OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015)

Articles

Ana Paula Brandão - The Internal-External nexus in the security narrative of the European

Union - pp 1-19

António Horta Fernandes - The Two World Wars as Evidence of the Absence of

International Anarchy - pp 20-29

Luís Moita - Opinion Tribunals and the Permanent People's Tribunal - pp 30-50

Jaime Ferreira da Silva - Portugal’s interest in the context of security and defence policy

and maritime affairs. Some theoretical considerations as part of the relationship between

Portugal and the European Union - pp 51-67

Virginia Delisante Morató - Social problems: the demographic emergency in Uruguay

- pp 68-85

Lino Santos - Cyberspace regulation: cesurist and traditionalists - pp 86-99

Natalia Ceppi - Energy on the public agenda: changes in Bolivia with impact on adjoining

countries - pp 100-115

Luís Tomé - "The «Islamic State»: trajectory and reach a year after its self proclamation

as a «Caliphate»" - pp 116-139

Notes

Almiro Rodrigues – The prosecutor in international criminal justice - pp 140-157

OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 1-19

THE INTERNAL-EXTERNAL NEXUS IN THE SECURITY NARRATIVE OF

THE EUROPEAN UNION

Ana Paula Brandão

abrandao@eeg.uminho.pt

Lecturer in International Relations at the School of Economics and Management, University of

Minho (Portugal), and researcher at the Centre for Research in Political Science (CICP). Holder of

a PhD in Political Science and International Relations, a Master Degree in European Studies and a

Bachelor Degree in International Relations. Director of the PhD Programme in Political Science

and International Relations and of the MA in Community Policies and Territorial Cooperation.

Research interests: security theories, European security, human security,

political system of the European Union.

Abstract

The construction of EU security actorness has been accompanied by a narrative on security

nexuses (internal-external, security-development, civilian-military, public-private)

associated with the so-called 'comprehensive approach'. The end of the Cold War enabled

the explicitness of EU security actorness. The post 9/11 facilitated the reinforcement of

previous trends (transnational threats, externalisation of ‘internal security’, interpillarisation)

and the introduction of innovative tendencies (comprehensive approach, internalization of

the Common Security and Defence Policy, interconnection of security nexuses). This paper

focuses on the internal-external security nexus declared by the EU in the post-Cold War,

and reflects about the rationale and effects of the European narrative and practices on the

configuration of a post-Westphalian security actor. Based on the analysis of three

expressions of the nexus, it is argued that the latter reflects a securitising move of the

European actor explained by the convergence of opportunity (redefinition of security,

prioritization of transnational threats in a globalized world, soft power enhancement in the

post-Cold War), capacity (legal, organic and operational in the field of security, after the

entry into force of the Treaty on European Union), and (ambition to have a) presence. The

holistic approach underlying the logic of the nexuses is the result of a co-constitutive

adequacy: appropriation of policies and instruments of a multifunctional actor for security

purposes (security of the EU and of European citizens); securitization of issues in order to

promote the policies and the actor.

Keywords:

European Union; internal security; CSDP; security nexuses; securitization

How to cite this article

Brandão, Ana Paula (2015). "The Internal-External nexus in the security narrative of

the European Union". JANUS.NET e-journal of International Relations, Vol. 6, N.º 1, May-

October 2015. Consulted [online] on date of last visit,

observare.ual.pt/janus.net/en_vol6_n1_art1

Article received on November, 13 2014 and accepted for publication on April, 10 2015

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 1-19

The Internal-External nexus in the security narrative of the European Union

Ana Paula Brandão

THE INTERNAL-EXTERNAL NEXUS IN THE SECURITY NARRATIVE OF

THE EUROPEAN UNION

Ana Paula Brandão

The initial economic specialization of the European integration process and the failure,

in the fifties, of the European Defence Community (EDC) project, associated with the

nature of the threat and the guarantee of the security needs of the United States and

the North Atlantic Treaty Organization (NATO) during the Cold War period, contributed

to postponing the inclusion of the security area in Community Treaties. Despite that

omission, the security rationale was present either as a catalytic of the process

(prevention of European interstate conflict) or in the result (creation, consolidation and

expansion of the European security community).

The changes in the post-Cold War created the opportunity for a new stage, favouring

the clarification of the European security actor. The Maastricht Treaty signed in 1992

defined competencies in the field of security, both externally, under the Common

Foreign and Security Policy (CFSP), and internally within the framework of police and

judicial cooperation in criminal matters (in the broader context of cooperation in the

field of justice and internal affairs1). The formalization of cooperation on security

followed specific aspects: intergovernmental nature ensured through two differentiated

pillars (second and third pillars), enshrined in the Treaty on European Union, albeit

under a single institutional framework; coordination of national policies in the

framework of the European Union (and not the European Community) deprived of legal

personality; reproduction of the state model of separation between the external

dimension of security (second pillar of the EU) and its internal dimension (third pillar of

the EU); cooperation covering "all matters relating to security in the EU"2, although

subject to a specified time in the area of defence. The institutionalization of the (then

called) European Security and Defence Policy (ESDP) by the Treaty of Amsterdam

established the military cooperation, albeit limited to the Petersberg tasks3

1 The JHA Cooperation (Justice and Home Affairs) includes several areas (immigration, asylum, customs

cooperation, judicial cooperation in civil and criminal matters, police cooperation, and fight against crime.

, contributing

to the recognition of security actorness by state actors (members and non-members),

heirs to the realist legacy that values the military component and the classic distinction

between internal and external security. Two changes concerning security introduced by

the aforementioned Treaty must also be stressed: the restriction of the third pillar to

police and judicial cooperation in criminal matters; the possibility of externalizing such

cooperation. A decade later, the Treaty of Lisbon conferred legal personality upon the

2 Preamble of the Treaty on European Union (1992).

3 Humanitarian and rescue tasks; peacekeeping missions; combat forces’ missions for crisis management,

including peacemaking operations. These missions were initially defined in the context of the Western

European Union (WEU) by the respective Ministerial Council which, in 1992, met in the Petersberg Hotel in

Königswinter (Germany).

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Ana Paula Brandão

European Union, eliminated the pillar structure and transferred matters relating to

'national security' to the Treaty on the Functioning of the European Union.

Gradually, in true Monnet’s fashion, the Union acquired political capacity (designing and

implementing policies, setting priorities and agendas, minimum internal cohesion,

internal legitimacy of the political process), legal capacity (adoption of legal rules),

institutional capacity (common institutions with responsibilities in the area and specific

agencies), diplomatic capacity (negotiation and international representation), and

material capacity. The area of security includes the Common Foreign Security

Policy/Common Security and Defence Policy and cooperation in the field of 'internal

security', as well as other Union policies. This allows it to perform four functions in the

field of security (Kirschner and Sperling, 2007): prevention (of interstate and intrastate

conflicts); assurance (peacebuilding); protection ('homeland security'); compulsion

(peacemaking, peacekeeping, peace enforcement).

What are the implications of the gradual institutionalization of the European security

actorness? This evolution has been accompanied by the narrative that emphasizes a

'global' actorness ambition in terms of geographic reach and of holistic approach

(comprehensive approach). The community nexuses are one of the axes of this

approach, which includes the declared "nexus between the internal and external aspects

of security". This paper intends to answer two questions: Why the nexus? How is the

nexus built? Resorting to the securitization theoretical framework (Buzan, Wæver and

Wilde, 1998), combined with the conceptual matrix of Bretherton and Vogler (2007)4

The chapter begins by tracing the evolution of the narrative of the security nexuses

associated with the construction of the European Union’s actorness in the field of

security, after the entry into force of the Treaty on European Union, which established

cooperation in the fields of Common Foreign Security Policy and 'internal security'.

European actorness, it argues that the nexus between internal security and external

security represents a securitising move of the European actor explained by the

convergence of opportunities (redefinition of security, prioritization of transnational

threats in a globalized world, soft power enhancement in the post-Cold War), capacity

(legal, organic and operational in the field of security after the entry into force of the

Treaty on European Union), and (ambition to have a) presence. The holistic approach

underlying the logic of the nexuses is the result of a co-constitutive adequacy:

appropriation of policies and instruments of a multifunctional actor for security purposes

(EU and European citizens’ security); securitization of issues in order to promote the

policies and the actor.

The second and third sections emphasize the discourse and European practices related

to nexus between the internal and external dimensions of security, seeking to answer

two key questions - why and how (is it built), from the analysis of three cases

(examples of nexuses): the civilian dimension of the Common Security and Defence

Policy (CSDP); the internalization of the CSDP; the externalization of internal security.

4 The authors identify three aspects of actorness: opportunity – “factors in terms of ideas and events in the

external environment that limit or allow actorness”; capacity – “internal context of EU action – availability

of political instruments and agreeing on the Union’s capacity to use these instruments to respond to

opportunity and/or take advantage of presence”; presence - “the EU’s capacity, by virtue of its existence,

to exert influence beyond its borders” (Bretherton and Vogler, 2007).

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Ana Paula Brandão

Security Nexuses

In the post-Cold War, debate about security leading to conceptual, theoretical and

empirical pluralism became widespread, resulting in its broader re-conceptualization. No

longer at the centre of the realistic approach, security is conceived as a multi-sector

phenomenon5 because it is not restricted to the traditional political and military sectors,

and as a multi-level one, because it is not limited to the provider and object of state

reference. In short, four central themes in the debate can be identified. First, the critical

contributions of the threat’s realistic setting warned of the complexity of the post-Cold

War environment, characterized by multiple threats including non-state ones. Politically,

the discourse about the "changing context", diffuse and unpredictable, became

widespread. A second front of the debate focused on the referencing object of security,

deconstructing the realistic equation -'state security’ equals 'security of people’? from

the question, 'whose security?' One of the answers favoured the people-centred

approach in the context of the 'humanizing' discourse of the nineties, also present in the

field of development. The diversity both in terms of threat and object (of security)

justified a third axis of the reformulation applied to the security provider: besides the

state, historically enshrined as the actor of security, other actors contribute to the

security of persons, ranging from supra-state organizations to nongovernmental

organizations. The academic and political trend towards a holistic approach

(comprehensive approach) to security is reinforced by the fourth axis of the debate: the

security nexuses. The narrative of the nexuses is based on the idea of interdependence

of phenomena - two or more phenomena that "are intrinsically interlinked and mutually

reinforcing" (Ganzle, 2009: 11) – as opposed to the border rationale (lato sensu6

By way of illustration, two examples are given here to illustrate the presence of the

European actor associated with narrative and practice of nexuses. Somalia and the

Sahel are perceived as an insecurity continuum, where state fragility, extreme poverty,

food crises, climate change, corruption, internal tensions, illegal trafficking, terrorism,

violent extremism, and radicalization are interconnected, with a "growing direct impact

on the interests of European citizens” (EEAS 2011). In both cases, the EU has adopted

a comprehensive approach: the humanitarian support to Somalia in the 1990s was later

combined with development cooperation, political dialogue, civil and military

instruments;

)

underlying the realist paradigm. Thus, the threats are "dynamic" (European Council,

2003: 6) and multidimensional, which requires inter-state coordination in preventing

and combating them. The nexus is intensified by the increasing transnational nature of

threats.

5 Barry Buzan (1991) defined five security sectors: political; military; economic; environmental; societal.

the Strategy for Security and Development in the Sahel (EEAS 2011),

with a budget of 600 million euros, covers the areas of security, peace-building, conflict

prevention, development, and the fight against radicalization.

6 Border not only in the geographical sense but also political (conceptual, operational and organizational

separation between political areas).

7 “The rising of the Somali insurgent group Al Shabaab in 2006 and its support for Al Qaida’s international

jihad as well as the escalating attacks on international shipping within the Gulf of Aden and the Indian

Ocean resulted in enhanced securitization of EU policies toward Somalia since 2007” (Ehrhart and

Petretto, 2014: 182).

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Ana Paula Brandão

In the area of security, the narrative of links abound (security-development/poverty-

conflict, migration-security, energy-environment-security, terrorism-organized crime,

terrorism-proliferation, civilian-military, internal-external security, public-private

security) understood as interdependent, merged or continuum phenomena, a narrative

that culminates in a kind of "Pandora's box" - the interconnection of nexuses.

The In-Out Nexus

The interdependence between the internal and external dimensions (European Council

2003 and 2008, Council of the European Union 2010) is a transverse view to official EU

documents relating to security. What does this interdependence mean?

Both in the political and academic contexts8

Historically, the study of security, combined with state polity, was based on the

separation between "the two arms of the Prince" (Pastore, 2001), the image of

"separate tables

, different expressions, not necessarily

synonymous, have been used to refer to the phenomenon. This wording cacophony

does not facilitate the work of politicians (policy-making) and of academics (teaching

and understanding the phenomenon). The strictly scientific field has been marked by

"empirical ambiguity, theoretical fragmentation and a lack of scholarly dialogue on this

issues" (Eriksson and Rhinard, 2009: 244).

” being quite fitting. The complexity of the phenomenon, associated

with the diversification of threats and the multitude of actors, either as providers of

security or as a source of threat in the context of intense mobility and communicability

worldwide, bucked the traditional paradigmatic, political and organizational separation

between the internal and external dimensions of security defined by the realist legacy.

The end of the Cold War and the events of September 11, 2001 potentiated the

perception of a holistic security (comprehensive approach) covering four areas: security

sectors (multisectoral security beyond political and military sectors); subjects of

security (multiple actors, including individuals and groups beyond the state); security

players, either as security providers or as sources of threat; border dynamics (trans-

governmental cooperation for security; actions of transnational entities for security

purposes; perverse transnational actors). In the European Union, the nexus can be

applied to different phenomena which, in short, stem from three dynamics: (a)

internalizing external phenomena; (b) externalization of initially internal phenomena;

8 “blurring the distinction between internal and external security” (Pastore, 2001); “external dimension of

Justice and Home Affairs” (Wolff, Wichmannb and Mounier, 2008); “dimension/outer face of internal

security” (Rees, 2008); “external aspects of internal security” (Trauner, 2006); “convergence of external

and internal security”/”division between dissolving external and internal aspects” (dissolving divide)

(Lutterbeck, 2005); “merger between internal and external security” (Bigo, 2000 and 2001; Ehrhart,

Hegemann, Kahl 2014), “interface between internal and external security” (Ekengren, 2006), “internal-

external security nexus” (Eriksson and Rhinard, 2009; Trauner, 2013), “externalizations of internal

security (Monnar, 2010); “External dimension of the area of Freedom, Security and Justice” (Cremona,

Monar and Poli, 2011; Monar 2014).

9 Term used by Gabriel Almond to characterise Political Science (“Separate Tables: Schools and Sects in

Political Science”. Political Science and Politics. Volume 21, no. 4: 828-842).

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THREATS AND RISKS

External original (to the EU) of insecurity

/internalization of the effects of external insecurity (a)

Ex. Instability, tension and/or conflict in

Europe’s neighbouring areas

Illegal activities within the EU and across (external)

borders of the EU (c)

Ex. Illegal trafficking; cybercrime

PREVENTION/FIGHTING

Externalization of European cooperation in the field of

internal security (EU’s cooperation with external

actors – states, international organizations –

in the

areas of terrorism, transnational crime, etc.) (b)

Ex. EU-

US cooperation in the fight

against terrorism

Use of EU internal policy instruments externally (b)

(b)

Ex. external dimension of Europol

Use of internal security instruments externally (b)

Ex. Police missions (CSDP)

(Possibility of) Using EU external policy instruments

internally (a)

Ex. CSDP

Transgovernmental cooperation (c)

Ex. European networks (ex Police Chief

Task Force); international networks (ex.

Financial Action Task Force)

Combined use of external and internal instruments

Ex. Civilian-military cooperation

Inter-governmental policy coordination

Ex. Internal security objectives in

external policy

External policy objectives in internal

security (exporting the internal model to

third countries)

Underlying the in/out narrative is the idea of "globalization of security" associated with

the "predominantly transnational character of postmodern risks" (Rehrl and Weisserth,

2010: 21). In this context, a CFSP that is effective in preventing and combating

external threats is considered to be a condition to ensure the internal security of the

European area. In turn, an effective internal security system is understood as a

condition for the former to be an active policy. In the same vein, the European Security

Strategy (European Council, 2003 and 2008) asserts the "indissoluble link between

internal and external aspects of security" (European Council, 2003: 2), explained by

several phenomena, namely: Europe's vulnerability due to its reliance on an

infrastructure interconnected in various areas (transport, energy and information); the

external dimension of organized crime; the global nature of terrorism, which has

increasing resources, including connection through electronic networks; proximity to

troubled areas as a result of EU enlargement; regional conflicts that have direct or

indirect impact on European interests; climate change that has a "threat multiplier

effect" (European Council, 2008: 5). Thus, in the "era of globalization, distant threats

may be as much a concern as those that are near at hand" so "the first line of defence

will often be abroad" (European Council, 2003: 6) and it is therefore necessary to

"improve the way we reconcile the internal and external dimensions" (European

Council, 2008: 4). In this sense, the Internal Security Strategy (Council of the European

Union, 2010) supports the concept of internal security that is "comprehensive and

complete, extending to multiple sectors" and a "global security approach with third

countries" (European Council, 2010: 29).

The most recent events, particularly in the field of terrorism, have contributed to

intensifying the in-out nexus security narrative. In February 2015, the EU Council

reaffirmed the imperative to complement measures in the area of justice and home

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affairs with a commitment externally, particularly in the Middle East, North Africa, the

Sahel, and the Gulf. In the words of Federica Mogherini, the fight against radicalization

and violent extremism must continue to be "a priority, not only for internal and security

action, but also for our diplomatic and foreign policy" (EEAS 2015).

In short, the European narrative shows a securitization trend built on the risk of lack of

control in a globalized world full of threats described as complex, dynamic, less visible,

unpredictable, where remoteness (fragile, unstable and insecure) has become close.

The External-Internal Nexus in the Common Security and Defence

Policy

Devised for the European Union's external action under the CFSP, the CSDP10

was

established in 1999 as another instrument at the service of the EU’s international and

security actorness. The external/internal interdependence began expressing itself in the

civilian dimension, reflected in the use of police and judicial means in external instability

areas. Following the terrorist attacks of March 11, 2004 in Madrid, the possibility of

internal use of the resources, including military, of a policy built for international use

was advanced.

The Civil Dimension of the Common Security and Defence Policy

The Common Security and Defence Policy was conceived to implement the use of force

for peacemaking purposes in areas external to the EU. This initial structure was

changed as regards both the nature of operations/resources (within politics, military

only) and their scope (originally, only external). Even before the implementation of the

policy11

This dimension resulted from the national preferences of militarily neutral states

interested in participating in the new policy without jeopardizing the civilian nature of

their national foreign policies, which reinforced the policy’s initial goal to promote and

give credibility to the international actorness of the EU: "strengthen the Union's

external action through the development of a military capacity for crisis management,

as well as a civilian capacity" (European Council, 2000: 2). Concurrently, it reinforced

the holistic approach to security, which also underlies the desire to contribute to peace

and stability of the Union:

, the European Council, at a meeting in Santa Maria da Feira in June 2000,

endorsed the civilian dimension of the then called ESDP. The latter started to include

four priority areas of civilian crisis management: police; rule of law; civil protection;

and civil administration (European Council, 2000).

Protecting the European Union's internal security involves not only measures at and

within the Community borders, but also, in particular, engagement abroad.

10 Then known as the European Security and Defence Policy (PSDP).

11 Organic operation (political-military structures) and on the ground (missions): establishment of political-

military structures on a permanent basis in 2001; Declaration on Operations in December 2001; EUPM

(European Union Peace Mission in Bosnia and Herzegovina) first mission in January 2003.

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(…)

On the one hand, we must combat the causes and roots of

instability and radicalization using development aid and economic

cooperation. On the other hand, we need mechanisms to replace,

rebuild or support structures in the field of public security and

order following crises. Aside from the deployment of military and

police personnel, civil protection teams play an important role here

in rebuilding infrastructure (…). (Future Group, 2007: 1).

Despite this innovation, the truth is that the EU already had experience in civilian crisis

management, notably through the Commission's activities under the Development

Policy and, above all, Humanitarian Aid. The upgrading of the CSDP contributed to the

European specificity in civilian crisis management, having no equivalent internationally.

One of the peculiarities is related to civilian-military coordination arising from military

support to civilian presence on the ground: civilian missions usually integrate military

personnel for advice, planning and/or reconstruction activities. The existence of mixed

missions (civilian/military) should also be noted.

A decade later, there has been a clear prevalence of civilian missions at the expense of

military operations. This development has been accompanied by organic changes, due

to the creation of organizations, either specific to the civilian component, or with

civilian-military coordination, as well as by the diversify of the type of missions (police,

rule of law, monitoring, security reform, assistance at the border) and geographical

areas.

The (declared) Internalization of the Common Security and Defence Policy

In the fight against terrorism after 2001, the European Council, under the aegis of the

Spanish Presidency, adopted a declaration on the specific contribution of the CFSP/

ESDP. The document (European Council, 2002) highlighted the following areas:

"political dialogue with third countries (promoting human rights and democracy, non-

proliferation and arms control) and international assistance; conflict prevention; post-

conflict stabilization; exchange of information and production of situation assessment

documents and early warning reports; developing a common assessment of threats

against member states or against force without crisis management operations;

determining military capabilities required to protect such forces from terrorist attacks;

analysis of the possibility of using military and civilian resources to help protect civilian

populations from the effects of terrorist attacks."

As requested in the report presented to the European Council on the Implementation of

the Declaration on Combating Terrorism (European Council, 2004a) and in the Action

Plan, the Political and Security Committee drafted a more detailed document on the

specific contribution of the ESDP that underlined the comparative advantage of the

European Union, holder a variety of instruments, including civilian and military, to fight

a complex and multifaceted threat. The "Conceptual Framework" begins by noting the

global contribution to prevent (long-term) terrorism:

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In response to crises, the Union can mobilise a wide range of both

civilian and military means and instruments, thus giving it an

overall crisis-management and conflict-prevention capability in

support of the objectives of the Common Foreign and Security

Policy. This facilitates a comprehensive approach to prevent the

occurrence of failed states, to restore order and civil government,

to deal with humanitarian crises and prevent regional conflicts. By

responding effectively to such multifaceted situations, the EU

already makes a considerable contribution to long term actions for

the prevention of terrorism. (Council of the European Union, 2004:

6).

As regards the specific contribution of the then designated ESDP, four areas of activity

were identified, including consequence reaction and management (dealing with the

effects of an attack combining military and civilian means)12. Despite the different

national sensitivities as to the use of military means in the fight against terrorism,

official documents show a consensus on various aspects, such as prevention of the

terrorist threat in the territories of Member States, the protection of democratic

institutions and civilian population from terrorist attacks, including CBRN, and

assistance to a Member State subjected to an attack (European Council, 2004)13

In the same vein, there is a solidarity clause in case of terrorist threats and natural or

human origin catastrophes which, while not falling under the CSDP, allows the Union to

mobilise "all the instruments at its disposal, including the military resources made

available by the Member States"

The Externalization of Internal Security

European cooperation accomplishes the externalization of internal security at two

levels: the externalization of the internal security of Member States (MSs);

externalization of EU internal security through the external dimension of its activity

(cooperation with international organizations and third countries). So, as an example,

by sharing information, Europol undertakes the externalization of both national police

activity and European cooperation15

Cooperation in terms of 'internal security' in the area of transnational security issues

between Member States was launched in the 1970s outside the framework of the Treaty

. In this section, we focus on the second level.

12 The other three relate to: prevention of terrorist attacks, including sea and air surveillance operations;

protection of staff, equipment and resources, protection of civilian key targets, including critical

infrastructure, in the area of operations, and protection of European citizens in third countries; support to

third countries in the fight against terrorism.

13 Externally, the restoration of order in failed states and post-conflict stabilization must be mentioned

(European Union, 2004b).

14 Article 222 of the Treaty on the Functioning of the European Union.

15 In 2006, Europol approved the Europol External Strategy for 2006-2008. In September 2008 it was

decided to extend the strategy until 2009. The Europol Strategy 2010-2014 includes several points on the

external dimension: cooperation with key partners through the establishment of joint operational plans,

agreements and R&D activities to develop new techniques to prevent and fight serious crime and

terrorism.

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of Rome and community institutions, in the broader context of justice and home affairs

(JHA). The driving factor in this informal interstate cooperation was the growing

international terrorist activity in Western Europe, which showed the limits of national

means to fight effectively against the threat.

In June 1976, ministers meeting in Luxembourg established an informal framework for

cooperation - TREVI - that "worked outside the framework of the European

Communities on a purely intergovernmental basis as part of the cooperation process in

the field of foreign policy" (Mitsilegas et al, 2003: 23). The structure initially consisted

of two groups - TREVI I, dedicated to transnational terrorism, and TREVI II, which

focused on matters relating to public order, organization and training of police forces -

composed of officials from ministries, police and national intelligence services. In the

1980s, the cooperation agenda began to prioritize preventing and combating

transnational activities such as drug trafficking and organized crime, which led to the

creation of the TREVI III group. Objective 1993 – establishing the internal market16

The second phase of cooperation was initiated by the revision of the Maastricht Treaty

that formally introduced JHA cooperation under the Treaty on European Union (TEU):

–

intensified security concerns associated with the creation of an European area without

internal borders, leading to the creation of new cooperation bodies, including TREVI

1992, which focused on police cooperation and internal security matters deriving from

the abolition of the internal borders of the European community. In this development,

the contribution of the Schengen Agreement and the subsequent Implementing

Convention, albeit celebrated outside the scope of Community law, should be noted.

Schengen, which anticipated the free movement of people among signatory states, also

advanced compensatory measures in terms of security.

"[T] he most significant change (...) [was] the fact that, through

changes to the Treaties, internal security matters were first

brought to the centre of the integration process. (...) in the wider

context of JHA, internal security matters have become part of the

political agenda of the Union" (Mitsilegas et al, 2003: 32).

The third pillar of the European Union maintained the intergovernmental nature of

cooperation, although using EU institutions, with particular regard to the EU Council.

The Treaty of Amsterdam introduced three changes: the communitarisation of some

JHA issues (immigration, asylum, justice in civil matters), the third pillar becoming

restricted to police and judicial cooperation in criminal matters; the integration of the

Schengen acquis into Community law; the external dimension of JHA.

The Treaty of Lisbon established cross changes, notably by giving the European Union

legal personality so that cooperation on internal security came under the umbrella of an

international organization, and by formally abolishing the pillars17

16 Free movement of goods, capital, services and people.

for the sake of

17 The veiled prevalence of the second pillar (CFSP/CSDP) should be noted and, in the area of internal

security, a sui generis communitisation also prevailed (shared legislative initiative; special legislative

procedure concerning operational cooperation; opt-out (Protocol 21 on the position of the United Kingdom

and Ireland regarding the area of freedom, security and justice; protocol 22 on the position of Denmark)

and ‘emergency break’ (paragraph 3 of article 82 of the TFEU).

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greater coherence between policies in general, and between the internal and external

dimension of the Union in particular. Of note are also the specific changes in the field of

internal security: transfer of this issue to the Treaty on the Functioning of the European

Union (TFEU)18; terminological consecration of "internal security"19

Along this evolutionary synthesis, the institutionalization of agencies promoting

cooperation on internal security should be highlighted. In 1991, at the meeting of the

European Council, the Chancellor of Germany, Helmut Kohl, inspired by the FBI model,

proposed the creation of a European police agency (Europol, 2009: 11). This proposal

led to the creation of the Europol Drugs Unit. Following the entry into force of the TEU,

the Europol Convention pursuant to Article K.3 of the treaty was celebrated in 1995.

The European Police Office is, since 1 January 2010, an EU agency

; judicial control of

the EU Court of Justice; creation of the Standing Committee on Internal Security (COSI)

“in order to ensure that operational cooperation on internal security is promoted and

strengthened within the Union" (article 71 TFEU); possibility of establishing a European

Public Prosecutor (Article 86 TFEU) to combat crimes affecting the financial interests of

the EU. However, exceptions of the operational component of cooperation should be

noted: Parliament is merely consulted; the Council decides unanimously (special

legislative procedure). The sui generis communitisation and the special procedure in the

framework of the TFEU are symptomatic of the state's resistance to empowerment in an

area that touches the core of sovereignty.

20 that provides

strategic and operational analysis as well as operational support to Member States, and,

more specifically: exchange of information; information analysis; strategic analysis;

operations support; knowledge sharing (Europol, 2009: 3). A further three agencies

work to protect the Union: Eurojust (European Judicial Cooperation Unit), established in

200221, contributes to the fight against serious cross-border crime by coordinating

investigations and prosecutions between Member States; Frontex, established in 2004,

promotes the integrated management of the external borders of the Member States;

CEPOL (European Police College), established in 200522

Originally devised to function within the Community area, cooperation on internal

security later spread out and acquired an external dimension. Although 1999 is

, offers training to senior police

officers of Member States and cross-border cooperation in the fight against crime. The

existence of these agencies results from overlapping supra-state dynamics (agencies

under EU law, coordination with supra-state institutions), interstate ones (coordination

of policies and national resources), and transgovernmental bodies (networks of officials

from the ministries, police, prosecutors, judges, members of intelligence services).

18 Title IV, dedicated to the "area of freedom, security and justice" (AFSJ), constituting one of the eleven

areas of shared competence: legislative initiative, although shared with the Member States, of the

Commission; ordinary legislative procedure; the majority principle in the Council; adoption of regulations

and directives.

19 In previous versions of the Treaties, the expression was virtually silent. Cooperation in matters of internal

security was done through police and judicial cooperation in criminal matters in the framework of the JHA,

and, following a review of the Treaty of Amsterdam, of the AFSJ. The Treaty of Lisbon added the term

'national security', which refers to 'internal security of Member States', thus distinguishing itself from the

'EU internal security'.

20 In 2009, Europol's legal framework was simplified by replacing the Europol Convention and subsequent

Protocols by the Council Decision of 6 April 2009 that created the European Police Office under Title VI of

the TEU then in force.

21 The creation of a judicial cooperation unit was triggered by the European Council of Tampere. In 2000 a

provisional unit (Pro-Eurojust) was established

22 Equivalent to an the agency, it was the successor of CEPOL established by Decision 2000/820/ JHA.

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considered to be the milestone of this externalization23, one can find precedents in the

1980s, particularly associated with the need, identified by the European Commission

and the Council, to include the fight against drugs and organized crime in the Union's

external relations. In the same vein, the Amsterdam European Council urged "the

Council to pursue its work on cooperation with third countries and regions" (European

Council, 1997) under the Action Plan against Organized Crime; the Vienna European

Council24

welcomed "the development of various regional cooperation initiatives" and

"urged that those related to Latin America and Central Asia be carried forward without

delay" (European Council, 1998). The externalisation of proximity with regard to

candidate countries for EU accession must also be noted: in 1998, the JHA Ministers of

member and candidate countries adopted a pre-accession pact on organized crime (EU

Council, 1998). Still regarding proximity, concern was centred in the Balkans, with

particular focus on organized crime, so the stabilization and association process, after

NATO’s intervention in Kosovo in 1999, also included cooperation in this field. The

security rationale was explicit in the European narrative:

"The choice for us in this case is very clear: either we export

stability to the Balkans, or the Balkans export instability to us"

(Patten, 2002)25

The Tampere European Council established the externalisation of internal security in the

broader framework of JHA, stressing that "all the skills and all the instruments available

to the Union, particularly in external relations, must be used in an integrated and

coherent manner so that we can create an area of freedom, security and justice. Justice

and Home Affairs should be integrated into the definition and implementation of other

Union policies and activities" (European Council, 1999).

The following year, the Santa Maria da Feira European Council approved the report on

the EU external priorities in the JHA area, stating that these priorities "should be

integrated into the overall external strategy of the Union in order to contribute to the

creation of the area of freedom, security and justice "(European Council, 2000). It was

not about developing a specific/parallel foreign policy, but about consolidating the Area

of Freedom, Security and Justice (AFSJ) through EU external action and under the

control of diplomats.

23 In the broader framework of justice and home affairs.

24 Approved the first action plan on Justice and Home Affairs.

25 “Even before the horror of 11 September, the recent tragic history of the Balkans had shown to Europe

and to the wider international community the danger that failed, or failing, states can pose to our stability

and security in this small and interconnected world. The Balkans have demonstrated how instability is

contagious, how quickly someone else's problem can become everyone's problem. (…) They have

reminded us and this too has wider application that standing up for our values when they are in danger,

standing up for democracy, for others' rights, for justice, is not flabby idealism: it is a matter of hard

security, and profoundly in our self-interest” (Patten, 2002). “Every country of the region is blighted by

the smuggling of drugs and cigarettes, by the trafficking of people and weapons, by corruption and by

racketeering. The cumulative effect is intolerable - important war criminals remain at large, often

sustained by organised crime. It is an affront to justice, a barrier to the progress and development of the

countries of the region, and a threat to the security of us all. Quite simply, it must stop” (Solana, 2002).

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“This ‘demonstration of force’ by the diplomats could also be

interpreted as an implicit recognition of the progressive

‘contamination’ of the EU’s foreign policy objectives by internal

security concerns” (Wolff et al., 2009: 12).

In short, the strategy was justified by the "pressure of an increasingly interconnected

world and of the inherent international character of threats," the security and stability

of the European Union requiring the "external projection of values underpinning the

AFSJ," the external dimension contributing to enhancing the credibility and influence of

the EU in the world (European Parliament 2007: 354).

The first multi-presidency programme26

At the request of the European Council, a strategy for the external dimension of JHA

was written in order “to contribute to the successful establishment of the internal area

of freedom, security and justice and to advance the EU's external relations objectives

by promoting the rule of law, respect for human rights and international obligations

"(Council of the EU, 2006: 3). The JHA-RelExt Strategy adopted in December 2005

sought to articulate this area, the CFSP, the ESDP, the Development Policy, the

European Security Strategy, and the economic and commercial objectives of the EU,

defining thematic

for the external dimension of the JHA (Council

of the EU, 2002) provided for the adoption of common strategies (Russia, Ukraine and

the Mediterranean), dialogue with partners (US, Canada, Latin America, EFTA countries

and African countries), and cooperation with other international organizations (UN,

Council of Europe, the Hague Conference and G7/G8).

27 and geographical priorities (candidate countries; neighbouring

countries, strategic partners)28

. The following year, a Ministerial Conference took place

in Vienna, in which representatives from the EU, from third countries, the United States,

Russia and from other international organizations discussed the role of internal security

in relations between the EU and its neighbours. The geographical priority was also

explained by proximity:

Internal security cannot be guaranteed in isolation from the

outside world and, in particular, from immediate European

neighbourhood. It is therefore important to ensure coherence and

complementarity between the internal and external aspects of EU

security. As recognized in the European Security Strategy and the

Internal Security Strategy, the relationships with our partners are

of fundamental importance in the fight against serious or

organized crime and terrorism. (European Commission, 2011: 12).

26 The trio consisted of the Belgian, Spanish and Danish Presidencies.

27 Terrorism, organized crime, corruption, drug trafficking, management of migration flows.

28 North Africa (fight against terrorism), Western Balkans and other neighbouring countries (fight against

organized crime, corruption, illegal immigration and terrorism), Afghanistan (fight against the production

and trafficking of drugs) and African countries (cooperation on migration matters).

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The Working Group JAIEX29

How is cooperation in the sensitive area of internal security undertaken? Four principles

govern the external dimension (European Commission, 2011: 3): differentiation, by

regional area and/or country; conditionality, i.e. enhanced cooperation is gradual and

depends on progress and success in the agreed areas; coherence with the overall

foreign policy of the EU, with other relevant policies and cooperation in different

regions/countries; regionalization, which translates into supporting regional and sub-

regional cooperation initiatives. The cooperation comprises three levels: general,

supported by partnership and cooperation or association agreements that cover several

areas, including internal security; specific, through agreements on internal security;

operational, mainly associated with the external dimension of EU agencies. Cooperation

is implemented by means of legal, political, diplomatic, and financial instruments:

agreements/treaties/conventions, joint political declarations,

programmes/agendas/action plans; meetings (from annual summits at the highest level

to regular meetings between senior officials, and including the meetings of cooperation

councils, committees and subcommittees); networks of experts and professionals;

assistance programmes.

was created to facilitate coordination between JAI and

RELEX groups, particularly in terms of exchange of information and strategic and

horizontal reflections.

The EU-Russia cooperation is an example of this. The St Petersburg Summit in 2003

launched the four common spaces of cooperation, including the space of freedom,

security and justice. Two years later, the respective road map30 was approved, whose

implementation is monitored by the cooperation central body, the Permanent

Partnership Council in the field of Freedom, Security and Justice that meets twice a

year. The road map, in the point related to security, envisages cooperation in the fight

against terrorism and all forms of organized crime31. The cooperation has resulted

mainly in supporting the preparation of legislation, training and exchange of

information. Over the years there has been a "growing network of professional contacts,

meetings and consultations, commitments" (Hernández i Sagrera and Potemkina, 2013:

i). Despite the positive effect of this socialization, the concrete results of cooperation

have been limited. In the specific area of internal security32, the agenda has been

dominated by transnational crime, drug trafficking and terrorism33

29 This Working Group of the EU Council, initially under the name JAI-RELEX Ad Hoc Support Group, became

permanent (JAI-RELEX Working Party) in 2010, after the entry into force of the Treaty of Lisbon.

. An operational

agreement was also concluded between Russia and Frontex to promote practical

cooperation at three levels: training, exchange of knowledge and good practices;

sharing of information for risk analysis; joint operations. The agreement established

30 “Road Map on the Common Space on Freedom, Security and Justice” (EU-Russia Permanent Partnership

Council on Freedom, Security and Justice, 2005).

31 The road map covers the following areas: terrorism, document security, transnational organized crime,

money laundering, drug trafficking, trafficking in human beings, corruption, vehicle theft, and items with

historical and cultural value.

32 The broader agenda of the FSJ includes the movement of people and migration. Two agreements were

signed (Agreement between the Russian Federation and the European Community on the facilitation of

the issuance of visas to the citizens of the Russian Federation and the European Union and the Agreement

between the Russian Federation and the European Community on readmission, 2006) and the "Common

Steps towards visa free short term travel for Russian and EU citizens" (2011) is in progress.

33 “European Union Action Plan on Common Action for the Russian Federation on Combating Organized

Crime” (2000), “Memorandum of Understanding between the Federal Service of the Russian Federation

for Narcotics Traffic Control and the European Monitoring Centre for Drugs and Drug Addiction” (2007).

Available at: http://www.russianmission.eu/en/basic-documents.

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with Europol34 prior to the approval of the road map is limited to the sharing of strategic

information35 and threat assessment documents, and negotiations on an operational

agreement have not yet taken place36. Despite two rounds of negotiations37

, the

agreement with Eurojust has not yet been completed, so until now cooperation is

materialized in the meetings of the parties' liaison officers. The main obstacle to

cooperation results from the EU’s use of political conditionality, which is not well

accepted by Russia (Hernàndez i Sagrera and Potemkina, 2013). In addition, the deficit

in mutual trust, which is fundamental in sensitive areas such as security, the

heterogeneity of legal and administrative cultures and the differences in the perception

of threats are also factors that deserve to be mentioned.

Final Comments

In the post-Cold War, the building of the European actorness on security was

accompanied by the narrative of security nexuses. This narrative began to emerge

associated with the prevention and assurance functions, in which the nexus between

security and development played a part. In this context, particular emphasis was given

to the root causes of conflict, as well as situations of state fragility viewed as an

obstacle to development and as a source of regional and international instability. The

nexus serves the interests of the international organization (as a means to increase the

effectiveness of the EU’s international and security actorness), of the European

Commission (starting from an area under its remit where it has accumulated

experience) and of Member States (Europeanization of national policies).

The terrorist attacks of September 11, 2001 and subsequent ones in European stages

amplified previous trends, consolidating security’s holistic approach (comprehensive

approach), the ambition of global actorness and security narratives and practices. In

this context, "the nexus between the internal and external aspects of security" was

reinforced, which stems from three situations that reinforce each other: internalization

of externally-based phenomena; externalization of initially internally-based phenomena;

transborder phenomena.

The analysis of three expressions of the nexus (civilian dimension of the CSDP,

internalization of the CSDP, externalisation of internal security) demonstras that a

combined rationale underlies it: security (ensure the safety and stability of the EU in the

presence of transnational risks and threats); political (consolidation of the AFSJ specific

area as well as of EU external action); institutional (interest of the European

Commission in developing the security components that can have more presence). The

security narrative is built on the idea of risk of lack of control in a globalized world of

threats, described as dynamic, less visible, unpredictable, where distance, perceived as

being fragile, unstable and insecure, becomes close. The actorness and the security

narrative of the nexuses are thus co-constitutive: appropriation of policies and

instruments of a multifunctional actor for security purposes; securitization of issues to

consolidate policies and actor projection. In short, the in/out nexus is justified by the

34 Agreement on Co-operation between the European Police Office and the Russian Federation (2003).

35 It does not allow the transfer of data.

36 “Discussion with the Russians had been rather empty. Professor Rees thought that Russia was resistant to

EU incentives because the Kremlin considered itself to be too important to have its policies moulded by

Brussels” (House of Lords, 2011: 21).

37 The parties began negotiating in 2009.

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environment (opportunity), legitimizing the use of various instruments (capacity) to

promote European atorness (presence).

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OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 20-29

THE TWO WORLD WARS AS EVIDENCE OF THE ABSENCE OF

INTERNATIONAL ANARCHY

António Horta Fernandes

ahf@fcsh.unl.pt

Lecturer in the Department of Political Studies at Faculdade de Ciências Sociais e Humanas

(FCSH, Portugal), researcher at Centro de História d'Aquém e d'Além-Mar (CHAM/FCSH),

Universidade Nova de Lisboa. Strategist at Escola Estratégica Portuguesa

Abstract

The First World War and the decades of turmoil thereafter, namely the 1930s, the Second

World War and, later, the Cold War, are historical moments relevant to prove that one of the

most famous ideas of International Relations is, in fact, impossible. The idea of an

ontologically, yet not phenomenologically, permanent state of war is incompatible with a

world filled with sovereignties. These sovereignties have never lost their political and

strategic control of wars, not even in the main conflicts of the 20thc. All these conflicts were

strategically mediated and never led to absolute war.

Keywords:

Anarchy; War, Strategy; Sovereignty

How to cite this article

Fernandes, António Horta (2015). "The Two World Wars as Evidence of the Absence of

International Anarchy". JANUS.NET e-journal of International Relations, Vol. 6, N.º 1,

May-October 2015. Consulted [online] on date of last visit,

observare.ual.pt/janus.net/en_vol6_n1_art3

Article received on July, 18 2014 and accepted for publication on April, 16 2015

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 20-29

The Two World Wars as Evidence of the Absence of International Anarchy

António Horta Fernandes

THE TWO WORLD WARS AS EVIDENCE OF THE ABSENCE OF

INTERNATIONAL ANARCHY

António Horta Fernandes

The First World War and the decades of turmoil thereafter, namely the 1930s, the

Second World War and, later, the Cold War, are historical moments relevant to prove

that one of the most famous ideas of International Relations is, in fact, impossible. We

are referring to the idea of international anarchy.

Obviously, we must start by defining the issue at hand. In this short paper, we will

clearly not focus on all the nuances of the concept of war or that of international

anarchy, nor will we analyze in detail all the reasons for our definitions of the concepts

we present. The referred definitions will be important for the reader to know what we

mean when we discuss war and international anarchy.

1. War and Sovereignty: the sovereign standardization of war and

absolute war.

Thus, we can start by defining the concept of war as "violence (fight, scale duel) among

political groups (or groups with politico-sacral objectives), in which resorting to armed

conflict is a potential possibility at least, so as to attain a goal in the limits (preferably

external) of politics (or mainly political goals but not only, from the modern era

onwards) aimed at the opponent's sources of power and developing in a continuous

game of possibilities and chances".1

The parenthesis are crucial here for the de jure internalization of war in political action,

in politics itself, is established only in the Modern Era and, step by step, by an almighty

force that will have the means to do it: sovereignty. It is the sovereign, that absolute,

endless and indivisible power, defined by exception, by the ability to proclaim a state of

exception, i.e., to make war an ordinary event.

War becoming an ordinary implies desacralizing it; this secularization, carried out by

the sovereign, changes the features of war, which was, until then, mythologized and

enshrined in a dystopian manner, out of reach for the common human being. The

sovereign links the worlds of peace and war which were separate until the modern era,

blend order and disorder in a new state that allows the possibility, the ontological and

1 For those familiar with strategic means, the definition is inspired in another by Abel Cabral Couto. The

definition by the Portuguese strategist was originally published by him in (Couto, 1989: 148), who states

that: "organized violence among political groups, in which resorting to armed conflict is at least a

potential possibility so as to attain a political end, aimed at the opponent's sources of power and

developing in a continuous game of possibilities and chances".

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The Two World Wars as Evidence of the Absence of International Anarchy

António Horta Fernandes

phenomenological possibility of permanent war because from there onwards war is

viewed as an ordinary political action. A state that we may define as a state of peace

under sovereign conditions.

Obviously, the sovereign, or better, the several sovereigns in the international scenario

must have some control over it because you can only rule what you know. The state of

exception is not the chaos before or after order but a state in force at a time when legal

order has been suspended, when law cannot be formulated and we can hardly tell if we

are complying or breaking the law; a state in which you are completely dependent on

the discretion of the sovereign, or on the sovereign governmental mechanisms, but not

on their arbitrariness, as this would tend towards anarchy, towards disorder.2

Yet, if war is partly a state of exception, when you can kill and that is not considered a

homicide, it is equally an exception beyond the state of exception, so to speak. We

cannot forget the value of marginal utility, which establishes "price", the ultimate sense

or nonsense of war as a phenomenon with internal and autonomous consistency, i.e.,

with its own grammar, what Clausewitz named absolute war. This is the irredeemable

core of war, the absolute chaos, the cylinder of pure violence, the inner core of armed

conflict, which, though not encompassing all manifestations of war, is present and fuels

each war that breaks out, always fostering extremes because extremes tend to go

extreme. This implies that a war fueled by its own sources leads to a politically

uncontrolled state, even for sovereign power. In other words: as war has its own

grammar, its own internal consistency, or better, its own power of erosion , of huge

asymmetries, of disaggregation, it has a core that does not surrender, not even to the

power of the sovereign. Unfortunately, that core provides it life, shakes the foundations

of normalcy, even the terrible "normalcy" that is the suspension of the sovereign logic.

