Bqe-recherche avancée

Fr. Concert des nations, équilibre des forces, puissance

→ empire, globalization, state, transnational

Conventionally, the field of International Relations is concerned with how governments behave towards one another through diplomacy, war, trade, alliances, dominance, dependency and international cooperation. As an analytical tool, the term has nevertheless led to confusion between nation and state, given that both the League of Nations and the United Nations included sovereign states only. To that extent, a “concert of powers” obviously excludes any other category of actors, such as the third sector, INGOs, international trade unions, private companies, associations of parliaments or the Intergovernmental Panel on Climate Change (IPCC).

Moreover, when “international” (understood as “interstate”) relationships are seen in a long-term, historical perspective, it turns out that in the ancient world, order meant empire. Even in 1989 when the political systems of three centuries came to an end in Europe, what disappeared under the balance-of-power label was the imperial urge rooted in the past. It was not just the end of the Cold War, but also the end of a state system in Europe that dated from the 1648 Peace of Westphalia and ended the religious civil war known as the Thirty Years War through the separation of church and state. What should strike internationalists here is first, that what is called states was mostly made of empires (Leonard 2002), and second, that a dual system appears from the opposition between church and state, since churches and more generally religions are not state entities but rather non-state actors, whatever political claims they may otherwise advance.

The international order based on a concert or balanced of powers in subsequent periods was based either on hegemony of a dominant empire, or on balance between various powers. Logically, order, culture and civilisation were identified with empire and conflicted with the outside world where laid barbarians, chaos and disorder. The image of peace and order through a single hegemonic power has not disappeared, but hegemony does not favour change and is hardly adequate for promoting change. In history, empires tend to expand beyond provisional boundaries until they become self-centered, under an authoritarian political regime that will fear social and political innovation and prefer stability and the status quo, to finally slip into political decline, break up into satrapies or fall under the sway of competing empires (Burbank 2010, Martinez-Gros 2014).

As such, the concert of nations/powers went through three big periods:

- The 1815-1914 period, starting when the Congress of Vienna regulated diplomacy in the quadruple Alliance (GB/Prussia/Austria/Russia, including France 1818), the aim being to maintain conservative legitimate monarchies against revolutions (Spain, Italy, Greece);

- the Cold War, experiencing both an expansion of nation-states (18-19th centuries) and a revival of the Concert of Powers, but it was also characterized by the rise of authoritarian states, in the Third World particularly, with one-party military rulers, and the impact of ideological conflicts.

- the Post-Cold war period, where changes implied the demise of pre-1914 European empires with the rise of nationalism, rival ideological beliefs (US/USSR) and hostility to European imperialism, as well as the expansion of the tasks of governments (democratic institutions; franchise development).

In the early 1990s the idea of a concert of powers was revived as a recipe for managing relations between the great powers and for providing a semblance of global governance in a world without a formal government. Such claims quickly vanished, as a multipolar system was gradually taking shape, if not a non-polar/a-polar system with no clear direction.

The Post-Cold War period was supposed to usher in a New World Order under George Bush Senior, following the 1rst Gulf war 1991. This hope survived in the 1990s under Bill Clinton, with the exacerbation of a deregulated liberalism and a measure of interventionism. A second “New World Order” was imposed by the American NSS (National Security Strategy, 2002), which introduced a number of new concepts such as pre-emption, as opposed to preventive action, and the promotion/export of democracy. More recently, some observers have said that the United States' unipolar moment is over, and that the twenty-first century will be defined by non-polarity. If so, power will be diffuse rather than concentrated, and the influence of nation-states will decline as that of non-state actors increases. The current stage has been illustrated by a relative “return of the state” following the financial crisis, sometimes supported by strong populist movements. However, states are left fundamentally paralysed in the absence of adequate international institutions and regulations, whether political, economic or financial.

In a way, the emergence of a mutipolarity recalls the previous periods and suggests the re-emergence of a kind of concert or balance of powers, but this view is altered by the increasing interference of transnational actors within the international sphere. “Transnational” refers to any entities (organizations, networks) or processes (activities, factors, movements, transactions) that cross state boundaries, like multinational companies or corporations (MNCs), INGOs and mixed actors. This is compounded by regimes within particular issue areas (economics, the environment, security, transport, communications, human rights, arms controls, intellectual property, cultural heritage, etc.).    

As a whole, power to affect international relationships is not only in the hands of a group of states, diplomatic missions or military interventions (hard power), but it also implies the capacity for states and other actors to exercise influence through ideas and ideals, products and trade services on the global market, cultural and linguistic links, information and communication (soft power) and, most importantly, the fate of the ecosystem through new working methods. A new landscape is being designed, a complex whole and multi-layered globalization that can no longer be approached through disciplinary studies and professional orthodoxies, but requires cross-disciplinary efforts to explore the full range of entities and processes that mark world affairs.

 


 

Mark Leonard (ed.), Re-Ordering the World, London: The Foreign Policy Centre, 2002

Jane Burbank and Frederick Cooper, Empires in World History, Princeton: PUP, 2010

Gabriel Martinez-Gros, Brève histoire des empires, Seuil, 2014

 


Pour un sommet des nations du Proche-Orient

Marcel Boisard

Marcel Boisard a été professeur à l’Université de Genève, co-directeur des programmes de formation diplomatique à l’Institut universitaire des hautes études internationales de Genève, délégué du Comité international de la Croix Rouge, directeur d’UNITAR (United Nations Institute for Training and Research), organisme des Nations Unies, et sous-secrétaire général des Nations Unies. Il est l’auteur de l’ouvrage L’humanisme de l’islam, Albin Michel, Paris, 1979, dont la parution a été saluée avec admiration et reconnaissance en particulier dans les pays musulmans méditerranéens de l’Egypte au Maroc.

Marcel A. Boisard estime que lorsque les canons se tairont, épuisés par la guerre, on ne reviendra pas aux frontières étatiques qui ont prévalu pendant un siècle. Il est temps de préparer cet « après », qui sera un immense défi. Paru dans Le Temps, Genève, 19 novembre 2015 et Cosmopolis, 2015/3-4. Reproduit avec la permission de l’auteur.

Les présidents Poutine et Hollande se rencontreront, à Moscou, le 26 novembre. Ils ont déjà annoncé leur volonté de coordonner leurs opérations militaires en Syrie. Victimes presque simultanément du terrorisme de l’ « Etat islamique », les deux gouvernements semblent infléchir brusquement leur approche, au moins sur ce plan. La question de l’avenir même du régime n’est pas expressément évoquée. Les divergences sont grandes et, en l’état, il apparaît que Paris aura beaucoup de peine à maintenir sa position intransigeante qui ne compte plus que peu d’appui international. En août 2012, répondant à un appel au cessez-le-feu lancé par la Chine, Laurent Fabius déclarait : « Le régime syrien doit être abattu, et rapidement ». Il y a quelques mois, il prêchait pour un soutien à des milices syriennes islamistes contre le pouvoir. Les pays occidentaux ont assoupli leur position, surtout le week-end dernier à Vienne où le principe d’un cessez-le-feu incluant le régime a été accepté. Le ministre russe Lavrov déclarait, dans la foulée de l’annonce d’une coordination militaire, que l’exigence préalable d’un changement de régime était irrecevable.

Les attentats du 13 novembre à Paris ont été comparés à un « 11-Septembre français ». La France prétendait, jusqu’alors, agir en Syrie au nom de « valeurs » parfaitement honorables, comme le respect de la vie et des droits de l’homme. Certains y percevaient aussi un souci mercantile, à l’égard des pétromonarchies. La brutalité planifiée des attaques au cœur vibrant de sa capitale, par des terroristes issus de son sein, a changé la donne. La politique russe est restée cohérente et constante. Le dénigrement systématique de Poutine et la diabolisation unilatérale d’Assad ont faussé l’analyse. La Russie lutte pour ses intérêts. La Syrie est l’unique reliquat des anciennes alliances soviétiques. Le port de Tartous est le seul lieu d’ancrage de sa flotte en Méditerranée. La présence massive de terroristes caucasiens au Levant constitue pour elle un vrai danger. Même s’il devait entrer dans une coalition plus large, Poutine ne va pas abandonner sa position.

La stratégie militaire est une discipline rigoureuse. Il faut nommer l’ennemi. La France s’est lancée dans la « guerre contre le terrorisme ». Cette locution, qui est une véritable aberration intellectuelle et juridique forgée par George W. Bush, a fait couler beaucoup de sang. Elle permet de violer le droit international, au prétexte de « légitime défense ». Toutefois, la finalité de la guerre doit être précise. Les Etats-majors ont peine à poursuivre simultanément deux buts : « Etat islamique » et régime syrien. En outre, lorsque ces objectifs sont en guerre, l’un contre l’autre, la mission est impossible. Les politiques français auront à donner un mandat explicite à leurs généraux. La feuille de route des troupes russes est sans ambages : soutenir le régime syrien pour empêcher l’effondrement des structures étatiques. Poutine n’a aucune raison d’en changer, même s’il ne pourra pas régler, seul, le conflit.

L’expérience montre que les bombardements aériens ne font pas gagner la guerre. Ils provoquent le chaos comme en Libye ou au Yémen. La contribution de la France est encore marginale, soit cinq pour cent des frappes de la coalition occidentale. Elle devrait sensiblement croître avec l’envoi d’un porte-avions au large des côtes de la Méditerranée orientale. L’invasion étrangère ne règle rien. Les deux longs conflits d’Afghanistan et d’Irak le prouvent. Des troupes au sol sont indispensables, mais nul Etat étranger n’est prêt à en dépêcher. Les Etats-Unis ont détaché cinquante hommes, agents spéciaux auprès des Kurdes. La coalition occidentale ne dispose d’aucun allié crédible, le Conseil national syrien et l’Armée syrienne libre ont été remplacés par des milices. La plus importante, Jabhat Al-Nosra, est une émanation d’Al Qaïda. La myriade constituée par les autres groupes armés est inféodée au salafisme réactionnaire, dans le cadre d’une Armée de l’islam. Obama avait affecté cinq millions de dollars pour la formation de combattants rebelles au régime. Tourné au fiasco, le programme fut interrompu. L’effectif actuel de ces soldats, après désertion ou passage dans les milices islamistes, se compte au sens propre sur les doigts d’une main : cinq ! Les Kurdes sont des guerriers réputés, mais ne se sacrifieront pas pour les Arabes. Inversement la Russie dispose de l’appui de l’armée étatique syrienne, même affaiblie et démoralisée, de milices soutenant le régime, de combattants aguerris du Hezbollah et de contingents spécialisés iraniens. Son avantage est indiscutable et Poutine ne va sans doute pas y renoncer.

Une large coalition est nécessaire, mais insuffisante pour anéantir l’ « Etat islamique ». La diplomatie doit jouer son rôle. Le terrorisme sera éradiqué seulement par une profonde remise en cause de fausses certitudes. Les frontières dessinées par les traités de Versailles dans le monde arabe au sortir de la Première guerre mondiale ne sont plus acceptées. L’ « Etat islamique » n’est pas né des vilénies d’Assad. Il est transfrontalier. Les bases du Khalifat, proclamé, à Mossoul, en 2014 furent posées fin 2006 par Al Qaïda et des tribus sunnites pour contrer la domination chiite en Irak. Ses cadres et stratèges, officiers supérieurs de Saddam Hussein, demeurent irakiens, comme la majorité de son territoire et de sa population. Il faut l’intégrer et le reconnaître comme Etat. Les populations qui en acceptent maintenant le joug par crainte du pire chasseront les exaltés obsessionnels d’une foi dévoyée et les terroristes étrangers. L’intervention américaine de 2003 a fait exploser le système des Etats-nations imposé par l’Europe.

Il faut remplacer le funeste accord Sykes-Picot par autre chose. Ce sera une tâche gigantesque, mais indispensable si les Puissances ne veulent pas envoyer de troupes au sol, si l’Europe craint de recevoir plusieurs millions de réfugiés et si le monde veut se débarrasser de la menace terroriste. Le propos est provocateur mais pas irréaliste. Les belligérants s’épuisent mutuellement et de nouvelles frontières sont dessinées au son du canon. Les douloureux nettoyages ethniques ont déjà été réalisés. Les sunnites se battent pour les sunnites, les chiites pour les chiites, les Kurdes pour les Kurdes, et les autres minorités se sont regroupées. Après tant de sang versé, un sommet des nations est impératif, pour dresser une carte réglant le destin de ces peuples, y compris celui des Palestiniens et des Kurdes globalement.

