Defence studies and public law: Emergence, affirmation and methodology of a research field

Anne-Sophie Traversac

Introduction

What public law and defence have in common  is that they allow  us to reflect on the settlement and perpetuation of the state. Defence in this sense might be one of the key issues  of public law. While taking a closer look, this intricate dependence between defence and public law seems to be established but not verified when analysing security and defence studies. It seems to be a work in progress regarding  research in security and defence. This leads to an accurate need of methodology  in this field, which will be further developped  in this chapter.

When  focusing on methods regarding  defence and security  issues we  may first keep in mind  the traditional  distinction  in the French legal  order. Fundamental distinction  for French  jurists is made  between  public  law and private law. This distinction goes back to Roman  law: when the state is a party implied, public law should be enforced. Another way of defining  public law confirms this distinction by mainly relying on the notion of general  interest, as a goal to protect a Nation. Every system worldwide  integrates a distinction  between  public  law and private law. The essential question relies on  how  we  conceive  it. France  considers that relations where the state is implied  should be governed  by rules that are different from  the rules applying between particulars. French-law developed  rules that could be defined  as  those  of a “protecting”  state. Before the French Revolution,  the Fundamental Laws of the Kingdom  constituted the material constitutional law of the French Monarchy.  After the Revolution,  the distinction between private  and public law could  be  clearly  expressed by the construction  of two orders  of jur- isdiction:  one is  an  administrative   Supreme  Court –  the  Conseil  d’Etat  (State Council)  –  the  other  is  the  Judiciary  Supreme  Court –  the  Cour  de  Cassation (Court of Cassation) dealing with civil, commercial, social or criminal  cases. Even if they are organized  in a similar manner, they apply different  rules. One jurisdic- tion could distinguish any conflictual  matter, the Tribunal des Conflits  (the Court of conflicts).

The distinction between public and private law is essential to explain the classical structure  of French  law regarding  defence issues. This  explains consequently the organization of law studies in French universities. This is the point we may keep in mind for defence studies. This underlines, too, the way research is growing  and how researchers can conceive  their work  and accordingly  their career. The teaching and research methods  concerning  the  defence  field are  supposed  to acknowledge  the powerful meaning of two separate branches. In this chapter we will particularly rely on the French case concerning methodological  elements of domestic public law.

Another key to understanding French  law and the place  for defence  in public law within  French  law consists  in establishing  a pyramidal  conception  of rules. The French Revolution  legislators considered in 1789 that fundamental  rights and rules regarding  separation  of powers  needed to be written down clearly. In this regard French  constitutional issues are henceforth mostly  expressed through writ- ten laws. Methodologically  this means that the core method for research in public law is the analysis  of this written material and the correlation  between the differ- ent texts. Public  law, which comprises defence law, incarnates the pyramidal  con- struction of norms in the French legal system. Following  Kelsen’s “pure theory of law” (Kelsen 2017; Herrera 1997), this means that public law (and consequently defence public law as a small branch of public law) considers the Constitution as the top of the pyramid. All the other branches of public law should thus conform to the Constitution:  international  (including  European)  law should  conform  to constitutional law (Art. 55 of the French Constitution),  laws voted  by the Parlia- ment (or by the people directly, which is very  rare) and also administrative reg- ulatory  texts  (decrees,  for instance).  Defence issues  borrow from all of these matters, and, in parallel, the same questions arise about methodology.  This means there is a difficulty  in correctly  identifying  the field,  this means there is also a key challenge to determine  the most  effective  methods.  Therefore  in this chapter we will concentrate  in a more restrictive way on a contemporary  approach and par- ticularly focus on the last two decades. Security and defence  have been the recur- rent  subjects  of laws  and moreover it has  been  a research  topic in public  law. Regarding  the French conception of public law, defence studies are not a classical field from an academic point  of view. This  chapter  thus aims at explaining how these questions have become an object of research and teaching in the last decades in public  law and what  consequences  is  has  on methodology.  The  chapter first examines  how defence   issues  can  be  investigated   by relying on external  law (international  and European  law). This raises  a challenge  because  of the  frag- mentation  of defence  and security  rules and norms  in different fields. Then  the second part will focus on domestic law and how defence issues tend to convey the need for mixed methods (mainly  derived from law and political  science) so as to better grasp the complexity  of domestic legal measures concerning defence issues. In this part we will observe how defence studies emerged as a major research topic and spread  into general  public law in the recent years. We  will draw our argu- ments from the case of French domestic law, as each country’s normative  system implies a wide variety of defence-law  systems in the democratic  states, let alone worldwide.  This example  enables  yet to derive  general  conclusions concerning methodology.

