New zealand law commission



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FRANCE242


A38 In France, the power to conclude treaties is in the hands of the President of the Republic who negotiates and ratifies treaties.243 The French Parliament plays a greatly restricted role in the area of treaty making, with international relations always having been considered the exclusive preserve of the executive. This is accentuated by the present 1958 Constitution, which provides that Parliament is only to be involved after the terms of a treaty have been decided upon, and can only approve or reject its ratification. There is no parliamentary power to amend a treaty.244

A39 Article 52 of the Constitution lists a number of categories of treaties which must be submitted to Parliament. These include:



  • peace treaties,

  • trade treaties,

  • treaties referring to international organisations,

  • human rights treaties,

  • treaties ceding, exchanging or adding territory, and

  • in more general terms, those treaties which require legislative action.245

A40 Since Parliament can only pronounce on a treaty as a whole, it cannot modify its terms or attach either reservations or interpretations. The rules of the Assembly further limit the power of Parliament in this respect, stipulating that a government Bill which authorises ratification must be voted on as a whole. As a result the passage of legislation authorising the ratification of a treaty is accorded little time and is no more than a simple formality.246

A41 There is no obligation to carry out ratification once parliamentary authority has been obtained. Although an authorising Bill must be promulgated and published in the Official Journal within 15 days of its adoption, the treaty itself is not published until the President has proceeded with the ratification. Even if the treaty commits France with respect to other states, it is not challengeable in the French courts until its publication.247

A42 The government does seek to involve Parliament in its foreign policy in several ways, communicating to the Foreign Affairs Commissions of both Houses the list of treaties or agreements that France has concluded. The texts of treaties can be requested by Parliament and more recently the proposed reservations to be attached to the ratification have been made available. In addition, at the time of the debates over the authorising legislation, members of Parliament can “advise” the government to attach certain specific reservations to the ratification. This advice can be acted on for political advantage in rallying support, sometimes resulting in the formulation of reservations proposed by members of Parliament.

A43 In some circumstances, Article 49 of the Constitution is invoked in order to gain the approval of a “declaration of general policy”.248 But even the extent of parliamentary participation in more serious decisions is determined wholly by the government which goes to great lengths to ensure it is not considered as precedent.249 In sum, the role of the French Parliament in treaty making and foreign relations is minimal.

A44 In direct and notable contrast to those states with Westminster-derived constitutions, concluded treaties do not require implementing legislation in order to be enforceable at a domestic level. Article 55 of the Constitution provides that once a treaty has come into force it overrides any conflicting domestic legislation, even if that legislation is passed subsequent to the treaty’s ratification. The Constitutional Council also considers that this primacy extends to rules promulgated by international bodies in compliance with the treaties that established them.250

THE NETHERLANDS251


A45 Both the law relating to the approval of treaties and the Dutch Constitution itself have been relatively recently revised. A new Dutch Constitution was enacted in 1983252 and while the Constitution itself had previously governed treaty making and implementation, Article 91 of the 1983 Constitution provides that this process is now to be regulated by an Act of Parliament. The Rijkswet goedkeuring en bekendmaking verdragen or State Law on the Approval and Promulgation of Treaties came into force on 20 August 1994.253

A46 The power to conclude treaties is not expressly provided for by the Constitution, but Article 90 does provide that the government shall promote the development of the international legal order. All policy decisions, including foreign policy, are the collective responsibility of the government in conjunction with Parliament. Treaties are concluded with or by the authority of the Crown. After parliamentary approval of the treaty in question, consent to be bound by the treaty (in the case of ratification) is given by the Head of State or the Minister of Foreign Affairs or authorised agent of the Minister. In practice, the Minister of Foreign Affairs often fulfils the role of foreign policy co-ordinator rather than policy maker, since other ministers are increasingly involved in foreign affairs as a function of their ministries.254

A47 The general principle regarding treaty making in the Netherlands is contained in Article 91 of the Constitution and requires the approval of Parliament to be given before consent to be bound by a treaty can be given.255 Article 1 of the new State Law is significant in that it provides that Parliament is to be periodically informed about treaties which are being negotiated. Parliament is to be given a list of ongoing negotiations containing indications of the object and purpose of the negotiations, the prospective treaty partners, any international organisations involved in the negotiation, and the ministries concerned.256

A48 The purpose of this requirement is to keep Parliament generally informed of treaties under negotiation, allowing comment or directives to be made before the text is settled or the treaty submitted for approval, that is, before it is too late to object. In sum, although parliamentary approval in the Netherlands is not sought until after changes to the actual text of the treaty can be made, the provision contained in Article 1 of the State Law ensures that Parliament is effectively involved in the treaty making process even at the preliminary but most important stage of negotiation.

A49 Article 1 is also complemented by the role of the Council of State. The Council is the highest general advisory body in the Dutch government and fulfils a vital supervisory role prior to the treaty being submitted for parliamentary approval. It is not until after the treaty text has been adopted and signed, and all other advisory bodies consulted, that the Council of State considers the treaty in question. Although it is not feasible for the Council to recommend alterations to the text of the treaty, it having been agreed upon already, the Council still has an important influence.257

A50 The role of the Council has been described as follows:

The Council . . . has an influence upon the type of parliamentary approval (tacit or explicit), the Explanatory Memorandum or Note published with the treaty, the approving Act and the implementing legislation. As far as the Act is concerned it could, for example, influence the decision whether to enter reservations or to make declarations on becoming a party to the treaty and the content and formulation of such reservations or declarations. It is in the area of implementing legislation (the need for it and its form and content) that the Council is able to do full justice to its role as legislative adviser. In general the Council’s recommendations show that it examines proposals to Parliament in the light of the Constitution, existing Acts of Parliament, general principles of law and aspects of public interest. The Council does not attempt to exercise any political influence.258

A51 Under the State Law parliamentary approval can be given expressly or tacitly.