However controlled, war encompasses chaos, continuously deletes order and even

challenges sovereign discretion. To let war lose is to risk doom; and the sovereign

logic, more than any other political tool, has provided the conditions for war to become

extreme, as Clausewitz stated.

2. International Anarchy as State of War: how permanent war is

impossible in a world filled with sovereignties

We must now consider the concept of international anarchy by analyzing the image that

realistic thought provided to international anarchy. In our opinion, the most important

relevant realistic thinker on this theme is Kenneth Waltz, as he approaches the issue

frankly. Nevertheless, all other realistic internationalists also hint at what Waltz clearly

states:

“among men as among states, anarchy, or the absence of

government, is associated with occurrence of violence” (Waltz,

1979: 102).

2 Despite the features of the state of exception as we describe it, we have been influenced by Agamben

(Agamben, 2006: 105-106).

3 (Clausewitz, 1986: book VIII, cap.IIIB, 593 and book VIII, cap.VIB, 606), respectively, for realizing that

under Napoleon war is close to extreme, of its absolute form and of powerful politics (and sovereign

power is like that); Clausewitz is aware of this, that it powerful politics may help in freeing absolute war

from the restrictions that usually control it.

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The Two World Wars as Evidence of the Absence of International Anarchy

António Horta Fernandes

This means that the concept of anarchy (meaning disorder) presupposes an inextricable

link with the concept of war. Obviously, there is no internationalist related to the

concept of international anarchy who considers international anarchy a permanent and

generalized factual state of war or disorder. War is not, in today's international life, a

factual necessity. The concept of international anarchy means rather that, ultimately,

each international actor cannot depend but on its imposing capacities, on its own

power. This means that, even when there is no order or disorder (phenomenology), war

tends to be about the actors, more than a possibility, the ultimate reason (ontology) for

their behaviour. Thus, we can state that anarchy is a state of disorder linked to armed

violence, i.e., the sense or (non)sense of violence is at the basis of international

politics, is its background, its ontological blood, its inner soul. To sum up, the state of

war is ontologically present and sometimes also phenomenologically in existence.

The distinction is clear and it was clear to Hobbes when he states in Leviathan that

"war is not just the battle, it is not just fighting but also includes

that time in which the will to fight is well known.[…] the nature of

war does not consist of actual fighting but in the known will to do

so, during all the time when there is not guarantee of the opposite.

The remaining time is one of peace. So, all that is valid for a time

of war, when all humans are enemies, the same is valid for the

time when humans live with no other security than that provided

by their own strength and invention. In such a situation, there is

no room for industry, for its fruit is uncertain; thus, the land is not

cultivated, there is no sea traveling or use of goods[…]”,

and so one, says Hobbes. Interestingly enough, I argued shortly after that, though

sovereigns live in permanent rivalry, with arms ready, like gladiators watching one

another, which, for him, is an attitude of war , he nevertheless concludes that

"since they protect their subjects' industry that way, it does not

lead to the poverty that is typical of free yet isolated humans"

(Hobbes, 2002: cap. XIII, 111-112).

Hobbes is drawing our attention to the fact that the sovereigns' attitude evidences a

structural predisposition for war, but not more than that (which is a lot!), because if it

was more than that, there would be no industry to protect, there would only be the

poverty he himself described. This accurate argumentation by Hobbes would suffice to

refute any attempt to root the idea of international anarchy in the English philosopher's

writings. But that is another matter.4

4 For refutation of the idea of international anarchy being Hobbes', as well as criticism to the foundations

regarding the concept of international anarchy, see Fernandes (2012).

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António Horta Fernandes

However, if international anarchy is an endemic state of armed violence, we have a real

incompatibility issue. A structural state of war related to both previous understanding

and to ontological understanding of its political actors is not compatible with the ruling

character of sovereignty. The issue in not the changing from hostis to inimicus, because

the sovereign easily makes that transition. The qualitative degree opponents face one

another with is not decisive because sovereigns, due to their need to rule, even if

disputing only a few items, may well demonise their opponent, even if that is the riskier

option because it allows (does it does not impose) extremes and the management of

war. The issue resides in the dimension of disorder, or in its nuclear "standardization",

precisely in the management of war as background, as ontological principle that limits

behaviour and as explanatory epistemological principle because otherwise there would

be no sovereign, considering that, by definition, what escapes order escapes

sovereignty of absolute power (of designing and breaking the law). The state of war as

a rule would eliminate sovereign objectives. If the operational core of international

relations were war, sovereignty would never have existed, and as sovereignty does

exist and sovereign logic still predominant, state of war cannot be a decisive factor.

Hobbes' Lord Protector would protect nothing, leviathan would not be the one, which

seems a contradiction, since sovereigns have that standardized predisposition to war

considering the huge potential for conflict generated by the closeness of powers which

are by nature exclusive. Besides, not only would be the logical consistency of

sovereignty radically affected by the entropic abyss of war as a motor of international

politics, but rather the first and foremost reality of sorority, inescapable even for

sovereigns, the remaining equal, as we have tried to prove before (Fernandes, 2012:

93-97). Where there are sovereigns, anarchy just does not make sense, war is not the

first word, only its possibility is. Yet, since we are talking about its ontological and not

simply its phenomenological character, the difference between possibility and reality is

abysmal.

In other words, I am considering the previously mentioned secularization of war. If war

was the permanent ontological basis, not only would nobody endure that state for long,

but especially, war would become a myth again, it would regain its sacred character of

demonic power; thus, it would be out of the sovereign's reach, who is, at best, a mortal

god, to paraphrase Hobbes. Our reference is to sovereignty itself and not only to the

condition of the human that embodies it. Worse, since sovereignty had already

destroyed the ontological dichotomy between peace and war, this sacred,

uncontrollable presence of war would now become closer to everyday living and, as a

consequence, less manageable and controllable, with the inclusion of the figure of

power humans had created, sovereignty, as absolute and allowed to humankind.

In the modern era, war became a permanent possibility, continuously hanging over the

head of humanity; this allowed for the opening of Pandora's Box. But not as a

permanent force of being, passive or active, because the being in potential is already

being. If the war was to be that permanent force of being, absolute war would have to

be revalued. This would mean that war would set the rules, would change politics and

make it an extension of war by other means, something which, as we know, has never

occurred. Though it seems nothing can prevent it from happening some day.5

5 In truth, we doubt this will ever happen because of some metaphysically-based anthropological

preventions. However, this is not the time or place to develop these considerations.

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Nevertheless, if there is rooted sovereignty, then a state of international anarchy and

that sovereignty become an oxymoron. The opposite would be expected: that sovereign

dynamics would be a catalyst for anarchy. This is the greatest error in judgment but

this is not the place to analyze the origins of that error.

3. Politics and Strategy in the First and Second World Wars: the

absence of anarchy

After all, how can the two world wars prove our argument when apparently we should

have discarded them?

The direct answer cannot be easily given. War was made by sovereigns and they still

exist. Therefore, there is no place for anarchy - in this case the specific features

sovereignty has acquired since the onset of the Modern Era up to today are not

important.6

The first world conflict sees the rising of an intermediary, which we have not yet

mentioned, in the social division of political work: strategy.

However, we could retort that, during the war, sovereigns may have lost

control and later regained it. That would be strange because of the violence of the two

wars and the historical changes they brought about. In any case, this will not be our

argument; we will rather introduce an additional element.

Before going any further, and as I did regarding the concepts of war and international

anarchy, we will not develop the reasons underlying our definition of strategy. We

opted for a soft definition, i.e., a consensual and canonical definition of the term, put

forth by the so-called classics in the theory of strategy of the past 50 years in the

Western world, where the field has developed free from the shortcomings of Anglo-

Saxon theories. Therefore, we can define strategy as collective practical wisdom

developed by political actors so as to be prepared and lead hostile confrontation against

one another.

Resuming, when the First World War breaks out, though the strategy remains

essentially military (and will continue to be so until the end of WWII),7

6 If we consider Christopher Clark's work on the origins of the First World War, we realize that, though in

the years prior to the war breaking out, there were more and more voices willing to accept possible war,

to consider it a certainty in view of international relations, viewing it as therapeutic (279-281). However,

this dis not mean that they saw the international scenario as essentially an arena. It was rather an area of

possible confrontation, a consequence of the clash between the interests of different sovereignties and the

struggle for power these differences implied (Clark, 2013: 237-239). This obviously points towards the

sovereign logic, ultimately, for the frenzy of the sovereign kinetics (hard to control even by those

sovereigns that give the first step, as was made evident in the outcome of WWI) and not towards the

sovereign gap and its specific order.

and though the

foundations for other strategies are already visible, then gathered under the

7 In truth, to use a metaphor dear to the new founder of the Portuguese strategic school, Abel Cabral

Couto, the last of the great classics of strategy still living and producing, WWI sets the principles for the

change from a strategy limited to military action, strategy as a solo recital, in the words of Abel Cabral

Couto, to strategy as a specific instrument which remains relevant but is included in a set of support

dimensions which will be the start of future economic, diplomatic (perhaps this will be the first),

ideological, cultural, communicational strategies, among others. Strategy viewed as a concert for a given

instrument. The version we have arrived to is, as you know, that of integral strategy, whose aim is that

different sets of instruments, several general strategies, foster a collective harmonious movement. In

Abel Cabral Couto's words, this is strategy in its symphonic version. Naturally, though this set of three

should not be seen in terms of progress in music, the same could not be said in terms of strategy.

Additionally, developing new forms of strategy other than military corresponded to a development in

modes of war other than armed fight.

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fashionable concept of the time, the defense, a kind of Spanish shelter that

encompasses all that does not yet have a precise definition, the truth is that, due to the

new conditions of industrial war and the concept of nation at war, it is realized that

strategy can no longer be limited to and immersed in the operational aspect of war.

Strategy is needed to prepare for conflict and to design objectives to leave the conflict.

In practice, strategy's horizontal placing in regards to politics and tactics, i.e., their

differentiation due to the social nature of their actions and actors tends to be replaced

by a vertical criterion, in which the important is not what is done in the conflict but the

relation between their action and political power as well as the consequences of those

actions. This means that the strategic social rationalities - the specific conduct that a

given society has regarding hostile conflict, which, in view of its exceptional nature

leads to intermediate means in correlation with the political guiding principles - gain a

never known importance.

How important is this? The answer is not easy, at least for strategists. Wars of the type

of the world wars tend to invert the strategic pyramid, subordinating, or at least

reducing, the political objectives to those linked to hostility and fall under the scope of

strategy. This is a negative situation which places in question the core of strategy, the

prudent assumption of the conflict, and that strategy tries to oppose to, reacting

against a more violent dynamics of politics so as to avoid squandering of human and

material resources though not always successfully. In any case, for the purpose at

hand, the important thing is to emphasize that, on those occasions, which are not

uncommon in WWI and WII, politics does not founder because of war but politics

becomes more closely linked to violence management. That management, though it

has an impact on strategy, making it a function on strategy, is nevertheless still far

from being the merciless violence of war. On the contrary, though strategic prudence

there becomes evil calculation to assess the ability to inflict damage to the opponent, at

the risk of fostering violence beyond control, undermining the very nature of strategy,

which is to calm the conflict, fire against fire, that management implies being at the

helm, not having been destroyed by violence even in the worst case scenarios of

political limitations, of pyramid inversion, of politics being subordinated to strategy.

Why is that? Why is it that strategy, in a self-destructive process - considering that

what makes strategy is that it takes on its pyramidal role as an intermediary, being

framed by politics in an organized area and towards a firm control of violence - does

not simply light the fire? Because the visceral nature of strategy, even when it was only

a conduct of war, was to be that personalist counterpoint to violence, better, an

unexpected fifth column attempt to put the fire of violence down and provide the

conditions for definitive peace.

There are two objection left, though. The first has to do with the concept of total war

and its practical application. The concept of total war, introduced by the French

politician and journalist Léon Daudet, in 1918,8

8 Daudet defines total war as the "extension of the fight in its most acute and chronical stages in the

political, economic, commercial, industrial, intellectual, legal and financial domains. The fight is not just

between the armies but between traditions, habits, codes, spirits and mostly banks" (Daudet, 1918: 8).

and afterwards developed and

popularized by the German general Erich Ludendorff, in 1935, in his book Total War, is

not, as it might seem, an all-out war, leading war to its ultimate consequences.

Ludendorff's states the opposite, total war implies total politics, the politician should

give in to the commander-in-chief, should be the commander-in-chief and thus submit

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politics to strategy exactly because it requires total control. Operations should cease

rapidly after attaining the objective so as to avoid inner disintegration of society.

(Ludendorff, 1941, 36, 113, 233-).9

Actually, the concept of total war is the historical expression of an era after the end of

WWI which ends with WWII; it expresses the use of all types of fighting simultaneously

and with maximum intensity, whose features also include politics giving in to the

objectives of hostility, those who fall under the influence of strategy, if not by politics

being subordinate to strategy (and not war) due to its prudential self-neutralization;

better still, changing its cognitive register, mere calculation, slyness, mischievous

consideration, never abandoning its sense of restraint.

In practice, pyramid inversion was proven not just a serious possibility but rather an

historical fact. It is true that, in theory, the fact that politics has a closer link to the

political objectives of hostility may lead to a situation of political determination

regarding strategy, reducing political synthesis to those objectives and making them

ancillary for defining what you want to be in terms of political actor. Nevertheless, it is

also true that that closeness tends to boost strategy because it concentrates its

strength in its space and thus deforming the prudential logic of strategy. Strategy is

then led to radically limit its prudential function and rise to the point of politics

becoming strategy, submitting to it because the scopes seemed to overlap and, in that

case, strategy appears technically more apt for the task considering the previously

mentioned consequences. Needless to say that in the historical situation, the easiest

solution was the one adopted - that of confining strategy.10

The second objection seems more relevant. Because, despite what he have said, it is

true that certain passages in the two world conflicts indicate or even mean going

beyond the pyramid inversion, politics and strategy becoming immersed in war. The

slaughter in Verdun, in WWI, and many episodes (probably more than that) in the

9 Jean-Ives Guiomar, French historian of total war, in the previously quoted book, believes that the

emergence of total war occurred with the wars by revolutionary France, though he acknowledges that that

very same total war is only fully present in the 20th c. (Guiomar, 2004: 25, 102-105, 120, 151).

However, we believe the French historian several times overlays the concept of total war and that of

absolute war. Though he states (Idem: 302) that he does not aim to solve the issue - which, for him, is

an open issue - of whether the concept of total war means the same as that of absolute war. In truth, the

author claims (Idem: 19-20) that total war is a war that cannot be stopped or interrupted by the one that

declares it, it expands constantly in space and in time. Yet, this is a feature more in tune with absolute

war, i.e., war that responds to its specific grammar, than with total war.

10 In reality, strategy is not a mere technique, instrument, tool. The fall of politics and the consequent rise

of strategy, both eventually coinciding, option then being for the preponderance of strategy, do not derive

from neutral judgment but rather from instrumental reasoning. Though politics was responsible for

strategy, the latter did not have a more passive role. Not only did strategy acquire a retroactive

prominence over politics, in terms of moderating it, at the beginning of the nuclear era, when it was

framed in political terms, but it also tended to monopolize politics in the era of total war, when it still was

a very significant tool. The obvious contradiction must be resolved differently. What happened was that

politics and war impacted on strategy in its most violent strands, and as strategy was still undergoing

vertical placing criterion which placed it closer to politics, yet still keeping its tactical character, opted for

neutralization (it was simpler and more in accordance with its traditional plaing) and thus respond to

violence of its most ... strands with a resolution highly instrumental, blind and mechanical. In fact, we

saw strategy counteracting as instrumental reason, invading, in an apparently neutral way, other areas

which were completely unrelated to hostility. Or would it be plausible to think that this neutralization of

aims and the inversion of the pyramid relation between politics and strategy, so as to meet the

fascination of a time and an ideology, would ever occur if strategy were a mere instrument? How? What if

the pyramid inversion were later reversed, when strategy becomes more robust and once again is an aim

in itself, and if that inversion typical of the era of total war, which already inverts a previous context (that

which leads to the First World War), in which strategy is less loose but in which sovereign politics is even

less incisive than it became later on?

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António Horta Fernandes

Eastern Front, in WWII, not to mention the genocides, point in that direction. That

seems unquestionable. And? The only lesson to be drawn is to acknowledge how easy it

is to go to the extreme. Because, in contrast, what we can realize is the difference

between these and other stretches of war and that the difference lies in the fact that in

other stretches of history, when war is phenomenologically latent, there should

ontologically be a state of war. If war were ontologically active, the common situation

would be more similar to those dark moments than to any other; better still, after so

much time it would be unlike anything.

4. International Anarchy: an image out of the picture

Finally, the Cold War. In this case, it would be best to not even object. The Cold War

corresponds to the adult age of strategy as a discipline of intermediary and incomplete

aims to be completed in higher political synthesis. Therefore ready as never before for

a perfect (or almost perfect) coexistence with politics; under the nuclear threat, the

former threat to be able to rapidly make Armageddon. The emergence of nuclear arms

and of subversive and counter-subversive doctrines lead strategy to a new era, that in

which we strategically live in.

The emergence of the atomic era, or more specifically, the emergence of thermo-

nuclear war and the arms race, made it clear that only through dissuasion could

catastrophe be avoided. Direct strategy would not pay off. From then on, the war and

strategic effort could not be solely military; other strategies would become

autonomous. What, according to total war, would be another step in the ladder,

becomes a means of fighting war, of carefully and prudently choosing the best

strategies. Would strategy be able to do that if it did not have specific aims? If it is true

that only after the emergence of nuclear power and later with the possibility of

subversive war, which implies a greater coordination between strategy and politics and

even the submission of strategy to politics, is strategy allowed to, as integral strategy,

to fully evidence its prudential capacities, it is also true the escalating of violence,

provided by the new modes of war, did not lead to absolute war only because strategy

imposed its prudential resources. And we must not forget that, in all likelihood,

absolute war would be at stake, its destructive hubris having been liberated, the state

in which, if war ruled, it would not need much time to devastate the earth, a situation

which always leads to problems because humans can become tired of such havoc.

But are we not still alive? The question is the answer.

Where politics, and above all strategy (in terms of hostility), flourishes, war, war left to

its own devices, international anarchy, cannot flourish. The effort to rise, if real,

compromises anarchy because war, left to its own devices, tends towards solipsism, to

move towards emptiness. However, neither politics nor strategy, on their own ,have the

strength to stop armed chaos; you need another reason to do that, a conversion from

pure peace, which, in fact, feeds strategy in its development. However, if we look

closer, the insufficiency of strategy and politics alone evidence the impossibility of

international anarchy, of a state of war ontologically come true. Insufficient is that

which is not sufficiently able, which is not able to do something on its own. But would

we still be discussing capacity if war ruled or would we be overwhelmed, our actions

fostered by the same (hypothetical) hope that we can find at the end of Cormac

McCarthy's tragedy The Road:

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"in deep valleys where the trouts lived, all things were more

ancient than Man and in them there was mystery"? (McCarthy,

2007: 187).

The indestructible and primal inclination towards good has been swept away - we do

not know how, especially because we are not referring to any accident or of an

unexpected effect of a given war. What if this was even more obscure, would we not

only dependent of the belated miracle-working miracle?

Luckily, we are not. Then why would advocates of international anarchy want to lead us

to the absurd?

References

Agamben, Giorgio (2006). El Tiempo que Resta. Comentario a la Carta a los Romanos

[trad. espanhola]. Madrid: Trotta.

Clark, Christopher (2013). Sleepwalkers. How Europe went to war in 1914. New York:

Harper Collins.

Clausewitz, Carl von (1986). On War [trad. em inglês]. Princeton: Princeton University

Press.

Couto, Abel Cabral (1989). Elementos de Estratégia. Apontamentos para um curso,

Vol.I. [Lisboa]: IAEM.

Daudet, Léon (1918). La Guerre Totale. Paris: Nouvelle Librairie Nationale.

Fernandes, António Horta (2012). “A Anarquia Internacional: crítica de um mito

realista”. Relações Internacionais, nº36, pp.87-104.

Guiomar, Jean-Yves (2004). L’Invention de la Guerre Totale. XVIII- XX siècle. Paris:

Félin.

Hobbes, Thomas (2002). Leviatã, 3ª ed. Lisboa: Imprensa Nacional - Casa da Moeda.

Ludendorff, Erich (1941). A Guerra Total. Rio de Janeiro: Editorial Inquérito.

McCarthy, Cormac (2007). A Estrada. Lisboa: Relógio d’Água.

Waltz, Kenneth (1979). Theory of International Politics. Reading, Mass.: Addison –

Wesley.

OBSERVARE

Universidade Autónoma de Lisboa

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OPINION TRIBUNALS AND THE PERMANENT PEOPLE'S TRIBUNAL

Luís Moita

lmoita@autonoma.pt

Director/Professor, Department of International Relations, Autonomous University of Lisbon

(UAL) Portugal. Director, Observatory of Foreign Relations (OBSERVARE)

Coordinator, Master in Peace and War studies, Scientific Council member, UAL.

Professor, Institute of Higher Military Studies, and lecturer, National Defense Institute

Vice-Rector, UAL (1992-2009) and Coordinator, Socrates Institute for Continued Training

Integrated researcher, "Cities and Regions: paradiplomacy in Portugal".

Abstract

There is dialectic between public opinion and the enforcement of justice by the competent

authorities. History contains numerous examples where international opinion movements

demonstrate against judicial decisions, since, either by act or by omission, established

jurisdictions sometimes pronounce questionable verdicts or leave unpunished crimes that

were committed. These demonstrations take a variety of forms, ranging from the

international commission of inquiry to the truth and reconciliation commissions. Among such

exercises of citizenship from civil society, the so-called “opinion tribunals” stand out, whose

first major initiative was due to Lord Bertrand Russell in the 1960s. Following this tradition,

the Permanent Peoples’ Tribunal has been very active between 1979 and 2014, organizing

deliberative assemblies and pronouncing decisions in a “quasi-judicial” framework. Its critics

point a finger at the resemblance of justice used for ideological purposes, but the legitimacy

of these initiatives, backed by current international law, is defendable for their capacity to

shake consciences and for being a legal innovation at the service of the right of peoples.

Keywords:

International law; public opinion; opinion tribunals; peoples’ rights; legal constructivism

How to cite this article

Moita, Luís (2015). "Opinion Tribunals and the Permanent People's Tribunal". JANUS.NET e-

journal of International Relations, Vol. 6, N.º 1, May-October 2015. Consulted [online] on

date of last visit, observare.ual.pt/janus.net/en_vol6_n1_art3

Article received on February, 5 2015 and accepted for publication on April, 6 2015

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Opinion Tribunals and the Permanent People's Tribunal

Luís Moita

OPINION TRIBUNALS AND THE PERMANENT PEOPLE'S TRIBUNAL

Luís Moita

Although not always widely known, the existence of “opinion tribunals” has been a

reality for the past decades. As a rule, they act in the international arena. Even when

dealing with internal issues of a particular country, they address global issues and the

echoes of their deliberations extend beyond national borders. The purpose of this paper

is to critically reflect on the nature and role of opinion tribunals, particularly the

Permanent People’s Tribunal, created in Bologna in 1979. This reflection is part of a

research project about international jurisdiction conducted by OBSERVARE, the

international relations research unit of Universidade Autónoma de Lisboa1

The term “opinion tribunal” encompasses two concepts: the idea of “tribunal” is

immediately associated with the enforcement of justice based on a legal norm; the

concept of “opinion” refers to the somehow diffuse idea of public opinion, in which

collective feelings, widely shared trends of ideas and beliefs insistently emphasized in

public manifest themselves. There is a peculiar dialectic between law and public opinion

– in our case, between national and international law and international public opinion.

Due to their imperative nature and also to their gaps, laws enforced by the courts

impact their influence on public opinion, projecting their values on them, disseminating

rules of conduct and promoting consensus around commonly accepted principles,

sometimes leaving issues unresolved; conversely, the sensitivity of public opinion

displays interfere in the formulation of laws, require their enforcement or refute their

failure. As a French sociologist of international relations defined wisely:

Public opinion and international law should not be confused and

gain nothing if they were to be confused. It is the inevitable and

necessary tension between them that may lead to a bit more

fairness in the world. If lawyers were to be freed of the pressure of

public opinion, they would risk becoming strictly technicians of the

established order. If opinion was to be left to itself, it would risk

wandering endlessly in search of its projects: only law can help it

1 When preparing this text I received valuable indications and suggestions from Gianni Tognoni (Secretary

General of the PPT) and Piero Basso, former comrades in mobilizing causes, as well as from Simona

Fraudatario (of the Lelio Basso International Foundation). My colleagues Mario Losano, of the University of

Eastern Piedmont, and Miguel Santos Neves, of Universidade Autónoma de Lisboa, enriched the original

text with important comments and suggestions and other colleagues, jurists Patrícia Galvão Teles,

Constança Urbano de Sousa, Mateus Kowalski and Pedro Trovão do Rosário, helped overcoming my

limitations in this field. Brígida Brito offered meticulous support in all methodological aspects. To all I give

special thanks.

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realize its ideal by providing it with the staff and the institutions of

a new world. Accordingly, it is in the interest of the community of

human beings that the dialogue between international law and

public opinion never ceases. (Merle, 1985: 97).

Having accepted this viewpoint, prior clarification is still required: one should not

perceive “opinion tribunal” as a trial carried out by public opinion. The concept of public

opinion is too volatile to support the consistency of a founded, dispassionate and

weighted judgement. Justice cannot be at the mercy of the emotions of current opinion

or of the vicissitudes of published views. Legal procedures, in their rigour and technical

complexity, in their connection to the current legislation, in their respect for the

guarantees of accused persons, are not comparable to floating perceptions and

preferences, however widespread they may be. Still, that does not prevent, quite the

opposite, consensus around certain principles from being gathered, so as to anticipate

norms that have not yet been legislated which may later be legally enforced, or to

protest against the insufficient implementation of international laws, or to fill legal

loopholes or institutional omissions responsible for the impunity of criminals.

Opinion movements and court rulings

The history of the twentieth century is dotted with examples of opinion movements that

acted as critical conscience regarding controversial acts in the enforcement of justice.

Sometimes, their impact was limited to restricted circles of informed elites. In other

cases, they had a long echo in public opinion. It is worth remembering some

emblematic cases that were symbolic moments in the dialectic between law

enforcement and international public opinion.

At the end of the nineteenth century, the famous Dreyfus Affair shook public French

and international opinion, with the particularity of disclosing perverse anti-Semitism

reactions and triggering vehement protests that later led to justice being made. Alfred

Dreyfus, an officer of Jewish origin, held posts of responsibility in the French army and

in 1895 was accused of spying in favour of Germany, when the resentments of the

Franco-Prussian war were still felt. After having been dispossessed of his post and

deported to a distant island, Dreyfus always claimed his innocence and his case raised

a wave of indignation that led to his credibility being restored.

A few decades later, the United States were shaken by a tremendous miscarriage of

justice that led to the death sentence of Nicola Sacco and Bartolomeo Vanzetti. These

two Italian immigrants, anarchists, carriers of illegal weapons, were suspected of

murder and robbery, arrested in 1920 and convicted in court for murder, despite the

absence of evidence and the massive appeal against their conviction: solidarity

committees were created, large demonstrations were held in several countries and

eminent international figures claimed for their release. All was in vain and Saco and

Vanzetti were electrocuted seven years later. It was not until 1973 that the truth was

officially restored and the memory of the two anarchists posthumously rehabilitated.

Meanwhile, the rise of National Socialism in Germany had a dramatic episode that

marked both Hitler’s escalating seizure of power and the anti-Communism hatred of his

regime: the fire at the Reichstag – the palace of the Berlin Parliament – in February

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1933. The Nazi investigation identified a suspect, a young left wing Dutch who ended

up sentenced to death, and the blame was attributed to the Communists, leading to the

arrest of many thousands of people who resisted Nazism. However, in September of

the same year, the “ Legal Commission of Enquiry into the Burning of the Reichstag”

was set up in London and organized a counter-case that concluded that the Nazi

leaders were likely to be guilty2

Between 1936 and 1938, the Moscow Trials triggered major international

repercussions. On the orders of Stalin, a massive purge was carried out that physically

killed most of the Soviet elite. Following forged complaints or "confessions" of

convenience, the courts pronounced ruthless sentences against the ruling class,

especially against Trotsky and his followers. The European Left reacted with ambiguity

to the events, despite the severe criticism of people like the surrealist poet André

Breton and the Marxist Victor Serge; an international investigation commission was

created in the United States, chaired by the prestigious philosopher of morals John

Dewey, who concluded that Trotsky was innocent, despite the fact that the majority of

the members of the commission distanced from his ideas

Another trial, also in the United States, that caused intense international outcry was the

one involving the Rosenberg couple after the end of World War II. They were accused

of spying on the nuclear program in favour of the USSR, which would have allowed the

Soviet Union to accelerate the production of the atomic bomb. Trialled in 1951 and

executed in 1953, Julius and Ethel Rosenberg were Jewish and communism

sympathizers and even today there is controversy about their guilt, especially that of

his wife Ethel. Numerous prominent world figures, such as Einstein, Pius XII, Sartre,

and Brecht protested against the sentence, denouncing primary anti-communism and

the latent anti-Semitism, asking for clemency for a couple that was convicted without

conclusive evidence.

In their symbolic strength, all the above mentioned cases illustrate the tension between

the enforcement of legal norms and international public opinion, as well as between

formal bodies that have judicial authority and informal bodies that contest them. Like a

kind of dialogue or confrontation between powers and counter-powers, a dialectical

opposition and complementarity between legal judgments and currents of opinion

emerges. The enforcement of justice, fallible as it is, vulnerable to all sorts of abuses, is

not limited to the jurisdiction of the courts and extends itself to the social capacity of

protest, which does not mean that the latter has any guarantee of being right or any

prerogative of "moral superiority." By act or omission, whether due to deficit of

interpretation or due to a legal void, the law, and especially international law, does not

always respond to the demands of complex human situations. Hence this apparent

historical necessity of creating correction, rehabilitation and contesting moments as an

antidote to the potential perversion of justice caused by its own agents.

Perhaps it is this very same need to do justice outside the conventional structures that

leads to the creation of special bodies when regular courts do not seem to be the most

appropriate places to judge collective or individual behaviour, as is the case of truth

and reconciliation commissions. There are known initiatives in this area, such post-

apartheid South Africa or Latin American societies after the military dictatorships.

2 For a detailed analysis of this case see Klinghoffer, A.J. and Klinghoffer, J.A. 2002: 11-50.

3 For more detailed information, see also Klinghoffer, A.J. and Klinghoffer, J.A. 2002: 51-101.

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Seeking to avoid the settling accounts that are likely to reopen wounds of the past, but

also taking as inadmissible the impunity of those responsible for the crimes committed,

such commissions have had the role of preserving the memory of the facts and of

determining the responsibility of political actors, with the aim of obtaining recognition,

disclosure, forgiveness and reconciliation, and not so much punishment. In these cases,

the wisdom of the transition phase with a view to consolidating democracy prevails,

more than the mechanical enforcement of criminal laws.

There was a similar process in Rwanda as a therapy against the memory of the tragic

genocide of the Tutsis perpetrated by Hutu militias between April and June 1994, which

killed over 800,000 Rwandans and forced nearly two million people to flee. A special

international tribunal was set up to indict those responsible for the crimes, but a large

number of prisoners, over 100,000, remained in the country, for which reason the

official courts were unable to prosecute all cases. The local government encouraged

resorting to the traditional conflict resolution institution - called Gacaca - as a way to

mobilize the population for the fulfilment of justice, with emphasis on the role of the

elders and the function of social integration, according to the best African traditions.

The aforementioned examples attest the variety of ways that have been used to find

solutions to challenge or complement the role of established judicial systems, either

through opinion movements, or international commissions of inquiry, truth and

reconciliation commissions, or via customary practices, in the aforesaid tension

between law and public opinion. Ultimately, this action can even be conducted by

individuals, as shown in the special case of the blog of the great American jurist

Richard Falk, one of the most influential names in the field of international law4

. It is a

blog he created on the day he turned 80 and is an impressive repository of his

independent and critical thinking on legal and political issues, with a title that is, in

itself, a programme: Global Justice in the 21st Century.

International jurisdictions and opinion tribunals

For centuries, international law has been regulated by treaties agreed between two or

more states, which, despite the legal nature of the established relationship, were only

morally obliged to abide by their provisions, without the strict existence of an

international jurisdiction with instruments to ensure compliance therewith, and, if

necessary, by enforcement action. However, back in 1899, a Permanent Court of

Arbitration was created following an international Hague Conference, and although

there was already a Permanent Court of International Justice established under the

Covenant of the League of Nations, it was only in 1946 that the International Court of

Justice, based in The Hague, started functioning as part of the multilateral framework

of United Nations. Its role was clearly defined: to resolve conflicts between states. The

European Court of Human Rights, based in Strasbourg, created in 1959 by the Council

of Europe, had a different purpose. Much later, in 2002, after its statutes were adopted

in Rome, the International Criminal Court was created, coincidentally also based in the

capital of the Netherlands, different from the ICJ due to its capacity to judge individuals

accused of committing aggression, genocide, war crimes, and crimes against humanity.

4 See http://richardfalk.wordpress.com/, accessed on 29/12/2014.

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Meanwhile, at the initiative of the United Nations Security Council, three other tribunals

were created to trial one-off concrete situations: the International Criminal Tribunal for

the former Yugoslavia, established in May 1993, the International Criminal Tribunal for

Rwanda, set up in November 1994, and the Special Court for Sierra Leone, created in

20005

Thus, we have two kinds of international courts: the emergency courts, with ad hoc

functions and powers limited to specific situations (Nuremberg, Tokyo, former

Yugoslavia, Rwanda, Sierra Leone ...) and the regular or permanent courts - two in The

Hague, the ICJ and the ICC, and the European Court of Human Rights - which are

stable elements of the international legal architecture.

, intended to judge the crimes of genocide, war crimes and crimes against

humanity in these countries. Somehow, they are actual replicas of the special tribunals

set up immediately after the 1939-45 war to try crimes perpetrated by the Germans

and the Japanese, the Nuremberg Tribunal and the Tokyo War Crimes Tribunal,

respectively. The latter, of course, had very particular characteristics, as they were

military courts organized by the victors of the war; they created jurisprudence as the

decisions were based on norms that had not been previously legislated, thus calling into

question the principle of non-retroactivity of criminal law; however, they had the merit

of judging the individual responsibilities of political leaders - no longer sheltered behind

the regime under which they were fulfilling orders - and of condemning crimes not

previously explained, such as crime against peace, war crime, the crime of genocide

and crime against humanity.

Opinion tribunals appeared in a totally different situation. One can doubt the relevance

of this designation, as we will see later. In any case, numerous initiatives of citizens

without any official mandate have taken the form of judicial processes to enunciate

pronouncements on issues when fundamental human rights are at stake. Thus, they

are a kind of informal international jurisdiction arising from the civil society and not

from established powers, devoid of coercive force but aspiring to sensitize international

opinion and public authorities thanks to the moral value of their sentences, which are in

fact based on current international law.

The most representative of these opinion tribunals is perhaps the Permanent Peoples'

Tribunal (PPT), which has been active since 1979 and is the central object of this study.

Its creation, however, lies in a context that should be recalled.

The PPT originated in a previous truly "founding" experience, the international tribunal

against war crimes committed in Vietnam, known simply as the Russell Tribunal6

5 On this truly special case, since it was a hybrid national and International tribunal, see Paula, Thais and

Mont’Alverne, Tarin “A evolução do direito internacional penal e o Tribunal Especial para Serra Leoa:

análise da natureza jurídica e considerações sobre sua jurisprudência”, Nomos: Revista do Programa de

Pós-Graduação em Direito da UFC,

, which

was the source of inspiration for all subsequent similar actions. The initiative was taken

by Lord Bertrand Russell, philosopher, mathematician and Nobel Prize winner for

Literature in 1950, who also stood out as an activist for the cause of peace and

disarmament. He was joined by an extremely prestigious group of persons, including

another big name in twentieth-century thought, Jean-Paul Sartre, at first reluctantly,

then convinced by Simone de Beauvoir, accepting to chair the court sessions in London

in 1966. The work was resumed in Stockholm (1967) and finally in Roskilde, Denmark,

Available at http://mdf.secrel.com.br/dmdocuments/THAISeTARIN.pdf, accessed on 30/1/2015.

6 Very detailed analysis in Klinghoffer, A.J. and Klinghoffer, J.A. 2002: 103-162.

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in the same year. It was due to be held in Paris, but General De Gaulle, then president

of France, did not consent, although he opposed the US policy towards Vietnam. In a

letter to Sartre he explained that his decision in no way restricted freedom of

expression, but argued that "I shall not teach you that any justice, in principle and in

its implementation, belongs exclusively to the State”7

This is an issue of primary

importance that shall be further addressed. In his response, Sartre defined the

foundation of the PPT’s legitimacy:

Why have we appointed ourselves? It was precisely because no

one else did. Only governments or the peoples could have done it.

As for governments, they want to retain the possibility to commit

crimes without running the risk of being judged; therefore, they

would create an international body empowered to do so. With

regard to the peoples, except in case of revolution, they do not

assign courts, for which reason they could not appoint us8

Somehow, this first Russell Tribunal recovered the previous one constituted by the

Nuremberg Tribunal (Jouve, 1981: 670-671; Merle, 1985: 56-59), dealing with a

typology of crimes that included crimes against peace, war crimes, crimes against

humanity and the crime of genocide9

After Bertrand Russell died, a second Russell Tribunal with identical structure was

summoned by Italian Senator Lelio Basso, who had integrated the jury of the first one

and distinguished himself due to his intervention. Three sessions were held in Rome

and Brussels between 1973 and 1976, dedicated to denouncing and condemning the

crimes conducted by various Latin American military dictatorships, namely Brazil and

Chile but also Bolivia, Uruguay, Argentina and other Central American countries, with

significant impact on the public opinion of this sub-continent

, with the key difference that it was a tribunal that

was aware that it did not have the capacity for physical coercion or to enact effective

sanctions.

7 General De Gaulle’s letter, dated 19 April 1967, is available online at

. The name of Lelio Basso

reappeared later, definitely connected to the Permanent Peoples' Tribunal: it is possible

that the contact he maintained with the atrocities of Latin American dictatorships gave

him intuition: there are governments that are at war against their own people, and

these must be given voice, in addition to the states that are supposed to represent

them.

http://bernat.blog.lemonde.fr/2008/06/10/le-tribunal-russell-et-le-proces-du-11-septembre/

Accessed on 29/12/2014.

8 Ibid. There is a lot of information about the Russell Tribunal, including the complete list of members,

technical contributions and individual testimonies available at

http://911review.org/Wiki/BertrandRussellTribunal.shtml, accessed on 29/12/2014. The English version of

Sartre’s inaugural speech can be read in http://thecry.com/existentialism/sartre/crimes.html, accessed on

the same date.

9 The term “genocide” is a neologism first used by the Polish Jewish lawyer Raphael Lemkin to describe the

systematic Nazi persecution of Jews: information at

http://www.ushmm.org/wlc/en/article.php?ModuleId=10007043, accessed on 29/12/2014.

10 The most detailed study on the Russell Tribunal II is available online in a PDF in academia.edu by Julien

Louvrier: http://www.academia.edu/166082/Le_Tribunal_Russell_II_pour_l_Amérique_latine_1973-

1976_Mobiliser_les_intellectuels_pour_sensibiliser_l_opinion_publique_internationale, accessed on

29/12/2014.

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There are also brief allusions to a Russell Tribunal III which met in Frankfurt in 1978 on

a seemingly local theme - professional bans in West Germany - and a Russell Court IV

based in Rotterdam in 1980 to denounce the "ethnocide "of the Amerindian peoples

(Jouve, 1981: 671).

In this context of the Russell Tribunal sessions, a remarkable initiative of similar

contours took place in Portugal in 1977-78: the Humberto Delgado Civic Court (a

general who opposed the Salazar regime, murdered by the PIDE – Salazar’s political

police), created to trial the dictatorship crimes in Portugal. It was a brief but intense

experience motivated by the lack of prosecution of those responsible for the dictatorial

regime, in particular the political police. It brought together prestigious democratic

individuals11

Shortly after, in 1982, the Russell Tribunal on Congo met in Rotterdam to judge the

crimes committed during the dictatorship of Mobutu Sese Seko

and made a final decision entitled "Judging the PIDE, condemning

fascism".

Meanwhile, the IPT – Indian Independent People’s Tribunal – also called Indian People's

Tribunal on Environment and Human Rights

, President of Zaire.

Seemingly, the name "Russell Tribunal" was taken as a "brand" used in different

circumstances.

In 2000, an Opinion Tribunal was held in Tokyo (minshû hôtei in Japanese, meaning

people’s court) on the “comfort women”

, was created in 1993, in the tradition of

the grassroots movements crossing the Indian society, focusing on human rights issues

and particularly on environmental justice.

There are also references to the meeting held in Berlin in 2001 of the Court of Human

Rights in Psychiatry

used in military brothels: an initiative of the

Violence against Women in War Network, the aim was to judge responsibilities relating

to kidnapping and mass deportation of women for sexual favours made to Japanese

soldiers in the territories occupied by the Japanese expansionism in the years 1930-40.

This issue was well-known but had always been silenced, despite having affected

women from Korea, Taiwan, Indonesia, East Timor, China, and Vietnam.

From the years 1998-2000 to the present, the Latin American Water Tribunal, also

linked to the so-called Central American Water Tribunal, has been very active

conducting activities on contamination and water resources issues in a number of

, also referred to as the Russell Tribunal, which had the

particularity of having concluded its work with a double verdict: a majority one that

considered the existence of serious abuse of human rights in psychiatric practice, and a

minority one that just alerted for possible deviations in the practice.

11 See the analysis available at http://www.esquerda.net/artigo/tribunal-c%C3%ADvico-humberto-delgado-

uma-experi%C3%AAncia-breve-1977-1978/28229, accessed on 28/12/2014. The full sentence can be

found at http://ephemerajpp.com/2014/01/11/tribunal-civico-humberto-delgado/, accessed on

29/12/2014.

12 Check the brief description at http://fr.wikipedia.org/wiki/Tribunal_Russell_sur_le_Congo, accessed on

29/12/2014.

13 The website is http://www.iptindia.org, accessed on 29/12/2014.

14 See Rumiko Nishino, «Le tribunal d’opinion de Tôkyô pour les « femmes de réconfort » », Droit et cultures

[online], 58 | 2009-2, made available on 1/10/2009, accessed on 29 /12/2014. URL:

http://droitcultures.revues.org/2079.

15 See Ian Parker, “Russell Tribunal on Human Rights in Psychiatry & “Geist Gegen Genes”, PINS

(Psychology in society), 2001, 27, 120-122 30 June-2 July 2001, Berlin, available at

http://www.pins.org.za/pins27/pins27_article12_Parker.pdf, accessed on 29/12/2014. See also

http://www.freedom-of-thought.de/rt/accusation.htm, accessed on the same day.

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countries in the region. There were sessions in Rotterdam in 1983 about the

contamination of the river basin of the Rhine, as well as those held in 1992 in

Amsterdam on ecological crimes in several continents, and also to the National Water

Tribunal in Florianopolis, Brazil, in 1993, on the mining contamination and pesticide

products16

The Western military intervention in Iraq was one of the events that gave rise to

several initiatives such as opinion tribunals. A World Tribunal on Iraq

. Defending the democratization of environmental justice, these Latin

American documents use the term "ethical court" (noted for its nature) and the

category of "ecocide" (to characterize environmental crimes).

17 was created in

2003 in Brussels, also called the Brussels Tribunal or BRussells Tribunal (playing with

the phonetic proximity of Brussels to Russell), confirming that the Russell Tribunal

remains the key reference. It held sessions in Brussels and in Istanbul in 2004 and

2005 and examined the Project for a New American Century, of the American neo-

conservatives and the resulting aggression against Iraq. A session took place in Lisbon

in 2005, with the collaboration of several Portuguese lawyers18

Since 2007 a commission has been active in Malaysia to investigate war crimes. It is

called Kuala Lumpur War Crimes Commission (KLWCT), also known as Kuala Lumpur

War Crimes Tribunal and is an alternative to the International Criminal Court, deemed

to be ineffective

. Later the World

Tribunal on Iraq became a permanent forum, evolving into an international network of

"academics, intellectuals and activists."

Again in Brussels, the opinion tribunal on the detention of foreign children in closed

centres was held in 2008

. It is chaired by the former prime minister of Malaysia, Mahathir

Mohamad and in 2011 it condemned the intervention in Iraq, personally blaming

President Bush and Prime Minister Blair for it. In 2013, it accused the Israeli state for

the genocide of the Palestinian people.

Despite the distance in time with respect to the events, in 2009 the opinion tribunal

met in Paris on the use of "Herbicide Orange"

. At the initiative of the NGOs Coordinator for Children’s

Rights, the verdict symbolically condemned the Belgian State for infringing the relevant

international conventions.

16 See

(or "Agent Orange"), the name of a

powerful chemical defoliant, comprising a mixture of two strong herbicides used by the

US in the Vietnam War, whose impacts are still being felt. As a chemical weapon of

devastating effects, this defoliant is prohibited by international conventions. The

tribunal condemned not only the US government, but also the companies producing the

product, such as Monsanto Corporation and Dow Chemical.

http://tragua.com, accessed on 29/12/2014, as well as

http://www2.inecc.gob.mx/publicaciones/libros/363/cap18.html, accessed on the same day.

17 See its website http://www.brusselstribunal.org, accessed on 30/12/2014.

18 Documentation available at http://tribunaliraque.info/pagina/ap_tmi/o_que_e.html, accessed on

30/12/2014.