What place for Defence Studies in public law?

When looking at the place occupied by security and defence issues in public law, they spread into classical and historical structures of French public law. In this part we will show and explain why security and defence issues are fragmented into different sub- fields of public law. We observe that despite the demonstrated spread, the same meth- odology tools are useful.

A fragmentation of security and defence studies in public law: origins and effects in external law and their methodological consequences

In the last decades, security and defence studies have spread more  and more within French public law. This phenomenon  is the result of both distant and more immediate origins. The distinction  between  domestic  and international law is  a good start to understand this fragmentation.

External law refers to norms having  an external origin.  France  consents to these norms, France  is also part of several international  organizations which  can enforce norms having a direct or indirect application (like in the case of the EU for instance). Focusing on defence  issues leads us to observe the place and role of international and European laws in the French legal system and how the evolution of these laws combine with the emergence of a normative apparatus concerning defence issues.

International  public law and defence: what method for a valid research?

As far as international public law is concerned it is quite clear that the place of defence and security matters. This comes from the evolution of international  relations and its effects on the international normative order since World  War II. After 1945 more and more treaties  and international  agreements  have  been  signed  coinciding  with the development of more and more international organizations in different fields (and not only concerning military  issues). These organizations  have been created not only to offer economic  forums but also to help build peace and develop  human rights and democracy values worldwide. In the defence field different organizations tend to over- lap and fulfil the same types of commitments: the collective defence clause of NATO in 1949 is the most common  example on a regional scale (Zarka  1997). This clause con- cerning collective  defence as set up by the Washington Treaty of 1949 is the result of different commitments. Indeed in 1947 France and United Kingdom  signed the Treaty of Dunkirk. This treaty of alliance and mutual assistance was the first of its kind after World War II. In the text the enemy has been clearly pointed out: the essential moti- vation was to protect France and the United  Kingdom  against the potentiality of an act of aggression from Germany. This tells us a lot about the original way in which the European  security  system has been  conceived.  After this first  attempt  the  idea of common  assistance has been  brought  further  to a wider scale  with the  Treaty of Brussels signed in 1948 between France, United Kingdom,  Belgium, Luxembourg and The Netherlands (Van Ackere 1995). With this treaty  these European  partners gave birth to the  Western  Union (WU)  which  is  the  first  European  intergovernmental organization after World War II. The treaty aimed at different objectives including economic, social and cultural cooperation  among  member states. The member states essentially accepted a mutual defence clause (Art. IV).

We underline so far the need to follow the classical method  used by researchers in law: the primary research tools here are mainly texts, treaties and conventions for the examples above, whatever number of states implied,  whatever  the success of neither the treaty nor the organization. These sources are relatively easy to obtain as many are open-source data, like in the case of a treaty or an official legal agreement for instance. But the difficulty  here is the period before the text is officially  released, which can be very long as long as the legal negotiations are not closed. The researcher might rely on press releasees,  and even  sometimes  interviews  (see Chapter  4 on this issue)  to get information. This leads to an important challenge: first, we may ask which information can be used, and then, we must question  at what  stage  can  we  use it? Regarding security and defence, a small number of blogs are very useful (“Bruxelles2” provides a good example,  as a blog both in French and English), a large  number of Internet sources can be helpful but can’t be considered  as scientific material.  Law researchers are first and consequently deprived of a substantial amount of information: they need to give themselves a methodology to analyse which media can be used, with necessary discernment.  This  methodology   is very close  to the  one used  in political  science; researchers are more used to questioning the media, and to using media sources in their own researches.

As for the content, we can underline that recalling these treaties is an important element to understanding what collective  defence means and how it translates  into legal norms. Studying defence clauses leads us on the one hand to take into account the United Nations  Charter and its  Article 51  on legitimate  defence for instance  (see Verhoeven  2002; Cassese 2005). Even though many criticisms had been raised in the previous decades towards the functioning of the Security Council  and the use of veto by some powerful states (like Russia or China in the last decade) the UN remains the only universal international organization providing for collective  security and defence and giving directives on how to achieve them by using peaceful means to solve inter- state  disputes (particularly   in Chapter  6  and Chapter  7  of the  UN  Charter)  (see Anderson  2009 considering the Security Council as a Talking Shop in an age of rising multipolarity). On the other hand it also leads us to consider the regional collective or mutual defence clauses such as the famous article V from the Washington Treaty in the case of the most powerful military alliance (NATO) in the world in the contemporary era. These two examples provide the basis of collective defence at the global level and at the regional level (NATO here, but it is also true for the EU, for instance) which builds upon the international  norms derived  from the UN Charter  as the basis of contemporary  international law. Again, we can highlight  the main difficulty  for the researcher in public law: the main weaknesses of the Security Council are not made of classical materials for law researchers. In fact, the method needs here focus on content analysis of the positive material, but also and mostly what is not in the material texts: the analysis of the Security Council’s action in this field relies more on what isn’t done nor written. This leads to common  methodology  challenges between research in law and in political science.

