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The Relation of International Law to Internal Law in the French Constitutional System

Published online by Cambridge University Press:  20 April 2017

Lawrence Preuss
Lawrence Preuss*
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Extract

During the five years that have elapsed since the close of hostilities in World War II, approximately one-half of the nations of the world have adopted new constitutions or have drastically revised existing ones. While some constitutions have been the products of a more or less regular modification, others have marked a revolutionary, though peaceful, development in conformity with Western political traditions. Some have followed the re-emergence of nations in defeat, and others have signalized the birth of new members of the family of nations. Finally, the régimes of the “People’s Democracy” have established instruments of government which are revolutionary both in their origin and their content.

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Research Article
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American Journal of International Law , Volume 44 , Issue 4 , October 1950 , pp. 641 - 669
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Copyright © American Society of International Law 1950

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References

1 For a general survey, see B. Mirkine-Guetzéivitch, “Les tendances Internationales des novxelles constitutions,” Revue générale de droit international public, Vol. 52 (1948), pp. 375-386; and, for studies of international law provisions in earlier constitutions, “Droit international et droit constitutionnel,” Recueil des Cours, Académie de Droit International, Vol. 38 (1931-IV), pp. 311-465; and Droit constitutionnel international(Paris, 1933).

2 In force Oct. 27, 1946. Journal officiel (Oct. 28, 1946), Supplement No. 27. English text, based on a translation by the French Embassy, Information Division (New York), in Amos J. Peaslee, Constitutions of the Nations, Vol. II (Concord, N. H., 1950), p. 9.

3 See, for example, Triepel’s complaint that “the agreements which states conclude … are rarely drafted in a manner that corresponds to the veritable nature” of interstate relations. Heinrich Triepel, Droit international et droit interne (trans. by E. Brunet, Paris, 1920), p. 21. That is, they are often not so drafted as to conform to his own dualist doctrine that a treaty creates a legal relationship exclusively between the contracting states, and, therefore, can have no effect in the internal legal order unless it has been transformed into corresponding provisions of internal law, in which case it is solely the latter that creates rights and duties for organs of the state and for individuals. Compare the comments of Kopelmanas on the “trésors d”ingeniosité” expended by the adherents of juridical monism in their efforts to reconcile the primacy of international law and the unity of the legal order with the internal validity of legislation enacted and applied in violation of prior treaty obligations. Lazare Kopelmanas, “Du conflit entre le traité international et la loi interne,” Revue de droit international et de législation comparée, Vol. 64 (1937), pp. 337-340.

[All translations in the present article, unless otherwise indicated, are the writer’s.]

4 The translation in Peaslee (note 2, supra) omits the adjective “public,” which modifies the term “law.” This curious variation of the usual phrase “droit international public” has given rise to speculation as to its precise significance. In the opinion of Jacques Donnedieu de Vabres, “The expression ‘droit public international’relegates the distinction between international law and internal law to the second plane; it tends to reduce its importance, and to restore to public law its unity.... It should be interpreted as a refusal to make of this distinction … the summa divisio of law, as marking an intention to establish more intimate bonds, a more continuous communication between the two systems of law.” “La Constitution de 1946 et le droit international,” Recueil Dalloz … hebdomadaire (1948), Chronique II, p. 6.

5 It has sometimes been assumed that the direct judicial application of customary international law is confined to British and American practice, and that Continental tribunals are competent to apply only such rules as have been transformed into the provisions of a code. See Quincy Wright, “International Law in its Relation to Constitutional Law,” this JOURNAL, Vol. 17 (1923), p. 38. Compare H. Lauterpacht, “Régles générales du droit international de la paix,” Recueil des Cours, Académie de Droit International, Vol. 62 (1937-IV), pp. 137-140.

6 French jurists have paid surprisingly little attention to this problem, but have concerned themselves almost exclusively with that of the internal legal effect of treaties. Thus, Charles Rousseau, in his comprehensive treatise, devotes some 50 pages to the “Effets du traité d l’égard des gouvemants” and “d l’égard des gouvernés,” but not more than a single page to the subject here under discussion. Principes généraux du droit international public, Vol. I (Paris, 1944), pp. 389-441, 851.

7 Aff. D., Nov. 15, 1915, Journal de droit international, Vol. 43 (1916), p. 164.

In the case of Dientz v. de la Jara, July 31, 1878, Civil Tribunal of the Seine, ibid.,Vol. 5 (1878), p. 500, it was held that the immunity of diplomatic agents, “consecrated by the law of nations, … must be respected by the courts as a rule of ordre public supérieur, which they must follow and which prevails over all the prescriptions of private law. In France, this principle has always been acknowledged and followed. Although it has not entered into our Civil Code, the debates thereupon show clearly, nevertheless, that it was present in the minds of the drafters, and that they intended to maintain it, even though they did not embody it in a written rule of law, which, in their opinion, could find no place in a law relating to the internal régime.” The significant point is that a proposed article providing expressly for diplomatic immunities was withdrawn on the sole ground that it pertained to the law of nations, and, therefore, was not a proper subject for internal legislation. See Maurice Travers, Le droit pénal international, Vol. II (Paris, 1921), p. 304; and case cited in the following note.

8 Gouvernement espagnol v. Lambége et Pujol, Jan. 22, 1849 (Ch. civ.), Sirey, Recueil général des lois et des arreéts (1849), Pt. I, col. 81.

Ruth D. Masters deduces, from judicial references to rules stated to have “always been acknowledged and followed” in France, or “universally recognized,” that “French courts require that a rule of international law, in order to be binding upon them, must either be universally recognized, or have received the assent of France. …” International Law in National Courts (New York, 1932), p. 179. Such a deduction is wholly without warrant, and results from an attempt to give a universal application to the positivist, dualist doctrines of Laband and Triepel. Furthermore, it fails to take into account the influence of natural law concepts upon French jurisprudence in its formative stage. See Paul Challine, Le droit international public dans la jurisprudence frangaise de 1789 d 1848 (Paris, 1934), pp. 272-273.

