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Domestic Regulation of International Treaties in Romania:

Constitution of Romania and Law 590/ 2003 Concerning Treaties

Nicusor-Sever-Cosmin (Nick) FLOREA*

The current paper seeks to offer a comprehensive analysis over the domestic regulation of International Treaties

in the Romanian legal system. I argue that, given its historical and legal evolution, the status of international

treaty has undergone major changes during the past 25 years, culminating with a fully-fledged statute

regulating every aspect related to international treaty negotiation, signature, ratification, entry into force and

termination. The article explains the legal procedures related to each of these respects in detail, while, at times,

presenting relevant opinions of Romanian doctrine into the matter. Certain particularities provided by either its

legal evolution or the semi-presidential nature of Romania’s political regime have been emphasized at times. The

paper, however, seeks to precisely define and explain the substantive laws related to the subject matter, leaving

the observance of structural norms open for further debate.

KEY WORDS: International Law • Treaties • Romania • Treaty Law

1. GENERAL OUTLOOK

During the past 50 years, Romania went through a series of radical changes regarding its position as a

member of the international arena. Romania’s dramatic shift is more complex than the passage from the Pact

of Warsaw to the North-Atlantic Treaty Organization (NATO); it involves a constant – yet somehow surprising

– passage from a Soviet-satellite country to a socialist country following an independent line in foreign policy,

not aligned to USSR (as well as People’s Republic of China and Socialist Federal Republic of Yugoslavia)1 and

later following a pro-Western line, marked by her accession to NATO in 2004 and the European Union (EU)

since the beginning of 2007.

The change of regime in the early 90s found Romania unprepared for the internal handling and

regulations of International Treaties. On January 11th, 1991, the Romanian Parliament adopted the Law No. 4

Concerning the Conclusion and Ratification of Treaties2 consisting of only 11 articles and leaving many

potential loopholes unresolved. For instance, there was no definition of treaties, concluding treaties or letters

of full powers. Furthermore, the Law did not particularly define which treaties could be concluded by

President and which by the Government of governmental departments. Also, no provisions dealt with the

* PhD Candidate, School of International Law, China University of Political Science and Law; Master of Economics, School of Economics, Capital

University of Economics and Business (2009-2011); Bachelor of Arts, Faculty of Political Science, University of Bucharest (2005-2009); Erasmus Scholar, University of Florence, Italy (2006-2007); Dharmasiswa Scholar, National University, Indonesia (2007-2008). (e-mail: [email protected]) 1 For further information on Romania’s independent line see Robert WEINER, Romania and International Law at the United Nations, The International and Comparative law Quarterly, Vol. 32, No. 4, Cambridge University Press, 1983, pp. 1026-1034 Also J.P. JAIN, Romania: A Case Study in Non-Conformity, The Indian Journal of Political Science, Vol. 36, No. 1, Indian Political Science Association, 1975, pp. 39-62 2 Law No. 4 of January 11, 1991 Concerning the Conclusion and Ratification of Treaties, published in the Official Gazette No. 5 of January 12, 1991


registration of the treaties at the United Nations Secretariat. However Law No. 4 defined which Treaties3 shall

be ratified by the Parliament and which shall be concluded in simplified form.

Currently, the procedure concerning the conclusion of Treaties as well as the specific attributes of the

parties involved in the process of negotiating, signing, initialing4, ratifying, publishing and registering of the

treaties are mainly defined within the following regulations:

- The Constitution of Romania5;

- Law No. 590/ 2003 Concerning Treaties6.

However, the above regulations do not apply in the following cases:

- Technical cooperation agreements with foreign military forces7;

- State Contracts8.

According to Art. 1, let. o) of Law 590, a state contract is “…an agreement concluded by the Romanian

State or Government, as well as ministries and other central public administration authorities with another state,

government, international organization or with financial institutions or other entities that have no standing in

international law in economic, commercial, financial field and in other areas which are not governed by the

international public law.”

