Political Situation of Spain Before the Constitutional System

In order to able to understand Basque paradiplomatic action, we need to highlight its background. The main points to analyse in a democratic, and Constitutionally bound and protected, country as it is Spain are the laws and articles that permit and ensure the international relations of Autonomic governments such as the Basque Government. But before that, it is convenient to shortly remind the political situation of Spain before the Constitutional system, and the creation of it, which has led us to the current legal background (Castro & Ugalde, 2004).

Back in the dates when the first records were made in this matter, the Basque Government was in a very different political and legal situation than it is now. In the 1930s, Spain entered a decade of division and war. On 17th July 1936, the Spanish Civil War started and approximately one year later, the President of the Basque Government went into exile after the bombings of Durango, Gernika, and the fall of Bilbao. In April 1939, the Spanish Civil War ended by the victory of the Nationalists, giving place to the establishment of the dictatorship of Franco, that would last until his death in 1975. It is not needed to say that, in that situation, with a government in exile and no broadcast for a safe return to the Basque Country, the Basque Government had to improvise a new organization of their relations from abroad. Having explained the general situation of the first years of paradiplomacy, the specific whereabouts will be explained in Chapter III.

The starting point for the analysis of the legal framework in which to insert the Basque external action is the so-called block of constitutionality, that is the Spanish Constitution, the jurisprudence of the Constitutional Court of Spain on this matter and the Statute of Autonomy of the Basque Country. The immediate question that arises when we face up to this issue is the following: do Autonomous Communities, and among them, the Autonomous Community of the Basque Country, have the legal and political possibilities to develop an external action according to the Constitutional framework in force in Spain?

Although the Spanish Constitution does not contain any provision permitting the conclusion of Treaties by the Autonomous Communities, or doesn’t even expressly refer to the possibility of external activity by them, the practice of autonomous action abroad has been ‘making the road by walking’ in such a way that, thanks to a progressively favourable interpretation of the Spanish Constitutional Court, it nowadays exists a certain recognition of the international action of the Autonomous Communities, a kind of progressive acceptance of a certain ius contrahendi of it, although with certain limitations and restrictions. We will, little by little, see more of how things got to this situation and some of the most notable controversies.

As a result of a surprising anachronism and reflecting a conception of international relations, at the very least, inadequate to the current reality, the constituent Spanish attributed to the State the exclusive competence in the field of ‘international relations’ in article 149.1.3 of the Spanish Constitution, according to which ‘the State has exclusive competence over the following matters: (…) 3. international relations (…)’. The interpretation of this article has evolved over time, from a consideration exclusive of any external action of the Autonomous Communities to understand that, in accordance with the aforementioned article, the international relations were exclusive competence of the State, understanding it as a unity in their conception and composition, to positions more nuanced and, more recently, are favourable even to certain external action of the Autonomous Communities.

As we have just seen, the Spanish Constitution made in this article 149.1.3 a reservation of powers in the field of international relations exclusively in favour of the State —its central organs—; but without defining what should be understood by the term ‘international Relations’. This lack of accuracy led to intense and extensive doctrinal and political debate, now fixed in the terms expressed here and sanctioned in the same direction, only after going through a tortuous path, by the Spanish Constitutional Court in various judgments. Indeed, in the absence of an accurate delineation on the constitutional text, it has been the High Court, through its jurisprudence, who has been staking out some areas of external action and regional levels, as we will see below. Now we will focus on the doctrinal debate that has long encouraged this practice, since its inception.

The disputes regarding to the scope of the term ‘international relations’ arise from the moment that, throughout the constitutional text, and even within the same article 149.1, a variety of “international” subjects appear explicitly mentioned. Of course, if the reservation in article 149.1.3 is referring to all external actions possible in international relations, it would not have been necessary to explicitly mention matters regarding external action or specific dimensions of what is “international” in other parts of the law . The criticism towards that lack of precision from the constituent is more than justified as it is probably not due to an oversight or a mistake, but an act of deliberate inaccuracy.

This emerges from the discussion around the draft of the current Constitution. In that text, the article that should refer to this matter (in particular article 138.3 of the draft of the Constitution, antecedent to the 149.1.3 of the current Constitution) was much more explicit in its formulation, attributing to the State as exclusive competences the “international relations, diplomatic and consular representation, and in general, abroad, the conclusion of treaties and the monitoring compliance of the international obligations arising out of them”. Regarding this article draft, the Basque and Catalan Groups presented amendments that were rejected in the Committee, so they were not even to be discussed in the Plenary.

The amendment of the Catalan Group proposed to limit the exclusive competence of the State to ‘the relations between the State and the International Community and the diplomatic and consular representation’. The amendment of the Basque Group was clearly extensive as to applying for the possibility of concluding international agreements. In particular, the amendment of the Basque was intended to add to the proposed text as seen previously, the following paragraph: ‘(…) without prejudice to the fact that in those matters which fall within the scope of the regulatory power of the autonomous territories they may enter into agreements with the consent of the Government of the State.’ In the case of adoption of this text, it would have been recognised explicitly in the Constitution a certain autonomic ius contrahendi, preventing, in addition, the State’s assumption of external powers conferred on an internal level to the Autonomous Communities; and on the other hand, it would have saved many debates and discussions about the content of the term ‘international relations’ referred to in article 149.1.3.

