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Articles by Maurer Faculty Faculty Scholarship
1996
The War Powers in French Constitutional Law The War Powers in French Constitutional Law
Elisabeth Zoller
Indiana University Maurer School of Law
Follow this and additional works at: https://www.repository.law.indiana.edu/facpub
Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the Military,
War, and Peace Commons
Recommended Citation Recommended Citation
Zoller, Elisabeth, "The War Powers in French Constitutional Law" (1996).
Articles by Maurer Faculty
. 2799.
https://www.repository.law.indiana.edu/facpub/2799
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46
ASIL
Proceedings,
1996
theory
of
"Chapter
Six-and-a-Half"
operations,
that
is,
actions
that
go
beyond purely
diplomatic measures,
but
stop
short
of
enforcement
by
military
means.
By
analogy,
the
same
theory
applies
to
regional arrangements
under
the
UN
Charter,
where it
takes
the
form
of
"Article
Fifty-Two-and-a-Half"
actions.
As
for
peace-enforcement measures, the
Law
is
somewhat
ambiguous.
It
speaks
about
"international
enforcement
measures
involving the
application
of
armed force,
undertaken
under
the
decision
of
the
UN
Security
Council,"
but
it
remains
unclear
whether
that
provision
applies
to regional arrangements
as
well.
That
ambiguity
could be clarified
by
subsequent practice
of
the
Commonwealth
of
Independent
States, which
has
a
body
of
treaties
on
regional
peace
operations,
including
enforcement measures.
However,
that very
scenario
scares
some partners
of
Russia
in
that post-Soviet
arrangement.
The
Law
and
the practice
of
its
application, though
limited,
provide
a
partial
answer
to
the
question
raised
by
the
upper
chamber
of
the Russian Parliament
in
its petition
to
the
Constitutional Court, which
I briefly discussed
above.
Under
the
Law,
the
President
files
a
proposal
for
a
dispatch
of
troops with
the
upper
chamber.
The
proposal provides
details
of
the
area
of
operations,
mission, numerical
strength,
composition
of
a
contingent,
subordination, duration
of
deployment,
procedures
for
rotation
and
withdrawal,
as
well
as
of
salaries, allowances,
benefits
and
compensation
for
servicemen and
their
families.
The
proposal
is
then
voted upon
by
the
Council
of
Federation, and subsequently
the
President
issues
a
decree
ordering
troops into action.
Recently
the
procedure proved
to
be workable when
a
decision was
taken
to
send
a
Russian
airborne brigade
to
join
the
NATO contingent
in
Bosnia.
It
remains
to be
seen
what
would
happen,
however,
should
the
Council
of
Federation
reject
the
President's
proposal.
However, the Law
on
the
Provision
of
Personnel
avoids
instances to
which the
"Uniting
for
Peace" Resolution
of
the
UN
General
Assembly
could
be applied.
It
is
unclear
whether
drafters
of
the
Law
were influenced
by
traditionally
negative
Soviet
attitude toward
that
Resolution,
or
were
simply
unaware
of
its
existence.
Finally,
in
my
opinion,
the Russian Law
on the
Provision
of
Personnel contains
language
that
may
come
into
conflict with
certain
important
stipulations
of
the
UN
Charter,
although
these
Charter
provisions
are
dormant
at
this
moment.
Should provisions
of
the
Charter's
Article
43
be
activated,
and agreements
between
the
Security
Council and
member
states
be
concluded contributing
contingents
to
a UN
force, those contingents should
then
be
readily
available to
the
Security
Council
on
short
notice.
Those
requirements
notwithstand-
ing,
however,
the
Law
on
the
Provision
of
Personnel
sets
the
general
rule
that
the
Russian
Federation
shall
decide
whether
to take
part
in
a
peace operation
on
a
case-by-case
basis.
Despite
a
reference in
the
law
to
obligations
under
the
UN
Charter
and
other
international
treaties, these obligations
are
only
to be
"taken
into
consideration,"
while
the final decision
is
being worked
out.