2. CONSTITUTIONAL PROVISIONS

Concerning the international relations of Romania, the Constitution provides that the country maintains

and develops peaceful relations with all the States, based on the principles and other customary norms

admitted by the International Law9. Concerning the relation between International and Domestic Law, the

State of Romania commits itself to precisely and in good faith fulfill all the obligations resulting from the

Treaties which Romania is part of10. The treaties ratified by the Parliament become part of the Domestic

Law11, which places Romania in the category of the monistic states. However, no reference is given to “jus

cogens”, which makes Romania ambivalent in the sense that it could be considered party monistic and partly

3 I use the generic nomination of “Treaty” to define multiple forms of international agreements such as Treaties, Agreements, Simplified form Agreements, Conventions, etc. Where shall it be deemed necessary, I will particularly emphasize the form of international agreement under discussion. 4 Orig. “parafarea” (my transl.) 5 The Constitution of Romania was initially adopted during the meeting of the Constitutional Assembly of November 21, 1991 and published in the Official Gazette No. 233 of November 21, 1991 and entered into force by referendum on December 8, 1991. The Constitution was later revised and approved through referendum on October 18-19, 2003 to come into force on October 29, 2003. The revised version has been published in the Official Gazette No. 758 of October 29, 2003. 6 Hereby Law No. 590. Law 590 was adopted on December 22, 2003 and published in the Official Gazette No. 23 of January 12, 2004. Law 590 entered into force on February 11, 2004. 7 See Law 590 (art. 43). The Technical Cooperation Agreements with Foreign Military Forces should be regulated by a Governmental Decision (“Hotarare Guvernamentala”, my transl.). Given the restricted space available here as well as the specificity of the topic approached, i.e. International Treaties regulations within the Romanian national law, this paper will not deal with the subject matter of military agreements. However, a further paper detailing the appropriate procedures will be considered by the author. 8 Law 590 (art. 44) 9 Constitution of Romania (art. 10) 10 Ibid. (art. 11, par. 1) 11 Ibid. (art. 11, par. 2)


dualistic. Shall an International Treaty comprise provisions contrary to the Constitution of Romania, its

ratification shall occur only after revising the Constitution1213.

The President of Romania is invested with the main attributions in the carriage of foreign policy, namely

concluding treaties on behalf of Romania14 and submitting them to the Parliament for ratification “within a

reasonable time” (“intr-un termen rezonabil”, my transl.)15. The Constitutional provisions also leave room for

other treaties to be concluded without the participation of the President mentioning “The other treaties and

international agreements shall be concluded, approved or ratified according to the provisions of the law.” (my

transl.)16 The Constitution also reserves the right for the President to accredit and recall diplomatic

representatives as well as to receive foreign diplomatic representatives. The President may establish, close or

change the rank of the country’s diplomatic missions17.

3. LAW 590/ 2003 CONCERNING TREATIES

3.1 Legal Definitions

Law 590 comprises 7 sections and 45 articles, regulating the relevant procedures for concluding the

International Treaties as well as delimitating the attributes of the President, Executive and Legislative

concerning the various legal procedures involved in negotiating, signing and entry into force of the

International Treaties which Romania is part of. Though it follows identic structural norms18 with the

previous Law on Concluding Treaties, i.e. Law 4/ 199119, it provides in greater detail the procedures to be

followed leaving significantly less room for interpretation. Unlike the previous law regulating the

International Treaties concluded by Romania, Law 590 provides relevant definitions for terms such as

“treaty”, “ratification”, “reservation”, etc. “Treaty”, for instance, is defined as “…the legal act, regardless the

nomination or form, which records in written form an agreement in written form at state, governmental or

departmental level, aiming to create, modify or terminate rights or legal obligations or of other nature, governed

by public international law and recorded in a single instrument or in two or more related instruments…(my

transl.)”20. It worth noting that such a definition implicitly excludes the possibility that a “gentlemen’s

agreement” may be recognized by the State of Romania as a treaty. The treaties shall be concluded “in

accordance with the fundamental principles and other imperative norms of international law, European law,

international customary rules, the Romanian Constitution, (and) in accordance with the current law.” (my

12 Ibid. (art. 11, par. 3) 13 According to Constantinescu, Iorgovan & al., one of the reasons for revising the Romanian Constitution in 2003 was the foreseeable accession of Romania to NATO and EU and therefore the necessity to add provisions related to the “Integration into the European Union” and “NATO Accession”. For instance, Art. 16 (par. 4) provided that EU citizens who meet the conditions provided by the Organic Laws have the right to elect and be elected in the local administration. For further details, see Mihai CONSTANTINESCU, Antonie IORGOVAN, Ioan MURARU, , Elena Simina TANASESCU & al., Constituția României revizuită. Comentarii și explicații (The Revised Constitution of Romania. Commentaries and Explanatory Notes, my transl),București, Editura All Beck, 2004, pp. 154-158 14 However they could be negotiated by the Government. 15 Constitution of Romania (art. 91, par. 1) 16 Idem 17 Constitution of Romania (art. 91, par. 2-3) 18 No changes have been operated in the structural norms concerning the attributions of the parties in appointing negotiators, signing or ratifying of the treaties. 19 Supra, p. 1 20 Law 590 (art. 1, let. a)


transl.)21 The treaties may be signed at State, Governmental or Departmental level by State, Government,

