westphalia (i.e. the Treaty of Münster and the Treaty of Osnabrück) that put an end to it are rightly presented as a turning point. The victory of the modern states against the Holy Roman and Germanic Empire was the victory of state sovereignties over imperial-type sovereignty, including for the German states of the 1 See Michele Basso’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=kAil9FLbhAQ. 2 See Valentin Grandclaude’q paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=yrK6Yw RhDZs.

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Empire, but with a limit called “territorial superiority” placed on their sovereignty: they had the right to enter into alliances on condition that they did not turn that territorial sovereignty against the emperor. This turning point also represents the secularisation and the partial “modernisation” of the goals of war: in 1635, Richelieu brought France into the conflict alongside the Protestant belligerents despite being the “eldest daughter of the Catholic Church”. To counter the party of devotees who protested against this unholy action, he cited “reason of state” as being more important than religious solidarity, in the face of the threat of the Habsburgs, whose possessions encircled the country. A new European order was born with the Peace of Westphalia: states were now formally equal and sovereign within well-defined and recognised territorial limits, even if their ability to assert this sovereignty, i.e. their power, remained unequal. From then on, the notion of the “Westphalian system” became a tool, a precious toy even, for political scientists and jurists: these treaties (Münster and Osnabrück) defined international, essentially inter-state relations, establishing them for centuries, before this order was badly disrupted by the upheavals of the 1970s and 1980s. Historians like to complicate things, because, rightly concerned to show the complexity of realities, they partly desacralise this “system” by showing that it did not emerge fully formed from the minds of the Peace of Westphalia negotiators, but was constructed gradually over the following decades (Gantet, 2000, 2022). That said, they do not dispute the “heuristic value” of this concept, which is all the more relevant in that it helps us understand the new dynamics that challenged this system from the end of the twentieth century onwards. Indeed, historians have to admit that conceptualisation has its advantages: it helps us think. The Europeans even succeeded in making the state assert itself outside Europe, in the conquest or management of the colonies, and this at the expense of the great trading companies, as in India in the eighteenth century.3 The Carnatic Wars were marked both by the breakdown of the Empire of the Great Moghul into rival principalities and the confrontation between France and England, which took advantage of this anarchy. The intervention of the colonial state was carried out “to the detriment of both the Compagnie des Indes and the East India Company”. It exercised 3 See Massimiliano Vaghi’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=UyuNwM kFFUU.

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sovereignty indirectly, but from then on through the “nabob game”, i.e. sovereignty exercised through nawabs made princes by colonial diplomacy and who were clients of the colonisers.4 The important question is indeed that of the embodiment of sovereignty. In Europe, with the affirmation of absolutism, the domestication of local nobilities and sovereignties and the strengthening of the state, the king legitimised the fullness of his sovereign power by being a “war king”, building glory through arms.5 The age of Enlightenment and the French Revolution created a new content: the nation replaced the king, to the extent that the Constitution of 1791 did not appear to “care about the state” so heavily did it insist on the sovereignty of the nation, as an association of free and equal individuals, as shown by Thibaud Mulier in his chapter. That said, the word state is not absent from this constitutional text which calls upon the king and the nation to work together for the good and interest of the state. It came back in force when war broke out in 1792: faced with invasion, and the suspicions that now weighed on Louis XVI, the state was almost exclusively embodied by the nation. The Revolutionary and Napoleonic conquests resulted in another change. The French concept of nation turned against France: it was in the name of this idea that Italian and German “patriots” fought against the occupier and aspired to the political unity of Italy or Germany within the framework of a state unity, as attested by the beginnings of the Risorgimento or Fichte’s Addresses to the German Nation in 1807–08. This is probably the moment to introduce the subjective notion of “identity”. War and especially the phenomena of military occupation prove to be real manufacturers of identity. The Italian and German identities, until then only cultural, became political. Under Napoleonic domination, many people were no longer satisfied with the old feeling of belonging to a cultural family, and they allowed themselves to be imbued with a new, fully political feeling of belonging: to a state to be built. War creates collective emotions that can give rise to identities that come before sovereignty, which remains to be conquered in the same war or the next. We know both scenarios. Either the state is built first, then it creates the nation, with the absolute monarchy playing a vital role in

4 Massimiliano Vaghi’s paper, idem. 5 See Alya Aglan’s paper at the conference “War and Sovereignty”, University Paris 1

Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=_o146K5Tdts.