This, then, has
been
a
brief
overview
of
the
evolving Russian
experience
with
regard
to
the
dispatch
of
troops
to
peace
operations.
THE
WAR
PowERs
IN
FRENCH
CONsTITrUoNAL
LAW
By
Elisabeth Zoller*
In France, the
war powers
are
addressed
by
constitutional provisions
very
similar
to
those
found
in
the Constitution
of
the United
States.
Like
the
President
of
the United
States,
the President
of
the
French
Republic
is
Commander
in
Chief.
Article
15
of
the
*
University
of
Paris
II.
Wednesday,
March
27:
Afternoon
47
Constitution
of
1958
provides:
"The President
of
the
Republic shall
be
Commander
of
the
Armed
Forces."
Like Congress,
the
French
Parliament
has
the power
to
declare
war.
Article
35
reads
as
follows:
"Parliament
shall authorize
the
declaration
of
war."
The
distribution
of
war
powers
between
the Executive
branch
and
the legislative
branch
was
adopted
well
before
the
Constitution
of
1958.
It
was
hammered out
in
1790
during
the
course
of
the
parliamentary
debate
that
followed
the
so-called
Nootka
Sound
attack.'
In
the
Nootka Sound
bay,
off
the
coast
of
what
is
now
British
Columbia,
British
boats
had
been
captured
by
Spanish
warships
and
London
was seeking
redress from
Madrid,
which
in
turn
refused
it.
Seeking
support
from
the
so-called
"Family
Compact"
(Pacte
defamille)
entered
into
by
the
Bourbons
of
France,
Spain,
the
two Sicilys
and
Parma
in
1761,
Spain
requested
French assistance
against
Great
Britain.
On
May
14,
1790,
Louis
XVI-at
that
time
still
King
of
France-proposed
an
appropriation
bill
to
the National
Assembly in
order
to
fit
out fourteen
French warships
in
the
case
of
a
conflict
with Great
Britain.
The
National
Assembly
passed
the
bill,
but
took
advantage
of
the
case
to
raise
the
constitutional
issue
of
the
right to
wage
war.
To
whom did
that right
belong:
to the
King
or
to
the
National Assembly?
The
decree
adopted
by
the National
Assembly
on
May
22,
1790
gave
a
balanced answer
to
the
question.
It
decided
that
the
right
to
declare
war
belonged
to the
National
Assembly,
whereas
the
right
to
conduct
the
hostilities-namely,
the
power
to
command
the
armed
forces-fell
within the
power
of
the
Executive.
Thus,
in
France
as
in
the
United
States,
war
powers
are
not
centralized
in one
hand,
but
shared
between
the
legislative
branch
and the
Executive
branch.
Such a
distribution
of
powers
may
be
considered
as
a
genuine implementation
of
the
republican
form
of
government,
which
requires
policy
judgements
to
be made
by
several
persons,
not
just
one.
The
republican
distribution
of
war
powers
between
the
Executive
branch and
the
legisla-
tive
branch
has
been enshrined
in
all
democratic
French
constitutions.
Leaving
aside
the
Vichy regime,
it
has
not
left French constitutional
law
since
1875,
when
the
Third
Republic
came into
being.
But
its
practical
implementation
has
never worked
very smoothly.
This
was
true
before the
Constitution
of
1958;
it
is
even more true
after
it.
The
War
Powers
Before
the
Constitution
of
1958
In
theory, practical
implementation
of
the
republican
distribution
of
war
powers
between
the
Executive
branch and
the
legislative
branch
is
supposed
to
unfold
in
a
three-step
procedure:
the
Executive
requests
Parliament
to
authorize
armed
operations;
Parliament
gives
its
authorization
to
the
Executive;
and the
Executive launches
the
armed
operation.
In
French
constitutional
practice,
things
never
worked
this way.
