\\jciprod01\productn\C\CIN\45-2\CIN201.txt unknown Seq: 1 2-MAY-12 14:39 The Brakes that Failed: Constitutional Restriction of International Agreements in France Gerald L. Neuman† Can constitutions successfully constrain the exercise of the treaty power? This article examines the French Constitution of 1958 as a case study. The founders of the Fifth Republic drafted provisions intended to protect national sovereignty, as the Gaullists understood that concept, against inroads resulting from international agreements. Looking back fifty years later, it is clear that those protective efforts did not succeed. The sequence of events by which the constraints were loosened or evaded may represent one nation’s particular his- tory, but they illustrate the limited capacity of constitutional restrictions to control international commitments in the long term. I. The Constitution of the Fifth Republic.................... 259 R II. Constitutional Restrictions— In Theory ................... 263 R A. Article 55 and Treaty Enforcement ..................... 263 R B. The Uncertain Legacy of the 1946 Preamble ........... 265 R C. Article 54 and Treaty Ratification ...................... 267 R III. Constitutional Restrictions— In Practice................... 271 R A. Prior to the 1992 Maastricht Amendment .............. 273 R 1. Article 54: Procedure ............................... 273 R 2. Article 54: Substance ............................... 278 R a. Step One...................................... 279 R b. The Crossroads of 1976 ....................... 281 R c. The Road to Maastricht ........................ 289 R d. The First Maastricht Decision.................. 294 R e. The Distance Traveled ......................... 299 R f. Postscript: Maastricht II and III ................ 300 R 3. The Reconstruction of Article 55 .................... 304 R a. Article 55 and Subsequent Statutes ............ 304 R † J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School. This article is written in my personal capacity, and does not express any opinions of the Human Rights Committee. I owe a deep debt of gratitude to the Columbia University Institute for Scholars at Reid Hall, Paris, and its Director Danielle Haase-Dubosc for their support in my initial orientation in French constitutional law, and to No¨elle Lenoir for her generous help in that orientation. I also owe thanks to Patrick Weil; to the hospitality of the Universit´e Paris II – Panth´eon-Assas, and of its Institut Michel Villey; to Denis Baranger, Olivier Beaud, Guy Carcassonne, Emmanuel Decaux, Pierre-Marie Dupuy, Roger Errera, Bertrand Mathieu, Jacques Ziller, and Elisabeth´ Zoller; and to Stephen Wiles of the Harvard Law School Library. All errors are definitely mine. 45 CORNELL INT’L L.J. 257 (2012) \\jciprod01\productn\C\CIN\45-2\CIN201.txt unknown Seq: 2 2-MAY-12 14:39 258 Cornell International Law Journal Vol. 45 b. Article 55 and Treaty Interpretation ............ 307 R c. The Decline of the Article 55 Reciprocity Proviso ....................................... 311 R 4. Interim Conclusion ................................ 312 R B. Since the Maastricht Amendment ...................... 314 R 1. Infrequent Use of Article 54 ........................ 315 R 2. Protection of Treaties in Force ...................... 319 R 3. Article 54: Substance (bis) .......................... 322 R a. General multilateral treaties ................... 322 R b. The European Union .......................... 333 R 4. The Form of Amendments .......................... 347 R 5. Employment of Europe-Specific Articles .............. 349 R 6. The ECHR and Constitutional Interpretation ......... 351 R 7. Article 55, Reciprocity, and Treaty Interpretation ..... 354 R 8. Conclusion on the Second Period .................... 357 R IV. What Went Wrong? ...................................... 359 R V. Epilogue: Plus ¸ca change . ............................. 361 R In 2008, the French Fifth Republic celebrated the fiftieth anniversary of its origin in the Constitution of 1958. That same year, the Republic also adopted a far-ranging set of constitutional amendments that included a significant alteration in its methods of constitutional review. In particular, the distinctive French system in which statutes are subject to review for constitutionality at the moment of their enactment, but cannot later be challenged as unconstitutional once the brief window for review has closed, has been replaced by procedures permitting both a priori and post- enactment constitutional review. The short-term and long-term consequences of the 2008 amendments are uncertain, but a new era in French constitutional law has definitely begun. This watershed provides an appropriate occasion for looking back over the past half-century of legal development. This Article focuses on a particular aspect of that recent history: the relationship between the Constitution and transnational cooperation, especially the making of international agreements. Regarding this relationship, Oliver Wendell Holmes famously wrote, “When we are dealing with words that also are a constituent act . we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”1 The experience of the Fifth Republic may provide a potent illustration of the inability of parchment barriers to restrain a political will to engage in transnational institution-building. 