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both this state-building and this nation-building—as would seem to be the French example. Or the mechanisms of nation-building take priority over state-building, as in the case of the nineteenth-century nationalities movement—Italy and Germany included—and then of the process of decolonisation in the twentieth century (see the written by Alya Aglan). Apart from the chronological differentiation in these constructions of state and nation, there seems to be a line that runs through the centuries. This line runs from the birth of modern states through the wars of the absolutist era to the nation-states of today; in the meantime, it passes through the Revolutionary and Napoleonic wars, which changed the nature of the concept of nation, and then through the nationalities and decolonisation movements, which respectively Europeanised and globalised this type of sovereignty. The two world wars only reinforced the line. The First World War—which was symmetrical—by pitting the masses against each other, spread national consciousness in the profoundest depths of European societies while boosting the nationalities movement in Central Europe and creating new state sovereignties there. The Second World War’s asymmetrical dimension as a result of the Nazi occupation convinced the Resistance to fight for the restoration of their sovereign state, with, in addition, a new consciousness for some: the need to transcend these national sovereignties post-victory to build a united Europe, a guarantee of lasting peace. At the same time, this conflict accelerated the rise of national sentiment and state aspirations on the other continents. This line is clearly not straight and it is not unique. Here again, historians are likely to enrich this too neatly linear history by showing that all these very slow processes have no regularity, do not follow one another in a regular way, but overlap and interweave at different times and in different ways. For example, in the case of France, the overly simple chronology of the state preceding and creating the nation is questioned. Medievalists see in the Hundred Years’ War not only French resilience from the top down, not only the royal determination to assert sovereignty in the face of the English, but also the beginnings of a patriotic feeling that was being built from the bottom up. This finds expression in the epitaph of a fifteenth-century captain, Jean de Bueil: Pray for me good people, For the Sires de Bueil killed in the great war. Battling for France, and for you. (Toureille, 2015 and Contamine, 1986)

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The theme of “Dying for one’s country” can certainly be found as far back as antiquity, with, for example, Hector’s cry in the Iliad (“There is no shame in dying in defence of one’s country”) or Horace’s poem which presents this sacrifice as “sweet” and “fitting” (“Dulce et decorum est pro patria mori”). But the fatherland is then the city over and above all. Furthermore, in feudal Europe, this notion has difficulty in becoming territorially precise (Kantorowicz, 1984). This is no longer the case with the Hundred Years’ War: “France” is explicitly designated. Even if this patriotism did not yet have the shape of that which developed in the following centuries, it was born before the modern state imposed itself. War and occupation thus had an impact on society by creating a sense of belonging on which the ruling power could rely in its aspiration to become sovereign. A strong political sovereignty needs a strong internalisation and a strong social identity. At any rate, whatever the complexity of these historical constructions and overlaps over time, one thing is clear: the state is the political entity that has won its central place between war and sovereignty (see the chapter written by Thibaud Mulier). Certainly, the new regime of conflictualities, which we will discuss later, seems to call this centrality into question. In many respects, however, the current struggle, or even “the war on terror”, launched after 11 September 2001, far from contradicts this centrality. There is an increase in the number of military interventions by Western countries in failed states, considered as sanctuaries for international terrorism, interventions that further reduce these states’ sovereignty, to the point of making it “conditional” (see the chapter written by Mélanie Dubuy). While neo-colonial-style ulterior motives—or a post-colonial unthinking—may inspire these operations, it is nonetheless true that in principle they have, exactly the opposite objective to that of imperial enterprises. It is not a question of destroying the sovereignty of the “occupied” country, but on the contrary of restoring it in its internal dimension precisely so that the state is no longer failing and the armed groups present on its territory can no longer create external or international disorder and can no longer undermine the sovereignty of other states. The violence of non-state actors reinforces the need for the state; Hobbes’ Leviathan is back, but this time not only for civil peace but also for peace beyond borders. And state-building is indeed an ode to sovereignty in state form. The legitimacy and relevance of all these military interventions in crisis regions are obviously controversial

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and may result in failure, as evidenced by the American and French evacuations, respectively, from Afghanistan in 2021 and Mali in 2022. In the latter case, regional multilateral institutions may have undermined the sovereignty of the Malian state. This is the case of the Economic Community of West African States (ECOWAS), which has given itself the powers to “condemn a breach of the constitutional order of a member state”, to impose severe economic sanctions, and to deploy a “military mission” to maintain or restore peace. These efforts by African organisations have not been successful either. The Malian population is rebelling against the sanctions and seems to reject this type of exogenous action (see the chapter written by Aminata Diaby and Nicolas Klingelschmitt ). The sovereignty of a state, even a failed one, becomes a socially internalised sentiment, a synonym of identity. As for the departure of the French, it shows that Mali, whose internal sovereignty is dislocated, has an external sovereignty that must be respected in spite of everything, with the right to demand and obtain the departure of foreign troops. Ultimately, the state matters, but the question is: Who decides within it?