The text proposed before the Constitutional Committee of the first National Constituent Assembly of 1946 referred, at one stage of its drafting, to conformity with the “universal rules of international public law.” Upon the objection of M. Coste-Floret that the adjective “universelles” would represent a “regrettable restriction,” the present terminology was substituted. Assemblée Nationale Constituante (Elue le 21 Octobre 1945); Séances de la Commission de la Constitution: Comptes rendus analytiques (Paris, 1946), p. 588.

9 Etienne v. Gouvernement des Pays-Bas, Oct. 31,1947, Commercial Tribunal of La Rochelle, Revue critique de droit international privé, Vol. 37 (1948), p. 118.

In cases involving state immunity, the French courts have consistently held that Art. 14 of the Code civil, permitting French citizens to bring suit in French tribunals against resident and non-resident foreigners, was not intended to apply to suits against foreign governments. The travaux préparatoires, however, show clearly that there was no intention to deny such immunity, which, therefore, rests solely upon a principle of customary international law. See annotation to the above case by Ph. Francescakis, ibid., pp. 119-123.

10 April 6, 1948, ibid., p. 311. This case likewise contains no reference to the new Constitution. See also Artel v. Seymand, Feb. 19, 1948, Court of Cassation (Ch. civ.), ibid., p. 477, in which it was held, by application of the rule of customary law with regard to the effect of war on treaties, that the outbreak of war with Italy in 1940 had rendered “de plein droit caduques” the reciprocal obligations assumed in the Treaty of June 3, 1930. J.-P. Niboyet, ibid., p. 485, points out that whereas Art. 28 of the Constitution provides for the denunciation of treaties (in certain cases, with the authorization of the National Assembly), the issue in the present case turned on the customary international law of treaties, which determines the effect of war upon their international validity, and, therefore, upon their internal validity as well.

The simple and speedy procedure of “annulation pour excés de pouvoir” is employed for the purpose of setting aside judgments in disregard of the customary principle of state immunity Thus, in the Hanukiew case, Jan. 23, 1933, the Court of Cassation (Ch. req.), Sirey, Bee. gén. (1933), Pt. I, p. 249, annulled a decision of the Civil Tribunal of the Seine giving judgment by default, “in violation of the fundamental principle of the reciprocal independence of states,” against the Government of Afghanistan in a suit arising out of a contract for the supplying of arms and the granting of credit.

11 This problem has received little attention from French jurists, insofar as it relates to obligations arising from customary international law, but has been developed more fully with regard to treaties. It is clearly stated by Paul Guggenheim, who points out that international law, as an “ ergänaungsbedürftige Rechtsordnung,” frequently requires supplementary legislation before it can be given internal effect. This, however, is not to be viewed as a “Transformation” of the international norm, but as a “Konkretisierungsphase im völkerrehtlichen Rechtserzeugungsverfahren.” Lehrbuch des Völkerrechts, Vol. I (Basel, 1947), pp. 4-6, 32-34, 37-38.

12 See Rousseau, op. cit., pp. 846-853.

13 At one time during the drafting of the Constitution the provision which ultimately became Par. 14 of the Preamble was included under the title relating to “Sovereignty.” It was there placed in order to avoid any possible implication that it might furnish the basis for judicial control of the constitutionality of laws alleged to contravene international law. A proposed amendment for establishing judicial review of legislation was later decisively rejected. Assemblée nationale constituante (Élue le 2 juin 1946); Séances de la Commission de la Constitution: Comptes rendus analytiques (Paris, 1946), pp. 126, 344. It is also clear that Par. 14 cannot be invoked in support of the procedure of “pseudo-control” of constitutionality provided by Arts. 91-93. Control of the conformity of internal law with international law must, therefore, be political, and not judicial, through posing of the question préalable before the National Assembly. See Robert Pelloux, “Le Préambule de la Constitution du 27 octobre 1946,” Revue du droit public et de la science politique, Vol. 63 (1947), pp. 390-396.

14 See, for example, Geoffroy et Delore v. Compagnie d’assurances maritimes “La Bulgaria,” April 20, 1916, Court of Appeal of Paris, Sirey, Rec. gén. (1920), Pt. II, p. 17, in which it was held that decrees of 1914 and 1915 prohibiting “commercial relations” with enemy nationals should not be so construed as to prevent the latter from defending an action before the French courts. “Generally speaking,” the court stated, “the right to appear in court is one of the natural rights, i.e., rights derived from the droit des gens which the foreigner enjoys in France, independently of any express provision of the law or of any international treaty. …” Furthermore, this right was guaranteed by Art. 23 h of the Annex to the Fourth Hague Convention of 1907, which, although not in force, was binding as an authoritative declaration of customary international law. Therefore, the court concluded, “in interpreting a new text one must always take into consideration existing laws and general legal principles, which remain applicable unless they have been modified and restricted in precise terms; a decree, enacted under exceptional circumstances, which derogates from these principles, must be applied stricto sensu, and care must be taken not to enlarge its terms or to extend its consequences. …”

15 J. Donnedieu de Vabres, op. cit., pp. 5-6.

16 See the writer’s “International Law in the Constitutions of the Lander in the American Zone in Germany,” this JOURNAL, Vol. 41 (1947), pp. 888-899, for a discussion of dualist influences in the drafting and interpretation of Art. 4 of the Weimar Constitution of Aug. 11, 1919. Compare Art. 25, Basic Law for the Federal Republic of Germany (“Bonn Constitution”), May 23, 1949. Germany, 1947-1949: The Story in Documents (Dept, of State Publication 3356, European and British Commonwealth Series 9, 1950), p. 286.

17 The bracketed words are inserted in order to supply an omission, which amounts to a mistranslation, in the text above quoted. The concluding phrase of the French text reads: “… ne sont définitifs qu’aprés avoir été ratifiés en vertu d’une loi.” The National Assembly, which possesses sole legislative power (Art. 13), does not ratify treaties; it merely authorizes their ratification in the cases specified in Art. 27. The President alone “signe et ratifie les traités (Art. 31),” a power which applies to all treaties, whether or not their ratification requires prior legislative authorization. The above English text, now given wide currency in Peaslee, Constitutions of the Nations, Vol. II, p. 12, is all the more misleading, since several earlier constitutions provided expressly for legislative ratification. See the Constitution of Sept. 3-4, 1791, Ch. IV, Sec. III, Article 3; and the Constitution, du 5 fructidor an III, Art. 333, Duguit and Mon- nier, Les constitutions et les prmcipales lois politiques de la France depuis 1789 (6th ed., Paris, 1943), pp. 221, 300.