Regarding the
constitutional
practice
of
the
Third
Republic
(1875-1940),
the
first
wars
to
be
addressed
were
the
various colonial
wars
fought
by
France
in
North
Africa,
Sub-
Saharan
Africa
and
in
Southeast
Asia.
In
respect
of
all
these
wars,
the
Executive never
sought declarations
of
war
from
Parliament
because it
was
commonly
accepted
that
wars
were
waged
against
states,
not
against
peoples.
Under
international
law
in
force
at
that
time,
statehood
was
denied to
peoples
subject
to colonial
conquest.
Parliamentary
consent
was
however
obtained
through
the
usual mechanisms
of
the
parliamentary
regime,
namely
the political
accountability
of
the
Executive
before
Parliament. This
form
of
parliamentary
consent
worked
at
least
once
in
connection
with
a
colonial
war.
On
March
30,
1885,
the
Jules
Ferry
cabinet
was
overthrown
by
the National
Assembly
in response
to
the
military
disaster
encountered
by
the
French forces
in
the
Gulf
of
Tonkin. The
constitutional
practice
ran very
differently
following
the
outburst
of
the
two
World
Wars
in
1914
and
1939.
In
1914,
the
question
of
parliamentary
authorization
did
not
arise inasmuch
as
France,
being
'The parliamentary
debate
is
reproduced
in
ORATmURS
DE
LA
RgVOL.TION
FRAN4AISE,
T.I:
Las
CONSTmANTS
(1989).
48
ASIL
Proceedings,
1996
attacked-Germany
declared
war
on
France
on
August
3
and
Parliament
convened
on
August
4-had
no
need
to
formally
declare
war
on
Germany.
2
The President
of
the
Repub-
lic
sent
a
message
to
Parliament,
which approved
it
by
casting
a
vote
of
confidence
in
favor
of
the
government.
In
1939,
the
situation
was
the
opposite in
that
France had
to
declare
war
on
Germany
in
order
to
meet
her
treaty
obligations
toward
Poland.
Nonetheless
Parliament
did
not
formally authorize
the
government
to
declare
war
on Germany.
As
it
was abundantly
clear that
the
chambers did
not
have
the
political
will
to
declare
war,
the
government-in
order
to comply
with the
constitutional requirements
requesting parlia-
mentary
consent
to
war-had
to
circumvent
the issue
of
a
formal authorization
to
declare
war.
Instead,
it proposed
an appropriation
bill requesting
special
funds
in
order
"to
meet
the
needs
of
the
international
situation."
After
tumultuous
debates,
the
bill
was
unanimously
adopted.
This
vote
was
interpreted
by
the
government
as
implicitly
authorizing
it
to
declare
war
on Germany.
During the Fourth
Republic
(1946-1958),
France undertook
several
armed
interventions
abroad,
particularly
in
its
colonial empire.
These
interventions
were
never
subject
to "dec-
larations
of
war"
in
the
formal sense
of
the term,
nor
were
they
formally
authorized before
being
undertaken.
During
the
Suez
crisis
(1956),
for
example,
the
National
Assembly
merely approved
the
government's
policy
by
a
vote
of
confidence
that was
taken
on
the
very
same
day
the
ultimatum
addressed
to
Egypt
expired.
If
any
lesson
can
be
learned
from this
experience,
it
is
that
the law
in
the Constitution
is
one
thing,
and
the
law
in
action
another. However,
in
terms
of
constitutional
lawfulness,
the
situation
is
perhaps
less serious
than
it
looks at
first
glance
because
the
Third
and
the
Fourth Republics
were
parliamentary
regimes.
In
a
parliamentary
regime,
the
Premier
and
the
ministers
are
answerable
to
Parliament
for
the
Cabinet's
policy.
From this
basic
tenet,
two
consequences
follow.
On
the
one
hand, Parliament
can
always
force
the government
to resign
by
adopting
a
vote
of
defiance.
As
long
as
Parliament
does
not
act,
silence means
consent.
On
the other
hand
and
by
implication,
the
government
is always
supposed
to
conduct
policy with the support
of
a
parliamentary majority.