1. Missouri v. Holland, 252 U.S. 416, 433 (1920). \\jciprod01\productn\C\CIN\45-2\CIN201.txt unknown Seq: 3 2-MAY-12 14:39 2012 The Brakes that Failed 259 I. The Constitution of the Fifth Republic The Fifth Republic was born out of crisis, but its Constitution created a stable political system that has undergone peaceful evolution for more than half a century. That record contrasts strongly with the Fourth Repub- lic, established by the Constitution of 1946 after the liberation of France. In that parliament-dominated regime with a fractured Assembly, cabinets fell roughly twice a year.2 General Charles de Gaulle found the system incapable of providing France with the strong leadership he believed it needed, and he withdrew from political life.3 His opportunity to return on favorable terms arose when the Republic was threatened by its own army, rebelling against the prospect of decolonization in Algeria.4 De Gaulle accepted the post of prime minister and took on the dual assignment of governing and proposing a new consti- tution.5 He chose as his Minister of Justice Michel Debr´e, a close associate who had been working with the General on constitutional reform propos- als since the 1940s. Debr´e led the drafting project and became “the princi- pal author of the Constitution of the Fifth Republic.”6 The draft had to be negotiated with de Gaulle’s coalition partners in the cabinet, taking into account the views of a consultative committee appointed largely by the par- liament and the advice of the Conseil d’Etat´ , before the final draft was sub- mitted to referendum.7 The entire process, from authorization to popular approval, was accomplished within four months.8 The leading innovations of the 1958 Constitution concerned the struc- ture of the executive and legislative branches and the relations between those branches. The Fifth Republic enshrined a “semi-presidential” system, with a powerful head of state independent of the legislature and a prime minister as head of the Government, responsible to the majority in the National Assembly.9 At first, the President was indirectly elected, but de Gaulle obtained a constitutional amendment in 1962 substituting direct election, in the hope of giving his successors a mandate analogous to his own personal authority.10 The Constitution also restrictively defines the powers and procedures of both chambers of the legislature (the National Assembly and the Senate). In Debr´e’s model of “rationalized” parliamen- 2. See ROBERT ELGIE, POLITICAL INSTITUTIONS IN CONTEMPORARY FRANCE 12 (2003). 3. See id. at 10– 11. 4. See id. at 12– 13. 5. See id. at 12– 13. 6. ANNE STEVENS, GOVERNMENT AND POLITICS OF FRANCE 48 (3d ed. 2003). For an English account of the drafting process by a scholar who received privileged access at the outset of his distinguished career, see Nicholas Wahl, The French Constitution of 1958: II. The Initial Draft and Its Origins, 53 AM. POL. SCI. REV. 358 (1959). 7. See Fran¸cois Luchaire, Introduction, in LA CONSTITUTION DE LA REPUBLIQUE´ FRAN- CAISE¸ 1, 3– 4 (Fran¸cois Luchaire et al. eds., 3d ed. 2009). 8. See ELGIE, supra note 2, at 13. R 9. See ELGIE, supra note 2, at 95. Where appropriate, I will use the capital letter to R distinguish the “Government,” as that portion of the executive led by the Prime Minister, from the government more generally. 10. See STEVENS, supra note 6, at 52– 53; cf. infra note 69 (discussing the means by R which President de Gaulle obtained this amendment). \\jciprod01\productn\C\CIN\45-2\CIN201.txt unknown Seq: 4 2-MAY-12 14:39 260 Cornell International Law Journal Vol. 45 tary procedure, the Government exercises substantial control over the legis- lative agenda, and can employ techniques for streamlining the passage of legislation.11 The Constitution provides that some international agree- ments do not require legislative approval at all, while others must be authorized by statute.12 A secondary innovation, which later transformed the character of French constitutionalism, involved the creation of a Conseil constitutionnel