Moreover,  this brief analysis of collective  defence clauses enable us to highlight an interesting element in line with the purpose of this edited volume: the main handbooks on international public law dedicate pages to collective  security, but not more than a chapter, even  not more than  20 pages  (out of 800)  on collective  security (see, for instance, Armstrong  2009; Aust 2010). In these pages (or chapters) much attention  is paid to the history of limitation of the use of force or to the focus on classical authors like Grotius (De jure belli ac pacis, 1625) or Vattel (The Law of Nations, 1758). The often cited example are the League  of nations (1919) and the Briand-Kellogg   Pact (1928) to explain the UN Charter: “All Members shall refrain  in their international relations from the threat or use of force” (Art. 2 §4 of the UN Charter; see Schrijver 2005). Many  pages could be written here, cross-fertilizing law and political science by relying on similar methodological tools.

Defence  issues are only one matter over  plenty of examples of the development of international public law. The place of these issues is yet essential given the history of war and peace between  nations, but this topic  is still given  a minor place in most international law handbooks. As a matter of fact, defence materials and norms are mostly presented and  developed  in  dedicated  fields  such as international  law for armed conflicts or international humanitarian law (see for instance Fleck et al. 1999; Bothe 2013; Clapham et al. 2014; Weller et al. 2015). Security and defence are only a small  part of international  public  law, even  though  collective  security and  peace making is the inherent aim of the United Nations given by the San Francisco Charter of 1945.

What are  the  consequences  of this marginal  position  of defence  norms  when researching and teaching international public law? This mainly results in the fact that before  reaching the master’s level of study most public law students (in the French case) only tackle  defence  issues as one example among many others. This lack of specific teaching on defence issues in French universities is also linked to the content of security  and defence  on an  international  scale  and the  disciplinary  divide in teaching those matters at Bachelor level. In most French  universities international relations are considered as a branch of political  science as much as of international law. The terror attacks of 2015 even started raising the awareness of the French aca- demia on the lack of war studies in France (Holeindre  2015; Holeindre  and Vilmer 2015). The multiplication of treaties and organizations within the international order born after 1945 leave the field of international relations open to different disciplinary investigations including in law. Even though law studies are not the only relevant matter on this kind  of issue,  law remains an important  part of the  research and teaching in defence issues.

International  public law is closely  linked  to international  relations and interna- tional politics investigated by political science. The close link between both different academic fields is also a point that we need to explore further. The French academic system  tends to separate  these two fields. In international public law security and defence  questions are studied basically  in the first years of Law studies (Bachelor degree). Deep  attention is paid at master’s level (4th and 5th year of study), when students choose  to specialize  in international  public law. They are then offered  a complete overview of security and defence issues. Furthermore, this insulated position of defence  issues is a bit unfortunate  as many  issues of international law could fun- damentally be treated through the prism of defence studies. One good  illustration of this point  could  be environmental law. This is  now a good example of a rapidly emerging issue both quantitatively and qualitatively.  Some aspects of environmental law became, obviously,  major  security and defence issues: the consequences of armed conflicts on environment is the topic of a PhD in public law and of many more papers from students,  as it’s a subject of teachings of qualified  publicists (see for instance Kiss 1989; Beurier 2017).

Methodological issues in the European Union law research investigating defence issues

The regional development of the European Union is also a good way of understanding how defence found a place in research and teaching in public law. Here we will not discuss the question of the nature of European Union, as it not crucial to our argument (see for instance Grard  2012). Indeed the legal history and development of the Eur- opean Union implied first the marginalization of security and defence issues.

In 1951 six European countries created the European Coal and Steel Community (ECSC).  Belgium, France, Italy, Luxembourg, the Netherlands and West Germany founded  an organization  to regulate  the industrial production  of coal  and steel. Before  pursuing and founding  in Rome two other communities, they attempted to set up a European Defence Community (EDC) in 1950 (based on a French plan, the Pleven Plan). After years of negotiations to get all the partners’ agreements on the EDC Treaty (also called the Paris Treaty),  the French Assembly failed in ratifying the text in 1954 as the opposition  against the Treaty won the parliament over (see Aron  and Lerner 1956; Vial 1992; Buton 2004). This led to the first failure in the attempt to build a European  security system by the European  States themselves as they simultaneously ratified the Washington Treaty and committed to NATO ruled by the American leadership (see Deschaux-Dutard 2018). The consequence of this historical  sequence is a twisted conception of European security by European States still prevailing  in the 21st century.

