On Sunday, October 8th, the German federal states Bavaria and Hesse went to the polls to elect their state parliaments. The results largely fulfilled the predictions of the polls, but that does not mean that they are unremarkable. While regional elections should not be used as a sort of crystal ball for the next Bundestag elections – which will take place in 2025 – European neighbours would be well advised to keep a close eye on what happened on Sunday.
The political parties that are likely to shape Bavarian politics over the next few years require a brief introduction. The Christian Social Union in Bavaria, which is usually referred to by its acronym “CSU”, is sometimes described as the sister party of the bigger Christian Democratic Union (CDU). They form a joint parliamentary group at federal level, and at regional level, the CSU competes exclusively in Bavaria. The CSU’s past and likely future coalition partner is less well-known internationally. The Free Voters of Bavaria, “FW”, compete in several German regions but have only ever entered the state parliaments of Bavaria and Rhineland-Palatinate. They can be broadly categorised as a centre-right party, especially on social issues, but there is a great deal of ideological diversity within the party stemming from its origins as an association of independent candidates. The CSU-FW coalition has been confirmed in office, with the CSU losing 0.2 percentage points and the FW gaining 4.2 percentage points. The parties of the traffic light coalition all lost, with the FDP not surpassing the 5%-hurdle needed to enter parliament and the SPD reaching an all-time low in Bavaria at 8.4%. The right-wing Alternative for Germany (AfD) reached a record high of 14.6% in Bavaria.
In Hesse, the CDU gained 7.6 percentage points, reaching 34.6% of the total vote share. Its coalition partner, the Greens, lost 5 percentage points. The SPD and FDP also suffered significant losses, with the FDP barely making it into parliament. The Left Party (“Die Linke”) failed to pass the 5% hurdle whereas the AfD had one of its most successful elections ever in western Germany.
There are a few key takeaways of national and potentially European importance here.
These elections were about national politics, and the traffic light coalition is the big loser.
Especially compared to the results that the CSU used to achieve in Bavaria, this is not a decisive victory for its leader, Markus Söder. His hopes of being nominated as the CDU/CSU’s candidate for chancellor are likely to have been dampened by the fact that the FW gained more than the CSU did. Yet, this is also not a win for CDU leader Friedrich Merz. Boris Rhein, victorious candidate of the CDU in Hesse, was praised for distancing himself from Merz, who has recently sparked controversy with statements on asylum seekers. The consequences for intra-party rivalries may be unclear, but overall, it was a day of celebration for the CDU/CSU.
Things look much bleaker for the SPD. Hesse, unlike Bavaria, used to be the SPD’s heartland. The failure to win it back is all the more devastating given that the SPD’s candidate was Nancy Faeser, currently the interior minister under Olaf Scholz. The affiliation with the federal government seems to have hurt more than helped her party, as many citizens perceived Faeser as not fully committed to Hesse. Scholz continues to support her and says that she will remain in office – whether this is politically viable remains to be seen.
National issues far outweighed regional ones in both elections. This makes it even more significant that the “traffic light coalition” of SPD, Greens and FDP lost both elections. In the exit polls, voters expressed their dissatisfaction with the national government’s policies. The FDP has now performed poorly in all eight state elections since the national government was formed. In Hesse, the Greens suffered a 5 percentage point loss, despite voters being relatively satisfied with the performance of the CDU-Green coalition government. This is likely to reverberate all the way to Berlin, making a coalition already criticised by voters for its constant bickering even more unstable.
In Bavaria, the right-wing populists have won – and so has the AfD.
Just a few weeks before the election, FW leader Aiwanger made national headlines. A leaflet containing Nazi rhetoric that he had distributed as a high school student had surfaced, and his subsequent apology was criticised as half-hearted. Despite this, the FW managed to improve their 2018 election results – in the eyes of their voters, the scandal didn’t make them any less electable. Aiwanger has now begun to publicly consider running in the next federal election. It is likely that he senses an opening for a right-wing party somewhere between the CDU/CSU and the AfD. However, Aiwanger has always had a strong Bavarian focus, both in terms of issues and rhetoric. Moreover, most of its new voters came from its coalition partner, not from the AfD. It is not clear if the success in Bavaria would translate into a good result in a national election.
By winning 14.6% despite the victory of the right-wing coalition, the AfD has proved that it now has its own voter base – also in western Germany. Given its even better results in Hesse, no one can seriously consider it an “eastern phenomenon” anymore. It has a nationwide presence and is here to stay. In the cases of Hesse and Bavaria, coalition talks will not be hindered by the AfD’s results, as there are still plenty of other options. In Hesse, the CDU-Green coalition could continue to govern, but Rhein has already said that he will also negotiate with the SPD. In Bavaria, the CSU and FW will continue to govern, but competition within the coalition is likely to increase after this election.
If the polls for next year’s elections in eastern Germany are as accurate as they were this time, things will be very different in Brandenburg, Saxony, and Thuringia. The AfD could even become the strongest party there – current polls show it at 32% in Thuringia.
Journalists have described the exit poll interviews as being dominated by a climate of worry. Voters are concerned about the economy, migration, climate change, energy supply and foreign politics. These elections took place exactly at the halfway point of Scholz’s traffic light coalition, and they should serve as a warning: The to-do list ahead seems longer than ever, and the threat of the AfD looms ever larger.
Viktoriia Lapa is a nonresident fellow at the Center for Defense Strategies, an independent Ukrainian analytical organization that focuses on defense and security. Lapa is a lecturer at Bocconi University in Milan and an assistant professor at the Alfred Nobel University in Dnipro. She is also a guest lecturer at the University of Bologna and an affiliated scholar at the Center for Constitutional Studies and Democratic Development in Bologna. Lapa received her Ph.D. in law from Bocconi University.
The whole world is watching the NATO summit in Vilnius. Ukrainians are glued to their screens, trying to find some clarity on Ukraine’s membership in NATO’s 90-point Communiqué, published yesterday. Although there is some progress on the prospects of Ukrainian NATO membership, Ukrainians expected more clarity, especially during their confrontation with Russia on battlefields resembling those of World War I. To be sure, nobody expects Ukraine to become a part of NATO in the middle of a full-scale war with Russia, but having an unambiguous stance on Ukrainian NATO membership would draw a clear line for Russia. This piece will try to disentangle what NATO said yesterday and what signal it might send to Russia.
From the outset, the most important part of the Vilnius Communiqué related to Ukrainian NATO membership is paragraph 11, which states the following:
“We fully support Ukraine’s right to choose its own security arrangements. Ukraine’s future is in NATO. We reaffirm the commitment we made at the 2008 Summit in Bucharest that Ukraine will become a member of NATO, and today we recognize that Ukraine’s path to full Euro-Atlantic integration has moved beyond the need for the Membership Action Plan.”
The recognition of Ukraine’s passage of the Membership Action Plan (“MAP”) stage seems natural: Ukraine has been a member of MAP since 2008. MAP foresees individual annual national programs on a country’s preparations for possible future membership, including political, economic, defense, resource, security, and legal aspects. So, the logical step after confirming that Ukraine has passed the MAP stage would have been to extend an invitation to join NATO. Let’s check what the Communiqué says about the prospect of Ukraine’s membership.
“Allies will continue to support and review Ukraine’s progress on interoperability, as well as additional democratic and security sector reforms that are required. NATO Foreign Ministers will regularly assess progress through the adapted Annual National Program. The Alliance will support Ukraine in making these reforms on its path towards future membership. We will be in a position to extend an invitation to Ukraine to join the Alliance when Allies agree and conditions are met.”
In short, NATO states that they would extend an invitation to Ukraine to join NATO sometime in the future. In plain words, there is a gap on this issue, and there is nothing new. There is neither an invitation to join NATO nor clear conditions, like the European Union did with its seven-point plan, which constitutes a “home task” for Ukraine. One could find many possible explanations for this void, saying that (1) NATO left this option untouched so that it might be able to become a trump card on the negotiation table with Russia, or (2) NATO is afraid to provoke Russia. Both reasons that led to this murky approach appear to be faulty for the following two reasons.
First, Ukraine submitted its request to join NATO, which aligns with its constitutional provisions on Euro-Atlantic integration. These aspirations are clearly stated in the Ukrainian Constitution, and if Ukraine changes its course 360° and drops its NATO bid, it might be considered an unconstitutional move by the President if the case is brought to the Constitutional Court. Of course, one might simply leave the Ukrainian bid untouched and allow it to hang in the air for years, like other countries (Bosnia and Herzegovina) that are part of the MAP but do not have any clear future on their accession to NATO.
Second, the vague wording provides ground for speculation for Russia and simply motivates it to intervene in other countries that are outside of NATO. As a matter of fact, Russia has already used this vague language to spread its propaganda. In an interview with Al Jazeera on Tuesday, July 11th, 2023, Russian Foreign Ministry spokesperson Maria Zakharova has already used the NATO stance to claim that “There is now an obvious desire of Poland to invade the western part of Ukraine. This is why Ukraine is not invited to NATO.” Moreover, being vague at the Bucharest Summit in 2008 and not accepting Georgia and Ukraine allowed Russia to invade Georgia in 2008. Let us not forget that Russia already has its clout in other non-NATO countries like Moldova, Georgia, Azerbaijan, and Armenia, where it could play the same card as it did in Ukraine. The West should have learned a lesson from the recent Prigozhin mutiny: Putin starts negotiations only if he is confronted from a position of power. Being weak only gives him strength to go further.
As a creative alternative, the US President could have used the Vilnius summit as an opportunity to point out the possible future of Ukraine’s membership, just as President Clinton did in 1996 in his speech to Polish Americans in Detroit: “Today, I want to state America’s goal. By 1999, NATO’s 50th anniversary and 10 years after the fall of the Berlin Wall, the first group of countries we invite to join should be full-fledged members of NATO.” Indeed, Poland was invited to join NATO at the Madrid summit in July 1997 and became a NATO member in March 1999. It seems that neither the US President nor NATO itself is ready to clearly define Ukraine’s future in NATO by extending an invitation to join. Muddling the waters over Ukraine’s NATO future might drown more people than the bursting of the Nova Kakhovka dam did. It gives Russia a sign that its strategy of invading sovereign countries works.
In mid-June, Ireland held a “consultative forum” on the future of the country’s security policy writ-large, particularly regarding the longstanding policy of military neutrality and whether it should be loosened or even abandoned in favour of greater security cooperation with other European states and NATO.
I can’t and won’t get into the weeds of the forum and the accompanying public debate. The whole thing was very complex and quite messy, and one could reasonably accuse many involved in the discussion of not operating in especially good faith. The key points are:
The forum happened. Its structure differed notably from the Citizens’ Assembly structure previously used to discuss important policy issues (abortion, marriage equality, other constitutional reform, drug policy) in that it comparatively emphasised the voices of pre-selected experts rather than the public
The forum was accused of being imbalanced/biased against neutrality and in favour of more assertive security policy, an accusation the government rejected
I don’t want to discuss the importance of Irish neutrality itself, what neutrality means in a discursive or political sense, the merits and downsides of the misleadingly-named Triple Lock, or whether there really is a covert political project underway to gradually move Ireland towards NATO membership. I have many thoughts on most of these (not really the last one), but there has been plenty of mostly-unproductive discussion on them already, and I don’t think my contribution would change much.
I do want to talk about the thing I always want to talk about: nuclear weapons. Namely, how do nuclear weapons – and Ireland’s legal and diplomatic position on them – shape the choices Ireland could make on its security strategy? What would the impacts of various policy options be on our international commitments? Does maintaining those commitments mean some policy options are off the table? I haven’t seen anyone delve into this yet, nor did it feature prominently in the public debate in June, and that strikes me as an oversight. So I’ll do my best.
Ireland’s nuclear position
Ireland is a state party to the Treaty on the Prohibition of Nuclear Weapons (TPNW), one of just four such state parties in Europe (the others being San Marino, Malta and Austria). The treaty was signed on 20 September 2017, and entered into force on 22 January 2021. There are 92 signatories in total, of whom 68 have ratified the treaty to become full state parties – almost all of them in the Global South, especially Africa and South America. The treaty does a lot of things, but mostly it’s notable because it makes the possession of nuclear weapons illegal. Its first article reads:
1. Each State Party undertakes never under any circumstances to: (a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices; (b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly; (c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly; (d) Use or threaten to use nuclear weapons or other nuclear explosive devices; (e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty; (f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty; (g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control
Ireland is not just a passive party to the TPNW: we helped to write it and are among its most enthusiastic cheerleaders. Ireland has been pushing for an international ban on nuclear weapons from at least 1998. When negotiations on the TPNW’s text began in 2017, we hailed it as “taking the opportunity to write a new history and in so doing to create a new, more stable, more secure and more equal future for all,” and at the conclusion said it was a “ground-breaking treaty” and a “truly historic day at the United Nations.” The International Campaign to Abolish Nuclear Weapons, recipient of the 2017 Nobel Peace Prize, named Ireland, Austria, Brazil, Mexico, Nigeria and South Africa as the “core group” of states which led the negotiations to a successful conclusion.
In August 2020, just before Ireland ratified the TPNW, then-Minister for Foreign Affairs Simon Coveney wrote an op-ed in the Irish Times in which he laid out Ireland’s position on the nuclear issue very clearly:
“Ireland’s ratification of the treaty reflects our deep concern about the catastrophic consequences of a nuclear explosion and the sheer impossibility of any adequate humanitarian response. This has led us, as a country, to our deep-rooted conviction that we must ensure nuclear weapons can never be used again under any circumstance. Nuclear disarmament has long been a feature of Irish foreign policy. (…)
Ireland will continue to work for the elimination of nuclear weapons and to ensure the most powerful and most indiscriminate weapons of mass destruction ever invented have no place in the security doctrine of any state. The very existence of nuclear weapons threatens us all. There can be no right hands for the wrong weapons. The only guarantee of protection from nuclear weapons use is their complete elimination.”