Fr. Coopérative

Association, civil society, people

“Cooperative” is a polysemous term, a noun or an adjective that can be used in various local or global contexts, formally or informally. A most general context for cooperation among international players was established with the League of Nations in 1917 and the UN in 1945, as both a product of idealist assumptions and motives and a Hobbesian project in endorsing the sovereignty of members. Both the League and the UN as distinct types of international institutions reflect the emphasis that idealists place on international institutions as a mechanism for coping with the problem of war and social injustice; and also the possibility of international cooperation as a mechanism of global problem solving. To an idealist, international law enforcement would be a positive component of a larger institutional framework that would feature integration and cooperation. Peace and security, along with other international interests, would be served through a cooperative institutional apparatus, instead of state conflict and competition. International law enforcement would become the alternative to war within such a system.

Recently, “cooperative global governance” has been used as an all-embracing concept, relating to possible agreements to face and manage issues and share responses not only in avoiding threats such as widespread or local armed conflicts, environmental disasters or deadly epidemics, but also in advancing towards increased material and non-material wealth in the general interest of the world’s population or specific alliances.

As a noun, a cooperative is an organization run by a group of people whose aim is to give benefits to its members, rather than to make a profit. In the EU context, “Companies or firms” means companies or firms constituted under civil or commercial law, including co-operative societies, and other legal persons governed by public or private law, save for those which are non-profit-making (Treaty of Rome, Art. 58). However, “cooperatives can create jobs and encourage sustainable and solidarity-based growth without seeking for net profit to be distributed to the members …”, so that cooperatives are often considered part of the “social economy” along with other forms of people-based enterprises such as mutual societies, associations and foundations (EU Commission, 2004, 15). The European Cooperative Society (SCE) was created in 2003, as an optional legal form whose aim is to facilitate cooperatives' cross-border and transnational activities. The SCE is required to unite residents from more than one EU country, and its members cannot all be based in one country.

Historically and conceptually, cooperatives as part of the third sector are rooted in different traditions, which go back at least to the 19th century. The divergence between cooperatives and associations as twin components of the so-called “third sector” widened in the 20th century, when many cooperatives specialized in specific fields. While associations were generally oriented to non-market activities, such as scientific research, advocacy, consumer rights, cooperation to international development, human rights or the protection of the environment, cooperatives are particularly active among savers or producers to meet their members' needs, and in such industries as building, fishing, education, agricultural marketing and supply, consumer goods, housing, credit and savings, etc. When granted a legal status, they can be considered as instrument of “social engineering” in inducing or accelerating the process of development, creating alternative jobs and reducing social exclusion. The potential of cooperatives for promoting development has long been researched and is borne out by practical experience internationally.

Starting in the middle of the 19th century and, drawing inspiration from Raiffeisen and Schulze-Delitzsch in Germany, thrift and credit societies are spread throughout the EU. The strength of these cooperatives consists in their being able to achieve the economies of scale, obtain extensive information about borrowers, execute stringent supervision through joint liability and reduce transaction costs for the benefit of borrowers. These classical Raiffeisen practices, valid in rather closed rural communities, have over time been modified to suit modern conditions. From small beginnings, some have grown into big banking organisations and operate in the international money market, or command a major market share in other sectors (dairy produce in Denmark, agriculture in Japan, dairy and oilseed production in India, insurance and transport services in Singapore, etc.). Cooperatives hold substantial market shares in European industries (EC 2017):

-          Agriculture: 83% in the Netherlands, 79% in Finland, 55% in Italy and 50% in France;

-          Forestry: 60% in Sweden and 31% in Finland;

-          banking: 50% in France, 37% in Cyprus, 35% in Finland, 31% in Austria and 21% in Germany;

-          retail: 36% in Finland and 20% in Sweden;

-          pharmaceutical and health care: 21% in Spain and 18% in Belgium.

Consumer cooperative societies are spread throughout EEC countries. Deriving their inspiration from the Rochdale Pioneers who in 1844 set up a shop near Manchester to supply their own requirements and to escape from the exploitation of private merchants, the consumer cooperative movement has now developed into a powerful retailing system in several national economies. Rochdale practices have been analysed and refined into principles which have been revised twice (ICA 1976). An essential element of these principles is the democratic governing of cooperative organizations, implying that each cooperative society is an autonomous organisation with its own centre of decision-making, rules by its owners.

The aims and activities of cooperatives have gradually been associated with the concept of social economy as it was revitalised at the end of the 1970s in France and subsequently in various countries like Belgium, Spain, Italy, Sweden and in an increasing number of other European and non-European countries (Canada, Argentina, South Korea, etc.). A current definition of cooperative systems would follow the following models (Borzaga & Spears 2004):

-          the sociological model, characterizing co-operatives open to the community interest,

-          the mutualistic model, characterizing co-operatives claiming members’ interests,

-          an intermediate model combining both the members’ and the community’s interests

-          the quasi-public co-operative model, which developed in both former socialist and communist countries.

Another classification suggested by Defourny and Pestoff (2008) depends of the aims expressed in their various constitutions or statutes:

- philanthropy (charities, the community sector, etc.), which is particularly influential in the United Kingdom and Ireland;

- civic commitment to the entire community, aiming to foster equality and democracy, prevalent in Scandinavian countries;

- the principle of “subsidiarity”, a term related to religious hierarchies, to be found in such countries as Germany, Belgium, Ireland and the Netherlands;

- the voluntary sector, either focused on civic participation and democracy as in Scandinavia, or on a religious inspiration (as in Italy, Belgium, France, etc.);

- family ties, in Mediterranean regions.

To this could be added the quasi-public or fully public model, as in socialist regimes. This system was ruled by the socialist theory of property, which considered that cooperatives were a special form of collective property and a transitional form whereby private property was to be transformed into socialist property, i.e. state property. As instruments conceived through the promotion of both a socialist conscience and a socialist education, they became an integral part of the political system and planned economic system, which implied centrally made plans, educated members in the communist way of life and fulfilled social functions (Münkner, 1998).

International communication also requires terminological instruments such as established by the International Standardization Organization (ISO), which is nongovernmental but has a membership of 164 national standards bodies which bring together experts, share knowledge and standards, support innovation and provide solutions to global challenges.

With regard to transition countries, the concept of “social economy” seems to be more suited to designating the array of alternative organizational forms (among which co-operatives are here especially explored), which have so far developed. Generally, situations in advanced and transition economies are extremely different. Contributors to the International Seminar “From Co-operative to Social Enterprise” held in Trento in December 2003 concluded that the transformation and expansion of cooperatives are two connected phenomena, and that the capacity of co-operatives to assume a number of forms consistent with the socioeconomic environment in which they are situated deserves special attention, as well as co-operative identity and the organisational and legal frameworks so far developed as a result of co-operative evolution.

While a number of countries provide specific legal frameworks designed to incorporate the altruistic goals increasingly pursued (France, Italy for instance), other examples (United Kingdom, Belgium, Denmark) are shown that multi-stakeholder organisations can develop also without a specific legislation. Different political, cultural and socio-economic circumstances at the national level explain the introduction of more flexible legal frameworks (United Kingdom with the CIC) or the adaptation of existing statutes to encourage the entrepreneurial dynamics that are part of a social project (France with the SCIC and Italy with social co-operatives). In advanced economies, the alternative concept of “social enterprise” is used when referring to entrepreneurial entities (co-operatives, associations, etc.) explicitly pursuing a social goal (Defourny 2001). Emphasis is put on the evolution process, of which social enterprises represent the end result.

The early 21rst century has witnessed a new interest in co-operative organizations as a consequence of their transformation and expansion in new fields of activity (Brezaga & Spear 2004), providing evidence that the co-operative movement is revitalizing the communitarian tradition. In advanced economies, the cooperative movement is associated today with new realities such as multi-stakeholder governance and the pursuit of an explicit social aim, which have sometimes been incorporated into the new co-operative forms (social co-operatives and SCIC for instance) and supported by legal frameworks (CIC in United Kingdom). Moreover, the entrance of a number of different stakeholders in the property structure has given strength to a new partnership logic, which is a precondition for success. The more or less strictness of the legal prescriptions concerning the multistakeholder character - the SCIC law, unlike the Italian law on social cooperatives prescribes the existence of a minimum of three member categories, of which workers and users are obligatory - while guaranteeing the opening of the property structure to different stakeholder categories, influences the number of new enterprises set up.

Research carried out in the field of cooperative legislation has demonstrated that excessively restrictive legislation has been a frequent cause of the failure of cooperatives (ILO 1992). The provisions of cooperative laws in many developing countries have impeded the sound development of cooperatives and crippled their potential. One explanation may be that the cooperative legislation is differently understood and dealt with in developed and developing countries. Saxena had noted in 1986 that the cooperative movement had fallen short of its ideals, citing as an example women's unequal access to power and decision-making although, according to the Hunger Project, in Africa women contribute 70 % to growing food, 50 % to storage, 100 % to its grinding and processing, 90% to fetching water and 100 % each to child care, cooking and cleaning). In 2000, he pursued, the primary problems of the Movement were still retaining its identity and uniqueness; excessive dependence on the government leading to political patronage in developing countries, which remained serious obstacles to the growth of the movement, and the quality of leadership.

The number and growth of cooperatives in the category of INGOs has been quantified and classified since 1908 by the Union of International Associations (UIA) in its Yearbook of International Organizations, and descriptions can be found in publications of the Comparative Nonprofit Sector Project led by the Johns Hopkins University since the early 1990s, the Global Yearbook of Civil Society of the London School of Economics and many other research centres. The social economy, understood as encompassing cooperatives, mutuals and the non-profit sector, has been studied by the International Centre of Research and Information on the Public, Social and Cooperative Economy (CIRIEC, 2007), which estimates that the EU has some 246,000 cooperative enterprises with some 144 million citizen members, employing some 4.8 million persons. Nearly 120 million Europeans are covered by a health mutual and the mutuals hold a significant share of the life insurance and non-life insurance markets. Mutual societies represent 25% of the European insurance market and 70% of the total number of insurance companies in Europe. From a legal comparative view, analyses of the forms of organizations in which private property is set aside for public benefit, such as foundations and charities, can be found in the International Encyclopedia of Comparative Law.


Cooperative Survey, Transnational Associations, 1/1986

S.K. Saxena, Introduction to Cooperative Survey, Transnational Associations, 1/1986

Lord Oram, “Co-operatives and the State”, Transnational Associations, 1/1986

Commission of the European Communities, Communication from the Commission to the Council and the Parliament, the European Economic and Social Committee and the Committee of Regions On the promotion of co-operative societies in Europe, 2004

International Cooperative Alliance (ICA) reports

Alfred Hanel, “Basic aspects of cooperative organizations and cooperative self-help promotion in developing countries”, Marburg: Marburg Consult for Self-Help Promotion, 1992

Hans Münkner and G. Ullrich (eds.), Co-operative law in East, Central and Southern African countries: A comparative approach. Seminar report, Berlin: German Foundation for International Development, 1981

Hans Münkner, “Practical problems of law reform in Africa with particular reference to co-operative law”, Yearbook of Agricultural Cooperation, Oxford: Plunkett Foundation, 1982

Hans Münkner, “Comparative study of co-operative law in Africa, Part I : General report, Marburg: Marburg Consult for Self-Help Promotion, 1989

Hans Münkner, “Co-operatives in the transformation process”, in Co-operatives in Central and Eastern Europe, self-help in structural change, Berlin: Sigma, 1998

Fritz Hondius and Tymen van der Ploeg, Foundations, Tübingen: Mohe Siebeck, 2000

Jacques Defourny, The Emergence of Social Enterprise, Routledge, 2001

Jacques Defourny & Victor Pestoff (eds.), Images and Concepts of the Third Sector in Europe, EMES European Research Network, 2008

European Commision, “Cooperatives”.https://ec.europa.eu/growth/sectors/social-economy/cooperatives_en. 2017

 


 

Co-operatives and the State

Lord Oram  

Lord Oram's political and public career has been mainly in the two fields of devel- opment of countries in the - Third World » and the Cooperative Movement both in Bri- tain and overseas. He was a Junior Minister at the Ministry of Overseas Development in the British Government between 1964 and 1969 and Chairman of the British Vo- luntary Program from 1974-76. Bert Oram was created a Life Peer in 1976 and was Lord-in-Waiting to Her Majesty the Queen from 1976 to 1978. Lord Oram has played a leading role in the British Cooperative Party since the War. From 1978 to 1981, he was the Chairman of the Cooperative Development Agency, an organisation set up by the Parliament to encourage the growth of worker-con- trolled firms.