If European  defence  is a current  teaching  subject  in many Anglo-Saxon  uni- versities  (in Germany,  the UK, the Netherlands  …), it is still  quite  marginal  in French law Bachelor  degrees but became  a raising research topic  in the last two decades for PhD  students and researchers in political science and public law (see for instance Irondelle and Vennesson 2002; Irondelle 2002; Mérand  2008; Terpan and Saurugger 2018). As we pointed out that security and defence issues globally  occupy a small part of international public law handbooks, the same applies to handbooks on the European Union.  It is of course different in the Anglo-Saxon  academic lit- erature were  plenty of edited books  and handbooks  can be found  on  European defence (see  for instance, Mérand  2008; Biscop  and Whitman  2012; Meijer  and Wyss 2018). Different  reasons could explain this. First of all, European defence has had some failures and mostly  relies on intergovernmental  non-constraining rules. From 1954, when France decided not to continue any further in the establishment of the EDC, and sanction from the Lisbon Treaty, European defence did not generate so many binding legal rules (even  though it seems  to be changing  in the Brexit context since  2017  and   the  adoption   of  Permanent   Structured  Cooperation (PESCO), for instance). European defence relies on a long list of negotiations and summits and numerous small steps. The Treaty of Maastricht (Treaty on European Union,  1992) is one of them. It adopts a cautious formulation: “The common for- eign and security policy  shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common  defence” (Article J.4).  This  Article demonstrates  the common  progresses of European  defence. From 1954  to 1992,  there  has been  a constant construction of European “conception” of defence. In 1992 the Maastricht Treaty  altered the former  treaties and created  a European Union based on three different pillars, including the Common  Foreign and Security Policy (CFSP) which was renamed Common  Security and Defence  Policy  (CSDP) by the Lisbon  Treaty (2007). During the general evolution of the Union,  moving  faster on some policies also explains the minor place of defence studies even if we can underline a coherent construction of European rules of law in security and defence issues.

As well as for international public law, European law research tends to leave defence issues under-investigated.  As defence has long been apart from the integration process, handbooks  are progressively  adding defence issues as it becomes more and more sub- ject to discussions and analysis (see for instance, Blumann and Dubouis 2016).

Regarding the methodology to investigate European defence relying on public law, we can conclude in the same way as for international public law. Indeed, researchers in law are mostly using treaties and the rules deriving  from  those treaties. All mate- rials existing before the treaties can be referred as “grey materials”: these are key to understand defence  issues in the EU but this soft law is not yet the first material for research in public law. This means that law researchers on this field are not numerous because their object  is not yet clearly  identified  as a law research object.  The con- sequence  of this  is  major for the  career  of young  researchers in law wanting  to uncover European  defence issues; when researchers are interested in this field, they can hesitate when choosing  a PhD subject: one can ask if this subject,  borrowing from public law and political science, can be relevant for the a researcher aspiring to a tenure position in the academia.

Regarding  the teaching methodology  on such issues, the situation  is quite  similar as the one described above concerning international public law. Bachelor degrees in law mainly  focus on non-security  and defence  aspects of EU law. Only students who want  to pursue  a master’s degree  in  international  and/or European  law are actually confronted  with defence issues and given  legal perspective on these issues. Unlike international public law researches which can focus on security and defence studies as a subpart of this academic field,  European law students and researchers who want to focus on defence  issues are  confronted  with a new reading of Eur- opean history, focusing on defence. It is an interesting  specialization  though.  For instance, legal understanding of European  defence  issues can help understand how neutral  states have  accepted  to ratify articles  enabling  other  states to cooperate further and faster on defence issues with the PESCO  mechanism adopted  in 2017 by the European Council without having to commit into PESCO  themselves.1 Even if defence  has not yet moved from cooperation to integration, public law is more and more  accurate on these issues and  needs to be completed  by others academic fields, such as political  science or economics. Research in European law becomes all the more  relevant on defence issues as the Lisbon Treaty has increased the level of norms  applying  in the field of European defence and security. This  translates  to handbooks on European Union law tend to start devoting  more substance to issues related to CFSP and CSDP. Likewise the increasing role of security and defence issues in the EU will call for more defence developments in the near future with an emerging  role for the  Court of Justice  of the European  Union (see  for instance Terpan and Saurugger 2018).

As shown in this part defence studies are increasingly tackled by international and European laws. We will now analyse the situation of defence issues in French domestic law and show its consequences in terms of methodology.