Law, Political Science and History: Sovereignty, War, Powers, Institutions and Actors There are numerous references in this book to actors, institutions, powers and decision-making processes in liberal or democratic regimes in the event of recourse to war. Within the state, which authority has the ultimate monopoly on legitimate physical violence? According to the French Constitution of 1791, the declaration of war is a matter for a decree by the legislative power (see the chapter written by Thibaud Mulier), as in the US Constitution of 1787, and subsequent French constitutional texts decree more or less the same rule (Article 9 of the constitutional law of 16 July 1875; Article 7 of the Constitution of 1946; Article 35 of that of 1958). Although Great Britain is the founding mother of parliamentarianism, its Parliament is not called upon to give its approval to the actions of armed forces outside its borders (Harrois, 2023). The prime minister, heir to the “royal prerogative”, is not obliged to seek this authorisation. It was not until the Korean War that Clement Attlee requested such authorisation in July 1950. After a long interval, Tony Blair’s request for intervention in Iraq came in 2003, followed by that of David Cameron in 2011 for the deployment of troops in Libya and in 2013 for action in

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Syria: for the latter, moreover, the prime minister was roundly rebuffed by the House of Commons. In the United States and France, after the two world wars, this parliamentary authorisation, although mandatory, appeared to have become obsolete, since war is rarely “declared”. After the Vietnam conflict, Congress did vote for the War Power Resolutions in 1973, and more recently, in 2008, Article 35 of the French Constitution was amended: in both cases, parliamentary bodies must be informed of the action undertaken and the authorisation of the legislator is required, if not for the launching of the intervention, at least for its extension beyond 60 days for Congress, and four months for the French Parliament. But these provisions are not always applied, and, for some years, we have been witnessing a marginalisation of the assemblies, as shown by Grégory Daho and Luc Klein in their chapter. In the Federal Republic of Germany (FRG), where there is no “imperial presidency”, no “republican monarch” and no vestiges of “royal prerogative”, the situation is quite different. In this country haunted by the Nazi experience, the Basic Law of 1949 declares unconstitutional any action taken “in preparation for a war of aggression”. Thus, the FRG does not allow itself absolute sovereignty in the use of armed violence. It took the Germans a long time to accept the idea of military interventions overseas—until 1992, in fact—and the rule is clear: according to Article 24 of the Basic Law and the ruling of the Constitutional Court of July 1994, these cannot be carried out by Germany alone, “but only within the framework of a system of collective mutual security” in order to “safeguard peace”; and the decision can only come, in the last instance, from the legislative power (Article 115 of the Basic Law), to the extent that the Bundeswehr is more a “parliamentary army”, dependent on the Bundestag, than an “instrument of the executive” (Gaillet, 2021; Schirmann, 2023). The justification is as follows: the Bundestag is indeed “the sole repository of the will of the people”. It is the embodiment of the demos, the Greeks’ δ Áμoς. There lies its superiority, its “majesty”, and, as such, it is, therefore, the authority of last resort, on the proposal of the government, for the commitment of troops and thus putting its citizens in danger of death. The relationship between the executive and the legislature is, in principle, established by law. The relationship between civil and military power is more empirically regulated. There is, however, one principle in democracy, based on Cicero’s famous maxim: Cedant arma togae. Based on this Latin quotation, Grégory Daho and Luc Klein question the reality of the supremacy of civil power over military power. They show how, after the

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Cold War, this principle underwent a series of practical reconfigurations but without being fundamentally challenged. Combining their views as jurist and political scientist, they analyse four contemporary and concomitant phenomena: the extension of the state of emergency, from the 2015 attacks to the COVID-19 crisis in 2020–21; the extension of political uses of the military institution; the politicisation of military leaders; and the return of very high-intensity warfare in Europe since 2022. These events contribute to the presidentialisation of crisis management, to the increased visibility of the military and freedom to make their voice heard in the public arena—this is no longer the era when the army was “la Grande Muette” (the “great mute”)—and to a reinforcement of military expertise when it comes to decision-making. In support of this argument, we could cite the work of Philippe Vial, who, in assessing the influence of the military across three republics, emphasises their authentic role in defence policies over the long term. In no case is the republican army a simple inert, mechanical “tool” in the hands of the civil power. Philippe Vial suggests the notion of “political-military hinge” which is an organic composition of two living powers, neither of which was passive, even during the time of the “Grande muette”, even if one imposed itself on the other within the framework of civilian supremacy (Vial, 2008, 2012). It is undoubtedly this “hinge” that has become a little more fluid in recent years. This fluidity is all the more evident in that there is a proliferation of actors within the decision-making bodies in matters of defence— engineers, scientists, industrialists, administrators, some military, others civilian—and a greater complexity in the handling of sovereignty issues. From this point of view, interesting examples have been discussed in this book. Some technological innovations proposed by the military and by manufacturers “present certain operational advantages”. However, they conflict with major investment projects that France’s Direction Générale de l’Armement (DGA) considers beneficial, because they guarantee the country’s industrial sovereignty. Which should take priority: innovation, which is strongly encouraged by the public authorities because it can give tactical superiority on the battlefield? Or the preservation of the “industrial and technological defence base”, which is the foundation of

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a long-term political and military strategy.6 Sovereignty has many faces and this proliferation of actors that makes its exercise more complex is also found in two other very different cases presented by Sylvain Antichan and Cyril Magnon-Pujo7 : one is the growing influence of experts in a UN group dealing with the international regulation of the uses of autonomous lethal weapon systems (ALWS), and the second, in France, is the increasing number of agents involved in public action against terrorism since 2015. These agents come from different ministerial cultures operating under different processes within the French state (Prime Minister’s office, Defence, Interior, Justice, National Education). The increasingly complex interactions that sovereignty is undergoing can create its limits.