This paper was first published in Transnational Associations, 1/1986. All rights reserved.

There are no absolute principles governing the relation- ship between co-operative movements and the state. This is partly because the principles governing the organisation of co-operatives are themselves flexible and constantly evolving over time; and partly because « the state » is by no means a uniform concept throughout the world, particularly with regard to economic and commercial affairs. The latest recruit to the International Co-operative Alliance is the All-China Federation of Supply and Marketing Co-operatives and it serves as a good example of the above assertion that the only feasible approach to the question of co-operative relationship is the pragmatic approach. The Chinese application for membership of the International Co-operative Alliance was tested and approved by the established procedures. Its application did not fall foul of the ICA's principle of voluntary membership. Yet had the same organisation applied for membership some years earlier when it operated merely as the instrument for carrying out the edicts imposed from above by the state, it is most un- likely that it would have been allowed to join the ICA. The Chinese state had meantime changed its character and the nature and the role of the rural co-operatives had likewise changed, although they remain an undoubted instrument of state economic administration. In other words, an eligible co-operative, like the elephant, is easily recognized, but difficult to define. Without such pragmatism the I.C.A. would not have maintained a meaningful and continuous existence - as it proudly did throughout a period of world history which included two world wars and the establishment of many communist states. Its formulation of co-operative principles has indeed been a supreme exercise of diplomatic drafting which has kept together, as leading and powerful members of the Alliance, on the one hand Centrosoyus (USSR) whose operations for most of its time have been confined by state edict to the countryside, and on the other hand CLUSA (USA) or the National Corporation Business Association, as it is now called, to which state interference with the private sector of the economy, of which it claims to be part, is anathema.

Developments in Britain, particularly since the Second World War, have been illustrative of certain aspects of the problem of the relationship between the state and co-operative organisations; and a sketch of those developments may help us reach at least some general conclusions on this question. However we must remember that the British consumer movement is unique in that it has its own Co-operative Party which through its close association with the Labour Party seeks to establish a democratic socialist society. On the other hand Britain's large agricultural co-operative movement eschews politics but, somewhat ironically (and unlike the consumer movement) has received state support on a considerable scale. It is this rather illogical mixture of experience that perhaps makes the British case interesting and instructive. It was in the immediate post-war period that a sharp debate arose about the role of the co-operative movement within the state. The Cooperative Party had been supportive of the Labour Party in its election victory of 1945 and thus had endorsed the Labour Government's programme of the nationalisation of basic industries. However in a policy statement entitled « The People's Industry» the Co-operative Party not only advocated an influential role for both workers and consumers in the nationalised industries but also proposed that co-operative societies of all kinds should be enabled to occupy a major sector of the economy. These propositions aroused controversy both among state socialists in the Labour Party and among those co-operators of the « pure » variety who were lukewarm about politics and who feared that the voluntary principle of co-operation would be impaired. The Co-operative Party however continued to advocate its version of social ownership, achieving only modest acceptance over many years until in the mid-eighties the Labour Party has been persuaded to assign to co-operatives an important role in its economic policies. In other ways too in recent years there has been an acceptance of co-operatives as instruments of public policy.

   This has been in the sphere of agriculture. Agricultural co- operatives have grown quite dramatically in post-war years largely under the leadership of the Central Council of Agricultural and Horticultural Co-operatives. This organisation has had the backing of the state and in particular was responsible for the distribution of grants to agricultural co- operative societies. In 1983 it became even more important as one of the means of carrying out government policy in respect of the marketing of food products. There was established a promotional organisation called Food From Britain. The Central Council was absorbed into this organisation though still keeping its original co-operative character. The Cooperative Development Division of Food from Britain is now a well-buttressed instrument for the encouragement of co-operative organisations of farmers.

Much more modest but nevertheless significant steps have been taken in the last decade in relation to other forms of co-operative activity, particularly workers' co-operatives. In 1979 one of the last acts of the then Labour government was to establish the Co-operative Development Agency. Its function was to encourage the setting up of co-operatives and to advise people wishing to form them. It is empowered to help co-operatives of all kinds but in practice it has concentrated on workers' co-operatives which have had a remarkable growth in numbers since the enactment of the Co- operative Development Agency Act. Subsequently the Conservative government ensured the continuance of the Agency albeit with even more modest funds than it had received earlier, it now appears to be firmly established with the sup- port of all parties in Parliament.

Its relationship with the state was a matter of acute controversy in the months preceding the passing of the 1979 Act. Some sections of the co-operative movement, though eager to accept government money, wanted complete in- dependence from state authority. In the event Parliament established an Agency with a Board appointed by the Minister.

Unlike the farmers' organisation no investment funds have been available for channeling to co-operatives through the Agency. It remains to be seen whether future governments will be prepared to give the Agency a much more positive role and funds for this purpose. Already however under present legislation and from their own funds local authorities have been able to sponsor co-operatives in a more direct way.

Thus it is clear that in Britain an important development has been taking place in the relationship between the state and co-operatives. Whereas earlier the function of the stale was little more than the registration of co-operatives under the basic co-operative legislation, namely the Industrial and Provident Societies Acts, a much more positive and interventionist role for the state is now seen to be emerging. This is happening under governments both of socialist and of conservative character. It is happening particularly in the sphere of agriculture but also, on a smaller scale, through legislation affecting housing co-operatives, credit co-operatives and worker-controlled co-operatives.

It is too early to detect any basic principles governing this new development, but there is no doubt that it is occurring and that before many years have passed it may be seen as one of the major features of the economic landscape.

The lessons that can be learned from the British experience are especially relevant to the developing countries. The use of co-operatives particularly in rural development is of major significance in the Third World, particularly in the dominant agricultural sector of their economies, because they can provide the administrative framework needed to replace the alien administrative framework of the earlier colonial period.

In most cases, especially in countries which were formerly British colonies, there were set up, following independence, government departments whose functions were to register co-operatives, audit their accounts and to some degree to sponsor their formation. But mistakes have been made as the promotional function has become more in evidence. Governments, through their civil service, have tried to do much too much too soon. Too often co-operatives have been imposed from above with decision-making centralised within government co-operative departments. This has eroded the self-reliance of members who tend to regard the co-operative as another arm of the government, hence not their responsibility. This in turn weakens the solidarity of the co-operative and the discipline of its members.

The problem therefore which has emerged is how to reconcile the necessary leadership role of the state with the encouragement of independent decision-making by the co- operatives. What seems to be required is the replacement of the authoritarian government department by an « enabling » government department. The enabling process needs to go far beyond the registration and auditing functions but to stop far short of the imposition of synthetic co- operative structures from above. There is indeed a half-way house between state domination on the one hand and un- fettered voluntarism on the other. There are a number of forms of government involvement which can be helpful in enabling the sound functioning of co-operatives without detracting from the essential meaningful participation of co- operative members.

A useful guideline on allocation of responsibilities is the principle that within the co-operatives movement, and as between co-operatives and governments, tasks and decisions should be transferred from lower to higher levels only if they can be performed more effectively there; that there should be a clear distinction between government and co- operative fields of economic activity; and that governments should restrict themselves to « external help for self-help ». The basic self-help (co-operative) units should comprise small, local, autonomous, homogeneous, single-purpose groups whose members contribute land, labour or capital and actively participate in democratic decision-making. At the same time secondary or tertiary co-operatives at regional level should promote integrated development by providing co-operative members with the advantages of scale in the form of land improvement, irrigation, pest control, financial assistance, supply, marketing and accounting services, training, supervision, advice, and quality control- Meanwhile, however, government support is essential to the viability of most co-operatives in the Third World. This support can take the following forms:

- use of co-operatives to funnel credit to remote villages;

- remission or concessions of certain taxes;

- free auditing, registration, supervision and legislation for co-operatives:

- training facilities for co-operative officials;

- stale contribution to share capital of co-operatives to strengthen their borrowing capacity;

- grants for co-operative infrastructure;

- concessional loans to co-operatives; and

- granting of exclusive rights to co-operatives in procuring or distributing certain commodities.

 

 

 

Fr. responsabilité sociale, éthique des entreprises, engagement sociétal

Esp. responsabilidad social de las empresas, responsabilidad empresarial

→ Global Compact, multistakeholder, multinational/transnational company (MNC/TNC)

Although the term is recent, the notion of Corporate Social Responsibility (CSR), which emerged from this preoccupation with business ethics and the social dimensions of business activity, had been around for a very long time, as noted by Blowfield and Frynas (2005), who recall that “... moral principles and “controlled greed” were advocated by pre-Christian western thinkers such as Cicero in the first century and their non-western counterparts such as India’s Kautilya in the fourth century; Islam and the medieval Christian Church publicly condemned certain business practices, notably usury.” Islam and the medieval Christian Church condemned certain business practices, notably usury. The modern precursors of CSR can be traced back to nineteenth-century boycotts of foodstuffs produced with slave labour, the moral vision of entrepreneurs such as Cadbury and Marks, and the Nuremberg war crimes trials after the Second World War, which saw the directors of the German firm I. G. Farben found guilty of mass murder and using slave labour (Ciulla 1991, 67-86, Pegg 2003, Sekhar 2002). From a historical perspective, then, CSR is simply the latest manifestation of earlier debates on the role of business in society and how to monitor and check corporate practices. More recently, as Fabig and Boele note, debates have been conducted “at the intersection of development, environment and human rights, and are more global in outlook than earlier in this [the twentieth] century or even in the 1960s” (1999, 63).

As a response to the disproportionate power that corporations wield today, CSR is an attempt to implement the 2030 Agenda for Sustainable Development, a follow up from the Rio+20 Conference on Sustainable Development, to address both poverty eradication and the economic, social and environmental dimensions of sustainable development with a renewed sense of universality. The concept straddles the divide between private and public, as well as between illegal dealings, when liability applies, and issues of accountability even if legality does not apply. In a sense, the rights of small shareholders or employees, who have little or no influence on the corporation's boardroom and its decisions, are heard. A recent expression of this concern is the Global Compact (GC), whose intention is to promote corporate citizenship on the basis of its ten principles. Though non-binding and not regulatory, it is an open-ended experiment intended to identify, disseminate and promote good practices based on universal principles covering issues as diverse as animal rights, corporate governance, environmental management, corporate philanthropy, stakeholder management, labour rights and community development. It is based on ten principles derived from the Universal Declaration of Human Rights, the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work, the Rio Declaration on Environment and Development, and the United Nations Convention against Corruption. However, as it is not an enforceable commitment to good corporate practice, nor a code of conduct with monitoring or verification procedures, some NGOs responded by arguing that “corporate influence at the UN is already too great, and that new partnerships are leading down a slippery slope toward the partial privatisation and commercialization of the UN system itself" (TRAC, 2000).

In the 1980s, the issues arising from globalisation and deregulation, expanding communications technology and networks have brought corporate responsibility to the fore, and part of the business community became active in initiatives that go beyond compliance with the law, in cooperation with a range of stakeholders belonging to civil society as a whole. The movement is linked to corporate citizenship, the central role of consumers’ and rights movements, the private provision of public goods and the significance of sustainable development. From this standpoint, the term “civil society” has slightly shifted to the wider notion of “third sector”, understood as supporting the values, commitment and joint governance of various categories of actors, as illustrated by the European Economic and Social Committee (EESC), a consultative body of the European Union. It is also akin to the concept of social economy, which focuses on work integration initiatives by the public authorities, or the corporate citizenship (CC) concept introduced by Dirk Matten and Andrew Crane (2013). The overlapping involvement of such distinct actors as companies, NGOs and trade unions can also be found in the UN multistakeholder initiatives (MSIs).

To complicate matters further, the business–society debates refer to new terms such as corporate accountability, socially responsible investment and sustainable development, aimed variously at replacing, redefining or complementing the CSR concept (Utting 2009). An institution such as the World Business Council for Sustainable Development (WBCSD) has changed its definition over time. Initially (1998), it referred to CSR as “the continuing commitment by business to behave ethically and contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large”, a definition later changed to “the commitment of business to contribute to sustainable economic development, working with employees, their families, the local community and society at large to improve their quality of life” (2002).