If,
however,
a
loss
of
confi-
dence
among
parliamentarians
occurs,
the
Cabinet
or,
depending
on
the
circumstances,
the
Minister
who
is
responsible
for
the
policy
under
attack,
is
expected
to
resign.
3
Therefore,
in
respect
of
the
constitutional
practice
followed
under
the
Third
and the
Fourth
Republics,
it
could
be
said
that,
as
long
as
the
government
remained
in
power
(that
is,
it
was
not
overthrown
by
a
vote
of
defiance),
armed
operations
that
were
not
previously
authorized
by
Parliament
were
in
fact
necessarily
approved
by
implication. This
constitutional
analysis
should
however
be
mitigated
by
the
political
realities,
in
particular
by
the
fact
that
parlia-
ments
in
most
parliamentary
regimes have been
progressively
infiltrated
by disciplined
parties that
distort
traditional
parliamentary
techniques
of
control
and
accountability.
War
Powers
After
the
Constitution
of
1958
Under
the
Fifth
Republic,
the
war
powers
were
not
a
constitutional
issue
until
the late
1970s.
Neither President
De
Gaulle
nor
Pompidou
sent
French
troops abroad
in
armed
intervention.
It
was
President
Giscard
d'Estaing
who
launched
the
first
peace
operation
in
1978
when
he
ordered
the
Legion
to
quell the
rebellion
in
Kolwezi,
Zaire. No preliminary
authorization
was
sought
from Parliament,
which discussed
the
matter
three
weeks
after
the
mission.
A
similar
pattern
was
followed
in
the case
of
the French
intervention
in
Chad
in
1983-but
the
parliamentary
debate
took
place even
later:
nine
weeks
after
the
mission.
Regarding
the
peace operations
undertaken
under
the auspices
of
the
United Nations,
2
The
point
is
made
by
M.
HAuRiou,
PRMcis
DE
DRorr
CONsTmrnorNmN.
422
n.45
(1962).
3
For
an
account
of
the
resignation
of Lord
Carrington
in
1982
after
the
unexpected
Argentine invasion
of
the
Falkland
Islands, see
C.
TuRPiN,
BRITISH
GOVERNMENT
AND THE
CONSMrION
432-33
(2d
ed.
1990).
Wednesday,
March
27:
Afternoon
49
they are always
decided-and
can
only
be
decided-by
the
President
of
the
Republic
in
his
capacity
as
Commander
of
the
armed
forces
(Article
15
of
the
Constitution).
However,
neither
in
the case
of
Lebanon
(1978)
or
Cambodia
(1991),
nor
in
the case
of
the
territory
of
Yugoslavia
(1992),
has preliminary parliamentary authorization
ever
been sought
from
Parliament.
According
to
the
Ministry
of
Foreign
Affairs,
UN
peace
operations
must
be
considered
as
undertaken
in
the
pursuance
of
the
UN
Charter.
For
all
practical purposes,
this
means
that parliamentary
authorization
must
be
considered
as
having been
given
by
anticipation
when
Parliament approved
the ratification
of
the
UN Charter.
This
reasoning
enables
the
government to claim
that
the
agreements
that
place
French
forces
under
UN
command
do
not
come
within
the categories
of
treaties
that
must
be approved
by
Parliament
and, in
a
more
general
manner,
that
"French participation
in
UN
peace
keeping
missions
finds
its
justification
in
the Charter
itself."
4
With the
exception
of
Article
16
on
emergency powers
(which
is
irrelevant
in
the
case
of
peace operations and thus
beyond the
scope
of
this
study,)'
the Constitution
of
October
4,
1958
did not
change the republican
distribution
of
war powers between the
Executive
branch and the
legislative branch.
6
The President
of
the
Republic
is
the
commander
in
chief
(Article
15)
and
Parliament must
authorize
the
declaration
of
war
(Article
35).