19 See the respective website in http://criminalisewar.org, accessed on 30/12/2014.

20 Reference in http://www.lacode.be/tribunal-d-opinion-sur-la.html, accessed on 29/12/2014.

21 About the tribunal see http://www.mondialisation.ca/agent-orange-le-tribunal-international-d-opinion-de-

paris-condamne-les-tats-unis-et-les-firmes-tasuniennes/13667?print=1, accessed on 29/12/2014.

Additional information at http://www.history.com/topics/vietnam-war/agent-orange, accessed on the

same day.

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One of the most representative opinion tribunals is perhaps the Russell Tribunal on

Palestine22

In addition, an “informal” tribunal was held in Venice in September 2014 on the

situation in the Ukraine

, which held sessions from 2010 to 2013 in Barcelona, London, Cape Town,

and New York and, more recently, an extraordinary session (September 2014) in

Brussels on violations of international law by Israel in Gaza. As a rule, however, the

aim is not so much to condemn Israel (Israel’s violations of international law are all too

familiar), but rather to show the responsibilities of the entities that objectively support

Israel in its violations of international law. It described the situation in Israel as similar

to the South African apartheid regime and introduced the category of "sociocide" to

characterize the attack on Palestinian identity.

Besides these initiatives, several appeals to the formation of opinion tribunals according

to the Russell model on a range of issues have been reported. For example, in Paris, in

2010, there was an appeal for a world opinion tribunal on climate and biodiversity

. Not entirely explicit and even dubious in nature, it also

claimed to follow the Bertrand Russell tradition. It ended up condemning US President

Obama and the Ukrainian President Poroshenko, NATO and the European Commission,

charging them with war crimes committed in the East of the country.

24,

based on the lack of success of major international conferences on the subject. The

following year, a petition whose signatories called for an opinion tribunal to judge

nuclear crimes25

Tokyo, Kuala Lumpur, Brussels, Rome, Paris, Florianopolis, Rotterdam, Amsterdam,

Lisbon, Venice, Cape Town, New York, London, Stockholm, Roskilde, Frankfurt, Berlin,

Istanbul, New Delhi, San Jose in Costa Rica, The Hague - cities in three continents

expressing the cultural and geographical dispersion of events that the organizers

designate in many ways as courts, opinion tribunals, citizens’ tribunals, international

courts, ethical courts, conscience tribunals

was started, prioritizing, in this case, nuclear disasters affecting

civilians, as in the Chernobyl and Fukushima tragedies.

.... However, in addition to their geographic

spread and variety of designations, they have some common features: they are civil

society initiatives; they are participatory processes involving intellectuals and activists;

they are technically grounded on current norms of the community of nations; they seek

to compensate for shortcomings of international law or its implementation; they

denounce and condemn the most serious crimes against human beings and against

peoples; generally they have a clear anti-imperialist and anti-colonialist ideological

standpoint; they are carriers of causes of emancipatory intent; they use analogies with

legal procedures to make their conclusions; they aim to raise public awareness and

through it call the attention of powers that be.

22 Plenty of information available at http://www.russelltribunalonpalestine.com/en/, accessed on

29/12/2014.

23 News in http://rt.com/news/187584-russell-tribunal-obama-ukraine/ accessed on 29/12/2014.

24 News available at http://www.lemonde.fr/idees/article/2010/10/27/pour-un-tribunal-mondial-d-opinion-

pour-le-climat-et-la-biodiversite_1431693_3232.html, accessed on 30/12/2014.

25 As can be seen in http://www.rene-balme.org/24h00/spip.php?article1358, accessed on 30/12/2014.

26 The designated “peoples’ tribunals are very different from these, promoting summary sentences and

sometimes summary executions, leading to a true perversion of justice, such as those conducted by the

Red Brigades in Italy in the sentencing of Aldo Moro, or that have been promoted even by governments in

periods of instability, as happened in Angola (see

http://www.casacomum.org/cc/visualizador?pasta=04308.001.017, accessed on 27/1/2015).

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The Permanent People’s Tribunal (1979-2014)

In the above context, the Permanent Peoples' Tribunal (PPT) has special importance.

Its main aspects include: Lelio Basso, senator of the Italian independent left, of unusual

political stance, had been part of the Russell Tribunal I and was the soul of Russell

Tribunal II. He died in 1978, leaving incomplete a project involving three institutions:

the Lelio Basso Foundation, the International League for the Rights and Liberation of

Peoples and the Permanent Peoples' Tribunal. The Foundation is based in Rome and still

exists today; the League, established in 1976, was an extended social movement of

meritorious action but in the last years of the twentieth century its members dispersed

to various causes; as for the Tribunal – already after Basso’s death – it was only

formed in 1979 in the city of Bologna. Its first president was François Rigaux, an

eminent Belgian jurist and a professor at the Catholic University of Leuven27

This set of institutions used a kind of "magna carta" as a reference: the Universal

Declaration of People’s Rights

. The

general secretary was Gianni Tognoni, a physician in Milan professionally connected to

health policies.

After describing briefly the circumstantial framework and ideological milieu that led to

the creation of the Permanent Peoples' Tribunal - PPT -, its characteristics are described

below.

, proclaimed by Lelio Basso in Algiers on 4 July 1976, a

symbolic day marking the 200 years of the independence of the United States. The

Algiers Declaration, a document anchored in values that were emerging at the time,

was characterized by some fundamental traits: it considered people as collective

subjects of rights, in line with the UN’s own approaches, thereby complementing the

current vision about human rights; it addressed a new kind of recently recognized

rights, so-called "third generation" rights (in addition to the civic-political, economic

and social rights), such as the right of peoples to existence, cultural identity, political

and economic self-determination, the right to scientific progress as the common

heritage of humanity, the right to environmental protection and access to common

resources of the planet, and the rights of minorities. Moreover, the spirit of the

Declaration was fully in line with the claim for a "new international political and

economic order," which was then so insistently present in the political discourse of the

leaders of the Third World and European left, and assumed by multilateral institutions.

First of all, it is a permanent tribunal. The majority of other similar experiences were

initiatives of opinion tribunals aimed at specific issues and particular cases,

geographically defined and circumscribed in nature. Instead, the PPT has existed for 35

years (1979-2014) and deals with a large number of situations, since it is open to the

variety of processes that come its way. Hence the relevance of being considered

"permanent", as it operates in the long run and is constantly ready to cater for those

suffering from violations of fundamental rights.

Secondly, it is an international tribunal, for many reasons: a) its composition (the

jury members come from 29 different countries); b) the topics it covers include many

27 François Rigaux died in December 2013; he had already been succeeded as Chairman of the PPT by

Salvatore Senese and later by Franco Ippolito, Italian jurists.

28 Full text available at http://www.internazionaleleliobasso.it/?page_id=214, accessed on 30/12/2014.

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sensitive issues of world politics and the cases it addresses- even when they are local -

have an impact across borders; c) its constant references to international law and

human rights and peoples, bearers of universal values; d) it has the ambition to

influence international public opinion, global decision centres and the initiatives of the

community of nations.

Third, it is a tribunal of the peoples (regardless of the known ambiguity of the term

"peoples"). Lelio Basso refused the possible designation of "citizens' tribunal" for its

alleged "bourgeois" connotations, preferring "peoples’ tribunal" (Klinghoffer, AJ and

Klinghoffer, JA 2002: 164). The subject of rights that the PPT privileges is the

collective subject, a particular people, a particular human community, a particular

society as a whole. It is true that human rights are at the forefront of its agenda but,

according to its status, "the Tribunal has no jurisdiction to rule on particular cases of

single individuals, except where there is a relationship with the violation of the right of

peoples"29

Fourth, the PPT has a similar function to that of a tribunal. It is guided by the

"Nuremberg principles

. This is in line with the Algiers Declaration (Universal Declaration of Peoples’

Rights) and the designation of the International League for the Rights and Liberation of

Peoples. In a context where states are conventionally considered to be the only

subjects of international law, the PPT breaks away from this view and affirms the

prerogative of the people being themselves subjects of international law, so that they

can act as interlocutors of international jurisdictions.

In fifth place, the jury's composition is also statutorily regulated, requiring the

presence of seven members for a valid sentence. The current members

", its statute and practice set out a series of procedures

inspired in court cases: when a "complaint" is received, it can be filed (in case of

inconsistency) or accepted for the inquiry to be open; the situations are examined in-

depth in a widely participatory process aiming to identify violations of international

law, listing witnesses, hearing experts, and preparing reports; public sessions are

chaired by a jury; the defendants are invited to attend and present their version of the

facts (which rarely happens); the jury meets in closed sessions and prepares a final

judgment for which there is no appeal; the judgment is made public and sent "to the

United Nations, relevant international bodies, governments, and the media." The entire

basis for the decision is grounded strictly on existing international law and the

formalism of the public sessions reproduces the model of a court hearing. This analogy

with the judicial process will be discussed later.

Finally, in sixth place, comes the financing of the PPT activities. The everyday

functions of the secretariat have the logistical and operational support of the Lelio

co-opted by

the central structure are altogether 71 from 29 different countries and are called on a

case by case basis for the PPT sessions. Over its 35 years of activity, numerous other

people formed this body of judges, many of them world-renowned. Most of the

members are lawyers, academics, scientists, writers, established artists, leaders and

former leaders, members with experience of international organizations, some Nobel

laureates, and prominent figures of social movements.

29 Article 1 of the PPT Statutes, available at http://www.internazionaleleliobasso.it/?page_id=213, accessed

on 2/1/2015.

30 Ibid. The following points always refer to the Statute.

31 The current list can be read in http://www.internazionaleleliobasso.it/?page_id=215, accessed on

3/1/2015.

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Basso International Foundation, while the costs of conducting public sessions are

supported by public and private sponsors contacted for this purpose by the Tribunal’s

secretariat and the entities interested in presenting the process.

The sentences of the PPT

With over forty sessions in very different cities in various continents, the cases

proposed to the Tribunal were examined and the ensuing rulings are an important

collection of factual, legal and political documentation32. Given that it is impossible to

analyse the contents of each of the sentences pronounced by the PPT, a

systematization of the topics is proposed here 33

The first area has to do with minor aspects of unresolved decolonization

processes, as in the cases of Western Sahara, a former Spanish colony annexed by

Morocco, Eritrea, a former Italian colony annexed by Ethiopia, and East Timor, a former

Portuguese colony annexed by Indonesia, in sessions that took place in Brussels

(1979), Milan (1980) and Lisbon (1981), respectively. They were typical situations

which concerned the principle of self-determination, in accordance with the rules of the

international community, and processes were introduced by liberation movements

recognized as such: the Polisario Front, the Popular Front for the Liberation of Eritrea

and FRETILIN. The situation in Puerto Rico was also addressed (Barcelona, 1989).

Another series of sentences were linked to violations of minority rights, a theme

already referenced in the Algiers Declaration and the PPT statutes. The regime in the

Philippines and the violation of the rights of the Bangsa-Moro people was tried

(Antwerp, 1980); Another sentence condemned the historical genocide of the

Armenians (Paris, 1984); the rights of indigenous communities in the Brazilian Amazon

were addressed in a session (Paris, 1990); the violations of the Tibetan people's rights

were equally judged (Strasbourg, 1992); the rights of the Sri Lankan Tamil people,

later silenced by military action, were the subject of two sessions (Dublin, 2010, and

Bremen ,2013).

The PPT also took on cases concerning regimes oppressing their own people,

whether in the context of military dictatorships, or as part of systematic denial of the

rule of law. This was the case of the session that condemned the military junta in

Argentina (Geneva, 1980); shortly after the repressive El Salvador regime was judged

(Mexico City, 1981); the following year the regime of Zaire’s President Mobutu was

sentenced (Rotterdam, 1982); this was followed shortly after by the trial of authorities

in Guatemala (Madrid, 1983); the Philippine regime, which had already been tried in

the session concerning the Bangsa-Moro people, was sentenced again (The Hague,

2007).

Some of the Tribunals’ sessions focused particularly on human rights violations in

different societies, starting with Latin America (Bogota, 1991), specifically against

"impunity for crimes against humanity"; restrictions on the right to asylum in Europe

were also judged (Berlin, 1994); the special case of violation of the rights of children

32 The sentences for the years 1979-1998 are compiled into a book in their Italian version in Tognoni, Gianni

(org) (1998). To see the rest check http://www.internazionaleleliobasso.it/?cat=15, accessed on

3/1/2015.

33 Klinghoffer, A.J. and Klinghoffer, J.A. 2002: 165-181 proposed a systematization that is different from the

one shown here.

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and minors in the world was addressed in a process that unfolded in three cities

(Trento, Macerata, Naples, 1995); the same theme on the rights of children and

adolescents in the Brazilian society was judged (São Paulo, 1999); a session (Paris,

2004) was devoted to human rights violations in Algeria in the 1992-2004 period.

On several occasions the PPT spoke out about situations of armed conflict where the

fundamental rights of people were violated. First, the Soviet intervention in Afghanistan

was described as "aggression" that went against the rules of the international

community and the USSR was thus condemned as a country-aggressor (discussed in

two sessions: Stockholm, 1981 and Paris, 1982); Likewise, crimes against humanity

committed in the conflicts in the former Yugoslavia were treated in two sessions (Bern,

1995 and Barcelona, in the same year); earlier, there had been a statement

condemning the US military aggression against the Sandinista regime in Nicaragua

(Brussels, 1984); a special historical case can be included in this area: the conquest of

America and the denial of the rights of the Amerindian peoples, analysed five hundred

years after the arrival of Columbus to that continent (Padua and Venice, 1992); Finally,

predicting the imminent aggression ("preventive war") against Iraq in 2003, the PPT

organized a session on "international law and the new wars" (Rome, 2012).

A separate chapter in the PPT’s sentences concerns environmental crimes of extreme

gravity representing large-scale violations of human rights to life, health and

sustainable environment. This was the case of the chemical industry accident of the

Union Carbide company in Bhopal, India in 1984, resulting from a gas leak that killed

thousands of people and had health consequences on hundreds of thousands (sessions

on industrial risks and human rights in Bophal, 1992 and in London, 1994); the same

applied to the Chernobyl nuclear accident in 1986, tried ten years later (Vienna, 1996).

More recently, the economic policies of multilateral organizations and the activities of

multinational corporations that affect the rights of the people have figured

prominently in the PPT's agenda, thus addressing the root causes of structural violence

affecting our societies. The macro-economic policies of the International Monetary Fund

and the World Bank were the subject of two important sessions (Berlin, 1988 and

Madrid, 1994), with a harsh judgment of their practices; clothing manufacturing

companies were condemned for disrespect for workers' rights, including for

subcontracting companies in the poorest countries (Brussels, 1998); the oil company

Elf-Aquitaine was judged for criminal activities in Africa (Paris, 1999); in general, the

role of multinationals was discussed in a PPT session (Warwick, 2000); the specific case

of human rights violations by multinationals in Colombia was judged over a long period

of time(2006-2008); in turn, the practices of the European Union and multinationals in

the whole of Latin America were scrutinized and condemned (Madrid, 2010) for

violation of often forgotten rights, such as the right to land, the right to food

sovereignty, the right to public health, the right to the environment and so on;

multinational companies operating in the agro-chemical sector had their own specific

judgment (Bangalore, 2011); Finally, a series of hearings in several Mexican cities

culminated in a final session in Mexico City in 2014, on "free trade, violence, impunity

and peoples’ rights in Mexico”.

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Now that the characterization of the Permanent Peoples' Tribunal and the

systematization of its contents34

have been done, the essential issues raised by

previous observations will be analysed and the questions regarding the legitimacy and

functions of the PPT and their relationship with international law will be addressed.

What is the legitimacy of the PPT?

Earlier we quoted de Gaulle's phrase: "any justice in principle and in its

implementation, belongs exclusively to the state". The classical theory is very clear in

this respect, in that it considers the enforcement of justice as a sovereign function, in

the framework of rule of law being based on the famous division of powers, where

precisely the legislative and the judicial powers are cornerstones of the sovereign state,

with any non-public authority being excluded from its remit. In this respect, the

initiative of the opinion tribunal is summarily deprived of legitimacy, further

aggravated, according to the critics, by the fact that it stages a simulation of justice

without any mandate to do so, at the service of a political struggle that swings

according to ideological motivations. The aforementioned sociologist Marcel Merle uses

the same harsh criticism, denouncing the "mockery of justice for propaganda purposes"

(Merle, 1985: 85). The composition of the tribunal is "somewhat elitist, rather than

democratic, composed of self-appointed committees (...) selected more for their

ideological preferences than for their legal righteousness" (Klinghoffer, AJ and

Klinghoffer, JA 2002: 7). By politicizing the supposed enforcement of the law, the

opinion tribunal undermines the very idea of justice, because it renounces the principle

of impartiality as a precondition for the correctness of the judgement. In this sense, the

"sentence" is inevitably damaged by the absence of exemption and the process is

nothing more than the assembling of parts leading to the desired conclusion. The

"accused" is previously "condemned" and the audience of the "tribunal” is a mere

theatrical procedure for propaganda purposes.

These harsh critical questions should be taken seriously for, due to their vehemence,

they question the practice of opinion tribunals. If taken literally and to their ultimate

consequences, they would end up disallowing these initiatives, removing credibility and

even respectability from them.

In contrast, it is possible to reflect about opinion tribunals and in particular the PPT

taking into account their real configuration and reconsidering the sources of their

legitimacy. In this sense, it can be argued that their nature is "quasi-judicial" and that

their legitimacy is founded on imperatives of conscience, referring to existing

international law and involving the broad participation of witnesses to establish the

facts where flagrant violations of human rights and the rights of peoples occur.

First of all, the "quasi-judicial" nature should be examined. This expression is used here

by analogy with another term that recently entered the vocabulary of international

relations studies: "paradiplomacy". Traditionally, diplomatic action is also considered to

be a sovereign function and, as such, the exclusive competence of states. However, at

34 The PPT obviously was interested in other cases and causes which, in one way or another, came its way,

but never made it to a session. The problem of the Kurds, widely considered to be a stateless nation, was

considered but it was blocked due to circumstances that led to breaks in contact. Similarly, the issue of

the Palestinian people’s rights was repeatedly raised, despite the difficulties caused by divisions between

Palestinian nationalists and, dramatically, by the murder of three of its high-level interlocutors.

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present, an increasing number of entities other than central powers conduct external

relations initiatives that are close to the concept of diplomacy, as in the case of

interests and cooperation projection actions undertaken by cities, regions, companies,

foundations, NGOs, and various other associations ... All these activities have been

described by some authors as "paradiplomacy"35

Similarly, the "quasi-judicial" nature can be attributed to events outside the sphere of

public powers but which have a formality similar to that of official courts and follow

procedures based on both national and international legal proceedings. As was

abundantly stressed at the outset, numerous initiatives have used this "quasi-judicial"

paradigm, ranging from international commissions of inquiry to opinion tribunals.

In the case of the PPT, the procedures were described above, justifying the analogy

now invoked. The indictment, the sentence, the opening of the inquiry, the right to a

full defence, the testimony of witnesses and expert reports, the reference to the laws in

force, bear resemblance to court proceedings, giving symbolic and moral strength to

verdicts. As it turned out, all this is happening on the understanding that the term

'tribunal ' is merely analogical, almost metaphorical, especially as we know that the

decision is devoid of coercive power. In a word, it lies in the sphere of the "quasi-

judicial".

The term "quasi-judicial" has the advantage of pointing implicitly to some ambivalence

in the concept of justice. On the one hand, justice is the enforcement of the rule of law

and in this sense one says that the courts do justice. But justice is also an ethical and

social value, an ambition of fairness in the relationships between humans, and, in that

sense, justice is something programmatic into the future. Opinion tribunals stand

somehow on the border of these two concepts: on the one hand they are close to the

legal procedure and codified law, on the other they try to echo the aspiration of justice

that positively permeates societies.

This being its specific nature, the question of its legitimacy is left open. On this, one

can say that the legitimacy of the PPT is based on the fundamental democratic right to

freedom of opinion and expression of thought and is based first and foremost on the

shaking of consciences. Given the countless violations of people's rights, the impunity

of those responsible, the omission of both national and international judicial bodies, it is

natural that the conscience of those reacting with nonconformity to these situations

wants to be heard, like a cry. It is as if the authority of ethics comes to the aid of non-

compliance with legal authority with the aim of replicating its action, as if it stood at

"post-conventional level" (to use the expression used by Lawrence Kohlberg36

Such legitimacy, however, is enhanced by a component of PPT sessions: the initiative

of civil society and, even more, the broad participation of numerous grassroots

), in the

sense that respect for standard is superiorly assumed and overcome by the

apprehension of values. For some reason we found expressions such as "ethical

tribunal" or "conscience tribunal" along the way: they illustrate the ambivalence where

the legal and the axiological cross, on the side of "reasons of state" or the convenience

of international jurisdictions.

35 See, for instance, Miguel Santos Neves “Paradiplomacy, knowledge regions and the consolidation of ‘soft

power’” in JANUS.NET, e-journal of International Relations, Vol. 1, no 1 (Fall 2010), pp. 12-32.

36 See Kohlberg, Lawrence (1981) Essays on Moral Development, I: The Philosophy of Moral Development:

Moral Stages and the Idea of Justice. San Francisco: Harper & Row.

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institutions that collaborate in establishing the facts, the testimony of experienced

situations in denouncing violations of rights. These facts act as an antidote against any

arbitrariness temptation and at the same time ensure the rooting in social reality,

where the cry of the victims is heard louder.

If we take one example among many others, the PPT's ruling on the social and

environmental crimes in the Brazilian Amazon lists no less than 26 local organizations

that formed the basis of the prosecution and supported the argument of the whole

process37

The PPT also benefits from another kind of legitimacy that is achieved a posteriori. The

fact that, as a rule, the majority of its deliberations is subject to recognition by the

international community at a later stage can mean a kind of ratification that is

legitimizing. This is illustrated by the cases the Tribunal has chosen to take on, such as

the Western Sahara, Eritrea and East Timor ones, making us conclude that the alleged

rights came to be widely acknowledged. This retrospective look sheds new light on the

set of sentences by giving them both legal and political relevance, timeliness and

consistency.

of the session organized in Paris on 16 October 1990. This is how the

legitimacy of a citizenship exercise is built, deriving from collective perceptions, based

on shared feelings and, above all, on verifiable facts, while giving voice to the

voiceless. Its connection to social movements enables giving the PPT a counterpower

quality that affirms itself, under democratic principles, against the established powers.

This also helps legitimize its practices, because the existence of countervailing powers

is healthy in any society, and their action should not be regarded as abusive, since they

act as balancing factors as a precaution against the pathology of "official truth" or

single thought.

Finally, the legitimacy of the PPT is further evidenced by the impartiality of its

decisions. It condemned both the US aggression against the Sandinista regime in

Nicaragua and the invasion of Afghanistan by USSR troops. It condemned both the

social and environmental crimes in Bhopal, India and the ones in Chernobyl, in the

Soviet Ukraine. Against suspected ideological partisanship, the reference to the rights

of people became a guarantee of impartiality and, therefore, of credibility.

The PPT and international law

In the context of the aforementioned "quasi-judicial" perspective, the deliberations of

the Permanent Peoples' Tribunal relate permanently, and logically as, to acquired legal

norms. Thus, it resorts to the multiple codification of the rules that safeguard human

rights and the rights of peoples, and regulates the roles of international political and

economic agents and the relationships of the members of the world community. A

37 These are: Centro dos Trabalhadores da Amazónia, Associação Brasileira de Reforma Agrária, Associação

dos Geógrafos Brasileiros, Instituto de Apoio Jurídico Popular, Instituto Vianei, Conselho Indigenista

Missionário, Comissão Pró-Índio, Campanha Nacional para a Defesa e o Desenvolvimento da Amazónia,

OIKOS, Salve a Amazónia, Fase (Nacional), Amigos da Terra (Rio Grande do Sul), IBASE (Instituto

Brasileiro de Análises Económicas e Sociais), Movimento Nacional de Defesa dos Direitos Humanos,

Sociedade Parense para a Defesa dos Direitos Humanos, UNI (União das Nações Indígenas), CPT

(Comissão Pastoral da Terra), Campanha Nacional pela Reforma Agrária, Campanha Nacional dos

Seringueiros, CEDI (Centro Ecuménico de Documentação e Informação), IAMA (Instituto de Antropologia

e Meio Ambiente), MAGUTA (Centro de Documentação e Pesquisa do Alto Solimões), NDI (Núcleo de

Direitos Indígenas), CTI (Centro de Trabalho Indigenista), INESC (Instituto de Estudos Sócio-económicos)

and CUT (Central Única dos Trabalhadores). In Tognoni (org) (1998) p.358.

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legislative and contractual collection of texts resulting from sedimentation and ripening

over the centuries that the PPT uses as a basic reference is available.

The example that follows is particularly illuminating: the resolution on the social and

environmental rights in the Brazilian Amazon38

However, the PPT does not just reproduce the processes established by judicial bodies.

Conversely, it has, with regard to them, the function to replace and complement them.

An example of this was the decision made on crimes in the former Yugoslavia at a

meeting in Bern in 1995, which explicitly stated:

, examined in October 1990. The

sentence passed at the time listed the legal documents that informed it, starting with

Brazil's own Constitution and making reference to more than 40 norms of national law,

to which a further 24 documents of international law were added: declarations,

conventions, agreements, resolutions, and relevant international treaties. This is a rule

present in all of the PPT’s verdicts, namely the rigour of the reasoning based on

positive law, emanating from both the national legislatures and the international

community or contracted through treaties between states as well as the jurisprudence

of other bodies.

Asserting itself as heir to the International Tribunal on American

war crimes in Vietnam and to the Russell Tribunal II on Latin

America, the Permanent Peoples' Tribunal takes upon itself a

supplementary role, due to the deficiency and inadequacy of

existing international tribunals, and the impossibility for peoples,

individuals and NGOs to access such courts, which are exclusively

entitled to judge conflicts between states or act upon a strictly

regulated mandate39

This need is particularly felt in the area of political and economic activities, which are

outside the scope of international jurisdictions, despite its human and social relevance.

For all the above reasons, it can be affirmed that the PPT seeks to fill a void and play a

subsidiary role: "opinion tribunals played a relevant role since the end of World War II

in the dispute to illuminate the historical and geographical gaps in the persistent

selectivity of international criminal law" (Feirstein, 2013: 118).

Another feature concerns the understanding of the judging function. More than punish,

which would be out of the question due to the absence of coercive force, the PPT

favours not the criminal role but awareness about the violation of rights and – by

recognizing the role of people - the capacity of liberating energies. The legal field thus

seems to be brought back to its original vocation:

The original role given to law is thus recovered. Far from being an

instrument of control, it acts as an instrument of liberation from all

forms of domination, exclusion, and denial. The 'judges' also leave

38 Available at http://www.internazionaleleliobasso.it/wp-content/uploads/1990/10/Amazzonia-

brasiliana_TPP_it.pdf, accessed on 13/1/2015.

39 See http://www.internazionaleleliobasso.it/wp-content/uploads/1995/02/ExYugoslavia_I_TPP_it.pdf,

accessed on 13/1/2015.

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behind the traditional role of judiciaries, surpassing the criminal

and punitive dimension of law, so as to become overseers whose

role is to guide the interpretation of the facts for the reconstruction

of the truth that legitimates complaints and resistances

(Fraudatario and Tognoni, 2013: 5) 40

The initiatives of the PPT thus have the role of pointedly warning against the crushing

of collective rights, aiming at bridging gaps and anticipating regulations that may be

imposed. The exercise of citizenship is consequently a contribution to the advance of

positive law itself, in the manner of a "reservoir of ideas" (Merle, 1985: 58), becoming

a pressure group for the improvement of international law in its normativity and

applications. Therefore, we find a dynamic vision of law whose norms are always

receptive to innovation, not only to deal with the amazing vicissitudes of our history,

but also to improve its humanization mechanisms.

Interestingly, in this regard the texts on the PPT by the main authorities on the topic

are instructive: François Rigaux, who was its president for many years, and Gianni

Tognoni, who has always been its secretary general. More than any other, they

theorized about the PPT and clarified their views on it. They have different views about

the same reality that complement the identity of the PPT. Rigaux is essentially a jurist

and so his views refer to the imperative nature of the law:

The permanent peoples’ tribunal is not a people's court, but an opinion

tribunal. Its unique strength lies in rationality itself: gathering the facts,

hearing witnesses, requesting clarification from the rapporteurs, and

then verifying whether the facts that it declares to be proven are

contrary to any legal norm. (...) The objective foundation of the

activities of the Permanent Peoples' Tribunal can be inferred from the

dynamism inherent in the rule of law. (Rigaux, 2012: 168-169).

Here the emphasis is placed on the rationality of the legal procedure and legal basis of

its deliberations. The source of authority of the PPT’s pronouncements lies basically in

its conformity to the international legal order. Gianni Tognoni’s views, in turn, are not

distant from Rigaux’s, but he emphasizes a versatility and creativity that foster a

different intellectual approach. His words fully illustrate his different stance. For him,

the PPT is a "research exercise" involving "choosing intelligence over power, having the

responsibility to seek the roots of things and of their future potential, more than

manage the balance of the present". He sees it as "a borderless exercise in listening

and observing, out of respect for people with needs and those seeking a sense of

liberation", pursuing a" shared research logic "(Tognoni 1998: I). In another text

40 See also the following: “Far from affirming itself as a producer of convictions, the real purpose and

mission of the PPT is to give victims the recognition and the legitimacy of their truth – which never

corresponds to the official one – so that it becomes an instrument of struggle and claim before the official

bodies. On the other hand, the legitimacy of the Tribunal and of its sentences, truths and memory

depends on the subsequent recognition of those same truths reconstructed by the victims, which turns

the PPT into an instrument of anticipation of truths, minimizing any argument about their impotence”. In

Fraudatario and Tognoni (2011) p.3.

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written with Simona Fraudatario, they state that the documentation produced by the

PPT is like a "working agenda" and that its practice is primarily a "permanent tool for

exploring and experimenting" (Fraudatario and Tognoni, 2013: 2). When describing the

backbone of the project underpinning the tribunal, they write that the PPT:

Experiments practices and languages for the structural restitution

of the role of active protagonists to the victims of violations, which

were caused by invisibility, non-recognition, and impunity by the

existing international law (...). Its deepest mission is the continued

pursuit of observation instruments and to interpret reality with a

comparative and critical stance directed at the capacity of the right

to prevent, protect and guarantee the existence of people,

victims, and offended persons (Fraudatario and Tognoni, 2013 : 2

and 4).

Research, observation, and experimentation: these words express a "laboratory" view

of the relationship between the PPT and law. The vitality of the communities, the

unpredictability of history, the complexity of collective processes, and the deepening of

awareness of the values in question, require legal innovation. This "experimentalist"

conception of international law seems especially interesting: the codification of rules of

conduct is not a static and finished process, but rather an open process that seeks new

solutions, in reference to the social dynamics and the growing ethical requirements

perceived by people. One can describe it as a constructivist perspective of law,

understood as something in fieri, under construction. The legal normativity is thus a

tool for progress and humanization. Opinion tribunals and in particular the Permanent

Peoples' Tribunal, coming from the private sector, citizenship, civil society, linked to

social movements from the base, have shared responsibility for contributing to avoid

the impunity of crimes committed and for fostering the enforcement of law, not as an

oppressive norm, rather as a liberating matrix.

References

AAVV (1989). Tribunal Permanente de los Pueblos. Processo a la impunidad de

crimenes de lesa humanidad, Bogotá – Colombia, Noviembre 4-5-6 1989.

AAVV (2000) Lelio Basso e le culture dei diritti, Fondazione Internazionale Lelio Basso.

Roma: Carocci Editore.

Feirstein, Daniel “Los nuevos desafios del Tribunal Permanente de los Pueblos en el

siglo XXI: las luchas por la hegemonia en la creación del derecho penal internacional” –

intervenção (ainda não editada) no Expert Seminar on Peoples’ Tribunals and

International Law, organizado em Roma em Setembro de 2013 por inciativa do The

Australian Human Rights Center, Faculty of Law, University of New South Wales,

Sydney, Austrália.

Fraudatario, Simona e Tognoni, Gianni (2011). “La definición jurídica y substancial del

genocídio a la prueba del encontro entre el Tribunal Permanente de los Pueblos y las

víctimas” in Genocício, verdad, memoria, justicia, elaboración – 9 Conferencia anual de

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Luís Moita

la International Association of Genocide Scholars, Buenos Aires, 19-23 de julio,

disponível em

http://www.genocidescholars.org/sites/default/files/document%09%5Bcurrent-

page%3A1%5D/documents/IAGS%202011%20Simona%20Fraudatario.pdf, consultado

em 29/1/2015.

Fraudatario, Simona e Tognoni, Gianni (2013). “La participación de los pueblos en la

formulación del derecho internacional. El laboratório del Tribunal Permanente de los

Pueblos” – documento ainda não editado, disponível policopiado.

Jouve, Edmond (1981). «Du tribunal de Nuremberg au Tribunal permanent des

peuples». In Politique étrangère, N°3 - 1981 - 46e année pp. 669-675. doi:

10.3406/polit.1981.3070

Klinghoffer, Arthur Jay e Klinghoffer, Judith Apter

http://www.persee.fr/web/revues/home/prescript/article/polit_0032-

342X_1981_num_46_3_3070, consultado em 29/12/2014.

(2002). International Citizens'

Tribunals: Mobilizing Public Opinion to Advance Human Rights, New York: Palgrave

Macmillan.

ISBN 10:0312293879 / ISBN 13:9780312293871

Merle, Marcel (1985). Forces et enjeux dans les relations internationales, Paris:

Economica, 2.e édition.

Rigaux, François (2000). "Lelio Basso e i tribunali di opinione" in AAVV (2000). Lelio

Basso e le culture dei diritti, Fondazione Internazionale Lelio Basso. Roma: Carocci

Editore.

Rigaux, François (2012). I diritti dei popoli e la Carta di Algeri, Torino: Edizioni Gruppo

Abele.

Tognoni, Gianni (org) (1998). "Alle radici del Progetto TPP". Tribunale Permanente dei

popoli. Le sentenze: 1979-1998, Fondazione Internazionale Lelio Basso, Lecco: Casa

Editrice Stefanoni.

Tognoni, Gianni (2008). "La storia del Tribunale Permanente dei Popoli. Premesse e

metodologia" in Bimbi, L. et Tognoni, G. (org) Speranze e inquietudini di ieri e di oggi. I

trent’anni della Dichiarazione Universale del Diritto dei Popoli, Roma: Epup.

OBSERVARE

Universidade Autónoma de Lisboa

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Vol. 6, n.º 1 (May-October 2015), pp. 51-67

PORTUGAL’S INTEREST IN THE CONTEXT OF SECURITY AND DEFENCE

POLICY AND MARITIME AFFAIRS.

SOME THEORETICAL CONSIDERATIONS AS PART OF THE

RELATIONSHIP BETWEEN PORTUGAL AND THE EUROPEAN UNION

Jaime Ferreira da Silva

jaimefsilva@gmail.com

Holder of a Degree in Naval Military Sciences from Escola Naval (Naval School); Holder of a

Master Degree in Strategy from Escola Superior de Ciências Sociais e Políticas (School of Social

and Political Sciences); Currently doing a PhD in Political Science, specializing in Strategic

Studies at Instituto Superior de Ciências Sociais e Políticas (Higher Institute of Social and Political

Science); Researcher at the Centro de Investigação de Segurança e Defesa (Security and

Defence Research Centre) of IESM and at Centro de Administração e Políticas Públicas Public

Policies and Administration Centre) of ISCSP; Lecturer of Strategy at Instituto de Estudos

Superiores Militares (Institute of Higher Military Studies).

Abstract

With the accession to the European Union, Portugal became part of an area that has been

moving towards greater economic and political integration. In this process, Member States

have delegated part of their powers to European institutions, hoping that decisions on

matters of joint interest can be made more effectively at European level. However, the

current economic and financial crisis has revealed weaknesses in the European construction

process that have highlighted the difficulties in achieving the convergence of Member States'

national interests.

In these circumstances, this study aims to evaluate whether Portugal’s interest is being

properly safeguarded given the strategies and common policies enacted by the European

Union within the framework of security and defence policies and affairs of the sea.

To this end, the concept of national interest is analysed in the first part in order to establish

a common understanding of the subject. In the second part, Portugal’s current interests are

identified and the third examines EU’s interests in the areas under review. The fourth part

reflects on how national interests connect with European interests, seeking to highlight the

opportunities to be seized and the threats to be addressed.

The analysis concluded that it is not easy to identify a clear European interest in the field of

security and defence, while in the area of maritime affairs that interest is evident and

requires securing the exclusive competence of the Union in the management of the

biological resources of the sea. The defence of Portugal’s national interest requires proper

monitoring of the negotiations leading to the building of sector strategies and common EU

policies.

Keywords:

Portugal; European Union; National Security; Security and Defence; Sea Affairs

How to cite this article

Silva, Jaime Ferreira da (2015). "Portugal’s interest in the context of security and defence

policy and maritime affairs. Some theoretical considerations as part of the relationship

between Portugal and the European Union". JANUS.NET e-journal of International Relations,

Vol. 6, N.º 1, May-October 2015. Consulted [online] on date of last visit,

observare.ual.pt/janus.net/en_vol6_n1_art4

Article received on October, 1 2014 and accepted for publication on April, 15 2015

JANUS.NET, e-journal of International Relations

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Portugal's interest in the context of security and defence policy and maritime affairs

Jaime Ferreira da Silva

PORTUGAL’S INTEREST IN THE CONTEXT OF SECURITY AND DEFENCE

POLICY AND MARITIME AFFAIRS.

SOME THEORETICAL CONSIDERATIONS AS PART OF THE

RELATIONSHIP BETWEEN PORTUGAL AND THE EUROPEAN UNION1

Jaime Ferreira da Silva

1. Introduction

By joining the then European Economic Community, now the European Union (EU) in

1986, Portugal became part of an entity that has come a long way towards greater

economic and political integration of the states that constitute it2

Although all Member States are sovereign and independent, they ceded part of their

decision-making powers to European institutions that were since created, in the

knowledge that it leads to a reconfiguration of some aspects of sovereignty. In those

circumstances, it is important to take into account the cost-benefit ratio of the losses

associated with the new attributes of sovereignty and the gains from integration into a

larger space.

In the current climate this issue is of great importance, as the lack of a real European

government to pursue community interests and the cleavages since created by the

economic and financial crisis have demonstrated the difficulty in obtaining the

convergence of national interests of Member States in order to pursue a clearly

perceived common interest.

Accordingly, it is important to ascertain to what extent the Portugal’s interest is being

properly safeguarded in the context of sector strategies and common EU policies. This

study aims to contribute to that evaluation in the fields of security, defence and affairs

of the sea.

To this end, the work is structured into four main parts. The first analyses the concept

of national interest in the light of the realistic and constructivist theories of

international relations. The second identifies the current national interest in the areas

concerned, based on the legal structure of the Portuguese state. The third part

acknowledges the common interests of the Union by examining relevant Community

documents. The fourth part reflects on how national interests are linked with those of

the EU in order to identify the opportunities to be seized and the threats to be

neutralized in the course of the European construction project.

1 This article is based on the study conducted to deliver the inaugural lecture of the Institute of Higher

Military Studies on 27 November 2013, on occasion of the Official Opening of the 2013/2014 Academic

Year.

2 Professor Armando Marques Guedes has kindly read more than one version of this article, and I thank him

for his nice comments.

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2. National interest in the context of International Relations

Several researchers have reflected on the concept of national interest. In order to

establish a common understanding of the notion, a brief review of it is made here in the

light of realistic and constructivist theories. The liberal approach is an alternative stance

that has become "classical". However, liberal theories in international relations are

more a family of stances than a truly coherent entity. They contrast with neo-realism

and merge, in variable ways, with constructivist positions. Contrary to the neo-realists,

they do not stipulate an "immutability" of the international system, even if the latter is

only constituted by states that interact as if they were "billiard balls". Liberal theories

focus on the "peoples" first and foremost and consider that the international system

can be formally changed through the institutional channels (e.g. international and/or

legal organizations), considering that, this way, international anarchy is progressively

blurring; informally, the liberal positions on international relations theories allude to

interim players, such as international regimes. For this reason one sees the existence of

a kind of gradient between liberalism and constructivist trends in the context of

international relations. This progressive fusion is felt the most in hard areas, such as

security and defence, foreign policy, and strategy and the sea because they stand very

close to the sovereignty of states. In this article, the liberal theories are examined

within the wider framework of the so-called constructivist theories.

In international relations, the concept of national interest is used to indicate a particular

need that has reached acceptable claim status on behalf of the state, but also to justify

and support the pursuit of certain specific policies (Griffiths, et al., 2008: 216). In a

pragmatic manner, the National Defence Institute defines national interest as the

"integrated and compatible expression of the wishes and concerns of individuals and

groups that make up the national community", corresponding to a generalized

abstraction of the aspirations and basic needs of that community (Sacchetti, 1986: 14).

The national interest has a dimension associated with the state’s domestic policies and

another related to its foreign policy, although globalization has dimmed the differences

between the internal and external dimensions of the interests of countries (Stolberg,

2012: 13; Guedes & Elias, 2012b).

In the context of domestic policies, it is often called public interest, especially in

democratic regimes, or common good, among communitarians. In that circumstance, it

is understood as something that is important for the general population of a given

state, as opposed to the particular interest of citizens, socio-economic groups and

regions that make up that state (Bobbio, et al., 1998: 642). In the context of foreign

policy, the concept is usually associated with the classical realist perspective of

international relations, also dubbed the "theory of the interests of the states” (Bobbio,

et al., 1998: 641).

This theory believes that states are the central actors in the international system and

interact in a lawless environment in which there is no higher power able to set and

enforce rules governing their relations. In this context, policies are based on the

national interest, which is grounded on the power of each state (David, 2001: 33). As

realists see international politics as essentially conflictual, states must develop a

credible power to ensure their safety and protect their interests, with the military

vector having a leading role in its construction. In a world where sovereign states

compete for resources, the nation's survival becomes the essential national interest.

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Once survival is guaranteed, the state can then have other interests, bearing in mind

that those who neglect their interests ultimately do not survive as sovereign nations

(Dougherty & Pfaltzgraff, 2011: 95-97). According to this view of international

relations, the interests and identity of states are defined before any interaction on the

international scene, and the power relations that are established are determined

depending on the material capacities of states.

However, this perspective, which occupied a dominant position in the study of

international relations in the period between the end of World War II and the early

1980s, was criticised on various fronts. In an attempt to find answers to the identified

omissions, the neorealist and neoliberal perspectives focused their attention on how

structures affect the rationality of the players. On the one hand, neorealist authors

emphasize that the competitive pressure of an anarchic international system decisively

influences certain types of state behaviour, namely the constant demand for balance of

power. On the other, neoliberals argue that in an interdependent world, international

institutions are constituted as an alternative structural context in which states can

define their interests and coordinate the different policies (Katzenstein, 1996: 12).

Conversely, these liberal views, which focused less on states and more on people as

actors, still do not take into account that the national interest depends on the

interpretation that policy makers make of it and that the meaning they attribute to it is

conditioned by their education and values as well as by the data that is provided to

them. In addition, they do not take into account the key role that national identity

plays in the construction of the interests of nations, and that it is not exclusively the

result of materials and external factors, because if so, states with similar capabilities

would have the same behaviours. This identity has an internal dimension related to

how groups, states or agents see themselves, and an external dimension which

expresses how they perceive those around them. Thus, as has been argued, inter-

subjective consensus about their external roles is reached, which in turn shapes the

national interest that emerges from standards and rules created within the group3

Devising the national interest as the product of a socially constructed identity and not

as something material, belongs to the group of theories dubbed constructivist

(Dougherty & Pfaltzgraff, 2011: 121, 122). For constructivists, the national interest is

constructed through social interaction among states in international institutions, and is

not defined at the outset (Katzenstein, 1996: 2). The international system is the result

of relations established among its members, which give meaning to the material

capabilities of states. It is anchored on the following principles: (i) states are the main

units of analysis; (ii) the key structures of the system are not material, but inter-

subjective; and (iii) identities and state interests are largely constructed by social

structures (Wendt, 1994: 385). The normative output of the major institutional

structures exerts a decisive influence on the formation of the identity and interests of

states, which have a corporate identity that establishes generic goals. However, the

way they attain them depends on their identities, i.e., it depends on how they see

themselves in relation to other states. Institutions incorporate the rules governing

interactions between states. In turn, these interactions will condition the formation of

identities and interests of states, also establishing the possibilities for action and the

constraints to which they are subject (Griffiths, et al., 2008: 51, 52). Thus, the

3 Intersubjective consensus is achieved through shared understanding, expectations and existing social

knowledge in International institutions.

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constructivist perspective is considered to be particularly suitable to analyse the

formation of the EU’s common interest as a result of the interaction between Member

States in EU institutions.

National interest upholds what the state wants to safeguard, and its identification is the

starting point for the development of a particular policy or strategy, for which reason

special care should be placed in its assessment. Once the interactions between the

various categories of interests have been acknowledged and analysed, it is up to the

government to set the national goals that indicate what the state wants to achieve.

Attaining the proposed goals will depend on the satisfaction of interests (Sacchetti,

1986: 17) (Santos, 1983: 45).

Identifying national interests correctly in a given historical moment is not an easy task,

because these elements are not clearly spelled out in a single document. To infer them

requires analysing official documents and the discourse of policy makers. In this

context, the next chapter systemizes the analysis of the documentation on the national

legal framework that is relevant to identify Portugal’s current national interest in the

fields of security, defence and affairs of the sea.