The interactions between the third sector, conventional (I)NGOs and the state have consequently blurred the boundaries between the three spheres, so that the “civil society” term (or CSO, civil society organizations) remains the broadest to depict the full range of relevant social phenomena and its many representatives. In the same way, its link to the “global public” is not clear, as holding private companies accountable implies no specification of the kind of accountability involved, so that monitoring and publicizing what they say and do is not “public” in the sense of being universal and enforceable. CSR is public only in the sense of being on display in the public sphere, with no world or supranational polity by which CSR could be assessed (Sundstøl Eriksen and Jacob Sending 2013).

The limitations of company codes of conduct and corporate self-regulation have been addressed through standardized systems, reporting, monitoring, auditing, and certification related to social, environmental and human rights issues. MSIs have been somewhat successful in addressing weaknesses associated with corporate self-regulation. Of particular note have been their attempts to impose a degree of coherency on the confusing proliferation of company codes, and the attention they have directed to issues of labour rights, independent monitoring, the responsibilities of suppliers in TNC value chains, international labour, environmental and human rights law. The limitations of company codes of conduct and corporate self-regulation have been addressed through standardized systems, reporting, monitoring, auditing, and certification related to social, environmental and human rights issues.

Theory and practice

The academic field has approached this context through various disciplines (sociology, political science, social policy, economics, management, history, law, psychology, etc.). Courses and training programs are being by many higher educational departments. They include theoretical studies on civil society and related notions, notably their extension into the international arena as in the International Encyclopedia of Comparative Law, a comparative study of legislations governing foundations in many countries. Other projects assess the size, nature and economic power of the third sector internationally, such as the Johns Hopkins Comparative Nonprofit Sector Project, covering about 45 countries, the EMES European Research Network’s research on the social economy or the London School of Economics in an effort to define an evanescent “global civil society”. A more down-to-earth directory and description (with statutes, by-laws, aims and members) of international nongovernmental organizations can be found in the Yearbook of International Organizations edited by the Union of International Associations (UIA, created in 1910). Its comprehensive listing mostly includes umbrella bodies representing national associations (at least three) and transnational organizations whose members are groups or individuals who belong to different countries but do not necessarily represent them as such.

As could be expected, questions have arisen regarding the accountability, legitimacy and credibility of some MSIs, as well as of the NGOs with a dominant position in these new systems of corporate regulation, including their representation of workers’ interests and their close association with the corporations they seek to regulate. While emphasizing the need to rearticulate voluntary and legal approaches, the CSR agenda seeks to re-establish the authority of states and intergovernmental institutions over corporations; consolidate governance infrastructures involving CSOs and co-regulation; and strengthen workplace democracy through workers’ organizations, recognition and respect of labour rights, and new forms of participatory ownership. For these reasons, it is resisted by some business groups, political leaders and policy makers. MSIs’ success thus requires the backing of a fairly powerful coalition of forces to overcome severe tensions and constraints: relatively limited participation of Southern groups in the relevant networks and campaigns, tensions between NGOs and trade unions, limited accountability and legitimacy of some NGOs and other organizations that are shaping MSIs and public policy, and the danger that the participation of business interests in any corporate accountability initiative or coalition may result in excessive dilution of proposals and/or co-optation.

In practice, CSR development has been praised insofar as companies meet a growing concern about their social and environmental impact, but it has been equally criticized for falling short of its promises, and accused of boosting their reputation through charitable initiatives, corporate foundations, project funding to community based [...] organizations or participation to MSIs. An example is the mining industry, which has caused many environmental or human rights controversies, some of them extending to accusations of genocide and to multi-billion dollar damages for environmental reparation, despite the adoption of new standards by most of the world’s largest companies (like Rio Tinto, Anglo-American, BHP-Billiton and Vale) through the International Council on Mining and Metals, so as to reduce environmental and social damage and to increase sustainable benefits (Dashwood 2012).

However, everything is not black and white, as shown by Dashwood: “mining companies do not just respond to emerging norms but help to create them. Mining companies and the best of their leaders are also ‘norm entrepreneurs’ alongside Greenpeace, Global Witness and Oxfam.”, which means that convergence between the ‘normative pressure of sustainable development and corporate responses was somehow irresistible to the extent that it was driven by company interests.”

CSR as an umbrella term

It will be apparent from these remarks that CSR is not the homogeneous, coherent concept. Its usage has become so broad as to allow speakers and researchers to interpret and adopt it for many different purposes. This vagueness restricts CSR’s usefulness both as an analytical tool and as a guide for decision-makers. In the same way as civil society is not fit for an inclusive definition, CSR may be taken as an umbrella term for a variety of theories and practices all of which recognize the intricate interplay between various actors in evolving contexts. Beyond this descriptive content, its significance includes a moral dimension linked to the social fabric, a legal component when addressed by national legislations, and an emotional influx derived from the awareness of its impact on the ecosphere and the future of humankind, all of which positively call for a complex, cross-disciplinary approach.


Joanne B. Ciulla, “Why is business talking about ethics? Reflections on foreign conversations”, California Management Review 34: 1, 1991

Heike Fabig and Richard Boele, “The changing nature of NGO activity in a globalizing world: pushing the corporate responsibility agenda”, IDS Bulletin 30: 3, 1999

Transnational Resource and Action Center (TRAC), Tangled Up In Blue: Corporate Partnerships at the United Nations, 2000. www.corpwatch.org

Anthony Judge, “Globalization: the UN’s "safe haven" for the world’s marginalized. The Global Compact with multinational corporations as the UN’s "final solution", Transnational Associations, 2000

Rhys Jenkins, Corporate Codes of Conduct: Self-Regulation in a Global Economy. Programme on Technology, Business and Society, Paper No. 2, Geneva: UNRISD, 2001

Peter Utting, “Regulating business via multistakeholder initiatives, in NGLS/UNRISD (eds.), Voluntary Approaches to Corporate Responsibility: Readings and a Resource Guide, Geneva: Development Dossier NGLS, 2002

Scott Pegg, “An emerging market for the new millennium: transnational corporations and human rights”, in Jedrzej George Frynas and Scott Pegg ( eds.), Transnational corporations and human rights, London: Palgrave, 2003

A. C. Sekhar, Ethical choices in business, Delhi: Response Books, 2002

Peter Utting (ed.), The Greening of Business in Developing Countries: Rhetoric, Reality and Prospects, London: UNRISD and Zed Books, 2002

Corporate Social Responsibility and Business Regulation, Geneva: UNRISD Research and Policy Brief 1, 2004

Michael Blowfield and Jedrzej George Frynas, "Setting new agendas: critical perspectives on Corporate Social Responsibility in the developing world", International Affairs, 3, 2005

Peter Utting and José Carlos Marques (eds.), Corporate Social Responsibility and Regulatory Governance: Towards Inclusive Development?, London: Palgrave, 2009

Jacques Defourny and Victor Pestoggff (eds.), images and concepts of the third sector in Europe,

EMES European Research Network, 2008

Frits W Hondius and Tymen J van der Ploeg, International Encyclopedia of Comparative Law, Volume XIII Business and Private Organisations. Chapter 9: Foundations, Tübingen: Mohr Siebeck, 1994

Hevina S. Dashwood, The rise of global corporate social responsibility: mining and the spread of global

Norms, Cambridge: Cambridge University Press, 2012

Stein Sundstøl Eriksen and Ole Jacob Sending, “There is no global public: the idea of the public

and the legitimation of governance”, International Theory, July 2013

Dorothée Baumann-Pauly and Andreas Georg Scherer, “The Organizational Implementation of Corporate Citizenship: An Assessment Tool and its Application at UN Global Compact Participants”, Journal of Business Ethics, September 2013

Fr. Démocide

Sp. Democidio

-> Agression, empire, state, ethnocide, genocide, historicide, war, Westphalia

 

A term coined by Rudolph Joseph Rummel to refer to massacres organised by governments against their own populations, such as the Stalinist purges and the Maoist Cultural Revolution. These resulted in the deaths of millions of people: up to 21 million for the Nazi genocide in Germany, 50 million for the European colonial enterprises, 62 million in the Soviet Union (1917-1987) and 76.7 million in Communist China (1949-1987) (Rummel 1991, quoted by Chaline 2018, 101).    

Researchers agree that democracies are no more or less war-prone than other regimes, but the detailed study of baseline studies implies that democracies are in fact less warlike. The relevant data are based on the frequency of wars, which applies as much to states that have lost a few dozen people as to those that have lost several million. Rummel further argues, from the available data, that the theoretical interpretation of the warlike character of a regime must take into account the severity of wars. From this point of view, the degree of democracy of a regime is inversely proportional to the severity of its wars in the twentieth century (1900-1987), which means that democracies tend to fight less severe wars than other regimes.


 

 

Chaline Jean, Histoire de la barbarie. Requiem pour l’humanité, Ellipses, 2018

Rummel Rudolph Joseph, China’s Bloody Century: Genocide and Mass Murder since 1900, Transaction Publishers/Rutgers, 1991

Rummel Rudolph Joseph, “Statistics of democide: Genocide and Mass Murder Since 1900”, Center for National Security Law, School of Law, University of Virginia, 1997 and Transaction Publishers, Rutgers University

Fr. Escalade

Esp. Escalada

→ cosmopolitanism, globalization, war

 

This term comes from the Provencal (an Occitan dialect of the Provence region) escalada, derived from the Latin scāla, ("scale") and the derived verb escalar, which means "to climb" and appeared in this form in 1456.

In the political field, the notion refers to a strategy that consists for two powers or two actors on the international scene, whether they are of comparable level or not, in gradually increasing military, diplomatic, economic or other measures likely to weaken the opponent. The concept has a vertical connotation but can also be interpreted as an increasing spatial extension - intrusion, invasion, occupation -, or a combination of various strategies. A related concept is “balance of power”, i.e. a process by which the power of competing groups of states tends toward a condition of equilibrium intended to avoid wars or conflicts, or to prevent an automatic escalation. The theory of war is directly concerned with such factors.

In the absence of a supranational authority or a world government which would have legitimate monopoly of violence, states are condemned to guarantee their own security. However, actions taken to that effect by any state usually increase similar actions taken by other states, which as a whole leads to an escalation that decreases rather than increases states’ security,

 

Deterrence

A unique case is the nuclear deterrence that took place between the eastern and western blocks during the Cold War and quickly blocked any possible mutual intervention. As opponents could not directly enter the war under penalty of mutual annihilation, various so-called proxy wars appeared with the support of both powers, causing more than 20 million deaths in so-called Third World countries in the second half of the 20th century (civil wars in Greece, Guatemala, North Yemen, Laos, Angola, Arab-Israeli, Algerian-Moroccan, Korean, Afghan, Cuban missile crisis, Bosnia and Kosovo wars...). The Syrian civil war, coupled with a theological war between Sunnis and Shiites, is also considered a proxy war, which includes forms of escalation by Saudis, Qataris, Turks (to prevent the formation of an independent Kurdistan in northern Syria, which would serve as a backyard for Turkish Kurdistan), Lebanese Hezbollah, Iranians, Russians and Westerners since it appeared that the Syrian regime would not fall. The term "war" must be used here as in contemporary conflicts, because it is the civilian population (300,000 dead in 2019) who are the first victims.

While nuclear deterrence characterizes a unique situation, it was not immune to nuclear war, as illustrated by the many threats to trigger it, including the 14 conflicts between the United States and the USSR following false alarms and human or computer errors between 1956 and 1962, including 11 incidents during the Cuban missile crisis (Shaliand 2014). Consequently, the potential for total annihilation persisted after 1945, reducing the idea of deterrence to zero even if it finally ended successfully. This shows that decisions are never immune to miscalculation, spillover effects through parallel channels (financial, economic, technological measures) or emotional-type reactions that inevitably distort supposedly rational decisions.

A positive conclusion of the Cold War was however decided by Reagan and Gorbachev, resulting in international disarmament agreements, which however became obsolete and led to the withdrawal of the United States in 2019 of the Treaty on Medium Range Nuclear Weapons (INF) adopted in 1987, which had made it possible to destroy all missiles with a range of 500 to 5,500 km, but which could not foresee China's current equipment with similar weapons, or Russia's (9M729) missiles with a range of 2500 km. Similarly, nuclear proliferation has partially invalidated these same treaties, even though the global nuclear arsenal has fallen by about 80% since the 1980s, as the Non-Proliferation Treaty adopted by the five signatory states (China, United States, France, United Kingdom and Russia, members of the United Nations Security Council) has not prevented Israel, India, Pakistan and North Korea from acquiring it, or Iran from intending to do so.

