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TREATY-MAKING POWER AND THE REFERENDUM

Treaty-Making Power is one of the most important attributes of sovereign states. Treaty-Making Power describes any and all types of international agreements governed by international law which are concluded beween and among states and international organizations (The Canadian Encyclopedia). This excludes per definitionem Non-Governmental Organizations (NGO’s). Only states and international organizations possessing an international personality (e.g. the United Nations Organization or the European Union) have the capacity to conclude treaties.

As a rule, a treaty is negotiated by the Government (The Executive), is ratified by Parliament (The Legislative), and, finally, given the assent of the Head of State The final document, after having completed the run described above is promulgated  and deposited in a predesignated record-keeping office.

Sovereign States have competence to enter international agreements on practically any subject. It will enhance the study of such agreements to distinguish beteween static treaties which settle a disputed question once and for all (e.g. territorial borders), and constituent treaties which create or establish instruments or agencies endowed with an institutional life of their own.

The referendum is a process of referring an important political question, e.g. a proposed constitutional change to the entire electorate to be decided by a general vote. (Shorter Oxford English Dictionary). Leaving aside the Roman ostracism, the referendum is a recent acquisition in the history of democratic government.

A referendum may be anchored in a state’s constitution or it may be established on an ad hoc basis by Parliament or by the Executive. It may be given a simple consultative status or be granted a compelling status. In the latter case it moves up as the dominant part of a two tier power, hobbling normal Treaty-Making Power, potentially impairing international cooperation.

Using the referendum as part of the treaty-making process may be justified in the case of static treaties, provided the questions put to the electorate are simple, are directed at the core of popular sentiment, are limited to a single problem and do not interfere with fellow constitutional powers of democratic institutions. Some cases in point are the Luxembourg Referendum on its constitutional future on September 28, 1919, the 1935 Plebiscite on the political status of the Sarre, and its repetition in 1955 (in each of these three cases, a referendum settled, definitely, an international question the solution of which the “classic” treaty-makers then simply had to implement.

Constituent treaties on the other hand create institutions and agencies endowed with proper legislative or regulatory powers developing their own dynamics, which risk being hampered by repeated interference by popular referendum.

A short review of international history in the 20th century and the beginning of the twenty-first shows the increasing influence of popular referenda along with (and part of) democratic consciousness in the civilized world.

Towards the beginning of the 20th century, international cooperation in almost all fields became institutionalized. The World experienced a fundamental shift of thought from the preceding hundred years, yet little or nothing was left to referenda.

Established as part I of the Paris Peace Treaty (25/01/1919), the League of Nations’ Covenant was the first constituent treaty in that it created permanent institutions endowed with legislative and judicial powers. (Secretariat-General, Council, Assembly, Agencies and Commissions, Mandatory administration of former colonies and of parts of the desintegrated Ottoman Empire, Permanent Court of International Justice). Some of these organizations survived World War II in one form or another and reappeared as the UN’s specialized agencies (ILO, WHO, FAO, IRO, UNESCO,UNHCR, International Court of Justice, etc.)

The League of Nations (through High Commissioners) and the Permanent Court of International Justice (through Judgments and Advisory Opinions ) oversaw and/or settled conflicts arising in or about territorial questions and the protection of minorities, e.g. Dantzig, Memel, Upper Silesia, Statute of Eastern Carelia.

Switzerland organized a Referendum on May 16th, 1920, as a result of which the country decided not to adhere to the League of Nations; The League of Nations allowed withdrawal, and several Member States availed themselves of this opportunity. Some even exited and re-entered.

The United Nations Organization (UNO) was established by the great powers who had won the war against Germany, Italy and Japan. After the San Francisco Conference in 1945 and the adoption of its Charter (a dynamic treaty), states had to apply to join. There were 50 at the beginning; there were many more on the waiting list. To be admitted, they had to pass the sluice-gate of unanimous approval by the five permanent members of the Security Council. No government is on record of consulting their electorate by referendum. Everyone (except one or two states fettered by their neutrality), eventually joined. It is true that the powers yielded by the UN, although more far-reaching and effective than those of the defunct League of Nations, are limited by the Veto power granted to the permanent members of the Security Council and by the lack of proper armed forces to maintain peace. However, among its achievements the road to decolonization and mandatory governance of former colonies through the Trusteeship Council should not be forgotten.