The “hard core” of the international relations attributed exclusively to the central powers of the State can be divided into four aspects: ius ad tractatum or the possibility of adopting international agreements subject to the discipline of international law and generating legally enforceable rights and obligations; direction of foreign policy (mentally founded by referring to the most ‘hard’ aspects of it: declaring war and making peace, recognizing foreign governments and states, as well as the conclusion of international treaties); ius legationis or monopoly of the representative function of the State both as regards passive and active legation; and international responsibility (let us not forget that only the State is responsible for an international wrongdoing, regardless of the body that commits such an infringement).

The advantage of ‘hard core theory’ is evident, since by differentiating ‘international relations’ themselves from the broader and indeterminate ‘external scope’, autonomous action in this area can be justified and the Spanish Constitution with multiple clauses of the Statutes of Autonomy in favour of its external action.

In distinguishing the hard core of international relations from activities of international relevance, the former judge of the Constitutional Court Julio GONZÁLEZ CAMPOS, restraining the distribution of powers expressed in the Constitution and the Statutes of Autonomy, proposes to exclude from the scope of ‘international relations’ referred to in Article 149.1.3 the agreements of the Autonomous Communities with foreign bodies under public law, undertakings or individuals concluded in order to promote interests not subject to international law, carried out in the field of international procurement; as well as joint communiqués, declarations of intent, etc. which do not have mandatory legal content for the Autonomous Community which subscribes to it. In short, according to the hard-core theory explained above, the Autonomous Communities will be able to develop intense external action, including the conclusion of agreements with territorial communities and/or political powers, provided that they do not are governed by international law.

Even, as Jose Manuel SOBRINO states, we think that there could be some autonomous participation in the ‘hard core’ of international relations in very specific cases, ‘through a law of delegation, this is of an organic transfer law in the sense Article 150.2 of the Constitution, which provides that ‘the State may transfer or delegate to the Autonomous Communities, by organic law, powers relating to State ownership which by their very nature are capable of transfer or delegation’. Finally, it is also perfectly lawful — even necessary in some situations — for the Autonomous Communities to participate in the processes of negotiating international treaties by the State, as well as adopting resolutions of the different International organizations, provided that, on account of the matter, they affect their competences and interests.

Having analysed the possibilities afforded by the articulation of the Constitution for external action, it is now necessary to see how the Statute of Autonomy of the Basque Country regulates this matter.

As we have seen in the previous heading, the Spanish Constitution does not allow the Autonomous Communities to conclude legally binding international treaties because this is a State-reserved area in accordance with Article 149.1.3; but this does not mean, on the contrary, that the Statutes of Autonomy do not include clauses to participate in the process of concluding international treaties by the State, in particular where they may affect their competences Autonomic. In particular, there are four main modalities for participation in the upward phase or the conclusion of international treaties:

Appeal or instance to the Government of the State to conclude international treaties in matters of interest to the autonomous Community. This is a possibility that the Autonomous Communities have not used very often; it has been more common for the Autonomous Communities to have directly signed agreements with foreign entities in matters of common interest than the use of the State to sign an international treaty in this area;

Request for information by the Autonomous Communities from the Government of the State on international treaties and ongoing negotiations on those Treaties affecting the specific competences and interests of the Autonomous Community(s) that it’s about. The element of weakness of this power is the fact that, in general, it does not specify the specific time at which the State Government is to inform the autonomous Communities; obviously it cannot have the same effect of reporting when the negotiation of the Treaty has already concluded and the autonomous opinion can no longer be taken into account, than in previous stages of negotiation and discussion of it. Some authors interpret that non-information by the State to the Autonomous Communities could affect the validity of the Treaties, and may in that case undertake the corresponding appeals of unconstitutionality (although as in the previous case, the State Government is not bound by the views that may be issued by the different Autonomous Communities);

Right of hearing to enable the Autonomous Community to express its opinion in formulating the State position to be defended by State negotiators in the course of international negotiations; Right to participate directly in the negotiations within the State delegation (a widely demanded possibility, as we will see in the relevant chapter, within the European Union, specifically in the Council of Ministers).

The first two possibilities (urging the negotiation of a Treaty and receiving information on the process of concluding Treaties by the State) are the ones most frequently found in the articulation of the different Statutes of Autonomy.

Furthermore, as regards the downward or implementation phase of the Treaties already concluded by the State, different Statutes include in their texts the adoption of measures for the implementation of the Treaties and international conventions in aspects affecting their Competences. The adoption of these clauses is justified as a logical consequence of the allocation of powers. In the specific case of the Statute of Autonomy of the Basque Country, we find three cases of external action of the Basque Autonomous Community: