XXXI — International treaties
Chapitre XXXI
INTERNATIONAL TREATIES: SERVANTS, NOT MASTERS
A State can have the most perfect constitution in the world. If international treaties override it, it’s worthless. This is the current problem for many European democracies: EU rules, NATO, OECD, ECHR, free trade agreements—all this is imposed on peoples without them having their say.
31.1 — The Fundamental Principle: Popular Sovereignty Prevails
No international agreement, no treaty, no supranational directive can impose itself on the sovereign people. Any international commitment can be denounced, renegotiated, or ignored if the people so decide.
This does not mean isolationism. International agreements are useful. But they must remain revocable contracts, not permanent straitjackets. A people that cannot exit an agreement is no longer sovereign.
31.2 — The Referendum as Ultimate Weapon
Any major international agreement must be submitted to referendum. Any existing agreement can be challenged by popular initiative referendum.
The referendum result is binding. If the people vote to exit a treaty, the government executes. There is no “advisory vote” or “renegotiation” that circumvents the popular decision.
31.3 — Sources of Referendum
A referendum can be triggered by:
- Parliament (all subjects, not restricted to budget)
- The Senate (all subjects, not restricted to societal)
- Popular initiative (all subjects, with a signature threshold)
- The Head of State (all subjects—this is their only real power, see section XIX)
- Automatically (provided in the constitution, for example for major international agreements)
The object of a referendum can be the annulment of a recently passed law. This can avoid new elections.
The result is binding. One can renegotiate a law or treaty, but then a new referendum is needed to validate the new version—unless the initial referendum explicitly included a request not to renegotiate. A minimum delay (in years) separates two referendums on the same subject.
31.4 — The Referendum Voting Method
The referendum follows the same logic as the rest of the system:
- If the question has budget impact (financial contributions, spending commitments, economic sanctions), the referendum is held by census vote—those who pay weigh more
- If the question is purely societal (fundamental rights, values, principles), the referendum is held by equal suffrage—one person, one vote
- If the question mixes both dimensions, both chambers and the Constitutional Council jointly determine the applicable voting method, or organize a double referendum (one per method)
31.5 — The Inverted Hierarchy of Norms
In this system, the hierarchy is clear:
- National constitution (modifiable at 4/5 of each chamber)
- Laws passed by the chambers
- International agreements (subordinate to the previous two)
A treaty that contradicts the constitution is unenforceable. A treaty that contradicts a law is unenforceable, unless the law is modified to accommodate it.
Supranational courts can issue opinions. These opinions do not bind the country. Only the people, by referendum or through their representatives, decide whether to follow them or not.
This is not narrow nationalism. It is the condition of real democracy. A people that cannot say no is not free.
31.6 — Case Study (Empirical Example): Swiss Treaty Referendums (1992-present)
Switzerland offers the most developed model of popular control over international commitments [155][156]. Any treaty involving membership in a collective security or supranational organization must be submitted to mandatory referendum. Other treaties can be contested by optional referendum (50,000 signatures).
What Worked
The people have the last word. In 1992, the Swiss rejected membership in the European Economic Area (EEA) by 50.3% of votes despite unanimous support from government and Parliament [155]. Direct democracy prevailed over elites.
Disciplining effect on negotiators. Swiss diplomats negotiate knowing the people can reject everything. They are more prudent, more attentive to popular red lines [156].
Enhanced legitimacy of accepted treaties. When a treaty passes the referendum filter, it enjoys unquestionable legitimacy. Membership in the UN (2002, 55% yes) or Schengen (2005, 54% yes) were democratically validated.
No isolation despite rejections. Switzerland rejected the EEA and EU, but negotiated bilateral sectoral agreements. Rejecting a global framework doesn’t prevent targeted cooperation.
Active civic culture. The Swiss vote 4 times a year on various subjects. They are used to deciding on complex questions, including international ones.
What’s Problematic
Complexity of stakes. International treaties are often technical. The average citizen may vote on emotional or simplified bases [156].
Unpredictability for partners. Countries negotiating with Switzerland know an agreement can be rejected by referendum. This complicates diplomatic relations.