18 In French doctrine there is general agreement that the international competence of state authorities to conclude treaties is determined by internal law, and that the international validity of a treaty is, therefore, dependent upon its “regularity” or constitutionality. See, for example, Pierre Chailley, La nature juridique des traités internationaux selon le droit contemporain (Paris, 1932), pp. 167-236; Achille Mestre, “Les traités et le droit interne,” Recueil des Cours, Académie de Droit Int., Vol. 38 (1931- IV), pp. 241-248; and Ch. Rousseau, op. cit., pp. 235-248. Cf. Jules Basdevant, “La conclusion et la redaction des traités et des instruments diplomatiques autres que les traités,” Recueil des Cours, Académie de Droit Int., Vol. 15 (1926-V), pp. 577-582. See, in general, the Harvard Research Draft on the Law of Treaties, Art. 21 and Comment, this JOURNAL, Supp., Vol. 29 (1935), pp. 992-1009; and Paul De Visscher, De la conclusion des traités internationaux (Brussels, 1943), pp. 131-287.

In internal law, a distinction must be drawn between “extrinsic unconstitutionality” resulting from non-observance of the constitutional forms required for the conclusion of treaties, and “intrinsic unconstitutionality” resulting from contradictions in the content of the treaty with substantive provisions of the constitution. Chailley, op. cit., p. 240. Thus, for example, the Court of Appeal of Colmar refused to apply a treaty on the former ground, in holding that a convention, “not having been approved by Parliament, could not, therefore, be ratified and promulgated, and cannot be invoked by the defendants. …” Éablissements Coullerez v. Maison Stein, July 29, 1925, Journal du droit int. privé, Vol. 53 (1926), p. 604. Cf. cases cited by Rousseau, op. cit., p. 242. Mestre, op. cit., pp. 247-248, while acknowledging that French judicial courts did not, under the Third Republic, possess the power to control the intrinsic constitutionality of laws, maintains that they had the power to control the extrinsic constitutionality of both laws and treaties. The administrative courts, which considered ratification to be an “acte de gouvernement,” held themselves incompetent to control their constitutionality on either ground. See Aff. Caraco, Council of State (Feb. 5, 1926), Dalloz, Recueil périodique et critique de jurisprudence (1927), Pt. Ill, p. 1.

It seems reasonably clear that this situation has undergone no change with the adoption of the new Constitution, and that the language of Art. 26 is intended to confirm the power of the judicial courts to exercise control over the extrinsic constitutionality of treaties.

19 “…The intervention of the legislative power has no object other than to authorize the President to ratify these treaties and to render them executory (exécutoires)by promulgating them; it does not diminish at all his powers, and he may or may not use this legislative authorization to ratify and promulgate them, according to circumstances.…” Renault et Société des Usines Renault v. Société Rousski Renault, Jan. 28/1926, Court of Appeal of Paris, Sirey, Rec. gén. (1927), Pt. II, p. 1 (with annotation by J.-P. Niboyet).

In this respect, the Constitution of 1946 introduces no innovation. See, for example, the formula employed in the law of authorization, July 10, 1948, relating to the agreement concluded between France and the United States on June 28, 1948, Journal officiel,July 11, 1948; Rev. erit. de droit int. privi, Vol. 37 (1948), p. 327.

20 “ It has sometimes been said—and this is indisputably an error—that since the Parliament has, by a law, authorized the President to ratify a treaty, the latter is itself a law; but this is to confound une formalité purement habillitante with the act which is performed subsequent to this authorization.…Furthermore, the President of the Republic is not obliged, even by virtue of this law, to ratify the treaty.…Consequently, the law cannot put the treaty into force; it is, therefore, an error to say that the treaty is a law.” J.-P. Niboyet, Cours de droit international privé (Paris, 1946), p. 40.

21 Paul Duez, De l’indépendance des autorités Iégislatives et des autoriés réglementaires dans la fixation des régles de droit (Lille, 1914), pp. 407 ff. Also Masters, op. cit.,pp. 134-136.

22 Georges Scelle, Précis de droit des gens, Vol. II (Paris, 1934), pp. 352-354, and Préface to J. de Soto, La promulgation des traités (Paris, 1945), pp. 1-7.

23 Rousseau, op. cit., p. 401.

24 Chailley, op. cit., p. 249, and, generally, pp. 247-260. Promulgation, according to Chailley, “declares (constate) that the procedure for the conclusion of the treaty having been duly followed, the treaty applies directly within the state. … It addresses to the agents of the state the order to cause the treaty to be observed; it does not confer upon the treaty its juridically obligatory force, but presupposes it.” Ibid., p. 257. Also, Mestre, op. cit., pp. 261-262.

25 Bigelow v. Princesse Zizianoff, Dec. 15, 1928, Court of Cassation (Ch. crim.), Rev. de droit int. privé, Vol. 24 (1929), p. 77; and cases collected in Rousseau, op. cit., pp. 396-398.

26 See, for example, Aff. Jauge, Tassin et autres, Nov. 28, 1834, Court of Cassation (Ch. civ.), Sirey, Rec. gén. (1934), Pt. I, p. 822.