3. Portugal's National interest today

The national interest has a constant dimension that remains unbroken over long

periods of time, and another cyclical dimension that runs in a certain context (Santos,

1983: 48). The permanent national interest of Portugal is inseparable from the Atlantic,

European and Lusophone options that shape its foreign policy. As a country of scarce

resources, the framework of alliances in which it operates plays a key role in

safeguarding the national interest. In this regard, the alliance with the maritime power

has been a constant throughout Portugal’s history, so maintaining a special cooperation

relationship with the US is particularly important. The reasons are systemic rather than

strictly political-ideological. The United States, in this sense, merely takes the place

that until the mid-twentieth century had been occupied by England. In a context where

Europe is the main geographical area of Portugal’s permanent strategic interest, soon

followed in importance by the Euro-Atlantic area (Government of Portugal, 2013a: 20),

the EU and NATO are key strategic partners. In another aspect, the national interest is

also associated with the consolidation of the Community of Portuguese Speaking

Countries (CPLP) as an area of cooperation among its member states (Government of

Portugal, 2013a: 8).

As regards the cyclical national interest, this is influenced mainly by the situation in the

EU. The international financial and economic crisis that particularly affected the euro

zone revealed deficiencies in the architecture of European integration that until then

had not been identified. Faced with adversity, political leaders have reinforced the

priority given to the interests of their own countries, giving rise to internal tensions and

testing Europe’s solidarity implicit in the European project. In this context, the

revaluation of the Member States’ position regarding treaties and common policies in

force is a variable to consider, especially when the national interest is at stake. For this

to be feasible, countries must be given the necessary freedom of action to act in

defence of their interests, which is not happening in Portugal currently. This is the main

limiting factor in defining Portugal’s national interest today.

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In the field of security and defence, financial constraints inherent to this crisis and the

consequent negative impact on the budgets of these areas, as well as the emergence of

new powers and obligations arising from commitments under NATO and EU, are the

factors that most influence the definition of the national interest (Government of

Portugal, 2013a: 6).The reorientation of the strategic priorities of the US towards the

Asia-Pacific area dictated its smaller commitment to Atlantic and Mediterranean issues,

which means increased responsibility for the European allies, mainly due to the current

turmoil in North Africa and the Middle East. Within NATO, the comprehensive approach

concept, which advocates the need to adopt an method involving political, civil and

military instruments in crisis resolution, and smart defence, which seeks to encourage

the emergence of a new cooperation culture that enables the development of better

capabilities at reasonable costs, were introduced (Government of Portugal, 2013a: 21).

Within the EU, an institutional construction inspired by liberalism, the Treaty of Lisbon

led to the replacement of the European Security and Defence Policy (ESDP) by the

Common Security and Defence Policy (CSDP), resulting in the establishment of mutual

defence and solidarity clauses by extending the area of enhanced cooperation and the

creation of the permanent structured cooperation mechanism. On the other hand, the

European Security Strategy reinforces the EU’s need to improve its ability to act in an

environment characterized by the diversity of civilian and military resources. Budgetary

constraints resulted in the increased role of the European Defence Agency (EDA) and in

the identification of the need to develop the concept of pooling and sharing, which

translates into the sharing of military assets and capabilities (Government of Portugal,

2013ta: 22).

In the field of maritime affairs, in recent years there has been an increased interest of

the international community in the oceans, especially the prospect of accessing the

marine resources that they potentially contain. The emergence of new powers in a

process of accelerated economic development coupled with the rapid population growth

in some regions of the globe, has implied an increase in demand for natural resources.

This has resulted in the progressive depletion of natural resources on land, so access to

marine resources takes on a new importance. In this context, the possibility of

extending the continental shelf beyond 200 nautical miles is of undeniable importance

to coastal states, which thus see the area over which they exercise their sovereign

rights enlarged for the purpose of exploitation of marine resources. On the other hand,

awareness of the finite nature of natural resources has led to need to explore it in a

sustainable manner and to adopt an integrated management of the sea and coastline.

In order to identify the current national interest in the fields in question, the national

documentation where normally these matters are addressed was examined, including

the Constitution of the Portuguese Republic (CRP), the National Defence Law of (LDN),

the Strategic Concept of National Defence, the 19th Constitutional Government

programme, and the See National Strategy 2013-2020.

The analysis concluded that, in the context of security and defence, national interests

extend along three vectors. The first is associated with the fundamental values and

comprises:

− The guarantee of state sovereignty, national independence and integrity of the

Portuguese territory, as well as the freedom and security of the population (article

273 of the Portuguese Constitution and article 1 of LDN); and

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− Safeguard European, Atlantic and international stability and security (Government of

Portugal, 2013a: 8)

The second vector is related to the policy of alliances and strategic partnerships. In this

context, national interests are associated with:

− The strengthening of EU and NATO cohesion (Government of Portugal, 2013a: 28);

− The strengthening of the relationship with NATO and European structures

responsible for the implementation of the CSDP (Government of Portugal, 2011:

10);

− The consolidation of friendly and cooperation relations with CPLP countries (article 7

of the Portuguese Constitution, based on the strengthening of the technical and

military cooperation with those states (Government of Portugal, 2011: 111).

The third vector concerns capacity building and includes:

− Strengthening the capacity to face external threats or aggressions (article 5 of the

National Defence Law);

− Strengthening the capacity to participate in humanitarian and peacekeeping

international missions (Government of Portugal, 2013a: 28); and

− Developing integrated civilian and military capacities (Government of Portugal,

2013a: 28).

In turn, in the field of maritime affairs, national interests have also developed along

three axes. The first is related to the role of the sea as an international instrument of

Portugal’s affirmation, with the following associated interests:

− The recovery of Portugal’s maritime identity (Government of Portugal, 2013a: 62);

− The valuation of Portugal’s Atlantic vocation (Government of Portugal, 2013a: 28);

and

− The consecration of Portugal as a maritime nation as part of the Integrated Maritime

Policy (IMP) and the EU Maritime Strategy, namely in the Atlantic (Government of

Portugal, 2013b: 62).

The second axis concerns the sea as an economic development tool, and national

interests include:

− Mobilization of financial resources for investment in maritime economy sectors

(Government of Portugal, 2013b: 62);

− Promoting interoperability between maritime services and ports, shipbuilding and

ship repairing and marine works (Government of Portugal, 2011: 53);

− Protection of fisheries and aquaculture promotion (Government of Portugal, 2011:

53);

Promoting the well-being and quality of life of the population (Article 9 of the

Portuguese Constitution), in this context with emphasis on the fishing populations; and

− Assumption of the strategic nature of the continental shelf extension project, due to

the prospect of accessing potential mineral, energy and biogenetic resources

(Government of Portugal, 2011: 110).

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The third axis is related to sustainable development and comprises:

− The protection of nature and of the environment and conservation of natural

resources (Article 9 of the Portuguese Constitution); and

− The correct arrangement of the national territory and its harmonious development

(Article 9 of the Portuguese Constitution), with emphasis on the planning of the

coastline.

Following this overview of what is perceived to be the national interest stated in the

relevant national documentation in the fields of security, defence and maritime affairs,

the common interests of the Union in the same fields will be identified next.

4. The interest of the EU

The hybrid governance model that embodies the EU, with intergovernmentalism

coexisting with supranationalism, turns it into a new kind of actor in international

politics (Buzan & Little, 2000: 359). Its unique character stems from the fact that,

despite all Member States being sovereign and independent, they have given away

some of their sovereignty and delegated some of their decision-making powers to

European institutions since created. The question of the existence of a common

European interest is not consensual, and there is the prospect that this interest simply

does not exist, or is just the sum of the interests of the several Member States. Along a

different strand, some argue that the mechanisms leading to decision-making are not

sufficiently robust in the European Union. However, certain clues may indicate that this

interest exists, as evidenced by the very name of EU policies, which are classified as

common. In this regard, the change in the designation of the ESDP to CSDP is

paradigmatic. This fact of undeniable political significance demonstrates the intention of

Member States to roam a path that leads to the identification of common interests in

the area of security and defence. As one notices, at the moment there is still a long

way to go to materialize a genuine common policy in this area. However, a common

European interest is perceived to exist in certain contexts, formed in the course of

interactions among member states in European institutions.

The EU is based on rule of law and decisions taken are based on treaties ratified by the

Member States. The Treaty of Lisbon was established as the last change to the treaties,

with previous treaties being incorporated in a consolidated version embodying the

Treaty on European Union (TEU) and the Treaty on the Functioning of the European

Union (TFEU) (European Commission, 2013: 3, 4). The policy areas where the EU can

make decisions are determined by the treaties of the Union. The EU's exclusive areas of

competence comprise customs and trade policy, competition rules, monetary policy in

the euro area and the conservation of marine biological resources (Article 3 of the

TFEU). Competence is shared in the areas of internal market, agriculture, consumer

protection, and transport, among others, (Article 4 of the TFEU). In other policy areas,

decisions are the responsibility of Member States, and the European Commission

cannot legislate in these matters (European Commission, 2013: 8).

In order to identify the interests of the EU in these areas, the treaties of the Union, the

Europe 2020 strategy, the European Security Strategy, the Integrated Maritime Policy

(PMI), and the legal mechanism embodying the Common Fisheries Policy (CFP) were

examined. The analysis showed that the interest of the EU is essentially and implicitly

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laid down in the TEU. The above study indicates that European interests in the field of

security and defence include:

− Protecting its security, independence and integrity (Article 21 of the TUE);

− Promoting peace and well-being of its Member States (Article 3 of the TUE);

− Promoting its values, namely respect for human dignity, fundamental freedoms,

democracy, equality, rule of law, and human rights (Article 2 of the TUE);

− The creation of an area of freedom, security and justice without internal borders

(Article 3 of the TUE);

− Promoting peace and international security, as well as solidarity and mutual respect

among peoples (Article 3 of the TUE);

− Developing privileged relations with neighbouring countries in order to create an

area of prosperity and good neighbourliness (Article 8 of the TUE); and

− Establishing relations and partnerships with countries and with international,

regional or global organizations that share the same values as the EU (Article 21 of

the TUE).

The following European interests, although not exclusively related to maritime affairs,

share some points with them:

− Establishing an internal market based on sustainable development (Article 3 of the

TUE); and

− Preservation of the environment and the sustainable management of natural

resources (Article 21of the TUE).

Based on the above, the issue of the relationship between Portugal’s national interests

and the interests of the EU will now be examined, in order to identify points of

convergence and of potential conflict.

5. The articulation of the national interest with the interest of the EU

From the analysis of security and defence according to a generic point of view, it

appears that the resolutions on the CSDP are adopted unanimously (Article 42 of the

TEU), which offers relative guarantees that decisions are not made behind the backs of

national policy makers. Looking retrospectively to the process of European

construction, it turns out that the EU's interest is very diffuse regarding security and

defence, pointing even to the absence of a real common interest. This is evident in the

wording that was given to the mutual defence clause in the TEU which is transcribed

below (Article 42 of the TEU):

“If a Member State is the victim of armed aggression on its

territory, the other Member States shall have towards it an

obligation of aid and assistance by all the means in their power (…)

This shall not prejudice the specific character of the security and

defence policy of certain Member States. Commitments and

cooperation in this area shall be consistent with commitments

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under the North Atlantic Treaty Organisation, which, for those

States which are members of it, remains the foundation of their

collective defence and the forum for its implementation”.

This clause clearly shows that it results from a compromise that seeks to meet the

interests of three types of Member States (Monteiro, 2011: 734.):

− The integrationists, who wanted to see the obligation to help the Member State that

suffered the aggression reflected in the clause;

− The traditionally neutral states, who wanted respect for the security and defence

policies of each Member State to be enshrined in it; and

− The Atlanticists, who in their capacity of NATO members, wanted their defence to be

the remit of the Alliance.

These three groups of states reflect the EU’s major trends in the field of security and

defence, so although there is a security and defence policy called common, one cannot

see the existence of a clear common interest. It is no coincidence that the TEU

expresses the intention of the CSDP to build a common defence, but only when the

European Council, acting unanimously, so decides. In the current context when the

financial and economic crisis is putting the entire European project to the test, one fails

to see how this route can be taken in the near future.

Focusing now on the analysis of the articulation of interests according to the vectors

through which Portugal’s national interests in security and defence are developed, it

turns out that there is an alignment between national interests and the interests of the

EU in the vector of the fundamental values, which is not surprising bearing in mind that

European integration is underpinned by sharing basic principles. The mutual defence

clause and the solidarity clause contribute particularly to safeguarding the national

interest in this field. The first establishes the political commitment to mutual help in the

event of armed aggression against the country, while the latter sets out mutual

assistance in the event of a Member State being the target of terrorist attack or the

victim of natural or human-based disaster.

In the context of alliances’ policy, the articulation of interests has to be analysed from

the perspective of the relationship between the EU and NATO, as well as structured

permanent cooperation. Portugal is part of the group of states that give primacy to

their defence within the Atlantic Alliance, so it is in its interest that the relationship

between NATO and the EU is strengthened. On this matter, there is an alignment

between the interests of the Union and the national interest because, while the CSDP

respects the obligations of Member States under NATO, the report on the

implementation of the European Security Strategy strengthens the need for the EU and

NATO to deepen their strategic partnership for the benefit of better cooperation in crisis

management (Council of the European Union, 2008: 2). This cooperation has been

increasing, and one notes that sometimes in the implementation of EU missions, there

is coordination with NATO, whose command and control structures are used (European

Commission, 2013: 18). Thus, the institutionalization of forms of cooperation that

enable the articulation of resources and existing capacities is considered to be of

interest to Portugal and to those aforementioned organizations. This may involve

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coordination in planning forces, so that a more efficient use of available resources is

made.

In another aspect, Member States are allowed to establish closer cooperation among

themselves in areas where the EU does not hold exclusive powers (Article 20 of the

TEU). Authorisation to proceed with enhanced cooperation is granted by unanimous

Council decision (Article 329 of the TFEU). In this context, the Treaty of Lisbon

established the permanent structured cooperation, which is a cooperation mechanism

created specifically for the CSDP (Article 46 of the TEU). Structured cooperation stands

halfway between the creation of formal alliances and the emergence of international

regimes, as customary force. The very notion of structured cooperation pays tribute to

constructivist liberalism.

This instrument allows Member States with the highest military capabilities to have

commitments among themselves, with a view to conducting the most demanding

military missions. Participation in the permanent structured cooperation implies the

commitment of Member States to develop their military capabilities more intensively

(Article 1 of Protocol 10 on the Permanent Structured Cooperation). This mechanism

can act as a catalyst for developing the military capabilities of Member States, allowing

Europeans to take greater shared responsibility with the US, but it can also pave the

way for the formation of a multi-speed Europe in the field of security and defence.

Thus, to achieve the desired objectives, a lot of care must be placed in defining the

criteria for membership. If the stated conditions are lax, the goal of promoting Member

States’ development of defence capabilities will not be attained; if they are very

demanding, the conditions for the existence of a multi-speed Europe in this area will be

created. In this case, Portugal may not be at the forefront due to structural and

financial constraints hampering the development of the necessary military capabilities.

If one bears in mind that the defence of national interests is at the forefront of

European integration so as to actively participate in the EU’ decision-making process,

not being part of a possible permanent structured cooperation can be contrary to

national interests.

Concurrently, the protocol on permanent structured cooperation sets out that, as much

as possible, member states should harmonize military instruments and specialize their

defence resources and capabilities (Article 2). Portugal as a country with interests in a

wide geographical area, materialized in a diaspora spread all over the world, should not

discard the possibility for autonomous action, when the defence of its interests so

requires, which may be compromised if the path towards specialization of military

assets and capabilities is initiated. This condition is another factor to consider in the

event of a possible participation of Portugal in this mechanism.

However, it should be pointed out that, since its inception, the idea of creating

structured cooperation has been a very controversial issue, with the very remote

probability of ever being implemented. This is attested by the fact that even after

several years having passed and efforts made by some countries (e.g. Belgium,

Hungary and Poland) to replace the eligibility criteria for participation commitments, no

Member State has yet notified the Council about the intention to engage in structured

cooperation. With regard to Portugal, the fact of not having fulfilled the basic conditions

to be able to join a future structured cooperation, could significantly affect its ability to

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protect the national interest, rather than making any sovereignty concessions to

European institutions4

The aforementioned issues lead to the third aspect regarding national interests in the

context of security and defence, which is related to capacity building. The TEU gives the

EDA competences to contribute to the identification of the military capabilities

objectives of Member States, to promote harmonization of operational needs, as well as

to implement measures to strengthen the industrial and technological base of the

defence sector (Article 45 of the TEU). While the allocation of powers to a European

agency to identify military capabilities goals of the Member States is something that

may compromise national interests, participation in research projects and defence

technology development may be of interest to Portugal, if it results in increased

spending in defence activities.

Whereas in the field of security and defence it was not possible to identify a clear

common interest, in the area of maritime affairs that interest is manifest, involving

securing the EU’s exclusive competence in the conservation of marine biological

resources. The intention to communitarise marine biological resources is evident right

from the Treaty of Rome, but it was only with the achievement of a common policy for

the fisheries sector that the first steps in this direction were taken. This interest

culminated in the Treaty of Lisbon with the adoption of a clause stating that, within the

CFP, the EU has exclusive competence as regards the conservation of marine biological

resources (Article 3 of the TFEU).

Aware of the problem of overfishing, the EU tries to impose measures that contribute to

the sustainability of fish resources, while member states, concerned about the well-

being of fishing communities, seek to ensure the access of their fleets to fishing areas,

resulting in a conflict of interest. This conflict has been settled within the EU by

adopting exception clauses, which have enabled Member States to safeguard the

interests of local fishing communities that depend heavily on traditional fisheries

conducted along the coast. These clauses have allowed Member States to maintain the

uniqueness of fishing activity in their territorial sea for their own vessels. In addition, in

the archipelagos of Madeira and the Azores, with the entry into force of Regulation (EC)

No 1954/2003 on the management of fishing effort, Portugal has managed to restrict

fishing to vessels registered in the islands’ ports, in a strip between the baseline and

100 nm. This restriction does not apply to Community vessels that traditionally fish in

those waters, provided they do not exceed the fishing effort traditionally exerted. With

the exception of Belgium and Holland, where large vessels prevail, in other Member

States vessels under 12 meters long are the majority (European Parliament, 2013, p.

2). In these circumstances, coastal fishing is of special relevance to European

countries, which attests the importance of safeguarding the exclusivity of fishing

activities in coastal areas for national vessels.

Another aspect that should be taken into account with regard to fisheries is the

negotiation of fisheries agreements by the European Commission on behalf of Member

States. With these agreements the EU is seeking permission for its vessels to fish in the

EEZ of the partner country. The conclusion of these agreements could benefit or harm

Portugal’s interests, for which reason the negotiating processes should be followed up

case by case with particular attention.

4 I thank the anonymous reviewer for drawing my attention to such important issues.

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To complete the analysis of the fishing industry, there is the fact that this sector has

not yet been become autonomous in relation to agriculture. This lack of autonomy is

reflected in the absence of specific rules on fisheries in the treaties, which are governed

by the provisions relating to agriculture (Monteiro, 2011: 742). This circumstance is

made clear in the TFEU, which states that "'agricultural products' means the products of

the soil, of stockfarming and of fisheries (...)" and that "references to the common

agricultural policy or to agriculture and the use of term "agricultural", shall be

understood as also referring to fisheries (...) "(Article 38 of the TFEU). Another tell-tale

sign of this lack of autonomy is the fact that the European Economic and Social

Committee meets in plenary sessions divided into six thematic sections, and fishery

issues are dealt with at the Section for Agriculture, Rural Development and the

Environment (European Commission, 2013: 32). The non-protection of the specificity of

the fisheries sector is deemed to be contrary to the interests of a country like Portugal,

which, in September 2011, had the fourth largest fishing fleet in the EU (European

Commission, 2012: 15, 21, 44).

On the other hand, the strategic nature of the issues related to the continental shelf

suggests that close attention should be paid to this matter, so as not to miss this

window of opportunity for Portugal. Whereas with respect to non-living resources of the

continental shelf there is nothing in the European treaties that removes sovereignty

from Member States, in relation to living resources the situation is not linear because

the TFEU states that, under the CFP, the EU shall have exclusive competence as

regards the conservation of marine biological resources. This issue is particularly

relevant in the case of benthic organisms in hydrothermal vents, as a result of their

potentially economically profitable exploitation due to possible applications in

biotechnology industries. Hence the need to clarify whether these organisms, which do

not correspond to the traditional definition of fishery resources, are included in what

the TFEU calls biological resources of the sea. In a simplistic analysis that lacks proper

legal basis, we are led to believe that, in light of the provisions of Regulation (EU)

1380/2013 on the new CFP, organisms of hydrothermal vents should be considered to

be biological resources of the sea. Indeed, the regulation states that marine biological

resources include "living, available and accessible marine aquatic species, including

anadromous and catadromous species during their marine life", thus covering the

bodies of the seabed, which is contrary to national interests.

The analysis of the IMP indicates that one should take care that its integrating stance

does not lead the EU to centralize current existing expertise in matters of the sea. This

can be achieved by observing the principle of subsidiarity, thus allowing solutions to be

found which take into account national specificities.

On the other hand, always attentive to environmental issues, the EU launched an

international appeal for the reduction of greenhouse gases, committing to reduce, by

2050, 80-95% of its emissions compared to 1990 levels. To do this, studies indicate

that 60% reduction in emissions in the transport sector must be attained (European

Commission, 2011: 3, 4). Many targets were set to achieve this goal, with the intention

to transfer 30% of road freight over distances greater than 300 km to sea/river or rail

transportation by 2030, and over 50% by 2050 standing out (European Commission

2011: 10). In a context where the enlargement of the Panama Canal could turn

Portugal into the gateway to Europe for such important markets as the US and Asia,

this fact is an opportunity not to be wasted (Guedes, 2012a). To this end, developing

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national port infrastructure is necessary to meet the expected increase in maritime

transport, as well as creating logistic support in Portuguese ports that add value to the

goods carried by large ships. The flow of goods can take place by sea and it will be

necessary to transfer them to smaller vessels, or by land, in this case with railways

playing a key role. Like any sea economy cluster based on a strong sector of maritime

transport, the EU’s environmental concerns are an opportunity for Portugal to develop

this sector of the economy, which should not be wasted. The future will tell us if and

how we were able to do it.

Following the above, the main threats and opportunities in the areas concerned will

now be examined from the perspective of safeguarding the national interest. The main

threats are as follows:

− The creation of permanent structured cooperation without the participation of

Portugal, because otherwise the country would be left out of the Community’s

decision-making process in this area;

− The possibility of having a specialization of military resources and capabilities, as this

would condition Portugal’s possibility to intervene autonomously where the nature of

its interests so requires;

− The possibility that military objectives and capabilities are identified by the EDA, due

to the chance that it will not take the specificity of national interests into account;

− The communitarisation of marine biological resources, due to the possibility that the

living resources of the continental shelf end up being managed by the Commission;

and

− The negotiation of fisheries agreements by the European Commission, as this may

lead to situations where the national interest is not properly addressed.

Regarding the main opportunities, the following stand out:

− Carrying out actions that contribute to enhanced cooperation between NATO and the

EU, with a view to better coordinate military resources and capabilities

− Participation, within the EDA, in research and development projects that allow

maximizing the scarce financial resources available, address vulnerabilities in the

national force system, foster the development of the technological and industrial

basis of defence, and increase the interoperability with the Armed Forces from other

Member States; and

− Adapt national port infrastructure to take on the expected increase in maritime

traffic and the EU’s intentions within the framework of the Common Transport Policy.

6. Conclusion

This paper examined the question of the relationship between Portugal’s interest and

the interest of the EU, seeking to ascertain whether the national interest is being

properly safeguarded in the fields of security, defence and affairs of the sea. The topic

was analysed in the light of realistic and liberal theories and its constructivist variants

in International Relations, the constructivist approach being deemed particularly

suitable to study the formation of interests in a political entity such as the EU.

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The analysis pointed to the conclusion that in the field of security and defence, it is not

possible to identify a clear common European interest, but rather the interests of three

groups of member states, namely the integrationists, the neutral and the Atlanticists.

In order to safeguard its national interest, Portugal must foster cooperation between

the EU and NATO and achieve adequate material, human and financial conditions to

participate in the structured cooperation that will eventually be created. It should also

avoid the path towards specialization of military resources and capabilities, as well as

endeavour to participate in research and development projects under the EDA, enabling

it to maximize the scarce financial resources available.

In turn, in the field of affairs of the sea, it was possible to detect an obvious European

common interest related to the sustainability of the sea’s biological resources. Pursuing

this interest requires the communitarisation of marine living resources. To safeguard

national interests in this field, Portugal should try to prevent the European Commission

from managing the living resources of the continental shelf, and properly monitor the

fishing agreements the EC negotiates with third countries.

In short, within a framework of progressive transfer of sovereignty to the European

institutions on behalf of a common interest, protecting the national interest requires the

close monitoring of negotiations leading to the building of sector strategies and

common EU policies, always bearing in mind the words of Lord Palmerston in 1848 in

the House of Commons : “We have no eternal allies and we have no perpetual enemies.

Our interests are eternal and perpetual, and those interests it is our duty to follow”.

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Santos, J. L. d. (1983). Incursões no Domínio da Estratégia. Fundação Calouste

Gulbenkian: Lisboa.

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OBSERVARE

Universidade Autónoma de Lisboa

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SOCIAL PROBLEMS: THE DEMOGRAPHIC EMERGENCY IN URUGUAY

Virginia Delisante Morató

delisante@ort.edu.uy

Holder of a Master Degree in International Relations from ISCSP, University of Lisbon

Holder of a Bachelor Degree in International Studies from Universidad ORT Uruguay.

Deputy Academic Coordinator of the Bachelor Degree in International Studies,

Lecturer and Associate Professor of Final Projects of the Faculty of Management and Social

Sciences of the University ORT Uruguay.

Abstract

This article focuses on Uruguay in a context of highly publicized external image through its

recent former president Jose Mujica. It covers government policies related to the problems

that all societies must face, addressing, in particularly, the demographic problem it is

experiencing, since it differentiates the country both in a regional and in the entire Latin

American context.

Keywords:

Uruguay; social problems; demography: emigration

How to cite this article

Morató, Virginia Delisante (2015). "Social problems: the demographic emergency in

Uruguay". JANUS.NET e-journal of International Relations, Vol. 6, N.º 1, May-October 2015.

Consulted [online] on date of last visit, observare.ual.pt/janus.net/en_vol6_n1_art5

Article received on July, 23 2014 and accepted for publication on March, 24 2015

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Social problems: the demographic emergency in Uruguay

Virginia Delisante Mrató

SOCIAL PROBLEMS: THE DEMOGRAPHIC EMERGENCY IN URUGUAY

Virginia Delisante Morató

I. Introduction

Uruguay has been on the front pages of major international newspapers in recent years

since the last government of Jose (Pepe) Mujica, either due to his high media profile or

the three most progressive laws passed under his government, namely the equal

Marriage Act, the liberalization of marijuana and the law allowing abortion. However, in

the context of the country’s external image, it is relevant to mention other government

policies related to the problems that all societies must face, particularly the

demographic problem it experiences and differentiates it both in a regional and in the

entire Latin American context. The urgency is clear: a country without people lacks

viable development. On the other hand, public policies and country indicators in general

are elements that are difficult to measure in relation to its neighbours, since the latter

are large countries with huge populations by comparison and very different policy

implementation systems, as both Argentina and Brazil have federal administration

systems. Thus we can say that Uruguay makes itself visible not due to its size (whether

geographic, demographic, economic or all together) as happens to some regional

powers, but due to its difference as described by Joseph Nye1

The speed with which information flows today justifies introducing a clear definition of

globalisation in this analysis because of its influence on human groups, incorporating

changes that are not always easy, either due their complexity or the speed at which

they occur.

, through soft power, and,

in this case, based on a person with a high media profile, its leaving president, Mr.

Mujica.

Anthony Giddens2

wrote that

“globalisation can thus be defined as the intensification of

worldwide social relations which link distant localities in such a way

that local happenings are shaped by events many miles away and

vice versa. This is a dialectical process because such local

happenings may move in an obverse direction from the very

distanced relations that shape them. Local transformation is as

much part of globalisation as the lateral extension of social

1 NYE, Joseph. 2010. The future of power. United States. Public Affairs.

2 GIDDENS, Anthony. 1991. As conseqüências da modernidade. São Paulo. Ed. Unesp

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Virginia Delisante Mrató

connections across time and space. So, whoever studies cities

today, anywhere in the world, is aware that what happens in a

local neighbourhood tends to be influenced by factors such as

global money and commodities markets operating in an indefinite

distance from the neighbourhood in question”.

Latin American economies suffer from globalisation in the form of vulnerability and

external dependence. The advantages described by the countries that lead it, presented

as a worthy phenomenon of equalization of benefits and opportunities, have not

reached all latitudes, including our American Southern Cone.

We are facing a situation of international free market, but globalisation finds other

ways to manifest itself through technological advances at an uncontrolled speed that

have led to increasing social segmentation with its consequent labour, cultural and

educational duality, for which reason the impacts of globalisation fall on the democratic

systems of the societies that suffer from them, creating or highlighting various social

problems that those economies must face and solve.

According to Baylis3

, globalisation is dividing citizens between the educated and

cosmopolitan inhabitants and the economic and social outcasts. It is in this new form of

global behaviour that countries have had to seek common strategies to safeguard the

real problems they face, including economic ones, social and class structure issues,

political systems and parties, state format, social movements, the level of material

development and social equity, professionalism and creativity of state elites and civil

society, the configuration of the system of social actors, cultural models and the

collective imagination, as well as several other issues, including, naturally, the new

global reality.

II. Concept of social problem

It is necessary to provide a theoretical framework to what is meant here by social

problem that will justify the topics chosen for this work.

Thus, the doctrine defines social problem as the result of conditions or practices that

lead to a lack of harmony with the social values of a given society.

Social problems exist when there is an imbalance in the forms of social organization

that has negative effects on the group and also when their competence appeals to the

responsibility of this group4

To the question what is a social problem? Pablo Kreimer, Director of the Doctorate in

Social Sciences at FLACSO Argentina, tells us that

"a first level of answer refers to the existence of objective

conditions that relate directly to human suffering (...) for example,

malnutrition, illiteracy, poor sanitary conditions, lack of work,

3 BAYLIS, John. 2011. The globalization of world politics. Oxford. Oxford University Press

4 MONTENEGRO, Marisela. 2001. Otredad, legitimación y definición de problemas en la intervención social:

un análisis crítico. Universidad Autónoma de Barcelona.

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Virginia Delisante Mrató

among others, are socially perceived as problems with no further

requirement than awareness of the living conditions of the

individuals involved. Problems that affect one part of the

population are thus "social" by the mere fact of their emergence

within a given society".

For his part, Juan Sandoval Moya5

, of the University of Valparaiso, Chile, adds that

"the process of construction of social problems is symbolic and

involves interaction of categories typical of a social psychology

linked to subjects and social discourse, which are intended to

account for the subjectivity and historicity processes which

intervene in all human communities through the production of

discourse in the definition, prioritization and characterization of

what they define as social problems at a period of time”.

In short, the actual social history of peoples and their own identity define social

problems and their priority according to their own characteristics.

In this line of reasoning, the problems that cross our societies, and specifically Latin

America, emphasize the urgency that causes inequality, leading the trend in the use of

resources on policies that work together to address these problems, giving priority to

the social sectors in a condition of extreme poverty6

Not only poverty and marginalization are part of what can be defined as a social

problem, or can be perceived as such by a group. The issues related to them must also

be mentioned, such as, illiteracy, hunger, health problems, education and child labour,

in addition to abuse. Other examples of social problems include an ageing population,

migration (in the case of Uruguay, as discussed below, particularly emigration), the

social, economic and political consequences of these demographic problems;

environmental problems (which in Uruguay is a social problem through the conflict with

Argentina for the setting up of a pulp producing company on the margin of the Uruguay

River); unemployment; HIV/AIDS; all sorts of violence, among others.

. It should be noted that this

poverty has various origins according to the sub-regions we refer to, taking into

account the existence, or not, of indigenous communities, economic and development

policies applied throughout recent history and the actions, in many cases, of dictatorial

regimes that many of these countries have experienced, with marked differences in the

Southern Cone. These are issues that go beyond the goal of this analysis but which we

must not fail to consider as part of the context in which some of the social problems

presented here arise.

5 In his work “Producción discursiva y problemas sociales” published in the journal Última Década n 007-

1997.

6 OIT/Cinterfor.1995. Las Políticas Sociales en Uruguay. Report prepared by Centro Interamericano para el

Desarrollo del Conocimiento en la Formación Profesional

The term "social policy" is used here as the political form that society (through the State) has to "solve"

the social question, that is, social problems.

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III. Main social problems in Uruguay

Uruguay is a country located in a geographic context which, despite its 176.000km2, is

of little importance. Its small dimension not only refers to territorial aspects, but also to

its demographic and economic indicators.

It has just over 3 million inhabitants7

, of whom 46% live in the capital, Montevideo, the

smallest of its 19 departments. 38% live inside the city and only 16% in rural areas.

Figure 1 - Map of Uruguay

Source: www.lahistoriadeldia.wordpress.com

Within Latin America, it is a country historically known for its egalitarian distribution of

income, the strength of its democracy and level of social integration. In recent decades,

however, "there have been cracks that manifest themselves through marginal

behaviours, i.e. behaviours which are not governed by socially accepted patterns. The

reason for such behaviour is understood as a cultural mismatch between cultural goals,

structures of opportunities for achieving the goals and the creation of individual

capacities to take advantage of them”8

In the late 1950s, when Uruguay took advantage of the economic benefits of war

(especially as an exporter of meat and wool) which led it to be called the "Switzerland

of America", a decline started slowly but without pause, bringing it closer, even today,

to the parameters of its Latin American context. A product of Europe’s and global

7 3:285.877 according to the last census conducted in 2011.

8 KAZTMAN, Ruben. (1997). Marginalidad e integración social en Uruguay. Journal of CEPAL n 62.

Montevideo.

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Virginia Delisante Mrató

resurgence after the war, of the dwindling dependence of the belligerents on its

primary products, Uruguay failed to reconvert, although the 11-year dictatorship (1973

-1984) clearly also contributed to this scenario.9

According to this background, the main social problems facing the country can be

identified as follows:

III.1 Poverty, inequality and social exclusion

The indicators are not encouraging because the data tells us that poverty mostly affects

young people. In a prematurely ageing society and with an overall very low birth rate,

this constitutes a serious social problem, as child poverty is a serious challenge to any

project one may want to carry out in the country. According to the UNICEF 2013

country report, 24.5% of children under six years live in poverty in Uruguay. Poverty

affects 13% of the population, while 0.5% is indigent. With respect to inequality,

although the country has historically stood out for having, in the Latin American

context, a more even distribution of wealth than its neighbours, and has a still valid

and important middle class, the gap has not stopped widening since the last crises of

the late 1990s and the last one that affected it directly in 2002. While poverty has

declined in the last five years, there has been an increase in inequality that manifests

itself both in the distribution of income and access to social services. In this regard, the

process of urban and residential segmentation, particularly in the city of Montevideo

and its metropolitan area must be mentioned, where "neighbourhoods became

increasingly more homogeneous within and more heterogeneous among themselves,

thus losing a relative capacity for social integration that had been a distinguishing

feature of Uruguayan society”10. "Poverty and inequality in Uruguay are closely linked

to unemployment, which affects mainly people with low skills. According to the Human

Development Report on Uruguay (PNUD 2005), in Montevideo the income of the better

off is fourfold that of the disadvantaged. In terms of social exclusion, and in the

definition proposed by Manuel Castells “the process by which certain individuals and

groups are systematically blocked from accessing positions that would allow them to

have an autonomous livelihood within certain social levels determined by institutions

and values in a given context. Exclusion situations vary depending on education,

demographic characteristics, social prejudices, corporate practices and public policies,

and can affect both individuals and territories. In this sense, it can be said that the

most affected sector is that of women heads of household, who run 32.7% of

households in Uruguay, of which 11.7% are poor11. Another major problem that the

country must solve in terms of inequality is the very high school dropout level:

according to data provided by UNICEF, only 4 in 10 young people between 21 and 22

years of age manage to complete secondary education and only 37% of young people

between 21 and 22 years completed upper secondary education, with the remaining

63% leaving before completing compulsory education12

9 It must be pointed out and emphasized that in international terms Uruguay qualifies well but the grim

scenario arises when the information and data are broken down as attempted in this paper.

. On the other hand, poverty

10 CEPAL. 2007. Serie Mujer y Desarrollo N°88. Las metas del milenio y la igualdad de género. El caso de

Uruguay. United Nations. Santiago de Chile.

11 Data from 2002, Instituto Nacional de Estadística (INE), gender statistics.

12 UNICEF. 2013 Annual Report. Available at

http://www.unicef.org/uruguay/spanish/InformeAnualWeb.pdf#Informe Anual 2013

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and unemployment make it difficult to have access to decent housing, causing the

appearance of irregular settlements, especially in the capital. There are 562 slums in

Montevideo, with 61 000 households and an estimated population of 257 thousand

people13

. Most of the land occupied by these settlements is illegal. Over time these

settlements have become true neighbourhoods but lacking the services that a

neighbourhood should have. The previous government began a process of

regularization, which continues today, providing basic services like electricity, running

water and sanitation to the settlements where such measures are possible, which is not

always the case. The problem is to move people occupying areas that for various

reasons are uninhabitable, as they are not always willing to leave the places they

occupy, and where to put them so that they improve their situation and abandon often

criminal and clandestine activities. In this regularization process, it was found that

many of these houses were built in unsuitable areas such as under high voltage aerials

or exposed to high concentrations of lead. In this sense, lead poisoning is linked to the

land and poverty, although it is not the only determinants factor, and children end up

being the worst hit, with blood lead concentrations that exceed twice the tolerable

amount, according to the Ministry of Public Health.

III.2 Environmental problems

In the same vein, the serious problem affecting the country by exposure to high

concentrations of lead must be stressed. For decades lead has been considered to be

one of the most important environmental pollutants. In Uruguay, occupational exposure

to lead is linked to the metalworking and the automotive battery manufacturing

industries14

13 Data from 2010, from Asociación Un Techo para mi País relevado por el Portal 180, available at

. However, as stated earlier, lead exposure is also, above all, closely linked

to poverty and land problems, where the slums are usually located, the most

disadvantaged being the most affected. Settlements are often located in flood zones

that have been filled with industrial waste, where underground cables are burnt and

clandestine foundries are made, in addition to the population lacking hygiene

education. The problem is severe in children and young people, because, depending on

the level of intoxication, lead poisoning has irreversible consequences in all that relates

to learning and psychomotor apparatus, especially when affecting people with a poor

diet. The removal of leaded petrol from the market in December 2003 was an

important first step but insufficient when dealing with this problem. Another

environmental problem that has caused serious damage to the country is the one

opposing Uruguay to the Republic of Argentina regarding the building of a cellulose pulp

producing plant of Finnish origin called Botnia, UPM today, on the margin of the

Uruguay River. This plant was set up in the Río Negro department, in a free trade area,

opposite the city of Gualeguaychú in Argentina. While the conflict goes beyond the

environmental issue and is now part of the political agenda, it began with the complaint

made by Gualeguaychú citizens, with the approval of the government of Argentine

President Néstor Kirschner, that the plant would pollute the river and the air. Despite

assurances given not only by the Uruguayan government and the business itself, but by

several international audits, these citizens organized themselves in what they call an

http://www.180.com.uy/articulo/13392

14 Revista Médica Uruguaya. 2006. Article: Estudio epidemiológico de una población expuesta laboralmente

al plomo. Departament of Toxicology, Faculty of Medicine.

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"assembly" and cut the border crossing the international bridge linking the two

countries, claiming for the plant location to be moved. BOTNIA started production on

12 November 2007 and although the conflict has lost strength, it reignites every time

the company is allowed to increase production. The conflict had serious consequences

for Uruguay with job losses in the Río Negro department and a substantial reduction in

national tourism, which lasted at least five years, not to mention the costs for the

regional economy, since tons of goods used that route per year heading to Uruguay,

Argentina, Paraguay, and Bolivia, with a loss of millions of dollars. Although it is a one-

off, and not a structural problem, whose solution does no longer depend on Uruguay,

its timeliness, the dimension it has taken, opposing the two countries, their

governments and their citizens, makes it mandatory to mention it, even though today

for Uruguay it is probably more of an economic and political problem than a social one.

III.3 Health

Uruguay has a health status whose indicators differentiate it in the region due to the

low rates of infant and maternal mortality. However, as in the rest of the continent, the

risk of dying, getting sick or cured is not evenly distributed. The main cause of death in

the country is cardiovascular diseases, with 322 deaths per hundred thousand

inhabitants, according to the Ministry of Public Health (2007).

However, again people in poverty and women are the most vulnerable15. Uruguay has a

population with marginal rates of malnutrition, but it should be mentioned that it

mainly affects children under two years of age and, according to data of the President’s

Office, 15% of pregnant women begin their pregnancy with low weight, this percentage

increasing to 40% in teen mothers. In this sense, despite the low fertility rate and a

downward trend (which, as discussed below, is now on the edge of the population

replacement rate), an increase is detected in teenage pregnancies in disadvantaged

sectors, with the social consequences involved in the risk of reproducing cycles of

poverty. 17% of births in 2008 were to teenage mothers (15 to 19 years of age). The

problem is that these young people are forced to abandon their studies early, which

reduces their chances of entering the labour market with better conditions, retaining

them in a poverty environment. Following this line of reasoning, the literature suggests

that adolescent fertility and education are closely linked: 71% of teen mothers have

completed primary education but only 6.4% completed secondary education16. Data

from the Ministry of Public Health of 2011 indicate that 73% of these mothers do not

work or study, 15% study and only 12% work17

15 CEPAL. 2007. Serie Mujer y Desarrollo N°88. Las metas del milenio y la igualdad de género. El caso de

Uruguay. United Nations. Santiago de Chile.

, so 88% of these mothers are not

involved in any economic activity. In a country with few active young people, an ageing

population and high emigration rate, where the ones who emigrate are mostly young

people with high academic qualifications, these signs are alarming. Moreover, the

HIV/AIDS issue should be mentioned, although it cannot be considered a social problem

in the country under the given definitions. This is a topic that seems to be controlled

and is not urgent as the other issues raised here. Uruguay has one of the lowest

16 VARELA, María del Carmen. 1999. La fecundidad adolescente: una expresión de cambio del

comportamiento reproductivo en el Uruguay. En Salud Problema. Universidad Autónoma Metropolitana-

Xochimilco. México.

17 MSP 2011. Report available at file:///C:/Users/Virginia/Downloads/Informe_Embarazo_Adolescente.pdf

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numbers of AIDS patients in the region, with a rate of 25.4 per 100,000 inhabitants,

according to the Ministry of Public Health (2012). It does not even qualify for the Global

Fund to Fight AIDS, Tuberculosis and Malaria. By the end of 2012, the cumulative

number of AIDS cases totalled 8,000, of which 36.5% were women. According to data

from the Ministry of Public Health, the age of highest incidence of the disease is

between 25 and 54 years. Cases of perinatal transmission from mother to child fell

sharply from 26% in 1995 to 4% in 2007 and to 2.14% in 2012, which is significant.

The country has embarked on a major health reform, in force since 1 January 2008,

which, among other things, extends the coverage of quality health care to all children

under 18, children of active parents who contribute to social security. This reform aims

to alleviate, if not eliminate, equity issues associated with access to health care quality

differentials and inequities in funding. The new integrated health system aims to

eliminate the existence of a “health for the poor" (public) and a "health for the rich"

(private) through a mixed and homogeneous system in terms of accessibility with

respect to quality care. It is an important matter in terms of health, which, if well

managed, can help reduce some of the most pressing issues experienced in Uruguay.

Unfortunately, what is conceptually presented as a good public policy did not anticipate

that the most disadvantaged would eventually return to the public sector given that in

the mixed sector, under the new system, they must face mandatory testing costs, such

as paediatric costs, which public health offers them for free. Often, the mere transfer to

the mixed system can be expensive in the light of the family income, so people choose

to go to the neighbourhood clinic, which depends on public health. In short, in the

mixed/private health sector, one notes a drop in the quality of service after the reform,

due to the amount of people that the various services had to absorb without generating

a real benefit to those who really need it most. Finally, with regard to health

professionals, one perceives that a feminization of the medical career has occurred,

leading to a massive expertise in paediatrics18

, which has transformed Uruguay into a

paediatricians "exporting" country, and an "importer" of doctors specializing in other

areas, such as ophthalmology, and accounts for the lack of other such specialties, such

as neurosurgery, which has only 32 professionals to serve the entire country.

III.4 Violence and crime

To finish this brief summary of the main social problems affecting Uruguay, it should be

noted that the main problem, and perhaps the most urgent, is related to domestic

violence. In this country, one woman dies every 14 days at the hands of her partner,

and if we add the deaths of children and adolescents as a result of violence the number

of days is reduced to 919

These figures do not include suicides committed by victims of violence who could no

longer bear it. Domestic violence brings with it serious consequences for the family

environment and for society as a whole, and despite being a major social problem,

there is no state policy that attempts to modify social and cultural patterns that are at

the basis of this problem and somehow justify or allow the existence of domestic

violence. It is a problem that does not distinguish between class, political or

18 A fact stressed by Romero Gorski in 1999 in his work Caracterización del campo de la salud en Uruguay

en Salud Problema. Universidad Autónoma Metropolitana-Xochimilco. Mexico.

19 Data disclosed by the Uruguayan network against domestic and sexual violence.

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philosophical beliefs, affecting the physical and psychological health of sufferers and

which causes work absenteeism with the consequent economic cost, not only individual

but also social. Regarding crime, the feeling of insecurity among citizens is increasing in

recent years. The figures indicate that crimes against people increased by 8% in 2007

compared to the previous year20. In its 2013 report, the Ministry of Social Development

stated that an estimated 54% of Uruguayans fell victim to a crime in the last five

years21

. One notes, above all, an increase in the violence of the crimes committed and

a decrease in the age of offenders, which is somewhat driven by the increase in the

consumption of drugs, such as crack, by children and young people.

IV. One of the problems for analysis: the demographic problem

The demographic problem is dealt separately because we believe that in all the serious

problems Uruguay is facing, this is perhaps the most urgent.