Understanding the fragmentation  of security and defence studies in public law: the methodology of domestic law in defence studies Research on defence issues has overcome  an important  evolution  in the last decades. As in the case of external law, domestic law (mainly constitutional law but not only) develops a growing interest for defence  issues. If the contemporary context (the after- math  of the  terror  attacks  in France  and Europe)  is one of the  main  reasons, a reasonable and major  development  is also underway: when law was considered  as a constraint before, it seems to be socially better accepted.

The first purpose of constitutional law is the reference  to texts and practices incar- nating the way a state is ruled. Devolution  and separation of powers are developed in the  French  Constitution  (the Constitution  of the 5th Republic  adopted  in 1958). Thought and designed by General Charles de Gaulle, the Constitution of 1958 mainly relies on principles which exacerbate the role and powers of the French President. The practice of government by Charles de Gaulle  during the first decade is still relevant today to investigate how French institutions work. Methodologically  speaking we need to underline again here the proximity  between law and political science, even though contrary to a political  scientist, a public law researcher who wants to investigate the practice of legal texts is confronted with the difficulty of lacking experience concerning research interviews.  So he/she needs  to focus on the analysis of content, even though legal texts may sometimes be parsimonious.

Indeed  regarding  defence  the French  Constitution  is not  very  revealing.  Few clauses concern  defence  but the main elements on defence are not written in this very text. The only and major point is the leader’s identification:  defence  relies on the decision  of the President  of the Republic. According to the Article 15: “The President of the Republic  shall be Commander-in-Chief  of the Armed Forces. He shall preside over the higher national defence councils and committees”.2  Further- more  the government  “shall  have at its disposal the civil  service and the armed forces”  (Article 20) and the  Prime Minister  “shall  be  responsible  for national defence”  (Article 21).3 Yet confronting  the text and practice under the current 5th Republic,  the President is the essential player. He is the only one in charge of the nomination  of his Prime  Minister,  who should have  the confidence  of the lower House of Parliament (Assemblée nationale). France knew three periods of distortion of majority,  named “cohabitation”  between  the  President  and the  lower House:

1986–1988, 1993–1995, and 1997–2002. French President François Mitterrand  let there be no doubt about who had the power of decision in the defence field in 1986. The  cohabitation between a president  and a prime  minister of different political colours raised the question of the adaptation of the text to this new practice. 1988 was the first time since 1958 that the Parliament  had a political majority different from the one supporting the President. The answer of President Mitterrand to this context was clear. The Constitution should apply with a simple principle: the whole Constitution,  nothing  but the Constitution  (address to the lower  House in 1986). This practice revealed the perpetuation and confirmation that the 5th Republic is a parliamentary regime. The defence field is a very interesting subject to investigate the functioning of the regime. At this exact period when President Mitterrand ana- lysed how the fundamental norm would apply, he tried simultaneously to preserve the fundamental powers that the Constitution  gives to the President (see Howorth 1992). One aspect is particularly clear. When the Prime Minister had been chosen among the new majority  in the Parliament, he had to compose the government.  He expressed clear concerns about who would be appointed as defence minister and as minister of foreign affairs. This clearly shows that he wanted to keep the defence and international  relations areas under his supervision. Years later the last cohabitation in France made no exception on this issue. From 1997 to 2002, President Chirac and Prime  Minister  Jospin attended together  meetings on defence and foreign affairs matters. Even  if the Prime  Minister  could have the Parliament  vote on different aspects of defence, defence historically remains an issue under the private turf of the executive power (domaine reservé; see Howorth  1992).

The text of the French Constitution gives the main responsibility of defence to the executive. The President of the Republic “shall preside over the higher national defence councils  and committees”  (Article 15). Nevertheless  the  role of  the  Parliament increased slightly in the last decades in this field (see Deschaux-Dutard  2017). Histori- cally the  Parliament  disposes of the  war powers:  “A  declaration  of war shall  be authorized by the Parliament” (Article  35 §1). Yet in practice there has been no use of this article under the 5th Republic.  For instance the “war on terror”  that President Hollande  launched after the terror attacks in Paris in November  2015 is legally not a war. The role of Parliament  increased with regard to defence  issues since the  last amendment of the Constitution  initiated in 2008.