Political Science, Economics and History: The Variations and Limits of Sovereignty For a long time, the sovereignty of each state has found its limit: like freedom, it stops where that of others begins. This has been the vision of the international order within the “Westphalian system”, at least insofar as it has been respected. This has not always been the case because there is a great temptation to regard sovereignty as absolute and the right to resort to war as unlimited. States have often found a way to legitimise their conquests, annexations or belligerent imperialism: their security needs, the alleged “historical right” to a particular territory, the usefulness of exporting their values by force if necessary, the search for a “living space”, the superiority of their race or nation or the “civilising mission”. Alya Aglan clearly shows the change in mindsets during the 1920s, after the slaughter of 1914–18. The way for this transformation was paved by tendencies born at the end of the nineteenth century and continued during the Second World War, when it became clear that these new ideas, enshrined in the Kellogg-Briand pact of 1928 and the Briand European federal union plan of 1930, did not help prevent the outbreak of the 6 Sea Violette Larrieu and Jean Frances’ paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch? v=yrK6YwRhDZs. 7 See Sylvain Antichan and Cyril Magnon-Pujo’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube. com/watch?v=s4WiY8jti8Y.

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second planetary war. In his dialogue with Freud (Warum Krieg, 1932– 33), Einstein saw a possibility for global security if states were prepared to relinquish part of their sovereignty in favour of a superior authority, which the League of Nations was not, since it imposed the rule of unanimity. Absolute sovereignty was the enemy, the source of wars. The physicist asks his psychoanalyst interlocutor what is the way forward. Freud’s answer is somewhat dilatory and does not take into account the urgency of the situation: the solution cannot be institutional; it lies in the “development of culture” which, in time, will allow the triumph of the impulses of life and love (Eros ) over the impulses of hatred and destruction (Frank, 2012). This vision was undoubtedly to inspire the creation of UNESCO in 1945 within the UN system. In the meantime, war had made a comeback and, during the German occupation, the aspiration of many resistance fighters to a kind of European political federalism was also based on the project of doing away with this dogma of the absolute sovereignty of states.8 However, after the Liberation, Europe was not created “all at once” or in a day. These same resistance fighters were first of all in a hurry to rebuild their national states, and the history of European construction post-1945 is not linear. It is the history of the overlaps between this awareness of the need to build Europe and the existence of these somewhat strengthened national state entities. Ultimately, this Europe was indeed built, slowly, imperfectly, without the federal framework dreamed of by some, with alternating cycles of moments of crisis and revival. For nearly three-quarters of a century, the Member States have been gradually delegating part of their sovereignty, or rather their jurisdiction. But it is interesting to note that this delegation is taking place mainly in the economic or monetary sphere—which is already a great deal if we consider the historical role of currency in the construction of state sovereignty—but not in that of defence. There is a red line here: the monopoly of legitimate physical violence, the right of life and death over citizens in case of danger, remains in the hands of the nationstates of the European Union, hence the unanimity required when it comes to voting under the Common Foreign and Security Policy (CFSP). In Europe, there is no European demos, only national demoi. Even if their sovereignty is not absolute, Member States remain sovereign in that they can sovereignly leave the EU, as evidenced by Brexit. That said, there are 8 See Alya Aglan’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=_o146K5Tdts.

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more and more discussions in an attempt to define an authentic “European defence”, since the risks to the continent’s security are growing, and this even before Russia’s invasion of Ukraine. The dilemma is not easy to solve: How to respect national sovereignties without being reduced to impotence? How to establish an effective union of forces without undermining the identity of each nation, jealous of the authority of its state over its soldiers? The example of Poland is interesting in this regard. Traumatised by its disappearance between the end of the eighteenth century and 1918, the twofold aggression of September 1939, Nazi occupation and then Sovietisation between 1947 and 1989, Poland is hypersensitive when it comes to its national sovereignty. Since joining the EU in 2004, Poland has been allergic to anything that might resemble interference in its internal affairs, and this attitude was reinforced when the conservative nationalists of the PiS came to power in 2015. The war in Ukraine undoubtedly allows for a reshuffle of the cards. In the vanguard of the readiness to help their neighbour under attack, Poland seems to have gained “more political recognition and military weight in Europe”. The Poles themselves, aware of the danger, could come to think differently about their relations with the EU, as well as the link between national sovereignty and “European sovereignty”.9 “European sovereignty” is very much on the agenda and is constantly invoked by many politicians, including Emmanuel Macron. It has to be said that the present context lends itself to this. Globalisation has reinforced the international division of labour and made unprofitable national production disappear, thus increasing dependence on foreign countries. The war in Ukraine is aggravating the situation by causing or threatening to cause serious energy shortages. Admittedly, this is not a new problem. And it is fitting to open a parenthesis here. Annie Lou Cot and Olivier Feiertag clearly demonstrate the contradictions and dialectical combinations that have an impact on sovereignty over the long term: those between the market and the state, between the war economy— or the economic preparation of war—and “gentle commerce”, between dirigisme and liberalism, the latter dreaming of a peace assured by free trade and “the enrichment of nations”, perhaps to the detriment of