Simon Coveney* in the Irish Times, 6 August 2020
Since the treaty’s signing, Ireland has voted for the annual UN resolution calling on non-participating states to join the treaty. Since the TPNW’s entry into force, Ireland has acted as an official facilitator of important discussions on its implementation. In September 2022, we reiterated at the UN that our support is “driven by our concern for the devastating humanitarian consequences of any use of nuclear weapons, including the disproportionate impact on women and girls”.
Coveney was entirely correct when he noted that Ireland’s strong anti-nuclear conviction goes back a long time. The process of negotiating the NPT, probably the single most important and successful international arms control treaty in history, was launched by Frank Aiken – former Anti-Treaty IRA Chief of Staff, Fianna Fáil TD**, and then-Minister for External affairs – in 1958. Seán MacBride, another former IRA Chief of Staff who later became Minister for External Affairs, launched the Appeal by Lawyers Against Nuclear War and successfully lobbied the International Court of Justice to hand down an opinion confirming that threatening use of nuclear weapons was likely illegal under international humanitarian law.
Minister for External Affairs Frank Aiken is the first person to sign the NPT, at a ceremony in Moscow in 1968. (Photo from Frank Aiken Papers, Archives, University College Dublin, item number P106/6942)
Crucially, as the recent statements quoted above make clear, Ireland opposes nuclear weapons not just because we (rightly) believe that nuclear weapons are detrimental to Ireland’s own security and interest; indeed, self-concern is notably absent from our rhetoric. Ireland is anti-nuclear we have established as an underlying of our foreign policy that the existence of these weapons is wrong as such. Our anti-nuclear stance is therefore not a means by which our defence goals are achieved, but a goal in and of itself.
This is, to editorialise explicitly, a very good thing and something we should take much more conscious pride in than we do.
Europe, NATO, and nukes
We need to talk about NATO. It is not the only game in town when it comes to European security; the EU has a security policy, sort of, and undertakes its own training and overseas missions, sometimes (and I hear there are even non-NATO, non-EU countries, but we’re going to skip those for now). But with the accession of Sweden and Finland to NATO, there are just four EU states not in NATO: us, Austria, Cyprus and Malta. Thus the nuclear policy of NATO is the nuclear policy of the other 23 EU states, the UK, Norway, Iceland, Albania, Montenegro, Macedonia, and Turkey (and the US and Canada). NATO contains a three of the world’s nine nuclear-armed nations, two of which are in Europe, and the other of which deploys its weapons on the territory of five European states (Germany, the Netherlands, Belgium, Turkey and Italy). Thus, if we are going to talk about Ireland, European security and nuclear weapons, NATO is pivotal.
NATO has been, since its inception, a fundamentally nuclear organisation. It was created to commit the US to the defence of Western Europe in case of a Soviet invasion, which western powers perceived to be a constant risk. Given NATO’s inferiority to the Warsaw Pact in conventional forces basically throughout the Cold War, the “nuclear umbrella” provided by the US’s weapons was consciously and explicitly a cornerstone of the alliance’s strategy, to deter conventional as well as nuclear threats.
But the Cold War is over. So what role does NATO see nuclear weapons as having in the 21st century? The alliance’s 2022 Strategic Concept, its core policy document unanimously approved upon by member states last year, discusses this:
28. The fundamental purpose of NATO’s nuclear capability is to preserve peace, prevent coercion and deter aggression. Nuclear weapons are unique. The circumstances in which NATO might have to use nuclear weapons are extremely remote. (…) The Alliance has the capabilities and resolve to impose costs on an adversary that would be unacceptable and far outweigh the benefits that any adversary could hope to achieve.
29. The strategic nuclear forces of the Alliance, particularly those of the United States, are the supreme guarantee of the security of the Alliance. (…) NATO’s nuclear deterrence posture also relies on the United States’ nuclear weapons forward-deployed in Europe and the contributions of Allies concerned.
30. NATO will take all necessary steps to ensure the credibility, effectiveness, safety and security of the nuclear deterrent mission. The Alliance is committed to ensuring greater integration and coherence of capabilities and activities across all domains and the spectrum of conflict, while reaffirming the unique and distinct role of nuclear deterrence. NATO will continue to maintain credible deterrence, strengthen its strategic communications, enhance the effectiveness of its exercises and reduce strategic risks.
On the TPNW specifically, we can turn to the joint statement, again unanimously approved by members, during last week’s NATO summit in Lithuania:
53. NATO Allies support the ultimate goal of a world without nuclear weapons (…) achieved in an effective and verifiable way that promotes international stability and which is based on the principle of undiminished security for all. (…)
54. We reiterate that the Treaty on the Prohibition of Nuclear Weapons (TPNW) stands in opposition to and is inconsistent and incompatible with the Alliance’s nuclear deterrence policy (…) and does not take into account the current security environment. (…) We do not accept any argument that the TPNW reflects or in any way contributes to the development of customary international law. We call on our partners and all other countries to reflect realistically on the ban treaty’s impact on international peace and security (…) and join us in working to improve collective security through tangible and verifiable measures that can reduce strategic risks and enable lasting progress on nuclear disarmament.
Finally, the three nuclear-armed states of NATO released a tripartite statement during the negotiation process for the TPNW:
France, the United Kingdom and the United States have not taken part in the negotiation of the treaty on the prohibition of nuclear weapons. We do not intend to sign, ratify or ever become party to it (…) This initiative clearly disregards the realities of the international security environment. Accession to the ban treaty is incompatible with the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over 70 years. (…) A ban treaty also risks undermining the existing international security architecture which contributes to the maintenance of international peace and security. (…) Working towards the shared goal of nuclear disarmament and general and complete disarmament must be done in a way that promotes international peace and security, and strategic stability, based on the principle of increased and undiminished security for all.
None of this is surprising. If a key role of NATO has always been to provide a nuclear umbrella to European countries and it continues to see nuclear weapons as the “supreme guarantee” of its security, of course it would be hostile to the TPNW – the stated goal of which is to stigmatise the possession of nuclear weapons. Despite the insistence that NATO and the nuclear states within it “support the ultimate goal of a world without nuclear weapons”, the weapons are a solid plank of allied security policy right now, and the plan is to maintain that indefinitely (“NATO will continue to maintain credible deterrence”). Thus most measures intended to bring a nuclear-free world closer to realisation, such as strengthening norms against nuclear weapons, represent a threat to that security policy. Hence the vehemence of the Vilnius statement (which comes out even more strongly in the full text).
Ireland’s future in European security
Where does that leave Ireland? It shapes our options on how we interact with the ecosystem of European security. I want to examine how, by looking at the implications for our TPNW and broader nuclear commitments of three possible future Irish strategies: continued strict neutrality, joining NATO, or something in between.
Neutrality
The status quo is, unsurprisingly, the most straightforward scenario. If we continue being a neutral country with very little military involvement abroad except that sanctioned by the UN Security Council (UNSC), our TPNW compliance and anti-nuclear stance are not impacted. I would argue, and there is some evidence to corroborate this, that our neutrality accords us soft power in general and credibility on the particular subject of international conflict peace. Thus continuing to be neutral does not just not compromise our anti-nuclear position, it significantly increases our potential to continue spearheading global arms control and disarmament efforts. I do not think we would could have led the charge on the NPT in the 60s if we hadn’t been a neutral country. While it’s certainly possible some other country would have stepped up if we hadn’t, we did, and the treaty we helped broker has been (despite its many problems) stunningly successful at limiting the spread of nuclear weapons and keeping the world safe. So that’s pretty nice.
NATO Membership
I am not an expert in international law; I’m not qualified to say whether, legally, Ireland joining NATO would constitute a technical breach of our TPNW obligations. But any common-sense reading of both the treaty and NATO’s Strategic Concept shows the two to be incompatible. You cannot sign off on a document that says “NATO will take all necessary steps to ensure the credibility, effectiveness, safety and security of the nuclear deterrent mission” and claim to not “assist, encourage or induce, in any way, anyone” to “develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons” or “use or threaten to use nuclear weapons”. To sign up to be under a nuclear umbrella is to encourage the possession of and threat to use nuclear weapons, on an ongoing basis. In many ways it doesn’t matter whether this could be proven to be a technical violation of the treaty; the TPNW does not provide for sanctions for any breaches of its terms. The consequences are purely political, and thus if something is widely perceived to constitute a breach, it is a breach.
Thus if Ireland were to join NATO, we would have to breach the TPNW. Both the preamble of the treaty and the rhetoric Ireland has used in support of it are so forceful, so completely unequivocal, that we would already have supplied the ultimate criticism of our own actions before they happened. We would look pretty bad.
We could try to avoid this by withdrawing from the TPNW. A state may withdraw by giving twelve months’ notice “if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country”. Withdrawing would allow us to argue we are not a state that reneges on its international legal obligations. On the other hand, it would be extremely difficult for us to credibly argue that Ireland is dealing with “extraordinary events” which have “jeopardized [our] supreme interests”. While the world is more dangerous than it was in 2020 when we ratified the treaty, it is not really sufficiently more dangerous abrogate what we have established as inalienable humanitarian principles. It’s also not especially more dangerous than the darkest days of the Cold War, when we were espousing those same principles, so our reasoning would be pretty self-evidently hollow.
Giving a clearly insincere justification for withdrawing is not that much better than breaching the treaty (or inventing a weak interpretation of the treaty with which to insist we’re not breaching it) and all the self-criticism still applies. And it might be worse: Ireland would become the first country in the world to withdraw, and in so doing call huge amounts of attention to our backtracking.
The government of Norway commissioned a study on the potential of it joining the TPNW. It contains numerous criticisms of the TPNW, which I profoundly disagree with, but its section on the interaction between the treaty and Norway’s NATO obligations constitutes the only such opinion commissioned by a NATO government, and is worth reading:
It is clear that if Norway ratified the Treaty on the Prohibition of Nuclear Weapons, it would acquire new obligations that would be incompatible with its political obligations under NATO. Nato’s 2010 Strategic Concept, the 2012 Deterrence and Defence Posture Review (DDPR) and the Nato summit communiqués provide the framework for the political obligations Norway has as a Nato member. These documents have been unanimously adopted at Nato summits by NATO heads of state and government.
These documents establish that NATO supports the goal of creating a world without nuclear weapons, but make it clear that Nato will remain a nuclear alliance as long as nuclear weapons exist. (…)
Article 1 of the Treaty on the Prohibition of Nuclear Weapons also prohibits nuclear deterrence as such (Article 1, (d), (e), (f), (g)). This is in direct conflict with Nato’s deterrence posture, as expressed, for example, in NATO summit communiqués. It would therefore be difficult for a country that has ratified the Treaty to endorse the summit communiqués as they are worded today.
In the past, there has been open disagreement in NATO about its nuclear deterrence policy. This was particularly apparent in 1979 when Nato made its dual-track decision. The countries that had reservations about the decision expressed this through dissenting footnotes in various subsequent NATO declarations. This footnote policy significantly weakened the influence of the countries concerned on NATO policy, and undermined unity within the Alliance.
In a statement issued on 20 September 2017, the North Atlantic Council made it clear that the Alliance does not support the Treaty on the Prohibition of Nuclear Weapons.
These latter two paragraphs are notable. It might theoretically be possible to carve out a space within NATO for countries objecting to and wishing not to be covered by nuclear deterrence; next time a strategic concept is drawn up, Ireland could insist an asterisk be put on the deterrence portion. Certainly, some disarmament advocates hope that existing NATO member states in which there is a strong anti-nuclear movement can be convinced to move into this position.
But there is a vast difference between carving out a space for existing NATO members who have gotten nuclear cold feet (not least because there is no mechanism to kick states out of the alliance, and most major decisions require unanimity) and admitting a member you know will cause that problem and have to be accommodated I would wager NATO wouldn’t be willing to do that, for two reasons. First as the Norwegian report acknowledges, the Double-Track issue of late 70s/early 80s is now regarded as having been a time of profound discord, is often described as a “crisis”, and is believed by some to have almost destroyed NATO. Second, it’s not just that Ireland and NATO don’t quite see eye-to-eye on deterrence; Ireland was a lead negotiator on a treaty that NATO went out of its way last week to unanimously, forcefully condemn as totally bad, wrong, and completely opposed to what it stands for.
Based on that, my guess is that NATO would simply make adherence to their nuclear policy a condition of membership. The Swedish government thinks the same. Their report in 2019 said “the accession of Sweden to the TPNW would without any doubt prevent a possible future Swedish membership of NATO. This situation would remain the same as long as NATO remained a nuclear alliance.” [emphasis added] It, like the Norwegian report, calls NATO “a nuclear alliance”. That’s key, I think; even if by some miracle we could get a special exception to join the alliance but have it on record that we don’t endorse its nuclear policy, does that mean anything? It’s a nuclear alliance. It’s always been a nuclear alliance. If we join it anyway, achieving no change to its policy but rhetorically registering our objection to that policy, clearly our objections aren’t actually that strong. If the treaty is about political messaging, we would clearly have abandoned the political message.
Not very many people support NATO membership for Ireland (the last poll put it at about 14%), and it is not the platform of any significant political party (though there is a sense that many in Fine Gael and Fianna Fáil would be amenable to it if they thought the political climate was more favourable). It does not seem likely to happen soon. But if and when it is discussed seriously, it must be acknowledged that such an option would require Ireland either to break international law or to withdraw from a landmark treaty we helped write.
