International Treaties in Spanish Law: Ratification and Constitutional Review

International Treaties in Spanish Law: Legal Framework

Parliamentary Authorization for Treaties

Article 94 of the Spanish Constitution (EC) refers to international treaties. Some treaties, particularly those concerning matters regulated by law—such as those affecting the duties and financial obligations of public finances—require authorization from the Cortes Generales (Parliament). This authorization procedure is similar to that for ordinary laws.

• Treaties Requiring Authorization

  Treaties that affect public finances or other matters reserved for law require prior authorization from the Cortes Generales.

• Treaties Not Requiring Authorization

  For other treaties not falling under the categories requiring parliamentary authorization, the Government is only required to inform the Cortes Generales before giving its consent. The Government proceeds directly with these treaties and simply reports their conclusion.

Ratification and Publication Process

Once an international treaty has been negotiated and its content finalized, approval is sought. The internal approval of the treaty corresponds to the Head of State, the King, who symbolizes the unity of the state and represents it internationally. The King ratifies the treaty, signifying the state's consent.

For a treaty to produce internal effects within Spain, its ratification must be followed by full publication in the Official State Gazette (BOE). From the moment of its publication, the treaty becomes an internal source of law, requiring its complete text to be made public.

Amendment, Repeal, and State Sovereignty

Once adopted, an international treaty may be amended or repealed, but this requires agreement from all involved parties. Negotiations must be conducted with the other contracting parties. The Spanish state retains its sovereignty to negotiate, reach agreements, or withdraw from negotiations. While the state may withdraw from an agreement, it does so with the risk that the counterparty may demand responsibility or compensation.

Once a matter has been regulated and published through an international treaty, it cannot be internally contradicted by domestic law. This means the matter is exclusively governed by international treaty law, making it impenetrable to unilateral modification by domestic legislation. Any changes must be negotiated with the other parties to the treaty.

Constitutional Control of Treaties

The Spanish Constitution (EC) is our fundamental internal legal standard. Therefore, international treaties, like all major sources of our domestic law, are subject to constitutional review. This requires prudence and prevention to ensure their compatibility with the Constitution.

Prior Constitutional Review (Art. 95 EC)

Constitutional review can be prospective. If the Constitutional Court declares a treaty constitutional, there is no issue. However, if it is deemed unconstitutional, consequences arise. The control mechanism must be:

• Prior Review: This occurs before the treaty can produce effects internally. Article 95 EC states:
  1. "The conclusion of an international treaty containing stipulations contrary to the Constitution shall require prior constitutional amendment."
  2. "The Government or either Chamber may request the Constitutional Court to declare whether or not such a contradiction exists."

This particular prior checking is a specific verification mechanism within our legal system (OJ).

It is important to note that this is not an appeal but a declaration by the Constitutional Court. The request to the Constitutional Court (CT) regarding a proposed treaty is made by the Government or either Chamber of the Cortes Generales. The standing for this request is specific and limited to these bodies.