La Ley de tratados y otros acuerdos internacionales: una nueva regulación para disciplinar una práctica internacional difícil de ignorar

Abstract

On 18 December 2014 Law 25/2014 on Treaties and other International Agreements entered into force. This new legal framework was necessary in order to adapt the content of Decree 801/1972 to the internal requirements arising from the Constitution of 1978, as well as to the new international context currently in place. The Law regulates international treaties, as the main legal instrument to articulate the will of the subjects of international law to be bound and to fulfill legal obligations. But it also regulates two further types of international agreements that have gained great relevance in the international practice. Firstly, it covers international administrative agreements, which are identical on their effects to international treaties, but which are concluded by bodies or entities belonging to public administrations in cases when formal and substantive coverage derives from a previous treaty. The new piece of legislation also regulates the controversial non-binding international agreements (also known as Memoranda of Understanding), which are characterized by their inability to create legal obligations nor to compromise the state’s international responsibility in cases of violation. Finally, the Law includes provisions on the participation of the Autonomous Communities in the conclusion of treaties by the State, as well as on the conclusion by Autonomous Communities of administrative international agreements and non-binding international agreements. Thus, the Law sets a reasonable national legal framework regarding international agreements, while seeking a balance between the exclusive competence of the State to determine its foreign policy and the competence of the Autonomous Communities to carry out the external action to the extent allowed by their Statutes of Autonomy.