27 Rousseau, op. cit., pp. 260-261, 401-404; de Soto, op. cit., pp. 89-103; Chailley, op. cit., pp. 252-257.

28 See, for example, W … et M … v. l’Etat, Feb. 4, 1920, Superior Tribunal of Colmar, Sirey, Rec. gén. (1922), Pt. II, p. 57; L … v. Dame L …, June 19, 1941, Civil Tribunal of Senlis, Gazette du Palais (1941-11), p. 81. See cases cited by Jules Basdevant, “Le rôle du juge national dans l’interpretation des traités internatlonaux,” Rev. crit. de droit int. privé, Vol. 38 (1949), pp. 417-419, who draws from them the conclusion that the courts “apply the treaty and not merely the decree of promulgation.…”

29 See, for example, the formula employed in the decree of Dec. 22, 1948, ordering the publication and execution of an agreement between France and Italy relating to the settlement of certain private claims, Journal offioiel (1948), p. 12436; Rev. crit. de droit int. privé, Vol. 38 (1949), p. 148:

Le Président de la République,

Vu les articles 26, 27 et 31 de la Constitution;

Vu la loi no. 48-1481 du 25 septembre 1948 [the law of authorization];

Décritè:

Art. 1er.—Un accord ay ant été signé, le 09 novembre 1947, entre la France et l’Italie au sujet de l’application de l’article 79 du traité de paix avec l’talie, ledit accord sera publié au Journal officiel de la République française:. …[Here follows the text of the agreement.]

Art. 2.—Le président du conseil des ministres, Ministre des Finances et des affaires économiques … [and other ministers] sont chargés chacun en ce qui le concerne, de l’exécution du présent décret.

30 On the effect of publication, see de Soto, op. cit., pp. 86-87. Cf. Art. 1, Code civil:“Laws are executory within the whole of French territory by virtue of their promulgation. … They shall be executed [that is, applied] from the moment their promulgation can be known [through publication].” See Ch. Beudant, Cours de droit civil français(2d ed., Paris, 1934), pp. 131 ff.

31 See Michel Mouskhfély, “Le traité et la loi dans le système constitutionnel français de 1946,” Zeitschrift för ausländisches öffentliches Recht und Völkerrecht, Vol. 13 (1950), pp. 109-112. In maintaining that Art. 26 adopts the most important consequences of the monist position, Mouskhely assumes—incorrectly it is believed—that the prior practice confirmed the dualist view.

32 See Chailley, op. cit., pp. 330-331; J. Donnedieu de Vabres, op. cit., p. 6.

33 The rôle of the judiciary, Mestre has emphasized, is not confined to ensuring the application of the laws (lois); their broader function is “to say the law (droit).” But, he continues, “the law, in its totality, constitutes a very complex and vast ensemble of which the legislative enactment is an essential element, but which comprises in addition all that Hauriou calls the ‘bloc de légalityé.’ The latter includes not only the law [statute], but also numerous other written documents, such as regulations, administrative acts of every kind, international treaties, contracts concluded by individuals, and judicial decisions. To this mass of written sources, it is necessary to add customs; the rules of equity, occasionally; and, in certain cases, even foreign laws. One perceives, therefore, how current expressions, such as ‘application de la loi,’ ‘force de loi,’ are too narrow to encompass the much more comprehensive mission of jurisprudence.” Op. cit., p. 264.

34 The list contained in Art. 27 is based on that contained in Art. 8 of the Constitutional Law of July 16, 1875, which, in turn, is based on Art. 68 of the Belgian Constitution of Feb. 7, 1831. See De Visscher, op. cit., pp. 42, 56. To the earlier list it adds the requirement that legislative authorization be given for treaties relative to international organization and treaties which modify French internal legislation. It further requires that territorial changes be approved by plebiscite as well as by legislative act.

For an analysis of the provisions of Art. 8 (applicable, mutatis mutandis, to Art. 27), see Rousseau, op. cit., pp. 223-232, where it is pointed out that some of the most important treaties, such as political treaties, treaties of alliance, of protection, and of arbitration and non-aggression, escaped (as they do still under the Constitution of 1946) from the constitutional requirement of prior legislative authorization. As a matter of political expediency, there was a tendency under the Third Republic to submit all important treaties to parliamentary approval, even where this was not constitutionally required—a tendency which will presumably continue under the Fourth Republic. “Conventions d’union,” such as the Universal Postal Convention of Nov. 30, 1920, were regularly submitted for parliamentary approval. Ibid., pp. 232-234; also, De Visscher, op. cit., pp. 58-62. The additional requirement of Art. 27 with regard to treaties concerning international organization, therefore, merely gives formal constitutional status to an established customary practice.

35 Since legislative authorization takes the form of a law, it is given by the National Assembly alone (Art. 13). All acts performed by the President of the Republic in connection with treaties are subject to countersignature by the President of the Council of Ministers and by a Minister (Art. 38), under responsibility of the Council of Ministers to the National Assembly (Art. 48).

36 Quoted by Mouskhély, op. cit., pp. 110-111.

37 See Niboyet, “La législation des loyers en France: le droit constitutionnel et le droit international,” Rev. de droit int. privé, Vol. 24 (1929), p. 59; Mestre, op. cit.,pp. 254-255. Basdevant, op. cit., pp. 416-419, observes that the situations in which special legislation is required in order to give internal effect to treaties are, in France, rare and exceptional. In some instances, “these derogations from the habitual practice cannot very well be explained, unless by faulty methods or by a sort of administrative dis-order, of which there are examples in all countries.”

38 Rousseau, op. cit., p. 392.

39 See Niboyet, in Recueil Dalloz … hebdomadaire (1946), Chronique XXIII, p. 89.

40 Among the more recent cases, see, for example, De Raemy et Tanner v. Martin et Berger, May 11, 1927, Court of Cassation (Ch. civ.), Journal de droit int., Vol. 55 (1928), p. 378; Pick v. Bernheim, Feb. 5, 1936, Court of Cassation (Ch. req.), Sirey, Rec. gén. (1936), Pt. I, p. 151; and Societé dite Gazoline Products Company Inc. v. La Rafflnerie des Pétroles nord et la Société dite A. Borsig G.M.B.H., Feb. 12, 1941, Court of Cassation (Ch. req.), Sirey, Rec. gén. (1942), Pt. I, p. 44.