Ministries and other authorities of central public administration22. Another feature comprised in the legal

definition of a treaty is the “signature at referendum”, that is an optional stage in the process of concluding

treaties, when a provisory draft of a treaty is signed23. Letter e) delimitates President’s attributions arising

from art. 91 of the Constitution. As shown above, the Constitution provides the President appoints the

diplomatic representatives; however, according to letter e), it is the Ministry of Foreign Affairs who issues the

letter of full powers, bearing the signature of the Minister of Foreign Affairs along with the State Seal of

Romania24. According to art. 17, par. 3, the President of Romania, the Prime Minister and the Minister of

Foreign Affairs may negotiate and sign treaties without presenting the letter of full powers25. Concerning the

ratification process, the Law provides that it could be achieved by either a ratification law issued by the

Parliament or an Emergency Ordinance issued by the Executive, in accordance with the conditions

established by law. According to Law 590, “reservation” shall be understood as “unilateral declaration,

regardless its content or name, made at the time of the signature, ratification, approval, accession or acceptance

of a multilateral treaty, which aims the amendment or exclusion of the legal effects of certain provisions thereof

for the Romanian party, shall the treaty do not prohibit such reservations and shall they be consistent with

international law; to produce effects, reservations expressed at the moment of signature must be confirmed upon

the ratification or approval. (my transl.)”26 Consequently, by “declaration” shall be understood any “mention

made at the time of signature, ratification, approval, accession or acceptance of a multilateral treaty, which

interprets certain provisions of the treaty according to the Romanian party or through which the Romanian side

operates the notifications required by the Treaty; statements made at the moment of signature must be

confirmed upon ratification or approval. (my transl.)”27 Finally, Law 590 defines “termination, cessation,

withdrawal” as “the unilateral instrument by which the Romanian party manifests its will not be bound by the

treaty, in accordance with international law”28.

It shall be noted that Romania is not part29 of the Vienna Convention of 1969 and some Romanian

authors30 consider its rules as having a rather suppletive value, as the Convention generally offers

alternatives to its provisions. In the end of certain articles, after a rule is provided regarding a certain stage of

concluding a treaty, it is added “unless the treaty otherwise provides”31. This has generated the belief that the

procedure of concluding treaties is dominated by the “full autonomy of the parties” or so-called “freedom of

forms”32.

21 Ibid. (art. 2, par. b) 22 Ibid. (art. 2, par. a) 23 Ibid. (art. 1, let. d) 24 Ibid. (art. 1, let. e) 25 Ibid. (art. 17, par. 3) 26 Ibid. (art. 1, let. j) 27 Ibid. (art. 1, let. k) 28 Ibid. (art. 1, let. n) 29 Romania did not sign the Vienna Convention on the Law of Treaties (1969) 30 See Raluca MIGA BESTELIU, Drept international (International Law, my transl.), ALL, Bucuresti, 1999 31 See Vienna Convention on the Law of Treaties (1969), art. 16, 20 (4) (5), 22 (1) (2) (3), 24 (3), 25 (2), 36 (1), 40 (1), 44 (1), etc. 32 For a more in-depth discussion on the Romanian doctrine and the “full autonomy of the parties” see MIGA BESTELIU, op. cit., pp. 138-142


3.2 Initiating Negotiations

The provisions for initiating negotiations vary according to the level they are carried out. For State-level

negotiations, the Ministry of Foreign Affairs, along with other relevant departments, shall there be the case, is

responsible to draft a memorandum to be presented and approved by the relevant ministries and assumed by

the Romanian Government – through Prime Minister’s signature – and the President of Romania. In certain

cases, where the approval of the Supreme State Defense Council is needed33, the President’s approval shall be

issued upon the approval of the Supreme State Defense Council. In the cases where an agreement regards

technical aspects of collaboration with international financial institutions, the Ministry of Foreign Affairs will

only approve the initiation of the negotiations34.

