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February 2011

 File n°43 

The Ratification of Treaties

 

 

 

 

 

 

    Key Points

    Article 53 of the Constitution makes provision for parliamentary intervention, in certain conditions, to authorize the ratification of international conventions. The Foreign Affairs Committee plays an essential role in this procedure. It may, in particular, decide upon the adjournment of the discussion or propose to the National Assembly to amend the authorization bill. The parliamentary assemblies may not however amend the actual text of international conventions nor may they express reservations concerning them.

    In plenary sitting, a procedure referred to as “simplified examination” is often used.

    Parliament has been able, in certain cases, to influence the negotiator.

See also files 32, 44, 57 and 59

 

    In accordance with article 52 of the Constitution, the President of the Republic negotiates and ratifies treaties. In addition he is kept informed by the Government of all negotiations leading to the conclusion of an international agreement, even if such an agreement is not subject to ratification.

    Article 53 of the Constitution provides that several categories of treaties and agreements may only be ratified or approved by virtue of a law. This provision deals with:

    - Peace treaties,

    - Commercial treaties,

    - Treaties or agreements relating to international organizations,

    - Treaties that commit the finances of the State,

    - Treaties that modify provisions which are matters for statute,

    - Treaties relating to the status of persons,

    - Treaties that involve the cession, exchange or addition of territory.

    Contrary to the American Senate, which only authorizes the ratification of treaties and not of executive agreements, no difference is made in France between treaties and agreements as the abiding practice, supported by jurisprudence, considers that the only criterion according to which an international commitment should or should not be submitted to Parliament is practical and not formal.

    Thus the provisions laid down in article 53 of the 1958 Constitution, which substantially repeat those stated in the 1946 Constitution, mean that a substantial number of treaties and agreements concluded by France are submitted to Parliament before they come into effect. Furthermore, in article 11, the Constitution provides that the President of the Republic may submit to referendum, thus without the intervention of Parliament, “any Government bill…which provides for authorization to ratify a treaty that, although not contrary to the Constitution, would affect the functioning of the institutions”.

    In addition, agreements concluded by the European Union are submitted to Parliament when they deal with a field of competence shared by the Union and its member states.

    I. – THE ROLE OF THE FOREIGN AFFAIRS COMMITTEE

    As the conduct of diplomatic negotiations is a prerogative of the executive, almost all legislative bills authorizing the ratification or the approval of international commitments are initiated by Government. When a bill authorizing the ratification of a treaty or the approval of an agreement is tabled before the National Assembly, it is systematically referred to the Foreign Affairs Committee (the rule is different in the Senate as fiscal conventions, for example, are referred to the Finance Committee). The Foreign Affairs Committee examines around fifty such commitments every year.

    1. – Examination in committee

    The Foreign Affairs Committee appoints from amongst its members, a rapporteur who is responsible for presenting a bill to his colleagues. The work of the committee leads to a written report which is distributed before the plenary sitting. Since a modification of article 128 of the Rules of Procedure of the National Assembly in 2003, validated by the Constitutional Council, M.P.s have the right to table amendments to the bill authorizing the ratification or approval of an convention. This right is limited to the main body of the bill and cannot be applied to the convention itself. This enables, where necessary, the field of the parliamentary authorization to be broadened to several international conventions. It also enables internal law to be modified so as to bring it into line with the contents of the convention submitted to Parliament.

    Quite often such bills are unanimously passed by the committee but, in certain cases, the committee postpones its decision, rejects the bill or obtains its adjournment. It is not unusual either that the committee postpones its decision or passes the bill whilst requesting the Government to have it examined in plenary sitting so that it may obtain further information.

    During the XIIth term of Parliament, the committee twice requested further information during the examination procedure of bills which were submitted to it.

    It also took evidence from the Secretary General of the Ministry of Foreign Affairs on Franco-Monegasque relations before deciding to pass the bill authorizing the ratification of the treaty which adapted the friendship treaty between France and Monaco. In addition, upon a proposal of its Chairman, it requested Government representatives to provide legal precisions on the bill authorizing the ratification of the International Convention against Doping in Sport. It then passed this bill during a second meeting, having obtained the desired clarifications.

    2. – The adjournment procedure

    The adjournment of a bill is a procedure which is specific to the examination of international treaties and agreements (article 128 of the Rules of Procedure). This procedure enables the postponement of the discussion of an international agreement without actually formally rejecting it. It is adapted to situations when M.P.s consider that their authorization is subordinate to conditions outside the subject of the agreement. In one case, dealing with a partnership agreement with a country, the adoption of an adjournment motion by the committee was motivated by the human rights situation in that country and led to the withdrawal of the bill from the agenda. This procedure was also applied during the examination of a bill authorizing the ratification of six International Labour Organization conventions concerning seafarers in 2003.