The Government shall inform Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It shall detail the objectives of the said intervention. This information may give rise to a debate, which shall not be followed  by a vote.(§2)

“Where the said intervention shall exceed four months, the Government  shall submit the extension to Parliament for authorization. It may ask the National  Assembly  to make the final decision” (§3). The 24th renewal of the text of the Constitution  in 2008 was the most extensive since 1958. More than half of the articles were modified.  The aim was to revalorize the Parliament and to promote a better control of the executive. Actually  defence is not a pertinent illustration of the aim and result of this constitu- tional reform. The Parliament takes benefit of a scrutiny that had never existed before. When the government decides to send armed forces abroad, he has to inform the Par- liament. The Prime Minister is also only informed. This is a positive evolution but the information is totally controlled by the government. Moreover  the Parliament has also seen its scrutiny competences increased concerning French military interventions abroad:  should  the  intervention  exceed  four months,  the  Members  of Parliament (MoPs) have to authorize the extension of the intervention.  This is also a new power for the legislative body (Gohin 2014). Yet the practice of the last decade shows sparsity from the MoPs.  Defence matters in France usually benefit from a global national con- sensus among  the political  elites which makes it difficult for a political party to assume the burden of breaching  this consensus. France  has until recently  not been used to debate on defence  issues. This is slowly  changing. More politicians are assuming dis- cordant voices after executive decision in this field, as shown when MoPs are debating on defence matters. This could come from a stricter interpretation of the self-defence disposition of the UN Charter (Article 51) that France tended to support for few years. Terrorism has clearly influenced the way France decides to interpret  this clause. The operations lead in Iraq and Syria in the recent years are a good illustration of this trend. From a methodological  perspective, this means that research in public law on defence  issues needs to take international  relations into account so as to grasp the complexity of legal measures and their context  of application.  Which  means press content  analysis, and discourse analysis in many  cases. There  again,  this pleads for more cross-fertilization with other disciplines, such as political science.

Back to the French case, even if the national consensus on defence is slightly weaker than before, the last Parliamentary votes on defence issues convey three remarks. First of all, all operations were extended without much debate in the Parliament. As only simple majority  is required, it is not an obstacle: defence issues are traditionally  not used by the opposition to tackle the government contrary to financial or social issues for instance.  The Parliament  would not risk  a government  crisis by opposing  the extension of a military  intervention.  This is even truer given the high level of public opinion support towards the French armed forces and their interventions abroad since the terror attacks of 2015.Yet this high level of support could slightly change with the last missions in Sahel. Operations Serval (2013) and Barkhane (since 2015) tend to last for a very long time and have no precise deadlines yet (they should go on as long  as terrorism destabilizes this region).  Eventually  the practice of the renewed Article  35 shows that the Parliament  voted  when the Executive decided (see Deschaux-Dutard 2017). In the French  tradition,  when it comes to military  intervention  abroad,  the Executive decisions – which really  means the presidential decisions – have generally been accepted with no (or very few) discussion.

However  some criticisms occurred recently (yet not enough to change the executive decision). The Serval operation provides a good example here. In January 2013 Pre- sident Hollande decided to send armed forces in Mali. Despite some hesitations about the first legal arguments conveyed the decision occurred after Malian authorities asked for a French military intervention (see for instance, Traversac 2014). As the operation was embedded in the global fight against terrorism outside French borders it has been easily accepted by the MoPs and the public opinion. Few voices  including the former President Giscard d’Estaing  considered this intervention in Africa  as neocolonialism whereas such consideration  is typical in France when it comes to relations  a fortiori military ones with former colonies.

Likewise  even before the terror attacks in 2015, Paris has decided to lead targeted attacks on Syria which shows an extended interpretation of self-defence. Some legal experts expressed concerns on the legality of these strikes (Fernandez  2015). If their legitimacy has not (yet?) been much of an issue, legality has become a little more of a concern than before. However,  these arguments were put aside after November  2015 as France witnessed a “rally around the flag” phenomenon after the massive terror attacks in Paris.

In this section we tried to show that defence occupies a limited space in constitu- tional law be it in the text or in practice.  Defence  issues in constitutional  law are essential but remain marginal  in most handbooks on French constitutional law. They also clearly benefit from cross-fertilization with political science to investigate the gap between the texts and their practice. This leads to the same conclusion as in the case of international or European Law: defence studies are conceptually essential for the state and yet defence issues remain under investigated  in many academia  and particularly  in the French  academia.  However,   the dramatic  increase of terrorism  on the  French ground led to an evolution with the concept of “state of emergency”.

A new golden era for research on defence: methodology and the weight of political actuality in public law research on defence issues

The increase in terrorist activities both on the French territory and abroad called for renewed norms and a cultural change towards  security and defence issues. The example of the amended Article  35 of the French Constitution has been extensively explained above. Defence took a more important place in the Constitution.  Indeed  the terror attacks of November   2015 shed a new light on the interpretation  the French  Con- stitution. At this time legal researchers discovered that some constitutional tools were of no use. To start with Article  16 has become  useless. It states Where the institutions of the Republic, the independence of the Nation,  the integ- rity of its territory  or the fulfillment  of its international  commitments  are under serious and immediate threat, and where the proper functioning of the constitu- tional  public authorities is interrupted, the President of the Republic  shall take measures required  by these  circumstances,  after formally  consulting the Prime Minister,  the  Presidents of the  Houses  of Parliament  and the  Constitutional Council.