As a conceptual introduction, demographics is defined as the social science that studies

the events occurring to members of a population along their life. This study has two

dimensions: measurement (how many there are, how many are born, how many die)

and explanation (why so many children, why so many emigrants, why the increase in

life expectancy)22

Uruguay has kept its demographic indicators low for an extended period, with growth

and age structure similar to countries in Western Europe, which are different from the

overall context of Latin America. In this sense, according to Varela Petito

. Thus, the demographic issue in Uruguay becomes an urgent and

important problem due to two of its fundamental variables: the low fertility rate and the

high emigration rate.

a) the cultural impact of European immigration on a sparsely populated territory;

, "the

reconstruction of the historical process that explains the demographic behaviour of

Uruguay in the Latin American context is complex. The available evidence allows

ascertaining the main impact factors:

b) early incorporation into the Western model;

c) early urbanization that has led to 91% of the population living in cities today;

d) an economic activity fundamentally based on livestock produced extensively;

e) The form of land distribution in large estates, which has prevented the development

of a rural population, which often have high levels of reproduction;

f) A form of land use that does not require high demand for labour;

g) The characteristics of the economic activity do not stimulate the growth of

intermediate towns and consolidate the growth of the city's capital, which is the

main exporting port”.

20 Ministerio del Interior. Observatorio nacional sobre violencia y criminalidad. Evolución de la violencia y la

criminalidad en el Uruguay. 2007.

21 Report available at http://www.mides.gub.uy/innovaportal/file/23497/1/reporte_social_2013.pdf

22 ORTEGA Osona, José Antonio. 2001. Revisión de conceptos demográficos. In Contribuciones a la

economía: http://www.eumed.net/cursecon/colaboraciones/Ortega-demograf.htm

23 PETITO VARELA, Carmen. Fecundidad En Importante pero urgente. Políticas de población en Uruguay.

2007. Montevideo. UNFPA – Ed. Rumbos

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These characteristics occurred because Uruguay is a country that was left with no

indigenous population and was the recipient of significant numbers of Europeans in the

second half of the nineteenth and early twentieth centuries (mostly Italian and Spanish,

but not only), with low population levels despite its territorial extension.

From the 1960s, in the words of Pellegrino24, "Uruguayan emigration turned out to be a

growing issue and the departures became a factor of concern at all levels of national

life". Whether due to the sluggish economy, as noted above, or due to repression and

exile, emigration reached very high rates during the 1970s and early 1980s. The end of

the dictatorship (1984) did not improve the situation because, although the first period

of democratic transition meant a return to the country, emigration continued and

increased again in the 1990s, above the number of homecomings in that period. After

the crisis of the late 1990s and, especially, the 2001-2002 crisis, emigration became

the most widely used tool to address the lack of opportunities and unemployment,

although the balance of emigration had been negative since 1963. Data indicates that

since 2000 an average 20,000 people emigrated each year in the country, a figure that

peaked in 2002 with 29,000 departures25 and reached 17,000 in 2007. Given the size

of Uruguay’s population, these are huge numbers that should get our attention: if we

consider that our natural increase (difference between births and deaths) is 20,000

people a year on average, this means that we have barely grown and that, in fact,

between 2000 and 2002 we have had negative growth. It is reckoned that the

Uruguayan population living abroad represents 13% of the population. Therefore, in the

words of Pellegrino, "the migratory phenomenon has a weight on Uruguayan society

that must be among the highest in the world." Emigration in general has economic

causes, especially at the beginning and during the crises mentioned earlier, and also

political, mostly during the period of the coup d’état (1973-1974), but it is also caused

by the lack of horizons and opportunities that are not always connected to strictly

economic problems. Emigration ceased to be the quick reaction of the Uruguayan

society to specific economic problems, becoming a target for young people when they

complete secondary education. Emigration has become the most serious structural

problem in Uruguay: 77% of recent immigrants (between 2000 and 2006) are aged

between 15 and 34 years26

In addition, there are the recruitment programmes offered by countries like Canada to

bring human resources to Quebec, training (and taking) dozens of young professionals

per year, or the recruitment programmes for specific professionals in the areas of

technology and computing, as offered by Germany, which, along with India, takes on

almost the entire supply of labour in this area through one of its major multinationals

located in one of the free trade areas next to the city of Montevideo, training young

graduates in the topics they need and sending them abroad; the technical emigration,

for example in the area of health, to countries such as England and Switzerland, must

. They are usually young people with skills or who continue

their education abroad, whose biggest problem is the lack of opportunities they have in

the country, where their skills are undervalued in terms of the wages they are offered.

24 PELLEGRINO, Adela. 2007. En Migración uruguaya: un enfoque antropológico. UDELAR

25 PELLEGRINO, Adela. 2003. En La emigración en el Uruguay actual ¿el último que apague la luz? UNESCO

Report Montevideo.

26 Data from the Report Informe sobre migración internacional en base a los datos recogidos en el módulo

migración de la Encuesta Nacional de Hogares Ampliada 2006. UNFPA – PNUD – INE

The same report states that the data confirms that 50% of emigrants in the period under study (2000 –

2006) had a job when they emigrated, which confirms and strengthens the argument advanced here that

nowadays emigration is done for reasons other than economic or unemployment.

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also be stressed. The destinations of Uruguayan emigrants are varied: initially they

used to go to Australia, United States, Argentina, Brazil, Venezuela, Mexico, Sweden,

and Spain, but today most young people continue to emigrate to Europe (mainly Spain

and Italy) and the US (although this destination fell slightly once Uruguayans began to

be asked for a visa to enter the country, after the 2001-2002 crisis).

Another point of concern is the increase in the number of entire family groups

emigrating, parents who decide to join their children abroad, which happened a lot

prior to the US starting requesting an entry visa, or adults between 30 and 45 years

who lost their jobs and decided to emigrate with their children, in block. This is

important because it affects the remittances that Uruguay could receive from the

outside, further minimizing any benefit to the country that might be found in

emigration. In this regard, we note that even for those remaining, remittances fail to

be an incentive. Cabella and Pellegrino point out, using data from a 2006 study, that

"among the poor classes the departure of a member abroad tends

to deepen their vulnerability, rather than improving material and

social living conditions. (...) The emigration of a member

diminishes access to welfare, and sustained economic transfers do

not offset this loss. Remittances received by these households are

rather off-the-cuff and are sent when the household is facing

extreme situations27

Moreover, there is the sense that the country is becoming empty, which Laura Pastorini

mentions in her article "Not all of us are here and not all of us who are here are all of

us” adding that "the massive exodus feeds emigration, because a country that is

emptied of its younger population, who are more dynamic and more educated,

becomes less attractive to the educated, dynamic young population. In the imagination

of those social groups, Uruguay is becoming an ageing country, stagnant, boring and

without prospects". And she goes further to say that “this is a country one should

leave”28

The charts presented in the Annex illustrate the population pyramid age and the age

pyramids of recent immigrants. They show Uruguay as a country with an ageing

population pyramid, with few young people and where most children are born in the

poorest sectors of society, and that migration is concentrated in the 15 to 30/40 years

belt, which is not a very bright future. With respect to the second variable under

analysis, it should be mentioned that the general fertility rate (the number of children

women have in the absence of changes in mortality and fertility rates by age, GFR) in

Uruguay stood at 2.04 in 2005 and 2.03 in 2006 (latest available data), according to

data from 2006 and 2007, respectively, of the National Statistics Institute. According to

the same source, the growth rate for the whole country in 2006 was 0.284% and life

. The massive emigration of the last decade means that everyone has family or

acquaintances living abroad, which, in turn, mean that at the time of leaving,

emigrants feel less uprooted. These networks of family and friends abroad act as

support and facilitate the decision to leave the country.

27 CABELLA, Wanda. PELLEGRINO, Adela. Emigración. En Importante pero Urgente. Políticas de población en

Uruguay. 2007. Montevideo. UNFPA – Rumbos

28 In Migración uruguaya: un enfoque antropológico. 2007. UDELAR

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expectancy stands at 75.72 years for the total population (72.12 for men and 79.52 for

women). If we take the definition of population replacement as "the ability of a

population to replace itself through the numerical replacement of women, the future

procreators"29, and if it corresponds to a total fertility rate above 2.1 children per

woman, we conclude that Uruguay has been under this capacity for at least the past 3

years. The decline in fertility and the ageing population is a global issue that applies to

Latin America. The difference is that it is still a relatively new phenomenon in this

continent, which started to be noticed in the 1970s, when Uruguay had already been

experiencing it for two decades. The data indicate that in the 1950s, when the TFR was

5.930

However, the golden age has gone, and the general trend in the continent, to which

Uruguay was no stranger, of resorting to an economic policy based on import

substitution in an attempt to industrialize a country that did not have the resources

(material or human) required for it, provoked a crisis that deepened political problems,

enabling a dictatorship that left the country impoverished and in debt in just over a

decade. Since then, the total fertility rate remained relatively stable between 1985 and

1996, above 2.4 children per woman. But the scenario was different, disparities and

inequalities among the population had worsened, poverty rates had increased and

births were very different depending on sector of the population that was taken into

account.

in Latin America and the Caribbean, in Uruguay and Europe it stood at 2.7. This

exceptional performance of Uruguay is linked to its own historical process. The level of

social and economic development in the first half of the twentieth century made the

country adopt early reproductive behaviour that generalized the small family model. At

a time when the country was doing well and poverty levels were still low, this

phenomenon did not catch anyone’s attention (perhaps it was even considered to be

advanced) and was perceived as being in line with developed countries in Western

Europe. It must be emphasized that, in historical terms, the demographic issue in

general was never part of any government’s policy, neither general nor specific, as it

was never considered or expected that it could be a problem.

Thus, in this period, it can be said that the low fertility in the richest quintile of the

population was offset by rising teen pregnancy (whose maternity peaked in 1997 at

74.2 ‰ in women between 15 and 19 years of age31

The ageing of the population, given the high life expectancy in the country and the low

fertility and population growth, coupled with high emigration rates, mean that we are

facing a problem that cries out for governmental urgent action, especially in regard to

emigration.

) and the number of children per

woman in the poorest quintiles. From there on, the TFR falls again gradually reaching

the below the population replacement rate milestone in 2004. This continuous decline is

explained by two phenomena: on the one hand, despite the increase in teen pregnancy,

the number of children fell (specifically from the third son onwards) per woman in the

poorest quintiles and, on the other hand, the high emigration in the ages who

reproduce the most.

29 Definition advanced by Varela Petito in his article Fecundidad, in Importante pero Urgente. 2007.

30 Data from CEPAL (www.cepal.org)

31 Data taken from Varela Petito in Fecundidad, after statistics of the Ministry of Public Health.

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Although the State facilitated the return of those who, as a result of the 2009 crisis,

lost their jobs in Europe or, due to their social situation, decided to return, this does not

change the situation described above, as the country continues to provide few

opportunities for qualified young people and the technological developments that can

bring new challenges are not being implemented. Rather conservatively, the country

rejects them for fear of changes, which is typical of an idiosyncrasy that has been

anchored in the 1950s and the success which represented the Maracaná.

Births are few and almost half of them occur in the poorest sectors of society, with

repercussions in education, which although still good in terms of access to early

childhood education (3-5 years), has high rates of grade repetition and dropout, and

very high dropout rates in secondary education (among the highest in South America,

according to UNICEF Uruguay). Our demographic indicators also affect health because

it causes diversion of resources to address the needs of the population at the expense

of maternal and child health, although the sexual and reproductive health policies

undertaken by the state since 2000 have been successful to the extent that it has

succeeded in reducing the average number of children in the poorest sectors of society.

V. Conclusions

In a society that historically looked outwards, mainly to Europe, in constant contact

with its Spanish and Italian origins, whose migratory waves did nothing but reinforce

those ties, it does not seem strange that young people, who are also the result of

additional factors such as those described in this work, have as a natural goal to leave

the country and emigrate. On the other hand, "it is a commonplace that in recent

decades the globalisation process has accelerated and that we are witnessing a

revolution in communications. Access to information has led to the homogenization of

aspirations and values, raising expectations of lifestyles and consumption patterns like

the ones present in developed societies. The impossibility of accessing these lifestyles

was an additional stimulus to trigger the emigration potential. It is also true that the

world is connected like one could never have imagined it in the past and that emigrants

can communicate in real time with family and friends. In other words, while facilitating

transfers, the new technologies reinforce the links and sense of belonging to the places

of origin"32

As we have seen, Uruguay suffers from many of the social problems that globalisation

has exposed, for which reason it is perhaps no surprise for the unsuspecting reader of

its history that until the mid-twentieth century, it was out of the parameters in the

Latin American context. The social problems that the country must face arise as a

result of the implementation of misguided policies and excessive dependence on erratic

neighbouring economies, especially from the 1990s onwards with the creation of

MERCOSUR. The high emigration rate and, as a result, the "brain drain", due to the fact

that highly qualified young people are leaving the country, is leaving Uruguay without

human resources capable of replacing the next generation that will retire, turning the

environment into something mediocre, impoverishing the country and creating a

scenario that allows the development of political radicalism and populist movements

that have historically jeopardized the development of the region.

32 Adela Pellegrino in the Prologue of Migración uruguaya: un enfoque antropológico.

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It would appear that a small country like this, which once had a place in the world as

the cutting edge in terms of its social policies and the first to organize a World Cup and

win it twice, could have avoided getting back in the world, but this time to enter the list

of countries worthy of international cooperation for development. However, the

individual idiosyncrasy component of the Uruguayans has facilitated and still accounts

for the path of decline the country has entered, and this fact should not be

underestimated. However, what is important today is that the problems are there and

that the state is delaying addressing them. What is worse, in some cases the state

barely recognizes the necessity to address them. It is clear that beyond the social

problems of poverty, inequality, health, education, etc., whose importance is not

denied here, the demographic problem is the most urgent and important because

without people, without capable young people, no project in the country can have

sustenance.

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ANNEX

Source: Informe sobre migración internacional en base a los datos recogidos en el

módulo migración de la Encuesta Nacional de Hogares Ampliada 2006. UNFPA – PNUD

– INE

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References

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2001 – 2006. Montevideo: PNUD – UNFPA – INE.

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derechos de la infancia y la adolescencia en Uruguay. Montevideo: UNICEF.

Baylis, John (2011). The globalization of world politics. Oxford: Oxford University Press.

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en Uruguay. Montevideo: UNFPA – Rumbos.

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Madrid: Ed. Alianza.

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antropológico. Montevideo: Universidad de la República (UDELAR) - OIM.

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ampliada 2006. Montevideo: UNFPA – PNUD – INE.

Ministerio del Interior. (2007). Evolución de la violencia y la criminalidad en el Uruguay.

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OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 86-99

CYBERSPACE REGULATION: CESURISTS AND TRADITIONALISTS

Lino Santos

lino.santos@cncs.gov.pt

Holder of a Master Degree in Law and Security from the Faculty of Law of Universidade Nova de

Lisboa. Holder of a Bachelor Degree in Systems and Computer Engineering from the University of

Minho. Operations Coordinator at the National Cybersecurity Center (CNCS, Portugal)

Abstract

In the amazing Code and Other Laws of Cyberspace, Professor L. Lessig writes "that

something fundamental has changed" with cyberspace with regard to the state's ability to

enforce the law.

On the one hand, the structure and characteristics of cyberspace pose some difficulties

related to jurisdiction and the choice of applicable law. On the other, it raises questions

about the very concept of sovereignty as we know it.

This paper examines the arguments of those who advocate a regulation of cyberspace on

the edges of state sovereignty or within a new concept of sovereignty and capacity to

enforce the law, and the arguments of those who reject this exceptional treatment of

cyberspace.

Keywords:

Cyberspace; Regulation; Self-regulation; Sovereignty; Utopia

How to cite this article

Santos, Lino (2015). "Cyberspace regulation: cesurist and traditionalists". JANUS.NET e-

journal of International Relations, Vol. 6, N.º 1, May-October 2015. Consulted [online] on

date of last visit, observare.ual.pt/janus.net/en_vol6_n1_art6

Article received on March, 31 2015 and accepted for publication on April, 30 2015

JANUS.NET, e-journal of International Relations

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

CYBERSPACE REGULATION: CESURISTS AND TRADITIONALISTS

Lino Santos

Introduction

There is no doubt that cyberspace has brought about profound changes in the way

citizens, organizations and states relate to each other.

The capillarity of Internet, along with its large geographical coverage in terms of access

and the advent of the personal computer, gave rise to the globalisation of information

and knowledge, creating new spaces for interactivity, sharing and storage of market

products, among which we highlight the leisure and culture immersive virtual

environments (virtual worlds), the product of information technology-mediated social

interactions (social networks), or the place where information is stored and processed

(cloud). This diversity of spaces representing the wealth of cyberspace applications is

the basis of its success and of the rapid growth of its use.

This group of spaces is based on the global communications system – the Internet - to

which information systems and personal electronic devices connect to perform their

function. If not originally created for military purposes but certainly developed to be

used with that objective, the Internet penetrated the academic network in the late

1980s and quickly took over as a means of mass communication in the mid-1990s. In

its military origin, the main concern in the Internet’s design was resilience to partial

failures1

Soon cyberspace was perceived as a space of freedom, a kind of new global Far West

where no state could enforce the law and maintain order. In this context, two opposing

academic trends emerged.

, resulting in a fully distributed physical architecture and management without

any connection with the administrative map of nations.

The first suggests the failure of the legal system to deal with cyberspace and advocates

the creation of new forms of regulation adapted to its specificities.

The second supports a treatment of nonexceptionality regarding cyberspace and argues

that the challenges in its regulation are no different from those posed by other areas

where there are cross-border transactions.

1 One of the requirements asked to the creators of the Internet, then called ARPANET, was to ensure

tolerance to communication failure between military operational bases in a scenario of partial destruction

of their infrastructure. Consisting of a “web” of connections among the various “nodes”, information within

this network should always reach its destination as long as there was a path available to do so, thereby

reducing the criticality of each individual “node” for the global context of communications.

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Cyberspace regulation: cesurists and traditionalists

Lino Santos

This article intends to present and discuss these two currents in the light of

developments since their initial formulation, and ascertain whether there is a trend or

primacy in the use of cyberspace regulatory mechanisms.

Characteristics of cyberspace

Some characteristics of cyberspace architecture pose serious challenges to the

governance of this new medium, as well as to the regulation of the various activities

conducted within in. To begin with, cyberspace dramatically increases the speed and

amount of communications, while reducing or eliminating the gap between institutions,

between individuals or between nations.

Emails or SMS are sent and received almost instantly, photographs, videos and opinion

articles are shared and disseminated globally in near real time, buying a book over the

Internet is now as easy and convenient as to do it in a bookstore. In this context,

cyberspace and the conversion from analog to digital brutally increased the frequency

and the speed of some existing unlawful behaviour. Examples include copyright

infringement, which has always existed but that digital technologies have facilitated and

carried to the extreme.

On the other hand, cyberspace is non-territorial. Unlike natural areas (air, sea, land,

and space) where states, within their capabilities, exercise sovereignty and enforce the

law within a relatively well defined physical territory, in cyberspace that exercise raises

demarcation problems.

In the same vein, B. Posen refers to it as another global common, comparing it to the

sea, air and outer space (Posen, 2014: 64). Therefore, classical concepts such as

"jurisdiction" or "property" - to give just a few examples - become fuzzy when applied

to cyberspace. The provision of online services will hardly ever comply with the legal

framework of all the states where they are available2

Finally, this virtual space ensures some degree of anonymity to those using it, which

again raises difficulties regarding the allocation of acts performed or the identity of the

authors. A Portuguese cybernaut or located in Portuguese territory may use a blog

service in the US to slander another Portuguese citizen. This same Internet user can

play an online game allowed in the country where the server is located but which is

banned in Portugal. He may also remotely practice a profession regulated in Portugal,

but which is not regulated in the country where the service is provided.

, creating difficulties in their

exercise of sovereignty, starting with the very choice of which applicable law to apply -

the law where the service is provided, or the law where the effects are produced?

Cyberspace has also brought about a set of new legal protection objects, expanded the

protection scope of some existing ones, and facilitated the emergence of new illegal

types. Figures such as digital identity, multiple identities, avatar, virtual money, or

Internet domain, and professions such as systems administrator, programmer or

blogger, still do not have rules that grant them rights and responsibilities.

2 J. P. Trachtman states that the big novelty of cyberspace is that “it will lead to more situations in which

the effects will be felt in multiple territories at once” (1998: 569).

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Cyberspace regulation: cesurists and traditionalists

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Similarly, traditional concepts such as privacy had their legal protection range extended

to include, for example, the right to be forgotten3

classified as unlawful in the context of juvenile pornography have started to include

ownership of this sort of material in digital format or merely viewing it.

, and actions

These and other challenges were evaluated at the turn of the century by various

scholars from the field of law. Discussion then allowed identifying two diverging trends

with regard to the regulation of cyberspace.

One must also

refer the need, perceived early, for the legal protection of actual computer systems that

constitute cyberspace to be treated separately in cybercrime law.

The first trend believes that some of the distinctive characteristics of cyberspace are

sufficient to justify the impossibility of using existing legal instruments and jurisdiction,

advocating a new paradigm of cyberspace regulation. Johnson and Post, among others,

share this view, defending cyberspace regulation for Internet users through self-

regulation (1996, 2002). In turn, Lessig advocates regulation through "code" and

cyberspace architecture (1999; in this as in all cases that follow, the translation is

mine).

On the other side there are those who argue that the challenges posed by cyberspace

to the law are not very different from those placed by other technological

developments, and that the transactions carried out within cyberspace are no different

from other transnational transactions conducted by other means. The main supporters

of this view are Goldsmith (1998) and Trachtman (1998), who reject the exceptionality

of cyberspace and defend an evolution within the framework of international law and

through strengthening supranational regulatory instruments.

The academic debate around the topic has led JP Goldsmith to dub "regulation sceptics"

those who, like Johnson and D. D. Post, emphasize the extraordinary nature of

cyberspace and ask for a new regulatory model (1998, pp. 1199). In turn, Post calls

“unexceptionalists” (2002: 1365) those who advocate that the problems posed by

cyberspace to the state's ability to exercise and enforce the law are not that different or

new. Without wishing to sound unkind to the authors, henceforth I shall refer to the

former as “cesurists” and the latter as “traditionalists”.

Taking advantage of the distance in time of this discussion, this paper will begin by

addressing the arguments advanced by "cesurists" and "traditionalists", and then will

analyse the two dominant solutions for a better regulation of cyberspace: self-

regulation and the additional supranational approach.

3 Article 17 of the European Commission’s proposal for the regulation of Personal Data Protection states

that “the data subject has the right to obtain from the controller the erasure of personal data concerning

him”. See Proposal for a European Parliament and Council Regulation on the protection of individuals with

regard to the processing of personal data and on the free movement of such data (general regulation on

data protection), available at http://ec.europa.eu/justice/data-

protection/document/review2012/com_2012_11_pt.pdf, accessed in September 2014.

4 See point f) of Article 20 of Convenção para a Protecção das Crianças contra Exploração Sexual

(Convention for the Protection of Children against Sexual Exploitation), Resolution of Assembleia da

República (Portuguese Parliament) no. 75/2012, of 28 May, stating that “[...] consciously accessing child

pornography through the use of communication and information technologies constitutes a crime”.

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Cesurism vs. Traditionalism

The term "cesurism" - coined by Herminio Martins (Garcia, 2006) is used here as a

reference to a line of reasoning that tends to deal with phenomena as being specific

and unprecedented, somehow renouncing time and history. This is precisely the

thinking of those who, like Johnson and Post, focus their attention on the novelty

cyberspace represents to justify the failure of the current regulation model based on

the law and the break with the past.

The argument of the "cesurists" focuses on the non-territoriality of cyberspace and,

more specifically, on the fact that clear boundaries are a necessary attribute for

effective law enforcement. The relationship between space and law, Johnson argues,

has multiple dimensions. On the one hand, it is the law that allows a state to exercise

sovereignty and control over its territory - a well delimited space recognized by all - as

well citizens to defend themselves from state action. In other words, the border

concept works as the limit within which the state enforces its law, as well as the limit

outside which citizens are safe from state action5. On the other hand, the legal

significance of the effects of an action - or absence of it - is the same within the same

judicial area and, most likely, different between different legal areas.6

Given this relationship between area and law, the "cesurists" argue that the

geographical location within known physical limits – borders - is essential to determine

the set of rights and responsibilities of legal entities, concluding that cyberspace

"radically undermines the relationship between legally significant phenomena and

physical location" (Johnson & Post 1996: 1370).

Conversely, the

legitimacy of the law comes from a state’s citizens direct or indirect participation in

drafting the law, this legitimacy being lost when applied otherwise. Finally, the

preventive effectiveness of the law results from prior knowledge of the law applicable to

the area where we practice relevant acts, or the law where such acts occur (Johnson &

Post, 1996).

Under this assumption, "cesurists" question the competence of any state to enforce law

and justice for acts committed in cyberspace and have reservations about the choice of

applicable law. Johnson and Post envision cyberspace as a single medium7

5 It is through law that a rule of law state governs the freedoms and responsibilities of its citizens and

institutions. The effective enforcement of this regulation is an act of sovereignty.

, as a new

action plan or parallel dimension whose border with our physical world is "made of

screens and passwords" (1996, 1367) where, once inside, there are no other barriers.

Once inside this cyberspace, communicating with the next door neighbour or someone

in the antipodes is exactly the same – actually, there is no concept of antipode within

6 Once again the call for the principles of a rule of law state, where the law must be equal for all. Obviously

this equality applies to all legal objects of that state, since the law can be different between states.

7 M. Libiki suggests that cyberspace is not a single medium but rather a “multiplicity of media – at least

yours, theirs and of the others” (2012: 326). Also L. Strate, in his brilliant article on cyberspace concepts,

proposes the existence of a multitude of cyberspaces centred on the experience of each individual (1999).

It should also be noted that in the ideological framework of a single cyberspace, the concept of “national

cyberspace” commonly used in the various national cybersecurity strategies would not make sense. See

The National Strategy to Secure Cyberspace (2003), available at https://www.us-

cert.gov/sites/default/files/publications/cyberspace_strategy.pdf, accessed in September 2014; or Italy’s

National Strategic Framework for Cyberspace Security (2014), available at

http://www.sicurezzanazionale.gov.it/sisr.nsf/wp-content/uploads/2014/02/italian-national-strategic-

framework-for-cyberspace-security.pdf, accessed in September 2014.

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cyberspace - and the legal framework governing such communication either does not

exist or is difficult to identify .

The case which opposed the International League against Racism and anti-Semitism to

the US giant Yahoo illustrates these difficulties. In 2000, French citizen Marc Knobel, an

activist in the fight against neo-Nazism, found that Yahoo's auction portal was selling

neo-Nazi material. Through the aforementioned NGO, Knobel took Yahoo – a company

based in California - to court for violation of the French law banning Nazi goods

trafficking. The first reaction of one of the co-founders of Yahoo, Jerry Yang, was to

consider that the French court intended to impose a judgment in an area over which it

had no control. Regardless of this opinion, the trial continued, with the defence focusing

its arguments on the technical impossibility of distinguishing what was presented to

Yahoo French customers from what was presented to the other ones. For its part, the

prosecution defended the sovereignty of the French state to defend itself from the sale

of illegal Nazi goods from the United States and to question the reason for the

existence of an exceptional regime for Yahoo and cyberspace. The court ruled that

Yahoo violated French law and ordered the company to take all necessary measures to

dissuade and render impossible French citizens’ access to such contents. Yahoo’s claim

about the technical impossibility of fulfilling the court order, based on the idiosyncrasies

of the Internet architecture, was surpassed after several Internet gurus, including Vint

Cerf, advanced technical solutions that enabled Yahoo to comply with the court order

(Goldsmith & Wu, 2006: 1-10).

In line with Johnson's and Post’s argument regarding the uniqueness of cyberspace,

authority can only be exercised within a territory. These authors questioned the

legitimacy of a nation to regulate activities carried out in another country. They also

argue that international disputes over choice of a legal framework can be solved by

choosing the framework of the location where the unlawful acts are committed. These

assumptions guarantee uniformity, predictability and certainty in the application of

laws, which are values of rule of law. However, the above case suggests otherwise and

supports the views of the "traditionalists".

As opposed to "cesurists", "traditionalists", whose motto could be "nothing new under

the sun"8

, advocate that cyberspace is not an exception. For the "traditionalists",

"transactions in cyberspace are no different from cross-border

transactions occurring in the real space. [...] Both involve people

in real space in one territorial jurisdiction transacting with people

in real space in another territorial jurisdiction" (Goldsmith 1998:

1250).

For J. P. Trachtman, cyberspace is the medium. Conduct still occurs inside a territory,

its authors still reside in a territory, and, most importantly, effects, although more

dispersed than in the past, also continue to be produced in a territory (1998: 568)9

8 Ecclesiastes 1:9 “That which has been, is that which is to be, and that which has been done, is that which

will be done, and there is no new thing under the sun”.

. As

9 Trachtman rejects the “cesurist” view about the states’ reduced sovereignty as a result of cyberspace: “It

is not the state that has died, but the long-moribund theory of absolute territorial sovereignty.” (1998:

562)

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a result, the existing set of principles and traditional legal instruments are able to solve

the problems of choice of law and jurisdiction.

The idea that cyberspace brings nothing new is supported by Goldsmith using the

analogy with other communication and transnational transactions contexts. The author

accepts that the world is changing and that cyberspace is an expression of this change,

but notes that international law has evolved to meet these changes, namely "it is

commonly accepted that [in the absence of consensual international solutions] a nation

regulates the local effects of extraterritorial conduct" (Goldsmith 1998: 1212) and gives

industrial property as an example.

By way of conclusion, the other key idea of the "cesurists" is that the legal difficulties

mentioned above, combined with the technical difficulties posed by the characteristics

of cyberspace, render it impossible for states to regulate it. For Johnson and Post,

cyberspace ''creates a totally new phenomenon that needs to be subject to clear legal

rules, but it cannot be regulated satisfactorily by any sovereignty based on the concept

of territory'' (1996: 1375). The states’ technical and legal inability to exercise their

sovereignty over cyberspace will, initially, lead to the emergence of self-regulating

mechanisms (1996: 1387).

Traditionalists", in turn, argue that the technology exists and that, as demonstrated in

the case involving Yahoo, but also in many cases involving content filtering done for

various reasons, states can exercise their sovereignty and protect citizens from

offensive content or illegal activities (Goldsmith & Wu, 2006: viii). The information

involved in a transaction "appears in a territory, not by magic, but due to hardware and

software action located within that territory" (Goldsmith 1998: 1216), so acting on that

hardware and software makes it possible to perform the regulatory function.

Self-regulation of Cyberspace

This duality of views over a new issue that has not yet been understood in its fullness is

recurrent. Throughout history, the emergence of new technologies has led to stances in

support of their uniqueness and future role in breaking with the past and creating a

better world - instruments of universal peace - as well as to more conservative views

that immediately identify affinities with other past episodes. Armand Mattelart (2000),

in his History of Planetary Utopia, lists a series of historical examples where the

emergence of a new technology has led to the emergence of a liberating hope: the

printing press, the telegraph, the railways, or television.

As already mentioned, "cesurists" are convinced that cyberspace is one of those

liberating technologies. A technology that is sufficiently different from the real world to

prevent regulation of human behaviour in that space from being done through existing

mechanisms10

10 Lessig argues that the regulation of human behaviour is achieved through the convergence of four forces

– four regulators: the law, the market, social norms and, with regard to cyberspace, architecture (1999).

. Lessig argues that "something fundamental has changed" (1999: 126)

to support his thesis that in cyberspace "code is law", while Johnson and Post argue

that cyberspace belongs to Internet users and therefore "those who have defined and

use online systems have interest in preventing the security of their electronic territory

and in preventing crime" (1996: 1383), setting the mood for self-regulation of

cyberspace.

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The idea that cyberspace dilutes the concept of state sovereignty, and also that

problems in cyberspace should be left to Internet users, fits perfectly the "Internet-

centrism" profile as conceived by E. Morozov (2012). The belief in the liberating effect

of the Internet, mainly in the idea that it all comes down to, and that everything can be

explained or done via the Internet, enables understanding why Johnson and his

supporters defend different rules for cyberspace11

The theses of the "cesurists" are clearly part of an Internet euphoria context and did

not predict the societal changes triggered by the social networks over the past decade

or the concentration of power in the mega corporations in the sector. They fall within

the spirit and ideology of the Internet in its beginning and its users’ wish to keep it free

from regulation and intervention by states or to keep alive the idea that cyberspace

"can hold its promise of profound liberating leverage " (Post, 2000: 1439). This wish

has been expressed by groups like the Electronic Frontier Foundation, and in

manifestos like John Barlow’s (1996) A Declaration of the Independence of Cyberspace.

In this spirit, Johnson and Post point out some practical examples of self-regulation.

The authors suggest that the DNS system – a global system for allocating and

managing Internet naming, coordinated by a non-profit international organization called

ICANN12, was being redesigned in a process of self-regulation to accommodate a set of

safeguards demanded by the "industrial property" (1996: 1388). Nearly twenty years

later, we can evaluate how this process took place. Although DNS management

remains in the hands of Internet users, almost all European countries have liberalized

Internet domain registration rules, putting more pressure on the management of

industrial property rights and creating phenomena such as financial cybersquatting -

financial speculation with the most desirable Internet names. There is actually a self-

regulation system in this area, according to a model of international best practice.

However, this self-regulation proves to be insufficient and resorting to industrial

property law to resolve conflicts is recurrent. However, it should be noted that, as

suggested by Johnson, some countries created specialized arbitration courts13

11 “Internet-centrists like to answer every question about democratic change by first reframing it in terms of

the Internet rather than the context in which change is to occur” (Morozov, 2012: xvi). One of Morozov’s

favourite targets is North American writer Clay Shirky, (2009), who he describes as cyber utopian.

with the

needed know-how to address cyber particularities (1996: 1387). With regard to the

growing number of unsolicited email messages, commonly known as spam, Post gives

another example of self-regulation as a way of resolving concrete cyberspace issues.

Post presents us one of several initiatives to create a reputed centralized database for

email addresses or email servers (Realtime Blackhole List), remotely powered by

volunteers whom he calls activists (2000: 1440) as a good example of self-regulation

or of how the network will operate in the future. This group of volunteers establishes,

together, a set of rules which all participants in cyberspace adhere to. It is indeed a

beautiful ideal, but which history has not confirmed. Firstly, not one but several similar

initiatives have emerged, creating a problem of choice for email services

administrators. Then, the volunteer system has become a constraint in terms of the

12 Internet Corporation for Assigned Names and Numbers. See https://www.icann.org, accessed in

September 2014.

13 In Portugal’s case, the rules for the registration of Internet names includes the possibility of appealing to

a specialized arbitration court See .PT Domain Registration Rules, Chapter VI, available at

http://www.dns.pt/en/domains-2/domain-rules/chapter-vi/, accessed in March 2015.

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quality of service, for which reason it led to the commodification of some of these

services - the current model14

In another perspective of the meaning of self-regulation, Lessig's thesis about the

code's role in cyberspace regulation is ambivalent. On the one hand, it supports the

idea that the production of the standards governing cyberspace lies in its architects and

programmers rather than the state. In this scenario, the regulatory power is both in the

hands of the telecommunications industry and those of the media and Internet

applications industries, which through their products govern and shape behaviours in

cyberspace. By keeping untouched the principles of net neutrality and the non-duty to

watch over the contents transmitted through or stored in their infrastructure, digital

media giants have been introducing in their applications reporting mechanisms for the

removal of offensive content or reputation mechanisms for risk assessment in

commercial transactions between strangers. On the other hand, creating norms also

lies in the hands of ordinary people, who can create a new application and thus produce

standards. In both cases this form of producing standards may conflict with other

regulatory authorities. Good examples of this self-regulation include: Skype, a global

system for voice communications created by two Nordic young people outside the

regulatory framework for telecommunications and which violates criminal law

provisions in various jurisdictions, such as the telephone interception regime; or the

Pretty Good Privacy, an encryption platform developed by Phil Zimmermann, who

infringed, among others, the US law on the export of encryption algorithms. On the

other hand, Lessing’s thesis defines code as the means to comply with the law in a

more effective way:

. Furthermore, other forms of solving the spam problem

have arisen. The market saw the opportunity and cloud giants like AO, Microsoft and

Google created the Sender Policy Framework, Sender ID, or the DKIM - to name only

the most well-known – so the "collective consensus "advocated by Post (2000: 1456)

does not exist, to date. In short, as far as the treatment of spam is concerned, we can

say that we suffer from "too much" self-regulation.

"code displaces law by codifying the rules, making them more

efficient than they were just as rules" (Lessig, 1999: 206).

In other words, the state can take advantage of code to exercise its sovereignty. Just

as companies have codified their business processes, reducing arbitrariness and

employee error, states are beginning to codify some of their functions - particularly

those where interaction with citizens is required - with efficiency gains. The current

model of tax collection in Portugal is an example of this, where codifying traders’

behaviour to issue invoices and codifying taxpayers’ behaviour for completing their tax

returns constitutes the very law, with the term "statement" starting not to make sense.

In the opposite direction of self-regulation, cyberspace architecture also created a set

of opportunities for the control and surveillance of society. Authoritarian states were

the first to realize this possibility15

14 The business model of many of these RLBs involves charging a fee for removing entries from the list.

, but quickly passive surveillance, indiscriminate

15 Perhaps the most obvious example of this control is the Great Firewall of China, which is a technological

infrastructure allegedly able of monitoring and selectively blocking communications and content within

Chinese cyberspace and between the latter and the rest of the world, a kind of virtual censorship “blue

pencil” operating in real time.

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collection of metadata and the concept of big data in supporting the functions of

sovereignty attracted supporters all over the world. States have realized that for better

control of cyberspace - theirs and of others, as MC Libiki (2012) put it - the major

Internet industry companies can play a key role, whether in the architecture of

information flows’ topology or in the design of the service’s specific functions. To give

just one example, the physical location of the Google global search engine is

geopolitically relevant. This strategic interest thickens up when we talk about

information storage. For example, in the dispute between Google and the government

of the PRC in 2010, the latter saw the former as a component of American power

(Klimburg 2011: 52).

Disaggregated sovereignty

Aware of the limits of the cyberspace self-regulation process, several authors suggest

that traditional regulatory mechanisms should be complemented by a supranational

approach to more complex problems. In a more traditionalist perspective – the one that

does not advocate an exceptional regime for cyberspace – sharing power with other

institutions to better meet the various challenges of global governance, not just those

posed by cyberspace, is commonly accepted. The best known examples of this network

governance are the various institutions of the United Nations, such as the World Health

Organization or the World Trade Organization.

These response structures to contemporary problems of transnational governance have

been theorized, among others, by WH Reinicke, who named them "global public policy

networks" (1999) or by A.M. Slaughter, who called them "disaggregated sovereignty"

(2009). The objectives of these networks fall within the concept of soft-power and

determine the transposition of the concept of sovereignty centred on the administration

of the territory into a combination of powers established in the states and supranational

decentralized mechanisms for coordination among them. These mechanisms are based

on structures that bring together the stakeholders – from the government, the

economy and also from the civil society - to take advantage of the benefits of networks

in knowledge management, to share information and ideas and to coordinate policies

among themselves without the negotiated formal nature of a treaty (Mueller, 2010:

40). These forms of government coincide with the concept of multi-stakeholder

approach advocated, for example, in the Internet Governance Forum, or in the various

working groups of the European Union.

Supporters of this approach do not see it as a loss of state sovereignty, but as

inevitable for solving global problems. As Slaughter states,

“however paradoxical it sounds, the measure of a state’s capacity

to act as an independent unit within the international system – the

condition and objective of sovereignty – depends on the breadth

and depth of its links to other states” (2009: 268).

Cyberspace’s regulatory problems are no exception to this rule. As stated by JS Nye Jr.

(2010: 3),

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"cyberspace will not replace geographical space and will not

abolish state sovereignty, but the diffusion of power in cyberspace

will coexist and greatly complicate what it means to exercise

power along each of these dimensions”.

In this regard, various authors advocate a global solution to a global problem. HH

Perritt Jr. suggests that

"taking into account the potential of [cyberspace] requires an

evolution of international public and private institutions so that the

rules for responsibility assignment can be enforced effectively,

even in relation to conduct that cannot be located territorially in a

particular state" (1996: 113).

Trachtman also insists that "it is worth devising a stronger institutional solution" (1998:

569) for the regulation of cyberspace.

One area where this disaggregated sovereignty has been producing effects is in fight

against cybercrime. The need for a transnational approach to the challenges posed by

crime in computer networks was perceived very early. In 1990 the United Nations

General Assembly adopted its first resolution on the need to develop international

cooperation forms and instruments for combating cybercrime16

Again within the United Nations, the 11th Congress on Prevention and Criminal Justice

held in 2005 produced a declaration expressing the need for legislative harmonization

in the fight against cybercrime

This objective was attained in 2004 at the meeting of the G8 Ministers of Interior held

in Washington, which produced an action plan to combat high-tech crime, encouraging

all countries to adopt the Convention on Cybercrime of the Council of Europe, 2001

This Convention is often referred to as the first international working document

resulting from deep reflection on the subject (Verdelho et al., 2003). One of its main

objectives is to harmonize the various national laws concerning crimes committed

16 Resolution A/RES/45/121, Eighth United Nations Congress on the Prevention of Crime and the Treatment

of Offenders, available at http://www.un.org/documents/ga/res/45/a45r121.htm, accessed in May 2014.

This resolution resulted in a guide on the prevention and control of computer-related crimes. See United

Nations Manual on the Prevention of Computer-related Crime, available at

http://www.uncjin.org/Documents/irpc4344.pdf, accessed in May 2014. In 2000, the same Congress

adopted a new resolution on fighting the criminal use of information technologies, reinforcing the need for

member states to ensure that legal systems did not create free zones for the exercise of this type of

criminal activity and calling for increased transnational criminal and legal cooperation. See Resolution

A/RES/55/63, Combating the criminal misuse of information technologies, available at

http://www.unodc.org/pdf/crime/a_res_55/res5563e.pdf, accessed in May 2014.

17 See Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice, “Bangkok

Declaration”, available at http://www.unodc.org/p df/crime/congress11/BangkokDeclaration.pdf, accessed

in May 2009.

18 Full text available at http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm, accessed in May 2009.

For a summary on the origin and objectives of the Convention on Cybercrime, see

http://conventions.coe.int/Treaty/en/Summaries/Html/185.htm, accessed in May 2014.

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against computer networks or content crimes in computer networks. In addition to the

criminal law, the Convention also aimed at a more effective transnational cooperation,

contributing to that effect with a set of criminal procedural law institutes and the

creation of instruments for transnational judicial cooperation.

Also in the context of the United Nations, some unsuccessful attempts were made to

conclude an agreement to limit the use of cyber weapons by a state. Due to distrust in

the efficacy of such an agreement, in particular regarding the possibility of checking it,

or simply because there is no strategic advantage for the US, this country has

consistently rejected this agreement (Clark & Knake, 2010: 219-225).

In the same direction and in response to the growing centrality of cyberspace in

terrorist activities, either as an instrument or as a potential target, the European Union

is about to adopt measures to better control and monitor jihadist activities on the

Internet. Among these, the creation of a special unit within Europol stands out, with a

view to monitoring the Internet and strengthening public-private cooperation with

social media major giants such as Facebook or Twitter, to ensure the effectiveness of

such monitoring19

Another example of disaggregated sovereignty for better regulation of cyberspace will

arise with the new EU directive on network and information security which, predictably,

will also be approved in 2015. The draft directive

includes the creation of fora to

share information and best practices, to combine efforts in response to cyber security

incidents and strengthen the relationship between national cybersecurity authorities, in

a multi-stakeholder approach.

Conclusions

Repeatedly, the emergence of a new technology has originated stances in support of its

exceptionality and break with the past. As suggested by Trachtman,

"perhaps because the technology is so exhilarating, there is a

tendency to claim that the changes we do observe in sovereignty,

the state, jurisdiction, and law all are caused by cyberspace"

(1998: 561).

The same had happened with the advent of the telephone, the telegraph and radio.

Much of the difficulties in regulation and law enforcement in cyberspace are due to

profound changes in society - catalysed by that very same cyberspace - such as the

deepening of globalization and the consequent increase in cross-border transactions or

the speed of technological development. On the other hand, cyberspace has distinct

and ambivalent features that pose great challenges to states in terms of its regulation,

19 See EU proposes terror unit to tackle online jihadism, Financial Times, 11 March 2015, available at

http://www.ft.com/intl/cms/s/0/4d93b7f0-c804-11e4-9226-00144feab7de.html, accessed in March 2015.

20 See COM(2013) 48 final, Proposal for a Directive of the European Parliament and of the Council

concerning measures to ensure a high common level of network and information security across the

Union, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0048:FIN:PT:PDF,

accessed in September 2014.

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but also opportunities for greater surveillance of society. Therefore, we are not faced

with an exceptional problem, but rather with a libertarian, economic and political

opportunity for the various stakeholders involved.

After almost twenty years after the work of Johnson and Post, Law and borders: the

rise of law in cyberspace, the path set for its regulation is not absolutely clear.

Depending on the interests of each state (economic or security) we have situations

where greater self-regulation (economic interest) prevails and others where there is

growing surveillance and control of society (security interest), resulting in the

fragmentation cyberspace into cyberspaces.

We can also say that under these two trends, cyber-utopianism is exactly that: utopia.

"It's too easy to argue that the regulation of cyberspace belongs to

the cyberspace society." (Trachtman 1998: 568)

The two approaches examined here - self-regulation and disaggregated sovereignty -

coexist and most likely will continue to coexist. As stated in the chapter on guiding

principles of the 2011 Dutch Cybersecurity Strategy: "Self-regulation if possible,

legislation and regulation if necessary”21

Finally, and considering the difficulties discussed here for a state to carry out, per se,

this regulation, we observe the emergence of transnational governance networks and

the strengthening of their role on the political agenda. The concept of absolute

sovereignty centred on the administration of the territory is becoming diluted and

global issues are addressed in these transnational structures. A global approach to

global problems is required.