Possible blocking. The rejection of the framework agreement with the EU in 2021 (abandoned before referendum) froze bilateral relations. The people can create impasses.
Variable participation. Participation in treaty referendums varies from 30% to 60%. Results reflect the mobilized, not always the silent majority.
What We Keep from the Swiss Model
- Mandatory referendum for membership in supranational organizations
- Optional referendum (popular initiative) to contest any treaty
- Binding character of the result—no “advisory vote”
- Disciplining effect on negotiators
What We Improve
- Explicit hierarchy of norms: our constitution clearly prevails over treaties. In Switzerland, the relationship is more ambiguous
- Budget/societal distinction: our treaty referendums follow census/equal logic according to impact
- Delay between referendums: our system imposes a minimum delay to avoid referendum harassment on the same subject
What We Don’t Keep
- Ambiguity of hierarchy of norms: our constitution is explicitly superior to treaties
- Dependence on Swiss culture: our system relies on mechanisms, not a pre-existing civic culture
31.7 — European Examples and Counter-Examples
Europe offers a natural laboratory of treaty referendums—some respected, others circumvented. These experiences illuminate flaws to correct.
The Facts
| Country | Referendum | Result | Outcome |
|---|---|---|---|
| France | EU Constitution (2005) | No 55% | ❌ Circumvented by Lisbon (2008), ratified by Parliament |
| Netherlands | EU Constitution (2005) | No 61% | ❌ Circumvented by Lisbon, no referendum |
| Ireland | Nice (2001) | No 54% | ❌ Re-vote in 2002 → Yes 63% |
| Ireland | Lisbon (2008) | No 53% | ❌ Re-vote in 2009 → Yes 67% |
| Denmark | Maastricht (1992) | No 51% | ⚠️ Re-vote 1993 with opt-outs → Yes 57% |
| Greece | Austerity plan (2015) | No 61% | ❌ Ignored—plan accepted one week later |
| Denmark | Euro (2000) | No 53% | ✅ Respected—still outside eurozone |
| Sweden | Euro (2003) | No 56% | ✅ Respected—still outside eurozone |
| Norway | EU (1972) | No 53% | ✅ Respected—never a member |
| Norway | EU (1994) | No 52% | ✅ Respected—still non-member |
| Switzerland | EEA (1992) | No 50.3% | ✅ Respected—bilateral agreements instead |
| United Kingdom | Brexit (2016) | Yes 52% | ✅ Executed in 2020 |
Tableau 31.1 — European treaty referendums: respect or circumvention
Why Some Referendums Were Circumvented
- Vague legal status — “advisory” votes without binding constitutional force
- Inverted hierarchy of norms — European commitments prevailed over popular will
- Possibility of re-vote — “vote until you get the right answer”
- Legal trickery — pretending a near-identical treaty is “different” (France/Netherlands 2005 → Lisbon 2008)
- Absence of sanction — no consequence for rulers who ignore the vote
What Our System Corrects
Protection 1: Mandatory and Binding Referendum
Any treaty reducing national sovereignty or transferring competences to a supranational organization must be approved by referendum. The result constitutionally binds the government—no “advisory” vote, no substitute parliamentary ratification.
A minimum delay (in years) separates two referendums on the same subject, preventing the “re-vote until victory” tactic.
Protection 2: Recall as Safeguard
If a government announces the intention to circumvent a referendum—for example by signing a “different” treaty with identical content—citizens can immediately trigger a recall procedure. The sanction is not just a posteriori: the mere threat of recall deters circumvention before it happens.
The French case of 2005-2008 would not have been possible: as soon as the Lisbon Treaty signing was announced, the recall process could have been initiated against the government and concerned parliamentarians.
Why These Referendums?
These examples all concern sovereignty delegation—the domain where the gap between ruling elites and population is most marked. On supranational integration questions, governments and parliaments are systematically more favorable to competence transfers than their voters.
It’s precisely this gap that makes these referendums so relevant: they reveal the fundamental tension between popular will and elected officials’ orientations. Circumvention cases show what happens when no mechanism forces respect of the vote. Positive cases (Denmark/euro, Sweden/euro, Norway/EU, Switzerland/EEA, UK/Brexit) show that respect is possible—our system makes it mandatory.