    An adjournment motion was also adopted during the examination of a bill authorizing the ratification of a decision concerning the statutes of the European System of Central Banks and of the European Central Bank (ECB). Before passing this bill, the committee decided to hear evidence from the Minister of Foreign Affairs, given the importance of the powers granted to the ECB.

    The committee can also, even though it may have decided to pass a bill submitted to it for examination, inform the Government of its reservations concerning the timing of its inclusion on the agenda for the plenary sitting.

    Thus, after having passed the bill authorizing the Government to ratify a fiscal convention between France and Libya, the committee did not wish the Government to include the bill on the agenda as long as the freeing of Bulgarian nurses and a Palestinian doctor had not been obtained.

    3. – The influence of the work of the Foreign Affairs Committee on the negotiator

    Even when the committee passes a bill, considering that the convention is generally balanced, it may happen that it informs the Government that such and such a stipulation (in the fiscal, social or financial field for example) does not appear to it to be timely. In such a case and where possible, the negotiators avoid the clause from being included in conventions subsequently concluded with other states. This was the case for certain local tax exemptions in fiscal conventions.

    The cases of rejection are much rarer. They occur when certain provisions of the convention are considered unacceptable. In practice, there does not seem to have been any cases of outright rejection but rather cases of postponement for very long periods. Thus, in 1979 and 1981, the committee postponed the examination of an extradition treaty with Canada. This finally led the Minister of Foreign Affairs to re-negotiate a new treaty which was then passed.

    4. – The question of reservations

    The practical criterion of the competence of Parliament could lead it to make decisions on the contents of reservations, insofar as such reservations could substantially modify the sphere of France’s international commitment.

    A different practice has nonetheless been established. The reservations which the Government considers presenting on an agreement are not included in the bill authorizing its ratification but are passed on to the committee which, very often, publishes them in its report so that Parliament can be informed of them. This flexible procedure which enables M.P.s to deliberate with full knowledge of the facts and to discuss, if necessary, the relevance of the reservations, has the advantage of not obliging the bill to return before Parliament in the case of a change in the content of the reservations or of their possible future withdrawal.

    In accordance with the Institutional Act of April 15, 2009, the documents which accompany the bills and which clarify the aims of the agreements and treaties as well as assess their economic and financial consequences or their legal repercussions, mention, where necessary, the reservations or interpretative declarations made by France.

    II. – EXAMINATION IN PLENARY SITTING

    The Rules of Procedure of the National Assembly provide for the possibility of the use of a simplified examination procedure, specifically for bills authorizing the ratification or the approval of an international convention. In certain cases, the authorization of the ratification or the approval of a convention may only occur after the revision of the Constitution.

    1. – The simplified examination procedure

    Contrary to the Senate, where the bill authorizing the ratification or the approval of a convention systematically lead to a public debate, the National Assembly, most of the time, applies a simplified examination procedure to such bills. In accordance with article 107 of the Rules of Procedure, as it was modified in March 1998, the Conference of Presidents may decide that such bills be put directly to a vote without any speaker having spoken. This procedure enables the legislative load of the plenary sitting to be lightened and leads to better management of the time for legislation to be passed.

    These provisions do not at all limit the competence of the National Assembly as, on the one hand, the examination has taken place in committee and, on the other hand, the Government, the Chairman of the Foreign Affairs Committee or the chairman of a political group may oppose the simplified examination procedure. In practice it is the Foreign Affairs Committee which decides, after having informed the Government, if there be a debate in plenary sitting or not. In the case of the tabling of procedural motions on the bill, the simplified examination procedure may not be used.

    2. – Cases where constitutional revision is a prerequisite

    The constitutional law of June 25, 1992 provided that, like the President of the Republic, the Prime Minister and the Presidents of the two assemblies, parliamentarians (at least 60 M.P.s or 60 senators) could ask the Constitutional Council to decide on the conformity of an international convention with the Constitution. If the convention is declared not to be in conformity with the Constitution, the authorization to ratify or approve it may not be passed before a constitutional revision (article 54 of the Constitution).

    3. – The consequences of the authorization of Parliament

    Once authorized by Parliament, the ratification or the approval does not necessarily come immediately into force. This may be the case when all the states of the European Union decide to ratify a treaty the same day. It could also happen that France may wait until it has brought its internal law into conformity with the stipulations of the convention. This was the case, for example, for the coming into effect of the OECD convention against corruption. Moreover, as regards diplomatic matters, the vote of the two assemblies does not bind the executive: the decision to ratify or approve a convention can be adjourned in a discretionary manner even after the promulgation of an authorization law.

    The time limit for the examination of authorization bills creates a real problem on account of the overloaded agenda of the National Assembly. France is a country where the ratification procedure is particularly long and this explains the interest of the application of simplified examination procedures.