Something in between
The compromise option is hardest to analyse, not least because it could manifest in a range of different ways. It probably looks like an Ireland which is not a member of NATO or any other alliance, but has much looser legal limitations on deployment of military force abroad, and is willing to participate in exercises and missions with the EU and/or NATO even when missions are not sanctioned by the UNSC. This overseas activity could be very extensive or very limited. It probably bears similarities to pre-2022 Sweden and Finland; the former participated in NATO missions in Libya, both eschewed the terms “neutral” and “non-aligned”, and Finland specifically said: “We are not a neutral country, we have not been so for the past 20 years. And we are not a militarily non-aligned country but we are a country which does not belong to a military alliance.”
The fact that both Finland and Sweden are now in (or practically in) NATO suggests that this “in between” position may not be a stable one, but one which tends to push states towards NATO membership. On the other hand, Ireland is small island very far away from Russia and therefore less likely to feel the same sense of danger that prompted these two countries’ accession. Defining the bounds of neutrality and the multilateral security options available to non-NATO European states is very complicated, and not something I can or want to comprehensively tackle here, but it’s necessary to imagine some of the possibilities to think about how it might intersect with the nuclear issue.
If clear-cut neutrality permits compliance with the TPNW and the chance to continue anti-nuclear leadership, and NATO membership would constitute a clear and gross violation of the TPNW, something in between offers us…something in between. I said above that the TPNW is intended to shape norms, and the effects of compliance with it or violation of it are primarily political rather than legal. In that sense, aligning but not allying ourselves with anti-TPNW states would weaken our pro-TPNW position but not totally reverse it. The extent of that weakening would be dependent on the extent of that alignment. For example, participating in NATO missions would mean Irish forces operating under the command of an organisation which is institutionally anti-TPNW; that would compromise significantly our leadership on the treaty’s implementation and, I would argue, come close to “encouraging” the possession of nuclear weapons. Participating only in EU activities would require less compromise but certainly not none, given five of the EU’s richest and most influential states own or host nuclear weapons. Irish air units forming permanent integrated command structures with French and German units which also have nuclear missions is probably not a treaty violation, but it’s not a good look either.
To move beyond the messaging and into actual legal issues, we must once again acknowledge that I am not a lawyer, and get some help. When Sweden wrote its TPNW report, it was in the “not-neutral but not-allied” position, so it is worth examining here.
Provisions of the Treaty will affect many sectors of society owing to the dual-use nature of knowledge, components and activities related to nuclear weapons that are also of importance in the civilian domain or in the context of conventional defence. More aspects currently prohibited by the Treaty may be of relevance to nuclear weapons than is commonly realised. (…)
The general and global security policy implications alone of the Treaty are likely to have an impact on the conditions for Sweden’s security and defence cooperation with partners. The disarmament and defence clusters taken together with the way the Treaty is formulated (broad scope, lack of definitions, etc.) in turn make it more complicated for Sweden to develop a national compliance system that is credible over the long term and provides legal certainty. (…)
Swedish accession would, not least in view of the nuclear umbrella issue, necessarily be perceived as a fundamental criticism of the strategic doctrine subscribed to by almost all of Sweden’s neighbours and partners in NATO. In this context, Sweden would no longer be perceived as like-minded (…)
In situations where Swedish participation in exercises or a staff presence abroad is under consideration or when foreign military visits to Sweden are being discussed, uncertainty concerning the interpretation of the Treaty, including on the part of foreign actors, could delay decisions or make them impossible. (…)
Accession may also be expected to lead to a stagnation of current Swedish cooperation with NATO and bilaterally with NATO members. They may be expected to hesitate to maintain the current high level of cooperation with Sweden, should Sweden accede to the Treaty. (…)
The prohibition of assistance is an issue of key relevance to most points in the terms of reference. The prospects of achieving unity on the interpretation of this concept at different levels (in Sweden, in the EU, among States Parties and globally) are currently poor.
There are several things to note about this. It highlights the same “dual-use” problem I mentioned in the context of air forces above. It was written in the context of Sweden wanting to keep the door to NATO membership open and is not shy about that fact; discussions of the difficulty of continuing to cooperate with NATO under the treaty may be more to do with that, and might apply less to countries not intending to ever join NATO. I am also not sure that the report is correct to say that NATO would less or unwilling to cooperate with a TPNW state, especially post-2022 – if they would, then this option would require us to withdraw, and we have the same problems as with NATO membership above.
Nonetheless, I am inclined to believe the report when it says that there is a way to interpret the word “assist” so that any state party to the TPNW seeking military integration with a nuclear-armed state would need at the very least to be extremely careful not to stumble into legal trouble. There are, I think, possible versions of international military alignment short of NATO membership that would constitute a violation of Ireland’s TPNW commitments. The Irish government would need to put in place a clear regulatory framework to prevent such violations occurring, and Irish civil society would need to keep watch to ensure the state did not accidentally, negligently or cynically renege on those commitments.
Ultimately though, it mostly is about signalling. At the absolute least, abandoning neutrality in favour of closer security alignment with our European neighbours must raise questions about what values that security policy serves. We have stated that our values on nuclear weapons are unequivocally negative, and that this is an urgent humanitarian issue to us. All NATO members have stated that they are irreconcilably opposed to our stance, and that maintenance of nuclear weapons in European defence is, for now, of “supreme” importance to them. What are we saying about the strength of our convictions in that case? Would we be able to ensure that the force of our stance is maintained as we integrate into a collective EU security strategy, or would it become watered down and increasingly forgotten? I certainly hope it wouldn’t, but given I heard no mention at all of this issue during the debate in Ireland in June, I’m not so sure. The current government is the same one that ratified the TPNW in 2020, but it has also been signalling clearly that it would favour less or no neutrality, with no mention of how to maintain TPNW compliance and leadership on disarmament. That worries me a lot.
I’m not saying we couldn’t find a “middle ground” security strategy that kept our TPNW commitments and didn’t compromise our anti-nuclear leadership. I’m just saying it might be a little difficult, and I am concerned we might not even remember to try. And if we don’t, and end up watering down our stance on what’s supposed to be one of our most dearly-held values, we are going to lose a good chunk of our soft power, our reputation as an international peacemaker and broker of treaties. Reputation matters, and in that sense states are like people: no one likes the flaky ones.
Conclusion
In essence, my worry is that though we have rhetorically and diplomatically established a strong opposition to nuclear weapons as a sacred and fundamental Irish value, we seem ready to forget that the minute we leave the UN General Assembly chamber. It’s an unassailable principle, until there’s something else we might want, at which point it doesn’t even enter our minds.
If and when we restart significant public discussion of Ireland’s future security policy, I would like to see TPNW compliance and anti-nuclear leadership not only brought up in the discussion, but front and centre; I would like that discussion to be framed as how to ensure we proceed in a way consistent with our values, not about the best way to justify casting those values aside.
The TPNW is an aspirational document. It’s about setting an expectation for world should be, and then working to make the world meet it. It’s throwing our collective caps over the wall. Ireland has set a standard for ourselves too. Let’s live up to it.
Priya Swyden is an MEPP candidate (’23) at Johns Hopkins University (SAIS). Her research focuses on transatlantic relations, European security, conflict and post-conflict dynamics, and NATO. She is on twitter @priya_swyden.
We met the Women of Srebrenica inside the memorial center that once served as the UN Dutch Battalion Headquarters. In July 1995, it was here that thousands of Bosniak Muslim refugees sheltered, having fled the Bosnian Serb forces, comprised of men who until recently had been their neighbors.
The outbreak of three years of horrific conflict in Bosnia can be traced directly to the breakup of Yugoslavia in 1991, though its roots go much deeper. The dissolution of the Yugoslav Republics began with declarations of independence by Croatia and Slovenia. An armed conflict between the Yugoslav People’s Army and Slovenia’s Territorial Defence broke out soon thereafter, but the Yugoslav army was driven out and, with the support of Belgrade, moved onto Croatia where a bloody conflict ensued, and thousands of ethnic Croats were expelled from their homes. By late 1991, it was already clear that Bosnia could be next.
In 1992, Bosnian Serb nationalists moved against the ethnic minority Bosniak Muslim population in the country. Though I have no better word, to describe what followed as a war is “to distort, and more gravely, to dignify the real nature of what has occurred,” as David Rieff says in his book “Slaughterhouse: Bosnia and the Failure of the West.” It was a three-year campaign of ethnic cleansing and genocide committed by the Serbs, while the United Nations, European Union, and NATO, under US leadership, looked on, trying to negotiate peace deals and contain the conflict. The country’s capital, Sarajevo, was besieged for almost four years by the Bosnian Serb forces under the leadership of Radovan Karadžic, who came to be known as the “Butcher of Bosnia.”
The conflict reached its denouement with the Srebrenica genocide in July 1995. Eight thousand Bosniak men and boys were taken from the UN- designated safe zone run by the Dutch Battalion and killed within a period of three days. The UN had been present in the city since 1993 after thousands of refugees fled to the eastern region of the country at the beginning of the war. It remained under relentless siege for two years, while diplomats tried unsuccessfully to negotiate peace.
Through March 1995, the Dutch troops pushed for reinforcements, but the US denied their requests. In May, any prospect of further air strikes collapsed as four hundred UN troops were taken hostage by Serbs in retaliation for NATO’s involvement. After that, the UN knew that its safe zones were untenable, and put pressure on the Bosnian president, Alija Izetbegovic, to concede Srebrenica and other safe areas. By early July, the Bosnian Serb army was positioned to overrun the Dutch troops. UN forces surrendered or retreated into the town, and thousands of refugees fled to the main Dutch Battalion Headquarters. Early on July 12th, the Dutch commander in Srebrenica, Colonel Ton Karremans, met Ratko Mladic and agreed to orders to let the Serbs organize the transport of civilians out of Srebrenica. The UN then provided the Serbs with petrol for transport, later used to fuel the trucks that took the eight thousand Bosniak men and boys to the killing fields.
Srebrenica was the breaking point in Bosnia’s war. In August, the Clinton administration initiated its “endgame strategy” for Bosnia and NATO airstrikes forced the Serbs to the negotiating table. The resulting Dayton Agreement established a tripartite government in the country with Bosniak, Serb and Croat representation. Dayton was a diplomatic achievement negotiated under extremely complex circumstances, but it set in place a messy, unsustainable system. To see this dysfunction, one need look no further than the mountain roads when it snows. On the first day of our trip, we took a rickety bus up a narrow road to see the abandoned bobsleigh track built for the 1984 Sarajevo Olympics, later used as an artillery base for Serbian forces during the war. It was snowing heavily, and we got stuck several times because only some sections of the road were plowed. The road curved back and forth across the territory of the country’s two federal entities: the Federation of Bosnia – Herzegovina and the Republika Srpska. Though the land itself is all part of the same country, maintenance of the roads is a responsibility divided between the two entities, and only one had plowed their sections.
Those who came back
The women we spoke to are the wives, mothers, daughters, and sisters of the men and boys who were massacred at Srebrenica. Many were expelled from their homes in 1995, but they returned months or years after the war was over. We asked them what motivated their return, and their answers came easily. Srebrenica is the only home they have ever known. It is where they were married and raised their children. It is the place where their sons, husbands, fathers, and brothers died and are buried.
As these widows and mothers came trickling back into the town, they had nothing but their grief, and each other. Hence, Association “Snaga Žene” – the Strength of Women. Through their friendship, they provide each other with support. They also travel within Bosnia and to other countries in the region to tell the story of what happened in Srebrenica to make sure it does not happen again. The association has been crucial in providing evidence of the genocide and identifying perpetrators, and a key part of their mission is ensuring that the government of Bosnia tells a narrative of truth. In the women’s own words, they do not hate anyone, and they focus on the process of speaking, listening, and understanding to try to heal both themselves and their communities.
Reconciliation is a loaded word in Bosnia. The process has barely begun – and one could argue it never stood a chance. Dayton did not erase the longstanding ethnic tensions or nationalism, rather entrenched them. Nor did it hold Bosnian Serbs or the politicians in Belgrade fully accountable for what happened, rather rewarded them. For the women of Srebrenica, the only path forward to reconciliation – and eventually maybe forgiveness – is full accountability for and recognition of the suffering endured. The women described it as transitional justice, however defining what this means in practice is difficult, and nearly thirty years later, mechanisms for achieving such justice are few and far between. Ad hoc courts and tribunals requiring reparations for victims have only been partially applied. The Hague convicted some leaders of the Republika Srpska and Yugoslav Army, but many of the everyday citizens who turned against their neighbors remain free and unaccountable. What is particularly painful for these women is that there isn’t even truth – to this day Bosnian Serb leadership like Milorad Dodik deny the genocide ever happened, convicted war criminals are regularly celebrated, and the Srebrenica massacre is glorified in Serb-dominated areas around the country.
In many ways, the entire narrative of the war has been co-opted by Serbian authorities in government who are complicit in the erasure of what Bosnia’s Muslims endured. The Bosnian tourism authority’s promotion of the Vilina Vlas Hotel in Visegrad shows just how far this goes.During the war, the hotel became one of Bosnia’s infamous “rape camps,” used by Serb paramilitary forces to detain Muslim women and girls and subject them to sexual violence, torture, and murder. In the war’s aftermath, however, the Serbs who controlled Visegrad reopened the Vilina Vlas as the spa hotel it used to be. In 2020, with support from the municipality of Visegrad, a promotional campaign with the slogan “We are waiting for you in Visegrad” was launched for the hotel, which is described in its advertising as a summer oasis and spa retreat, with no reference to its past.
It is even common in places like Srebrenica for survivors to see the perpetrators of these crimes daily. After expelling Bosniak Muslims from towns around the country, Serbs moved into their homes and stayed there, even as survivors came back to try to resume their lives. The women of Srebrenica must live alongside these war criminals as if nothing ever happened. They are the parents of the Serbian children who play with their own. They are schoolteachers and grocers, their lives untouched by the tragedy they inflicted on those around them. Forced to live alongside the very perpetrators of these crimes, it is impossible to imagine reconciliation, never mind peace or forgiveness. As one woman said, “How can we forgive when we see those who killed our families and raped us walking on the same street? It is impossible without transitional justice.”
