The rise of populism and the emergence of fragmented capitalism, both exacerbated by the election of a US president who embraces all their principles, should make us reflect on some fundamental issues. In particular, we should consider the place that a country should give to respecting its international obligations:
Can a president, even with the support of a parliamentary majority, break the treaties signed by his predecessors? Can he, for example, stop paying his country’s contributions to international institutions of which it is a member? Can he call into question the obligation to support his allies imposed on him by a treaty?
Most citizens, in dictatorships as in democracies, and particularly in France, now believe that a president with a parliamentary majority should be able to take decisions that contradict treaties signed and ratified by his predecessors, and that no power should be constrained by treaties signed before them.
In fact, almost everywhere today, a simple principle is recognized: a new law can contradict previous laws, but if that law contradicts an international treaty, the other parties to the treaty can invoke the new law to deny that country the benefits of the treaty. In other words, you cannot enjoy the benefits of a treaty externally and violate it internally. This principle is now recognized, with minor variations, in English, American, Russian, Chinese, French, and many other legal systems.
In France, for example, this principle, which emerged gradually with the conceptualization of the hierarchy of norms, only formally entered into force with the Constitution of 1946, which affirmed in Article 26 the superiority of treaties over laws. Twelve years later, it was incorporated into the Constitution of the Fifth Republic, which stipulates in Article 55: “Treaties or agreements that have been duly ratified or approved shall, upon their publication, have an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party.”
Since then, this principle has seriously limited the autonomy of national powers. First with the establishment of the United Nations and all the institutions that have grown out of it; then with countless international treaties, ranging from the Geneva Conventions on the laws of war to non-proliferation treaties, from the protection of the oceans to the United Nations Convention on the Rights of the Child. Today, the 200 or so countries in existence are caught up in a web of global standards, which are more or less respected, to which are added standards set by semi-public and private organizations in areas such as accounting, advertising ethics, and copyright.
This principle has taken on particular importance in Europe with the signing of the European Convention on Human Rights. The European Court of Human Rights, which is responsible for enforcing this convention, can thus impose limitations on national legislation and practice. As a result, no law in any European country can deviate from the rules laid down in this convention. Furthermore, in EU member states, once decisions can be taken by a qualified majority, it becomes clear that an increasing number of international decisions taken without the consent of a country’s authorities can be applied there as a matter of law.
Populism, coupled with anarcho-capitalism, is shaking all this up. For the former, the leaders of a country are free to take any decision. For the latter, entrepreneurs have no reason to bow to the decisions of political leaders. For both, treaties are nothing more than pieces of paper. And we may soon see many populists and anarcho-capitalists around the world organizing book burnings of treaty texts, which they consider useless constraints on their actions.
In Europe, many populists explain that their countries can force their partners to back down and obtain amendments to treaties, without clearly admitting that as long as they fail to do so, they will resign themselves to applying the common rules. This is what Hungary is playing with, after Poland (which has since fallen into line), and this is what Italy is threatening to do (although it would find it very difficult to survive the inevitable sanctions that the European Union would impose on it if it failed to comply with collective decisions).
This debate is only just beginning. In particular, I am convinced that it will be at the heart of the next French presidential elections. Explicitly or implicitly, some people on both the left and the right, more numerous than one might think, will propose to flout current international obligations and, more generally, to disregard Article 55; others will even explicitly propose to abolish it. Such proposals may win majority support: voters almost always vote “no” when asked to accept restrictions on their freedoms.
And yet this principle is fundamental. Without it, there would be no peaceful international life, no European Union, no euro, no ability for Europeans to create a common defense or to invest together. In particular, without it, France would no longer benefit from the formidable shield of the European Central Bank and would have to pay cash for being the most indebted and deficit-ridden country in the European Union.
We must not talk about all this lightly, and we must clearly state what we are prepared to call into question. Let’s launch this debate openly: “Are you for or against respecting the treaties signed by France? Are you for or against calling into question Article 55 of the 1958 Constitution?”