How-
ever, the manner
in
which
Article
35
is
today commonly
construed
by
French
legal
scholars
and
policy
makers
has
greatly
impoverished
the republican principle
of
shared
responsibili-
ties
in
respect
of
peace
operations.
The starting
point
of
the
legal
analysis
is
the
interpretation
given
to
Article
35.
It
is
widely
held that Article
35
has
become inapplicable
because
today
states
no
longer
may
declare
war.
French
scholars
contend
that
today
a
declaration
of
war
is
an
unlawful
act
under
international
law.
These
scholars
believe
that
the
only lawful
war
under
contempo-
rary international
law
is
a
war
of
self-defense, which
in
their
view
does
not
require declara-
tion.
Whatever
the
merits
of
the
argument,
which need
not
at this
point
be
discussed
from
an
international
legal
standpoint, there
is
no
doubt
that
the
alleged
impermissibility
of
a
declaration
of
war
explains
the
statement made
by
President
Mitterrand during the
Gulf
War
when
he
said
that
France
was declaring
war
on
no one,
but
was
acting
within
the
legal
framework
of
the
United
Nations.
However
he
also
said
that
Parliament would
be
referred
to
in
due
course.
7
Indeed, on
convocation
by
Decree
of
the
President
of
the
Republic,
Parliament convened
for a
special
session
on
January
16,
1991,
the
day
after
the
ultimatum to
Iraq
had expired.
The
parliamentary session
did
not
last
more than
an
afternoon. It
was officially closed
on
January
17, 1991
by a
Decree
of
the
President
of
the Republic.
Once
it
had decided
that Article
35
was
to
be
held
inapplicable
in
the case
of
the
Gulf
War,
the
government
had
no
other option
than to
find
a
substitute
in
the
traditional tech-
niques
of
the
parliamentary
regime
if
it
wanted-as
it
claimed
it
did-Parliament
to
be
in
a
position "to
exercise
its
power
in its
entirety."
8
Thus, it
put
into
question
its
political
responsibility
before the
National
Assembly
by
calling
a
vote
of
confidence
on its
policy
4
See
the
survey
of
French
practice
of
international
law
by
Charpentier
in
24
AFDI
1133-36
(1978)
and
28
AFDI
1065
(1982).
5Article
16
provides
in
part that "when
the
institutions
of
the Republic,
the
independence
of
the
nation,
the integrity
of
its
territory
or
the
fulfillment
of
its
international commitments
are
threatened
in
a grave
and
immediate manner,"
the
President
of
the
Republic-subject
to
certain procedural
conditions-shall
take
the
measures
commanded
by
the circumstances.
Fr.
Const., Art.16.
6
See,
EusABmmr
ZoTLTiR,
DRorr
DEs
RELATIONS
ExTrbmus
85
(1992).
7
D.
Maus,
Lapratique
institutionnellefrangaise:
ler
Octobre
1990-31
Dicembre
1990,5
REvuE
FAIMsE
DE
DRorr
CoNs'rrrtiorNL
91
(1991).
$See,
JouRNL
OmnciEL
DfBATS,
ASSEMBLtu
NA-IONALE,
Dec.
12,
1990,
at
6748.
50
ASIL
Proceedings,
1996
in
the
Gulf
War.
In
the National Assembly
as
well
as
in the
Senate, the
government
won
overwhelming
majorities.
The
problem
is
that
these votes
did
not
have
the
slightest
effect
on
the
decision
to
order
French
forces
to
participate
in
the
"Desert Storm"
operation
against
Iraq,
since
that decision
was
not
within
the
power
of
the
government
but
within
the
power
of
the
President.
Moreover, even before
the
votes
were taken
in
Parliament,
the
presidential
spokesman declared that
the
votes
would
not
affect
the
presidential
deci-
sion.
From
a
constitutional
standpoint,
that
statement
was
perfectly
correct since
the
French
President
is
not
politically responsible
before
the
National
Assembly.
