Internal procedure to ratify treaties in Peru

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Written Report Nº 2 for the E-Course on the Law of Treaties. Submitted to UNITAR on April 9th, 2011.

The internal procedure in Peru to ratify an international treaty is ruled by the 1993 Political Constitution (arts. 55 to 57), the Procedure on Treaties Act Nº 26647, and certain rules on the Standing Rules of Congress.

Peru has adopted a double procedure to ratify treaties. In some cases, the treaties must receive the Congress´s approval (through a “legislative resolution”), before the presidential ratification (through a “supreme decree”); and in other cases, the legislative approval is not needed, and the President directly ratify them.

The first procedure is called “complex”, due to the participation of the Congress. The Constitution (art. 56) states that certain kinds of treaties need the approval of the Parliament. The criteria established is the subject matter of the treaty. If a treaty contains provisions about human rights, national defense, sovereignty, financial obligations, taxes, or requires an internal implementation by legislative acts, its ratification must be carried out in accordance to this complex procedure.

The latter is called “simplified” and consists in the direct ratification by the President (art. 57, paragraph 1). This procedure should be carried out when the treaties don´t contain the provisions about the subject matters aforementioned. But even when not a requirement is the Congress´s approvals before the ratification, the Congress perform a “monitoring procedure” on the Presidential ratification, in order to verify that the constitutional mandate has been respected (art. 92 of the Standing Rules of the Congress).

Also there is a variation of the complex procedure (art. 57, paragraph 2) that hasn´t never been carried out. When a treaty contains provisions against constitutional stipulations, the approval by the Congress must be carried out according to the Constitution Amendment Procedure (art. 206: approved –by a qualified majority- in two consecutive terms by the Congress or by a referendum) and then the internal ratification by the President.

The Treaty Section of the Peruvian Ministry of Foreign Affairs carries out this procedure. Its main purpose is to qualify a treaty to establish the procedure that a treaty must follow to get the constitutional authorization to conclude the treaty at an international level.

The approval of a treaty by the Congress does not always imply an immediate internal ratification. It may depend on political considerations. In the other hand, if the Congress disapproves a treaty, the President cannot continue with its ratification, and in this case, he must inform the situation to their counterparts.

Once a treaty is ratify by the President, the Treaty Section is able to draw the ratification or accession instrument to exchange it –in case of bilateral treaties-, or deposit it in posses of the Depositary of the treaty –in case of multilateral treaties-.

The most important stage of this internal procedure is, of course, the publication of the treaty in the Official Gazette, and the day of its entry in force, due to the principle of publicity of norms.

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Autor: Luis Enrique Gamero Urmeneta

Abogado especializado en Derecho Internacional, Derecho de los Tratados y Derecho Constitucional.

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