The International Labour Organization is a tripartite organization representing governments, employers and workers in day-to-day cooperation.Its major task is the establishment and maintenance of decent labour standards, internationally. This aim is achieved by the International Labour Office (in Geneva), which submits to Member States Conventions and Recommendations bearing on labour standard issues (e.g.prohibition of child labour, fixing maximum weekly working hours, protection of mine workers, protection against ionizing radiations in industry, etc.).

Member States are under no obligation to adhere to any of these conventions on the understanding that once they have formally declared their accession, their legislation and practice are subjected to annual review by ILO supervisory bodies, in three stages: by the Committee of Experts on the application of Conventions and Recommendations, by the Conference Committee on the application of Conventions and Recommendations, and by the General Labour Conference itself The findings of these tripartite bodies are published in ILO’s Annual Report. There exist no further sanctions. ILO is based on a functionalist (as opposed to a voluntarist) ideology: Its published comment on labour standards, if unfavourable, is supposed to produce the remedy called for. According to some authors (E.B.Haas: Beyond the Nation State; E.O.Landy: The effectiveness of international supervision), ILO works through The Mobilization of Shame.

The summary description of international organizations established during the first half of the 20th century shows that in spite of intricate and complicated matters, Treaty-Making Power has, with the Swiss exception, remained in the the hands of classical state organs: Executive, Legislative, Judiciary, without referral to the electorate. The active participation of workers’ organizations in the watch of proper labour standards in the International Labour Organization is a somewhat different but none the less remarkable step towards engaging the individual in every-day participation in a democratic process.

On April 4th, 1949, the North Atlantic Treaty Organization (NATO) was created without any preliminary referendum. Incidentally, all but one of the 27 Member States of the European Union are Members of NATO, Ireland being the exception. Article 13 of the Treaty provides that after the Treaty has been in force for 20 years, any Member State may leave the organization after a year’s previous notice. No State is on record as having withdrawn although France has sheared out of the military command and retains political membership.

On the European plane, nothing much happened after World War II, until France and Germany, hereditary enemies and long-time rivals for international supremacy, decided on an international solution which would not only do away with the International Ruhr Authority but would make future unilateral rearmament (and wars) impossible. French Foreign Minister Robert Schuman launched the idea of a European Coal and Steel Community which would bring the two major raw materials then available for industrial use (coal and steel) under the control of a supranational High Authority. In 1951, the ECSC treaty, joining France, Germany and the three Benelux countries, was concluded in Paris and ratified by the six national parliaments ( in France against the violent opposition of Gaullist and Communist M.Ps ), and became effective in 1952. The decisions of the High Authority were, in the field of the Treaty’s remit, final unless declared void by the Court of Justice Compared to the powers of the High Authority, the rôles of the Special Council of Ministers and of the Consultative Assembly were negligible. As a first attempt to yield Europe together, the Coal and Steel Treaty proved a success. However, it had been concluded for fifty years only, and expired in 2002. Its funds and its operations were transferred to the European Economic Community (EEC) Thus ended the first experiment in Specialized Federalism.

The idea of European Integration moved forward after the European Coal and Steel Community. At the Messina Conference, in 1955, the six Member States of the Coal and Steel Community entrusted to the Belgian Foreign Minister, Paul Henri Spaack the task of probing further possibilities of integration. However, Paul Henri Spaack and his committee cautiously replaced the term integration by “construction européenne”.The term Supranational was provisionally struck from the negotiators’ dictionary.

The work of the Committee resulted in two treaties concluded by the Six in Rome, in 1957: The Treaty establishing the European Economic Community (EEC; Common Market) and the European Atomic Energy Community (EURATOM). .

The potential growth of this organization (e.g. common purchase and pooling of nuclear resources) was met with reticence on the the part of certain Member States. and was not pursued.