9 See Anaëlle Martin’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=UyuNwM kFFUU.

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their sovereignty.10 The answer to many of these questions of energy sovereignty, food sovereignty and sovereignty for the ecological transition is that the national framework is not enough, hence the current debate on European sovereignty. For some, this expression has no meaning, because Europe is not a nation, has no state and has no body that represents this sovereignty. The EU is the product of treaties signed between sovereign states: they delegate “jurisdiction” in various domains, but not their sovereignty, a concept that should not be confused, even in its external dimension, with that of “independence” (Sur, 2021). For others, on the contrary, it is precisely the concept of “sovereignty” that needs to be revisited, reconfigured, in the sense of “shared sovereignties”, and Europe can be the appropriate place for this type of sharing in clearly defined domains involving defence and security.

Geography, Political Science and History: Spaces and Territories in the Reconfiguration of Sovereignties in the Face of War Chapter 2 (round table) and Chapter 3 (John Agnew) show on the one hand that territory is central to the traditional understanding of the exercise of sovereignty within and between states, and on the other hand that the new forms of conflictuality after the Cold War are redrawing the contours of the interface between “space, sovereignty and war” in this post-Westphalian order. On the question of these new connections, this book effectively brings together the points of view of the geographer, the political scientist and the historian. First, there is the question of the “deterritorialisation” of the exercise of sovereignty. This applies to the new spaces of claims, such as outer space, cyberspace, information, the seabed and the poles. It is also the idea that “winning hearts and minds” is more important than controlling territories (see Chapters 2 and 3 in this book), with the hope that this desire to win hearts and minds, which is older than one might think, will be more successful than the efforts deployed by the French army in Algeria in the years 1954–62, admittedly within the context

10 See Annie Lou Cot and Olivier Feiertag’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube. com/watch?v=kAil9FLbhAQ.

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of a highly territorialised colonial war. The rise of transnational forces, including those of hyper-terrorism (Heisbourg, 2001), which disregard borders, may also give the impression of an “end of territories” (Agnew, 1994; Badie, 1995). Moreover, the long series of dictatorships that were toppled between 1974 and 1991 in southern Europe, Latin America and Eastern Europe may have led people to believe in the globalisation of democracies and market economies, from which a pax democratica would emerge, according to the adage inspired by Kant: “democracies do not wage war against each other”. The result would be a decline in territorial issues. This dream was quickly shattered. The “end of history” did not happen,11 nor did the “end of territories”. The number of fragile states is not decreasing, transnational threats are increasing, and the “globalist paradigm” is evolving: faith in an automatic democratic peace is being replaced by belief in a “benevolent empire” policed by a “liberal hegemony”.12 The difficulties inherent in this type of operation have already been mentioned. But their characteristic is ultimately to bring territories back into the war arena. In any case, before the war in Ukraine, which certainly sets the record straight, even before the annexation of Crimea in 2014, it was noted that any “deterritorialisation” effect produced a backlash of “reterritorialisation” in different configurations. The two notions are in dialectical combination (Théry, 2008): globalisation creates both interdependencies on a planetary scale and microcosmic identity-based withdrawals. While Al Qaeda deterritorialised its terrorism in 2001, Aqmi reterritorialised it in the Sahara and the Sahel from 2007, and Daesh momentarily in Syria and Iraq between 2014 and 2017–19. Territories, therefore, continue to be major issues in international relations. The change comes from the fact that global actors have a new relationship with them, as a result of a body of interactions replacing dichotomies with “continuums”, for example between internal and external sovereignty, between internal security and 11 Of course, one should not misunderstand the expression popularised by Francis Fukuyama: “the end of history” did not mean that there would be no more history, no more wars; rather, he refers to an “end” as a “goal”, as a trend: a future where liberal democracy and the market economy will triumph everywhere. Has this “end” been reached? It seems not. At least not yet… despite the “hopes” raised by the fall of so many dictatorships between the 1970s and 1990s. 12 See Tewfik Hamel’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=UyuNwM kFFUU.