In Kalmanovitch v. Southern Railway Compagnie Internationale des Wagons-Lits,Nov. 10, 1938, Rev. crit. de droit int. privé, Vol. 34 (1939), p. 136, the Civil Tribunal of the Seine held that an agreement concluded between France and Great Britain in 1933 prevailed over the rule contained in Art. 59, Code de procédure civile. Its opinion was expressed in terms which implied the superiority of the provisions over subsequent legislation as well: “International conventions and tariffs have the character of rules of international public order, which are superior to the provisions of the internal law of the signatory states, and create between their nationals juridical obligations which must be respected and executed. …”

Strictly speaking, a treaty does not “abrogate” or “repeal” a contrary law. It merely “neutralizes” or “paralyzes” the execution of the law for the time that it is in force, and with respect to the relations which it governs. When it is terminated, the law recovers its full application. Chailley, “Traités internationaux (Théorie générale des),” Répertoire de droit international, Supp. (Paris, 1934), p. 344; Mestre, op. cit.,pp. 252-253, 275, 285.

41 See, for example, the decision of the Court of Appeal of Douai, in the case of Six et “La Zurich” v. Opsomer (March 2, 1926), Journal de droit int., Vol. 54 (1927), p. 119, in which it was stated that “ a convention promulgated by a simple decree cannot modify the law … ; if a diplomatic convention may prevent the operation of a legislative provision this is only on the condition that this convention has received the approval of Parliament.” See the cases collected by Rousseau, op. cit., pp. 420-421.

42 See Capello v. Marie, Feb. 10, 1948, Rev. crit. de droit int. privé, Vol. 37 (1948), p. 491, in which the Court of Cassation (Ch. civ.), annulled a judgment of the court be low on the ground that it had misinterpreted a treaty concluded in 1930 as not having been intended to accord to the appellant rights claimed under that treaty, and denied to him by legislation enacted in 1926. The Court stated: “… The judges below are bound to apply literally, and without power to modify them under any pretext whatever, clear and precise international conventions which do not necessitate any interpretation, and whose authority is superior to that of internal common law. … The judges below are not competent to interpose French common law, which is deprived of authority when opposed to the clear provisions of a treaty. …”

43 The Constitution of 1946 has not altogether resolved the difficult legal problems resulting from the conclusion of informal agreements by procedures other than those prescribed for “diplomatic treaties.” See, for example, the decision of the Court of Appeal of Paris, in the case of Colman (Dec. 5, 1947), Rev. crit. de droit int. privé, Vol. 36 (1947), p. 435, by which a Belgian national, condemned to death for intelligence with the enemy and for bearing arms against his country, was held to be extraditable. As a political offender, he was not extraditable under the Franco-Belgian Convention of Aug. 15, 1874, or the French Law of March 10, 1927. The court held, however, that he could be extradited by application of the terms of an exchange of letters between the French and Belgian governments, Dec. 17, 1946, and Jan. 10, 1947, which provided for the reciprocal surrender of persons for offenses against the internal security of the state committed in the course of a war against a common enemy. The court held that the agreement supplemented the earlier treaty; that the Law of 1927 was inapplicable, except on points not covered by international agreement; and that Art. 26 of the Constituion was “confined to giving predominance over internal French laws to treaties regularly ratified and published, without prohibiting the Government from concluding such a particular agreement [as that contained in the exchange of letters], whether published or kept secret, in matters for which it is qualified to act alone. …”

This ruling has been settled by a number of decisions handed down in the period 1945-1947. See contra, however, the decision of the Court of Appeal of Paris in the case of Talbot, March 18, 1947, Gazette du Palais (1947-II), p. 17, in which a demand for extradition was rejected, the court holding that the above-cited exchange of letters could not have “in default of justification, of ratification and of publication, force de loi, in the terms of Art. 26 of the Constitution.” See the note by H. Donnedieu de Yabres, Rev. crit. de droit int. privé, Vol. 36 (1947), pp. 439–440, who maintains that the Law of 1927 and formal treaties were intended to furnish an exclusive regulation in matters of extradition, and that: “It is to diplomatic treaties alone, regularly ratified and published, that Article 26 of the Constitution attaches an authority superior to that of the law. A fortiori, a simple agreement, devoid of form, between the representatives of the executive power of the interested states, could not set aside a traditional principle formally consecrated by the Franco-Belgian Convention and by the laws of the two states: that of the non-extradition of political offenders.”

44 “In applying a later treaty derogating from a prior law, the judge is, in fact, obeying the principle of positive law by virtue of which a later internal rule derogates from an earlier internal rule. The conflict exists only between two sources of internal law, and not between the internal and the international legal order.” Kopelmanas, in Recueil général périodique et critique des décisions … relatives au droit international(1936), Pt. Ill, p. 88.

“Once it has entered into the French legal system a treaty loses its character as an international norm and becomes a simple rule of French law. ” André Gros, in Grotius Society: Transactions for the Tear 1944, Vol. 30 (1945), p. 40.

45 Court of Appeal of Dijon, May 2, 1933, Rev. de droit int. privé, Vol. 28 (1933), p. 480; also Tissot v. Veuve Isabelle, May 24, 1933, Civil Tribunal of Le Havre, ibid., p. 478; Spilka v. Lerche, June 30, 1932, Court of Cassation (Ch. civ.), ibid., p. 475; and cases collected by Rousseau, op. cit., pp. 422-423.

46 See Chailley, La nature juridique des traités, pp. 237-238.

47 See Albert de la Pradelle, in Rev. de droit int. privé, Vol. 22 (1927), pp. 55-57; and J. Perroud, in Journal de droit int., Vol. 55 (1928), pp. 1003-1004. That the solution was dictated by internal limitations upon the judicial power, and not by the relative legal hierarchical position of the treaty and the law, was implied in such a decision as that of the Civil Tribunal of the Seine, Oct. 27, 1926, Rev. de droit int. privé, Vol. 22 (1927), p. 44, in the case of Chenouard v. Demoiselle Denis, in which it was asserted that the precise terms of a law would “set aside” the inconsistent provisions of an earlier treaty, since “the judge is not authorized to examine the question as to whether or not the legislator … had, according to international law, the legislative competence essential to the international validity of the law; … as an internal organ, the judge cannot take cognizance of the law (loi) according to any criterion other than that of internal law (droit interne).”