It was the IR as its supposed "system" (Montbrial 2002), which was accused of obsolescence as soon as: the last balance of terror disappeared; the number of actors and transnational economic, communicational and associative factors increased; terrorism led to talk of a "reversal of the world" (Badie 1995) or an "international system without territory" (Merle 2001); globalization reached its limit, to give way to the thesis of anti-globalization, then collapse (Diamond 2006, Raston Saul 2005), and finally a hypothetical collapse under the effect of climate change (Servigne 2015). By contrast to military escalations, the current context will offer the option of a slow destruction through inaction, or survival in a hostile environment, with a small minority entrenched in cozy places. One potential risk is retaliation, or obstruction to policies taken to reduce the effects of climate change, such as the massive investments by the big "twenty polluters" in coal, oil and gas reserves, translating into actual or potential CO2 emissions that delay or cancel both national and global action by virtue of immediate commercial interests alone. (The Guardian, October 2019)

On the other hand, setting targets to reach “net zero” carbon emissions within a defined geographical border is not sufficient to measure carbon emissions, because net zero is limited to calculating as much carbon dioxide out of the atmosphere as is put in by a given country. One reason is that these countries ignore the impact of trade, undercount the emissions for which rich countries are responsible, if only because the world will continue to need fossil fuels during the energy transition, albeit on a decreasing scale. Challenges will be hard to respond, as heavy investment by Western and Persian Gulf companies still focus in fossil resources. (The Guardian, October 2019)

Another failure in improving environmental conditions is the hidden increase in pollution produced by digital technology, which far from being clean, actually makes pollution invisible. A dematerialized communication does not prevent the energy-intensive dimension of the physical infrastructures necessary for this digital envelopment of our lives: networks, storage centres, use of rare earth, rapid obsolescence, etc. Not to mention all consumption "needs" created by digital possibilities: connected sneakers or fridges, self-service scooters, etc. (Vidalenc 1919)

The increasing porosity of borders and the illusion of a generalized globalization that accompanied it had the effect of weakening the political power of States and seemed to bode well for what should be a "new order", otherwise known as "disorder" (Todorov 2003, Gnesotto 2014, Andréani 2017, Garcin 2018), which would dispel uncertainties and become predictable again. The very notion of IR is being threatened, due to the relative decline of the State, the weakening of international agreements, the rise of non-state actors and the ascendancy of populism and nationalism.

The risk of political and economic fragmentation, global disintegration and uncontrolled migration, refugee waves and terrorism has replaced the law of war, as in Syria, with collective punishment, social exclusion and communitarianism. The chaotic spread of conflicts in the Middle East is one consequence of an absent leadership, since the US has abandoned this pretense to Russia and UN agencies are inefficient. A similar inability or carelessness appears in NATO, which should nhave responded to the invation of Syrian Kurdish territories by Turquey.

However, chaos does not mean that any superpower will be able to avoid future escalation. As Saudi Arabia is in no position to win the war in Yemen, it is likely to end in the dooming confrontation between the two real millitary powers in the region, Israel and Iran, a conflict that Russia will not have the means to control as surely as the US could have if it had not abandoned its allies.

De-escalation

The notion of de-escalation is likely to arise when a given situation reaches a certain stability or "maturity", i.e. when the parties are sufficiently motivated to de-escalate, insofar as they realize or hope that the other party will cooperate in seeking a solution that satisfies both parties and paves the way for an acceptable future. Such an outcome can be facilitated by the mediation of a third party actor, as Stephen Stedman (1991, 235-42) notes with regard to Zimbabwe, stressing that it is not necessary for all actors in a conflict to perceive the harm of a deadlock, but that they see a situation where both parties would benefit.

Escalation can also become bogged down in a dead-end situation, where actors continue to engage in delegated clashes, as in eastern Ukraine. The position adopted by Barack Obama and Vladimir Putin was quickly politicized, the former using a strong argument to the US Congress that served its foreign policy, the latter reinforcing its nationalist and ethnicist ideology. The stagnation of the armed conflict has not led to any widespread clashes on the Russian-Ukrainian border, but it continues in ideological, geopolitical and diplomatic form, and to a lesser extent in economic and commercial terms, between the Ukrainian search for a stable democracy close to the West and the rejection of post-Soviet authoritarian and oligarchic tropism, not to mention the religious factor sharpened by the dissent of the Ukrainian Orthodox Church. It also continues within the Council of Europe with the return of Russia, which was excluded for a time following the annexation of Crimea.

A different case when escalation led to a dead end is Turkey’s assault on the predominantly Kurdish area in North-Eastern Syria, which sparked Western accusations of betrayal from the Kurds, whose support was crucial in the battle against the Islamic State. The withdrawal of American forces from the country’s north in October 2019 led to the withdrawal of Kurdish forces, the flight of tens of thousands of inhabitants from the region, the creation of a security fringe created by Turkey without any authorization from international bodies. The forced displacement of local populatins cemented the Russia and Turkey’s roles as the main foreign players in Syria.

International legal instruments play only a secondary role in these contexts, due to the contempt shown for Article 51 of the UN Charter. The 1954 agreements that ended the first Indochina war, led by France, are an illustration of this. The agreements were considered a "disaster" by Washington, which immediately began to sabotage them. The National Security Council secretly decided that, "in the event of local communist rebellion or subversion not constituting an armed attack", the United States would consider the use of force, including against China if it was identified as "the source of subversion". The same document called for the remilitarization of Japan and the transformation of Thailand into a "focal point for clandestine and psychological warfare operations in Southeast Asia", particularly in Indochina, i. e. Vietnam (Chomsky 2000).

Some contemporary authors go back to Thucydides to explain some of these rivalries, taking the Peloponnesian War as illustrating the reaction of a dominant power, here Sparta, to the rise of a power that threatened its hegemony, here Athens. The criteria retained to represent political power are the analysis of facts, debate and action (Darbo-Peschanski 1989), based on Thucydides' account of the Peloponnesian War, or at least the first twenty years of the conflict which, from 431 to 404 BC, divided all Greeks behind Athens and Sparta, the two main belligerents. Sparta and its allies won, while Athens, weakened on all fronts, was forced to give in. The Sicilian expedition, which was to make her mistress of the entire Greek world, had seen her empire explode and led to two oligarchic coups d'état that ruined her internal cohesion as well as her last capacities of resistance. 

 


 

 Andréani Gilles et al., Le nouveau désordre international, Questions internationales, mai-août 2017

Badie Bertrand, Le renversement du monde, Dalloz, 1995.

Chaliand Gérard, Une histoire mondiale de la guerre, Odile Jacob, 2014.

Chomsky Noam, « Washington au-dessus du droit international. L’Amérique, « État voyou » », Le Monde Diplomatique, août 2000.

Cochet Yves, Dupuy Jean-Pierre, George Susan, Latouche Serge, Où va le monde ? 2012-2022 : une décennie au devant des catastrophes, Mille et une Nuits, 2012.

Darbo-Peschanski Catherine, « La politique de l'histoire : Thucydide historien du présent », Annales. Economies, sociétés, civilisations, 3, 1989. pp. 653-675.

Darbo-Peschanski Catherine, « La politique de l'histoire : Thucydide historien du présent », Annales, 1989, pp. 653-675.

Dean Pruitt, « The Evolution of Readiness Theory », November 2015. 10.1007/978-3-319-10687-8_10

Diamond Jared, Effondrement : Comment les sociétés décident de leur disparition ou de leur survie, Gallimard, 2006.

Dufour Jean-Louis, Les crises internationales. De Pékin (1900) à Bagdad (2004), Editions Complexe, 2004.

Dupuy Jean-Pierre, Pour un catastrophisme éclairé. Quand l'impossible est certain, Points essais, 2004.

Garcin Thierry, La fragmentation du monde. La puissance dans les relations internationales, Economica, 2018.

Gnesotto Nicole, Padis Marc-Olivier et al., « Le nouveau désordre international », Esprit, août-septembre 2014.

Gochet Yves, Dupuy Jean-Pierre, George Susan, Latouche Serge, Où va le monde ? 2012-2022 : une décennie au devant des catastrophes, Mille et une Nuits, 2012.

Godin C., La haine de la nature, Seyssel/Champ Vallon, 2012.

John Ralston Saul, The Collapse of Globalism, Atlantic, 2004.

Kennan George, American Diplomacy (1900-1950), University of Chicago Press, Chicago, 1985.

Leonard Mark, Re-Ordering the World, The Foreign Policy Centre, 2002.

Meadows Donella et Dennis, Les limites de la croissance dans un monde fini, Rue de l’Echiquier, Paris, 2012 [Limits to Growth. A Report for The Club of Rome's Project on the Predicament of Mankind, a Potomac Associates Book/Universe Books, New York, 1972].

Merle Marcel, « Un système international sans territoire », Cultures et Conflits, printemps 2001.

MontbrialThierry de, L'Action et le Système du Monde, PUF, Paris, 2002.

Morgenthau Hans J., Politics Among Nations: The Struggle for Power and Peace, WCB/McGraw-Hill, New York, 1985 (sixième éd.)

Ralston Saul John, The Collapse of Globalism, Atlantic, 2005

Roche Jean-Jacques, Théorie des relations internationales, Montchrestien, Paris, 2001.

Servigne Pablo et Stevens Raphaël, Comment tout peut s’effondrer, Seuil, Paris, 2015.

Stedman Stephen John, Peacemaking in Civil War: International Mediation in Zimbabwe, 1974-1980, Boulder, CO/Lynne Rienner, Londres, 1991.

Tainter Joseph, ​L’effondrement des sociétés complexes, Le Retour aux Sources, 2013 [1988].

Testot Laurent, Cataclysmes : Une histoire environnementale de l’humanité, Payot, Lausanne, 2017.

The Guardian Weekly, "The Polluters", October 18, 2019, 10-16.

Todorov Tzvetan, Le nouveau désordre mondial. Réflexions d’un Européen, Robert Laffont, 2003.

Vidalenc Eric, Pour une écologie numéique, Les Petits Matins, 2019.

Fr. Extraterritorialité

Esp. Extraterritorialidad

→ border, humanity, international law, sovereignty, transnational

The term belongs to public international law and more particularly to extraterritorial jurisdiction. It refers to the competence of a State to establish, apply and enforce rules of conduct by State or non-State actors towards persons, property or events beyond its borders (Oxford Public Law Dictionary). The Jacques Delors Institute gives it this definition: "Extraterritoriality generally refers to the unilateral use by a State of instruments taken under its sovereign jurisdiction to enforce its own law, in a territory other than its own, for actions committed outside its territory, by entities or persons from other countries. "This power may be exercised by prescription, judgment or execution. Prescriptive jurisdiction refers to the authority of a State to establish legal standards, while jurisdictional jurisdiction gives the State the power to resolve conflicts between competing claims. The enforcement power, on the other hand, refers to the power of a State to enforce its national legislation.

The United States uses a variety of extraterritorial means based on its own legislation with respect to private individuals or legal entities, resulting in the imposition of international sanctions, the suppression of bribery of public officials abroad (under the Foreign Corrupt Practices Act) and the imposition of US taxation on non-resident US citizens: the Account Tax Compliance Act (FATCA)requires that foreign financial Institutions and certain other non-financial foreign entities report on the foreign assets held by their U.S. account holders, and that U.S. persons to report, depending on the value, their foreign financial accounts and foreign assets. The economic sanctions that targeted Cuba, Libya or Sudan now apply to Iran and Russia, the latter under the Counter America's Adversaries Through Sanctions Act (CAATSA). Against corruption, the country uses the Foreign Corrupt Practices Act (FCPA) of 1977, and has promoted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted by the Organisation for Economic Co-operation and Development (OECD) in 1997. Trade protectionism, on the other hand, has been strengthened by the Trump government since 2017. In the field of defence, the International Traffic in Arms Regulations (ITAR) provide for a prohibition on the sale to a third country of weapons containing at least one American component. Finally, the regulations established by the Committee on Foreign Investment (CFIUS) in 2018 will require foreign investors to submit to the authorities any acquisition of a stake or the takeover of a US company in 27 key sectors such as aerospace, telecommunications, computer industry, semiconductors and batteries.