Not only is the war’s narrative obfuscated by Serbian officials, but tensions along ethnic divisions remain extremely high. The women told us of how at the school in Srebrenica – which, despite their efforts to change it, remains named after a wartime Serbian leader – a Muslim girl was attacked by a dozen Serbian boys for wearing a headscarf. And external observers on the ground either do not recognize or understand just how deeply the trauma of the war and the divisions it entrenched have transferred onto the next generation. As we left the memorial center, we met a group of EUFOR soldiers recently stationed in the region. They asked us what we thought about reports that tensions were rising and told us that to them everything seemed fine.
The world as it is
Talking to the women of Srebrenica is the most damning indictment of the UN’s paralysis, the EU’s indifference, NATO’s delay, and America’s lack of will in Bosnia. It makes one thoroughly understand the conviction with which Rieff writes his relentless prosecution of the West in Slaughterhouse. While he recognizes that an earlier, more forceful intervention by NATO would have been “neither cheap nor easy,” he concludes it would have been better than leaving Bosnia at the mercy of UN peacekeeping which only mirrors the “impotence and sterility of a system of world order that is supposedly enshrined in the Charter of the United Nations.” Nor was he alone in his critique of the West’s half-hearted response and lack of coherent strategy towards Bosnia. By the time Srebrenica occurred, it was clear the UN’s safe zones were vulnerable and many policymakers were calling for NATO to decidedly stop the war.
What Rieff does not have is the benefit of hindsight. Recent history from Iraq to Libya shows that sometimes Western interventions are not always the deus ex machina that some believe they can be. At the time, there was no easy answer to what a US-backed intervention by NATO should look like or how to address the country’s precarious situation in the war’s aftermath. Certainly, Dayton achieved diplomats’ most immediate objective, to end the war. As President Izetbegovic said after the agreement’s signing, “It may not be a just peace, but it is more just than a continuation of war. In the situation as it is, and in the world as it is, a better peace could not have been achieved.” That the arrangement set forward by Dayton was not meant to last forever is literally written into its very design, but the symptoms of its dysfunction – corruption on all sides, lack of accountability, and a distorted post-war narrative – have left little room for alternatives, and so the country is suspended in an impossible situation with no obvious resolution.
When face to face with the women of Srebrenica, however, its impossible to reconcile this realist counterweight with the reality of what happened. Rieff’s point – despite his repetitive writing and 100-word sentences – is clear and indisputable: the West failed Bosnia. The international community should have done more, more quickly. The scale of atrocity and suffering could have been limited. And though Slaughterhouse was published several months before Srebrenica occurred, that the massacre still happened – despite the warning signs – only strengthens his argument. Srebrenica should have been prevented. Peace at such a terrible expense is no true peace at all.
Bosnia’s war is recent history, not an event confined to historical memory but one still being written about and interpreted. We could sense it in the spaces between the thousands of white marble tombstones where Srebrenica’s men rest. We could see it in the bullet holes in the buildings around Sarajevo and in the faces of the women of Srebrenica. We could feel it in the way they hugged us. We could hear it in their voices when they told us how much it meant that we had come to listen to their stories.
Elyssa Koepp is a Tunisian, German, and American Research Assistant, and second year MAIR student at Johns Hopkins University (SAIS). Her focus lies in the relationship between the EU and North Africa and the political developments in Tunisia since the Arab Spring. Elyssa graduated with a B.A. from McGill University with a double major in political science and international development, and has worked with refugees at different steps of the integration process in Germany, Canada, France and the US. Fluent in French, English and German, she is now studying Arabic at an advanced level. Elyssa is currently conducting research on Tunisia’s new constitution.
Photo by Marley Taylor
On Monday July 25 2022, 4,577 voting offices opened their doors from 6am to 10pm to Tunisian citizens to cast their vote to approve or reject the new constitution.[1] Out of the 9,278,541 Tunisian citizens registered to vote on the referendum, only 2,83 million went to the ballots, capping the participation rate at 27.54 %. President Kais Saied’s constitution was approved with a 94.6% rating[2] and promulgated on August 17 through the presidential decree n° 2022-691.[3]
In the weeks leading up to the referendum, the walls across Tunisian neighborhoods were covered in large black paint with the list of the 161 referendum campaigners; political parties, associations and individuals allowed 72 hours after the publication of the constitutional draft on June 30 to declare their positions for the ‘Yes’ or ‘No’ campaign. The UGTT, Tunisia’s most prominent labor union initially supportive of Saied’s state of emergency in July 2021, had grown skeptical of his actions after exceeding the 30 day limit, and refused to take a position in the campaign. Opposition parties such as Ennahdha, Amal, Ettakatol, the Republican Party and PDL, denounced the unconstitutionality of the referendum process by boycotting the voting day on July 25[4]. Five days after the beginning of the referendum campaign and only 17 days before the referendum itself, President Saied published a second version of the constitution, containing 46 modifications from the original version, and issued no additional 72 hours to adapt the referendum campaigners’ initial positions.
Tunisians’ reactions to the referendum varied across, and within, industries and neighborhoods, but the most telling divisions were seen between the educated elites and middle and lower classes.
Even within a single industry—taxi drivers—views on the referendum varied widely. There are people like Lotfi, my taxi driver on my first day in Tunis early last July, who did not have an active interest in keeping up with the political developments of the country: “ni vu ni connu la politique”. All that matters to him is to live, eat, work and sleep, he said to me in Italian, showing off the multilingualism many Tunisians have acquired through tourism and watching the Italian television channel ‘Rai Uno’ under the Ben Ali dictatorship. His comment on the situation in Tunisia: “life has gotten very expensive since the revolution, everything from electricity to gas to food to clothes”.
A study conducted in May 2021, entitled “A Dignity Budget For Tunisians”, found that more than 40% of Tunisians, and over 50% of the people living in the capital, do not have a high enough income and resources “to access the conditions for dignified lives”[5]. A common thought in Tunisia these days, reiterated to me by Lotfi: “on ne fait pas de démocratie le ventre vide” – democracy does not operate on empty stomachs.
Slim, my taxi driver for the duration of my time there, explained to me why he decided to vote ‘yes’ in the referendum:
“Will you vote at the referendum Slim?”
“Yes!”
“And your family?”
“All of them of course.”
“What will the question be?”
“If you support Kais Saied, yes or no.”
For many Tunisians, the referendum wasn’t about the constitution itself but rather about supporting the President and an effort for change in the country. When I asked him to explain to me his decision making process, his answer was very simple: Ennahda, the Islamist party that was in power after the revolution until July 25 2021 when Kais Saied dismissed Parliament, was to blame for the political stalemate and growing economic crisis since 2014. Kais Saied, however, “il est propre”, or ‘clean’ in the political sense. He is not a thief like the others – like Ennahda.
“Do you think many will vote?”
“Inshallah! If we get to 3 million that would be amazing.”
“Did you read the new constitution?”
“Yes, I saw it on Facebook, I think it is good.”
“Do you think everyone will read it?”
“No I don’t think so, some things are too complicated to understand.”
Facebook, Tunisia’s main method of communication, source of information and platform for freedom of expression since 2011, was also the easiest method to register for the referendum. When I asked Slim, however, if he had participated in Kais Saied’s national consultation -the first step of the President’s 2022 political agenda also mainly broadcasted on Facebook- he did not know what I was talking about. The initiative, aiming to include Tunisian citizens in determining the content of the new constitution, failed to serve as a good indicator of what people desired for their political future. Be it for insufficient public outreach, data privacy concerns, internet access, or simply a lack of understanding of the content of the questions, only 500,000 of 12,4 million Tunisian citizens participated[6]. Nevertheless, the preamble of Saied’s constitution praises the national consultation as reflecting the ‘will’ and ‘important choices’ of the ‘hundreds of thousands’ of citizens that participated, a glorified image of its outcome and the role it served in the constitutional drafting process[7].
Similar to the national consultation, the referendum on July 25 experienced a low turnout. Within the category of the electorate that boycotted – including many academics, political scientists, and constitutional lawyers who have been leading the debates on the (un)constitutionality of the President’s policies since July 2021 – some believed that the constitution would have been approved no matter the outcome of the referendum. Even if the referendum campaign had convinced the majority of its citizens to vote ‘No’, given the President’s disregard for the rules of the 2014 constitution, there was no guarantee the results would not be tampered with. For this constituency, participation signaled an approval of the President’s political practices and legitimacized his rule. Hence, boycotting became the common path to denounce the regime’s unlawful methods.
After a decade of political stalemate and a succession of corruption scandals within the incumbent party of Ennahda and the judiciary, Kais Saied’s dismissal of Parliament on July 25 2021 was originally seen as a step in the right direction. President Saied used article 80 of the 2014 constitution to freeze the Assembly of the Representatives of the People and introduce a state of emergency. Following this event, Saied granted himself both legislative and executive powers as the head of state, as well as the right to legislate by referendum, appoint all ministers directing state bodies, and maintained only the first two chapters of the 2014 constitution, leaving all others up for modification or suspension[8].
Although this started as a constitutionally valid path, permitted by the framework established in the 2014 constitution, Kais Saied quickly started to use and abuse the powers vested in him by article 80. He created his own time frame for the established state of emergency period of three months —prolonged again on January 31 until the end of the year 2023—and enacted new laws for a referendum and a new constitution.
Levitsky and Ziblatt argue that democratic backsliding may be “approved by parliament or ruled constitutional by the Supreme Court”[9]. Although the situation in Tunisia in the last year was not directly “ruled constitutional by the Supreme Court”[10], the lack of a Constitutional Court to check the limits of his actions did not rule the decree as ‘unconstitutional’ either, allowing Kais Saied to rule by decree and extend the state of emergency as pleased. On September 22 2022, the African Court of Humans and Peoples Rights issued a statement that Saied’s Presidential Decree 2021-117 in September 2021 was in contrast with the African Charter on Human and Peoples’ Rights, and the Court urges Tunisian authorities to “return to constitutional democracy within 2 years from the date of notification of this judgment”[11].
The constitutional paradox behind Saied’s reasoning around article 80 has to do with the interpretation of “imminent danger”, the key to instigating an open-ended state of emergency. A state of emergency suspends the constitutional order limited and organized by the parameters of the existing constitution. Thus, it is temporary as long as the “imminent danger” remains. Salsabil Klibi, a prominent Tunisian constitutional lawyer, highlights that the purpose of a state of emergency is the survival of the state in the face of a national threat, hence it can not be used as a platform for the transformation of this same existing constitutional order[12]. Article 80 states that “the Assembly of the Representatives of the People shall be deemed to be in a state of continuous session”, “the President of the Republic cannot dissolve the Assembly of the Representatives of the People” and “a motion of censure against the government cannot be presented”[13], so it is clear that under a state of emergency, there cannot be any changes to the legislative bodies that ensure the functioning of the state. It is also implied through these three points, that there cannot be any change to the constitution and electoral laws.
While Kais Saied defended his actions by emphasizing the democratic nature of his activities – such as the constitutional basis of his state of emergency, the direct suffrage of the referendum, and the organization of legislative elections in December 2022 – the ‘constitutionality’ of his methods highlight, in reality, a shift towards autocracy. The voting system is regulated by laws voted on by the majority of parliament, a power the President had vested in himself, and a constitution based on his personal edits, a national consultation that encompassed less than half a million people, and a national referendum with a 27% participation rate.
Nevertheless, within the limited voters that did participate, the referendum did obtain a 94.6% approval rating. A Tunisian doctor from La Marsa – a member of the electorate that voted ‘Yes’ – explained to me why he decided to disregard the legality of the referendum process and support the new constitution in hopes of witnessing an autonomous political trajectory for Tunisia outside the traditional path of democratization:
“I will give him the benefit of the doubt and vote yes. If it’s yes, then actual change will be finally allowed to happen. Just wait and see, and trust what is happening. Nobody cares about debate or learning about the programs. For those who do show up on the day of the referendum, they will probably end up asking their friend or neighbor in the booth who they are voting for and follow their lead. We are currently living in a transition period where we are searching for a system that works, a third path, outside of a dictatorship or democracy as we know it. For this to happen we need to allow these things to develop and forget about the laws and policies that surround traditional politics. In Tunisia, they haven’t been applied or respected for years anyways.”
On the No-side, the electorate was divided across voters who rejected the President’s methods and those who were not convinced that boycotting would serve an actual purpose. In a country under a French protectorate until 1956, and later under three decades of dictatorship until the overthrow of Ben Ali during the Arab Spring of 2011, not all citizens were as quick to dismiss the chance of expressing their voices in the ballots. Aligned with the second opinion, a 25 year old political scientist explained to me why he chose to use the referendum as a way to express his objection to the new constitution and incumbent regime by voting blank. As a former student of Kais Saied, taught a political institutions class at la Faculté des Sciences Juridiques, Politiques et Sociales de Tunis, he described the President’s teaching skills as orthodox and traditional, and his syllabus as unchanged in the last 30 years. “Saied is very nationalistic”, he added at the end. However, as a person, the qualities that won him the 2019 presidential election were the very ones that made him so popular amongst his students. His populist values and reputation as a man of the people were present both in the classroom and outside. He was approachable, polite, modest, and supportive of any student-led initiatives against the institution. After class, he could be found smoking cigarettes with the students or teaching people about the constitution in the neighborhood café.
