aquiescencia

The following points on the Spanish Treaties and Other International Agreements Act, which was passed on 27 November 2014, were presented at the Duke-Geneva Conference on Comparative Foreign Relations Law, convened by Professor Curtis Bradley on 10-11 July 2015 in Geneva. The draft paper with footnotes and references may be commented and downloaded here. Another post in Spanish on the Treaties and Other International Agreements Act may be found here.

A treaty practice in need of regulation.

The original problem with the treaty process regulation in Spain was that the rules were half democratic. Indeed, in 1972, under a glooming Francoist regime, Spain both acceded to the 1969 VCLT and regulated its treaty process through a Decree. These regulation was significantly amended by the Spanish Constitution of 1978, but the 1972 pre-constitutional Decree, helped by Circulars of the Ministry of Foreign Affairs, still governed important aspects of the treaty making process until its abrogation by the new law in December 2014.

The other reason for the adoption of a comprehensive law of treaties was the need to deal with the huge conventional practice by the Executive and the Autonomous Communities affecting foreign affairs, particularly through MOUs, but also employing different sort of international administrative agreements. The law tackles that issue by defining and regulating three types of agreements: international treaties, international administrative agreements, and MoUs called non-normative agreements in the Law as a synonym of non-binding international agreements. International treaties would be control by the Parliament through a compulsory authorization to the Executive to express the consent to be bound by the treaty, while the other international agreements would not be subjected to such requirement. There are some problems with the definition of international administrative agreements in the Law, but I will leave that apart and concentrate on two critiques to the controversial scope of the Treaties Act, as some thought that it was unnecessary (and even wrong) to include AIA and MOUs, while others thought that it was short in scope as the trilogy of categories left some relevant international agreements out of the picture.

1. The critique on incompleteness may prove right in cases of sole executive treaties, since the definition of AIA only seems to cover agreements based on a principal treaty providing for the authority to execute its provisions through further administrative agreements. The drafters of the Treaties Act were not persuaded by this critique: they seem to understand that those agreements, including sole executive treaties, fall under the category of international treaties, and so require the normal treaty process, or they are international agreements governed by national law. Both are out of the AIA definition.
2. The critique on the lack of justification to include the new categories of international agreements is more complex. A general point affecting both AIA and MOUs is that for some authors the treaty system had functioned rather well with the Decree plus the Circulars, so allegedly for them there was no need to opt for a law with such a comprehensive scope. The legislator was not impressed by this argument, and believed that the legal system could not continue to avoid the proper regulation of the rich practice of international agreements.

Democratic control of international agreements is about substance, not just form.

Except perhaps for the soft voting requirement to authorize treaties that attribute sovereign powers to international organizations (absolute majority instead of a super voting majority), the Constitution provided for a decent method of democratic control of treaties. The problem comes with an extensive practice of avoiding the parliament through treaty design. Let us recall that AIAs are not to be submitted to the treaty process provided for in the Constitution for international treaties, which requires the authorization (and therefore the control) of the Congress and the Senate previous to the government’s expression of consent to be bound by the treaty. The Treaties Act requires a consultation to the Legal Advisor of the Ministry of Foreign Affairs on the nature of the agreement, and its publication in the Official Journal. The criticism is based on the idea that what matters for the determination of a treaty in the Spanish constitutional system is its substance, not its form. I will give you an example: the controversial decision by the Office of the Legal Advisor holding that the agreement on the financial sector adjustment program for Spain of Memorandum of Understanding between the European Commission and Spain on Financial Sectorial Policy was an “international administrative agreement”. The huge amount of debt contracted by Spain for the restructuring and recapitalization of the Spanish banking sector was a key element to support the opinion that the agreement was in fact an international treaty requiring the authorization of the Parliament. For the Legal Advisor the agreement was founded in the previous Framework Agreement on the European Financial Stability Facility of 2010, and therefore was properly considered a IAA.

The Treaties Act intends to tackle ‘hidden treaties’ (in Professor González Vega’s expression) made as MOUs with the following two requirements: first, MOUs should be submitted to the legal advisors of the bodies or organs intending to sign them; second, MOUs should be communicated to the Ministry of Foreign Affairs in order to be included in a special Registry of MOUs. This is helpful. Especially the obligation to register these non-binding agreements may prove beneficial for a better practice on MOUs and their transparency. Until now, the practice was disperse and chaotic, since the International Law Department of the Ministry of Foreign Affairs checked only a few of those agreements. Moreover, some public bodies and Ministries used and abused of MOUs, particularly in certain sensible areas, such as defense and foreign aid. The very broad capacity to make MOUs remains problematic, and of course the registry to be kept by the Ministry of Foreign Affairs will not solve the difficulties arising from treaties wrongly qualified as ‘non-normative agreements’. Having said that, such risk already existed before the Treaties Act, and one must insist that the obligation to publish these agreements in an official public registry creates a strong incentive to establish a better practice on MOUs.

It’s politics, not law.

The measures intended to increase transparency and control over the conventional activities of diverse organs and bodies negotiating AIAs and MOUs are also significant. The challenges, however, remain big, and they may not necessarily arise from the functioning of the law but from entrenched practices, deficiencies and equilibriums of power within the Administration and the nation.

Some people doubt about the force of the incentives to do away with ‘hidden treaties’ and strengthen the role of the legislative. In my view, the problem lies not within those mechanisms of control, which function well when they are followed but in the poor involvement of the legislative in the treaty-making process. The formal rules of the Constitution, and now the Treaties Act, are formally fine. Nevertheless, the role of the Congress and the Senate in the scrutiny and democratic control over treaties is scarce and deficient –as a general rule, it is a “low intensity intervention” at best. The Foreign Affairs Committee of the Congress is prone to discuss controversial political issues, but does not have a proper practice for the thorough examination of the treaty-making process. The Congress and the Senate usually authorize the Government to express consent to be bound by treaties without any discussion or debate at all. When legislators are asked about this deficiency, they would allege lack of resources. There is some truth to that, of course, but is not a very persuasive argument since such democratic control has never been a legislative priority. A more sophisticated response to that fact is based on a sort of consensus on foreign policy. From this perspective, the lack of debate would not be a mere blanc cheque, but a recognition of all legislatures since the Spanish transition that foreign affairs policy is a State policy. Such explanation is not convincing. There have been situations of vast dissent on foreign affairs policy, and in any case the legislative power has a constitutional democratic mandate to control the extensive treaty-making practice of the Government.

The other challenge that must be mentioned lies in the political tensions created by the will of many Autonomous Communities to acquire more and more external relations power, as expressed in the letter of their Statutes of Autonomy, and of the will of some of them to have a foreign power of their own. The law seems to be clear: the treaty making power is an exclusive competence of the central Government; the Autonomous Communities can conclude IAA and MoUs on subject matters of their own jurisdiction with different degrees of control by the central Government. Moreover, the Treaties act provides for several rights and obligations concerning the participation of Autonomous communities in the treaty process, such as the right to request the central Government to open negotiations of treaties on subject matters of their own jurisdiction or affecting in a special manner their territorial scope or the right to request to be part of the Spanish delegation in charge of such negotiation. Having said that, the fair aspirations of the Treaties Act to coordinate the practice of Autonomous Communities concerning international agreements would become sterile without a minimum respect of the federal loyalty principle.