This article was used only once since 1958 during the decolonization  war in Algeria. The conditions mentioned are clearly not suited for the actual 21st-century context. A few hours after the attacks on the Bataclan Theater, and even before the situation was totally under control, the Ministers had a meeting in the presidential palace to discuss a much needed evolution on this point.

Another  constitutional article turned out to be useless. Article  36 calling upon “A state of siege”  which “shall be decreed in the Council of Ministers”. Like Article 16, Article 36 implies  powers  that would  have  been disproportionate  to the threat  by transferring the decision power from civilian to military authorities.

Another tool has been developed in the field of defence and security law in France since 2015. It is the state of emergency created in a law of 1955 again in the context of the decolonization  warfare in Algeria. In a state of emergency, a first decree must be issued by the executive and if the state of emergency shall continue, the Parliament should then extend its application  by a law in a period of 12 days. On 16 November 2015, President Hollande  pronounced a speech before  the Congress4  where he proposed a constitutional reform in order to amend the different legal tools needed if the nation is put at risk. This reform essentially aimed at introducing in the Constitution the only tool which was not of constitutional level: the state of emergency. This state of emergency had been proclaimed by decree less than three days before. We will not discuss here the question  of the possibility to amend the Constitution  during such a period. Such an amendment would have not been unconstitutional (Article  89 of the French Constitution does not forbid it), but this could be a means to underline the vacuity of the existing French legal tools when such a specific and dramatic context leads to the worst decisions. Surprisingly the constitutional reform did not succeed for a reason. In addition to the reform of emergency legal procedures, the French Pre- sident aimed at adding a clause enabling the loss of citizenship in case of participa- tion to a terrorist activity. This implied an important political debate on this issue among  French  political  elites  whereas  the  defence  issues were  not disputed  as much … This example provides for the relative political  consensus on defence issues that we underlined above among the French political elites. It is also interesting  to note that this constitutional reform could have given Parliament more competences to discuss different  possibilities to answer the terrorist threat through legal defence and security tools. But as many proposals of constitutional reform  before, this proposal has mainly  been designed to answer the threat as quickly  as possible  and without taking the time for a global debate on the process of creating new legal defence and security tools.

The state  of emergency  (2015–2017)  has had several  consequences  to take  into account, as observed by a law researcher on defence issues. What is striking is the tre- mendous amount of books related to the state of emergency (see for instance Beaud and Bargues 2016; Cassia 2016). This aftermath of the terrorist attack can be qualified as a golden age for defence studies in public law in France. This increased legal mate- rials for research on defence  issues in public law. Yet again the methods should not only focus on legal measure but also on other sources of information  (such as media, political  discourses …) for which  he/she needs  to combine its method with political science methodology  (see Chapters 4 and 5 in this volume).

The example of how the news also impacts research on defence issues for researchers in public law (and appeals for more multidisciplinary cross-fertilization) is well illustrated by the example of the state of emergency in France. A classical legal debate particularly found an important echo during this period:  it is the debate on the balance between security and the preservation of civil liberties. By essence the state of emergency supposes measures that can result in reducing civil liberties for the sake of the nation’s protection. Looking  at French institutions we should highlight that after the decree proclaiming  the state of emergency, the Parliament voted on the perpetuation of this exceptional  legal measure  concerning  defence  and  security  on the  French  territory.  This  law of 20 November  2015 could have been checked by the Constitutional  Court which is entitled to give an advice on a legal text under eight days in a case of emergency. As the national consensus was strong on the issue after the terrible trauma caused by the Paris attacks no Member of Parliament (they need to be 60 Congressman  or 60 Senators), nor the Pre- sident of the Republic or the Prime Minister, neither the Presidents of the lower or upper House of Parliament made use of their right to ask the Constitutional Court for judicial advice. Thus there has been no control of conformity of the law declaring the state of emergency towards the French constitutional norms.

The constitutional  reform in 2008  introduced   the  priority question  on con- stitutionality (the so called QPC). This tool completes the former control tools hap- pening a priori (before a text is passed as a law) with an a posteriori control (after the law has been passed). Beyond  the constitutional field constitutional decisions (named QPC) reveal the influence of the state of emergency on different matters. For instance concerning administrative law, the chapter on administrative police was renewed and completed. In the field of Fundamental Rights number of civil liberties found a new illustration of the conciliation between security and civil liberty.