This position, furthermore, is entirely compatible with the conception that a treaty is an “autonomous juridical form, distinct from a law” and operating upon a different plane; and that it continues to retain its validity, notwithstanding the fact that its application may be “paralyzed” by the enactment of a contrary law, observance of which is imposed upon the judge by a rule of internal public law. The treaty, in this situation, is merely “écarté,” and regains its full efficacy upon repeal of the law. Mestre, op. cit., pp. 252, 282-285.

48 Niboyet, “La séparation des pouvoirs et les traités diplomatiques,” Mélanges B. Carré de Malberg (Paris, 1933), pp. 402-403.

49 The literature of this subject is voluminous. For a brief analysis of the principal issues, see Kopelmanas, in Rec. gén. périodique (1936), Pt. III, pp. 85-86.

50 See the statement of M. Navailles-Labatut, on behalf of the Minister of Foreign Affairs, before the Chamber of Deputies, May 28, 1949, Rev. de droit int. privé, Vol. 24 (1929), pp. 699-704; also, Report to the President of the Republic by the Minister of Foreign Affairs, April 14, 1933, ibid., Vol. 28 (1933), pp. 377-381. Out of deference to the Chambers, the Minister of Foreign Affairs placed the responsibility upon the courts for a misinterpretation of the legislative intent: “The formal will of the legislator is invoked [by the courts] in order to deny to aliens without distinction the benefit of the law concerning the rental of immovables. …But it is then necessary to suppose that the Chambers had the intention not to respect the conventions signed by France. One cannot, and one ought not, attribute such an intention to the French Parliament. If it had wished to breach … the international obligations of France, it would have so declared in the express terms of the law itself.” Ibid., p. 378.

51 This view is generally associated with the name of J.-P. Niboyet, according to whom “ The treaty and the law are on distinct and parallel planes, which do not meet. Each has its own source: the former is made for international contractual relations, and the latter for internal relations, and even for unilateral international relations. …” Rev. de droit int. privé, Vol. 28 (1933), p. 491. See also, ibid., Vol. 24 (1929), pp. 592-609; Manuel de droit international privé (2d ed., Paris, 1928), p. 41; “Un pas appréciable vers le respect des traités,” Recueil Dalloz … hebdomadaire (1936), Chronique, pp. 41-42; and “La séparation des pouvoirs et les traités diplomatiques,” Mélanges B. Carré de Malberg (Paris, 1933), pp. 399-415; Traité de droit international privé français, Vol. I (Paris, 1938), pp. 36-47.

52 Chailley has given the most thorough and original exposition of the doctrine of the “parallSlisme des formes” and the “acte contraire,” La nature juridique des traités, esp. pp. 109-130. A treaty, he asserts, is not a contract, but a special procedure for the creation of law (droit), envisaged by the constitutional law of the various countries, and parallel to the legislative procedure. “The norms resulting from this procedure are intended, as a result of their regular elaboration, to operate, directly and of themselves, at one and the same time as rules of internal law and international rules.…” Ibid.,p. 238. “Under the name of a treaty, the tribunals apply international norms which do not thereby lose their own proper character, even from the point of view of internal jurisdictions. Elaborated according to a certain procedure, they can only cease to be in force through a regular abrogation, that is to say, one which is carried out according to the same forms as those observed during their creation; consequently a posterior law cannot prevail over a treaty which is not abrogated by the authority competent in this respect [principe de l’acte contraire].” Ibid., p. 320.

53 Weyl-Bloch v. Bigar, Feb. 20, 1929, Journal de droit int., Vol. 57 (1930), p. 127. Also, Lucas-Moreno v. Banque commerciale africaine, Dec. 12, 1927, Civil Tribunal of the Seine, ibid., Vol. 55 (1928), p. 983; Betsou v. Volzenlogel, Dec. 23, 1927, Civil Tribunal of the Seine, ibid., p. 999; Garnier v. Allied Purchasing, July 3, 1928, Civil Tribunal of the Seine, ibid., Vol. 56 (1929), p. 391; Leuba v. de Bocca-Sera, April 25, 1929, Civil Tribunal of the Bouches-du-Rhône, ibid., Vol. 57 (1930), p. 133; and Hobier v. Sigg Sandrino et Compagnie d’Assurances “La Zurich,” Oct. 21, 1936, Court of Appeal of Orléans, Rev. gén. périodique (1937), Pt. III, p. 1. In Brard v. Chiesa, Dec. 21, 1931, Rev. de droit int. privé, Vol. 27 (1932), p. 283, the Civil Tribunal of Angers evidently relied upon the principle of the lex specialis, in holding that: “… a treaty, in principle, is a veritable law which participates in the sovereignty of the law, and it may, therefore, derogate from the law, to the extent that its character as an international agreement implies; … it does not have the character of generality of the law properly so called, and the rules which it sets forth are destined only to regulate the relations of the state and its individual citizens with the co-contracting state and its nationals; … consequently, a state cannot, by its internal regulations, by a posterior internal law, lay down rules contrary to the provisions of the treaty, or modify the execution of the en-gagements which it has undertaken with regard to foreign powers, unless changes in internal legislation are envisaged in the treaty itself; … thus, a conception that a diplomatic convention might be modified by the provisions of an internal law is directly contrary to the most certain rules of the law of nations, and is not acceptable on any ground. …”

54 Feb. 9, 1943, Rev. crit. de droit int., Vol. 35 (1940-1946), p. 276 (annotation by Henri Battifol).

55 Mélanges R. Carré de Malberg, pp. 413-415. Also Chailley, op. cit., pp. 315-321. Mestre likewise considers that “the treaty and the law appear as two acts situated on two different planes and which emanate from two different authorities, of which the one cannot be considered superior in relation to the other.” Op. cit., p. 275. He concludes, however, contrary to Chailley, that a law is capable of paralyzing the application of a prior treaty, on the usual ground that French public law does not accord to the courts a power of control. Even if they possessed such power with regard to the intrinsic constitutionality of laws, there would be no reason to conclude that they had such power with regard to the conformity of laws with treaties, since “a treaty is not an integral part of the Constitution. …” Ibid., pp. 283-284. This argument has a bearing upon the present controversy as to whether such a power of judicial control may be implied from Art. 28 of the new Constitution.