The notion also overlaps with that of transnationality, which refers to interactions between actors, particularly non-state actors, acting independently of national authorities or international organisations. This covers the field of civil society in the broad sense, composed of the non-profit-making associative sector, but also, according to some definitions, economic actors (multinational companies). Transnationality can also be embodied by the action of certain individuals such as Raoul Wallenberg, who saved thousands of Hungarian Jews from Budapest, occupied by Nazi Germany in July 1944, by issuing them Swedish papers in the final months of the destruction of European Jews. He had also frantically bought buildings in Hungary to house as many Jews as possible, and invoked extraterritorial status.

The proliferation of transnational actors unfolds in a more horizontal pattern of extraterritoriality, distinct from the unipolar or hierarchical pattern of state-centred extraterritoriality. At the height of transnational associative action, Richard Falk (1995) cited international meetings flanked by parallel meetings of INGOs as the announcement, after many others, of a bicameral world parliament that would provide a framework for inter-state action, while noting the lack of resources, the fragmentation of such a "global civil society" and, ultimately, its inability to influence the international system despite the creation of voluntary bodies like the Global Compact. The action of non-state networks also remained ambiguous, because globalization "from below" could just as easily weaken states by generating a cosmopolitanism comparable to the pre-state jungle feared by Hobbes, or a "new Middle Ages" (Booth 1991) made up of a galaxy of private strongholds, whether for-profit or non profit, devoid of any supra-state coordination.

 The term "extraterritorial", which is used in some works such as Isaac Paenson's Multilingual Manual of the terminology of Public International Law (1963, 122-124), is not so common and refers to the privilege enjoyed by the diplomatic agent acting as a liaison between the sending State, whose sovereignty he embodies, and the State to which he is accredited, and also covers transit through third States to the host country. This type of privilege, which has a long history and has always been respected, is one of the customary elements  underlying contemporary diplomatic law. Its legal basis, according to Grotius, is embodied in the "Prince's dignity" (any constraint on him would be an offence to the sovereignty of his State) and in his extraterritorial state, which is a "legal fiction". More recent IR theories hold to the premise that privileges and immunities are required for the agent to perform his or her duties within the international apparatus (the theory of the interest of the function). They are defined by inviolability, immunity from jurisdiction, tax immunity, freedom of communication, the right to private worship and exemption from military charges.

It should also be noted that the term "offshore", of similar meaning, is used to describe companies with offshore activities in the sense that they are registered in a given country not to carry on an activity there, but to have a mailbox that offers them the tax or regulatory advantages of the chosen tax haven.

In a detailed monograph, Cedric Ryngaert (2015) notes that the term "extraterritoriality" remains ambiguous and, like other authors, uses the notion of "reasonable" rather than "rational" about an agreement resulting from negotiation based on pragmatic situations. The latter concept could emerge, he said, from transnational communication networks that link state bodies and private actors. He added that states, in different legal contexts and if a given case clearly refers to another state, tend to apply their own laws only in the alternative. The principle of subsidiarity that appears here serves to restrict the exercise of jurisdiction by giving the state with the closest connection the primary right to exercise its jurisdiction, so that the "primary" state does not exercise its jurisdiction, even if, at the global level, this were desirable. In this case, the "subsidiary" state has the right - and sometimes the duty - to intervene in the interest of the world community. However, it appears that the theories of rational choice that inspire these reports are based on "the premise of an autonomous and masterful national legislator, ignoring the complexity of normative and jurisdictional interactions resulting from extraterritorial laws, regional standards or potential conflicts between global standards (UN, WTO, ILO)" (Delmas-Marty 2006, 15).

The legal view is that interests, which underpin the law of traditional jurisdiction, ensure that harmful global impunity and under-regulation do not occur. Sovereignty then becomes a relative concept, because its substance is subject to international law and international interest. In practice, it will be the state with the strongest connection to a situation that will have the right to exercise its jurisdiction, but if it does not do so adequately from the point of view of other states, provided, however, that the exercise of its jurisdiction serves the general interest. 

 

An old phenomenon

While political scientists have noted that this aspect of international relations has been highlighted since the 1980s, historians have shown that it goes back a long way in history. The use of violence by political entities in extraterritorial form, by universalist religions and by empires with religious or ideological foundations is certainly not new. It dates back to the highest antiquity and has been found over the centuries among pirates, mercenaries and other ancestors of mafia networks (Thompson 2004).  The Italian Renaissance, between the 14th and 16th centuries, is an illustration of this, through the establishment of contracts (condotta), condottieri concluded between mercenary companies, real standing armies, and Italian cities, after the decline of feudal military formations. The British Crown used the private militias of the East India Company in the colonization of India from 1757 to 1858, authorized by the Royal Charter granted by Queen Elizabeth I on 31 December 1600, before the British Crown took over the occupied territories after the Indian rebellion of 1857 and adopted the Government of India Act in 1858. Similarly, the sixteen-year war between England and fast-growing Spain was an opportunity for the English to resort to private actors such as the slave-driver privateer Francis Drake and merchant John Hawkins, who nowadays would be likened to some form of piracy or terrorism. At the end of the 16th century, Queen Elizabeth I of England invested in the Hawkins slave trade and used Drake's non-state services, particularly when she faced the Spanish fleet known as the Invencible Armada (Lloyd 1984, 9-11).

Nowadays, many non-governmental entities are created or manipulated by States or by Mafia or terrorist networks. In the literal sense, the latter remain non-governmental entities in the sense that they express particular individual or collective interests, albeit in the extreme form of criminal organizations such as the Japanese yakuza, Russian bratva or more recent terrorist networks. However, some overthrows are taking place, such as that of Great Britain, which is now prosecuting slave traffickers such as British nurse Josephine Iyamu, convicted in court for delivering Nigerian women to Germany for work or prostitution, which is the first implementation of British anti-slavery legislation (over 5,000 victims were identified in 2017) for a crime committed outside its borders. One of the reasons for these extraterritorial prosecutions is that some countries lack any legislation to punish acts of a cross-border nature (The Economist, 4 July 2018).   

The principle of publicity, through the creation of a transnational public space, remains precarious for these various reasons, as it is increasingly challenged by authoritarian regimes. In both cases, it remains problematic for IR theory to theorize non-state associative phenomena, whose components are as much communitarian as they are societal. Thus, associations of communities or ethnic groups, whether territorial or not (transnational such as associations of indigenous peoples, gypsies or other people without borders), with associative status, are subject to the authority of states while some of them claim state status. On the other hand, as associations (INGOs) of communities sometimes have consultative status with the UN or UNESCO or enjoy the right of self-determination of peoples, they are likely to conflict with individual rights as representatives of community rights, which in their own way conflict with the territorial law of states (Archibugi 2003).

   

Legal pluralism

In recent times, the international political order has seen extraterritorial law materialize only very partially, as illustrated by the unfortunate attempt of the League of Nations and the more accomplished attempt of the United Nations. It remains far below cosmopolitical but utopian projects, such as the World City imagined by Paul Otlet with the support of Belgian diplomacy in the first half of the 20th century. This initiative benefited from the contribution of architects Le Corbusier and Pierre Jeanneret, who drew up the plans according to a hierarchical and pyramidal symbolism and planned to build it as an extraterritorial site in Geneva, then in Brussels and finally in Antwerp, before the project was finally abandoned (Ghils 2016).

The extraterritorial spillover of state competences is particularly evident in conflicts between state and inter-state law and the prerogatives claimed by economic actors, as illustrated by the debate triggered by the signing of the AACC by EU bodies. Its main issue was the evolution of international law, which was in danger of being largely driven by the public into the private sector. Already, international law is very dependent on US law, which imposes its extraterritorial norms all over the world by assuming de facto universal jurisdiction. However, we cannot ignore the responsibility of the EU institutions and the shortcomings of a European democracy that is trying to find its own way, but whose institutions "forget" to consult and inform citizens about their approaches and objectives. However, national and regional authorities have the power to act as counter-powers, as the 38 parliamentary assemblies are called upon to vote on the adoption of the AACC in order for it to be effective.

As can be seen, law is becoming more international and is no longer limited to state courts, as illustrated by the extension of standards to the regional level within the European Union and, to a lesser extent, to the global level (UN, WTO). International courts have been established in these contexts (European Court of Human Rights, International Criminal Court), and some national jurisdictions claim extraterritoriality or universal jurisdiction, but these extensions are overwhelmed by various developments, from cooperation to the harmonization or even unification of national, international and supranational standards, resulting in complex, evolving and unstable legal systems (Delmas-Marty 2006).

On the other hand, some States wishing to apply universal standards have proclaimed universal jurisdiction, first practised by American law under the 1789 Alien Tort Claims Act, which has fallen into disuse but is now being invoked again. This law applies to violations by States or their agents, but also to individuals and transnational corporations, but was limited by the Supreme Court in Kiobel v. Royal Dutch Petroleum Co. referring to the absence of liability of legal persons for serious human rights violations, as defended in countries with a Romano-Germanic tradition. The recent legislative progress made in Europe in the fight against corruption deserves to be reinforced. The Foreign Corruption Practices Act (FCPA) has been applicable in the United States since 1977, while the Organisation for Economic Co-operation and Development (OECD) adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997. Finally, the UN published the UN Convention against Corruption in 2005.

It appears that universal jurisdiction cannot be indefinitely applied in practice, because only the most powerful countries could afford it, leaving States free not to adopt it. Belgium, as detailed by the Centre for International Law of the Free University of Brussels, had been a pioneer in adopting a law aimed at punishing serious breaches of the Geneva Conventions of 12 August 1949 and Additional Protocols I and II, 8 June 1977 (war crimes in a domestic or international context), which paved the way for an investigation against Augusto Pinochet on 1 November 1998, followed by an arrest warrant. The universal jurisdiction of the Belgian judge was then extended to the crime of genocide and crimes against humanity without any immunity being able to oppose it, which made it possible to receive some complaints (trial and conviction) before the Brussels Assize Court in April 2001, of four people accused of participating in the Rwandan genocide), followed by others against Fidel Castro, Saddam Hussein, George Bush Senior and Colin Powell for acts committed during the first Gulf War, Laurent Gbagbo, Hissène Habré and Ariel Sharon (which caused violent protests from Israel). After a further revision of the law, Belgium was condemned by the International Court of Justice to overturn the international arrest warrant issued against Abdulaye Yerodia while he was Minister of Foreign Affairs of the Democratic Republic of Congo, on the grounds that the arrest warrant ignored the immunity granted to current Heads of State and Ministers of Foreign Affairs, which led to a further amendment of the law in 2003 to take into account this judgment. Other complaints were filed, such as those against US politicians and military officials following the US intervention in Iraq, followed by virulent reactions from the US, including threats to move NATO headquarters from Brussels. The American Minister of Defence, Donald Rumsfeld, in particular, denied Belgium's authority to judge American leaders and made the American contribution to the construction of the new NATO headquarters in Brussels conditional on the guarantee that Belgium would once again be "a hospitable place for the conduct of NATO activities". These various reactions led to the repeal of the so-called universal jurisdiction law (Centre de droit international, ULB).

The negation of the universal

Universal values proclaimed in the Universal Declaration of Human Rights are challenged in various ways, including by powerful states such as China in the name of its own values, or by the United States whose republican constitution was intended from the outset to be universal, but also by certain authoritarian states such as Turkey, which pursue their political opponents abroad. The North American case has caused various controversies since the adoption of the Extraordinary Rendition Program (usually rendered by "extraterritorial arrest") set up by the United States government prior to September 11, 2001 as a global mechanism for the arrest, imprisonment and trial of non-American individuals outside the national territory, considered guilty of violating US security. This political programme was emancipating itself from both national and international law, which was attached to the concepts of territoriality and sovereignty. It was necessary for the UN Commission on Human Rights to renew the condemnation on the initiative, in particular, of France, of endemic disappearances which usually took place at the local level, dictated by a State, a community or a region under the influence of an ideology which claims to be superimposed on territorial norms. In 2006, the United Nations adopted the International Convention against Enforced Disappearances, signed on 6 February 2007 in Paris by representatives of fifty-seven countries. Finally, on 31 May 2018 the European Court of Human Rights (ECHR) found Romania and Lithuania guilty of harbouring CIA secret prisons in which detainees were tortured. The judgment does not deal with the merits, such as the security reasons invoked by States, but with the methods used:"... inhuman and degrading treatment, violation of the right to respect for private and family life and violation of the right to an effective remedy" (Follorou June 2018).