Express approval


A52 Parliament can only give its express approval of a treaty and any reservations in the form of legislation. In this case the Head of State sends a Royal Message to the Second Chamber containing the Bill and the explanatory memorandum which explains the treaty and any reservations, and states the government’s reasons for becoming party to it. It is at this point that the report of the Council of State becomes public and the normal legislative procedure applies.259

Tacit approval


A53 This procedure was introduced by the 1953 Constitution when it was decided that the parliamentary workload was becoming excessive. It is now the more usual means of gaining parliamentary approval.260 A treaty is introduced for tacit approval by the Minister of Foreign Affairs to the chairpersons of both chambers of the States-General accompanied by an explanatory note setting out the substance of the treaty and the government’s reasons for becoming party to the treaty. The report of the Council of State is also made public at this point. Tacit approval is considered granted 30 days after the treaty’s submission, unless a statement has been made by either chamber requesting that the treaty be subject to express approval. In this case the treaty is subject to the procedure for express approval.261

A54 The Council of Ministers or the executive usually decides whether or not to become a party to a treaty and also in what form parliamentary approval will be sought. This decision is carefully considered so that time is not wasted where an agreement submitted for tacit approval must be subjected to express approval. Hence, the government will initiate the procedure for express approval when it anticipates that Parliament may consider a particular treaty controversial or politically important.262

A55 After the government is given an opportunity to comment upon a report of the Council of State, the Head of State submits the treaty to Parliament for express approval or authorises the Minister of Foreign Affairs to submit the treaty to Parliament for tacit approval. In exceptional circumstances the Council of State may advise the Head of State not to submit the treaty to Parliament for approval and the government may decide to act on this advice.263

A56 Legally Parliament can withhold approval of a treaty or postpone the decision as to approval, and in this situation the Crown has no right to ratify a treaty. Where approval has been granted, the Crown has the freedom but no ensuing obligation to proceed with ratification.264


Exceptions


A57 There are six exceptions from the basic principle requiring parliamentary approval provided for in Article 7 of the State Law. The most straightforward is where the exemption has been provided for by legislation. For example, the Act of Approval of the agreement on the privileges and immunities of the United Nations provides that the government has the right to enter into similar agreements concerning other organisations without having to submit such agreements for parliamentary approval.265

A58 Treaties considered to exclusively concern the execution of treaties approved earlier are also excepted from the requirement of parliamentary approval.266 Short-term treaties, which do not impose considerable financial obligations and have been concluded for a period not exceeding one year, do not require parliamentary approval either. In exceptional cases of a compelling nature, the kingdom may require a treaty to remain secret or confidential and thus exempt from parliamentary scrutiny. But as soon as the secret or confidential nature of the treaty evaporates it must be submitted for approval without delay. If Parliament withholds approval, the government is under an obligation to terminate the treaty as soon as is legally possible.267

A59 In addition, treaties which merely renew an expiring treaty or changes to execution annexes which are integral parts of approved treaties are also exempted, unless Parliament has made a reservation to that effect in its Act of Approval.268

A60 In very limited circumstances, it is possible for treaties to enter into force before approval. Article 10 provides that this can occur in exceptional cases of a compelling nature, in which the kingdom’s interests would be prejudiced if the treaty were first submitted to Parliament. As is the case with secret or confidential treaties, parliamentary approval must be sought without delay and where approval is withheld, the treaty must be terminated as soon as possible. Article 10 requires the government to include a reservation concerning the possibility that parliamentary approval may not be granted, ensuring that Article 10 is not employed as an exception to the general rule in the event that termination is not possible after a reasonable time.269

A61 Before a treaty can be approved by the Dutch Parliament it must be translated into Dutch. The text of all treaties signed by the Kingdom of the Netherlands and of treaties to which the kingdom intends to accede, and the translation of the treaties into Dutch are officially published in the Treaty Series of the Kingdom of the Netherlands (Tractatenblad van het Koninkrijk der Nederlanden). This official publication of the government also includes other information such as the dates on which other states became parties and the date on which the treaty enters into force.270

The effect of treaties


A62 The status of treaties in domestic law has been expressly incorporated in the Constitution since its revision in 1953. Article 93 of the Constitution provides that the terms of self-executing treaties entered into and the decisions of international organisations are binding in effect from the time of their official publication. Non-self-executing treaties are binding “on all branches of the central and local legislative and executive authorities, which also have to enforce the resulting obligations within the scope of their powers”.271

A63 Article 94 of the Constitution provides that municipal legislation is overridden if incompatible with the terms of self-executing treaties or decisions of international organisations. Further, domestic courts must give precedence to a self-executing treaty provision over all national law (including constitutional law) which is inconsistent with treaty obligations. Although legislation which is incompatible with non-self-executing treaties will not be overridden, it will be repealed or amended at the first opportunity. The impact of this provision is obviously great and illustrates the importance the Dutch ascribe to their international obligations.272

A64 In summary, the treaty making arrangements operating in the Kingdom of the Netherlands contrast markedly with those currently in place in Commonwealth countries, where the balance of power between the executive and Parliament is distributed differently. In the Netherlands, the aim of allowing the executive sufficient freedom to conduct foreign affairs effectively and efficiently is achieved while at the same time allowing Parliament to exercise supervision over foreign policy and, importantly, to be effective in this supervisory role. Concerns regarding the possible limitation of sovereignty are not given priority, being overridden by an emphasis on democratic decision making and on giving full binding force in law to international agreements once they are concluded.

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