As far as the EEC was concerned, France’s President de Gaulle objected to a unanimous decision on the renewal (due 1965) of the Common Agricultural Policy (CAP/PAC). Walter Hallstein, President of the Commission hoping for qualified majority voting, expected that with the renewal of the Common Agricultura Policy (CAP) and French general elections both in the offing, France would agree with his proposal.

At the end of a series of tense meetings on June 28th, 29th and 30th, 1965, France decided to withdraw its representatives in the Community. The Judge of French nationality stopped participating in the work of the Court of Justice. This crisis of the empty chair ended in January 1966 with the Compromis de Luxembourg, an informal agreement by which a formal decision would be postponed in the face of a Member State’s vital interests. De Gaulle’s refusal to abide by the written rule created a situation tantamount to a veto right and slowed down the development of the Community: to quote but one example, the adoption of the treaty establishing a single executive (fusion des exécutifs) instead of three had to be postponed.

The EEC established a single market for goods and services; developed common policies for trade, agriculture and fisheries, created free movement, employment and social security of workers and services, conceived and financed Regional Development Policies, and played an ever increasing role in Foreign Policy, establishing regular relations with the United Nations Organization, the World Trade Organization and NATO. It created the Schengen area liberalizing travel and customs. In the long run, it added more and more new policy areas to its remit, and headed for a common currency, the EURO. (The United Kingdom decided to opt out; both Denmark and Sweden decided, by referendum, not to join the EURO-Area. It is difficult to assess the economic and financial reasons which produced the Nays.)

The growing economic, financial and political resources of the European Communities and the benefits expected from membership raised new appetites. If Prime Minister Harold Macmillan, faced with internal opposition, had hesitated to bring the United Kingdom into the EEC and EURATOM in 1957, a later application by Britain was refused by President de Gaulle. President Pompidou took a more positive view of new members, and so Denmark, Ireland, Norway and the United Kingdom were invited to join in 1972. Norway refused membership in a popular referendum.There was little collateral damage (the chambers which had been prepared at the Court of Justice for a Judge of Norwegian nationality were put to different use), but Norway repeated its refusal to join in 1994.

By this time, the problem of matching democracy by popular referendum with the European Union’s long-term policies should have become obvious.

Since then, the European “Constitution” has been rejected by referendum in France and in the Netherlands. The Lisbon Treaty in turn was rejected by referendum in .Ireland. Today (July 2008) seven out of 27 Member States of the European Union make assent to new Treaties dependent on referenda: Denmark, Ireland, Italy, Latvia, Lithuania, Slovakia, and Slovenia. Presumably, their eventual withdrawal (allowed by the Lisbon Treaty) would likewise have to be committed to popular referendum? As the accession of new Members must in any case be decided by unanimous consent, the future of a Community which started with much promise has become uncalculable.

Among the larger Member States, a referendum by popular petition appears not to be a major issue for the time being: the Constitution (Grundgesetz) of the Federal Republic of Germany does not provide for referenda on the federal level. However, accession to an international treaty may be subjected to judicial review. This is precisely what has happened to the Lisbon Treaty. The President of the Federal Republic of Germany is withholding his signature pending the outcome of a complaint now before the German Constitutional Court (Bundesverfassungsgericht). France, in its constitutional reform (July 2008) provides for a referendum about the accession of new Members unless Parliament decides itself in both houses (Assemblée Nationale & Sénat) for or against accession by a three-fifth majority. As for the United Kingdom, in a judgment of July 25th, 2008, the High Court of Justice ruled that the decision to hold a referendum lies with Parliament, not with the Judiciary. The case had been brought by the eurosceptic millionaire Wheeler who claimed that a referendum on the Lisbon Treaty should be held. Lord Justice Richards and Judge Mackay held that the decision to hold a referendum on a Treaty was a political matter in the remit of Parliament, not of the Judiciary.

To say that the outcome of a popular referendum prevails over the treaty-making power of the Executive (e.g. the Prime Minister who, incidentally, may have been the very negotiator of the treaty) and compels him to resign if confronted with an adverse popular option is begging the question.