Concerning the governmental or departmental level negotiations, it becomes the responsibility of the

interested party, be it a ministry or a central public administration authority, to draft the memorandum,

which, in turn, will be approved by the Ministry of Foreign Affairs and all the other relevant ministries.

President’s signature is unnecessary for governmental or departmental level negotiations. However, shall the

object of negotiations need the approval of the Supreme State Defense Council, President’s approval will be

granted not as President of Romania but as President of the Supreme State Defense Council35.

In both cases, the approval shall be given with or without remarks or proposals or shall be refused

within no more than 7 days upon receiving. Shall the remarks remain divergent upon further consultations of

the interested domestic parties, the Law provides to be presented and solved during the Governmental

meeting36.

Such a memorandum, in either state, governmental or departmental level negotiations, shall contain

references to:

- The object of the treaty;

- The necessity of concluding the respective treaty;

- The finality and implications of the proposed treaty upon Romania’s previous international

commitments, internal legislation and Constitution, shall there be the case;

- The concrete mandate elements of the Romanian party and various action scenarios;

- The draft/ proposal of the Romanian party, both in Romanian and in the mutually accepted

international language as well as the proposal of the foreign party;

- The Head of the Romanian delegation37.

A distinct chapter of the international treaties signed by Romania is constituted by the treaties signed

between local public authorities from Romania and other states. Under these circumstances, the local public

authorities have the obligation to require the Romanian Ministry of Foreign Affairs an “opinion of

33 Such situations are provided in Law 415 of June 27, 2002 Concerning the Organization and Operation of the Supreme State Defense Council, published in the Official Gazette No. 494 of July 10, 2002 34 Law 590 (art. 3) 35 Ibid. (art. 4, par. 2) 36 Ibid. (art. 6) 37 Ibid. (art. 5, 7)


opportunity”38 before the initiation of negotiations as well as an approval before signing such a treaty39. Such

a treaty may enter into force upon signature and its copies shall be transmitted to the Ministry of Foreign

Affairs within ten days from the signature date40.

3.3 The Conduct of Negotiations

The Conduct of Negotiations is regulated by articles 8-12 of Law 590. According to these provisions, the

negotiations could either be carried through direct negotiations, i.e. the meeting of the delegations of

negotiators, or through correspondence, in accordance with the full powers and elaborated scenarios41. It

shall be noted that, according to old practice, the full powers were limiting the attributions of the delegates,

allowing them to negotiate over the treaty only, needing a different mandate in order to be able to sign the

treaty42. According to Law 590, the negotiated text could only be initialed or signed ad referendum43. That is,

the new Law of Treaties completely eliminates the possibility of signing a Treaty immediately after

negotiations. Within 7 days from the conclusion of the negotiations, a report shall be initiated and approved

by the domestic institutions involved in initiating and conducting the negotiations44. Such a report should

contain the synthesis of the negotiations, the position of the partners of negotiation, the results of the round,

an evaluation of the potential evolutions and prospective proposals regarding the maintenance of

modification of the mandate. The report should clearly state the membership of the Romanian negotiation as

well as the membership of the delegation representing the partner(s) of negotiations45.

In practice, Ecobescu & al.46 note that, especially when the initialing is done by the President, Prime

Minister or the Minister of Foreign Affairs it is often meant to equal a signature in good and due form. De jure,

however, initialing a treaty supposes certifying its text so that it may not be changed.

Initialing accounts for the procedure that ends the negotiations, the initiated text being the conclusion of

the respective negotiations. Between initialing and the date of signature there is a usual period of several

weeks, however longer terms have been noticed in some cases. Nastase & al.47 note that resuming the

negotiation process after initialing or signature ad referendum may have significant political consequences

sometimes. Usually, Nastase concludes48, initialing occurs when governments want to examine a treaty for the

last time before signing it permanently.

