Introduction

"France is [synonymous with] security," said President Emmanuel Macron in a public speech on October 22, 2019. Security appears to have taken precedence in 21st-century media constructs, to the point that practically any country's name could be used in this phrase.

According to Le Petit Robert, security is "the absence of danger, i.e., a situation in which someone (or something) is not exposed to critical events or risks".

According to the WHO, security "is a state in which hazards . leading to physical, psychological or material harm are controlled in order to preserve the health and well-being of individuals and the community". It is therefore necessary to highlight the danger or absence of danger, and the actors involved, whether natural or legal persons.

Legal certainty is not a new concept. During antiquity, Plato and Aristotle insisted on the need to establish powers in order to ensure border security and prevent the outbreak of conflicts. For Plato1, security meant the use of professional guardians. These guardians were required to obey the orders of the central power, and this model was imposed in ancient Greece.

Thomas Hobbes2 argued that only exclusive state control, based on an absolute monarchy, can ensure the security of citizens. The State is in a position to oppose all freedoms, except the right to security, which is the source of its legitimacy.

For Max Weber, security is a component of state sovereignty; it has the monopoly of legitimate physical constraint. Democracy involves maintaining a difficult balance between the right to security and other freedoms that are rather unstable. This is why Weber was in favor of a strong executive.

The problem of what is an admissible form of security has become a topical issue. Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms imposes the right to life as an obligation to maintain law and order. According to Article 1 of the Declaration of the Rights of Man and of the Citizen, equality stems from security.

In the law on everyday security, dated November 15, 2001, "security is a duty for the State, which is responsible throughout the territory of the Republic for the protection of persons, their property and the prerogatives of their citizenship, the defense of their institutions and national interests, the respect of laws, and the maintenance of peace and public order".

Public authorities are not bound by an obligation to produce a specific result, but by a best-endeavors obligation in their security mission. The Conseil constitutionnel (Constitutional Council), regarding the law on internal security of October 30, 2017, indicated that this law did not create any rights for individuals and did not generate any new obligations without giving new powers to the administration. While the Constitutional Council recognized the security of persons and property as a principle of constitutional value, it did not recognize a right to security.

However, some victims obtain compensation for damages from special funds or directly from the State. Isn't this a recognition of a right to security?

One administrative judge3 announced that "the mistakes made by the intelligence services in the surveillance of Mohamed Merah resulted in the failed opportunity to prevent the death of Abel Chennouf". Yet another judgment of February 10, 19824 contradicts this conviction. This ruling denied the airline Air-Inter compensation for damage caused by an attack. The highest administrative court noted on this occasion "the difficulty of predicting the nature, date, place and objectives" of a terrorist attack. The Conseil d'État (the Council of State) simply placed the onus on the State to mobilize sufficient means to prevent the occurrence of terrorist acts.

This is why the State will be held liable in case of negligence or failure to act, but this assertion does not lead to the conclusion that there is a right to security. Indeed, the chambre civile de la Cour de cassation (Civil Chamber of the Court of Cassation)5 rejects the idea of there being national solidarity in favor of victims of criminal offences. The victim, in order to obtain reparation, must demonstrate gross negligence by the State.

The State therefore has no obligation to produce a specific result in matters of security, but an obligation to intervene or not to intervene, except when charged with the mission of safeguarding public order.

If a right to security existed, it would be extremely costly for public authorities. The obligation to provide security is indeed a best-endeavors obligation.

At present, the situation is not clear-cut, since the shortcomings of the State are leading some elected officials to create municipal police forces, sometimes in competition with the national police, and individuals are grouping together to provide security outside of any legal framework. Certain priority missions seem to be reserved for the State, and other missions, presumably, are being transferred to local authorities and private actors in society. The current context is bringing the concept of security into sharp relief.

In the 20th century, the balance between security and privacy was the touchstone of political and legal discourse. Human rights had been officially recognized by the 1948 UN Universal Declaration of Human Rights. These human rights had been the subject of much philosophical debate but had found their roots in the United Kingdom with the Bill of Rights6 in the United States7 and, at the time of the French Liberal Revolution, with the Declaration of the Rights of Man and of the Citizen of 1789 in France, which emphasized the right to property and liberty. Let us not forget that this principle of liberty led to the Le Chapelier Law8, which abolished the right of corporations and groups of individuals to defend particular interests, and to the Allarde Decree which completed the Le Chapelier Law.

However, human rights played an important role after World War II in the 20th century. At that time, these rights were mainly drawn up by Westerners and formed the new basis for the new world order after the failure of Nazism. Human rights ran contrary to the ideas contained in Mein Kampf 9, which advocated a hierarchical society based on the concept of races, with inferior races destined to be dominated or even exterminated10, and the superior race - that of the Aryan man - destined to dominate the world. Echoes of these theories, which are partly also those of Gobineau, are found artistically in representations of Wagner's work and in the film Metropolis by Fritz Lang.

The United Nations unites states with an ideal of peace. But beyond the sovereignty of states, the Universal Declaration of Human Rights also outlined the foundations of humanism. This declaration, itself a reference text, emphasizes civil rights, even if the worker is recognized as having the right to decent work. At the level of the Council of Europe, the European Convention for the Protection of Human Rights11 establishes rights related to the concepts of freedom (freedom of conscience, freedom of opinion, freedom to practice a religion, freedom to start a family12) and to physical integrity (prohibition of torture, abolition of the death penalty except in times of war, then abolition of the death penalty13). At the UN, the International Covenant on Civil Rights14 refers to the Universal Declaration of Human Rights and is ratified by many states. Nevertheless, some states that have not ratified the Covenant are far from insignificant in military and economic terms15. At the level of the European Union (EU), the recognition of economic and commercial freedoms (free movement of goods and services, free movement of capital) precedes the consideration of human rights, since the European Charter of Human Rights16 came after the Maastricht Treaty.

The principles of human rights gradually built up a corpus that came to play an essential geopolitical role in the UN, within UN specialized agencies, and outside the UN.

For a long time, the recourse to military coercion, decided by the UN Security Council, and to trade embargoes17 could only be based on the violation of the territory of a sovereign state: this is what officially justified the UN intervention during the first Iraq war, after the Iraqi army entered Kuwait. Thereafter, the violation of certain human rights could justify intervention. This is what its opponents ironically called "human rightsism". For these states, some of which are powerful (Russia, formerly the USSR, and China), these human rights, which constitute a guarantee for civil populations (use of weapons of mass destruction, violation of the religious rights of certain ethnic groups18), are somewhat hypocritical pretexts for advancing one's pawns on the international chessboard. Most Western states, and in particular those that are members of NATO, are favorable to these theories which, in their view, guarantee security for civilian populations. Economic sanctions have been imposed by groups of states against other states on these legal bases on numerous occasions.

In addition, the 1998 Rome Statute, which entered into force in 2002, allows for the prosecution under the International Criminal Court (preceded by the Special Tribunal for the former Yugoslavia and then the Special Tribunal established in 1994 to try crimes committed in Rwanda,...