Allgemein

Tratado Y Agreement

We believe that, in the context of a theoretical debate, it can be accepted that the name chosen by the law, which refers to such agreements, is not optimal.131 Of course, the reference to the nature of the agreement and its characterization as an International does not appear to be a difficulty given the agreement of the underlying wills and their essential international dimension. However, with respect to impact, the reference to their non-regulatory nature can indeed be considered questionable. However, since this reflection can be accepted, the real problem arises when trying to find an alternative to that used by the law to an issue on which there is no consensus132, since the Council of State does not set out in its proposed opinion and the doctrine is far from offering a sufficiently consolidated name. The concept of political agreements could be considered, but we do not think it is relevant because, although the common characteristic of many of them is the desire to make purely political statements, there are many other agreements of this type that have, for example, technical or logistical content. It is equally unsatisfactory, insufficient, to reconnect with the „gentlemen`s agreements“ that are linked to the people who approve them, to de facto agreements or to informal agreements that are excessively indeterminate. Nor does it seem satisfactory to adopt the most common terminology used in practice, MOUs, since the use of the original term in a language other than Spanish (of Understanding) does not seem desirable and that, furthermore, in international practice, under the name of MOUs, which can be characterized as declarations of intent, there are legal instruments of an extremely different nature13. Finally, non-elegimating international agreements could be chosen as a clearer nominal alternative. However, we believe that this option is also not appropriate, as it does not seem appropriate to characterize the absence of legal obligations in the text in question as legal non-declaration, since the legality of a legislative act cannot be directly identified by the presentation of legally enforceable obligations.