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OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 100-115

ENERGY ON THE PUBLIC AGENDA:

CHANGES IN BOLIVIA WITH IMPACT ON ADJOINING COUNTRIES

Natalia Ceppi

natalia.ceppi@fcpolit.unr.edu.ar

Ph.D in International Relations. National University of Rosario, Argentina (UNR). CONICET

researcher. Lecturer of the Consular and Diplomatic Law subject in the Bachelor Degree in

International Relations (UNR).

Abstract

This paper focuses on the rise of the energy issue in the relations of Bolivia with Argentina

and Brazil during the first decade of the twenty first century from a comparative viewpoint.

In this context, the nationalization of Bolivian hydrocarbons decreed by Evo Morales on 1

May 2006 became a central point of the analysis in that it became a target and a political

tool of the Movement for Socialism party (MAS). It proposes to investigate, on the one

hand, the actions derived from this Decree within Bolivia and, on the other, the similarities

and differences that have arisen in the negotiation processes and their results in the

Argentine-Bolivian and Bolivian-Brazilian ties.

Keywords:

Argentina; Bolivia; Brazil;Hydrocarbons; Agreements

How to cite this article

Ceppi, Natalia (2015). "Energy on the public agenda: changes in Bolivia with impact on

adjoining countries". JANUS.NET e-journal of International Relations, Vol. 6, N.º 1, May-

October 2015. Consulted [online] on date of last visit,

observare.ual.pt/janus.net/en_vol6_n1_art7

Article received on December, 1 2014 and accepted for publication on April, 23 2015

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Energy on the public agenda: changes in Bolivia with impact on adjoining countries

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101

ENERGY ON THE PUBLIC AGENDA:

CHANGES IN BOLIVIA WITH IMPACT ON ADJOINING COUNTRIES

Natalia Ceppi

Introduction

On 18 December 2005, Bolivian society went to the polls in a context marked by

uncertainty, the advancement of social movements that questioned the prevailing

economic and political model and the constant tension between continuity and change

that is characteristic of all presidential elections. In this race, Evo Morales, leader of the

Movement for Socialism (MAS), won against seven other political forces with 53.74% of

the votes, leaving behind the system of government coalitions that had characterized

democracy for more than two decades1

This absolute majority victory was a significant sign that much of the population

welcomed a government programme that was highly critical of the neoliberal period,

excluding the state from controlling the production system and the lack of care paid to

social demands, whose triggering axes were poverty and inequality (Government

Programme MAS-IPSP, 2005). Unlike the proposals of the traditional political parties,

the MAS project focused on revaluing the role of the state, seeing it not only as a major

player in the process of 'rupture' with the past but also as the main driver of a more

distributive and inclusive socio-economic model. In order to fulfil this commitment,

100 days after his stay in power, Morales decreed the nationalization of Bolivian

hydrocarbons through the stock recovery of the Yacimientos Petrolíferos Fiscales

Bolivianos (YPFB), a company that, one behalf of the state, was responsible for the

entire national energy chain for decades

The nationalization of hydrocarbons was not a measure taken at random. Quite the

opposite, Decree 28.701 "Heroes of Chaco" is part of the social demands that hatched

in the Gas War - October 2003 - and one of the priorities of the MAS political

programme, namely to gain control of a sector that is strategic within a poorly

diversified economy so that income could be allocated to the country’s economic and

social development (MAS-IPSP Programme, 2005: 14). Due to the fact that Bolivia's

1 Apart from the MAS, the political parties contesting the elections were: Nueva Fuerza Republicana (NFR),

Unión Social de los Trabajadores (USTB), Unidad Nacional (UN), Movimiento Indígena Pachakuti (MIP),

Movimiento Nacionalista Revolucionario (MNR), Frente Patriótico Agropecuario de Bolivia (FREPAB) and

Poder Democrático y Social (PODEMOS).

2 This company was created in 1936. According to Gordon & Luoma, an issue inherited from the Chaco War

– a conflict of the first half of the 1930s that opposed Bolivia to Paraguay- was “understanding the

importance of the role of the state in the development of the country’s hydrocarbon resources, of which

85% are now in the Chaco region” (2008: 92). With the founding of the YPFB belief in the economic and

symbolic significance of the energy resources under state control was reaffirmed.

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hydrocarbon production has historically focused on feeding external trade, the

nationalization was a turning point in the connection with transnational corporations

involved in the exploitation of energy and adjoining states such as Argentina and Brazil,

whose consumption is supplied largely by Bolivia.

Based on the above, this paper starts from the idea that at a time of high international

prices on commodities, including energy, as was the first decade of the twenty firs

century3

, Evo Morales sought to comply with a dual aim through the nationalization of

hydrocarbons: to increase the weight of the state in the sector, particularly in terms of

tax collection, and plan different social policies to address the needs of the poorest and

most vulnerable population groups. Thus, control of the national energy industry

became the driving force for consolidating the political project of MAS at home, while in

the external agenda it revitalized the role of the YPFB in existing energy contracts.

Accordingly, this paper intends to unravel a series of questions that are intrinsically

related: What are the most significant aspects in the nationalization of Bolivian

hydrocarbons? How will this decision impact on the Argentine-Bolivian and Bolivian-

Brazilian ties? And in connection with the previous point, what were the key similarities

and differences in the negotiations undertaken by Argentina and Brazil?

The nationalization of hydrocarbons: politics & energy, a complex

binomial

The report of the World Trade Organization (WTO) in 2010 dedicated a special section

to the trade of natural resources. It describes natural resources as "stocks of materials

that exist in the natural environment that are both scarce and economically useful in

production or consumption, either in their raw state or after a minimal amount of

processing” (Report WTO, 2010: 5). This definition suggests the strategic feature of

nature’s goods in general, especially when it comes to energy resources. Within the

group of non-renewable products, natural gas is considered to be the fuel of the twenty

first century in that it has a number of positive factors, such as positive global indices

in levels of reserves/production; it is cleaner than coal and other petroleum-based

products; it has an efficient combustion in the generation of electricity and its use is

very important in the production of basic petrochemicals, among others (Ríos Roca,

2013: 16-18).

Compared to other regions of the world, natural gas reserves in Latin America and the

Caribbean are not significant since they represent only 3.8% of world reserves.

However, this figure takes another meaning when evaluating the actions of

governments in the sector. As advanced by Linkohr, Latin America is one of the regions

where power and politics have a special connection. This does not mean ignoring the

existence of this relationship in other parts of the world, but it must be stressed that in

the case of Latin American countries, energy is significant when it comes to politics

(2006: 90-91). This argument can be clearly seen in Bolivia where, after the collapse of

the tin industry in 1985, "gas became the most important natural resource of the

country" (Gordon & Luoma, 2008: 89) and therefore the main source of government

3 On this matter see the research conducted by Acquatella, et. al. (2013), Rentas de recursos naturales no

renovables en América Latina y el Caribe: evolución y participación estatal, 1990-2010 for the seminar

CEPAL Gobernanza de los recursos naturales en América Latina y el Caribe: desafíos de política pública,

manejo de rentas y desarrollo inclusivo.

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revenue. As expected, thereafter the exploitation of hydrocarbons has been central,

with varying connotations, when making decisions on political and economic matters.

As happened with its neighbours, Bolivia was not without its own neoliberal wave in the

nineties and YPFB was one of the first public companies to be in the hands of foreign

operators during the first presidency of Gonzalo Sanchez de Lozada (1993-1997).

According to Campodonico, Bolivia, together with Argentina and Peru, became leaders

on the privatization of their energy industry in South America. While recognizing that

each country had specific features, their respective governments reformed the legal

framework to encourage foreign investment in the upstream and downstream sector

(2007: 40-42)4

The YPFB trans-nationalization was made possible by Capitalization Law 1544 of 1994

and the 1689 Hydrocarbons Law of 1996, which laid the legal basis for going from "a

state vision of the oil and gas economy, which was in force for 60 years, to one of total

privatization" (Villegas Quiroga, 2004a: 74). The capitalization of YPFB resulted in three

operating units established as joint stock companies: Chaco and Andina - responsible

for exploration and production- and Transredes, which brought together the transport

capacity. Therefore YPFB, an emblematic company for Bolivian society, went through a

process of dismemberment that limited its action to the provision of hydrocarbon to

export markets (Villegas Quiroga, 2004a: 76). It should also be added that its

capitalization - justified in the pursuit of economic growth and welfare of the population

- had no positive impact on national socio-economic indicators. On the contrary,

statistics show that from an overall perspective, the policy of openness and economic

liberalization had favoured the construction of a poorer and more unequal society

(Nogales Iturri, 2008). At the end of 2005, i.e., coincident with the first electoral

triumph of Evo Morales, moderate poverty reached 60.6% of the population; extreme

poverty affected 38.2% and the Gini coefficient was 0.60 (UDAPE, Statistical

Information: s/f). These data are similar to the information provided by the Economic

Commission for Latin America and the Caribbean (ECLAC). After two decades of

neoliberalism, in 2004 63.9% of Bolivian society was mired in poverty, which was much

higher in rural areas, affecting 80.6% of the population. Nationally, indigence stood at

34.7% and in rural areas it emulated the behaviour of poverty, that is, had higher rates

(58.8 of the total population). As for inequality, the statistics showed a Gini coefficient

of 0.56 for the same year

. Furthermore, Sanchez Albavera & Altomonte argue that the energy

reforms carried out in Latin American countries during this period were 'similar' in their

origins and motivations. There was widespread belief that the state-led management

model was agonizing - many state enterprises were in a serious financial situation due

to the debt crisis of the eighties - and that the supply and demand game would make

the industry efficient (1997: 29).

These indicators show that the privatization of the energy industry focused on

strengthening hydrocarbon production for the foreign market without income from

commercialization, or at least most of it, being reinvested in the country. Under the

slogan that repositioning the state against transnational energy traders was a 'historical

4 Among the most important general reforms, the following stand out: reducing the percentage of royalties

to be paid by the multinationals, the relaxation of investment conditions, the no obligation to share the

findings with the state, and the liberalization of the fuel market.

5 These data correspond to the CEPAL Database and Statisticla Publications (CEPALSTAT), where statistics

and indicators per country can be consulted interactively. Available at:

http://estadisticas.cepal.org/cepalstat/WEB_CEPALSTAT/Portada.asp. Accessed on 17/04/2015.

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imperative', on 1 May 2006 Evo Morales, accompanied by ministry officials and

representatives of social movements - and a large deployment of the Armed Forces in

the San Alberto field in Tarija - decreed the nationalization of hydrocarbons, stating:

“The much awaited day has come, a historical day for Bolivia to

resume absolute control of our natural resources […] No more

looting by international oil companies” (Clarín: 02/05/2006).

From the overall analysis of Decree 28.701 "Héroes del Chaco", the following

considerations emerge: First, its most salient provisions are aimed at laying the

groundwork for YPFB, which from now on will be acting on behalf of the state – to have

a higher manoeuvrable capacity, offsetting the place of foreign companies in both the

upstream and the downstream sector. To this end, at least 51% of the shares of the

companies resulting from the process of trans-nationalization of the nineties (Decree

28,701: 01/05/2006) was recovered. In practical terms, this was achieved by paying

compensation – either by agreement or request - to companies affected by the

measure.

Secondly, as a sign that Morales’ nationalization did not exclude the participation of

foreign investment, energy operators were given 180 days to comply with the

provisions of the Decree and sign new contracts, otherwise they would be barred from

continuing the activity. Accordingly, international agents should respect the

requirement mentioned above and comply with Hydrocarbons Law 3058 that was

passed during the brief tenure of Carlos Mesa Gisbert (2003-2005) following the

resignation of Sanchez de Lozada. That law had ensured a higher percentage of

revenues from the sector than Hydrocarbons Law 1689 (1996). While the latter

reduced taxes for transnational companies from 50% to 18% on royalties and

participations (Gandarillas Gonzales, 2008: 72), Law 3058 set again this percentage,

i.e. 50% of the value of production as a result of the sum of 18% of royalties and of

32% of the Direct Tax on Hydrocarbons (IDH). The IDH is of great importance in

economic and socio-political terms because income is shared among producing

departments, non-producing ones and the General Treasury of the Nation. The

government allocates the balance to municipalities, universities, the Indigenous Fund,

and the Armed Forces, among others (Law 3058: 17/05/2005)6

The 44 signed contracts had in common the fact that YPFB ensures a levy of 50% of

production value and retains ownership of the deposits and production at control point.

Foreign companies continue to be part of the exploitation of gas fields as 'remunerated

contractors' due to YPFB’s inability to conduct proprietary trading (Zaratti, 2013). The

companies assume the costs of activities as well as risks, but benefit from the clause

'recoverable costs', which cover items such as staff costs, materials, transportation,

depreciation of fixed assets, insurance, and foreign exchange differences, among

others. These costs vary according to the contract and are percentages that YPFB

6 It must be added that during the transition period – up to the signing of contracts between YPFB and

international companies – energy operators must also pay 32% of the value of production for the

additional participation of YPFB in the fields. In 2005, the certified production of natural gas was over 100

million cubic feet per day (article 4 Decree 28.701).

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reimburses to transnational operators (Medinaceli Monroy, 2010: 26). In the words of

Molero Simarro et. al., existing contracts

"rarely pose a risky scenario for foreign companies [because] they

continue to exploit the concessions on deposits with proven and

probable reserves they already knew about, and also with markets

assured by the state" (2012: 167).

Thirdly, the writing of the Decree shows that the nationalization of hydrocarbons was a

goal in itself but also a tool to make viable a set of decisions and actions that are part

of MAS’ government programme. If, as Linkohr argues, in Latin American countries the

control of energy resources enables political actions, this nationalization largely

confirms that assertion. It suffices to see the areas the government has allocated the

bulk of the revenue derived from the external gas trade.

Since 2007, fiscal resources have grown significantly thanks to a higher tax burden -

Decree Law 28.701 and Law 3058 - and a favourable international context in energy

prices, with the exception of 2009 due to the impact of the global financial crisis. In the

period 2007-2013, oil revenues nearly quadrupled from US $ 1,533 million to US $

5.5856 billion (YPFB Special Report: 06/08/2013). This had a direct impact on the

evolution of the annual Gross Domestic Product (GDP), which in the same period rose

from 4.56% to 6.78%, experiencing a slight decrease in 2009 (INE, Press Release,

04.23.2014).

This situation of greater economic well-being has allowed the Morales administration to

deploy a set of social policies designed to alleviate poverty, inequality and shortcomings

in the areas of health and education that are financed from the central government

through resources from the General Treasury of the Nation and the IDH (Morales,

2010). Social policies are tools that governments implement "to regulate and

supplement market institutions and social structures" (Ortiz, 2007: 6). While not new

to this century, what indeed has changed is the design and the purposes that they

pursue. Unlike the eighties and nineties when social policies had a purely charitable

nature and sought to cover market failures, at present Latin American countries see

them as part of the primary functions of the state because they bring economic growth

to population groups who do not automatically benefit (Ortiz, 2007: 9).

Within these policies, the conditional cash transfer (TEC) programmes stand out, which

are aimed at the poorest populations, where the benefits and conditions - the

requirements to be met by the recipients - vary according to politics and country

(Sauma, 2007: 5). Other policies must be added to this set, such as social pensions

and labour inclusion and production programmes. The most important fostered by the

MAS include the Juancito Pinto and Juana Azurduy Bonuses, the Universal Old Age

Pension or Dignity Pension, the Zero Malnutrition Programme, and My First Decent

Job.7

7 Reference to these programmes is merely illustrative of the mentioned social policies. This does not mean

ignoring the existence of other programmes that also seek to address issues related to poverty and

vulnerability. Examples include the literacy programme Yo sí Puedo (Yes I Can), the professionalisation of

Their main differences, however, are the social protection strategies they pursue

and the purpose behind the regulation. The following table summarizes these aspects:

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Figure I: Social Policies

Social

Programmes

Recipients

Strategies to adopt

Purpose of the

regulation

Juancito Pinto

Bonus

Children and

Adolescents

Building human

capabilities

Education: encourage

school enrolment and

retention

Juana Azurduy

Bonus

Mothers and children

up two years of age



Health: reducing

maternal and child

mortality

Zero

Malnutrition

Families with minors 

Nutrition: fighting

hunger and poverty

Dignity

Pension

Bolivians over 60 who

receive or not an

income from the social

security system

Increasing and

improving income Long-

term social

security: expanding

social protection

My First

Decent Job

Young people from

urban and suburban

areas with low income

Building human

capabilities

Labour inclusion: to

facilitate insertion and

expand the number

of jobs

Source: Own calculations based on data from Morales (2010); Plurinational State of Bolivia -

Ministry of Planning and Development-UDAPE (2011).

It should be emphasized that programmes in Bolivia are not an isolated event but have

a parallel in multiple policies currently being developed in Latin America and the

Caribbean. Some of them have been in force since the early years of this century and

even since the nineties. Examples include the Previdência Rural Program – Rural

Welfare Programme (1993, Brazil); the Pensión Mínima de Vejez - Old Age Minimum

Pension (2001, Peru); Más Familias en Acción - More Families in Action (2001,

Colombia); Chile Califica - Chile Qualifies (2002, Chile), and Jóvenes con Oportunidades

- Youth with Opportunities (2003, Mexico)8

When analysing the results of such social policies in Bolivia, one finds that they are

preliminary in nature but are, at the same time, associated with reducing poverty and

inequality. The latest official data from the Analysis of Social and Economic Policy

(UDAPE), which provides technical assistance to the government – indicate that in the

2005-2011 period, moderate poverty increased from 60.6% to 45% and extreme

poverty dropped from 38.2% to 20.9%, the whole Gini coefficient declined from 0.60 to

0.46 (UDAPE, Statistical Information: s/f). The ECLAC statistical information also

reflects an even more significant falling movement. By 2011, the poverty rate was at

36.3% of the population and indigence stood at 18.7%. In turn, the Gini coefficient was

0.47

interim teachers, community incentives, the school breakfast programmes, etc. See “Programas de

Transferencias Condicionadas en Bolivia: Bono Juancito Pinto, Bono Juana Azurduy” (2011). Available at:

http://www.rlc.fao.org/es/prioridades/seguridad/ingreso6/documentos/Presentaciones/Países/BOLIVIA.pd

f. Accessed on 13/11/2014.

8 I recommend consulting the CEPAL database, which contains dozens of social programmes operating in

Latin American and Caribbean countries in the areas of Conditional Transfers, Social Pensions and Labour

and Productive Inclusion Programmes. Available at http://dds.cepal.org/bdptc/. Accessed on 18/04/2015.

9 CEPAL Database and Statistical Publications (CEPALSTAT). Available at

http://estadisticas.cepal.org/cepalstat/WEB_CEPALSTAT/Portada.asp. Accessed on 17/04/2015.

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In short, the nationalization of hydrocarbons understood as an objective and policy

tool presents positive aspects and questions to resolve. Considering the circumstantial

limitations, the Morales administration undertook the state recovery of YPFB, seeking to

place the state in control of the energy income but without letting go of foreign

investment as guarantor of the exploration and exploitation activities. As mentioned

earlier, the high international prices during the first decade of the twenty first century

and the payment of higher taxes than in the nineties generated growing revenues and

a steady increase in the GDP and FDI, highly concentrated on the oil and gas activity to

the point that in 2012, it accounted for 62.9% of the total FDI that entered the country

(BCB, 2014: 22). This economic boom was useful for MAS’ goals of establishing a more

distributive model. The poverty and inequality levels responded positively to the many

social programmes that have been put into operation. However, they did not directly

solve these problems, especially because the revenues supporting them are volatile.

Integral actions that fall within a national development strategy are required. In

addition, these measures have some shortcomings, particularly the conditional transfer

policies. As programmes with little experience, there are difficulties in implementing

them. There is lack of complementarity and coordination between the actors and the

different levels of government, weaknesses in their monitoring and assessment and

incompatibility between the information systems of the central government and rural

municipalities (Morales, 2010: 6).

On the other hand, this cycle of growth and economic stability following the

nationalization has reaffirmed the country's dependence on the exploitation of energy

without added value. Advances in the industrialization of the sector are still not

significant and there are notorious delays regarding the expansion and modernization

of refineries operating in the country (Zaratti, 2013). These are no minor points if the

government wants to work on a vision of economic development in the long term that

goes beyond an economy anchored in the extractive economy.

Argentina and Brazil: regional partners against nationalization

Nationalization as a political tool was also part of Bolivia’s external agenda. In a country

where the foreign trade of hydrocarbons sets the direction of the economy, the Morales

administration had to use its bargaining power to agree on new rules in the sector

without losing investments or markets. In this context, the governments of Argentina

and Brazil, which are top destinations for Bolivian exports, had to renegotiate the terms

of hydrocarbon imports and exports. This indicates that the energy issue plays an

important role in the relations Bolivia maintains with these two neighbours. However,

its rise in the bilateral agendas and its subsequent treatment had more differences than

similarities.

From March 2004, Argentina’s government began to experience a major energy crisis

that manifested itself in difficulties in domestic supply and problems to meet natural

gas exports to Chile, agreed in the mid-1990s. Faced with this critical situation, the

government of Nestor Kirchner (2003-2007) asked his Bolivian counterpart Carlos Mesa

Gisbert for the temporary secondment of natural gas to mitigate the negative

consequences of the lack of self-sufficiency. On 21 April 2004, the two leaders signed a

purchase and sale agreement in Buenos Aires for an initial volume of 4 MMm3 per day

for a period of six months, which was subsequently renewed twice until 31 December

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2006 for an amount of 7.7 MMm3. On the one hand, this agreement opened a new era

of rapprochement in bilateral relations due to the import and export needs of each of

the actors involved. On the other hand, it was an indication of the errors committed by

the Argentine governments since the nineties in the treatment of energy, considering

that natural gas represents over 50% of the national energy matrix. The purchase of

Bolivian hydrocarbon resurfaced a project that had been launched by the Argentine

government in 2003: the construction of the pipeline in north-eastern Argentina

(GNEA). This infrastructure project was intended to transport Bolivian natural gas to

the provinces in the region that do not have access to it (Federal Agreement for

launching the pipeline in north-eastern Argentina, 24/11/2003). As expected, former

President Gisbert explicitly endorsed the project as it would help increase sales and

thus the country’s tax revenue. However, the marketing of energy in Bolivian-Brazilian

relations today did not ascend unexpectedly and was motivated by a national energy

crisis scenario. Efforts to market natural gas began in the seventies after the first oil

shock, which enhanced the strategic nature of energy in the state agenda, but did not

result in definitive agreements. The arrival of Petrobras in the nineties to San Alberto

and San Antonio mega fields was crucial at the beginning of the export of natural gas to

Brazil, particularly because the company had information about the existence of

reserves to supply the main cities of the country (Villegas Quiroga, 2004a: 89-94). In

1996, YPFB and Petrobras signed two agreements: a natural gas purchase and sale for

a period of 20 years, with a projected daily sending of 30.08 MMm310

Although the contractual motivations were different, namely the crisis in Argentina’s

case and a political decision in the case of Brazil, the 1996 and 2004 agreements

consolidated a clear situation of exporter/importer 'dependency'. This commercial

binomial was evidenced by: a) the role of gas in Bolivian exports to both countries. In

Argentina and Brazil, this hydrocarbon corresponds to over 90% of total imports from

Bolivia; b) Argentine purchases have had a rising trend in less than 24 months, from

794.790 Mm3 2004, and when the agreement was signed to 1,734.946 Mm3 in late

2005 (IAPG, Statistical Information, s/f); c) the percentage of Bolivian natural gas

consumed in Brazilian cities located southeast stands at between 50% and 100%

(Carra, 2008).

and another for

the construction of a bi-national gas pipeline (natural gas purchase and sale contract

between Petrobras and YPFB, 16/08/1996, Villegas Quiroga, 2004b: 41-42). The latter,

whose inauguration was in 1999, connects the Bolivian gas fields with south-eastern

Brazil, from São Paulo to Porto Alegre. The Cuiabá pipeline that feeds a power station

in the State of Mato Grosso derives from this pipe.

Despite the surprise that the announcement of the nationalization caused, the

government of Nestor Kirchner and Lula Da Silva lent it their support. They understood

it as a sovereign decision and in face of it expressed their willingness to renegotiate the

purchase-sale of natural gas under the current legal framework – Law 3058 and Decree

Law 28.701- but seeking to ensure state and corporate commercial interests involved in

the hydrocarbon import. As expressed in the Declaration of Iguazú, "energy integration

[is] essential to regional integration [although] discussion on the price of gas should

take place within a rational and fair framework" (Joint Declaration of the Summit of

Puerto Iguazu, 04/05/2006).

10 Usually known as the Gas Supply Agreement (GSA).

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When Decree 28.701 was announced, Argentina’s energy context was in a quite

unfavourable situation: the domestic consumption of natural gas grew about 12%

between 2003 and 2005 but not the reserves, due to lack of upstream investments.

They fell from 612.291 MMm3 to 438.921 MMm3 in the same period (IAPG, Statistical

Information, s/f). In addition, Argentina had no impact on the phases of the Bolivian

energy industry since hydrocarbon imports were the responsibility of international

companies, especially Repsol, operating in Bolivia, that had participated in the

privatization of Argentina’s state company Yacimientos Petrolíferos Fiscales (YPF)11

For its part, Brazil offered a different picture. For the first five years of the twenty first

century, natural gas played a reduced role in the national energy matrix, of around 9%

(EPE, 2030 National Energy Plan, 2007). The power crisis the country went through in

2001 acted as a trigger and led the Ministry of Mines and Energy to foster the

expansion of the domestic supply of natural gas (De DICCO, Deluchi & Lahoud, 2008,

1-4). To undertake this measure, the Lula administration was counting on the YPFB-

Petrobras contract and in parallel decided to foster exploration and exploitation

activities.

Unlike Argentina, whose reserves fell between 2003 and 2005, Brazil saw a slight

improvement from 245.340 MMm3 to 306.395 MMm3 (ANP, 2013). Thus, in the face of

Bolivia’s nationalization, Brazil showed signs of reduced domestic consumption, rising

reserves and Petrobras's presence in the energy industry of its neighbour. By 2005,

Petrobras was operating 45.9% of total proven and probable gas reserves and

monopolized refining activities after buying the Gualberto Villarroel (Cochabamba) and

Guillermo Elder Bell (Santa Cruz) refineries in 1999 (2004a: 146-147 ; YPFB Technical

Report, 01/01/2005).

The differences in the contexts of Argentina and Brazil meant that the negotiation

processes undertaken by both administrations had their own characteristics. Lacking

influence in Bolivian production and exports, the government of Nestor Kirchner set

about negotiating the price and the quantities of natural gas. As a first step, they

signed a macro agreement with Evo Morales on 29 June 2006 which defined the

contractual relationship until the end of that year and anticipated a future purchase and

sale agreement under Decree 28.701. A value of $5 million per million BTU was

negotiated for the period between 15 July and 31 December 2006, with a commitment

to send 7.7 MMm3 per day. This amount had been agreed in a 2005 addendum12

11 YPF was created in 1922. The privatization process began in 1992 and a few years later the entire stake

was acquired by the Repsol group (Gadano, 2013).

(Framework Agreement between Argentina and Bolivia, 29/06/2006). In that same

meeting, the representatives set as a goal the signing of an agreement with a term of

20 years that predicted the gradual expansion of shipment, namely 7.7 MMm3 per day

from 2007 to 27.7 MMm3 by day between 2010 and the end of the agreement. Such

commitment exposed the need to undertake the construction of the GNEA in the

absence of infrastructure between the two countries to transport the agreed quantities

(Framework Agreement between Argentina and Bolivia, 29/06/2006). The contract

between the two countries was signed on 19 October 2006, with YPFB and Energía

Argentina Sociedad Anónima (ENARSA), which was created by government decision in

12 The price issue was the subject of several meetings, since Evo Morales demanded a price of US$ 6 per

million BTU, which the government of Argentina could not afford.

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December 2004, being responsible for the hydrocarbon purchase and sale (Contract

between ENARSA and YPFB, 19/10/2006).

In the first term of Cristina Fernandez (2007-2011), the ENARSA-YPFB contract had to

be adjusted through an amendment agreed on 26 March 2010 because neither

company could meet its obligations, which prevented the trade link from proceeding

normally. Due to difficulties inherent to the adjustment process after the

nationalization, YPFB sent shipments lower than those agreed in October 2006 (La

Razón, 26/09/2006) and Argentina’s government delayed the start of the bi-national

gas pipeline construction due to lack of funding. Therefore, the administrations of

Fernández and Morales reviewed the weakest points of the agreement: the

transportation capacity and supply and reception volumes. Where did this addendum

lead to? According to existing possibilities, the implementation of a smaller

infrastructure called Juana Azurduy Integration Gas Pipeline was negotiated to expedite

the import of hydrocarbon. The pipeline was inaugurated in 2011 and was designed to

join the GNEA once the Argentine government completes its construction. As a second

step, ENARSA and YPFB officials changed the contracted daily production (CDC) to

gradually add larger volumes of hydrocarbon. According to the addendum, a 27.7

MMm3 CDC per day was predicted as from 2021 (Annex D First addendum to the

ENARSA-YPFB contract, 26/03/2010). These changes have enabled a greater

stabilization in the export of natural gas. The data provided by ENARSA show that as of

the signing of the addendum, the amounts have increased every year from 1851 million

MMm3 in 2010 to 5690 MMm3 in 201313

Negotiations between the governments of Morales and Lula were not expeditious as in

the Argentine case because the continuity of the energy supply to a region of great

economic dynamism - very dependent on gas - and the presence of Petrobras in

Bolivian territory as a transnational operator were at stake. The sensitivity of the issue

caused a reactionary stance on sectors like the company itself, the opposition political

forces and much of society, who demanded the Brazilian State and Petrobras to be

assertive when evaluating the requests of the Morales administration (Neiva Santos

Magalhães, 2009). In particular, the Brazilian Social Democracy Party (PSDB) claimed

vehement action without concessions from the Workers Party (PT), which was also

criticized for its foreign policy performance in general and especially for its attitude

towards the nationalization of Bolivian hydrocarbons.

“[...] It is vital that the authorities of the Federal Government

clarify the consequences of the nationalization of PETROBRAS in

Bolivia [...] The situation is very serious, Mr. President. The

Brazilian government underestimated the crisis and has been

behaving incompetently [...] PETROBRAS is a heritage of Brazil.

We must care for this company" (Feijó -PSDB- Journal of the

House of Representatives, 04/05/2006).

13 ENARSA, Evolution of purchases of natural gas from Bolivia. Available at

http://www.enarsa.com.ar/index.php/es/gasnatural/125-gas-de-bolivia. Accessed on 19/04/2015.

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[...] “The best picture of President Lula’s erratic foreign policy was

the Bolivia episode [...] Lula did not condemn Evo Morales, he

justified the act and accepted the breach of contract" (Alckmin in

PSDB Note, 06/05/2006).

The government was not a supporter of radical statements and opted to favour the use

of diplomacy to negotiate with the government of Bolivia and YPFB executives. The

negotiating process was complex because the aim went beyond the signing of a

purchase and sale agreement as had happened with Argentina. It had the difficult task

of defending the interests and safeguarding the achievements of Petrobras in upstream

and downstream activities of Bolivia. Finally, the agreement between YPFB and

Petrobras was signed on 28 October 2006, a few days before the deadline set by

Decree 28. 701. The MAS argued that after the nationalization, Petrobras and other oil

companies in the country were service providers to YPFB (Los Tiempos, 19/05/2008).

Instead, the board of the Brazilian company argued that the 2006 agreement was more

like a production sharing contract because "according to the contract, company

receives for its share of the sales and additional profit, besides costs. The risk of

additional profit continues to remain with the consortium (formed by Petrobras, Repsol

and Total), which, therefore, has the market risks. Accordingly, it is not a services

provision contract "(Agência Câmara Notícias, 6/12/2006). Other points illustrating the

distance from the ENARSA-YPFB Agreement are: a) the main objective - adjusting the

exploration and production of Petrobras in Bolivia, especially in the San Alberto and San

Antonio fields; b) – the assets belong to Petrobras until the end of the contract-; c)

Petrobras investments are guaranteed and some of these may be considered in the

provision 'recoverable cost '- (Petrobras Agency, 21/11/2006).

The price treatment and the sale of refineries Petrobras had acquired in the late

nineties were negotiated at the beginning of Lula's second term. At the signing of the

Act of Brasilia on 14 February 2007, Petrobras agreed to pay international prices for the

so-called 'rich gas', i.e. hydrocarbon fractions such as propane, butane and natural

gasoline included in the exports of Bolivian hydrocarbon (Act of Brasilia, 14/02/2007).

The price of gas feeding the Cuiaba power station had a rise of US $3 per million BTU.

This sparked criticism from the opposition although the arrangement was positive for

Brazil because it reinforced its status as a ‘strategic partner’ and received a lower

amount than what Morales claimed - US$5 less -, which, in turn, was lower than the

price negotiated by Nestor Kirchner in 2006. The refineries were transferred to YPFB in

June 2007 for the amount of US $ 112 million. Morales publicized the recovery of the

refineries as an achievement of the nationalization. However, the sale was a decision of

the Brazilian company to concentrate its efforts - in terms of investment and resources

-in the phases of exploration and exploitation that allow ensuring the delivery of natural

gas to Brazil (Petrobras Agency, 26/06/2007).

Conclusions

The nationalization of Bolivian hydrocarbons in 2006, as a pillar of the process of

redefining the link state-foreign investment, is a clear example of the synergy between

politics and energy. By repositioning the state in a strategic sector of Bolivia’s

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economy, the MAS has fulfilled a goal that was present since its presidential campaign

and transformed it into a political tool.

The official nature of the act could exert a higher tax pressure on multinationals

operating in the country and a more centralized control of income generated by the

commercialization of energy. Much of that revenue is allocated to the implementation

of several social policies - conditional and non-conditional cash transfers – aimed at

fighting poverty and inequality. The consulted statistics show that these programmes,

by bringing the most vulnerable populations closer to several areas of social protection,

have helped improve socio-economic indicators in general. However, since these

policies are almost exclusively sustained by the export of a non-renewable resource,

the government should be alert to the risks faced in terms of enforcement and/or

continuity, when energy prices on the international stage decline.

In terms of exporter/importer relations, the cases of Argentina and Brazil have more

differences than similarities, being analogous as to the context that led to the rise of

the energy issue in their national agendas, such as the impact of Decree 28.701 and

negotiations and results between their companies and the YPFB. The common elements

were the situation of 'gas dependence' that has been forged over the years and the

confusion following the nationalization regarding the interests at stake. Argentina,

during the energy crisis, had little scope for action. The deficiency in the management

of energy, manifested in the decline of reserves and the absence of a state company to

intervene in the Bolivian gas production, could only ensure the signing of a contract of

purchase and sale, which ENARSA had little chance of exerting pressure before a

possible change in the rules. Despite the aforementioned criticisms, Brazil affirmed its

place as the first partner in the Bolivian trade balance and managed to adjust the

provisions of the nationalization to much of its objectives, since both the sustainability

of hydrocarbon shipments and the interference of Petrobras in the energy industry of

its neighbour could be preserved.

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OBSERVARE

Universidade Autónoma de Lisboa

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp. 116-139

THE “ISLAMIC STATE”: TRAJECTORY AND REACH A YEAR AFTER ITS

SELF-PROCLAMATION AS A “CALIPHATE”

Luís Tomé

ltome@autonoma.pt

Associate Professor at Autonomous University of Lisbon-Department of International Relations

(Portugal). Visiting Professor at the National Defense Institute, the High Command and Staff

College, the Middle East Technical University in Ankara-Turkey and La Sapienza–Universitá di

Roma, Italy. Scientific Coordinator of OBSERVARE – Observatory of Foreign Relations, where he

also coordinates the research group “War, Peace and Security Studies”. His most recent work is

the edited book “Islamic State” – the new global jihadist phenomenon (Media XXI, in press), a

collective book with eight essays and authors from Portugal, Italy and Turkey.

Abstract

On 29 June 2014, the ISIS/ISIL or Daesh announced the change of its name to just "Islamic

State" (IS), proclaimed itself a "Caliphate" and named its leader Abu Bakr al-Baghdadi as

"Caliph Ibrahim". About a year later, this article intends to evaluate the trajectory and reach

of this territorial jihadist entity. It starts by contextualizing the self-proclamation in terms of

ideology and objectives and then it describes how the IS has sought to consolidate itself as

a de facto "State" and the tragic effects of its policy of terror. The last part examines the

international expansion of the IS, analysing its reach in attracting "foreign fighters", the new

wilayats created outside Syria and Iraq, the newly affiliated local groups, and the activities

of the IS in cyberspace.

Keywords:

Islamic State, ISIS, Terrorism, Jihadism, International Security

How to cite this article

Tomé, Luís (2015). "The «Islamic State»: trajectory and reach a year after its self

proclamation as a «Caliphate»". JANUS.NET e-journal of International Relations, Vol. 6, N.º

1, May-October 2015. Consulted [online] on date of last visit,

observare.ual.pt/janus.net/en_vol6_n1_art8

Article received on May, 5 2015 and accepted for publication on May, 28 2015

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Vol. 6, n.º 1 (Maio-Outubro 2015), pp. 116-139

The "Islamic State":trajectory and reach a year after its self-proclamation as a "Caliphate"

Luís Tomé

117

THE “ISLAMIC STATE”: TRAJECTORY AND REACH A YEAR AFTER ITS

SELF-PROCLAMATION AS A “CALIPHATE”

Luís Tomé

Introduction

The origin of the self-proclaimed "Islamic State" dates back to existing jihadist groups

in the 1990s, namely the Bayat al Imam and the Jama'at al-Tawid wa-al-Jihad, both led

by the Jordanian Abu Musab al-Zarqawi1 who, following the invasion of Iraq in 2003,

began to target both the "expulsion of foreign invaders" and to instigate a sectarian

civil war by attacking Shiite and Kurdish communities that started to be predominant in

Iraq in the post-Saddam Hussein era. Around the same time and with similar

motivations, Abu Bakr al-Baghdadi2

In June 2006, Zarqawi was killed by the Americans and the AQI came to be led by

Ayyub al-Masri, former member of the Zawahiri’s Islamic Jihad Group in Egypt.

Meanwhile, in October of that year, some jihadist factions grouped in the Mujahideen

Shura Council created the "Islamic State in Iraq" (ISI), and Abu Bakr al-Baghdadi was

made responsible for the overall supervision of the Shariah Committee, while the

group's leadership was given to another al-Baghdadi, Abu Umar. The ISI was conceived

as an independent group and not as a subsidiary of AQ, which was not even consulted

on the process (Bunzel, 2015:20), with the ISI continuing the sectarian attacks in order

to achieve the goal of having a "pure" Islamic State. In 2010, after the death of al-

Masri and Umar al-Baghdadi by American bombing, Bakr al-Baghdadi took the

leadership of a very fragile ISI (Fishman, 2011) and, like his predecessor, the title of

“Commander of the Faithful”, claiming to be a descendant of the tribe.

, born in 1971 in Samarra in the so-called "Sunni

triangle" north of Baghdad, helped establish another group, the Jamaat Ahl Jaysh al-

Sunnah wal Jamaa. In 2004, while Abu Bakr al-Baghdadi was captured in Fallujah by

the US military and detained in Camp Bucca where he mingled with many other

jihadists, al-Zarqawi expressed fidelity to the "Emir" Osama bin Laden and his group

joined the al-Qaeda (AQ), adopting the name Tanzim al-Qaeda wal Jihad fi Balad al-

Rafidain or, briefly, "al-Qaeda in Iraq" (AQI).

From 2011 onwards, a new combination of factors favoured the prominence of ISI and

Abu Bakr al-Baghdadi:

i) the American withdrawal from Iraq, leaving a fragile country led by Prime Minister

Nouri al-Maliki (May 2006-September 2014), who pursued a pro-Shiite agenda and

1 Or Ahmad Fadeel al Nazal Al Khalayeh.

2 Or Ibrahim Awwad Ibrahim Ali al-Badri or Ibrahim al-Badri al-Qurashi al-Sammarai.

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alienated the Sunni minority, which allowed the ISI to strengthen among Sunni

tribes, former insurgents and also former members of the Baath Party and Iraqi

military and security structures seeking to regain the power they had enjoyed

during the era of Saddam;

ii) Osama bin Laden's death in May 2011, which meant not only the elimination of the

main reference of the jihadist movement but also the weakening of the AQ, leading

to greater autonomy of its affiliate groups and to the rise of local and independent

regional groups (Tomé, 2012);

iii) the “Arab Spring" in North Africa and the Middle East, unleashing huge turbulence

and conflict in most of these countries (Algeria, Tunisia, Libya, Egypt, Lebanon,

Syria, and Yemen), as well as the resurgence of sectarian rivalries and the

expansion of extremist movements;

iv) and, in particular, the civil war in Syria from March 2011, as a result of a challenge

to the regime of President Bashar al-Assad and involving multiple factions (Shiite

militias, real democrats, the moderate and jihadists) and hundreds of groups (more

than 1000 were referenced at some point), in a chaotic stage that quickly became

the largest "magnet" for jihadists from around the world and for complex "power

games" (ranging from Iran and Russia to Arab countries, Turkey, EU or the US ...).

In this context, the ISI

«has reconstituted [itself] as a professional military force capable

of planning, training, resourcing, and executing synchronized and

complex attacks in Iraq» (Lewis, 2013: 7),

announcing, in the beginning of 2012, its “unstoppable return” and launching

increasingly powerful attacks with high media impact: for example, between the

summers of 2012 and 2013, it launched the violent campaign "Breaking the Walls" with

truck bombs, also aiming at several prisons where hundreds of jihadists escaped3

3 Of the eight prisons attacked by the ISI between July 2012 and July 2013, the most high profile case was

Abu Ghraib prison in July 2013, where more than 500 prisoners managed to escape, including many

jihadists.

Meanwhile, in neighbouring Syria, the ISI and the AQ instigated the creation of the "al-

Nusra Front" (Jabhat Al-Nusra /JN) led by the Syrian Abu Mohammad al-Golani (or al-

Julani), a former operational in Iraq sent by Bakr al-Baghdadi to create a "front" in

Syria. As the ISI was again a credible force and taking advantage from the situation in

Syria, Abu Bakr al-Baghdadi decided to expand the ISI to Syria, and, in April 2013,

proclaimed the establishment of the "Islamic State in Iraq and the Levant" or "ash-

Sham" (Dawlah al-Islamiyah fil Iraq wa ash-Sham) and the corresponding merger of JN

in the new ISIL/ISIS/Daesh. Al-Golani refused this manoeuver and Ayman al-Zawahiri,

the successor to bin Laden in al-Qaeda's core leadership, instructed Bakr al-Baghdadi

to limit the ISI’s activities to Iraq. However, al-Baghdadi reiterated that his group

would also remain in al-sham (al-Baghdadi, 2013). After months of theological and

operational disputes, on 2 February 2014 the AQ officially announced its dissociation

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from the ISIS, referring to it as a “group” (Bunzel, 2015: 29), with the ISIS ending up

getting into fratricidal conflict with AQ’s branch in Syria (see Cafarella, 2014).

More than fighting Assad’s regime, the ISIS then concentrated its efforts towards

occupying and administering territories and localities in Syrian Sunni areas (Raqqa,

Idlib, Deir ez-Zor and Aleppo), triggering, in parallel, a similar campaign in Iraq: after

capturing Fallujah and Ramadi in January 2014, the ISIS expanded rapidly and

conquered other bastions like al-Qaim, Tikit and, in early June, the strategic city of

Mosul. On 29 June 2014, the ISIL/ISIS/ Daesh announced the change of its name to

just "Islamic State" (IS), proclaimed itself a "Caliphate" and named its leader Abu Bakr

al-Baghdadi "Caliph Ibrahim". It thus evolved from being a jihadist insurgent terrorist

organization to becoming a politically organized territorial entity in Syria and Iraq.

About a year later, this article aims to evaluate the trajectory and reach of the self-

proclaimed "Islamic State Caliphate". Much more than making a mere quantitative

balance, it crosses information, description and analysis, relying on data as much

updated as possible and essentially using open sources. For greater objectivity and a

better understanding of the IS purposes, the article cites several messages of the IS

itself: after all,

«If one wants to get to know the programme of the [Islamic]

State, its politics, and its legal opinions, one ought to consult its

leaders, its statements, its public addresses, its own sources» (Abu

Muhammad al-Adnani, spokesman for the IS, 21 May 2012, cit. in

Bunzel, 2015: 4).

It starts by contextualizing the self-proclamation of the "Caliphate" in terms of ideology

and objectives of the IS. Then it describes how the IS has sought to consolidate itself

as a de facto "State", including its forms of "governance", territorial administration and

financing, as well as the sources of its military arsenal, the growing number of militants

and " foreign fighters” and the tragic effects of its persistent policy of terror. After

making a brief reference to international efforts to contain and combat the IS, the last

part is mainly dedicated to the international expansion of the IS, ranging from the new

wilayats outside Syria and Iraq to its affiliated local groups, as well as referring to IS

attacks and activities in cyberspace, thus illustrating the current situation of this

jihadist terrorist threat about a year after its self-proclamation as a "Caliphate".