In 2018, following the US withdrawal from the historic 2015 Joint Comprehensive Plan of Action (JCPOA) agreement, which provided for the lifting of sanctions against Iran in return for the Islamic Republic's commitment not to acquire nuclear weapons, some European leaders (France, Germany, United Kingdom) became aware of the imposition by the Americans of rules on those who remain their allies and wanted to obtain "different rules" concerning European companies in Iran. The EU must protect its economic sovereignty against the effects of US legislation of an extraterritorial nature, as it did in response to the sanctions it imposed on Cuba in the 1990s.

Certainly, violating the sovereignty of a weak state by a powerful state is a general rule in the history of inter-state relations, vividly illustrated by colonialist enterprises and the expansion of empires throughout history. It may, however, be made easier by the tacit or negotiated renunciation by certain States, which are not necessarily weak from a military or economic point of view, to exercise their traditional prerogatives and grant the hyperpower or superpower extraterritorial privileges,  enabling it to freely defend its interests. The criteria applied are not very different from those of empires, ideological movements or religions with universal aims, whose territorial boundaries are never set.

Policies allowing the arrest and imprisonment of individuals outside national borders are made possible by the extension of a reticular space superimposed on the distribution of powers between sovereign states, which a Council of Europe report (2006, 66) described as the "spider's web". American law is based on a regime that can also be described as post-territorial when borders lose their relevance and allow for deterritorialized physical movement. The conception of American republicanism is undoubtedly not alien to this, which from its foundation has been based on universal values. The myth of origin is that of a state of immaculate innocence on a "virgin" continent, the "New World", the "City on the Hill" of George Washington's authentic humanity, founded by Puritan pilgrims from Massachusetts. The 1776 Declaration of Independence proclaimed that "all men are created equal" and marked the birth of a nation whose only qualification to be a citizen was membership in the human race. The unbridled imagination of the Quaker philosopher Thomas Paine (late 18th century) saw in the American Revolution the freedom to "start the world over". For President Abraham Lincoln (1809-1865), the survival of the Union during the civil war was vital for the whole world because it conditioned a democratic experience whose failure would lead to the very idea of popular government of the earth disappearing. This did not, it must be said, prevent the Naturalization Act of 1790 from introducing racial discrimination by limiting the right of naturalization to free white persons, nor in the 1820s and 1830s from extending suffrage to all white men while denying it to the few free blacks who had previously been granted the right to vote.

Other cases of extraterritorial intervention are well known, such as incursions into Pakistani territory using drones, or, more discreetly, the extension authorized by Obama, in particular through the CIA, of extraterritoriality privileges to many American intelligence agents who are often independent under contract, This makes it possible to conceal their true mission from the Pakistani government, which reportedly issued hundreds of work visas without knowing that it was issuing residence permits to American spies (Jaffrelot 2012, 1-49).

Other cases are more worrying because they are linked to countries neighbouring Europe, first and foremost Russia, which did not hesitate to annex the Ukrainian province of Crimea in violation of international law. Further north, the Scandinavian countries are concerned about a possible Russian incursion into the border town of Narva in northern Estonia, whose 65,000 inhabitants are 90% Russian-speaking. Like the takeover of Donetsk in Ukraine, Moscow could "help" Russian-speaking Estonians who "felt threatened". The Kremlin's military doctrine legitimizes since 2010 any operation aimed at rescuing "ethnic Russians" living outside Russia (Gyldén 2018).

Another country in the vicinity of Europe, Turkey organizes intelligence services in various European countries, as did Chilean DINA (Dirección de inteligencia nacional) during the military dictatorship of Augusto Pinochet, who established a network of agents in the 1970s to identify and eliminate opponents of the dictatorship. Nowadays, European courts want to attack itinerant commandos of the Turkish Secret Service (TIS) who have been acting against political opponents and Kurdish leaders since 2017 in Belgium, Germany and France. These countries have increased judicial cooperation to prevent MIT agents from eliminating Turkish opponents who have taken refuge abroad (Follorou, March 2018).

States are not the only ones involved, since the universalism of values is also challenged by certain ideologies or religions, as illustrated by the Declaration of Human Rights in Islam adopted in Cairo in 1990 by the 45 members of the Organization of the Islamic Conference (OIC), which considers the sharia as the sole source of these rights, here based on the authority of a non-state organization. Religious communities with political ambitions that claim to be universal have little consideration for sovereignty or autonomy claims of cultural communities. The peculiar character of monotheistic faith is not based on rationality or a political right, but on a conviction of its own, an emotional state that takes the acquired faith as the only one worthwhile. Engagement in the holy war (frequently equated with  the ambiguous term "jihad" when referring to Islam) is the most violent expression, but expresses the same conviction of being in the truth and of representing belonging without borders to a universal community. It claims to express the consciousness of a totalizing sense of the world, indifferent to the rational arguments of moralists, geopolitical or social scientists who seek another motivation for them. Religious universalism, in holy war as in messianic enterprise, is extraterritorial in nature and cannot lend itself to integration or multicultural policies, nor subordinate itself to national identities or cosmopolitan internationalism. If there are several universalist doctrines, they will necessarily be rival and incompatible, but will remain totalizing, because "Believers are afraid of "God", non-believers are afraid to talk about it", as Daniel Sibony (cited in Birnbaum 2015, 17) notes, fear being the most powerful source of the human psyche.

Christian universalism was powerfully promoted by St. Paul who, initially preaching to Jews and new Christians alike, gradually detached the new doctrine from Judaism, proclaiming that there was no difference between slaves and free men, Jews and Greeks, men and women, "all united in Jesus Christ". A Pharisaic Jew from Tarsus (Cilicia, south of present-day Turkey), Paul (Saul in Hebrew) was a Roman citizen by birth, wrote to the Celtic Galatians, travelled to Palestine to persecute Christians, considered to be part of a seditious sect of Judaism, and then converted and proclaimed himself an evangelist and messenger of Jesus, although he had never met him. He wrote his epistles in Greek, and his universalist theology was probably influenced by the Greek-Roman universalism of the time, with Roman citizenship being granted to the multiple nationalities of the empire. It is significant that in the 19th century the Lutheran theologian Adolf von Harnack (1851-1930) considered that it was Paul who delivered the Christian religion from Judaism (Gager 2004). One illustration of the conquering universalism of Christianity, which remains here associated with imperial politics, is that of pre-modern Castilians who, in the wake of the late Middle Ages and the reconquista against Islam, aimed not so much at establishing new political borders as consolidating Christianity, marked by the Treaty of Tordesillas of 1494 under the authority of Pope Alexander VI. The abolition of state borders between the European and Amerindian worlds by a formally non-state authority thus reverted to the mythical sphere of origins.

The Islamic doctrine presents itself differently, in particular because it has never severed politics from religion, unlike Christianity with the exception of the relative interdependence between institutions on both sides, and the less ambiguous case of Caesaropapism in Orthodoxy. On the cultural level, the doctrine also differs from early Christianity, because if it quickly forgets its Aramaic expression, spreads in various languages, is open to intercultural links and universal values. By contrast, Islam focuses exclusively on the Arabic language, relatively purged of its pre-Islamic background (polytheism in particular), with the only notable exception of the Jewish heritage which, according to exegetes, constitutes the bulk of Islamic writings (mainly Koran and hadiths). 

In the international sphere, the supremacy of Islamic law over political legality led the European Court of Human Rights to declare in 2003 (Council of Europe 2004) that Islamic law was incompatible with democracy and human rights adopted by European democracies. The EC report concluded that"... a regime based on Sharia law is incompatible with the Convention, particularly with regard to its rules of criminal law and procedure, the place it gives to women in the legal system and its intervention in all areas of private and public life in accordance with religious norms". It is in fact a condemnation of the Koran, which is the main source of Muslim law. Indeed, the latter is recognized by Muslim countries as the main, if not the only, source of law, according to the 1990 Cairo Declaration mentioned above. One of the explanations of religious historians is that Judaism and Islam contain legal rules while the gospels are more moralistic. Sunni Islam was originally established on the political-religious structure of the Caliphate, although it did not have a hierarchical clergy. Avicenna, and Ibn Kaldoun (9th and 14th centuries) who is among the thinkers of the universal comparable to Marx or Tocqueville, theorized the alliance between faith and reason in a community of believers (umma) governed by the fundamental principles of theocracy. This doctrine knows neither the nation nor the sovereign state, by virtue of the perfect political order achieved in Medina from 622 to 632, when the Prophet became legislator, city chief and war chief all at once. Muslims, writes Ibn Khaldun, must wage an offensive war "because of the universal nature of Islam's mission and the obligation to convert everyone, willingly or forcibly. This character is not recognized to followers of other religions, who do not have a universal mission; they can only wage war to defend themselves. "» (1967, 459-460)

Generally, the power of non-state actors requires extending the notion of extraterritoriality to their various sectors of activity, whether commercial (multinational companies), financial (banking groups), mafia (trafficking of all kinds), paramilitary (terrorist networks) or religious. Transnational networks often remain outside the scope of international law, with the exception of the international and transnational associative world (INGOs), which generally comply with its standards. Relations between the international (inter-state) and the transnational economic sector have therefore generated a "soft law" of codes of conduct and guidelines such as the Global Compact launched by UN SG Kofi Annan in 2000, or the guiding principles of the Organisation for Economic Co-operation and Development and the United Nations, which remain non-binding (Ruggie 2011).

Security considerations related to terrorism are a recent cause of limiting universal norms, through the demand for "predictive justice that replaces responsibility with danger and punishment with neutralization, while organizing the "traceability" of "at-risk" populations" (Delmas-Marty 2014, 29). Some governments, such as in Syria, go so far as to relieve themselves of any constraint on their own population, which is considered "terrorist" if it expresses a feeling of political opposition. Humanist anthropology, based on free will, is giving way to widespread war, once called total war: enforced disappearances, torture and systematic rape, indefinite internment and extrajudicial executions show how people accused of terrorism lose their status as human beings (Human Rights Watch 2018).

In contrast with the criminal level, attempts to establish international standards have been inconsistent and ineffective. Among other documents, the study commissioned by the Special Representative of the United Nations Secretary-General for Business and Human Rights (SRSG) to develop guidelines on the obligations of states to protect against business-related abuses explored extraterritoriality in six different regulatory areas: anti-corruption, securities, antitrust laws, criminal law, civil affairs in general and the environment. The study adopts the distinction made by the SG between the use of national measures with extraterritorial implications and the exercise of direct extraterritorial jurisdiction over private actors or activities abroad (Zerk 2010). It notes that universal civil jurisdiction remains outside international law in its current state. Any extension is subject to objections from economic actors and states, as in cases of civil proceedings relating to international crimes (torture, war crimes, crimes against humanity, genocide, etc.), which allow or require States to exercise universal criminal jurisdiction.

When the origin of a company's criminal conduct is located in the State of the headquarters and is identified, even if the crime is committed outside its territory, it is easier to deal with the problem and, in some cases, to circumvent the prerogatives related to sovereignty. In order to clarify the obligations of companies with regard to the formal dispute settlement system, United Nations and OECD Guidelines have been developed for non-binding application in forum states (where the court must hear the matter).

The principles of civil jurisdiction have developed widely within the framework of national and regional legislation, despite the absence of a global framework for civil corporate jurisdiction, as many transnational corporate disputes involving extraterritoriality issues have been resolved through negotiation, arbitration or other means available in a conventional business context. Where such disputes have been contractual, the question of jurisdiction and choice of applicable law usually follows the rules set out in the contract, which reflect the will of the parties.

The isolationist policy adopted by the United States under the Trump presidency raises new questions in the trade field, as the economic and political sanctions imposed in this regard renounce multilateral relations, including with political allies, and are presented as measures designed to ensure the country's security. As they violate international law, the EU has therefore resorted to WTO standards. In addition, political disputes between the United States and countries that do not accept or are victims of such violations without being able to react, particularly in the context of Iran's nuclear weapons agreement, disrupt the situation of IRs between the applications of extraterritoriality and national responses to protect or respond to them. In the case of US sanctions imposed on companies operating in Iran, the economic sovereignty of EU Member States is at stake and is the subject of various responses. In addition to the ongoing negotiations with the US, the EU is considering the use of the 1996 European regulation, known as the "blocking statute", which makes it possible to condemn extraterritorial sanctions. Created to circumvent the embargo on Cuba, it allows European companies and courts not to comply with regulations on sanctions imposed by third countries and stipulates that no judgment decided by foreign courts on the basis of these regulations can be applied in the EU. However, this regulation has never been applied.