38 Orig. “aviz de oportunitate” (my transl.) 39 Law 590 (art. 41, par. 1-3) 40 Ibid. (art. 41, par. 4-5) 41 Ibid. (art. 8) 42 Martian NICIU, Ludovic TAKAS, Drept international public (Public International Law, my transl.), Editura Didactica si Pedagogica, Bucuresti, 1976, p. 235 43 Law 590 (art. 12, par. 2) 44 Ibid. (art. 9, par. 1) 45 Ibid. (art. 9, par. 2) 46 Nicolae ECOBESCU, Victor DUCULESCU, Dreptul tratatelor (Law of Treaties, my transl.), Editura Continent XXI, Bucuresti, 1995, p. 31 47 Adrian NASTASE, Alexandru BOLINTINEANU, Bogdan AURESCU, Drept international contemporan (International Contemporary Law, my transl.), Editura All Beck, Bucuresti, 2000, p. 29 48 Idem


According to Geamanu, initialing means certifying a text resulting and concluding negotiations that

cannot therefore be modified by plenipotentiaries49. The delayed signature, shall there be the case, will be

provided in the treaty, along with setting a deadline for the final signature, usually from 6 to 9 months50. The

break is granted mostly due to the various national provisions requiring domestic approval before the

moment of final signature, according to the legal provisions presented earlier.

3.4 The Approval for Signature of a Treaty and the Full Powers

Upon the conclusion of negotiations, a memorandum will be drafted, following similar procedures with

the memorandums drafted during the period of negotiations. The memorandum shall be, among other

relevant institutions, approved by the Ministry of Justice51 and, shall the specifics of the treaty require it, by

the Supreme State Defense Council52. The responsible structure for approving the content of negotiations

within the Ministry of Justice is the Direction of International Law and treaties; the Direction shares its

responsibilities to three different structures, namely:

a) The Service for Criminal International Legal Cooperation;

b) The Service for Civil and Commercial Legal Cooperation;

c) The Unit for Treaties, International Relations and Liaison Magistrates, particularly responsible for

examining, advising and drafting remarks over the content of the negotiated draft treaties53.

The memorandum to be presented to the relevant institution, the Ministry of Justice included, shall

comprise the following:

- The history of the negotiations under discussion;

- The relevant provisions of the treaty and their potential impact over the previous commitments

assumed by Romania, country’s domestic law or, shall there be the case, Constitution;

- Proposals concerning the name of the person to sign the Treaty;

- The text of the treaty, both in Romanian and in the original language in which it was convened;

- A copy of the memorandum approved for the initiation of negotiations54.

Shall the memorandum receive certain proposals or remarks on behalf of the approving institutions, the

process of negotiations shall be resumed or, depending on each case, a note with the approval of the Ministry

of Foreign Affairs shall be sent to the General Secretariat of the Government, which, in turn, will issue a

disapproval notice or may decide to resume negotiations55.

Romanian Ministry of Foreign Affairs shall only issue the full powers after the approval of negotiations

and only if the negotiation partners require to do so. The letters of full powers will be issued separately for

49 Grigore GEAMANU, Dreptul international contemporan (Contemporary International Law, my transl.), Editura Didactica si Pedagogica, Bucuresti, 1975, p. 115 50 Adrian NASTASE & al., op. cit., p. 31 51 Ibid. (art. 13, par. 2) 52 Ibid. (art. 12, par. 2) 53 For further information over the content of each service, see the website of Romanian Ministry of Justice http://www.just.ro/Sectiuni/Direc%C5%A3ii/Direc%C5%A3iaDreptInterna%C5%A3ional%C5%9FiTratate/tabid/173/Default.aspx, as retrieved on June 6, 2014 54 Law 590 (art. 15) 55 Ibid. (art. 15).


negotiation (post-factum) and for the signature of the treaty56. As shown above57, it is a practice of the

Romanian party not to issue an identical letter of full powers for both negotiation and signature at the same

time.

Though the moment of signature is not particularly addressed in Law 590, it is fully considered in the

Romanian doctrine. From this point of view, Romania adhered to the International diplomatic usages

concerning both bilateral and multilateral treaties. The bilateral treaties would follow the alternative rule and,

as such, each party will bear the first signature on her alternative. The Signature is performed in agreement

with certain procedural rules, expressing the principle of equality among states; for instance when more

plenipotentiaries shall sign a treaty, their signature will be placed face to face, on the left and right side.

Alternative rule applies in the sense that each state's name will be placed first in the alternative original the

respective state will keep58.

In multilateral treaties, signature sequence is generally determined by the alphabetical order of the

member according to the French name of the respective state. The number of the original alternatives will be

equal with the number of the signing states. A treaty between two countries shall be signed in two originals

and each state shall receive one original of the respective Treaty59.

