Separating Powers: International Law before National Courts by David Haljan

Author:David Haljan
Language: eng
Format: epub
Publisher: T. M. C. Asser Press, The Hague, The Netherlands

3.5.2 Interpretation and the Role of the Courts

It was the long-established, classic position of the Conseil d’Etat that it would defer to the government’s interpretation of a treaty provision. It only takes jurisdiction in cases where the international agreement or provision thereof was clear and certain in what it prescribed. This is the doctrine “acte clair” or “sens clair”.315 Such was the constrictive, restrictive interpretation of the separation of powers held by the Conseil d’Etat, that in case of potential doubt or question, it would refer the matter to the Ministry of Foreign Affairs for a binding opinion on the meaning of the provision in issue.316 The “acte clair” doctrine enabled the Conseil to refer to the government those matters considered delicate or of potential embarrassment, and even avoid preliminary references to the European Court of Justice regarding the Community treaties.317 While the separation of powers might justify the doctrine, it is by no means a clear case. Presumably, the contractual nature of the international compact required the parties to assert what the terms and conditions meant, rather than a court substituting its own view. Added to this was the overlay of the foreign affairs power, firmly and decidedly entrenched with the executive branch. Be that as it may, referring such questions to the government raised the risk of, or perception of, bias in favour of the government. It could interpret the provisions at issue so as to favour the specific outcome it desired. And indeed, research on the point tended to support that perception.318

In 1990, however, the Conseil d’Etat reversed itself and assumed jurisdiction to interpret treaty provisions in first instance, while leaving open the possibility of consulting the Ministry for a non-binding opinion. In the 1990 GISTI decision, the Conseil took it upon itself to interpret a set of Franco–Algerian treaties on entry, stay, study and work permission in France for Algerians in relation to a government circular purporting to add and adjust conditions relating thereto.319 The Conseil did not refer the question of the meaning of the treaty terms in issue to the government, but rather interpreted them in the context of and reconciling them with, relevant French legislation. In the substance of the case, the decision is perhaps less remarkable because for the most part, the claims of the GISTI association against the circular were rejected because the provisions were construed as advisory and without regulatory, law character. This interpretation jurisdiction was firmly set as the standard in 1993, with the Conseil d’Etat re-iterating and affirming its position, by interpreting (without preliminary reference to the government) inter alia the 1963 VCCR as creating certain directly enforceable rights in the French legal order.320

The Conseil will interpret actively, rather than passively as it had done formerly, and supply meaning and definitions where the treaty is ambiguous or has left the matter open.321 It can go quite far in seeking a reconciliation between statute and treaty. Because the Constitution and constitutional principles remain paramount, treaties and international engagements must be interpreted in conformity with the former.

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