56 (Ch. civ.), Sirey, Rec. gén. (1932), Pt. I, p. 257; Rev. de droit int. privé, Vol. 27 (1932), p. 83. Also Pagnone v. Duteil et Cie., Nov. 15, 1932, Court of Cassation (Ch. req.), ibid., Vol. 28 (1933), p. 126; Schreiber v. Ragaru, Dec. 1, 1932, Commission supérieure de cassation, ibid., p. 128 (with conclusions of M. Lyon-Caen, avocat-général).

In his conclusions in the Sanchez case, the Procureur-général, M. Paul Matter, cited the dictum of the Supreme Court of the United States in the case of United States v.Mrs. Gue Lim (1900), 176 U. S. 459: “If it can be reasonably done, an act of Congress should be so interpreted as to further the execution of a treaty, and not to violate its provisions.” It could not, he said, be presumed that the legislator had intended to involve the French state in a violation of its international obligations; therefore, the deliberate exclusion of aliens from the benefits of the legislation must further be presumed to be in conformity with the treaty. “ Finally, ” he concluded, “even if there should be a conflict between the Law of June 30, 1926 and the Franco-Spanish Convention of 1862 —and I have just indicated that there is none—but, supposing that there is, what would be the duty of the judge? There is no doubt that in thi9 event you recognize and can recognize no other will than that of the law. This is the very principle upon which rest our judicial institutions [citing Whitney v. Robertson (1888), 124 U. S. 190].” Ibid.,Vol. 27 (1932), pp. 102, 104, 109.

57 The Minister of Foreign Affairs, in his report to the President of Feb. 17, 1933, commented upon the above decisions as follows: “If it sufficed, in order to abstain from the execution of international obligations, to declare that such or such a legal or regulatory provision is exceptional and additional to the common law, that it was not foreseen at the time these obligations were contracted, and that, consequently, it is reserved exclusively to nationals, there would no longer be any security in the engagements of powers; conventions would depend upon the unilateral good will of each of the contracting parties, and would no longer offer any guarantee.” Ibid., Vol. 28 (1933), p. 380. See documents cited, note 50, supra.

58 On the binding force of executive interpretations of treaties in France, see Basde- vant, in Bev. crit. de droit int. privé, Vol. 38 (1949), pp. 419-433; and notes by Ch. Rousseau, in Annual Digest (1929-1930), pp. 360-363; ibid. (1931-1932), pp. 370-371; ibid. (1919-1942), Supp. Vol., p. 230; also Principes généraux, pp. 650-675. For a list of the interpretative agreements, with citations to the cases applying them, ibid., pp. 633-637.

59 See, for example, Huckendubler v. Hoeffleur, Dec. 22, 1932, Commission supSrieure de cassation, Bev. de droit int. privé, Vol. 28 (1933), p. 137, in which an exchange of

letters between the French and Swiss governments, July 11 and 26, 1929, published in the Journal officiel, Aug. 5-6, 1929, was held to constitute “a contractual interpretation… ; whatever its form, this bilateral interpretation … constitutes an integral part of the convention [of 1882] itself, and must be observed and applied as the official expression of the common intention of the interested Governments. …” Also, Société Ruegger et Boutet v. Société Weber et Howard, April 25, 1934, Civil Tribunal of the Seine, Rev. crit. de droit int., Vol. 32 (1937), p. 86, in which a bilateral interpretation was assimilated to “ a clause added to the treaty and embodied therein, which has the same authority, and, like it, has the force of law.”

60 Dame veuve Python v. Demoiselle Baumann, Jan. 19, 1933, Commission supérieure de cassation, Recueil Dalloz … hebdomadaire (1933), p. 118.

61 Zumkeller v. Florence et Peillon, Feb. 4, 1936, Court of Cassation (Ch. civ.), Sirey, Rec. gén. (1936), Pt. I, p. 257; Annual Digest (1935-1937), Case No. 202, p. 424 (with note by W. L. Walker). Also Coll et Ozanas v. Tisserand, Feb. 16, 1937, Court of Cassation (Ch. civ.), Rev. crit. de droit int., Vol. 33 (1938), p. 245.

62 Compare the remarks of the President of the Legislative Commission of the Senate, April 8, 1927, in arguing that the benefits of the legislation with regard to commercial property be reserved exclusively to French citizens and to aliens whose countries provided legislative reciprocity. “We are inspired by the idea of equity … ,” M. Penancier declared. “If aliens allege that they are the beneficiaries of treaties and invoke rights thereunder, the tribunals will evaluate their claims.” Rev. de droit int. privé,Vol. 27 (1932), p. 98.

63 Quoted by Mouskhély, op. cit., p. 108.

64 Commission de la Constitution, Séances … (cited, note 13, supra), pp. 192, 711.

65 Ibid., p. 103.

66 Recueil Dalloz … hebdomadaire, Chronique XXIII, p. 91.

67 Cours de droit international privé (Paris, 1946), p. 44.

68 Rev. crit. de droit int. privé, Vol. 37 (1948), p. 283.

“… It does not seem that any authority may, without committing an illegal act, apply legislation violating the obligation of treaties. One cannot object to this interpretation on the ground that judges are incompetent to review the constitutionality of laws, for we are not here concerned with saying that a law contrary to a treaty is unconstitutional as such—which it, however, certainly is—but with choosing between two contrary legislative systems that which the Constitution invests with a superior authority. As a general rule, the most recent law prevails over the older; but it is otherwise when the former is enacted for the execution of a treaty or when it consists of an authorization to ratify. In the latter case there exists between the laws a different hierarchy than was introduced solely by time. To decide a conflict between laws in the name of this hierarchy is not to exercise a control of constitutionality, but is to seek the authentic will of the legislator as it is defined in the Constitution itself. Lex posterior derogat priori nisi prior superioris.” J. Donnedieu de Yabres, op. cit., p. 8.

