The Spanish Constitution of 1931

Author(s): Manley O. Hudson

Source: The American Journal of International Law, Vol. 26, No. 3 (Jul., 1932), pp. 579-582
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2190209
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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-

is publishedin 16 Bulletindel'Instidrid,EditorialReus (S.A.) 1931. A Frenchtranslation

tutIntermgdiaireInternational (1932), p. 10.

2 See Edwin D. Dickinson,"ChangingConceptsand the Doctrineof Incorporation,"

thisJOURNAL, Vol. 26 (1932),p. 239.
3 For the textsof recentconstitutions,
de
Les Constitutions
see B. Mirkine-Guetzevitch,

l'Europe Nouvelle (1928). See also B. Mirkine-Guetzevitch,Les Tendances Internationales

des NouvellesConstitutionsEurop4enes,2 L'Esprit International(1928), p. 530.

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580

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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

pliance withArticle18 of the Covenant,it is stipulatedin Article76 that all

draftconventionsadopted by the InternationalLabor Conferenceshall be
submittedto the Cortes withinone year aftertheiradoption, or in exceptional circumstanceswithineighteenmonths; this is a recognitionof the
Cortes as the "competentauthority"withinthe meaningofthe provisionin
Article405 of Part XIII of the Treaty of Versailles.
Significant,also, as a declaration of Spain's appreciation of the duties
of a 20th-centurystate, are the provisionsrelatingto a possible declaration
of war. Article 6 of the ConstitutionreflectsSpain's position as a state
which has adheredto the Treaty of Paris of August 28, 1928, in providing
that " Spain renounceswar as an instrumentofnational policy."6 It is true
that the powerto declarewar is later (Article14, ? 3) enumeratedamong the
powerswhichare conferredon the Spanish state. The exerciseofthe power
rests with the President(Article76); however,he is expresslyforbiddento
sign a declarationof war (Article77), except underthe conditionsprovided
forby the Covenant of the League of Nations, and onlyafterthe exhaustion
of all methodsof defenseshortof war, and of the processesof adjudication,
conciliation,and arbitrationestablished by internationalconventionsto
which Spain is a party and whichare registeredwiththe Secretariatof the
League of Nations. This provisionrefersnot only to Spain's positionas a
memberof the League of Nations, but also to her positionas a signatoryto
the optional clause of the Statute of the PermanentCourt of International
Justiceand as an adherentto the GeneralAct forConciliationand Arbitration of Geneva, ofSeptember26, 1928. In addition,the Constitutionrecognizes Spain's obligationsunderbipartitetreatiesofpacificsettlement,by the
provision(Article77) that particulartreatiesof conciliationand arbitration
shall be applied in every case wherethey are not inconsistentwith general
conventions. Such provisionsare more explicitthan those in the constitutions of Brazil and Uruguay.7
The Spanish law of nationalityis givena constitutionalfoundationby the
provisionsofArticles23 and 24. The followingare declaredto be Spaniards:
a person born in Spain or abroad of a Spanish fatheror mother;a person
born on Spanish territoryof alien parents,if he opts fora Spanish nationality accordingto the formrequiredby law; a personborn in Spain of un-

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

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LAW

knownparents; naturalizedaliens, and even unnaturalizedaliens who have

acquired the droitde domicilein any part of Spanish territoryin accordance
withthe conditionsprescribedby law. An alien woman marryinga Spaniard may retainher nationalityor acquire that of her husband accordingto
with
her own previousoption,whichwillbe prescribedby law in conformity
internationaltreaties. This provisionis badly drafted,forof course it can
operate only as to Spanish nationality. The acquisitionof Spanish nationality by personsof Spanish originresidingabroad is to be governedby law.
Spanish nationalityis lost by enlistmentin the militaryserviceof another
state withoutauthorization,or by entryinto a serviceofanothergovernment
which involves the exerciseof authorityor jurisdiction. It is lost also by
voluntarynaturalizationabroad, withthe followingqualification:on condition of effectivereciprocityand in accordance withconditionsto be fixedby
law, citizenshipwillbe accordedto nationalsofPortugaland ofLatin Amerion theirrequest,withoutinvolvinga
can States residingin Spanish territory
loss of theircitizenshipof origin;and Spaniards may be naturalizedin these
countrieswithoutlosingtheirSpanish nationality,if theirlaws do not prohibit it, even thoughreciprocityis not recognized. Legislation concerning
the acquisition and loss of nationalityfallswithinthe exclusivecompetence
of the state, as distinguishedfromthe local governments(Article14).
The recent constitutionsof European states indicate a generaltendency
toward imitation,and it is to be hoped that some of the provisionsin the
Spanish Constitutionrelatingto internationalaffairswill serve as a model
forfutureconstitutionsof othercountries.
MANLEY 0. HUDSON
THE EFFECT

OF WAR ON THE TREATY

OF

1828 WITH

PRUSSIA

The United States Court of Claims in a recentdecision' has settledthree

of opinionamong lawquestions whichhave been the occasion of differences
yers: (a) whetherthe treatyof 1828 betweenthe United States and Prussia
became applicable to all ofGermanyafter1871,whenthe GermanReich was
tonnage taxes acformed; (b) whetherthe exemptionfromdiscriminatory
corded to Prussian vessels by that treatyand the statute enacted pursuant
thereto,attached after1871 to Germanvessels; and (3) whetherthe treaty
tonnage taxes survived
in its provisionsforexemptionfromdiscriminatory
the outbreak of war betweenthe United States and Germanyon April 6,
1917. The courtansweredthese threequestionsin the affirmative.
On July14, 1919,traderelationsbetweenthe United States and Germany
wererestoredby War Trade Board Regulation (Bulletin802). Beginningin
November, 1919, a few German ships, under 1600 tons, enteredAmerican
tonportsand were grantedthe century-oldexemptionfromdiscriminatory
nage taxes until December, 1920. At that date, the collectorsof customs
1Flensburger
v. UnitedStates,decidedFeb. 8, 1932,thisJOIJRNAL,
Dampfercompagnie
denied52 Sup. Ct. 645 (1932).
Vol. 26 (1932),p. 618, certiorari

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