FRANCE

FRENCH LAW ON INTERNATIONAL TREATIES

Governing legal instruments:

- The Constitution of the French Republic

- Circular of 30 May 1997 concerning the preparation and conclusion of international agreements

1. Definition and Classification of International Treaties

According to the French practice, the concept of an international treaty encompasses both the general definition under international law and a specific classification applied in French administrative practice.

General definition: The term “treaty” (traité) refers to any agreement intended to create legal effects and governed by international law, concluded in written form between two or more subjects of international law. International law places limited emphasis on form or nomenclature, allowing the parties’ discretion in determining the title of their commitments.

Classification under French practice: French practice draws a clear distinction between two categories of agreements based on the contracting authority and the procedure for expressing consent to be bound:

- Agreements in solemn form (accords en forme solennelle):
These are instruments expressly referred to as “treaties” (traités) by the Constitution (Article 52). They are concluded in the name of the Head of State (the President of the Republic) and are subject to mandatory ratification.

- Agreements in simplified form (accords en forme simplifiée):
These are concluded at the governmental level. Signature authority lies with the Minister for Foreign Affairs. Such agreements are subject to approval (approbation) rather than ratification.

Important Note on Terminology:

- France recognizes the binding legal force of all commitments entered into in the name of the Government. Consequently, designations such as “Memorandum of Understanding (MoU)” should be avoided where the foreign counterpart considers the instrument to be non-binding, as France would nevertheless treat it as a legally binding commitment;

- These instruments must be distinguished from administrative arrangements (arrangements administratifs), which are concluded by ministers within the scope of their administrative powers. Such arrangements do not constitute international treaties and do not provide firm legal guarantees regarding implementation by the foreign counterpart.

2. Procedure for the Conclusion of International Treaties

Step 1: Negotiation (Négociation)

- Decision to open negotiations: The decision to initiate negotiations constitutes an act of foreign policy. Any Minister wishing to negotiate an international agreement must inform the Minister for Foreign Affairs, who alone is competent to assess the appropriateness of such negotiations;

- Language: The French Constitution provides that “the language of the Republic is French.” Accordingly, French negotiators are required to negotiate and draft agreements in French. In bilateral and multilateral agreements, France systematically requires the inclusion of an authentic French-language version (faisant foi).

- Conclusion of negotiations: Upon completion of negotiations, negotiators initial (paraphe) the text to confirm that it constitutes the final outcome of the negotiation process.

Step 2: Signature

- Authority: With the exception of the President of the Republic, the Prime Minister, and the Minister for Foreign Affairs, any other person wishing to sign an international treaty must be vested with formal authorization (pouvoirs).

+ Full powers (pleins pouvoirs): Issued by the President of the Republic for agreements in solemn form;

+ Simple powers (pouvoirs simples): Issued by the Minister for Foreign Affairs for agreements in simplified form.

- Role of the President: Pursuant to Article 52 of the Constitution, the President of the Republic negotiates and ratifies treaties.

Step 3: Expression of consent to be bound (Ratification / Approval)

This stage involves, where applicable, the participation of Parliament and the Constitutional Council.

- Ratification or approval: Depending on whether the agreement is in solemn or simplified form, it is subject either to ratification or to approval.

- Parliamentary authorization (Article 53 of the Constitution): Certain categories of treaties must be ratified or approved by statute. These include treaties relating to: peace, commerce, international organizations, public finance, amendments to legislation, personal status, or territory.

- Review of constitutionality (Article 54 of the Constitution): Where the Constitutional Council declares that a treaty provision is incompatible with the Constitution, ratification may proceed only after the Constitution has been amended.

Step 4: Entry into Force and Publication (Entrée en vigueur et publication)

- Entry into force: For agreements in solemn form, entry into force generally occurs upon the exchange of instruments of ratification. For agreements in simplified form, entry into force follows notification that internal procedures have been completed.

- Publication: Publication in the Journal officiel is mandatory for treaties to have effect within the domestic legal order and to be enforceable over individuals.

+ The purpose of publication is: (1) to make the content of the agreement public; and (2) to incorporate the agreement into the domestic legal system;

+ With limited exceptions, all agreements must be published in the Journal officiel of the French Republic in accordance with Decree No. 53-192 of 14 March 1953, as amended, concerning the ratification and publication of international commitments entered into by France. This obligation must be strictly complied with, particularly as many agreements may affect the rights and interests of individuals and legal entities. If an agreement is not published, it cannot be invoked in the domestic legal order, even where it is directly applicable;

+ Decree No. 86-707 of 11 April 1986 further requires the publication, under the same conditions, of agreements related to those published pursuant to the 1953 Decree.

- Legal effect (Article 55 of the Constitution): Treaties that have been duly ratified or approved and published precede the Acts of Parliament, provided that the other contracting party applies the treaty (principle of reciprocity).