Beruflich Dokumente
Kultur Dokumente
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EDITORIAL
579
COMMENT
crewsof shipwreckedsubmarinesor warships,a matterwhichwas the subject of controversybetween Great Britain and the Netherlandsduringthe
World War; ofprovisionsin respectto the use or treatmentofneutralcables,
such as are foundin the draftsof both the
connectingwithneutralterritory,
Institutes; and of provisionsregardingthe treatmentof mails on neutral
vessels.
Viewing the conventionas a whole,it appears to the writerof this note
that it containssome excellentrules. It fillsup the various lacunae of the
Hague Convention,supplementsthat conventionin a numberof places, and
providesrulesformeetingsituationswhicharose duringthe WorldWar concerningwhichtherewereno existingrulesor onlyinadequate rules. On the
other hand, the conventionlays down some rules as to the desirabilityof
which there will be a difference
of opinion. Likewise it is silentregarding
certainacts forwhichconventionalrules would seem to be desirable.
JAMES W. GARNER
THE SPANISH
CONSTITUTION
OF
1931
The Constitutionof the Spanish Republic, promulgatedby the Constituent Cortes on December 9, 1931,1contains numerousprovisionsrelating
to Spain's place in the communityof nationsand to herrole in international
affairs. As an expressionof a people's appreciation of its international
obligations and of the significanceof internationalorganization,the new
constitutionstands in strikingcontrastto 18th and 19th centuryconstitutions,and indicatessome ofthe advances made by internationalsocietyduring the 20th century.
On the relation between internationallaw and the national law of the
Spanish Republic,Article7 providesthat the state willrespectthe universal
rules of internationallaw and will incorporatethem into the positive law.
Though this may require some futureaction of incorporation,it is in line
with a tendencyin post-warconstitutionsto adopt the somewhatquestionable dictumthat internationallaw is a part of municipallaw;2 provisionsto
this effectare to be found in the German Constitutionof 1919 (Article4),
the AustrianConstitutionof 1920 (Article9), and the Estonian Constitution
of 1920 (Article4).3 Article65 of the Spanish Constitutionprovidesthat
all international conventionsratifiedby Spain and registeredwith the
Secretariatof the League of Nations, whichhave the characterof international law, shall be considered as constitutingparts of the Spanish
1Ley de 9 de diciembrede 1931 promulgandola Constituci6nde la ReptlblicaEspaiiola, Ma-
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580
THE AMERICAN
JOURNAL
OF INTERNATIONAL
LAW
withthe provisionsof
legislation,whichoughtto be broughtinto conformity
such conventions. This approaches,thoughit probablydoes not adopt, the
principlein Article6 ofthe Constitutionofthe United States that a treatyis
a part of the supremelaw of the land. It seems to be foreseen,however,
that some treaties will not be self-executing;it is provided in Article65,
therefore,that when an internationalconventionrelatingto the juridical
order of the state is ratified,the governmentwill promptlypresentto the
Congressof Deputies the projectsof laws necessaryforthe executionof its
provisions. Once the provisionsof a treatyhave become embodied in the
municipallaw, Article65 providesthat therecan be no law in contradiction
to such provisionsunless the treatyhas been denouncedin accordancewith
its terms. This is a decided improvementon the Americandoctrinewhich
enables any treatyto be abrogated,in so faras it formsa part of municipal
law, by subsequent legislation.4
The treaty-makingpower is conferredon the Presidentof the Republic
(Article 76). Certain categories of treaties require the approval of the
Cortes, however,beforethey bind the nation; these categoriesare political
treaties,treatiesof commerce,treatiesinvolvingpublic or private financial
obligations,and in generalall treaties forthe executionof whichlegislation
is required. Apparently,also, a denunciationof a treaty must be sanctioned by the Cortes; thisis a usefulprovisionwhichis lackingin many constitutions.5
A limitationis placed on the treaty-makingpower by Article30, which
forbidsthe signingof any treatyforthe extraditionof personschargedwith
politico-socialoffenses. The obligationsof Spain under Article 18 of the
Covenant ofthe League ofNations are recognizedin the Constitutionby the
provisionin Article76 that all treatiesand conventionsmust be registered
withthe Secretariatofthe League of Nations; compliancewiththis international obligationseems to be a conditionprecedentto the incorporationof
the provisionsof a treaty or conventioninto the municipal law. This is
given an additional sanction in the provision (Article 76) that no secret
treatyand no secretprovisionin a treatyshall be binding.
Various articlesin the Constitutionseem to take account of Spain's position as a memberof the League of Nations. By Article78 it is provided
that the President of the Republic cannot act on the opinion that Spain
should withdrawfromthe League of Nations unless he gives the two years'
notice requiredby Article1 of the Covenant, and unless he obtains the previous authorizationof the Cortes by a special law voted by an absolute
majority. This seems to guard against a repetitionof the action in 1926,
when a notice,later withdrawn,was given that Spain would cease to be a
memberof the League of Nations. In addition to the requirementof com4Taylorv. Morton(1855),2 Curtis,454, Hudson'sCases, p. 933. See Mr. PitmanB.
in thisJOURNAL, Vol. 19 (1925),pp. 316 ff.
on theAmericandoctrine,
Potter'sstrictures
5 See Hudson'sCases,p. 998 note.
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EDITORIAL
COMMENT
581
6 Professor
has pointedout that this recallsthe constitutional
B. Mirkine-Guetzevitch
of1791,Section6, provided
fortheFrenchConstitution
oftheFrenchRevolution,
traditions
expanthemakingofanywarwitha viewto territorial
that"the Frenchnationrenounces
sionandwillneveremployitsforcesagainstthelibertyofanypeople." 3 PoliticalQuarterly
(1932),p. 272.
of1891,theCongresshas power(Art.34,par. 11) "to
7Under thisBrazilianConstitution
has failedoris impracticable
";
to declarewar,whenarbitration
authorizetheGovernment
and the Presidenthas power(Art.48, par. 7) to "declarewar and makepeace,underthe
provisionsof Article34, paragraph11." Pan AmericanLaw and TreatySeries,No. 5
ofUruguay(Art.79,par. 18) givesthePresident
(1927),pp. 10,15. The 1918Constitution
ifarbitration
is
ofthe GeneralAssembly,
powerto declarewar,witha previousresolution
impossibleor has failed.
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582
THE AMERICAN
JOURNAL
OF INTERNATIONAL
LAW
OF
1828 WITH
PRUSSIA
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