Proclamation of the “Caliphate” – ideology and objectives

Like al-Qaeda (AQ), the ISIS/DAESH/ Islamic State is based on the Salafist-jihadist

ideology (al-salafiyya al-jihadiyya), a puritanical branch of the Wahhabi Sunni Islam

that wants the Islamic community (Umma) to return to “pure” ancestral practices,

making a clear separation between the "true believers" and the "unbelievers"

considered to be "apostates" or "infidels". Refusing theological diversity, the Salafist-

jihadists also base their views on the Takfir doctrine, which sanctions violence against

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other Muslims accused of apostasy, unbelief or unfaithfulness (kafir)4

(Hafez, 2010;

Bunzel, 2014). Viewing themselves as the defenders of the original Islam that the

Prophet Muhammad and his companions preached, and considering that Islam is under

attack by the "infidels", the Salafi-jihadists claim that the use of violence or "holy war"

(jihad) is the only way to fight the enemies and defend the true Islam. The ultimate

goal of the also called "jihadism" is thus the creation of a “pure” Islamic Community in

the form of "Emirate" or even "Caliphate", according to its unique interpretation of the

Prophet Muhammad’s tradition (sunna) and Islamic law (sharia), with "believers" taking

part in the jihad, while the "apostates" and "infidels" must be simply exterminated

(Brachman, 2009; Duarte, 2012; Rabbani, 2014; Bunzel 2015). As clearly stated by a

jihadist prelate:

«We don’t make a distinction between civilians and non-civilians,

innocents and non-innocents. Only between Muslims and

unbelievers. And the life of an unbeliever has no value. It has no

sanctity ... We assume that the objective is to kill as many people

to cause terror ... The Divine Text is clear on the need to cause

"maximum possible damage." The operational must therefore

make sure that he kills as many people as he can kill. Otherwise,

he will burn in hell (...) The secularists say that the "Islam is the

religion of Love." It is true. But Islam is also a religion of War. Of

peace, but also of terrorism. Muhammad said: "I am the Prophet

of mercy." But He also said: "I am the Prophet of the massacre."

The word terrorism is not new among Muslims. Muhammad said

even more: "I am the Prophet who laughs when I’m killing my

enemy." It is therefore not just a matter of killing. It is laughing

when killing». (Omar Bakri Mohammed, 2004: 28-31):

However, ideologically, the IS adopts an even more exclusive view than AQ and other

jihadist groups, being less tolerant of those considered to be "deviant Islamic sects",

particularly Shi'ism:

«Following takfiri doctrine, the Islamic State is committed to

purifying the world by killing vast numbers of people ... Muslim

"apostates" are the most common victims» (Wood, 2015).

In February 2004, in a letter sent from Iraq to the leadership of AQ, Abu Musab al-

Zarqawi harshly attacked Shiism both politically and ideologically, considering the

Shiites

4 The vast majority of leaders, organizations and religious authorities of Islam reject this concept of takfir,

considering it a doctrinal deviation (bid'at) or heresy. Some recent Edicts (fatwa) also condemn and

repudiate the "Takfir doctrine".

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«the proximate, dangerous enemy of the Sunnis…The danger from

the Shi‘a…is greater and their damage worse and more destructive

to the [Islamic] nation than the Americans… targeting and hitting

[the Shi‘a] in [their] religious, political, and military depth will

provoke them to show the Sunnis their rabies and bare the teeth

of the hidden rancour working in their breasts. If we succeed in

dragging them into the arena of sectarian war, it will become

possible to awaken the inattentive Sunnis as they feel imminent

danger and annihilating death at the hands of these Sabeans [i.e.,

Shi‘a].» (al-Zarqawi, 2004).

This vision would become one of the pillars of the ideology of the IS and hence, from its

antecedents in Iraq, IS pursues a strategy aimed at instigating and instrumentalising a

sectarian “holy war" within Islam, primarily between Sunnis and Shiites. In fact, even

before the creation of the Islamic State of Iraq (ISI), al-Qaeda's ambitions and strategy

in Iraq exceeded those of the central structure, directly attacking Shiite and Kurd

Muslims with such a level of violence that central AQ warned its Iraqi branch of the risk

of losing popular support in the country as well as that of the global Islamic

community5

On the other hand, organically, the IS claims, as it has always done, that it is not just a

jihadist organization (tanzim) but literally what its name implies: a real "State" (dawla).

In 2006, an official document of the newly created "Islamic State in Iraq" (ISI) claimed

that:

«This state of Islam has arisen anew to strike down its roots in the

region, as was the religion’s past one of strength and glory» (cit. in

Bunzel, 2014: 2). In the words of Graeme Wood (2015), «bin

Laden viewed his terrorism as a prologue to a caliphate he did not

expect to see in his lifetime. His organization was flexible,

operating as a geographically diffuse network of autonomous cells.

The Islamic State, by contrast, requires territory to remain

legitimate and a top-down structure to rule it».

And a “State” with expansionist ambitions: on 8 April 2013, the renamed ISIL or ISIS

demanded the establishment of an "Islamic State in Iraq and the Levant" or "ash-

Sham", a region that includes Syria but also Jordan, Israel, Palestine and Lebanon, and,

in a broader sense, covers territories in Egypt, Turkey and Cyprus. This announcement

came two days after the leader of AQ-core, Ayman al-Zawahiri, called for the

unification of the jihad in Syria, but between Jabhat Al-Nusra (JN) and other jihadist

groups, and not through the expansion of the ISI to Syria and even less through the

merger of JN with the new ISIS. Although the leader of the JN, al-Golani, rejected that

manoeuvre and openly declared obedience to "Emir" al-Zawahiri, and the leader of the

AQ-c instructed Bakr al-Baghdadi to dissolve the ISIS and limit the activities of his

5 Letter from Ayman al-Zawahiri, then number two of al-Qaeda, to Abu Musab al-Zarqawi, leader of AQI,

dated 9 July 2005.

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group to Iraq, leaving Syria for the JN, ISIS reaffirmed the new designation and forced

its expansion to Syria.

Moreover, since its inception, the ISI aimed at the eventual restoration of the

"Caliphate", a mythical monarchic-theocratic form of government that represents the

unity and the leadership of the "Islamic world", a coveted global empire ruled according

to Islamic law or Sharia directed by a single leader, the caliph, the Prophet

Muhammad's successor. Therefore, several references and maps of the ISI, ISIS and,

of course, the IS suggest an ambition that includes dominating all the territories of

ancient historical Caliphates, ranging from the Iberian Peninsula (Al-Andalus) to

Southeast Asia. In other words, the self-proclamation as "Caliphate" embodies a

«fundamentally political rather than religious project - even though the IS insists the

two are inseparable» (Rabbani, 2014:2)

This self-proclamation came on 29 June 2014, in a document entitled "This is the

Promise of Allah" produced in several languages and posted on the Internet, where the

ISIL/ISIS/Daesh announced the restoration of the "Caliphate", simply called "Islamic

State" (IS) and appointed its leader Abu Bakr al-Baghdadi as "Caliph", hereinafter

called "Caliph Ibrahim":

«Here the flag of the Islamic State, the flag of tawhīd

(monotheism), rises and flutters. Its shade covers land from

Aleppo to Diyala…. The kuffār (infidels) are disgraced. Ahlus-

Sunnah (the Sunnis) are masters and are esteemed. The people of

bid’ah (heresy) are humiliated. The hudūd (Sharia penalties) are

implemented – the hudūd of Allah – all of them. The frontlines are

defended…. It is a dream that lives in the depths of every Muslim

believer. It is a hope that flutters in the heart of every mujāhid

muwahhid (monotheist). It is the khilāfah (caliphate). It is the

khilāfah – the abandoned obligation of the era (…) Therefore, the

shūrā (consultation) council of the Islamic State studied this

matter after the Islamic State – by Allah’s grace – gained the

essentials necessary for khilāfah, which the Muslims are sinful for if

they do not try to establish. In light of the fact that the Islamic

State has no shar’ī (legal) constraint or excuse that can justify

delaying or neglecting the establishment of the khilāfah such that

it would not be sinful, the Islamic State – represented by ahlul-

halli-wal-‘aqd (its people of authority), consisting of its senior

figures, leaders, and the shūrā council – resolved to announce the

establishment of the Islamic khilāfah, the appointment of a

khalīfah for the Muslims, and the pledge of allegiance to the

shaykh (sheikh), the mujāhid, the scholar who practices what he

preaches, the worshipper, the leader, the warrior, the reviver,

descendent from the family of the Prophet, the slave of Allah,

Ibrāhīm Ibn ‘Awwād Ibn Ibrāhīm Ibn ‘Alī Ibn Muhammad al-Badrī

al-Hāshimī al-Husaynī al-Qurashī by lineage, as-Sāmurrā’ī by birth

and upbringing, al-Baghdādī by residence and scholarship. And he

has accepted the bay’ah (pledge of allegiance). Thus, he is the

imam and khalīfah for the Muslims everywhere. Accordingly, the

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“Iraq and Shām” in the name of the Islamic State is henceforth

removed from all official deliberations and communications, and

the official name is the Islamic State from the date of this

declaration» (IS, 2014).

By proclaiming itself "Caliphate", the IS also claims that all Muslims - individuals, states

and organizations - should pay obedience and be faithful (bay'ah) to "Caliph Ibrahim":

«We clarify to the Muslims that with this declaration of Khilafah, it

is incumbent upon all Muslims to pledge allegiance to the Khalifah

Ibrāhīm and support him (may Allah preserve him). The legality of

all emirates, groups, states, and organizations, becomes null by

the expansion of the Khilafah's authority » (ibid.).

Bay'at is a kind of obedience commitment given to a leader of an Islamist group; for a

jihad, it is as if that commitment was with the Prophet Muhammad himself, and cannot

be broken under penalty of apostasy (takfir). Immediately following that

announcement, on 1 July 2014, in his sermon at the Grand Mosque of Mosul, the very

"Caliph Ibrahim" declared

«I have been appointed to rule over you ... And obey me so long

as I obey God touching you. If I disobey Him, no obedience is

owed from me to you» (al-Baghdadi, 2014).

Unsurprisingly, the alleged obligation of all Muslims to pay allegiance to "Caliph

Ibrahim" and the corresponding nullification of all other States and organizations before

the global authority of the Islamic State is repudiated by all Islamic States and

numerous Islamic religious leaders, including the Grand Muftis of Saudi Arabia and

Egypt, Abdulaziz al al-Sheikh and Shawqi Allam, respectively, or the International

Union of Muslim Scholars. Although for different reasons, this rejection is also made by

various jihadist organizations: even before the announcement of the "Caliphate",

central al-Qaeda (AQ-C or AQSL), presumably from Pakistan, and also the Islamic Front

and Jabhat al-Nusrah, both in Syria, had publicly rejected the ISIS; after the self-

proclamation of the IS "Caliphate", the AQ-C officially rebutted bay'at to "Caliph

Ibrahim" again and started to promote its own proto-Caliph, Mullah Muhammad Omar,

the Taliban leader of the "Islamic Emirate of Afghanistan "since 1996; meanwhile,

seven other jihadist groups repudiated the authority of the IS - Caucasus Emirate in

Russia, the General Military Council for Iraqi Revolutionaries in Iraq, Katibat al-Imam

Bukhari in Syria, Al-Qaeda Islamic Maghreb (AQIM) in Algeria, Moro Islamic Liberation

Front (MILF) in the Philippines, Harakat Ansar Iran (HAI) in Iran, and Al-Qaeda in the

Arabian Peninsula in Yemen – while the Taliban in Afghanistan have, to date, remained

neutral to the IS (IntelCenter, 2015; Azamy and Weir, 2015).

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A de facto State and terror

The ISIS/IS has demonstrated its capacity to impose itself on government forces and

opposition groups (Lister, 2014: 2). As it expanded, it sought to portray the image of

being an effective administering organization in the areas where "state authority" was

missing or fragile. At the end of June 2014, the renamed Islamic State controlled a vast

area that ranged from Aleppo in Syria to the Diyala province in Iraq, and a population

of nearly 6 million people. As such, its strategy has been to consolidate characteristics

inherent to the condition of "State" - namely, territorial control (especially locations,

routes and infrastructure) and political, economic and judicial administration.

Administratively, the IS operates in different wilayats or provinces, each with its

operating structure. Although some IS wilayats have been proclaimed in the territories

of other countries, as we shall see, most still lie in Iraq and in Syria: in mid-2015, there

are twenty IS wilayats, twelve of which located in Iraq (Anbar, Baghdad, Diyala,

Euphrates/Furat – the latter covering territories both in Iraq and in Syria - Fallujah,

Kirkuk, Jnoub, Ninewa, Salah al-Din, Shamal Baghdad, al-Jazeera, and Tigris/Diglah)

and eight in Syria (al-Barakha/Hasakah, Damascus, Euphrates/Furat, Halab/Aleppo,

Homs, al-Khair / Dayr az Zawr, Raqqa, and Hamah).

Immediately after "Caliph" Abu Bakr al-Baghdadi, who is the supreme political, religious

and military authority, the territories of the IS in Syria and Iraq are under the authority

of two respective "governors" involved in the military strategy and governance of those

areas in coordination with local councils (IEP-GTI Report 2014: 52). The IS political

structure includes four main "councils” - sharia, shura, military and security - replicated

in the chain of command down to local level by the various wilayats in Syria and Iraq.

In its simple but effective bureaucratic organization, the IS established religious

committees, a religious police, educational committees, Sharia courts and recruiting

offices, public relations or tribal issues offices, as well as "advisers" and "coordinators"

for finance, propaganda, receiving "foreign fighters", shelters, and dealing with

women's, orphans’ or prisoner issues, imposing its form of "governance" (Caris and

Reynolds, 2014). In parallel, the IS expanded other requirements in the areas under its

control that resemble a de facto state: security and military services, management of

medical services and of "Islamic education", collection of fees and taxes, issuance of

identification documents, printing of its own currency, control of services and resources

(mail, transport, telephones, Internet, garbage collection, water, electricity, fuel and

energy supply) and, from here, regulation of the economy and society.

The total number of IS members, activists and fighters is imprecise and difficult to

calculate, varying greatly depending on the source and also on whether it refers only to

militants in Iraq and Syria or whether it also includes individuals and groups operating

in other countries and regions. On the other hand, in addition to Syrian, Iraqi and

foreigner volunteers and jihadists, the Islamic State is known to force people from

other conquered rebel groups or confined areas under its rule to fight on its behalf - so,

even restricting to the territory controlled by the IS in Syria and Iraq, it is complex to

distinguish between its militant members and those who exercise certain functions

because they are forced to it or fear reprisals. Still, it seems clear that the number of

IS members and fighters has increased continuously over the past years; it grew

suddenly since the proclamation of the "Caliphate"; and it is now well above other

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jihadist groups, including al-Qaeda. When the US withdrew from Iraq in 2011, the ISI

had few hundreds of members; in early 2015, the IS had between 17,000 and 31,500

combatants - well above, therefore, the 1000-3000 that central AQ had at its peak in

the late 1990s (Gerges, 2015). In June 2014, the number of ISIS militants in Syria and

Iraq was estimated at between 5,000 and 10,000; in the following month, numbers

increased thanks to the 1000-2000 militants from other jihadist groups in Syria and

Iraq (such as Jaish al-Sahabah in the Levant and the Faction of Katibat al-Imam

Bukhari in Syria or Ansar al-Islam in Iraq) who joined its ranks; in September, the CIA

estimated the existence of between 20,000 and 31,500 IS fighters in Syria and Iraq; in

late 2014, the Syrian Observatory for Human Rights estimated over 80,000 (50,000 in

Syria and 30,000 in Iraq) IS militants, while the office of Kurdish President Massoud

Barzani rose the total number of IS members to 200,000, a number that included

combatants and support staff, police forces, local militias, border guards, and

paramilitary personnel associated with the various groups of security guards and

recruits. Crossing several sources, the current estimated number of IS fighters varies

between 35,000 and 100,000, while the AQ and its affiliates is believed to have

between 5,000 and 20,000 members.

To finance its activities, the IS has the millions of euros and dollars found and stolen in

the banks and administration offices of the towns it conquered and the proceeds from

the sale of oil from the dozen wells and refineries it controls. According to the Global

Terrorism Index Report 2014 (IEP, 2014: 52), the IS

«controls a dozen oil fields and refineries in Iraq and Syria,

generating revenues of between one to three million U.S. dollars

per day… As well as oil, it is believed that the ISIL has access to

40 per cent of Iraq’s wheat growing land», a situation that led K.

Johnson (2014) state that «the Islamic State is the Newest

Petrostate».

Other important IS funding sources include “donations" from individual, tribal and

jihadist organizations, “tax” and "religious taxes" collection from those under its

control, theft and extortion, kidnapping and ransom payments and arms, drug,

historical artefacts and human organs trafficking. With this wide range of funding

sources, the IS yield is estimated at about 3 to 5 million USD a day in 2014, and its

total financial resources is estimated to stand at between 1.3 and 2 billion USD (Barret,

2014 : 45). That is, the IS has become «the richest terrorist group in the world»

(Lister, 2014: 2), described by the former US Secretary of Defence Chuck Hagel as

«sophisticated and well-funded as any group that we have seen.

They're just beyond the terrorist group ... they are tremendously

well-funded» (cit. in Keatinge, 2014).

As for the powerful weapons at its disposal,

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«the Islamic State, like many irregular forces before it, has opened

spigots from varied and far-ranging sources of supply, in this case

on a grand scale»,

including weapons previously used in the Libya, Sudan and the Balkan wars and others

produced by the US, Russia, China, Iran, and Europe (Western and Eastern). The IS’s

military arsenal mainly includes weapons and ammunition captured from Iraqi and

Syrian forces, armaments and equipment purchased, exchanged or captured from

groups opposing Bashar al-Assad in Syria. On the other hand, in addition to small

arms, machine guns, explosives, and grenades, the Islamic State’s arsenal includes

unusual war weapons held by terrorist groups, from tanks and armoured vehicles to

howitzers, drones and guided anti-tank missiles (Conflict Armament Research, cit. in

Chivers, 2015).

The Islamic State’s attempt to affirm and consolidate itself as a "State" has been

implemented through violence and extraordinary brutality by armed militants operating

simultaneously as a terrorist group, army, police, guerrilla, militia, and criminal gang.

According to the Global Terrorism Index Report 2014 from the IEP, in the year of ISI’s

expansion to Syria in 2013, the number of terrorist attacks worldwide rose 61% over

the previous year, causing nearly 18,000 dead, with Syria and Iraq among the

countries with the highest number of victims of terrorism and with 66% of the global

total of deaths being the responsibility of only four groups, including ISIS (the others

being al Qaeda, the Taliban and the Boko Haram). In Iraq alone, in 2013 there were

6362 deaths caused by terrorist attacks (an increase of 162% compared to 2012), of

which 77% were ISIS’ responsibility (IEP-GTI Report 2014: 52).

In line with its predecessors, the IS continues extermination practices not only against

Christians and Jews, but especially against Muslim communities, namely Shiites, Kurds,

Alawites and Yazidis, in what Amnesty International describes as "ethnic cleansing" and

the UN calls "crimes against humanity". Hence, the expansion of the IS has contributed

significantly to the barbarism and the humanitarian tragedy in Iraq and Syria, which

occupy the first and second places, respectively, in the ranking of the most dangerous

countries in terms of terrorist activity, according to the Country Threat Index of

IntelCenter. In 2014 alone, the IS killed 2317 people; also according to the Most

Deadly Terrorist/Rebel Groups of IntelCenter and adding to that number the deaths

caused by other groups that meanwhile joined the IS until mid-2015, the total number

of dead of the "IS Network" in 2014 exceeded 5000. Accordingly, this same source

shows in its Group Threat Index - which examines the volume of terrorist alerts, the

traffic of messages, videos and photos, attacks and victims of several dozen terrorist

organizations – that the IS became the most dangerous and lethal terrorist group in the

world (IntelCenter, 2015).

In fact, the IS does not recognize any Islamic interpretation and jurisdiction other than

its own, imposing its brutal version of the sharia on all those it considers to be

"apostates" and "infidels" and implementing a policy of terror which includes mass

summary executions, amputations, rapes, immolations, beheadings, and crucifixions.

The barbarity of the Islamic State is openly repudiated by most Islamic religious

leaders, by all Islamic countries and also by the Islamic Cooperation Organization

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(which brings together 57 Islamic countries), with the Secretary General of the OIC,

Iyad Ammen Madani, affirming

«We need to condemn, particularly and in the strongest terms, the

heinous and barbaric crime committed by the so-called IS terrorist

group» (Madani, 2015).

The terror perpetrated by the IS even made the Vatican, which traditionally opposes

the use of force, adopt an unprecedented position in mid-March 2015, declaring that if

it is not possible to achieve a political decision without violence, «the use of force will

be necessary» against the IS in order to «stop this genocide» and protect Christians

and other religious groups6

For the IS, however, "terror" is not only inherent in its jihad against all "apostates" and

"infidels" but also a key driver of its expansion strategy due to the "demobilizing" effect

that it seeks to have (and has) in the populations and opposition forces, in particular

among the Syrian and Iraqi government contingents.

The alarm caused by the extension of the IS "Caliphate" and its corresponding social,

economic, humanitarian, and political implications (see, e.g., Adams, 2014) led to a

sudden change in the geopolitical chess in the region and brought about a very eclectic

"anti-IS front" since the summer of 2014, including the creation of a broad international

coalition led by the US and currently with about 64 participants7 and the hitherto

unthinkable joint positions of Western countries, Arab countries (especially Saudi

Arabia, Egypt, Qatar and Jordan), Iran, Turkey, the Iraqi government, the Peshmerga

Kurds, several insurgent groups operating in Syria or even the very Syrian regime of

Bashar al-Assad .... According to the US State Department, in early June 2015 the IS

controls less 25% of territory in Iraq than when the "International Coalition" began its

campaign8. Meanwhile, following the Iraqi Government’s request, NATO decided to

reactivate the training and assistance mission to Iraqi government forces for more

effective anti-IS fighting9

6 Statement made by the Vatican Ambassador at the United Nations in Geneva, Archbishop Silvano Tomasi,

in an interview with the American Catholic website "Crux" (see Allen, 2015). This position came the same

day that the Holy See, Russia and Lebanon presented the Council of the UN Human Rights a document

entitled "Supporting the Human Rights of Christians and Other Communities, particularly in the Middle

East", supported by 70 signatory countries, hoping to encourage states around the world to provide

humanitarian aid to Christians and other groups persecuted by the IS.

7 Out of the more than sixty participants of the "anti-IS international coalition," only some participate in

direct military operations or provide air support and military equipment: the US, Iraq, Jordan, Bahrain,

Saudi Arabia, Egypt, United Arab Emirates, France, the UK, Germany, Canada, Australia, Italy, Czech

Republic, Albania, the Netherlands, Estonia, Hungary, Turkey, Belgium, Denmark, and Lebanon. Some

"allies" have only been providing political support and "humanitarian aid" (including the Arab League and

the European Union, as well as Sweden, Kuwait, Switzerland, Japan, Austria, New Zealand, South Korea,

Ireland, Spain, Slovakia, Norway, Luxembourg, and Qatar), while with regard to others we only know

their statement of support and commitment to this coalition, participating particularly in terms of sharing

information - Andorra, Bosnia and Herzegovina, Bulgaria, Croatia, Slovenia, Finland, Georgia, Greece,

Israel, Kosovo, Lithuania, Macedonia, Malta, Morocco, Mexico, Moldova, Oman, Poland, Portugal,

Romania, Serbia, Singapore, Taiwan, Tunisia, and Ukraine.

8 Statement made by Antony Blinken, US Deputy Secretary of State, at a meeting in Paris on 2 June 2015,

with representatives from 20 countries to discuss the status of the fight against the IS in Iraq (see the

BBC, 2015).

9 The NATO Training Mission-Iraq (NTM-I) was established in 2004 to help Iraq create effective new armed

forces after the overthrow of Saddam's regime, but the mission was discontinued in 2011 due to the

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In addition to a significant number of IS militants, some IS leaders were also killed -

including the alleged number two in the hierarchy, Abdul Rahman Mustafa Mohammed

al-Qaduli10

However, despite international efforts to contain, fight and delegitimize it, the IS not

only continues to control a vast territory and millions of people but also launched new

offensives on key fronts. In Iraq, in May 2015 the IS took possession of Ramadi, capital

of the Anbar province, advanced towards the Baiji oil refinery, the largest in the

country, and attacked the nearby town of Khalidya, getting closer to Baghdad. In Syria,

in the same month the IS attacked Deir ez-Zor by the Euphrates River, in the east of

the country, and gained control of the city of Tadmor and the ruins of the "World

Heritage" ancient Roman city of Palmyra in central Syria, and unleashed offensive

operations in the north, near Aleppo, close to the border with Turkey; in the West, in

the provinces of Homs and Hama and near the border with Lebanon; and in the

Southwest, targeting the city of Quneitra, near the Israeli border.

, and the so-called "Oil Emir" Abu Sayyaf . The very "Caliph" Abu Bakr al-

Baghdadi was seriously injured as a result of US bombing in March 2015. Some

previous state support to ISIS was also stopped: currently, no government supports

the IS, which put itself in an enemy position of all States in the region and the world.

At the same time, the Internet and social networks industry became more vigilant and

active in the control and removal of terrorist and jihadist oriented content conveyed by

the IS and its supporters. Over the past year, and on several occasions, the

Organization of Islamic Cooperation and numerous Islamic religious authorities

denounced the illegitimacy of the alleged "Caliphate" and condemned the IS narrative

and acts for violating all principles of Islam.

The International expansion of the IS

On the other hand, the IS has expanded far beyond Syria and Iraq, conducting

activities which a report of the Institute for the Study of War organized in three circles:

an "inner ring", comprising, in addition to Iraq and Syria, Jordan, Israel, Palestine and

Lebanon; the “near abroad”, covering Afghanistan, Pakistan, Yemen, Saudi Arabia,

Egypt, Libya, Turkey, Tunisia, Algeria, Morocco and the Caucasus; and the "far abroad"

circle, referring to the activities of the IS in Europe, North America, Asia-Pacific and

also in cyberspace (Gambhir, 2015).

Through its self-proclamation as "Caliphate", the IS intensified the recruitment

campaign of "foreign fighters" to go to Syria and Iraq to defend an idyllic Islamic

State11

«mujahideen in Europe, Australia, and Canada…O mujahideen in

Morocco and Algeria…O mujahideen in Khorasan, the Caucasus,

absence of any agreement to give legal status to the presence of NATO military operating in the country.

In 2014, as a result of the IS advance, the Baghdad government requested new assistance, education and

training mission to Iraqi government forces.

10 Or Abu Alaa al-Afari.

11 See also Dabiq, issue 3 – A call to Hijrah.

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and Iran…O mujahideen, we call you up to defend the Islamic

State» (Abu Muhammad al-Adnani [al-Shami]12

IS's spokesman, 22 September 2014). In parallel, the IS propaganda machine -

through messages, photos and videos channelled through the Web, virtual social

networks and its official journal in English Dabiq - glorifies its "martyrs", publishes

regular reports on the "International faithful of Allah" and highlights the fighting skills

of "true believers from distant lands”.

The phenomenon of jihadist "foreign fighters" has long been known in places such as

Afghanistan, Bosnia, Kosovo, Chechnya, Iraq, Lebanon, Yemen, Mali, and Libya. But

never before have so many “foreign fighters” been involved as in Syria and, more

recently, in the territory controlled by the "Islamic State", leading the United Nations

Security Council to adopt unanimously Resolution 2178 - at a meeting where more than

50 countries13

expressed

«particular concern that foreign terrorist fighters are being

recruited by and are joining entities such as the Islamic State in

Iraq and the Levant (ISIL)».

The resolution further calls upon all States to cooperate urgently to prevent

international flows of IS fighters and other extreme groups to and from war zones (UN

Security Council, 24 September 2014).

Aware of the fact that the "European jihadists" pose a serious threat to both the

external and internal security of the European Union, European authorities and the

governments of the 28 Member States, particularly reacting to the attacks in Paris on 7

and 8 January 2015, strengthened measures to combat terrorism, prevent movements

for purposes of association with terrorist groups and detect and monitor travel to and

from theatres of jihadist conflict14

12 Or Taha Subhi Falaha, his birth name.

13 Heads of State or of Government of Nigeria, Iraq, US, France, Chad, Lithuania, Rwanda, Jordan, Chile,

South Korea, UK, Australia, Luxembourg, Turkey, Qatar, Bulgaria, Kenya, Macedonia, Canada, the

Netherlands, Morocco, Norway, Trinidad and Tobago and Belgium. The countries represented at

ministerial level were: China, Serbia, Pakistan, Algeria, Senegal, Latvia, Denmark, Albania, Estonia,

Kazakhstan, Russia and New Zealand. There were also representatives of the following countries:

Singapore, United Arab Emirates, India, Spain, Malaysia, Sri Lanka and Egypt, as well as the President of

the European Union and the Secretary of State of the Holy See.

14 The many EU proposals include: deepen the understanding of the phenomenon; tighten the monitoring of

social networks and increased cooperation with the Internet industry to remove extremist content,

creating effective counter-discourses; punish and penalize those condoning terrorism and violent

extremism, and those intending to join terrorist groups and plan or practice terrorism-related crimes;

prevent travelling to join terrorist groups, detect and monitor travel to and from areas of jihadist conflict

and halt the return of extremists and jihadist veterans, particularly by increasing control at the EU's and

the Schengen area’s external borders and by recording the names of air passengers; intensify the fight

against multiple forms of financing terrorism; implement accompanying measures and monitoring of

returnees; strengthen human and technological resources; implement earlier directives and strengthen

the anti-terrorism legislative framework; send "security consultants" to European representations in

sensitive areas; deepen and improve the sharing and exchange of information; strengthen cooperation

between European countries and services and collaboration with strategic partners; etc. See Council of

the EU - Counter-Terrorism Coordinator.

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Despite international efforts, the number of foreign fighters ascribed to the IS has

continued to grow significantly, and numbers are currently estimated at over 25,000

(twice as many as those who went to Afghanistan in the 1980s), representing about

70% of foreign jihadists in Syria and almost all in Iraq, from almost a hundred

countries. About half of the "foreign fighters" of the IS come from North Africa and the

Middle East (Barret, 2014: 16), namely Saudi Arabia (7000), Tunisia (2500-5000),

Morocco (1500-3000), Jordan (1500-2000), Turkey (1000-1500), Egypt (600-750) and

Iran (50-80). But the IS also has fighters coming from many other countries from all

regions of the globe, including Russia (1000-1500), Indonesia (520-550), Turkmenistan

(360-400), Bosnia and Herzegovina (350), China (300), Kazakhstan (300), Azerbaijan

(100-300), Albania, Kyrgyzstan, Tajikistan and the Philippines (200 each), Canada

(130), USA (100-120), Australia (80-100), and India (20-25)15

From the European Union alone, by mid-2015 over 6,000 jihadists had left to join the

IS in Syria and Iraq (nearly tripling those who were in Syria in late 2013), from more

than twenty countries, including France (about 1500), the United Kingdom (750),

Germany (700), Belgium (400), the Netherlands (300), Denmark (250), Sweden (200),

Spain (60-100), Austria (100-150) Italy (60), and Finland (50). This EU’s figures also

included Luxembourgers, Greeks, Slovaks, Czechs, Irish, Bulgarian, Lithuanian, and

Portuguese (15-20)

To its supporters who cannot or are unable to travel to Syria and Iraq, the IS instructs

them to organize and pledge allegiances (bay'ah) to "Caliph" Abu Bakr al-Baghdadi:

«If you cannot perform hijrah (immigrate to the Islamic State) for

whatever extraordinary reason, then try in your location to

organize bay’at (pledges of allegiance) to the Khalifah Ibrahim.

Publicize them as much as possible. Gather people in the masajid,

Islamic centres, and Islamic organizations, for example, and make

public announcements of bay’ah. Try to record these bay’ah and

then distribute them through all forms of media including the

Internet. It is necessary that bay’ah becomes so common to the

average Muslim that he considers those holding back as grossly

abnormal...if you live in a police state that will arrest you over

such bay’at, then use means of anonymity to convey your bay’ah

to the world» (Dabiq, issue 2, July 27, 2014).

And the fact is that in addition to individuals around the world who have expressed

allegiance to "Caliph Ibrahim," there are many other groups which, since the self-

proclamation as "Caliphate", became associated with the IS. Specifically, 36 jihadist

groups outside Iraq and Syria that pledged bay'at or expressed support for the IS have

been referenced: Mujahideen Timor in Indonesia; Caliphate and Jihad Movement,

Jundullah, Tehrik-e-Khalifat and Tehrik-e-Taliban dissidents in Pakistan; Islamic

Movement of Uzbekistan in Pakistan and Uzbekistan; Ansar al-Khalifah, Bangsmoro

15 Figures estimated from crossing various sources, including research centres on terrorism and conflict and

several types of media.

16 On the profile and route of the "Portuguese jihadists," of whom the majority are Portuguese descendants

emigrated in other European countries like France or England see, for example, Franco and Moleiro, 2015

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Islamic Freedom Fighters, Bangsmoro Justice Movement, Abu Sayaaf and Jemaah

Islamiyah in the Philippines; Jund al-Khalifah, al-Huda Battalion in Maghreb of Islam

and Soldiers of the Caliphate in Algeria; Al Tawhid Battalion in Afghanistan and

Pakistan; Khorasan Pledge, Heroes of Islam Brigade in Khorasan and Leaders of the

Mujahid in Khorasan, from Afghanistan; Ansar al-Tahweed fi Bilad al-Hind in India; al-

I'tisam of the Koran and Sunnah in Sudan; Uqba bin Nafi battalion and Jund al-Khilafah

in Tunisia; Jund al-Khilafah in Egypt; Mujahideen Shura Council in the Environs of

Jerusalem, in the Gaza Strip and the Sinai Peninsula; Jund at-Tawheed Wal Khalifah in

Bangladesh; Ansar Bait al-Maqdis in Egypt; Islamic Youth Shura Council, Islamic State

Libya (Darnah), Lions of Libya, Shura Council of Shabab al-Islam Darnah and IS’s

"Tripoli Province" in Libya; Liwa Ahrar al-Sunna in Baalbek, Lebanon; Mujahideen of

Yemen and Supporters for the Islamic State in Yemen, in Yemen; Supporters of the

Islamic State in the Land of the Two Holy Mosques in Saudi Arabia; Boko Haram in

Nigeria (IntelCenter, 2015).

In addition, Abu Bakr al-Baghdadi himself announced on 13 November 2014 the

establishment of five new IS wilayats outside Syria and Iraq, precisely in Libya, Algeria,

Yemen, Sinai (Egypt) and Saudi Arabia, as well as the intention to create more wilayats

elsewhere in the future. The same aim was reaffirmed in the fifth edition of Dabiq

entitled, in good propaganda fashion, "Remaining and Expanding", where the IS

recognizes those wilayats with

«either the appointment or recognition of leadership by the

Khalifah for those lands where multiple groups have given bay’at

and merged, or the establishment of a direct line of

communication between the Khalifah and the mujahid leadership

of lands who have yet to contact the Islamic State and thus

receive information and directives from the Khalifah» (Dabiq, issue

5).

Meanwhile, the IS has expanded its wilayats in Yemen (in clear competition with Al-

Qaeda in the Arabian Peninsula, both combating the Huthis Shiite militias and other

rebels loyal to former President Abdullah Saleh and the forces supporting President

Hadi) and also in West Africa, in the latter case through the alliance agreed in March

2015 with Boko Haram, which has controlled the northeast of Nigeria for years and is

also active in Chad, Niger and Cameroon. Currently, there are twelve IS wilayats

outside Syria and Iraq: Khorasan (Afghanistan), al-Jazair in Algeria, Sinai in Egypt,

Burgah, Tarablus/Tripoli and al-Fizan in Libya, al-Haramayn in Saudi Arabia, al-Yaman,

Sanaa, Lahij and Shabwa in Yemen and Gharba Ifriqiyah in Nigeria.

Admittedly, several jihadi groups have publicly repudiated the IS, as mentioned earlier.

But the reality is that the expansion of the IS has changed the balance among jihadist

groups and the volatile connections with insurgent movements in various other stages

of conflict beyond Syria and Iraq, including in Libya, Lebanon, Yemen, and even in

Afghanistan and Pakistan:

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«The relationship between the Taliban and the Islamic State is

emerging as the most influential factor in the future of violent

jihadi movements in the Afghanistan and Pakistan region…. If IS

were to successfully recruit influential Taliban figures, they could

upset the delicate yet volatile balance of jihadi movements and

insurgents within Afghanistan, causing realignments of anti-state

actors across the Khorasan region» (Azamy and Weir, 2015).

At the same time, fierce opposition to the IS has increased the power and the role of

"Shiite militias" in several theatres of conflict (Iraq, Syria, Lebanon, Libya, and Yemen),

a situation described as "particularly fragile" by a French representative (BBC, 2015).

Basically, the expansion and the brutality of the IS has contributed to intensify historic

rivalries and sectarian conflict between Sunni and Shiite Muslims, not only inside Syria

and Iraq but also within other countries such as Lebanon - where the IS faces the well-

established Shiite origin Hezbollah (Holmquist, 2015) - and between regional powers

such as Sunni Saudi Arabia and Shiite Iran, as also happens in the case of Yemen17

On the other hand, the IS calls for jihad in the countries where its militants are based

through attacks against their enemies and other "infidels". For example, in a

declaration addressed to the "soldiers of the Islamic State," the IS spokesman, Abu

Mohammed al-Adnani [al-Shami], made the following appeal:

«So rise O mujahid. Rise and defend your state from your place

wherever you may be…You must strike the soldiers, patrons, and

troops of the tawaghit. Strike their police, security, and

intelligence members, as well as their treacherous agents. Destroy

their beds. Embitter their lives for them and busy them with

themselves…

If you can kill a disbelieving…including the citizens of the countries

that entered into a coalition against the Islamic State, then rely

upon Allah, and kill him in any manner or way however it may be.

Do not ask for anyone’s advice and do not seek anyone’s verdict.

Kill the disbeliever whether he is civilian or military, for they have

the same ruling. Both of them are disbelievers. Both of them are

considered to be waging war [the civilian by belonging to a state

waging war against the Muslims]…If you are not able to find an

17 Following the deteriorating situation in Yemen and the advancement of Houthi Shiite militias, Saudi Arabia

set up and leads a "coalition" fundamentally composed of Arab countries which, in March 2015, began to

intervene militarily in Yemen in support of President Abdrabbuh Mansour Hadi against the Houthi Shiite

rebels and other forces loyal to former President Abdullah Saleh (deposed in 2011 following the protests

associated with the "Arab Spring"), which, in turn, have the support of Iran. In a typical proxy war

situation. - in which regional powers promote their competing interests in a Yemen torn by conflict

between two rival Islamic branches, Sunni and Shia, which intersect with tribal loyalties in support of the

current President or attempting to replace the previous one, coupled with the significant presence and

dispute between al Qaeda jihadists in the Arabian Peninsula and the Islamic State (both attacking the

government forces of President Hadi and the Houthi Shia and pro-Saleh rebels) - Saudi Arabia has

launched the risky operation "Decisive Storm" with the military contribution of the United Arab Emirates,

Qatar, Sudan, Egypt, and Kuwait, also counting with the support of Jordan, Morocco, Pakistan and

Somalia, in addition to the alleged logistical help of the US and of some European countries to protect the

population and the legitimate Government of Yemen and to safeguard international legality.

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IED or a bullet, then single out the disbelieving... Smash his head

with a rock, or slaughter him with a knife, or run him over with

your car, or throw him down from a high place, or choke him, or

poison him. Do not lack» (al-Adnani, September 22, 2014).

Two months later, the magazine Dabiq expressly included references to attacks by its

supporters in Australia, Canada and the US, claiming that

«All these attacks were the direct result of the Shaykh [Adnani]’s

call to action, and they highlight what a deadly tinderbox is fizzing

just beneath the surface of every western country, waiting to

explode into violent action at any moment given the right

conditions. Suddenly the muhajidin of the Islamic State weren’t

some esoteric concept fighting in a land nobody knew or cared

about, they were on the doorstep of millions of people living in

some of the biggest, most modern cities in the western world»

(Dabiq, issue 6).

These appeals are further enhanced by the Islamic State’s threat to "export" its

faithful to other areas and "inside its enemies", such as Europe, taking advantage of

migratory flows from Libya…

Regardless of the propaganda content of such statements, the fact is that over the past

year multiple events and attacks involving jihadists and "lone wolves" supporting the IS

were referenced in dozens of countries – from Afghanistan to Germany, Saudi Arabia,

Algeria, Australia, Belgium, Bulgaria, Canada, China, Denmark, Egypt, Spain, US, the

Philippines, France, the Netherlands, Yemen, India, Indonesia, Iran, Italy, Japan,

Jordan, Lebanon, Libya, Morocco, Nigeria, Pakistan, United Kingdom, Russia, Sudan,

Tunisia, Turkmenistan, Turkey and Uzbekistan ... - causing victims around the world

and forcing strengthening alerts and counterterrorism efforts.

The expansion of the Islamic State is particularly visible in cyberspace. Of course, as in

all other fields and religions, the Internet opens up new horizons for showing different

interpretations of Islam (Giunchi, 2014). They are also well-known situations where

targeted websites, especially to the Muslim communities, take on special importance in

the West, as happened during the "Arab Spring" or, more recently, to combat the

ideological propaganda of the IS. But the reality is that the Islamic State is proving to

be extraordinarily skilled and versatile in the use of cyberspace and new media,

showcasing jihadism on the web. Indeed, the IS displays an effective propaganda

machine, terror, radicalization and recruitment, particularly orchestrated by Al Hayat

Media Centre and its videos and publications (such as the aforementioned official

magazine in English "Dabiq") but also disseminated by thousands of "fighters "and

activists in Syria and Iraq, all posted on the Internet and through virtual social

networks, including YouTube, Facebook, Instagram and Twitter.

This is particularly relevant in "attracting" young people, including Westerners: this

means that in addition to the "planted cells", terrorists from the "outside" and those

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who have obtained their nationality in an opportunistic or fraudulent manner, there is

now a stunning number of "express jihadists" who are more or less self-radicalized

and were born and raised in “the West"; just as the propaganda, radicalization and

recruitment in the mosques, in madrassas and prisons, there are now these activities

on the Internet on an unparalleled scale throughout the history of the jihadist

movement (Tomé, 2015: 13-14). Therefore, as Jeh Johnson, Head of US Homeland

Security, states

«we’re very definitely in a new environment, because of ISIL’s

effective use of social media, the Internet, which has the ability to

reach into the homeland and possibly inspire others…. We’re very

definitely in a new phase in the global terrorist threat, where the

so-called lone wolf could strike at any moment» (cit. in ABC News,

2015).

On the other hand, IS supporting hackers, such as the self-called "Cyber Caliphate”,

have intensified cyber-attacks, aiming at all types of targets, ranging from military

commands to government agencies or the media: for example, more than 19,000

cyberattacks hit French websites in the week following the attacks in Paris on 7 and 8

January 2015; on the 12th of the same month, the "Cyber Caliphate” attacked Twitter

and YouTube accounts of the US Central Command (CENTCOM), which heads the anti-

IS international coalition operations; in February, the same group attacked the

websites of the US magazine Newsweek; and on 8 April, again the "Cyber Caliphate"

attacked the Internet pages, social networks and broadcasts of Francophone TV5

Monde television group, whose eleven channels not only failed to broadcast but also

showed IS’ videos and propaganda messages and threats for a while.

Conclusions

Once established, the IS has intensified its propaganda and its jihadist appeals,

encouraging its supporters to travel to defend a mythical "Caliphate", promoting

allegiance declarations and local communities to support the IS, and instigating all

kinds of attacks to "apostates", "infidels" and enemies of the IS. About a year after its

self-proclamation as a "Caliphate", and despite local, regional and international efforts

to contain, combat and delegitimize it, the IS has consolidated characteristics as a de

facto State, expanded beyond Syria and Iraq and became one of the most serious

threats to international security, disputing with al-Qaeda the leadership of global

jihadism.

Over the past year, the IS has significantly increased the number of militants and also

of "foreign fighters" assigned to it, like a true "magnet" never seen before in the history

of the jihadist movement. In addition to swelling the ranks of a jihadist and terrorist

entity as the IS and contributing to the humanitarian tragedy and barbarity in Syria and

Iraq, the threat from the "foreign fighters" phenomenon also brings about the

increased risk that they return to their home countries as members of the global

jihadist movement after having been indoctrinated and received operational training

(from the handling of weapons and explosives to planning operations) and combat

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experience, with close ties to terrorist groups and individuals. One quickly realizes the

danger that this means. Certainly not all "foreign fighters" in Syria and Iraq are

jihadists and not all jihadists are terrorists. Of course, some of the returnees, or those

who may return, may be truly repentant or disillusioned and even play a relevant role

in IS counter-propaganda. But even in these cases or of others who return with no

motivation to jihadism and terrorism (with the obvious difficulty in distinguishing the

different situations), there are risks associated with exposure to violence, post-

traumatic disorder, depression or social misfit. And there is a risk that, even if they do

not plan and carry out attacks, they may at least conduct propaganda, recruitment or

terrorist funding activities as well as engage with criminal groups and in criminal and

violent activities (Tomé, 2015: 13).

On the other hand, the IS not only continues to control a vast territory and millions of

people but also created new wilayats beyond Syria and Iraq. It has gathered dozens of

other jihadist groups around the world, inspired countless "lone wolves", and multiplied

the number of attacks and victims, also expanding humanitarian tragedies in various

other areas of conflict – therefore requiring reconfiguring counterterrorism strategies,

counter-radicalization, and combating jihadism, and repositioning in various theatres of

conflict. Although the scope and the power of IS affiliate groups and wilayats vary -

finding more resistance in consolidated countries or where jihadism is dominated by AQ

– its trajectory demonstrates a particular skill in taking advantage of conflict and state

fragile contexts to expand, as shown in Nigeria, Egypt, Lebanon, Libya, Yemen,

Pakistan, and Afghanistan. This is also why the rise of the IS has contributed to

intensify historic rivalries and sectarian conflict between Sunni and Shiite Muslims in

several countries (apart from Syria and Iraq, also in Algeria, Tunisia, Lebanon, Egypt,

Jordan, Pakistan, and Yemen) and, collaterally, between regional powers (namely,

Sunni Saudi Arabia and Shiite Iran) as well as to strengthen the power and the role of

the opposing Shiite militias and to change the volatile connections of jihadist

movements and insurgents in various other stages of conflict (as noted in Libya,

Lebanon, Yemen and even in Afghanistan).