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external defence (see Chapter 2 and the chapter written by Grégory Daho and Luc Klein). This examination of sovereignty through the lens of territories has inspired a number of case studies that have the advantage of making us think about sovereignty at war according to the interplay of scales between local, national, regional and global spaces. From this point of view, the maritime area comprising the Great Caribbean basin and its bordering Atlantic and Pacific oceans is very interesting. Both highly fragmented and connected to vast sea and terrestrial expanses, this interAmerican space is the theatre of illegal activities (unauthorised fishing, fuel, arms and narcotics trafficking) and even criminal activities (human trade). Combating these threats is particularly challenging because of its extreme fragmentation with 45 protected states or territories and 98 borders and territorial boundaries. This is why there is a need for regional integration with “partial transfers of sovereignty and/or the pooling of sovereign means of defence”, often under the guidance of the United States. The construction of multi-level mechanisms boosts the efficiency of the fight against this type of crime from the top down. However, in practice, at the local level, there are still many insular reflexes or effects of national withdrawal out of states’ fear of seeing their sovereignty over their maritime space eroded (see the chapter written by Sylvain Domergue). The example of NATO military bases in Poland shows the same interplay between different scales. Any presence of foreign soldiers, even if they are allies, gives rise to tensions, discomfort and even rejection, whether political or not. The question is how to reconcile the common strategic interest of the countries concerned with the sovereignty of one of them— the one hosting the troops—which loses sovereignty over part of its territory? On the one hand, the Polish population understands the need for these bases at the national level, even more so since the Russian invasion of Ukraine, and on the other hand, locally, they suffer the daily inconveniences in terms of justice, security and loss of independence. Hence, for the allies, there is a necessity to improve relations between civilians and the military around NATO bases (see the chapter by Grzegorz Smulek). This “alliance” issue is fascinating, and should be explored further, because war is not only waged or prepared for against the enemy; it is also waged with one’s allies, which also poses problems of sovereignty, as evidenced by all the tensions caused by allied operations under a single

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command, such as that of Foch in 1918, Eisenhower in 1944–45 or Schwarzkopf in 1991. Urban warfare, the war for the control of a city and the exercise of sovereignty over it, also requires a multi-scalar analysis and operational vision because it takes place in a three-dimensional space: the ground, the subsoil and the skyline, not to mention the sky and the need to control the air. Strategists have been and still are confronted with these multilevel problems since the street battles in Saigon, Hu´ê, Sarajevo, Grozny, Aleppo and Mariupol.13 These examples show that, in war or in situations where security is under threat, sovereignty has its territorial variations and that inter-regional, regional and local sovereignties count as much as state sovereignty. ∗ ∗ ∗ It is difficult to write a genuinely interdisciplinary conclusion to an interdisciplinary book, because the author is necessarily influenced by his or her own discipline. So much for the “aporia” mentioned above. As for the “richness” of this approach, also mentioned, it is easier to account for it. The centrality of the state in the link between war and sovereignty, demonstrated by jurists with the help of the essential related concepts, is globally accepted by the other disciplines, especially since the new conflictualities in the post-Westphalian system do not only relativise it, but also strengthen it. Each one brings their own contribution. The historian wants to “de-essentialise” the concepts of state and sovereignty by analysing the construction of their “realisation” through the wars that have taken place over time, according to a non-linear periodisation made up of synchronous overlaps, without denying the heuristic usefulness of these notions for understanding the contemporary world. The geographer describes the anchoring of the war–sovereignty duo, at different scales, in spaces and territories. When political scientists take this same link into account, they analyse the interplay of actors, governments and institutions “at the top”, and their impact on “living together” in the

13 See Philippe Boulanger’s paper at the conference “War and Sovereignty”, University Paris 1 Panthéon-Sorbonne, 7 June 2022. https://www.youtube.com/watch?v=s4WiY8 jti8Y.

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city “at the bottom”. Sociology sheds light on the processes of identification of the different social groups with the sovereignties at war. It would doubtless be fitting to probe further in the anthropological study of death in combat, of representations of identity and otherness, of “friend” and “enemy”, which would enable us to understand the connection between human invariables and cultural diversities. The economist and the economic historian, by underlining the contradiction between the laws of market forces and the issues of sovereignty, show the necessity of widening the spectrum and of identifying several types of sovereignty. They have all—and this is undoubtedly the strength of this book— sought to look closely at these diverse types and to see how the traditional understanding of sovereignty, while remaining valid, must be reconsidered with reference to the new polysemy of the concept. In an original way, they have studied the contradictions between all these sovereignties, their limits, as well as the “hinges” that exist between them, between the actors who exercise them, between the domains, spaces and territories where they are deployed. To do so, they have agreed to share their methods and their ideas and to create a shared wellspring from which they can draw the substance of their analyses. Sharing and not only juxtaposition—this is what makes the added value of the interdisciplinary approach compared to simple multidisciplinarity…which is not easy to shake off. The Sorbonne War Studies programme of the University of Paris 1 Panthéon-Sorbonne, in the framework of which this book was produced, is fortunate to have a wide variety of human and scientific resources at its disposal to pursue the path opened by this work.