The final signature is granted by either the plenipotentiary who signed ad referendum, or by a new

plenipotentiary. In both cases, the plenipotentiary's full powers should specifically mention his power to

grant the final signature on the text of the treaty60. When the agreement is signed by parties at different times

or different locations the last date of signature is considered the date of entry into force61.

3.5 The Ratification of International Treaties

According to Law 590, ratification is one of the legal processes through which Romania may “express the

consent to become part of the treaty”62 along with “approval, adhesion or acceptance”63. The article perfectly

encompasses Niciu’s view, according to which ratification is “an act marking a State’s sovereignty, of an

internally discretionary status.”64 It becomes therefore the will of any state to ratify a treaty or not, regardless

it was signed or not by its representatives. However, it shall be noted that the necessity of ratifying treaties

has been challenged by some scholars65, especially addressing the United States practice of signing

International Treaties but not ratifying them66.

Exceptionally, Romania may become part of certain treaties without Parliament’s ratification, approval,

adhesion or acceptance, shall the respective treaties comprise of:

56 Ibid. (art. 17) 57 Supra., p. 5 58 Grigore GEAMANU, op. cit., p. 115 59 Ibid., p. 115 60 Idem 61 Shall the respective Treaty not require ratification. 62 Law 590 (art. 18, par. 1) 63 Idem 64 Martian NICIU, Dreptul international public (International Public Law, my transl.), Editura Servosat, Arad, 1997, p. 234 65 See Jeffrey L. ROBERG, The Importance of International Treaties: Is Ratification Necessary?, World Affairs, Vol. 169, No. 4, 2007, World Affairs Institute, pp. 181-186 66 Such as The Vienna Convention on the Law of Treaties (1969).


- Governmental or departmental treaties that are concluded as part of other treaties, already in force,

shall the respective treaties include such provisions;

- Departmental cooperation protocols concluded between the Romanian Ministry of Foreign Affairs

and other countries’ respective ministries;

- Governmental or departmental cooperation programs, in the field of education, culture, sports,

research, shall they apply for a period no longer than five years without automatic extension;

- Treaties regarding non reimbursable financial assistance on behalf of the EU or other EU member

states;

- Non reimbursable financial assistance treaties or any other governmental or departmental technical

agreements requiring financial support from the foreign partner67.

The following categories of treaties shall be submitted to the Parliament for ratification:

- State level treaties, regardless the field of their regulation;

- Governmental treaties related to political cooperation or which involve political commitments;

- Governmental treaties related to military cooperation;

- Governmental treaties related to the territory of the state, including the legal regime of the state, and

the areas on which Romania exercises sovereign rights and jurisdiction;

- Governmental treaties related to the status of persons, fundamental human rights and freedoms;

- Governmental treaties related to the membership in international intergovernmental international

organizations;

- Governmental treaties related to financial commitments requiring additional burden on the state

budget;

- Governmental treaties requiring the adoption of new statues or the amendment of existing statutes

or that expressly require ratification68.

In exceptional situations, defined by art. 19, par. 3 of Law 590, an Emergency Governmental Ordinance

can lead to the ratification of the above mentioned treaties, except for State level treaties. Departmental

treaties as well as any other governmental treaties not listed within art. 19 will be approved by the

government through Governmental Decision.

The ratification, approval, adhesion or acceptance character of the treaties will be provided within a

single article mentioning “hereby ratifies…”, “hereby approves…”, “hereby adheres at…”, “hereby accepts…”

followed by the complete title of the treaty along with the date and location of the signature (for bilateral

treaties), date and location of the place where the treaty became open for signature, the entry into force of the

treaty as well as the time and location at which Romania signed the respective treaty (for multilateral

treaties)69. Shall the treaty be accepted with certain reservations, the respective reservations shall be

reflected in the declarations of the Romanian party and/ or in the provisions of the ratification, approval,

67 Law 590 (art. 26, par. 1) 68 Ibid. (art. 19, par. 1) 69 Ibid. (art. 22, par. 4, let. a-b)


adhesion or acceptation statute70. Shall the provisions of a treaty require the amendment, abrogation or

adoption of new domestic laws, in order to domestically enforce the provisions of the treaty, such provisions

shall only be issued with the ultimate approval of the Ministry of Justice71. Upon ratification, approval,

adhesion or acceptation of a treaty, the statute of its ratification along with the text in Romanian language

shall be published in the Official Gazette of Romania72. However, in exceptional and well justified cases, the

Parliament and Government may decide not to publish the contents of a certain treaty, but send copies of it to

all interested parties73. It shall be noted that, in accordance with Law 52/ 2003 concerning Decisional

Transparency in Public Administration, all the normative projects are to be submitted to public scrutiny by the

respective public institution 30 days in advance of their analysis, approval and adoption74. The international

treaties to be ratified or approved by the Government are presented on the website of the Romanian Ministry

of Foreign Affairs75 while the treaties to be ratified by the parliament are presented on Parliament’s website76.