In addition to his popularity amongst young Tunisians, Kais Saied was seen as an appealing candidate in 2019 with no history of corruption. Without any prior political background and in the absence of a party affiliation, Saied embodied the character of an independent candidate, separate from traditional elites from the old regime like Nabil Karoui, his opponent, who was caught in a number of fraud and corruption scandals throughout his campaign. Obtaining only 18,4% in the first round of the presidential election in 2019, Saied’s support rose to 74% in the second round on October 11 2019[14]. Overall, there was no reason to question his legitimacy as a democratic ruler. Since being sworn in however, the Tunisian political scene has been steered by Kais Saied’s personal interpretations of the 2014 Tunisian constitution, and the new constitution today is even more presidentialist than those of 1959 and 2014.
The new constitution of July 25 2022 is indeed highly-presidentialist. The president designates the government whose legislative power is now divided across two assemblies; a bicameral system, composed of the ‘l’Assemblée Nationale des Régions et des Districts’ and the ‘Assemblée des Représentants du Peuple’. The president “presides over the National Security Council” (article 91), “is the Supreme Commander of the Armed Forces” (article 94), “has the right to pardon” (article 99), “appoints the Head of Government, as well as the other members of the Government” (article 101), “terminates the functions of the Government or of a member of it” (article 102), and “assigns high civil and military functions” (article 106)[15]. In terms of the hierarchical relationship he has over the government and the judiciary, “the Government is responsible for its conduct before the President of the Republic” (article 112), and “judges are appointed by order of the President” (article 120). From a legal perspective, the president also has the final say on treaties as he both ratifies and authorizes them (article 74). Finally, Article 110 guarantees the president immunity during his entire mandate. Although the presidency is irrevocable, deputy immunity has been erased in contrast to the 2014 constitution. Dismissing the government is nearly impossible as it necessitates ⅔ vote of both Assemblies, and control over the president’s actions is still very limited without an official Constitutional Court[16]. In July 2021, Kais Saied also dissolved all independent institutions like ‘l’Instance Provisoire Chargée du Contrôle de la Constitutionnalité des Projets de Loi (IPCCPL)’, which was in charge of overseeing the constitutionality of laws, and changed the composition of the Council of the Independent High Authority for Elections (ISIE), responsible for the supervision of elections. These changes affected the composition of the Council of seven members of which now three are designated by the President himself and the remaining four are presented to the President by institutional bodies.
The months following the referendum were consumed by a new found hope for political change and expectations for better economic policies.
Kais Saied was elected in a decade in which expectations for democracy were high from the success of the Tunisian revolution, but the economic hardships that prompted the Arab Spring were not adequately responded to. The inefficient transformation of the economic landscape after the revolution, due to the political deadlock and problems related to the vulnerability of the process of democratization, left Kais Saied in charge of a fragile socio-economic environment. He inherited a weak post-Covid economy with rising unemployment levels reaching more than 18% and “forcing thousands of people, including rural farmers, to migrate.”[17]. Saied’s plan for 2022 thus included seeking a lifeline through the International Monetary Fund (IMF) to bail the state out of a dire economic situation.
In September and October, inflation levels hit a new record and shortages in bread, flour, sugar and gas pushed people to take to the streets. On October 15, both the National Salvation Front, sympathetic of the Ennahda party, and the Free Destourian Party (PDL), a politicaly opposition party, protested in the capital of Tunis, denouncing Kais Saied’s democratic backsliding and the deepening socio-economic crisis[18]. Protests in the neighborhood of Mornag in Ben Arous also led a young man to hang himself in protest, an event mirroring Bouazizi’s self-immolation that sparked the Arab Spring in 2011. Furthermore, the return to school and end of the hot summer months were marked by a stark increase in gas prices that had been halted during the months of June and July in order to appease social tensions before the referendum.
The constitutional changes instigated after the referendum facilitated the negotiations for the IMF deal obtained in November 2022. On October 10, the Central bank and Ministry of Trade and Economy flew to Washington DC to discuss with the IMF and the World Bank[19]. The deal obtained took the form of a staff-level agreement for a 48-month Extended Fund Facility (EFF) with an amount equivalent to 1.9 billion US$[20]. Through the new constitution, only the President or the Prime Minister – appointed by the President himself – is needed to approve an international agreement. In contrast to the 2014 constitution -in which all international agreements could be discussed and voted on by Parliament- this new organization changed the vote to a simpler and swifter procedure that encompasses the deal as a whole rather than segmented parts. Not only did this speed up the process, but there is now also only one person to hold accountable, making it easier to both oversee and establish a line of communication with the government receiving the loan.
Following the national consultation, the referendum, and the adoption of a new constitution, the year 2022 ended on legislative elections on December 17 to reconstitute a functioning Parliament.
In the months leading up to this election, the President amended the electoral law shifting to a vote on the individual rather than on the party. This new system broke down party ties at the local level as a way of subverting the threat of subnational forms of authority[21] and remove any memory of political affiliation, a defining feature of prior elections that had contributed to Ennahda’s victory in 2014. This attempt to encourage a stronger individual and community-level voting pattern highlights Kais Saied’s bottom-up approach to restructure the Tunisian political landscape. However, the legislative election resulted in a voter turnout of only 8.8%[22]. Out of the 1055 individual and self-financed candidates, the 91% abstention rate indicated a strong opposition to Saied’s political project[23]. With no candidate obtaining the absolute majority, the second round of elections were organized on January 9 2023, resulting in a turnout reaching 11.1%[24]. The Tunisian legislative elections under Kais Saied produced the lowest voter turnout worldwide, beating Haiti’s 2005 parliamentary elections that had previously ranked as the lowest with a 17.82% turnout rate[25].
Another element of concern of this new electoral law is its impact on gender parity and women’s rights, a progressive identity and source of national pride in Tunisia ever since decolonization. Habib Bourguiba, Tunisia’s first President from 1957 to 1987, banned polygamy, gave women the right to vote in 1959 and the right to seek an abortion in 1973[26]. Female civil society activists were at the forefront of the colonialist struggle for liberation, the Arab Spring, and the transition period after 2011. In 2014, the constitution enforced gender parity in the electoral law through a gender quota that guaranteed a fixed percentage of female representatives in government. Elections followed the Legislative Candidate Quota highlighting the will of the 2014 constitution to uphold “equality of opportunities between women and men to have access to all levels of responsibility and in all fields [and] achieve equal representation for women and men in elected councils”[27]. Gender quotas were implemented at the national level, subnational level, as well as in municipal and regional councils, that were subject to a zipper quota requiring a 50/50 representation. Legal sanctions for non-compliance also prevented parties from being admitted and participating in elections. Replacing this prior order by individual candidate lists removes the vertical gender parity and increases the risk of a higher representation of men in the Assembly of the Representatives of the People. While the new electoral law enforces a minimum of 400 signatories to run as a candidate, of which at least 200 are women, the impact on gender parity is widespread[28]. After the legislative election in December, women won only 25 of the 161 seats in parliament in comparison to 68 in 2014[29].
The Tunisian experience in the last year highlights the vulnerability of a weak political and economic state, and underlines the danger of an ambiguous constitution in preserving a young democracy. Understanding the larger political and economic context helps explain the individual reforms and actions taken by President Kais Saied since the state of emergency began on July 25 2021. On the economic level, the President has utilized the economic grievances that were at the basis of the Arab Spring and dismissal of Parliament in the summer of 2021. He has used the time-pressure of this mounting crisis, following a decade of economic stagnation due to the fragility of the democratic transition period and the Covid-19 pandemic, to justify altering the rules surrounding the approval of an international agreement as part of a larger shift in the decision-making apparatus of the state through a highly presidentialist constitution. The new constitution does not only provide Saied with an alarming amount of executive power, but sets the precedent for the following administrations as well. While his preamble will leave a populist stamp on the country’s history, his centralized ruling system will leave an imprint on the country for decades, and does not offer an incentive for any future leader to ‘de-presidentialize’ the system.
Bibliography:
Aliriza, Fadil, Half of Tunis Families Can’t Afford a Dignified Life, Study Finds, 05/18/21
Bessis, Sophie, Institutional feminism in Tunisia, Clio, Toulouse, France, 9, 93, 1999
Binley, Alex, Tunisia: Thousands from rival political parties protest against President Kais Saied, BBC News, 10/16/22
Chibani, Achref, Migrating to Adapt to Climate Change, Tunisians Lose Their Way of Life, Wilson Center, 02/28/22
Ellali, Ahmed, Support for Tunisian President Looks to be Slipping After Parliament Vote, , Vivian Yee, 01/31/23
Gibson, Edward L, Boundary Control: Subnational Authoritarianism in Democratic Countries, World Politics, 58.1, 2005
Hagopian, F. Political Development, Revisited, Comparative Political Studies, 33(6–7), 880–911, 2000
Jomni, Malek, Tunisie / fin de la campagne référendaire samedi : les partisans de Saïed mobilisés, l’opposition appelle au boycott selon la TAP, 22/07/22
Klibi, Salsabil, Brèves observations sur le constitution tunisienne du 25 juillet 2022, 09/09/22
Levitsky and Ziblatt, How Democracies Die, Crown, Introduction, Chapters 1 and 4, 2018
Naftim, Hatem, Consultation nationale: l’heure du bilan, Nawaat, 03/18/22
Rich, David, Candidatures, élection, Parlement… nouveau mode d’emploi des législatives en Tunisie, France 24, 16/12/22
Simon Speakman Cordall, Tunisian parliamentary election records just 8.8% turnout, The Guardian, 12/18/22
Thameur, Mekki, Projet de Constitution de Kais Saied : Faux et usage de faux, Nawaat, 07/02/22
Les résultats définitifs du référendum sur un projet d’une nouvelle Constitution de la République tunisienne, ISIE
Décret Présidentiel n° 2022-691 du 17 août 2022, portant promulgation de la Constitution de la République tunisienne, ISIE
Tunisian Constitution 2022
Preamble, Tunisian Constitution 2022
Article 80, Tunisian Constitution 2014
African Court on Human and Peoples’ Rights calls on Tunisia to establish a Constitutional Court within two years, Agence Tunis Afrique Presse, 22/09/2022
Biographie de Kaïs Saied, élu président de la République tunisienne, Le Petit Journal Tunis, 15/10/2019
IMF Staff Reaches Staff-Level Agreement on an Extended Fund Facility with Tunisia, International Monetary Fund, 10/15/22
Voter Turnout by Country 2023, World Population Review, Top 10 Countries with the Lowest Voter Turnout
[2] Les résultats définitifs du référendum sur un projet d’une nouvelle Constitution de la République tunisienne, ISIE
[3] Décret Présidentiel n° 2022-691 du 17 août 2022, portant promulgation de la Constitution de la République tunisienne, ISIE
[4] Jomni, Malek, Tunisie / fin de la campagne référendaire samedi : les partisans de Saïed mobilisés, l’opposition appelle au boycott selon la TAP, 22/07/22
[5] Aliriza, Fadil, Half of Tunis Families Can’t Afford a Dignified Life, Study Finds, 05/18/21
[6] Naftim, Hatem, Consultation nationale: l’heure du bilan, Nawaat, 03/18/22
[11] African Court on Human and Peoples’ Rights calls on Tunisia to establish a Constitutional Court within two years, Agence Tunis Afrique Presse, 22/09/2022
[12] Klibi, Salsabil, Brèves observations sur le constitution tunisienne du 25 juillet 2022, 09/09/22
Manuelde la Puerta is a Research Assistant at the Center for Constitutional Studies and Democratic Development, as well as a first-year Master’s of International Relations candidate at Johns Hopkins SAIS Europe. He is currently working on two research projects: the influence of populism on European public policy, and the preambles of the post-Arab Spring constitutions in North Africa.
“Foreign in a domestic sense” was the phrase used in 1901 by U.S. Supreme Court Justice Henry Brown in Downes v. Bidwell to describe Puerto Rico’s relationship with the United States.1 The Insular Cases represented the first attempt by the U.S. government at defining that relationship, and in doing so, established Puerto Rico as an unincorporated territory of the union.1 From that moment forward, the territorial relationship has been continually reinforced and was protected by an eternity clausein the Puerto Rican Constitution of 1952.1 The historical context of this constitution is vital to understanding how this eternity clause came to be, and the nature of the current territorial relationship between the U.S. and Puerto Rico.