References Agnew, J. (1994). The territorial trap: The geographical assumptions of international relations theory. Review of International Political Economy, 1(1), 53–80. Anderson, B. (1996). L’imaginaire national : réflexions sur l’origine et l’essor du nationalisme. La Découverte. Badie, B. (1995). La Fin des territoires. Fayard. Chauvin, E., & Magrin, G. (2020). Violence et régionalisation en Afrique centrale. Belgeo, 4,. https://doi.org/10.4000/belgeo.43632 Contamine, P. (1986). Mourir pour la patrie. x e -xx e siècle. In P. Nora (Ed.), Les Lieux de mémoire. La Nation (pp. 11–43). Gallimard. Frank, R. (2012). Émotions mondiales, internationales et transnationales, 1822– 1932. Monde(s). Histoire, espaces, relations, 1(1), 47–70.

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Gaillet, A. (2021). La Cour constitutionnelle fédérale allemande. Reconstruire une démocratie par le droit (1945–1961). Mémoire du droit. Gantet, C. (2000). Le “tournant westphalien.” Anatomie D’une Construction Historiographique. Critique Internationale, 9, 52–58. Gantet, C. (2022). Faire la paix par les traités : les traités de Westphalie (1648). Encyclopédie d’histoire numérique de l’Europe. https://ehne.fr/fr/ node/21718 Harrois, T. (2023). Le Parlement de Westminster et les interventions militaires britanniques (2011–2015). Relations Internationales, 192, 71–85. Heisbourg, F. (2001). Hyperterrorisme : la nouvelle guerre. Odile Jacob. Kantorowicz, E. (1984). Mourir pour la patrie. PUF. Lennon J., & McCartney P. (1965). Michelle, in the album Rubber Soul. Morel, B. (2023). La diplomatie parlementaire en France. Ordre Et Cacophonie. Relations Internationales, 192, 25–39. Schirmann, S. (2023). La Cour constitutionnelle allemande et la politique étrangère. Relations internationales, 193. Forthcoming. Sur, S. (2021). Souveraineté, capacité, puissance dans le contexte international contemporain. ThucyBlog, 170. https://www.afri-ct.org/2021/thucyblogn-170-souverainete-capacite-puissance-dans-le-contexte-international-contem porain-2-3/ Théry, H. (2008). Mondialisation, déterritorialisation, reterritorialisation. Bulletin De L’association De Géographes Français, 85(3), 324–331. Toureille, V. (2015). Le drame d’Azincourt. Histoire d’une étrange défaite. Albin Michel. Vial, P. (2008). La mesure d’une influence : les chefs militaires et la politique extérieure de la France à l’époque républicaine. Doctoral thesis in history defended at Université Paris 1 Panthéon-Sorbonne. Vial, P. (2012). La Fin D’un Rôle Politique. Inflexions, 20, 29–41.

Index

A Anti-fascism, 101 Armed forces, 3, 8, 10, 13, 24, 77, 80–83, 86, 113–115, 119, 122, 128, 130, 164, 169, 170, 173, 258 Autarky, 98, 107

B Border efffect, 150–151, 155 Borders, 2, 6, 8, 9, 13, 23, 27–30, 36, 39, 44, 49, 50, 53–56, 58, 59, 102, 108, 127, 129, 135, 136, 150, 151, 158, 162, 163, 189, 191, 199, 200, 231, 232, 237, 257, 258, 265, 266

C Civil–military relations, 127, 236, 243, 244, 246, 248 Civil supremacy, 114, 115, 120, 127, 129

Civil war, 18, 49, 51, 58, 59, 64, 99, 102, 104, 110 Cold war, 2, 5, 6, 11, 17, 27, 31, 35, 38, 47–49, 52, 115, 116, 126, 211, 212, 217, 233, 235, 260, 264 Conflict, 3, 5, 8–10, 13, 18, 19, 22, 26–32, 34–38, 44, 50, 53, 61, 73, 83, 101, 104, 106, 123, 127, 153, 159, 161, 166, 172, 185, 186, 188, 196, 192, 197, 198, 216, 219, 224, 225, 232–234, 237, 238, 248, 254, 256, 259, 260, 264, 267 Conflict of interests, 232 Constitutional law, 34, 73, 75, 77, 78, 80, 81, 83, 84 Coup d’état, 188, 191, 196–198, 200 Crisis, 6, 8, 36, 37, 98, 110, 115, 117, 118, 122, 189, 191, 196, 200, 257, 260, 262 Crisis management, 115, 118, 122 Cross-Border, 8, 28, 54, 148, 164, 170, 186, 235

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Daho and Y. Richard (eds.), War, State and Sovereignty, https://doi.org/10.1007/978-3-031-33661-4

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INDEX

D Defense policies, 24, 76, 88, 119, 260

E Economic Community of West African States (ECOWAS), 186–189, 191–194, 196–204 Emergency powers, 115, 116 European Resistance, 110 European Union, 17, 18, 46, 58, 59, 75, 77, 88, 163, 262 Executive power, 116

F Failed state, 18, 23, 159, 162, 166, 167, 257, 269 Federalism, 108, 262 Femme, 35 Foreign military bases, 232, 233

G Geography, 11, 12, 22, 30, 142, 144, 145, 148, 150, 155, 252, 264 Geopolitical orders, 45–50, 61 Geopolitics, 46, 48, 128 Global war on terror, 161, 174

