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Is the President of the French Fifth Republic empowered to invoke Article 13 of the NATO treaty, thereby bringing about the cessation of French membership of NATO a year later, without the support of parliament?

The constitution of the Fifth Republic (English version here) states that the President shall negotiate and ratify treaties (Article 52) and also that for a treaty to be ratified that relates to an international organisation there must be a law, meaning an act of parliament (Article 53). But invocation of Article 13 of the NATO treaty is not in itself the agreement of a treaty; and also note that France joined NATO before the creation of the Fifth Republic.

  • If a treaty ratification requires a law, what does the particular relevant law say about invocation of the exit article? – Nij Apr 20 '17 at 6:02
  • Good question. Although the NATO treaty was ratified before the creation of the Fifth Republic, the constitition of the Fourth Republic had a similar requirement (Article 27). Article 28 then says that the treaties that Article 27 covers, except commercial ones, can only be denounced by authority of the national assembly. We need a bit more that that to get to a definitive answer, though. – user11566 Apr 20 '17 at 15:49
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While I am not an expert on French Constitutional Law, I first of all would not think that the fact that France joined NATO under a prior constitution would matter, because a constitution governs how a government is allowed to act now. The whole point is that it is the presently effective set of principles governing how laws and treaties are made in the country. Moreover, as @ruffle notes in the comments, the rule was essentially the same in the 4th Republic.

The harder question is whether an invocation of Article 13 of the NATO treaty amounts to a new treaty that must be approved by parliament, or is merely part of the course of performance of an existing and already approved treaty, which does not.

The language of Article 13 could be more clear although comparison with Article 11 helps explain it:

Article 11

This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes. The instruments of ratification shall be deposited as soon as possible with the Government of the United States of America, which will notify all the other signatories of each deposit. The Treaty shall enter into force between the States which have ratified it as soon as the ratifications of the majority of the signatories, including the ratifications of Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the United States, have been deposited and shall come into effect with respect to other States on the date of the deposit of their ratifications. . . .

Article 13

After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation.

The main obligation under the NATO Treaty is Article 5 which states:

Article 5

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Part of the purpose of Article 53 of the French Constitution seems to be that since a Treaty trumps a domestic law under the French Constitution under Article 55 of the French Constitution (unlike U.S. law under which a domestic law may override a treaty), that the legislature should have to consent to treaties that have the effect of modifying or limiting domestic law.

A denunciation under Article 13 of the NATO Treaty relieves the French State of the duty to treat war on one NATO members as a war on all NATO members, but doesn't deprive France of the ability to affirmatively declare war in such circumstances, so that doesn't seem to do much harm to the principle of French legislative autonomy.

But, a denunciation under Article 13 of the NATO Treaty also deprives the French State of the benefit of protection from other NATO members which is something that the legislature cannot obtain on its own if this denunciation is given effect.

Ultimately, I think that the most convincing argument is that Article 13 grants the right to withdraw to a "Party" and not to a particular individual in the political process associated with that party such as a Head of State. This says to me that its must be a collective legal action of the state and not merely the action of an official of the state carrying out the terms of the Treaty.

So, I am inclined to think that parliament's approval would be required.

Fortunately, the one year waiting period of Article 13 of the NATO Treaty ought to be sufficient to give the Constitutional Council the power to rule on the validity of a unilateral denunciation pursuant to Article 54 of the French Constitution, and to order the President to withdraw France's denunciation before it becomes effective if a unilateral denunciation is found to be improper.

  • If the individual is acting as representative of the party, their actions are those of the party by definition of the role. How can the use of the word party mean action by an individual who may have the ability to act on its behalf, is thereby disallowed that ability to act? – Nij Apr 21 '17 at 7:13
  • @Nij It isn't unusual for a treaty to allocate authority to perform acts pursuant to it not to a party but to a specific official connected with that party. For example, Article 9(1) of the U.S.-Mexico extradition treaty states: "Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so." The default with a reference to a Party is for action to be taken via a duly enacted law. – ohwilleke Apr 21 '17 at 11:55

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