The EU also has the possibility of bringing an action before the International Court of Justice, which could declare the United States' exit from the Vienna Agreement illegal and would be a strong argument for recourse to the World Trade Organisation (WTO). Finally, the EU could block sanctions in another way, by prohibiting its companies from responding to investigators from the Office of Foreign Assets Control (OFAC), which would prevent the US judiciary from imposing sanctions (L'Obs, 8 August 2018).

For its part, France tries to prevent American sanctions for acts of corruption committed outside the United States by strengthening its legislative framework ("Sapin 2" law), imposing procedures on large companies to prevent corruption and influence peddling (code of conduct, internal alert system, risk mapping, third-party management procedure, accounting controls, training system, etc.).

On the financial side, the Europeans referred to the existence of a "foreign asset control office that allows the US Secretary of Finance to monitor, condemn and prosecute foreign companies that do not comply with US decisions" and considered setting up a similar European office to monitor the activities of foreign companies and verify that they comply with European decisions (Cazeneuve 2018).

The reemergence of the Universal

A recent case of extraterritoriality based on international law is the issuance by the French courts in November 2018 of international arrest warrants against three senior Syrian intelligence officials. These warrants were issued by an investigating judge, in accordance with the prosecutor's instructions, on charges of "complicity in acts of torture, complicity in enforced disappearances, complicity in crimes against humanity, war crimes and war crimes". This decision is part of the judicial investigation opened in October 2016 in Paris of charges of enforced disappearances and torture constituting crimes against humanity, and of complicity in these crimes. The investigation is based on the "Caesar" case, the pseudonym given to a Syrian military police photographer who fled his country in July 2013, taking with him some 50,000 photos of dead prisoners who died of hunger, disease or torture in the prisons of the Bashar Al-Assad regime between 2011 and 2013. These three arrest warrants come after the warrants issued in Germany and de facto prevent the Syrian officials concerned from travelling abroad, let alone to Europe, where cooperation between member countries is strengthened. These warrants are issued on the basis of universal jurisdiction under the international conventions mentioned above.

Finally, the threat of cyberattacks backed by state and non-state actors in elections held in various states appears to be aimed at disrupting and influencing the democratic processes. After suspicions expressed by US intelligence services due to alleged Russian interference in the US elections, the European Commissioner for Justice warned in November 2018 of the risk of interference and manipulation of the European elections. Eurostat surveys have found a growing mistrust in this regard, with 81% of Europeans in favour of greater transparency of advertising on social networks, while 80% want platforms to mention how much money comes from political parties. These concerns are confirmed by a report from the Estonian Information Systems Authority, to which more than 20 Member States, the European Commission and the EU Cybersecurity Agency have contributed. The document states that "a coordinated cyber attack could be serious enough to hinder the democratic process and prevent the European Parliament from forming after the election".

Recent European measures include the INSTEX trade mechanism launched by Britain, France and Germany on 31 January 2019 to bypass US sanctions on Iran, and the European Business Code put forward by the Treaty of Aachen on 22 January 2019, to avoid extraterritorial American laws.

 


 

Agamben Giorgio, « L'état d'exception », Le Monde, 12 décembre 2002

Agamben Giorgio, Ce qui reste d’Auschwitz, Homo Sacer III, Rivages, 1999

Aldeeb Sami, Introduction à la société musulmane. Fondements, sources et principes, Eyrolles, 2006

Archibugi Daniele, “A critical analysis of the self-determination of peoples: a cosmopolitan perspective”, Constellations, 4, Blackwell, Londres, 2003

Agamben Giorgio, « L'état d'exception », Le Monde, 12 décembre 2002

Agamben Giorgio, Ce qui reste d’Auschwitz, Homo Sacer III, Rivages, 1999

Aldeeb Sami, Introduction à la société musulmane. Fondements, sources et principes, Eyrolles, 2006

Archibugi Daniele, “A critical analysis of the self-determination of peoples: a cosmopolitan perspective”, Constellations, 4, Blackwell, Londres, 2003

Arendt H., « Le déclin de l’Etat-nation et la fin des droits de l’Homme », chap. 5 de L’Impérialisme. Les origines du totalitarisme, Seuil, 1984

Arnaud Benjamin, « Les Etats-Unis ont-ils le droit de punir des entreprises françaises en Iran ? », L’Obs, 8 août 2018

Armstrong Karen, St. Paul: The Apostle We Love to Hate, New Harvest, 2005

Azzam Abed, Nietzsche Versus Paul, Columbia University Press, 2005

Badiou Alain, Saint Paul : La Fondation de l'universalisme, Collège international de philosophie, 2008

Birnbaum Jean, « La foi, personne n'y croit », Le Monde, 24-25 janvier 2015

Birnbaum Jean, Un silence religieux. La gauche face au djihadisme, Seuil, 2016

Bonnecarrière Philippe, "What European response to American extra-territoriality?", Schuman Foundation, February 4, 2019

Booth Ken, “Security in Anarchy: Utopian Realism in Theory and Practice”, International Affairs, July 1991

Brossat Alain, « Demandez le programme ! Quelques réflexions sur l’Extraordinary Rendition Program », Cultures & Conflits, 68, 2008

Cabestan Jean-Pierre, Demain la Chine : Démocratie ou dictature ?, Gallimard, 2018

Cazeneuve Bernard et Sellal Pierre, « Il faut corriger l’asymétrie entre Europe et Etats-Unis dans la lutte contre la corruption », Le Monde, 7 juillet 2018

Conseil de l’Europe, « Les Etats membres donnent les dernières réponses sur les 'prisons secrètes' et les restitutions de la CIA », Assemblée parlementaire,  28 février 2016

Conseil de l’Europe, « Allégations de détentions secrètes et de transferts illégaux de détenus concernant des Etats membres du Conseil de l’Europe »,  rapport de l’Assemblée parlementaire, doc. 10957, 12 juin 2006

Cour européenne des droits de l’homme, Rapport annuel 2003, Strasbourg, 2004

De La Grange A., « Nouvelles accusations sur les transferts de prisonniers de la CIA en Europe », Le Figaro, 8 juin 2006.

Delmas-Marty Mireille, « Humaniser la mondialisation”, in Wieviorka Michel, et al., Penser global : Internationalisation et globalisation des sciences humaines et sociales, Paris : Éditions de la Maison des sciences de l’homme, 2014

Delmas-Marty Mireille, « Le pluralisme ordonné et les interactions entre ensembles juridiques », conférence présentée le 26 janvier 2006 à l’Université Bordeaux IV et traitant de Les forces imaginantes du droit (II), Le pluralisme ordonné, Seuil, 2006

Delmas-Marty Mireille, Les forces imaginantes du droit. [I], Le relatif et l'universel; II, Le pluralisme ordonné; IV, Vers une communauté de valeurs, Seuil, 2004-2011

Diamond Larry, « Facing Up to the Democratic Recession », Journal of Democracy, janvier 2015

Ergec R., La compétence extraterritoriale à la lumière du contentieux sur le gazoduc Euro-sibérien, Editions de l’Université de Bruxelles, 1984

Falk Richard, On Humane Governance.Toward a New GlobalPolitics, Polity, Cambridge, 1995

Flasch O.,  (2015) ‘The Exercise of Self-Defence against ISIL in Syria: New Insights on the Extraterritorial Use of Force Against Non-State Actors’, working paper, 2016

Follorou Jacques, « L’Europe veut contrer les espions turcs sur son sol », Le Monde, 16 mars 2018

Follorou Jacques, « Les prisons secrètes de la CIA en Europe de nouveau condamnées », Le Monde, 2 juin 2018

France diplomatie, « Le Pacte Mondial des Nations unies (Global Compact), initiation au reporting extra-financier », 12 octobre 2017

France diplomatie, « Pacte Mondial : outil d’auto-évaluation pour les deux principes relatifs aux droits de l'Homme »,

Gager John G., Who Made Early Christianity? The Jewish Lives of the Apostle Paul, Columbia University Press, 2004

Ghils Paul, Connaissance totale et Cité mondiale. La double utopie de Paul Otlet, Academia/L’Harmattan, 2016

Grey S., Les Vols secrets de la CIA : comment l’Amérique a sous-traité la torture, Calmann-Lévy, 2007

Gyldén Axel, « Si la Russie attaque l'Europe du Nord... », L’Express, 8 juillet 2018

Hardt M. et Negri T., L’Empire, Exils, 2000

HRW (Human Rights Watch), Rapport mondial 2018

Ibn Khaldoun, Discours sur l'histoire universelle, AbeBooks, Beyrouth, 1967

Institut Jacques Delors, L’Europe face aux sanctions américaines, quelle souveraineté?, 2018

Irene Khan, “Stop in the name of the law”, International Herald Tribune, 12 avril 2006

Jacob Antoine, « Détentions secrètes de la CIA : la justice allemande enquête sur le rôle de Berlin », Le Monde, 23 février 2006

Jaffrelot Christophe, « La relation Pakistan-Etats-Unis : un patron et son client au bord de la rupture? », Etudes du CERI, 2012, hal-01024593, pp.1-49

Kébabdjian Gérard, « La nouvelle architecture financière : gouvernance globale ou régime international ? », Erudit, 2/2002.

Lloyd Trevor Owen, The British Empire 1558-1983, OUP, 1984

Marcovitch A., « Disparitions forcées : l’ONU met fin à l’impunité des Etats », Le Figaro, 3 juillet 2006

Martinez-Gros Gabriel, Brève histoire des empires, Seuil, Paris, 2014

Mayer Jane, “Outsourcing torture. The secret history of America’s ‘extraordinary rendition’ program”, February 14, 2005

Mouline Nabile, Le califat. Histoire politique de l’islam, Flammarion, 2016

Network Information Systems (NIS) Cooperation Group, Compendium on Cyber Security of Election Technology, July 2018

Nye Joseph, Bound to Lead: The Changing Nature of American Power, Basic Books, New York, 1990

Nye Joseph, Soft Power: The Means to Success in World Politics, Public Affairs, 2004-2009

Paenson Isaac, English-French-Spanish-Russian Manual of the terminology of public international law and international organizations, Bruylant, Bruxelles, 1983

Petteni Oriane, « Apatridie, État-nation et démocratie lus par H. Arendt et ses héritiers » Interpretationes, 2014

Pope Amy, “Lawlessness Breeds Lawlessness: A Case for Applying the Fourth Amendment to Extraterritorial Searches”, 65, Florida Law Review, 2013

Quentin Genard, “European Union responses to extraterritorial claims by the United States: lessons from trade control cases”,  EU Non-Proliferation Consortium, The European network of independent non-proliferation think tanks, 36, January 2014

Rudolph Susanne H. et Piscatori James, Transnational Religion and Fading States, Westview Press, 1996

Ruggie John,  Entreprises et droits de l’homme: nouvelles mesures pour la mise en œuvre du cadre de référence «protéger, respecter et réparer». Rapport du Représentant spécial du SG, Conseil des droits de l’homme des Nations Unies, 2011

Ryngaert Cedric, “Symposium issue on extraterritoriality and EU data protection”, International Data Privacy Law, November 2015

Simons Marco, “Three Key Errors in First Decision Dismissing Climate Nuisance Lawsuits”, Earth Rights International, June 27, 2018

Steyn Johan, “Guantanamo bay: the legal black hole”, British Institute of International and Comparative Law and Herbert Smith, Lincoln’s Inn Old Hall, 25 novembre 2003

The Economist, « Chain reaction: slavery in the dock”, 4 juillet 2018

Thompson Janice E., Mercenaries, Pirates and Sovereigns : State-building and Extraterritorial Violence in Early Modern Europe, Princeton University Press, 1994

Vigouroux Christian et al., « Le droit souple », in Les rapports du Conseil d’État, 2013

Welborn L.L., Paul’s Summons to Messianic Life: Political Theology and the Coming Awakening, Columbia University Press, 2005

Willett Peter, The Conscience of the World". The Influence of Non-Governmental Organisations in the UN System, Hurst, Londres, 1996 

Williamson Hugh, “Italy’s ‘Extraordinary Rendition’ to Kazakhstan”, Human Rights Watch, 22 juillet 2013

Zerk Jennifer A., “Extraterritorial jurisdiction: lessons for the business and human rights sphere from six regulatory areas”. Corporate Social Responsibility Initiative Working Paper 59, John F. Kennedy School of Government, Harvard University, Cambridge, MA, 2010

Subcategories

Top