H Hegemony, 47, 58, 218 History, 22, 31, 33, 34

I Identity, 7, 8, 49, 56, 59, 61, 63, 64, 81, 251, 252, 255, 257, 258, 263, 268 Industrial sovereignty, 260 Innovation, 260 Institutionalisation, 73, 85, 88–90

Interdisciplinarity, 251 Internal and external sovereignty, 253, 265 International law, 19, 23, 34, 54, 55, 73, 75, 85, 106, 160–163, 166, 167, 168, 170–173, 175, 186–188, 194, 197, 209–213, 227 Interplay of scales, 266 Intervention by invitation, 160, 169, 170, 172

J Justice, 4, 35, 77, 89, 91, 99, 101, 102, 104, 119, 187, 201, 203, 232–234, 239, 244, 247, 248, 261, 266 Justice and security, 232, 234, 239, 244, 247, 248

K Kellogg-Briand pact, 105, 106

L Legitimacy, 3, 5, 6, 9, 13, 73, 99, 101, 113, 130, 165, 169, 186, 195, 200, 202, 203, 257 Local security architecture, 248

M Mali, 13, 173, 185–190, 195–204, 217, 258 Maritime Cooperation, 148 Maritime Security, 140, 142, 144, 150, 151, 155 Maritime Sovereignty, 150 Militarisation of space, 234, 247 Military uses, 214

INDEX

N National interest, 211 Nation-state, 107, 110 Necessary free disposal of armed force, 77, 83

O Operational sovereignty Outer space geography, 210, 214, 227

P Pacifism, 108 Parliamentary control, 119 Political-military relations, 120, 125, 126, 128–130 Political science, 11, 22, 27, 28, 31, 33, 35, 38, 39, 87, 130, 140, 142, 146, 148, 155, 162, 167, 185, 186, 258, 261, 264 Politicisation, 124–126 Power, 2–13, 17–39, 45–66, 71–91, 100–107, 113–130, 161–172, 186–202, 210–225, 231, 234, 242, 252–263 Presidentialisation, 115, 117, 118, 120, 125 Public law, 12, 13, 72, 73, 90, 91, 130 Putin, Vladimir, 18, 19, 31, 43–64

R Reason of state, 89 Regional Integration, 140, 147, 148, 150, 151, 153, 155 Regionalism, 147, 149 Regionalisation, 144 Regional organisations, 13, 37, 103, 153, 186–188, 190–193, 196–198, 201–203

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Representation, 5, 9, 28, 29, 113, 116, 120, 123, 129, 149, 211, 268 Russia, 1, 2, 11, 14, 17, 18, 19, 24, 29–31, 35, 43–64, 74–76, 88, 99, 101–103, 128, 129, 136, 200, 209, 210, 221–226, 236–239, 247, 248, 263, 266 Russian Invasion of Ukraine, 44, 45, 61

S Sanctions, 186, 187, 191–194, 196–203 Security, 2, 4, 6–10, 14, 17–19, 26–30, 34, 37–39, 56, 75, 78, 86, 90, 91, 99, 100, 116–120, 127, 135–137, 139–155, 161, 175, 185–202, 210–212, 215, 218–222, 225, 226, 232, 234–239, 242, 244, 247, 248, 259, 261–266 Self-defence, 159, 160, 169, 171 Social sciences, 2, 3, 10, 17, 36, 37, 71, 130 Sovereign equality, 167, 168, 171, 175 Sovereignty-quality/quantity, 87, 88 Sovereignty Regimes, 50, 53, 57–59 Space, 3–18, 22, 25, 28–31, 38, 39, 47, 54, 59, 84, 88, 103, 107, 109, 126, 136, 137, 140–155, 169, 173, 209–227, 231, 234, 235, 247, 252, 261, 264, 266–268 State theory, 77

T Targeted killings, 167, 170 Territorial trap, 45, 61, 64

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INDEX

Territory, 2, 4, 7, 13, 14, 18, 23–30, 45, 50–57, 64, 86, 87, 102, 103, 109, 121–125, 135–137, 145, 154, 162–173, 195, 198, 199, 214, 216, 217, 231–239, 252, 257, 261, 264, 266 Terrorist groups, 160–163, 165–167, 169, 170 Totalitarism, 106, 107, 109

U Ukraine, 1, 7, 11, 14

W Warfare, 2, 9, 10, 18, 19, 24, 31, 35, 36, 38, 44, 46, 59, 60, 63, 75, 80, 100, 102, 128, 129, 135, 137, 219, 224, 260, 267 West African Economic and Monetary Union (WAEMU), 186, 187, 191–194, 196, 198–204 Westphalian system, 254, 261, 267 World War, 4, 7, 12, 24, 26, 27, 32–34, 51, 55, 97, 99, 101, 104, 106, 107, 110, 114, 135, 235, 236, 252, 256, 259, 161