The conclusion of World War II brought a wave of decolonization that saw Western European powers grant independence to many of their former colonies.2 In tandem with this trend were the ideals of self-determination established in the Atlantic Charter, the inadequacies of Puerto Rico’s two previous organic laws, the Foraker and Jones Acts, and the rising authoritarian tendencies in the Caribbean region embodied by Fulgencio Batista and Rafael Trujillo.2The combined effect of these forces compelled the U.S. Congress to enact Public Law 600, which allowed Puerto Rico to organize a government pursuant to their own constitution and established that the ensuing government must be republican in form and subject to a bill of rights.3
Following the approval of the draft constitution by public referendum in Puerto Rico, President Truman submitted it to the U.S. Congress which responded by passing Public Law 447.4 U.S. Congressional approval of the draft constitution was conditional to the removal of Sec.20 of the Bill of Rights, a provision inspired by the U.N. Declaration of Human Rights, and the addition of an eternity clause in Art.VII Sec. 3: “Any amendment or revision of this constitution shall be consistent with…the Constitution of the United States, with the Puerto Rican Federal Relations Act, and with Public Law 600…adopted in the nature of a compact.”4 In analyzing the territorial relationship, it is important to distinguish between the enforceable legal rules that comprise its basic structure and the principles of that relationship, among which autonomy and subordination coexist and contradict each other.4
The autonomy of Puerto Rico stems from the fact that the Constitution of 1952 represented a transition toward a democracy with independent institutions. The excision from the Jones Act of the power of Congress to derogate laws in Puerto Rico, and the inclusion of the Governor’s power to appoint judges to the Puerto Rican Supreme Court demonstrate this autonomy.3,4 Closely tied to that principle of autonomy is the compact theory, which argued that the relationship between Puerto Rico and the U.S. was based on mutual consent.4 The U.S. Congress offered Puerto Rico the ability to draft a constitution, and that offer was accepted by Puerto Ricans via the successful referendum of Public Law 600.4 This was the fundamental argument proposed by the U.S. when the U.N. General Assembly in 1953 removed Puerto Rico from the U.N. list of dependent territories.2,4
Complementary to the principle of autonomy is that of subordination. While there are informal limits to the ‘plenary powers’ vested in the U.S. Congress through the Territorial Clause, the supremacy of Congress over the government of Puerto Rico was proven during the 1950-1952 constitution-making process when it unilaterally omitted Sec.20 of the Bill of Rights and was protected by the inclusion of the eternity clause in Art.VII Sec.3.3 A more recent example of this principle in action is the Federal Oversight and Management Board established through PROMESA.4While described as an entity within the territorial government, the board is appointed by the U.S. president and places significant limits on the power of the Puerto Rican executive and legislative branches to conduct an independent fiscal policy.4 The combined principles of subordination and autonomy demonstrate the central tension at the core of the territorial relationship: Puerto Ricans can be said to enjoy some form of political sovereignty, but Congress retains legal sovereignty over Puerto Rico.4 This inconsistency is further illustrated through the passive citizenship of Puerto Ricans, who can obtain U.S. Passports and are eligible for the draft but are not allowed to vote in presidential elections and only have one non-voting member in the U.S. House of Representatives.4,5
Implicit in the argument of compact theory is that the original constituent power is found in the U.S. Congress, which exercised it through the enactment of Public Law 600.4 The U.S. Congress’ constituent power was further confirmed by Supreme Court Justice Elena Kagan’s majority opinion in Commonwealth of Puerto Rico v. Sánchez Valle: “Puerto Rico could not have legally initiated the 1950 constitution-making process on its own”.4,6 This begs the question: what would happen if Puerto Ricans decided to exercise their political sovereignty by calling a constituent convention and attempted to either reintroduce Sec.20 of the Bill of Rights or violate the eternity clause in Art.VII Sec.3? Would this action be constitutionally valid, and what does comparative constitutional law tell us about constitutional referendums and the contravention of eternity clauses?
Regarding constitutional validity, the primary concept needed to address this question is the basic structure doctrine, which originated from the decision of the Indian Supreme Court in Kesavananda v. State of Kerala.7 The idea behind the basic structure doctrine is that an amendment that alters the basic structure or identity of the constitution would in effect create a new constitution, and on that basis, it would be unconstitutional. The Puerto Rican Constitution of 1952 has two procedures of constitutional change: one to amendthe constitution and another to reviseit.3 However, the eternity clause added by Congress in Art.VII Sec.3 protects against amendments and revisions.3 Accordingly, any change to the constitutional text that touches on the provisions protected by the eternity clause, would seem to be ultra vires Art. VII.4 Such a change would alter the basic structure of the territorial relationship and would at a minimum return constituent authority to Puerto Rico.4 Despite its apparent illegality, in an extreme case, it could be brought forth by a universal declaration of independence (UDI) by the Puerto Rican legislature, producing a new constituent process and an ex-nihilo constitution.4 A UDI, like Kosovo’s in 2008, would additionally present the U.S. with the dilemma of whether to deny Puerto Rico’s right to self-determination, pursuant to Art.1 (2) of the U.N. Charter.4,8
The most relevant cases to examine within the comparative framework are those of Québec and Scotland. During the 1980s, a series of constitutional negotiations between Québec and the Canadian government demonstrated a constitutional paradox: the amendment formula that Québec objected to would have to be used to create the new amendment formula they sought.9 In conjunction with this, the Québéc government argued that because the patriation of the 1982 constitution was done without the consent of Québec, the 1995 referendum on ‘sovereignty and partnership’ was the only tool at their disposal to amend the constitution.9 This argument, however, would not hold in the case of Puerto Rico, because compact theory would maintain that there was consent established by the successful referendum on Public Law 600. In the case of Scotland, the arguments presented by the Scottish Constitutional Convention (SCC), unsurprisingly, were based on the principle of self-determination.9 However, rather than breaking with the uncodified constitution of the U.K., the SCC sought constitutional legitimacy by claiming that they were reaffirming the constitution.9 The SCC held that the U.K. constitution of a union was being violated by the ongoing process of centralization and Scotland was entitled to revise what they viewed as a contradiction of the Treaty of Union.9 Here again, Puerto Rico represents an exceptional case because of the successful referendum on the Constitution of 1952, and the public approval of the additional eternity clause in Art.VII Sec.3.6 The breach of an eternity clause requiring consistency with the U.S. Constitution cannot simultaneously reaffirm the U.S. Constitution, thus rendering the argument of constitutional reaffirmation irrelevant to the case of Puerto Rico.
While Puerto Rico today faces a myriad of challenges, the debate over the territorial relationship with the United States is undoubtedly the central question shaping Puerto Rican politics.10 The two main political parties in Puerto Rico, the PNP and the PPD, defend the statehood and commonwealth position respectively, and in the 70 years since the adoption of the Puerto Rican Constitution, there have been 6 referendums on the territorial status.11 During this period, the support for the commonwealth position has deteriorated, while the statehood and sovereignty positions have grown substantially.11 This progression indicates that the status quo position is increasingly ineffective in meeting the needs of the Puerto Rican people. The solution to the dilemma of the territorial relationship ultimately lies between Congress and the people of Puerto Rico, but the current situation, where approximately 45% of residents live below the federal poverty line, necessitates a solution that allows all Puerto Ricans to lead dignified lives.5
Acknowledgments
I would like to express my deepest appreciation to Dr. Justin Frosini, Dr. Joel Colón-Riós, Dr. Rafael Cox Alomar, and Mr. Antonio Weiss who generously provided their knowledge and expertise to this paper.
Tierney, Stephen. “Plurinational States.” Essay. In The Paradox of Constitutionalism: Constituent Power and Constitutional Form. Oxford: Oxford Univ. Press, 2012.
(10) Cheatham, Amelia, and Diana Roy. “Puerto Rico: A U.S. Territory in Crisis.” Council on
Nick Kalams is a Research Assistant at the Center for Constitutional Studies and Democratic Development, as well as a first-year Masters of International Relations candidate at Johns Hopkins SAIS Europe. His research and work focus on issues of democratic development, the rule of law, and transatlantic relations in Eastern Europe and the Western Balkans. He is on Twitter @nkalams.
Russia has ramped up attempts to destabilize Moldovan society and government as it has moved closer to Europe and the West. Given the recent Moldovan prioritization of EU and Western ties, there is cause for concern that Russia will become bolder in its attempts to pull Moldova away from the EU and newer Western allies, instead seeking to expand Russia-oriented governance and control.
Russian funding and coordination of opposition activities
One of Moldova’s opposition parties has been accused of receiving direct financial support from Russian operatives possibly acting on behalf of the Kremlin. The ȘOR Party, a Russophile, Eurosceptic populist organization, has been implicated in the funneling of over €150,000 from criminal enterprises and Russian sources to pay protesters and fund destabilization activities.
ȘOR – currently defending itself before the Moldovan Constitutional Court as the Party of Action and Solidarity (PAS)-led government – has argued ȘOR’s funding sources put it in violation of Article 41 (4) of the Moldovan Constitution, which prohibits parties opposing the territorial and political sovereignty of the country. United States intelligence gathering has found that ȘOR and its affiliated actors have been given guidance and support from Russian-linked individuals. Given this intelligence, while the Constitutional Court has yet to rule on the case, ȘOR will continue to represent Russia’s interests in Moldova.
Propaganda and disinformation
Residents of Moldova have been blanketed with pro-Russian narratives on nearly every medium: television, social media, Telegram, and radio.
Recent reports on this issue have found that pro-Russian sources and voices within the country were attempting to establish a narrative that the recent allegations of Russian-backed coup plots were nothing but an attempt by Moldovan President Maia Sandu to distract from the economic crises of the country and allow her party to turn Moldova into a dictatorship.
The narratives pushed through these efforts have been generally effective, posing a challenge for Sandu’s PAS to remain in power after the 2024 presidential election and 2025 parliamentary election. Think tank WatchDog.MD conducted a poll which indicated the Russian-pushed narrative blaming Ukraine and NATO for Russia’s war in Ukraine was widely accepted in the country. Additionally, the poll showed high support for the belief that the Moldovan government was to blame for high energy prices, rather than the increased costs being the result of Russia’s decreased gas supply to the country.
In February, Sandu alleged that Russia was attempting to overthrow her government, availing of foreign actors from various eastern European and western Balkan states. Russia denied the allegations, and responded with unfounded allegations that Ukraine was plotting to overthrow Russia-friendly leadership in the Moldovan breakaway region of Transnistria. Allegations escalated more recently, with Transnistria’s security services claiming there was a Ukrainian plot to assassinate the region’s leadership.
The combined funding of destabilization activities and blanketing of propaganda make it difficult for the incumbent Moldovan government to respond to allegations in a way that diffuses tensions in the country.
Weaponization of energy
The Republic of Moldova has, for most of its modern existence, received all of its gas from Russia via pipelines going through Ukraine. For most of the past thirty years, Russia was a willing energy supplier to most European states, especially those like Moldova, which were not actively seeking greater security and economic integration outside the sphere of Russian influence.
The full-scale invasion of Ukraine by Russia in February 2022 changed this, however. The Russian government began scaling back how much gas it was sending to the European continent, including to Moldova. This forced energy companies in Moldova to seek more expensive energy elsewhere, leading to increased cost of living in an economically weak country. Cost of living complaints were evidently the reason given for protests against the Moldovan government in recent weeks, protests alleged to have been coordinated and funded by Russian actors.
Using its sway as a major energy provider for Moldova has allowed Russia to use gas supplies as a catalyst for domestic discontent at the expense of the incumbent, pro-European government.
Low risk, high opportunity operation for Russia
Moldova is one of the poorest countries in Europe, with a nominal GDP per capita of $5,529 USD. Its military is almost nonexistent, with an annual budget of $80 million USD. As a militarily neutral country, Moldova’s shift towards Europe and the West is limited by the fact that it would take a constitutional amendment to consider joining NATO, and would have to find new revenue streams or international support to fund stronger domestic defense.
There is little Moldova’s government can do to dissuade future Russian attempts at destabilization, other than the prosecution and/or expulsion of operatives in the country seeking the overthrow of the democratically elected government. Given that neither the EU nor NATO will prioritize Moldovan interests and sovereignty, Russia will be free to continue its efforts to prevent another strong, liberal, democratic state formerly controlled by the Soviet Union. Lacking such international involvement, ȘOR will continue representing Russia’s interest in Moldova.
Looking forward
Moldovan Prime Minister Dorin Recean and President Sandu have no interest in slowing or reversing Moldova’s path towards a European future. As the Republic of Moldova works towards cutting more and more ties with Russia, Moscow will continue in its attempts to hinder further efforts.
Miloš Maggiore (Italy/UK) is pursing a Masters in International Relations at Johns Hopkins University, SAIS.
Source: Milana Jovanov
As a European citizen studying international relations and security, the importance of the Yugoslavian wars always seemed very salient to me. Considering that it was the first instance of armed conflict, both internal and external, on European soil since the Second World War, I have caught myself wondering why this was not taught in our schools more. Instead, I properly discovered the topic during my undergraduate studies. I conducted a qualitative study on perceptions of the conflict amongst Serbs and Croats living in the Netherlands, as well as a brief examination of the events that took place in Srebrenica. After graduation, I undertook a master’s degree in international conflict, in which this case was prominently featured. A majority of our time was spent analysing the legal developments that followed the conflict with the International Criminal Tribunal for the former Yugoslavia (ICTY).
I’m not writing all of this down just to boast about it. Suffice to say that all this academic research led me to feel fairly confident in my factual knowledge of the conflict, including the events that happened in Bosnia-Herzegovina. However, when considering whether to take part in this trip, two thoughts came to mind:
1) None of my knowledge about Bosnia-Herzegovina included any conception of what happened after the conflict ended. Sure, the Dayton Agreement, NATO bombings in Kosovo, and The Hague tribunals almost seem trivial. But what about the country itself? What does it look and feel like now that almost thirty years have passed? Who were the actors in charge of bringing the country out of its dark past?
2) Looking at the current conflict in Ukraine, what parallels, if any, can be drawn between these events? While surely different, there are similarities between the conflicts, and understanding what happened in Bosnia may help inform us about the future of Ukraine. Post-conflict rebuilding and setting up a viable conduit for reconstruction and reconciliation is of particular interest to me, not only for Ukraine, but for any conflict where similar levels of destruction to infrastructure and population occur.
In the five days we were in Sarajevo, we did not get a single ray of sunshine. The thick cloud (and smog) cover was low enough to cover the top half of the surrounding mountains, which combined with the two or three inches of snow we got on the first day, created a mystical effect reminiscent of an alpine skiing town. The grey concrete buildings added to this effect, though upon closer inspection, the bullet holes left in certain buildings’ exterior rapidly broke that illusion and reminded us where we were. Indeed, when the taxi driver, who brought me and three others to the hostel from the airport, explained how he had been a soldier for four years, I was acutely aware of the fact that in all probability, most of the elderly population would have been involved in the conflict in one way or another. This is not something you often find in the rest of Europe. This sense of proximity followed us during the trip. Unlike the black and white memories of WW2, some of us are old enough to have been born at the time of the conflict.