Had
the
votes
how-
ever
been
negative, the
government
would
have had
to
resign. Had those events
occurred,
the
constitutional
and
political
situation
would
have been
quite
surrealistic, with
a
President
without
a
government having
to
enforce his decisions.
The
French
constitutional
practice followed
during
the
Gulf
War
is
a
very
instructive
experience.
The
most
important
practical
result
is
that
the
French
President
has discretion-
ary
power
to
decide
peace
operations
involving
armed
forces-operations
that
are
tanta-
mount
to
what
in
the
United
States
would be
considered
"war."
It
should
be noted
that
there has been hardly
any
objection
against
such
a
generous
interpretation
of
presidential
war
powers. Some commentators
went
so
far
as
to
say
that
there
was
no
need
for
Parliament
to
cast
a
vote
on
the issue because
Article
15,
which makes
the
President Commander
in
Chief,
was
itself
a
sufficient
legal
basis
for
the
President
to
order
French troops
to
join
the
American-led coalition.
Secondly,
it
is
now clear
that
Article
35
of
the
Constitution
is
widely
considered
to
be
obsolete.
9
This
is
the
crux
of
the
matter
because
Article
35
is
indeed the
only constitutional
check
against
the
Commander
in
Chief.
Mutatis
mutandis,
the
situation
is
as
serious
as
it
would
be
in this
country
if
presidential
war powers
were
to
be exercised
free
of
the limitations imposed
by the
U.S.
Constitution (Article
I,
See.
8)
or
by
the
War
Powers Act.
In
France,
it
turns
out
that
the
situation
would
not
be
such
a
disgrace
if
the
alternate
solutions
provided
by the
parliamentary
regime-namely,
the
political
accountability
of
the
Cabinet
before
the
chambers-could
be considered
as
ade-
quate substitutes.
Unfortunately,
this
is
not
the case
because
the
ultimate
responsibility
for
defense
and
foreign
policy
rests with the President,
not
the
government. Therefore,
the
traditional
techniques
of
the
parliamentary
regime
are
in
this
particular
case
meaningless.
In
conclusion, French constitutional
practice
has
reached
a
point
where the
distribution
of
war powers
is
seriously unbalanced
to
the
detriment
of
Parliament.
Constitutionally
speaking,
the
President
of
the
French Republic reigns
supreme
over
peace
operations
and
Parliament
barely has
a
say in
the
matter.
The
situation could
even
get
worse
with
the
Maastricht Treaty
and
the
Common
Foreign
and Security
Policy (CFSP)
that
is
supposed
to
take place
as
the
European
Union
is
taking
shape.
CFSP
provides
for
possible
peace
operations
under
the
name
of
"joint
actions."
Under
the
Treaty,
these
joint
actions
can
be
undertaken
without
preliminary
authorization
by
national
parliaments. They
are
not
even subject
to preliminary
consent
by
the
European
Parliament.
Last,
but not
least,
the
situation prevailing in France
contrasts
sharply
with
the
situation
in
Germany, particularly
since
the
judgement
handed
down
by
the
Federal Constitutional
Court regarding
the
partici-
pation
of
German
troops in collective
security
operations.
10
In
its
judgment
of
July
12,
1994,
the
Federal Constitutional
Court
decided
that
the German
Constitution permits
the
deployment
of
German troops
for
both
collective
peacekeeping
and
collective
peace-en-
forcement
missions.
However
the
Court
held
that
every
deployment
of
German
troops
9
See
the
commentary
made by Dabezies
on Article
35
in
LA
CONSTITTON
DE
LA
RFPUBLIQUE
FRANgAISB,
ANALYsEs
Er
COMMENTAmFS
775-77
(F.
Luchaire
&
G.
Conac, eds.,
2d
ed.
1987).
'o
See,
G.
Nolte,
Bundeswehreinsatze
in
kollektiven
Sicherheitssystem,
Zum
Urteil
des
Bundesverfassungsger-
ichts
vom
12.
Juli
1994,
54
ZAORV
652-755
(1994);
see
also,
id.
at
684-85
(English summary).