With the AQ, the IS has oscillated between pragmatic cooperation and fratricidal

dispute. But the competition between the two entities in terms of major global "jihadist

brand” - as well as regarding financing, jihadist recruits, membership of jihadist groups

or the leadership of jihadism in certain places - tends to foster or aggravate violent

conflicts and to instigate large-scale attacks on grounds of affirming the supremacy of

its respective "omnipresence".

In parallel, the IS has shown an unusual ability to use the Internet and new media for

the purposes of propaganda, radicalization, recruitment and terror, in addition to

successive and powerful cyberattacks. This aspect, combined with the impressive

number of militants, "foreign fighters", jihadist groups and jihadist "lone wolves" it

succeeds in attracting, makes the IS a threat not only to the communities that it

directly dominates and victimizes in Iraq and Syria but also to the security and stability

of neighbouring countries and many others throughout the world.

In other words, the Islamic State is currently a more serious, more diffuse and more

complex threat than a year ago. It truly represents the jihadist threat post Al-Qaeda,

for which reason the former counterterrorism strategy may not be sufficient to combat

it, as argued by Audrey Kurth Cronin (2015).

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The "military victory" over the IS may even be the simplest to achieve, despite the

constraints arising from the regional complex situation: after all, the IS has a territorial

base where it can and must be fought and it shows a level of barbarism to which the

international community, starting with Islamic countries, cannot be indifferent.

Moreover, it is present in fragile and unstable states that must be stabilized quickly,

and exploits conflicts that need to be urgently contained under penalty of opening the

door to the expansion of the IS. However, given the position that the IS has reached,

combating the Islamic State is also ideological and has now become global. The anti-IS

strategy may not be uniform and requires multiple approaches, multiple instruments,

and multiple fronts based on multiple vectors. And it should not be reactive because

the IS has become one of the biggest disturbing phenomena to international security

and stability and also an “internal” threat in many societies all over the world. On the

other hand, the fight against the IS cannot neglect the fight against al-Qaeda or

facilitate the strengthening of the latter or its affiliates - because the AQ is no less

dangerous than the IS, has proven to be astute in its metamorphoses and has the

same goal of creating its own "Caliphate".

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OBSERVARE

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Notes and Reflections

THE PROSECUTOR IN INTERNATIONAL CRIMINAL JUSTICE1

Almiro Rodrigues2

orimla50@hotmail.com

Deputy General Prosecutor Emeritus. Judge of the International Criminal Tribunal for the former

Yugoslavia and international judge for the War Crimes Section of the Court of Bosnia and

Herzegovina. Currently an international judge in the Constitutional Court of the Republic of

Kosovo. The opinions expressed in this article only reflect the author's point of view.

Justice is an indispensable ingredient in the process of national reconciliation. It is essential

for the restoration of peaceful and normal relations among people who have had to live under a

reign of terror. It also breaks cycles of violence, hatred and extra-judicial retribution. Thus, peace

and justice go hand in hand.

Antonio Cassese, former President of the ICTY

The duties and powers of the Prosecutor in international criminal justice to some extent

can be nominally equated to the Prosecutor at a domestic level. However, there are

substantial and methodological difference. The challenges posed in the investigation

and prosecution of large-scale crimes and massive criminal violations committed years

ago in a sovereign foreign country are unique. Thus, it is both remarkable and

surprising that the legal tools of investigation available to the international Prosecutor

have produced results that one can observe and quantify. Although challenges still

remain, the work of the Prosecutor in international criminal justice is a considerable

achievement in the fight against impunity for serious violations of Human Rights and

International Humanitarian Law.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1 The translation of this article was funded by national funds through FCT - Fundação para a Ciência e a

Tecnologia - as part of OBSERVARE project with the reference UID/CPO/04155/2013, with the aim of

publishing Janus.net. Text translated by Thomas Rickard.

2 Article written as part of the research project "International Criminal Justice: A Dialogue Between Two

Cultures", in progress at the Observatory of External Relations (OBSERVARE/UAL), coordinated by Mateus

Kowalski and Patrícia Galvão Teles.

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1. Introduction

The theme "the Prosecutor in international criminal justice" is part of the "international

criminal justice" project that aims to bring together researchers, experiences and

methodologies that can be found in International Relations and International Law.

Some people know the duties, powers and functions of the Ministério Público (MP) 3 at a

national level, though few have a good understanding of what the Prosecutor in

international criminal justice entails. The very name of the position causes some

confusion due to its similarities with near national equivalents (the attorney of justice,

the justice promoter, the public prosecutor, the deputy prosecutor, the prosecutor of

the Public Prosecutor’s Office, General Prosecutor). In today's world, the magistrate

usually refers to the exercise of judicial power, and has the ability and prerogative to

judge according to the constitutional rules and laws created by the legislature. The

notion of magistracy, which in some places includes judges and prosecutors, is

unknown as such in countries that have adopted common law, which extend these

constitutional guarantees only to their judges, and where the word magistrate has a

different meaning. The Portuguese magistrates (judges and prosecutors) enjoy the

constitutional guarantees of life tenure.

2. The national constitutional framework

Knowing the duties, powers and functions of the MP in the national framework can help

to better understand the institutional identity of the Prosecutor in international criminal

justice.

All organisation and jurisdiction of the MP is the remit of the Assembly of the Republic.

Article 163 of the Constitution states the

“Assembly of the Republic, with regard to other entities, is

responsible for... electing in accordance with the proportional

representation system... members of the High Prosecutorial

Council”.

Article 165 establishes that:

“1. It is the sole responsibility of the Assembly of the Republic to

legislate on the following matters, unless it authorises the

Government to do so: ...

p) organisation and jurisdiction of the courts and Ministério Público

as well as the status of the corresponding judges and prosecutors

and non-judicial bodies for alternative dispute resolution.”

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

3 The Ministério Público is the constitutional organ empowered to start investigations on criminal violations

and institutes criminal proceedings before criminal courts. The term equates, more or less, to the French

Ministere Public and the English State Prosecutor’s Office, Chief Prosecutor’s Office or Attorney General.0

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In the terms of Article 219 (1):

The Ministério Público represents the State and safeguards the

interests prescribed by law, takes part in the enforcement of the

criminal policy as defined by the sovereign bodies, carries out the

prosecution according to the principle of legality, and defends

democratic legality.

Article 219 (2) also confers that the MP’s has its “own statute” and “autonomy”.

Article 219 (4) states that

"officials of the Ministério Público shall be accountable judicial

officers, shall form part of and be subject to a hierarchy and shall

not be transferred, suspended, retired or removed from office

except in cases provided for by law".

Article 219 (5) establishes that

"[t]he appointment, assignment, transfer and promotion of officials

of the Ministério Público and the exercise of discipline over them

shall be the responsibility of the State General Prosecutor’s Office”.

On the other hand, Article 220 of the Constitution states that

“[T]he State General Prosecutor’s Office shall be the highest

authority of the Ministério Público"

and that:

State General Prosecutor’s Office shall be presided over by the

State Public Prosecutor and shall contain the High Prosecutorial

Council, which shall include members elected by the Assembly of

the Republic and members whom the public prosecutors shall elect

from among their number.

These constitutional provisions derive some fundamental rules and principles that

sustain the operation of the MP. They are the principles of autonomy, independence

and legality of prosecution.

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Article 2 (2) of the MP’s Statute4 provides that

"the autonomy of the public prossecutors is characterised by it

being bound by legality and objectivity criteria and by the

exclusive submission of public prosecutors to the directives, orders

and instructions laid down by the [Statute]".

In fact, the MP enjoys autonomy not only in relation to central, regional and local

authorities, but also in relation to the judiciary. Firstly, the autonomy of the MP means

that it takes no orders or instruction from central, regional and local authorities, nor

can they influence its governance or administration. Secondly, the autonomy of the MP

means that officials are organic and functionally separated from the judiciary, giving

the MP a prerogative of stability identical to that of judges.

Thus, the MP is a constitutional body of justice organised as an independent procedural

body in two ways: in terms of independence from political power in the exercise of

prosecution and in terms of being separated from, and parallel to, the judiciary.5

Consequently, the MP is autonomous in the exercise of its duties, powers6 and

functions. This principle is based on the idea that no crime should go unpunished and,

therefore, that the MP is legally obliged to act.

The principle of legality of criminal prosecution is reflected in the obligation of the MP to

prosecute, provided that it has been informed of the crime and there are no obstacles

preventing it from acting. This principle has a democratic character and meets the

requirements of social defence in that it subjects the public body’s actions to law. Thus,

the action is imposed on the State not as a mere power, but as an obligation to carry

out one of its essential purposes, which is to maintain and reintegrate the legal system.

Therefore, the MP has the duty to prosecute without being led by political criteria of

opportunity or social utility.

Prosecution is thus the most important function of the MP.7 Moreover, the gradual

democratisation of criminal proceedings has imposed the accusatorial principle that

places the MP in a position of near monopoly in the exercise of prosecution.

As mentioned earlier, the State General Prosecutor’s Office is the highest authority of

the Ministério Público, which is organically and functionally independent. The

independence of the MP lies in an organisational-institutional framework through which

interference, dependences or limitations regarding other state powers such as the

President, the Assembly of the Republic and the Government are neutralised.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

4 Approved by Law no. 47/86 of 15 October, republished in Law no. 60/98 of 27 August, and changed by

Laws 42/2005 of 29 August, 67/2007 of 31 December, 52/2008 of 28 August, 37/2009 of 20 July, 55-

A/2010 of 31 December and 9/2011 of 12 April.

5 This view is reaffirmed in several parts of Criminal Procedure Law when stating the principle of objectivity

(Article 53), by applying to magistrates of the MP the provisions concerning impediments, refusals and

excuses of judges (Article 54), when making it compulsory for the MP to investigate à charge and à

décharge (Article 262), by exempting the MP from the rules on the conduct of lawyers and defenders

(Article 326), and recognising the right to appeal in the sole interest of the accused (Article 401).

6 Article 3 of the MP Statute specifies its duties and Paragraph 3 states that “in the exercise of its duties,

the Ministério Público is aided by justice officers and criminal police bodies, and has access to advisory

services”.

7 The magistrate is a speaking law, and the law is a silent magistrate (Cicero).

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Moreover, Article 219 (4) of the Constitution states that

"Ministério Público agents are accountable and subject to

hierarchy".

Hierarchical subordination means that MP8 agents receive orders and instruction from

the State General Prosecutor’s Office, which seems to contradict the MP’s principle of

independence. It is necessary to note that the independence that characterises the

structure and functioning of the MP, which every MP agent benefits from, is a functional

independence that has to be seen in light of the MP’s unity and indivisibility.

Indeed, the agents that comprise the MP are under the aegis of a single higher body,

the State General Prosecutor’s Office,9 to the extent that the MP appears as a single

institution, with the division being essentially functional. Thus, the principle of unity has

an administrative character. The organisation of the MP into various sectors only

intends to establish a rational division of labour; however, all agents in the different

sectors are guided by the same principles and goals, thus constituting a single

institutional body.

The indivisibility of the MP is a direct consequence of its unity. Thus, a MP agent can be

replaced by another without any practical implications, since acts are regarded as

practised by the MP and not by a single individual. The entity that is present in all cases

is the MP, albeit through a given agent. The term "representative of the Ministério

Público",10 therefore, is not technically correct when referring to MP agents.

This principle allows MP agents to be replaced by another during cases. However, the

replacement cannot be made arbitrarily: it has to be done in line with terms provided

by law (in case of promotion, transfer, suspension, dismissal, retirement, death, etc.),

without constituting or implying any procedural change. Incidentally, Article 4 of the

Statute envisages that

"agents of the Ministério Público can be replaced according to the

provisions of this law".

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

8 Article 8 (Agents) of the MP Statute states:

1 — The agents of the MP are:

a) The General Prosecutor;

b) The Deputy General Prosecutor;

c) The Assistant General Prosecutors;

d) The Prosecutors;

e) The Assistant Prosecutors.

9 Article 7 (Organs) of the MP Statute

The bodies of the MP are:

a) The State General Prosecutor’s Office;

b) The District General Prosecutor’s Offices;

c) The State Prosecutor’s Offices.

10 Article 4 (Representation) of the MP Statute:

1 — The MP is represented before the courts:

a) In the Supreme Court of Justice, the Constitutional Court, the Supreme Administrative Court, the

Supreme Military Court and in the Court of Auditors, by the State General Prosecutor;

b) In High Courts and the Central Administrative Court, by Assistant General Prosecutors;

c) In Courts of First Instance, by prosecutors and Assistant Prosecutors.

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Thus, the principle of functional independence means that MP agents act independently

in the exercise of their duties. They base their conduct on law and personal conviction,

and may refuse to comply with illegal directives, orders and instructions on the grounds

of them being a serious violation of their legal conscience. Accordingly, the hierarchical

subordination of MP agents exists only at an administrative level, not functionally.

In short, the autonomy of the MP is characterised by its links to legality and objectivity

criteria and by the exclusive subjection of agents of the MP to directives, orders and

instructions provided by law.

3. The international institutional framework

Introducing and reviewing the national constitutional framework of the MP and its

agents can help understand the role of the Prosecutor in international criminal justice

as perceptions are usually preceded and influenced by perceptions of the national

justice. Identity and the institutional framework in which the Prosecutor stands

internationally will be examined below in order to understand the evolutionary process

and historical circumstances behind the positon’s existence, as well as its importance

today.

The Prosecutor of the International Criminal Tribunal for the former

Yugoslavia

In 1993, the UN Security Council created the International Criminal Tribunal for the

former Yugoslavia (ICTY).11 The sheer scale of human rights violations in Bosnia and

Herzegovina – think of the images of destroyed cities and people looking like cadavers

in the death camps of Omarska, Keraterm and Trnopolje12 – generated huge

international outcry and prompted the international community to embark on its first

course of international criminal justice since the Nuremberg and Tokyo trials.

Article 16 of the ICTY Statute states that:

The Prosecutor shall be responsible for the investigation and

prosecution of persons [allegedly] responsible for serious violations

of international humanitarian law... The Prosecutor shall act

independently as a separate organ of the International Tribunal.

He or she shall not seek or receive instructions from any

Government or from any other source.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

11 On 25 May 1993, the UN Security Council formally adopted Resolution 827, establishing the International

Criminal Tribunal for the former Yugoslavia, known as the ICTY. This resolution contained the ICTY

Statute, which determined the Court's jurisdiction and organisational structure as well as criminal

proceedings in general terms. This was the first war crimes tribunal established by the UN and the first

international court of war crimes since the Nuremberg and Tokyo trials. This date marked the beginning of

the end of impunity for war crimes in former Yugoslavia.

12 This situation was tried at the ICTY, Kvočka et al. (IT-98-30/1) "Omarska, Keraterm & Trnopolje Camps";

in the BiH Court, Mejakić et al. (IT-02-65) "Omarska and Keraterm Camps".

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A similar decision was made with regard to the Prosecutor of the International Criminal

Tribunal for Rwanda (ICTR), according to Article 15 of the ICTR Statute. Paragraph 3 of

the Article states that

"the Prosecutor of the International Criminal Tribunal for the

former Yugoslavia shall also serve as the Prosecutor of the

International Criminal Tribunal for Rwanda".13

As shown in Articles 16 and 15 of the Statutes of the ICTY and ICTR respectively, the

Prosecutor is independent and does not seek or take instruction from any government

or international organisation, or from any of the other two organs of the Court. The

ICTY Prosecutor’s Office is mandated to investigate and prosecute those presumed

responsible for serious violations of International Humanitarian Law (IHL) committed in

the territory of the former Yugoslavia.14

[In early 1994] the Office of the Prosecutor has had to invent

itself. Starting from nothing... a staffing plan was first formulated

and qualified and experienced staff were recruited. Then an

information management and litigation support system was

developed... Following the work of the investigators, the final stage

of the Prosecutor's task begins with the framing of indictments and

the ensuing trial process.15

Indeed, the ICTY Prosecutor's Office investigated many of the worst atrocities that have

taken place in Europe since World War II – such as the 1995 Srebrenica massacre –

and has prosecuted civilian, military and paramilitary leaders for crimes and atrocities.

In 2011, the last two accused by the ICTY Prosecutor, Ratko Mladić and Goran Hadžić,

were arrested and transferred to a UN detention centre in The Hague after many years

on the run, thus ensuring that none of the 161 individuals accused went unpunished.16

The Prosecutor's Office is headed by a Prosecutor appointed by the UN Security Council

for a renewable term of four years. A Deputy Prosecutor is appointed by the UN

Secretary General.

In accordance with the Resolutions of the Security Council and the Statute of the

Tribunal – notably pursuant to Chapter VII of the UN Charter – UN Member States are

obliged to cooperate with the Prosecutor’s Office in the investigation and prosecution of

persons accused of committing serious IHL violations.

The Prosecutor's Office was organised into an investigation division and a prosecution

division. The latter had three sections: trial, appeal, and information and evidence. The

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

13 For this reason, only the Prosecutor of the ICTY is mentioned here.

14 Since 1 January 1991.

15 ICTY Annual Report, A/49/342, S/1994/1007, of 29 August 1994.

16 In accordance with the Tribunal’s completion strategy, the final charges were issued in late 2004.

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Prosecutor's Office employed staff (such as police officers, investigators, forensic

experts, analysts, lawyers, trial lawyers and legal advisers) from approximately 80

countries, whose experiences with national systems were combined into a single

system of international criminal procedures.

When the ICTY began its pioneering work of investigating and prosecuting perpetrators

of serious IHL violations, the statute only gave the Prosecutor the power to "initiate

investigations" and "to question suspects, victims and witnesses, collect evidence and

conduct investigations on the ground".17 Unlike the criminal codes of national legal

systems, the ICTY Statute contains a rather limited set of legal tools to investigate and

prosecute crimes in the jurisdiction of the International Tribunal.

The situation that the ICTY Prosecutor faced in carrying out the mission was completely

different from the one Prosecutor Robert Jackson met in the Nuremberg Tribunal. In

the latter case, the accused were within reach, the archives were open and the

witnesses were available; in the former Yugoslavia, everything took place at a distance

(between The Hague and Belgrade, Sarajevo and Zagreb) and within sovereign

countries that were unwilling to detain suspects or cooperate with the Prosecutor.

At the beginning in 1994, even those who encouraged and supported the establishment

of the ICTY doubted that it would have any impact or success. Almost twenty years

later, its jurisprudential legacy and its effect on peace and reconciliation remain a topic

of vibrant academic debate. For the ICTY, it is generally accepted that there is a before

and after, with new precedents being set for international law, international criminal

justice and international humanitarian law.

Indeed, with the establishment of the ICTY, the UN Security Council hoped to deter

civilian and military officials of the former Yugoslavia from committing further

atrocities, sending a clear message that those responsible for atrocities would be

brought to justice. Unfortunately, the establishment of the ICTY had little or no

deterrent effect, with the Srebrenica massacre in July 1995 – the greatest crime of all

in the armed conflict – occurring after the tribunal had been established. Following

Srebrenica, the Prosecutor filed charges and arrest warrants were issued against the

Bosnian Serb leader Radovan Karadžić and his Chief of General Staff, General Ratko

Mladić. Again, many doubted that they would ever face justice; however, they were

arrested and transferred to The Hague’s detention centre in 2008 and 2011

respectively.

The ICTY was created in May 1993. The conflict began in 1991 and ended in December

1995 with the Dayton Accord. Even before that date, and during the conflict, the

Prosecutor sent several investigation teams to Bosnia and Herzegovina (BiH).

In 1996, the Bosnian Serb Duško Tadić became the first to be tried for war crimes and

crimes against humanity at the ICTY. This case was an important sign that the Tribunal

would prosecute the perpetrators of serious international crimes. The evidence and

testimonies collected for the trial of Duško Tadić proved to be very useful in the

Prosecutor's guidance for other cases, a bottom-up approach that culminated on 28

June 2001 with the arrest of former President Slobodan Milošević.

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17 The statute is silent as to how to accomplish these tasks and by what means. In fact, there are more

paragraphs in the Statute on the appointment and qualification of the judges than on skills and research

tools.

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The ICTY created a large and rich body of jurisprudence that decisively influenced

international criminal justice and which, to a large extent, has been adopted by the

International Criminal Court (ICC). For approximately two years (1996-1997), the

Prosecutor investigated the July 1995 Srebrenica massacre. On 2 November 1998, the

Prosecutor filed an indictment. The trail started on 13 March 2000 and ended on 2

August 2001. The trial took place over 98 days, with hearings lasting five hours a day.

Being a first for European history, the July 1995 Srebrenica massacre was judged by

the Tribunal as genocide.

The most immediate goal of the ICTY was to end impunity and prosecute those

presumed responsible for the most serious crimes in the former Yugoslavia. Another

more ambitious and long-term goal was to contribute to peace and reconciliation in the

region and provide resolution for victims and their families.

The Prosecutor of the International Criminal Court

On 17 July 1998, the international community reached a historic landmark when 120

States adopted the Rome Statute, through which the ICC Statute was approved. The

Rome Statute entered into force on 1 July 2002 after ratification by 60 countries,

including Portugal.

One of the ICC organs is the Prosecutor's Office, which is responsible for receiving

reports of the crimes that fall within its jurisdiction, examine them and eventually

institute criminal proceedings.

The roots of the ICC Statute are close to those of the ICTY and the ICTR, although

there are differences regarding several legal and structural characteristics. In fact, the

ICC is a permanent judicial body with universal reach18 and its activity complements

that of national courts.19 The ICTY and the ICTR are subsidiary bodies of the UN

Security Council; the ICC was established and is maintained by the Assembly of States

Parties, who acceded to the Treaty of Rome. The UN Security Council appoints the

Prosecutors of the ICTY and the ICTR; in the case of the ICC, the Prosecutor is elected

by States party to the Treaty of Rome. One of the major differences in the two ad hoc

tribunals is the possibility for victims to appear before the ICC to express their opinions

and to claim reparation for the injustices they have suffered.20

The Court's exercise of jurisdiction is dependent on referrals being made to the

Prosecutor by a State Party or by the UN Security Council, whenever one or more

crimes have been committed within its jurisdiction (Article 13 of the ICC Statute).

Information received by the Prosecutor about crimes committed within the Court's

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18 The ICTY and ICTR are ad hoc tribunals with limited territorial and temporal jurisdiction. It can be said

that the ICC is forever and for all. The difference between ad hoc and permanent justice was and still is a

major obstacle to the ratification of the Rome Statue by some countries, which, having supported ad hoc

justice solutions (in the case of some countries and if deemed convenient), are reluctant to support a

permanent justice solution (for all and on every occasion).

19 The jurisdiction of the ICTY and ICTR is concurrent with that of national courts and has primacy over

national courts. The ICC operates on the principle of complementarity, i.e. exercising jurisdiction only

when national courts are unwilling or unable to genuinely investigate and prosecute.

20 In the former Yugoslavia and Rwanda tribunals, victims stood before the courts as witnesses. However, in

the ICC Statute, victims were elevated to the category of procedural participants in their own right.

Indeed, several provisions in the ICC Statute stipulate the involvement of victims at all stages of the

proceedings. Most importantly, victims of international crimes can claim redress for violation of their

rights.

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jurisdiction may lead to the initiation of an investigation by itself if it is believed that

there are sufficient grounds to do so and if the Pre-Trial Chamber's permission to start

the investigation has been obtained (Article 15 of the ICC Statute). When conducting

investigations, the Prosecutor has to trigger some preliminary decision on admissibility

to ensure the functioning of the complementarity principle of intervention (Article 18 of

the ICC Statute). That is,

"it is the duty of every State to exercise its criminal jurisdiction

over those responsible for international crimes" (Preamble of the

ICC Statute);

the Prosecutor may start criminal proceedings only if the State is genuinely unable or

unwilling to investigate and prosecute.

The Prosecutor may, as a rule – only once and before the trial or at its commencement

– ask the ICC to rule on issues related to jurisdiction and admissibility. If it is decided

that an inquiry is to be transferred to a State, the Prosecutor may request the State in

question to pass on information about the progress of the proceedings. This information

should be kept confidential if the State so requests. If the Prosecutor thereafter decides

to open an investigation, the decision must be shared with the State in question (Article

19 of the ICC Statute).

Article 42 of the ICC Statute, in its nine paragraphs, presents the ICC Prosecutor’s

Office as acting autonomously from the Court. It is chaired by the Prosecutor and

assisted by one or more Deputy Prosecutors, who must be highly competent individuals

of high moral character with extensive practical experience in the prosecution or trial of

criminal cases. The Prosecutor is elected by the members of the Assembly of States

Parties through a secret ballot and must gain an absolute majority. The Prosecutor and

the Deputy Prosecutors are subject to the exclusivity rule and they may be subject to

disqualification if their impartiality is in question.

A Victims and Witnesses Unit, established within the ICC Registry, takes protective

measures and prepares security arrangements. It also provides counsel and other

assistance to witnesses and victims who appear before the Court, or others at risk

(Article 43 of the ICC Statute).

The Prosecutor appoints

“such qualified staff as may be required to [its] respective

[office]”, namely, investigators. In the employment of staff, the

Prosecutor ensures the “highest standards of efficiency,

competency and integrity”.

In exceptional circumstances expertise of seconded personnel offered by States Parties,

intergovernmental organisations or non-governmental organisations may be employed

(Article 44 of the ICC Statute).

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The Prosecutor, Deputy Prosecutors and staff from the Prosecutor’s Office, when

engaged in the business of the Court, enjoy privileges and immunities that are

necessary to the fulfilment of their duties (Article 48 of the ICC Statute). The primary

function of the Prosecutor is to investigate and prosecute the perpetrators of massive

violations of human rights and IHL.

It is possible to discern some similarities between the prosecution of massive crime

violations internationally and the prosecution of organised crime at a national level.

There are also important differences that make the types of procedure dissimilar. At

least two in international prosecution stand out. The first has to do with a lack of

external administrative structure able to carry out investigations in the territory of a

State without its help – as well the absence of an international police force to make

arrests, giving paramount importance to the State's cooperation.21 The second is that

the procedural model of international criminal tribunals is a combination of elements of

the accusatory system (common law) and the inquisitorial system (civil law).

Several concepts and procedures from both legal traditions can be found in the

Statutes of the Courts and the Procedure and Evidence Rules; in the approach of the

Prosecutor, judges and defence lawyers; in the introduction of evidence; and the

manner in which the case is conducted in general.

As a result of that combination of elements of the different legal systems, some general

principles are acquired in relation to the international rules of evidence: national rules

of evidence not binding, application of the rules of evidence which best favor a fair

determination of the matter, admissibility of any relevant evidence with probative

value, exclusion of evidence if its probative value is substantially outweighed by the

need to ensure a fair trial, possibility of verification of the authenticity of evidence

obtained out of court and reception of the evidence of a witness orally or, where the

interests of justice allow, in written form22. Further examples of that combination in the

production of evidence are the testimony of the accused23 and a statement of the

accused24 (common law), and the possibility for the Court proprio motu to summon

witnesses and order their attendance25 (civil law).

Still, some methods commonly used in national criminal proceedings may be of use

internationally, such as resorting to "insiders" as witnesses. Although national systems

are aware of this practice, it may have a particular meaning in the context of the

prosecution of international crimes, especially when the accused enjoy top hierarchical

positions. It may also be relevant in certain forms of criminal participation (such as

joint criminal enterprise). The testimony of an insider in a case of joint criminal

enterprise is one of the best ways to prove the purpose of the criminal enterprise and

its members. Insiders can and should be used in complex criminal cases, because

finding evidence of a complex criminal organisation and its leaders can be difficult and

consuming in terms of time and resources.

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21 Section 9 of the ICC Statute provides for international cooperation and judicial assistance of the States

Parties. Article 86 (General Obligation to Cooperate) establishes that “States Parties shall, in accordance

with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of

crimes within the jurisdiction of the Court”.

22 Rule 89 of ICTY Rules of Procedure and Evidence. See also Article 69 of the ICC Rules of Procedure and

Evidence.

23 Rule 85 C of ICTY Rules of Procedure and Evidence

24 Rule 84 bis of ICTY Rules of Procedure and Evidence

25 Rule 98 of ICTY Rules of Procedure and Evidence

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Although similar investigating tools or legal concepts can be used nationally, unique

challenges arise when investigating and prosecuting international crimes. Some are

obvious, such as a lack of police or enforcement officers; others are less obvious, such

as the impact of the combined common law/civil law process.

Such challenges have an impact on the type of investigation methods, the recruitment

of personnel as well as the legal tools used and their effectiveness. Only a mix of

traditional and innovative criminal investigation tools and a balance of the different

national legal cultures can ensure effective investigation and prosecution of

international crimes.

Similar to what had happened with the ICTY, the ICC adopted the accusatory model,

which is one of the fundamental pillars on which all functions and activities of the

Prosecutor stand. Thus, it is up to the Prosecutor to investigate à charge et à dècharge

suspicions of the existence of crimes and, where appropriate, indict suspects. However,

there are at least three important exceptions in the accusatory model.

Firstly, as at Nuremberg and Tokyo, there are no technical rules for the admissibility of

evidence. Consequently, all relevant evidence may be included in the process unless

their probative value is substantially offset by the need to ensure a fair trial or if the

evidence was obtained through serious violations of human rights.

Secondly, while in the accusatory system courts must normally be satisfied with the

evidence submitted by the parties, the Court may proprio motu order the production of

additional evidence. This allows the Court to be fully satisfied with the evidence on

which it bases its final decisions. It was considered that, in the international sphere, the

interests of justice are best served by this provision and that the decrease, if any, of

the rights of the parties is minimal by comparison.

Thirdly, the granting of immunity and plea-bargains have no place in the Rules of

Procedure and Evidence. It remains entirely a matter for the Prosecutor to determine

whom to investigate and to prosecute. Cooperation of an accused person will also be

taken into account as a mitigating circumstance, as well as for the purpose of granting

pardon or commutation of the sentence. The Prosecutor's Office operates independently

from the Court's judges. There is, however, a close and cooperative relationship

between the Prosecutor’s Office and the rest of the Court in administrative, personnel

and other issues related to the functioning of the Court as a whole.

The selection of personnel is a demanding and time-consuming exercise. It is no

exaggeration to note that the success of the Court as a whole depends largely on the

quality of the Prosecutor's Office investigation staff. Having experienced and qualified

prosecutors is important: If the prosecution evidence is not exhaustive, relevant and

complete – or is insufficiently prepared – the risk of failure of the charge is high, given

the principle of in dubio pro reo and the requirement of evidence beyond reasonable

doubt.

The ICC Prosecutor, as in other cases, governs actions through the principle of

mandatory prosecution whenever there are elements of criminal conduct and action

must be taken, and when not acting is not an option. There is no police force at an

international level. Thus, the Prosecutor must rely on the support of State police in

carrying out investigation, accusation and prosecution functions. There is no

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international enforcement body, but the Prosecutor can count on numerous other

investigation mechanisms, be them governmental or not.

The Prosecutor's Office is one of the organs that make up the Court (Article 34 of the

ICC Statute). Article 42 of the ICC Statute guarantees its functional autonomy, stating

that the Prosecutor “shall act independently as a separate organ of the Court”. The

Prosecutor is responsible for receiving, through any suitable form, notitia criminis about

crimes within the jurisdiction of the ICC and then investigates and institutes criminal

proceedings.

The Prosecutor may also propose amendments to the Elements of Crimes (Article 9 (2)

of the ICC Statute) and the Rules of Procedure and Evidence (Article 51 (2) c) of the

ICC Statute). For an independent and impartial ICC, the Prosecutor enjoys privileges

and immunities in carrying out duties in the territory of each State party (Article 48 of

the ICC Statute).

The Prosecutor's Office is headed by a Prosecutor (who holds full directive and

administrative powers) and assisted by dedicated Deputy Prosecutors of different

nationalities, working on a full-time basis.

4. The Prosecutor and international criminal procedure

The international criminal procedure is different from the national in several ways. One

of the most striking differences is the symbolic function of international criminal

procedures, which are deemed essential to the peace and reconciliation process in post-

armed conflict societies; in other words, there can be no peace without justice and

reconciliation. “Thus, Peace and Justice go hand in hand” (Antonio Cassese).

However, this is only possible when the communities involved give legitimacy to these

procedures, and when the messages of the procedures are received and accepted by

their communities. Thus, if courts are to contribute to peace and reconciliation in

affected communities, there is a need to communicate with the people involved.

Although much progress has been made over the past decade, outreach programmes

remained a significant challenge for ad hoc tribunals and still remain for the ICC.

In addition to these external communication obstacles, there are also internal barriers.

On the one hand, there are those who repeatedly ask for more resources to enable the

court to achieve their ambitious goals. On the other hand, others question whether it is

appropriate for prosecutors and judges to be involved in dissemination activities. After

all, the international criminal courts are modelled on national courts, which, as a rule,

do not have such a role.

Domestic prosecutors and judges focus mainly on the technical elements of crimes and

procedural aspects of the case. In addition to the application of the law, any activity is

considered to be "political" (a taboo term). Nevertheless, it should be pointed out that

the rhetorical functions of international criminal law are fundamentally different from

nation legislation. There are important reasons for international courts to carefully

manage public evaluation and their image, which incidentally should also be done at a

national level.

International criminal justice is still in its infancy. The ICTY, as the first ad hoc tribunal

in recent history, was established only two decades ago. Unlike domestic criminal law

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that could be centuries old in terms of history and jurisprudence, there is still a lack of

understanding about what purpose the international criminal tribunals serve. The ICC

also remains either unknown or unaccepted in many parts of the world.

Besides this alienation and ignorance, international criminal justice is normally intended

for communities with little previous experience of an impartial and independent

judiciary – otherwise they would be willing and able to investigate and prosecute the

crimes by themselves. It is therefore important for international criminal law to

establish a new beginning for these communities and to be an example to the national

courts. This is only possible if the public has a positive and fair view of international

criminal courts.

International criminal justice essentially covers genocide, crimes against humanity and

war crimes. Of course, communities devastated by these crimes are traumatised,

fearful, eager to find a culprit, and take revenge. In turn, in most cases, local

politicians and media agitate these feelings, jeopardising the peace and reconciliation

process, with no other help being available, except the intervention of international

courts. National criminal law seeks mainly to punish and prevent crimes; international

criminal law is intended to also contribute to peace, reconciliation, security and the

wellbeing of the international community.

Being a case of massive violations of human rights and international humanitarian law,

the Srebrenica massacre presented exceptional legal and logistical challenges due to

the large number of victims, witnesses, forensic investigations, incidents and

supporting documents involved,26 as well as the original legal complexities of the

various crimes in question.27

The ICTY and the ICTR were created as auxiliary bodies to the UN, which until then had

never practised international criminal justice. Therefore, the need to strike a balance

between the priorities of criminal operations, the detention of suspects and compliance

with other UN principles posed legal, institutional and operational challenges specific to

the Prosecutor in terms of fulfilling mandates to investigate crimes and initiate criminal

proceedings before the Court. These challenges increase with the complexity of crimes,

their size, the safety concerns of potential witnesses, and the fact that in the early

years arrests of suspects often preceded the investigation.28

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26 In the first instance, and after much filtering in the preparation for trial, the case had 103 witnesses called

by the Prosecutor; 13 witnesses called by the Defence (including the very General Radislav Krstić). The

Prosecutor filed 910 documents (some of which extensive dossiers) and the Defence presented 183

documents.

27 See ICTY, KRSTIĆ (IT-98-33) "SREBRENICA DRINA CORPS" and other related cases: BLAGOJEVIĆ &

JOKIĆ (IT-02-60) “SREBRENICA; ERDEMOVIĆ (IT-96-22) “PILICA FARM”; KARADŽIĆ (IT-95-5/18)

“BOSNIA AND HERZEGOVINA” & “SREBRENICA”; MILOŠEVIĆ (IT-02-54) “KOSOVO, CROATIA AND

BOSNIA”; MLADIĆ (IT-09-92) “BOSNIA AND HERZEGOVINA” & “SREBRENICA”; NIKOLIĆ MOMIR (IT-02-

60/1) “SREBRENICA”; OBRENOVIĆ (IT-02-60/2) “SREBRENICA”; ORIĆ (IT-03-68); PERIŠIĆ (IT-04-81);

POPOVIĆ et al. (IT-05-88) “SREBRENICA”; STANIŠIĆ & SIMATOVIĆ (IT-03-69); TOLIMIR (IT-05-88/2)

“SREBRENICA”; TRBIĆ (IT-05-88/1) “SREBRENICA”.

28 When investigating and prosecuting massive violation of human rights or international humanitarian law,

it is extremely important to first investigate suspected violations, then jointly indict the suspects who

participated in the same criminal action, and arrest the accused in an organised manner. Those suspected

of having committed war crimes are heroes to the other side of the conflict and keep communication lines

and networks of relationships that can disrupt investigations, destroy evidence, intimidate witnesses, and

organise escape from detention.

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5. Some questions

Genocide, crimes against humanity and war crimes are, by definition, massive.

International crimes can be widespread and systematic, with multiple offenders and

victims. Thus, perpetrators are often coordinated and organised by senior military

and/or civilian officers. Their nature requires national jurisdictions to have a different

approach in terms of "selecting", investigating, indicting, proving, adjudicating, defining

responsibilities, punishing, repairing, and enforcing penalties.

In short, this means that criminal theory built on common cases of individual criminal

offense is unsuitable in cases of massive criminal violations. In all, prosecuting war

crimes is not the same as dealing with common individual criminal cases.

In addition, a national court with jurisdiction to try war crimes must regard the cases as

urgent and recognise their international impact, considering the circumstances and

nature of violations of IHL. In fact, war crime trials must be timely, given the

requirements of peace and reconciliation processes, and conducted by independent and

impartial judges. National judges, even if they have not taken up arms in conflict,29 in a

sense have always taken the side of a party in the conflict. In principle, those who took

part in a conflict cannot be completely independent and impartial or, at least, cannot be

publicly perceived as such. Justice must be done and must be seen to be done.

Is there a need for strategy in the prosecution and trial of war crimes? The answer is

clearly yes. The Prosecutor must act with a view of closure and completion considering

that: war crimes are usually committed in the past; most criminal operations have

been investigated and documented by different public and private entities; the majority

of suspects have been identified; there is a risk of losing evidence; fatigue and a lack of

witnesses motivation increases over time; new generations are more focused on the

future; expeditious and fair trials are the only way to close the door to the past and

open the door to the future30; and justice is about the past and reconciliation is about

the future.

After considering these points, the Prosecutor is asked how many cases to investigate

and prosecute and what strategy (selecting and mapping cases, establish interactive

and centralised databases, and deduce accusations) 31 is being considered. The

Prosecutor also needs to take into account available resources (human, financial and

material) and organise interaction in order achieve the common goal of closing the door

to the past.

The joint criminal enterprise is particularly applicable in circumstances when senior

leaders share the intent of committing a crime and each contributes to fulfilling the

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29 Most armed conflicts that took place after World War II were not international conflicts, but civil wars.

Thus, the public perception of independence and impartiality of the Court becomes even more important

and decisive. Without this dimension, trials, regardless of how fair and fast they may be, will have no

effect and impact on the peace and reconciliation process of communities.

30 In Sarajevo (2008) diplomats said that the issue of "war crimes" in Bosnia was poisoning the political,

social and economic environment, as well as personal relationships. It was necessary to clean up this type

of poison and close the issue of war crimes as quickly as possible.

31 See the Office of the UN High Commissioner for Human Rights, Rule-of-Law tools for post-conflict States,

Prosecution initiatives, UN, New York and Geneva, 2006.

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criminal purpose. The relationship among perpetrators may or may not be hierarchical,

although this is not decisive.32

It is the practice of joint murder with shared intention that defines relationships. Even if

perpetrated by others, enterprise members, and not necessarily those individuals who

physically carried out the crimes, are culpable. The concept reflects a reality where

large-scale atrocities are committed by the combined action of various forces or agents,

and criminal purpose can only be shared by leaders who take action to achieve their

ends.

In August 2003, the Security Council issued Resolution 1503, urging the ICTY to "focus

on the prosecution and trial of senior leaders suspected of being responsible for crimes

within the jurisdiction of the ICTY" and transfer other cases to competent national

courts in Bosnia, Herzegovina, Croatia and Serbia.

The transfer of a case from an international to a national court proved to be a complex

subject and raised a series of new legal and organisational issues that were difficult to

foresee and solve. However, the efficient and effective manner in which the War Crimes

Section of the Court of Bosnia and Herzegovina – in cooperation with the ICTY –

handled the situation should be stressed.33

Other legal principles that were also developed as a result of the transfer process also

deserve analysis. They include the development of the ICTY and Court of Bosnia and

Herzegovina Prosecutors’ cooperation mechanisms, the notion of "proven facts" and

"documental evidence" from the ICTY proceedings. These developments contribute to

the heritage of the ICTY, leaving a lasting legacy for future national courts dealing with

international crimes. Despite the different legal natures of the ICTY and the ICC, this

experience can be seen as supplementing the principle of complementarity and

constitutes critical learning for the future relationship between international and

national criminal jurisdictions.

One of the pre-project objectives of investigation in "International Criminal Justice" is

"to bring about new proposals for some of the problems that currently arise in the

context of international criminal justice".

Given the above, and particularly due to the nature of war crimes, some relevant

questions regarding the work of the Prosecutor in international criminal justice will need

to be asked in the hope that they will translate into new proposals for some of the

problems that currently arise from international criminal justice.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

32 On the contrary, the hierarchical relationship is crucial for assessing and establishing the responsibility of

the superior, be it civil or military, i.e. de jure or de facto responsibility.

33 The case of Radovan Stanković was the first to be transferred from the ICTY to the War Crimes Section of

the Court of Bosnia and Herzegovina. On 10 July 2002, he was placed in custody in the ICTY detention

unit. On 1 September 2005, the ICTY decided to transfer the case to the Court of Bosnia and

Herzegovina, and on 29 September 2005, the accused was transferred to Bosnia and Herzegovina. On 7

December 2005, the indictment was confirmed/accepted. This was also the first "11bis case" finalised in

the Court of Bosnia and Herzegovina. In fact, on 14 November 2006, the first trial sentenced Radovan

Stanković to crimes against humanity and imposed a prison sentence of 16 years. On 28 March 2007, the

Board of Appeal modified the sentence to 20 years. Other cases transferred from the ICTY to the Court of

Bosnia and Herzegovina were Ljubičić (IT-00-41) ''Lašva Valley''; Mejakić et al. (IT-02-65) "Omarska and

Keraterm Camps"; Stanković & Janković (IT-96-23/2) "Foča"; Todovic & Rasevic (IT-97-25 /1) "Foča";

Trbic (IT-05-88/1) "Srebrenica"; Stanković & Janković (IT-96-23/2) "Foča" ; Todović & Rašević (IT-97-

25/1) "Foča" ; Trbić (IT-05-88/1) "Srebrenica"

JANUS.NET, e-journal of International Relations

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Vol. 6, n.º 1 (May-October 2015), pp.140-157

The prossecutor in international criminal justice

Almiro Rodrigues

156

Accordingly, what will be the impact on court independence and impartiality, at least in

terms of public perception especially in cases of non-international armed conflict?

What criminals and crimes should be tried? How should charges of large-scale

international crimes be addressed? How should cases that are investigated and

submitted to trial be selected when it is impossible to try all those presumed as

responsible for the crimes committed in armed conflicts?

What form of criminal responsibility (individual, command or joint criminal enterprise)

does the Prosecutor choose to accuse suspects of having committed massive violations?

How should evidence be collected and taken to trail in order to build a case, given that

under certain circumstances it is not possible to gather modern evidence (i.e.

wiretapping, pictures, video and audio records). What if the investigation depends on

the cooperation of States that are not always willing to collaborate?

What about victims and witnesses? How should reparations for victims be determined?

What contribution, if any, does national law make to the process? Which concept of

reparation should be used, given that not all people displaced by conflict return home?

Should reparation mean collective reparation or a reconstruction of life?

How should investigation and prosecution at an international and national level should

be combined, given that international crimes contain general (chapeau elements, e.g.

widespread or systematic attacks) and more specific elements (underlying criminal

offences, e.g. murder)?

How should the proven facts be transferred from the international tribunal to the

national court and how should technical and human resources and criminal

investigation materials be shared?

What kind of evidence has proved to be useful in rendering serious IHL violations?

What are the challenges affecting the collection of relevant evidence? How should the

presentation of evidence, including collecting and stabilising witness testimony in order

to be used in different processes be optimised? For example, why subject a victim of

rape to different testimonies in different cases in different places on different dates? Is

it necessary and permissible to traumatise victims on behalf of justice and

reconciliation?

What are the most effective means of dealing with the external factors that influence

the investigation and prosecution of suspected IHL violations?

6. Conclusion

The Prosecutor in international criminal justice is an organ that is part of the

International Criminal Court. To some extent, duties and power nominally equate to

those at a national level; however, such powers and tasks differ substantially and

methodologically in the framework of international criminal justice. Experience required

nationally does help, but is clearly not enough for an efficient and effective performance

of duties at an international level. A special requirement is having a good

understanding of the dynamics of massive criminal violations and, consequently,

approaches to investigation, prosecution and some specifics of international criminal

proceedings.

JANUS.NET, e-journal of International Relations

ISSN: 1647-7251

Vol. 6, n.º 1 (May-October 2015), pp.140-157

The prossecutor in international criminal justice

Almiro Rodrigues

157

The challenges posed in the investigation and prosecution of large-scale crimes or

massive criminal violations committed years ago in a foreign sovereign country are

unique. Thus, it is both remarkable and surprising in many ways that tools of

investigation available to the Prosecutor have produced results that one can see and

quantify. It is important to remember that these legal tools were developed in an

environment with contributions from common law and civil law systems, and were

always geared towards answering the essential question of how to execute a fair and

expeditious trial. Although challenges remain, the work of the Prosecutor in

international criminal justice is a considerable achievement in the fight against impunity

for serious violations of human rights and international humanitarian law.

How to cite this article:

Rodrigues, Almiro (2015). "The prosecutor in international criminal justice." Notes and

Reflections, JANUS.NET e-journal of International Relations, Vol. 6, N. 1, May-October

2015. Consulted [online] on the date last consulted,

observare.ual.pt/janus.net/en_vol6_n1_not1