That being said, the snowy landscape only added to the charm that Sarajevo already exuded; the river gently flowing through the city’s centre created a sense of openness and fresh air that Bologna distinctly lacks. The concrete homogenous buildings were often put in contrast with older, more architecturally aesthetic buildings. Crucially, the old town centre, Baščaršija, with its short houses and cobblestones surrounding the central mosques, reinforced the feeling of cultural diversity and mixing that added so much richness to the place. In the words of our war tour guide during our first day, as much as Europe likes to think of itself as diverse, Europeans do not know the true meaning of cultural diversity until they have come to Sarajevo. Every day, he said, he would talk to people from different ethnic backgrounds and religions, walking past three different types of places of worship. He laughed as he explained how marrying across cultures is a brilliant thing, as the government’s multicultural make-up would readily concede to allowing multiple holidays during the year, depending on how many religious traditions were in the family.
As far as the organisations we met were concerned, I could go through each of them and give detailed accounts of our discussions, but I think that could rapidly become boring. Instead, I will attempt to report on the key lessons I obtained from a security and post-conflict reconstruction perspective. Needless to say, absolutely all of the meetings were worthwhile and fascinating to attend, and all the people we met who worked there were a pleasure to talk to and offered valuable insights into their work.
The first round of brilliant wisdom was offered to us by Haris Imamović, former advisor to President Šefik Dzaferović. Unlike in other meetings, Imamović came to meet us in our hostel, which created an intimate feeling of honest communication between us. He highlighted the withdrawal of NATO peacekeeping forces in 2004, which in his eyes was premature. While the force was stationed in BiH, he argued, it offered a credible accountability mechanism and a deterrent to any party, group, or individuals that may push a divisive agenda along the country’s ethnic divisions. According to Imamović, since NATO’s withdrawal, these divisions have manifested themselves more clearly, the prime example being the increasingly-loud rhetoric of Milorad Dodik, president of the Republika Srpska and recent Serb member of the presidency. The current peacekeeping force, named EUFOR or Operation Althea, is mandated by the EU under its Common Security and Defence Policy (CSDP), and has only offered a fraction of the deterrent power that the NATO force provided.
We were able to meet the EU delegation on our second day of meetings. Located in the same building as the German embassy, it is the representative office of the EU in which officials work to align the EU’s interests with Bosnia’s, and of course offer guidance as to how the country can accomplish its accession goals in order to obtain full membership in the not-too-distant future. The majority of the presentation they had prepared for us centred around the accession procedure and what still needed to be done to obtain that goal. The discussion then shifted to a deeper explanation of EUFOR’s mandate and composition: its main mission is to assist the local armed forces and police in their respective operations. It is composed of about 1100 troops from 23 EU member states as well as from certain non-EU countries (Canada was mentioned as the largest).
I took the opportunity ask whether they thought it likely that the EU could, in the future, have military capabilities independent from NATO and the US. The response was a disappointing one to me, as someone who believes that some form of EU defence would be incredibly beneficial not only to Europe, but to wider transatlantic security. Currently, they said, while there is some momentum to keep the CSDP pushing forward more comprehensively, there is resistance from two camps: countries who are against EU reform in this context and would oppose further pooling of resources in this way, and states who realised how dependent they still are on the American security umbrella, and thus are not motivated to detach themselves from that anytime soon in the current format. Under the Berlin Plus agreement, EUFOR is able to use NATO assets and capabilities for its needs, another factor disincentivising the institutional and fiscal reform that would be needed for independent EU military capabilities. The “concentric circles” format, a proposed model of the EU in which some member states can choose to pool their resources more than others, was mentioned. For now, the EU and EUFOR are focused on working with what they have. The Balkans are rightly considered the “soft belly of Europe”, and as such need to be managed very delicately, despite the conflict having officially ended in BiH nearly thirty years ago. The concept of a conflict “ending” is not as simple as a mere ceasefire between belligerent groups.
In terms of magnitude, the contrast between the EU’s modest shared office with the US embassy, was incredible. Located in the northern end of the city, it occupied a whole block, with tall fences surrounding an array of concrete buildings that by-and-large occupied an area the size of a mid-sized public park. Security was the most stringent here, as can be expected, with phones needing to be switched off, computers not being allowed on the premises, and our bags needing to be emptied of any food or drinks. I couldn’t help but chuckle when asked whether I was carrying any weapons, before realising that no one was joking and hastily answering that I was in fact not carrying any. The meeting itself was very interesting. We met with three foreign service officers, each with varying levels of experience in the role. While one of them, who had only just joined, spoke excitedly about the job and the positive influence he was ready to project, his more senior colleague took a more pragmatic approach, realising that the situation in BiH was immensely complicated, and the necessity of the US playing a delicate role. Despite this, they reiterated what was said by Haris Imamović, that the US had the political leverage and could offer some “muscle” to the work done by BiH and by the other international institutions working in it. The magnitude of the work that needed to be done was most apparent in this meeting, as I realised how a complex network of national, international, non-governmental, and local organisations all had to figure out how to work with one another whilst not wanting to seem like they are interfering too much, and at the same time be able to contain a potentially volatile situation.
I think I speak for most of the group when I say that our last day was the most impactful. After getting up very early, a coach drove us to Potačari, to the warehouse that had been used as a UN safe zone to welcome the thousands of residents of Srebrenica, fleeing the Bosnian Serb army. The joyful, exploratory mood that we had been feeling for the past few days quickly disappeared and became one of apprehension about what we would discover there. The warehouse has since been turned into a memorial museum, with various rooms providing photos, videos, audio, and documents detailing the events that had happened there in 1995. Going through the various exhibitions, the evidence of the series of poor decisions made by the Dutch UN battalion, trying to appease all sides, ultimately leading to a massacre was painful to take in. We then met with the Women of Srebrenica group, which consisted of all the women in Srebrenica who had lost someone in their family during the genocide and who had decided to come together to offer mutual support. The meeting was very intimate, with us all sitting in a circle, listening as the women explained who they were and what their group’s objectives are. We were relying on our guide to translate the conversation both ways. When it came to us asking questions, while their spokeswoman took the floor most of the time, many of the women would stand up and interject with their own experiences and reflections on the topic, in a very open way that conveyed how close their group was.
The pain of their loss was still very visible. From wiping away tears, to comforting each other, it was clear that the memories were still very present in their minds. It struck me, again, how recent this conflict was. Some of the archival footage was of the same quality as videos of me as a toddler. That footage highlighted that this is a recent piece of history, as opposed to World War II, which is spoken of a lot more yet seems much more distant. The eyes I was looking into are the same eyes that witnessed the unimaginable horrors of those days.
Yet, when we asked them what message or key lesson we should bring out to the world after having concluded the meeting with them, they exchanged looks and answered the following: the world has no place for hate, love is the only way to move forward and to ensure conflicts like these never happen again.
The strength of these women is quite unmatched to anything else I have seen in my lifetime. Sadly, some of them talked of the repression of Bosniaks still taking place, with some of them and their children being mocked and harassed due to their religion. I found it truly hard to fully comprehend how this was possible: how two groups allowed to live next to each other and amongst one another, when members of one had attempted to wipe out the other. Of course, with the benefit of hindsight, it is easy to criticize the Dayton Agreement. Nevertheless, the thought that kept coming back to me was whether post-war Germany would have stayed intact if its territory was divided between a Jewish sector and a Nazi one. Ultimately, it was a good choice to go to Potočari on our last day, as it drove home what all the work done by the institutions we visited prior was for: to ensure that the atrocities of 1995 are never allowed to happen again, and to help the country heal. What a pity it was, then, to encounter a group of senior Austrian military officers at the memorial centre, sent as part of EUFOR, and having them ask us about what actually happened here, and calling the accounts of the Women of Srebrenica “biased.”
The lesson I took away from Bosnia is that rebuilding a country after a conflict is incredibly difficult. How do you organise governance institutions? How do you ensure equal and fair treatment across ethnic groups when those groups are not keen on collaborating? How do you ensure a shared history of the country that accurately points to the facts without bias or distortion?
Sadly, I was not able to come up with answers to these questions. But as I look to the ongoing war in Ukraine, I’ve come to the realisation that the conflict itself may just be the beginning, and that beyond the institutional rebuilding following its end, safely restoring the nation as a group of people may be just as convoluted. The situations are obviously different, but at the end of the day, people and group dynamics can resemble each other across different contexts. Clearly, the dynamics between ethnic groups have long lasting common memories that can extend into years beyond the conflict. While in Sarajevo, an idea was discussed; was it possibile that perhaps the war ended too soon? Perhaps there should have been a clear victory prior to interventions by the UN, NATO, and other foreign actors. That seems to echo the call for a clear victory in Ukraine before any kind of territory-conceding negotiations take place. Failing that, conceding territory and giving any kind of voice to Russian-backed separatists could extend to a protracted ceasefire dominated by ethnic tensions and territorial disputes. I suppose it is still too early to tell. Let’s just hope that the people in charge of writing the hopefully-soon-to-come “Ukrainian Dayton” accords have taken notes from the Bosnian situation and its aftermath, and take the adequate steps.
Rafael Aste is a second-year MAIA candidate at Johns Hopkins SAIS.
The outlook for Peruvian democracy is rather bleak. Its democratic institutions effectively withstood the attempted self-coup by former President Pedro Castillo, but structural problems seem to be driving the country toward democratic collapse. Though a plethora of variables are needed to explain Peru’s recent non-linear trajectory of democratisation, this paper focuses on the constitutional provisions that have given place to constant conflicts between the Executive and the Legislative. Instead of strongly ensuring the principle of separation of powers found in presidential systems, Peru’s hybrid regime was preemptively designed for conflict in the form of balance of powers.
The current high levels of political instability in Peru are the result of a dysfunctional presidential system, the collapse of political parties, and the generalised delegitimisation of democratic institutions. The country has been undergoing a political crisis since 2016 marked by constant conflict between the Executive and the Legislative branches (Freeman, 2023). Tensions reached new heights last December when former president Pedro Castillo tried to orchestrate a self-coup by unilaterally dissolving the opposition-led Congress. But with the support of the armed forces, Congress ignored Castillo’s act of tyranny and impeached him. Ousting Castillo can certainly be seen as a justified defence of democracy, but it did not solve Peru’s structural political problems. Neither did it succeed in bringing political stability to the country. President Dina Boluarte, Castillo’s former vice-president, is now in power while people across the country are mobilising and demanding her immediate resignation and early general elections. At the time of writing, more than 50 people have died as a consequence of both violent protests and severe repression.
Still, Boluarte refuses to resign. Her intention is to rule supported by a feeble agreement with the opposition and the economic elites. As a concession to protestors, she has asked Congress to reform the Constitution to allow for new elections in 2024 instead of 2026, claiming that before holding new general elections, Peru requires constitutional reforms in order to “have a more respectable Congress and improve the legitimacy of the political class”. Indeed, constitutional and political reforms can potentially improve governability, legitimacy and political representation, but the dysfunctional Peruvian political system impedes coming to an agreement on which reforms those might be. This paper will mainly focus on analysing the provisions embedded in the Constitution that, combined with other sociopolitical variables, have given place to the current protracted political crisis; mainly the faculties given to Congress to impeach the President and for the President to dissolve Congress. Though an in-depth analysis of the bills currently being introduced by congressmen is out of this paper’s scope, it can be concluded, perhaps rather pessimistically, that they fail to properly address any of the structural issues that have taken Peru to the brink of collapse.
Permanent Moral Incapacity
In only six years, Peruvians have seen six presidents and three Congresses come and go, worrisome figures for what it is supposed to be a presidential system with five-year terms for both the Executive and the Legislative. Following Linz’s (1990) depiction of the presidential system, the relations between the branches of power present two main elements: the president is independent of parliamentary votes of confidence, and, can be removed between elections only by the drastic step of impeachment. None of these apply in Peru. The first key to understand the excessive deposition of presidents in Peru rests on the fact that the 1993 Constitution did not develop impeachment as a drastic measure. Article 113 gives Congress the faculty of impeaching the President by declaring his or her permanent physical or moral incapacity, a condition that was framed as ambiguously as it sounds in the Constitution and that Congress has abused during recent years.
The detailed procedure of presidential impeachment has been regulated in the Standing Orders of the Congress, though without a definition of permanent moral incapacity. In order to be admitted for debate, the motion of impeachment needs the support of at least 40% of the legal number of congressmen. After this, Congress sets a date for the final debate, during which the President is allowed 60 minutes for his defence. The final requirement for impeachment is that 2/3 of Congress supports the motion, a high threshold indeed, though certainly not impossible to achieve in a political system where parties have completely collapsed and are now a coalition of independent opportunistic politicians with no accountability towards neither political platforms nor their constituents (Levitsky & Zavaleta, 2016).
Even just reaching the 40% threshold can be damaging enough for the government’s stability, as it allows the opposition to politically try the president in front of the country. Since it has become a persistent trend for presidents in Peru to rule with a frequently disloyal minority, Congress has been able to abuse this faculty, generating a disequilibrium of powers (Dargent & Rousseau, 2020). Six impeachments on the grounds of permanent moral incapacity have been attempted during the current political crisis, with Congress only passing the final threshold twice. There is no limit whatsoever on how many motions of impeachment can be put forward other than the potential deterioration of public support. Since congressional reelection was recently constitutionally forbidden, this disincentive derived from political calculations has been undermined. The constitutional provision on presidential impeachment raises more structural problems. It enters in direct conflict with article 117, which develops the concept of the constitutional infraction and defines, narrowly and specifically, the conditions over which the President can be accused while in office, such as high treason or illegally dissolving Congress, just as Castillo did. Thus, in a presidential system that already recognises the possibility of trying an unlawful president, one could be forgiven for asking what purpose the concept of permanent moral incapacity serves other than creating political instability. This is a question that the Constitutional Court itself has avoided to address in recent sentences, leaving the matter in the legislator’s hands. Naturally, regulating impeachment is not in Congress’ best interests. It gives the opposition a vague and broad —though conveniently constitutional— tool to oust presidents who have fallen out of favour. Consequently, during the current ‘reformist agenda,’ no proposal has been put forward to narrow the concept of permanent moral incapacity. The last time Congress introduced a bill on the matter, it was even more problematically ample, defining it as having a drug abuse, gambling addiction, or other unethical behaviours which go against moral and social conventions.