69 Op. cit., p. 115.

70 Henri Motulsky, in Rev. crit. de droit int. privé, Vol. 38 (1949), p. 63.

71 Henri Battifol, ibid., Vol. 36 (1947), p. 431; Traivé élémentaire de droit international privé (Paris, 1949), pp. 40-42. Also Roger Pinto, Élémenta de droit constitutionnel (Lille, 1948), p. 333.

72 Rev. crit. de droit int. privé, Vol. 37 (1948), p. 493 (annotation by Ph. Frances- cakis); this Journal, Vol. 44 (1950), p. 206.

It was further held that the provisions of Art. 26 and 28 “incontestably envisage not only treaties to be concluded after the promulgation of the Constitution, but also those already in force and not denounced, and whose denunciation, furthermore, may take place only in conformity with the Constitution.”

In Chonchol v. Dame Vita, Nov. 10, 1947, Rev. crit. de droit int. privé, Vol. 37 (1948), p. 275, the Court of Appeal of Aix reversed a judgment of the Civil Tribunal of Nice, which had applied legislation enacted in 1926 in derogation of the terms of the Treaty of Lausanne of 1923. Since the decision was based upon a subsequent law which expressly reserved rights derived from treaties, there was, strictly speaking, no conflict. The dicta of the Court of Aix are, nevertheless, of interest, since they are perhaps the first to affirm unequivocally that Art. 28 of the new Constitution establishes the jurisdictional control of constitutionality. Referring to that law, which was inspired by a desire to avoid the often justified charge of non-fulfilment of international obligations resulting from legislation restricting the application of prior treaty provisions, the court stated: “… These considerations, which lead the judge from now on to give priority to diplomatic conventions which are unequivocal in their terms—as in the present case—are reinforced by Article 28 of the new French Constitution. …” See comment by J.P. Niboyet, ibid., pp. 280-283.

73 Rev. crit. de droit int. privé, Vol. 38 (1949), p. 516.

74 Zurmkeller v. Peillon, cited, note 61, supra.

75 Rev. crit. de droit int. privé, Vol. 36 (1947), p. 429 (annotation by H. Battifol).

76 Accord, the following decisions of the Chambre sociale: Affaire Amadio, Feb. 13, 1948, ibid., Vol. 37 (1948), p. 486; Braun v. Thureau, July 28, 1948, ibid., Vol. 38 (1949), p. 307; Poinsot v. Kurica, Nov. 25, 1948, ibid., p. 308 (annotation by Henri Monneray), this Journal, Vol. 44 (1950), p. 210.

In an exceptional decision, the Court of Appeal of Paris, Jan. 7, 1948, Rev. crit. de droit int. privé, Vol. 38 (1949), p. 512, in the case of Hébertot v. Szepokowski had considered that the rental legislation of 1946 had superseded both an earlier law and the Franco-Polish treaty of 1937. After an examination of the travaux préparatoires the court concluded that it had been the intention of the legislator to exclude from the bertefits of the law of 1946 aliens who, like the respondent, had not fought during the war on the side of France. See comment by Ph. Francescakis. This case may be considered overruled by Poinsot v. Kurica, supra,

77 According to Pinto, op. cit., p. 333, the guarantee of the rule laid down in Art. 28 is political rather than judicial. The National Assembly, through operation of the question préalable, will be able to reject bills in violation of a treaty; the President of the Republic, upon demand of the Cabinet, may require a second deliberation; and, finally, the Constitutional Committee may intervene.

78 Jean Mazeaud, in Juris-classeur périodique (1949), Pt. II, p. 4691 (quoted by Mouskhély, op. cit., p. 115), summarizes this principle as follows: “… Every time that the legislator has not manifested precisely, certainly and indisputably, a contrary will in the very text of the law, … the judge will give effect to the treaty; he will say that the legislator … has not had the intention of withdrawing implicitly from his international obligations. This rule of interpretation … finds its support in the Constitution, in the higher principles of law. The slightest hesitation in the text or weakness in drafting will permit the victorious return of the general rule.”

79 Executive interpretations, which are given retroactive effect, sometimes doubtlessly impute a wholly fictitious will to the original negotiators; equally, they sometimes impute to the legislator a fictitious will to respect the will of the negotiators thus established ex post facto.

In Becker v. Préfet de la Moselle, June 22, 1948, Rev. crit. de droit int. privé, Vol. 38 (1949), p. 55, the Tribunal of Sarreguemines held that an exchange of letters between the French and the German governments, dated May 6, 1939, containing an interpretation of $1, par. 2 of the Annex to Section V of the Treaty of Versailles, “even in the absence of any ratification by the Chambers giving the agreement the force of law … clearly establishes the intention of the High Contracting Parties, ”and was binding upon the court. See criticism by H. Motulsky, ibid., pp. 61-63.

80 See Renault et Société des Usines Renault v. Société Rousski Renault (cited, note 19, supra); and Rousseau, op. cit., pp. 527-528.

81 Niboyet is of the opinion that Art. 28 refers only to formal denunciation, and that it does not exclude other methods such as termination for adverse breach or as a measure of reprisal, which remain within the discretionary power of the executive. Rev. crit. de droit int. privé, Vol. 37 (1948), p. 485.

82 Articles 26-28 are silent on the problem of the renewal of treaties concluded for limited periods. It may be presumed that the practice of the Third Republic, which recognized that the power of prorogation belonged to the executive, will be continued. See Millet v. Dame Seostereoneck et de Froding, May 14, 1935, Court of Cassation (Ch. req.),Sirey, Rec. gén. (1936), Pt. I, p. 281; and Rousseau, op. cit., p. 234.

83 Par. 15, Preamble. Cf. Art. 11, Constitution of the Italian Republic, Dec. 27, 1947, Department of State, Documents and State Papers, Vol. 1 (1948), p. 47; Peaslee, Con-stitutions of the Nations, VoL II, p. 281; and Art. 24 (1), Basic Law of the Federal Republic of Germany (cited, note 16, supra).