RELATIONSHIP BETWEEN THE

INTERNATIONAL LAW SOURCES

(NORMS AND TREATIES)
AND THE SPANISH LAW
IN CASE OF CONFLICTING NORMS

MARTA RODRÍGUEZ-MARAÑÓN GARCÍA-CORONA

 INDEX
1. Concept and introduction to Norms and Treaties
- Norms
- Treaties
- Most important treaties
- The role of the United Nations
2. Procedures and rules between conflicting norms
- “Renvoi” concept
- Implementation of conflict of law rules
- Exceptions to the normal applications of Conflict of
Law Rules
- Proof of foreign law
- Bilateral and unilateral system
- Primacy of EU law
- Fields of application
 CONCEPT AND INTRODUCTION TO NORMS AND TREATIES
NORMS
The first step to fully understand the procedures and rules that will apply in case of
conflicting norms between national and international law sources, is to understand
the concepts in discussion.
What does “norm” mean? How many different of norms are there? How binding they
are to the national’s law order? What about treaties? What kind of obligation do they
compose? What types of treaties can we expect to encounter? Summing up, what are
this law sources all about and what do they implicate?
When we talk about norms, we are making reference to shared expectations about
what constitutes appropriate behaviour held by a community of actors. Norms can
form at the international, regional, state, or sub-state level and attempt to guide
desirable behaviour.
While International Norms, are widely shared expectations about what constitutes
appropriate behaviour among governments and certain non-state actors at the
international level. Non-binding frameworks, such as voluntary codes of conduct or
conventions, sometimes set the scene for more formal, binding agreements.
International legal norms on the other hand, generally referred to as international law,
are binding on actors and typically formalized in written agreement, particularly
treaties.
These mentioned actors are known as “Norm Entrepreneurs”, who leverage the
reputational sensitivity among states and other entities to develop and lobby for
norms. Many norm entrepreneurs seek to encode norms in legal instruments to
improve and broaden compliance.
The norms of state sovereignty and inviolability of borders made the UN study more
widely international norm-building efforts since the end of World War II.
The adoption of the UN Charter following the end of this war, set in motion a great
expansion in economic, security, and human rights norm-setting and codification of
legal agreements.
 Charter: This term is used for particularly formal and solemn instruments, such
as the constituent treaty of an international organization. It has an emotive
content that goes back to the Magna Carta of 1215.

Western democracies led the establishment of international institutions, alliances, and

norms of behaviour in diverse areas such as collective security, individual civil and
political rights, financial systems and conduct.
Many security norms were designed to prohibit the most destructive behaviours that
contributed to the two world wars. Just like, the nuclear non-proliferation regime or
the norm against acquiring new territories / resources by force. All of these were
developed to contain or evade the acquisition of nuclear weapons and the aggressive
territorial expansion.
TREATIES
Treaties (also called covenants, protocols, acquis, conventions, pacts or charters)
are binding agreements between nations and/or International Organizations which
become part of international law, becoming one of its primary sources.
More specifically, “The 1969 Vienna Convention” defines a treaty as “an international
agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation”.
Conventional International law is based on consent of state parties and as such the
treaty applies only between those parties. Treaties only bind non-parties when they
form the basis for customary international law.
Customary International Law is formed when states consistently act in a certain way
(state practice) out of a sense of legal obligation (opinio juris).
 State practice includes domestic legislation, regulations, treaties, judicial
decisions, diplomatic communications, non-governmental organisations
(NGO) and intergovernmental organisations (IGO) practice.

We can differentiate between, bilateral treaties, concluded between two states or

entities; and multilateral treaties, which are concluded among several countries,
establishing rights and obligations between each party and every other party.

THE 5 MOST IMPORTANT TREATIES IN WORLD HISTORY:

1. Treaty of Tordesillas (1494)
2. The Peace of Westphalia (1648)
3. The Treaty of Paris (1783)
4. The Congress of Vienna (1814–1815)
5. Treaty of Versailles (1919)
SPAIN’S MOST RECENT INTERNATIONAL TREATIES:
1. Association agreement between Ukraine and the European Union (2014)
2. Córdoba Agreement (2006)
3. Treaty of friendship and cooperation between Spain and Portugal (2021)
4. Treaty of Lisbon (2009)
5. “Pacto Ibérico” (2007)
ROLE OF THE UNITED NATIONS
The United Nations has extensive power to convene states to enact large-scale
multilateral treaties and has experience doing so. Also, under the United Nations
Charter, which is itself a treaty, treaties must be registered with the UN to be invoked
before it, or enforced in its judiciary organ, the International Court of Justice. This was
done to prevent the practice of secret treaties.
 PROCEDURES AND RULES BETWEEN CONFLICTING NORMS
In a world which now a days is governed by globalisation, where international
agreements, cooperation or, unfortunately, war conflicts between multiple countries
seem to be the news of our daily basis, it is not hard to believe that international
norms and treaties grow in such a speed and try to cover as much casuistry as it can
be possibly imagined.
Of course, the same strategy will be followed by each individual country, entity or
organisation, where each one of them will develop all kind of legal procedures,
national norms and laws to encompass said situations and protect themselves legally.
Due to this fact, is common to encounter a circumstance where two or more of these
regulations find themselves in conflict by covering the same issue but offering
different approaches or solutions. So, that is why these cases are expected and
consequently accompanied by a way of solving the approach.
“RENVOI” CONCEPT
First and foremost, there is a concept that must be understood before trying to
comprehend this disharmony on the legal interface.
In conflict of laws, the Doctrine of Renvoi is the process by which the Court adopts the
rules of a foreign jurisdiction with respect to any conflict of laws that arises. The idea
behind this doctrine is to prevent forum shopping and the same law is applied to
achieve the same outcome regardless of where the case is actually dealt with.
IMPLEMENTATION OF CONFLICT OF LAW RULES
The judge is obligated to apply conflict of law rules on his own initiative.
Article 12.6 of the Civil Code, establishes that courts and authorities shall apply ex
officio the conflict-of-law rules in Spanish Law.
Article 12.2 of the Civil Code, states that reference to foreign law is deemed to be to
its substantive law, irrespective of the renvoi that its conflict rules make to another law
that is not Spanish law. This implies that only first-degree renvoi is accepted.

When an EU Regulation or International Convention is applicable, the special rules of

these instruments relating to renvoi will apply.

EXCEPTIONS TO THE NORMAL APPLICATIONS OF CONFLICT OF LAW RULES

Article 12.3 of the Civil Code, states that in no case will the foreign law apply if it is
contrary to public policy. Hence, application of the foreign law is ruled out if it leads
to a result that is in clear breach of the basic principles of Spanish law. Constitutionally
recognised principles are considered to be essential.
PROOF OF FOREIGN LAW

The content and validity of the foreign law must be proved by the parties, and the
court can check this by any means that it considers necessary for its application. The
system is a mixed one combining the principle of submission of pleadings and
examination only upon application by the party with the possibility of the court
cooperating in carrying out checks. In exceptional cases where the content of the
foreign law cannot be proved, Spanish law will apply.

BILATERAL AND UNILATERAL SYSTEM

The rules of Private International Law in the strict sense (rules of conflict of laws)
indicate which legal system should be applied to resolve private situations related to
more than one legal system. The applicable legal system can be the national legal
system (lex fori), or it can be a foreign legal system.

A rule of conflict of laws is called "unilateral" when it establishes that the national legal
system (lex fori) is the one that must be applied to resolve the situations that fall within
its assumption of fact.

If the connecting factors of a conflict of law rule allows the possibility of applying a
foreign legal system, that rule is called "bilateral." Bilateral conflict rules require that, if
their connecting factors refer to a circumstance that occurs abroad, the foreign legal
system in question shall apply. However, the effective application of the foreign legal
system, has to be in accordance with certain circumstances:

- It cannot go against the legal international public order of the country.

- It cannot imply fraud to the law.
- It cannot go against necessary or imperative application regulations
(police regulations).

If foreign international law is consistent with these circumstances, it must be applied,

despite the resistance that this may produce among national legal operators.
PRIMACY OF EU LAW

The principle of the primacy / precedence / supremacy of European Union law is

based on the idea that where a conflict arises between an aspect of EU law and an
aspect of law in an EU Member State (Spanish law in this case), EU law will prevail.

If this were not the case, Member States could simply allow their national laws to take
precedence over primary or secondary EU legislation, and the pursuit of European
Union policies would become unworkable.

The principle of the primacy of EU law has developed over time and, although not
enshrined in the EU treaties, there is a brief declaration in the Treaty of Lisbon.

The Court of Justice declared that the laws adopted by European Union institutions
were capable of creating legal rights which could be enforced by natural and legal
persons before the courts of the Member States. EU law therefore has direct effect.

Regarding this “direct effect” principle, The Court of Justice further built on it and
resumed that the aims of the treaties would be undermined if EU law could be made
subordinate to national law. As Spain transferred certain powers to the EU, it limited
its sovereign rights, and thus in order for EU norms to be effective Spain must take
precedence over any provision of national law, including constitutions.

The principle of primacy therefore seeks to ensure that people are uniformly
protected by an EU law across all EU territories.

FIELDS OF APLICATION

It should be noted that the primacy of EU law only applies where Member States have
ceded sovereignty to the European Union.

Applicable in fields such as the single market, environment, transport… However, it

does not apply in areas such as education, culture or tourism.