The Vote of Confidence
The Executive has also been provided with ‘constitutional weapons’ that are unlikely to be found in presidential systems. The President, elected through direct voting, appoints a Prime Minister in charge of forming a ministerial cabinet. Article 130 establishes that a newly formed cabinet must attend congress to present the government’s general policy. After a debate in Congress, the Prime Minister asks for a vote of confidence that must be approved by an absolute majority. Article 133 further gives the Prime Minister the faculty of proposing new votes of confidence during the cabinet’s administration in support of a policy or law. If a vote of confidence is rejected, the Prime Minister must resign and a new cabinet must be appointed. However, Congress must carefully reflect on when to make a stand and reject a vote of confidence, since article 134 gives the President the faculty of constitutionally dissolving Congress and call for new congressional elections if it has rejected two votes of confidence.
This provision has the intention of ensuring governability and avoiding parliamentary deadlocks. Unsurprisingly, reforming and limiting the use of the vote of confidence has been a common target of Congress over the past years. One of the main constitutional reforms being debated now is eliminating the vote of confidence required by new ministerial cabinets, established in article 130. The events that led to Castillo’s self-coup revolved entirely around these issues. The opposition made use of its majority in congress to pass a law developing the provision of the vote of confidence and establishing that its content could not be applied for matters that were the competence of other branches of power, particularly constitutional reform. This effectively suppressed Castillo’s intention to use the vote of confidence to force a referendum on the creation of a Constitutional Convention, similar to the one in neighbouring Chile. The Constitutional Court, an institution that has played an important role of referee during the political crisis, declared the constitutionality of the law on the grounds that it is the legislative’s exclusive competence to develop and reform the Constitution; limiting the use of the vote of confidence by application of the principle of separation of powers (Tribunal Constitucional, 2022).
Previous attempts to limit the vote of confidence were not as successful. In 2018, an opposition-led Congress modified the Standing Orders of Congress to forbid the use of the vote of confidence when its aim was to promote or interrupt the passing of a law or a act of political control, such as the censure of a minister. The Court ruled this modification unconstitutional on material and formal grounds. It stated that the vote of confidence could only be modified by reforming the Constitution and that this modification denaturalised the objective of balance of powers that the Constitution seeks to preserve (Tribunal Constitucional, 2018). Indirectly, the Court’s sentence poses an interesting question: if the goal of the vote of confidence is securing the balance of powers, is it proportional —or even reasonable— that a president can dissolve a democratically elected institution to enforce a policy? Recent examples in Peru apply to conflicts over the education policy. Article 132 gives Congress the power of censuring the minister of Education with an absolute majority. The Prime Minister can then do a vote of confidence to tie this policy to the government’s general policy. If Congress rejects this vote of confidence, it could be dissolved by the president if it is the second time. On the one hand there is governability, on the other it seems rather undemocratic to dissolve the Legislative in support of an unelected official. In Peru, it seems as if the balance of powers enters in direct conflict with the separation of powers.
Unfortunately, in the current political climate no serious debate can be had on these issues. Nor would it be reasonable to believe that reforming impeachment and the vote of confidence would magically stabilise Peru. Explaining why this political crisis erupted now and not during the past 30 years of constitutional regime requires a more in-depth analysis. The main objective here is to put constitutional issues in the spotlight which, combined with other structural causes such as the collapse of the party system and a complete breakdown of parliamentary representation, maximises the government’s opposition in Congress, reduces the Executive’s governability and create an almost perpetual state of political conflict between branches of power. An element that so far appeared missing was social mobilisation. Now, with high levels of social turmoil, the country seems to be moving closer toward an extreme compromise in the form of a Constitutional Convention, or a collapse of the democratic system.
Bibliography
Dargent Bocanegra, E. & Rousseau, S. 2021, “Perú 2020: ¿El quiebre de la continuidad?”, Revista deciencia política (Santiago).
Freeman, W. 2023, “Peru’s Democratic Dysfunction”, Foreign Affairs.
Levitsky, S. & Zavaleta, M. 2016, “Why no party-building in Peru?”, Challenges of party-building in Latin America, pp. 412-439.
Linz, J.J. 1990, “The perils of presidentialism”, Journal of democracy, vol. 1, no. 1, pp. 51-69.
Pérez-Liñán, A. 2007, Presidential impeachment and the new political instability in Latin America, Cambridge University Press.
Ten years after, defending women’s and minorities rights
Synthesis of the second panel of the 20th of January 2022 workshop day
By Victor Lachenait, Juliette Denis-Senez and Elyssa Koepp
Within the framework of the conference ”Ten years after, defending women’s and minorities rights, we were honored to welcome Ms. Bochra Belhaj Hmida (Tunisian lawyer and politician), Ms. Bochra Triki (executive director of the association Chouf), Ms. Nedra Ben Smail (psychiatrist and author) and Ms. Sana Ben Achour (Lawyer and activist).
Bochra Belhaj Hmida
She is a Tunisian lawyer and politician, and the former MP and chair of the Commission for Individual Liberties and Equality. In her opening statement, she paints a positive picture of the success of the plight for women’s rights in Tunisia since the fall of the ancient regime in 2011. She starts by retracing the greatest obstacles to the preservation and enactment of women’s rights during the revolution. The overthrow of the old regime, a dictatorship in nature, but a state that she describes as “a feminist state even in its darkest moments of democracy“, embodied a vulnerable political transition that could have triggered a loss of protection of the rights of women acquired under Bourguiba and preserved under Ben Ali.
For Bochra, the strength of civil society during these pivotal years is what shaped a positive future for women’s rights in the system that emerged from the ashes of the Arab Spring: “Civil society was very mobilized because there was this fear of losing what we had already gained. Today, after 10 years, we can strongly assert that not only have the gains been preserved, but we have also won many more battles“. Among the battles won she includes the organic law combating gender instigated violence, the abolition of the law prohibiting the marriage of Tunisian women to non-Muslims and the right of mothers to travel and give their children a passport without the authorization of the father. Bochra Belhaj Hmida also describes a shift in responsibility born out of a rapid rise of civil society activism. It is no longer solely the state that is the only responsible entity for the preservation of women’s rights, but the whole Tunisian society that now carries the burden of responsibility for enhancing equality in all realms. Thus, today, “even if at the head of the State we notice the total absence of commitment to the upkeep of the debate around women’s rights, this does not prevent that the rights of women are no longer threatened“.
On the issue of individual freedoms, Bochra Belhaj Hmida explains that since the revolution, the biggest accomplishment has been social rather than political or judicial. The rights of sexual minorities are no longer taboo and have entered the realm of public discussions, but unfortunately, there has not yet been a real transition within the laws or justice system. In fact, conversion therapy and anal testing for proof of sodomy are still active practices. Despite a complicated situation today with a State that is incapable of “proposing anything for women’s rights and unable to even apply the laws that are already there“, her assessment remains positive. Indeed, Bochra concludes by stating that the element of fear is now behind us: “Despite everything that happens in politics, women have shown themselves to be strong, and the Tunisian civil society, despite all of its difficulties and divisions, has never been as vigilant as it has been after the revolution. […] Although there are many things to be done in terms of individual freedoms and equality, what is certain is that there will be no more backtracking […] Tunisian women, citizens and individuals will continue to win battles.”
Bochra Triki
She is a French teacher, a cultural operator and the executive director of the association Chouf. Through a more personal perspective drawing from her own experience in the activist sphere after the Arab Spring, she provides an overview of what the feminist and queer struggle in Tunisia is today. Bochra talks about the structuring of feminist and queer initiatives after 2011. During a period marked by an “explosion of possibilities” and under the pressures of a “tsunami of fundings“, Bochra describes the main obstacles such a transition meant for activists on the ground. Following the fall of the regime in 2011, people “finally had the right to dream and to make some of them come true“. These dreams materialized into different collectives, associations, and organizations.
An important element that was neglected in this transformation of civil society: grassroot activism, or informal activism outside of external funding. The activism attached to the influx of funds created projects “based on the checkboxes suggested by the funders […] or because the funds demanded it.” In contrast, grassroots activism, for Bochra, “is fueled solely by the desire to get closer to the utopia of social justice and freedom, and to dispose of one’s body and soul”. For her, this drawback is not the responsibility of civil society. In fact, in a time of such uncertainty, she says “it would have been foolish to say no to all these possibilities, especially in 2011 when we had no idea how long this funding and this possibility would remain“.
From here she recalls the period of 1987-1988 which saw the birth of the DFA and a window of opportunity for an active civil society: a short lived period quickly followed with close to 23 years of repression shattered only by the uprisings of 2011. Thus, the reasoning of the activists during the period after 2011 can be summed up as: “act quickly, take what is available to us now, and assess the consequences at a later date“. Within this explosion of civil society actors, Bochra also describes the widening gap between the established institutions and the new initiatives from the post-2011 era. Among the causes, she highlights a generational conflict, as well as “the lack of understanding and a feeling of being overwhelmed [by] new forms and subjects of activism“, such as queer activism in Tunisia. In 2015-2016, coinciding with a wave of arrests, there seemed to be a reversal of this mentality and a rise in solidarity that elevated these initiatives into strong political forces, no longer isolated and closed off to other civil initiatives.
Today, the dynamic of solidarity is beginning to crumble due to activism burnout, internal tensions within the collectives, and most importantly, policies and politics that do not seem to change: “The government has built a wall in front of activists [and] a gap has emerged between the institutionalized form of struggle and the needs and interests of a new generation”. The consequence of these conflicting dynamics: a new generation of social activism leaning closer and closer to the overlooked form of grassroot activism in the initial phase of opening.
Bochra ends her speech by underlining the importance of intersectionality, which for her, “carries one of the most accurate discourses in terms of the concordance of struggles” something “that we have been learning about for years without necessarily knowing how to actively apply“. The question that remains today: how to learn and benefit from a transmission of the experiences of activist struggles, successes and failures?
Nedra Ben Smail
She is a psychiatrist and the co-founder and president of AFPEC, the Tunisian association of psychoanalysis. She is also the author of different books such as ‘Virginity: the new sexuality of Tunisian women’, and more recently ‘Abandoned youth; violence and jihadism’. Nedra addresses the association between women’s bodies, sexuality and the revolutionary movement through a psychoanalytic lense. For her, “the question of democracy is played out on women’s bodies who often pay a high price for it“. The taboo of virginity – the right or not right to love or have sexual relations outside the bonds of marriage – serves as “a real anthropological marker […] from which [we] can understand what the collective is made of […] how the relationship between sexes is organized, and more broadly, the relationship of society to the prohibitions that govern each person’s ideals”.
In spite of the retardation of the average age of marriage for women in Tunisia, today at almost 30 years old, the matrimonial institution remains well anchored in Tunisian society. Nedra explains the conflict between two contrasting normativities; “a society that is transformed with globalized practices” and “a conservative tradition that opposes this transformation.” To illustrate this phenomenon, she talks about the surgical repair of the hymen, which she depicts as the process of ‘revirginization’. According to Nedra, this act “is situated at the crossroad of the social body, which prohibits it, and the personal body which is that of women“. This constitutes the “identity tension that every Tunisian woman lives in her flesh“, giving sexuality both a political and religious connotation.
She then describes her conversations with Nour, a young girl from a conservative family who decides to organize her defloration on Facebook at the age of 17. For Nour, “abusing her body -a body in which she feels trapped- and by offering to a stranger her hymen which is fetishized by society and culture”, Nour feels like she is bringing down the system. Nedra describes this act as taking on “the value of a murder, not only of the hymen, but also of the patriarchy that demands her virginity”, shatteringa system of societal control on the body and sexuality.Nedra then recalls the story of the femen Amina, who in 2011 posted a photo of herself on Facebook, bare chest, cigarette in the mouth, with red lipstick, and a message written in Arabic stating ‘my body belongs to me‘. This act highlights the “alliance between the body, sex and blood, by the presence of lipstick” and claims “a new relationship between Tunisian women and society”.
Nedra’s speech thus describes the emergence of sexuality in Tunisia, the societal transformations since 2011, and the new ways women have opted to circumvent tradition.
Sana Ben Achour
She is a lawyer specializing in public rights, a Tunisian activist and president of the Beity association. She shares both Nedra’s idea “that the social norms carried by the law concern the bodies of women” and the words of Bochra Belhaj Hmida and Bochra Triki concerning the victories with regard to women’s rights, yet remains cautious about the fragility of these achievements. “Many things have been achieved, many things remain to be done, but the threat is permanent on women’s rights: rights have been obtained but never equality”. Sana finally describes the path of Tunisia towards the constitutionalization of women’s rights: “equality without discrimination […] this is the essence of the Constitution since 2011, article 46“. According to Sana, there is uncertainty about the possible reintroduction of fundamental feminist rights into a new constitution.
Sana defines feminism as a way “to be together in our diversities, our diverse backgrounds and paths […] to be able to build together the political tools to pour into the public space in order to achieve social change.” She offers here a jurist’s point of view on the ambivalence of the legal system in Muslim countries “where the legal rule is never sufficient in itself but must be legitimized by a religious discourse. It is not independent and has no force in itself [but] remains dependent on its compatibility with the religious rule, and this is why the debate on women is very quickly pulled back into a debate on charaic or religious law”.
This ambivalence is reflected in Tunisian society through a contradiction between rights in the public and private spheres: “rights in the public space remain limited by the few rights that women have in the private space”, a major obstacle to gender equality in Tunisia. Sana concludes that the reality remains the same today as it did in 2011: “the personal status code and the penal code remain the glass ceiling of Tunisian women and all sexual minorities” constituting the basis of the obstacles to come.
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