Yet this exceptional  situation  is not completely new in France. In the eyes of the Constitutional Court, the state of emergency played the role of a legal tool enabling the perpetuation of the Rule of Law and underlined the role of the Constitutional Court as a nonexclusive but respectful guardian of constitutional principles.

As a matter of fact security and defence studies have a paradoxical connection with public law. Indeed security and defence studies are naturally composed of measures of public law. Yet the place of public law in defence studies has long been relatively weak quantitatively  speaking  even  though  defence  questions  are, qualitatively  speaking, essential  for a state.  The example of constitutional  law developed  above with the question of the state of emergency in France has demonstrated it well. Taking a close look at domestic law, defence studies are also developing  within public law. This is a rather recent evolution  that we observe spreading to all the different fields of public law, even though a classical part of administrative law has for long time dealt with security issues of policing.

The subfield of Fundamental Rights studies are also a good way of witnessing the development of defence  issues in public law. Here the conciliation  debate between defence of the national territory, security in the wider sense and civil liberty is a key for understanding the teaching and thinking process. The French legal Code on Internal Security  states that  security  is a fundamental  right and one of the conditions  for enjoying individual and collective liberties (Article  L. 111–1). This Code  is quite new (2012) but the meaning of this article is older (end of 1970s). As it has been extensively developed in the last years among  researchers in public law the conciliation between defence, security, and civil liberties implies judicial answers and furthermore also phi- losophical and political approaches.

Emerging defence issues (cyber,  intelligence …): a stimulating agenda for research in public law

Finally concerning public law, some subfields have been increasingly tackled by defence issues in the recent years. Two elements can be noticed here. First military intelligence has become  an issue of growing importance in the context of the fight against terror- ism. This issue is by essence surrounded  by secrecy and the difficulty of its regulation by law. Yet some efforts have been made to set rules concerning military intelligence. A second example is the militarization  of cyberspace. This example is particularly inter- esting because it comes against the classical conception  of national borders in public law. Cyberattacks  could  be initiated  from everywhere  around  the world and from individuals, organizations or groups, more or less state-sponsored.  A doctrine on this subject is being constructed where public (and more precisely international) law is wit- nessing a growing impact (Bannelier 2014; Tsagourias and Buchan 2015; d’Aspremont 2016; Couzigou  2018; Delerue  2019). Cyber-defence  issues raise the question of the appropriateness  of legal rules  to the cyberspace  and new potential  cyber  conflicts. Studying legal measures that are developing  to provide protection for cybersecurity and cyber-defence  issues also tend to show that aside the debate about the appropriateness of international  law in cases  of cyber  conflict  or cyber-attacks,  countries  tend to develop  a domestic  legal approach  to the  subject  (see for instance Bannelier  and Christakis 2017) while cyber means are by essence transnational.

Conclusion

As we tried to demonstrate  in this chapter defence issues are spread within  the dif- ferent fields of public law. Defence studies are not yet a major field among the clas- sical structure of public law. Yet recent years have witnessed a rapid evolution with the growing  transnational threats surrounding not only  democratic  states but each and every  state in the world.  There is now a great number of questions linked to security and defence  issues in public law. Defence  is also a rising research field in public law in general and in domestic law in particular as we showed above.  More and  more  researchers started discussing defence  issues in the last decade,  be they embedded or not in military formation  structures such as military universities. Many of these researchers work in public universities and have no direct link to the military institution but develop  a strong interest for defence  issues in public law. If defence (and by extension security) issues have  long  tended  to occupy a rather  marginal position in public law this is quickly changing and will without doubt be of growing interest for public law researchers in the future. In a context of diffused and renewed security and defence threats, defence studies are offering  the sovereign state the most important place in the protection of the citizen. The governments have to bear these issues in mind when deciding defence measures for domestic  purposes and/or when these measures derive from consenting to apply international norms. Therefore if one wants to grab  defence  issues as a whole in the future, one also will have to develop research on the legal  aspects of defence  issues, and cross-fertilize  it with other dis- ciplines, such as political  science, as we have shown in this chapter. A good way of investigating  the legal aspects of defence  studies may be inspired by researches on denationalized or transnational  law, as defence issues have become  more  and more embedded with international security since the end of the Cold War (see, for instance, Ancel and Heuschling 2016).

Notes

1  The PESCO  mechanism already existed in the Lisbon  treaty but had not been used since its ratification in 2009.

2  Source:     https://www.conseil-constitutionnel.fr/sites/default/files/2018-10/constitution_anglais.pdf (Consulted on 18 June 2019).

3  Id.

4  The Congress is the reunion of the two Chambers of the French Parliament in the Castle of Versailles.

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