Ryan Harrington Issues of Treaty Succession Spain's History Can Be

Spain

Ryan Harrington

Issues of Treaty Succession

Spain’s history can be divided into several distinct periods, but for the purposes of this chapter, Spain’s legal system is derived from the integration of laws of king- doms such as Castile and Aragon, which began in 1492.1 Spain’s first Constitution did not appear until 1812, and the first Spanish Civil Code was approved in 1889.2 Because this period shaped the Spanish legal system, Spain does not have any issues of internal treaty succession. A complete history of Spain’s legal system can best be read studying a title such as Manual de Historia del Derecho Español.3 Succession issues have arisen, however, with regard to Spain’s adhesion to the European Union. The documents concerning Spain’s accession to the European Communities specifically required Spain to be bound by all treaties and acts previously concluded by the Communities.4 These treaties included the Treaty establishing the European Coal and Steel Community, the Treaty establishing the European Economic Community, and the Treaty establishing the European Atomic Energy Community.5 By joining the European Union, Spain forfeited sovereignty over these matters, which jeopardized the suprem- acy of Spain’s own Constitution.6 Spain resolved the tension by passing the Law of Bases for Delegation to the Government for the Application of the Law of the European Community immediately thereafter.7 This law incorporated the European Community’s international law into Spanish domestic law.8

Treaty Ratification and Implementation

Spain is a parliamentary monarchy with a representative bicameral parlia- ment known as the Cortes Generales. The Cortes Generales consists of the

1 Elena Merino-Blanco, Spanish Law and the Legal System 9 (2006). 2 Id. at 17–21. 3 Francisco Tomás y Valiente, Manual de Historia del Derecho Español (5th ed. 1992). 4 1985 O.J. (L 302) 23. 5 Id. 6 See Charlotte Villiers, The Spanish Legal Tradition 144 (1999). 7 B.O.E. n. 47, Dec. 27, 1985 (incorporating the European Community’s international law into Spanish domestic law). 8 Id.

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Congress of Deputies and the Senate, and the Congress of Deputies is respon- sible for appointing the President.9 In 1978, after an approval in referendum, the Cortes Generales approved the Spanish Constitution, which was then sanc- tioned by the King.10 The Constitution of 1978 contains provisions governing Spanish treaty- making process, which can be found in the section of Part III entitled “De Los Tratados Internacionales.”11 The section identifies three types of international treaties, and the requirements for ratification depend on the content of the treaty. There are treaties that confer some of the powers of the state onto an international organization; political treaties that may affect fundamental rights and liberties or create financial obligations on the state; and other types of treaties. The approval process for each type of treaty varies greatly, so it is important to determine at the outset the type of treaty being considered. Article 93 governs the type of treaty that confers powers of the state onto an international organization. These treaties may not be signed without an organic act (ley orgánica) authorizing the signature.12 Organic acts relate to the implementation of fundamental rights and public freedoms. They differ from ordinary laws in that they require an absolute majority of the Congress in a final vote on the act as a whole.13 Instances when these types of laws are required are specified throughout the Constitution. To take one example, Spain acceded to the European Union in 1986 after a prolonged process.14 Because the European Union required Spain to transfer the exercise of certain state powers, accession invoked article 93. The ley orgánica that authorized Spain’s accession to the EU can be found LO 10/1985 of August 2, authorizing the ratification of the Treaty of Accession to the European Communities, Lisbon and Madrid, June 12, 1985.15 International

9 Under article 62, the King proposes the candidate elected by the Congress. This is more of a formality than a duty because the King does not appoint or elect the President. 10 Elena Merino-Blanco, Spanish Law and the Legal System 24 (2006). Note the sanc- tioning of Laws by the King is a formality and it is not an option. Under art. 91 the King has the obligation to sign the laws that shall be published. 11 Art. 93–96 c.e. 12 Information surrounding the process for a ley orgánica can be found in Article 81 of the Constitution. 13 Art. 81.2. More information surrounding the legislative process of organic acts, including timelines on votes between chambers and how the acts are introduced, can be found in Bittner, page 348–349. 14 See Charlotte Villiers, The Spanish Legal Tradition 141 (1999) (describing the political details surrounding accession to the European Union). 15 B.O.E. 1985, 189.