Exception from publication or public scrutiny will be given for the statutes or meetings regarding national

defense, national security, public order, strategic and political interests, classified information, and certain

technical or economic data that may affect the principle of fair competition as well as personal data77. Also,

according to Law 590, the contents of bilateral agreements cannot be made public until the date of their

publishing in the Official Gazette, except an international commitment in this regard has been assumed78. Also,

the bilateral treaties can be made public prior to their publishing date with the consent of the other

negotiating party as well as President’s approval (for State level treaties), Prime Minister’s approval (for

Government level treaties) or institutional Director’s approval along with the Ministry of Foreign Affairs (for

departmental level treaties)79.

Lastly, though some Romanian scholars have previously considered a tacit ratification of a treaty may

occur when the treaty starts being implemented de facto80, given the provisions of Law 590, it currently

becomes a matter of debate whether such a tacit ratification may be considered.

3.6 The Entry into Force

According to the Romanian law, the treaties shall enter into force at the convened date, as mentioned

within the text of the treaty. Concerning the bilateral treaties, the provisions give room for alternative; for

instance, such a treaty shall enter into force at the convened date, at the time of exchange of the instruments

70 Ibid. (art. 22, par. 5) 71 Ibid. (art. 22, par. 6-9, 12) 72 Ibid. (art. 24, par. 1) 73 Ibid. (art. 24, par. 2) 74 Law No. 52/ 2003 concerning Decisional Transparency in Public Administration (hereby “Law 52”), published in the Official Gazette No. 70 of February 3, 2003 art. 6, par. 1-2 75 See Romanian Ministry of Foreign Affairs website, http://mae.ro/node/2011, as retrieved on June 16, 2014 76 For the statutes under public debate at the level of Chamber of Deputies, see http://www.cdep.ro/pls/proiecte/upl_pck.lista?cam=2&std=DZ, as retrieved on June 16, 2014; for the statutes under public debate at the level of Senate, see http://www.cdep.ro/pls/proiecte/upl_pck.home?cam=1, as retrieved on June 16, 2014. 77 Law 52 (art. 5, let. a-c) 78 Law 590 (art. 39, par. 1) 79 Ibid. (art. 39, par. 2) 80 Grigore GEAMANU, op. cit., p. 41


of ratification or at another time, as provided by the respective treaty. The instruments of ratification for the

state level treaties shall be signed by the President, Minister of Foreign Affairs and sealed with the national

seal of Romania. The instruments of ratification for the government level treaties shall be signed by the Prime

Minister and the Minister of Foreign Affairs and sealed with the national seal of Romania. Once such a treaty

entered into force, an Order of the Minister of Foreign Affairs concerning its entrance into force shall be

published in the Official Gazette no longer than ten days after respective treaty’s entry into force81.

However, the following treaties shall enter into force upon the date of their signature:

- Governmental or departmental treaties that are concluded as part of other treaties, already in force,

shall the respective treaties include such provisions;

- Departmental cooperation protocols concluded between the Romanian Ministry of Foreign Affairs

and other countries’ respective ministries;

- Governmental or departmental cooperation programs, in the field of education, culture, sports,

research, shall they apply for a period no longer than five years without automatic extension;

- Treaties regarding non reimbursable financial assistance on behalf of the EU or other EU member

states;

- Non reimbursable financial assistance treaties or any other governmental or departmental technical

agreements requiring financial support from the foreign partner82.

3.7 Simplified Form Treaties

Simplified Form Treaties can be concluded through the exchange of diplomatic cables83 or letters and

come into force upon the exchange of the instruments of ratification or at the time mentioned in the treaty84.

While the treaties concluded by the Ministry of Foreign Affairs may not need ratification, shall they meet the

conditions set by art. 29 of Law 590, the Governmental level treaties concluded in simplified form need to

pass the procedure of ratification85.

The Romanian Ministry of Foreign Affairs registers the state and government level treaties which

specifically provide so at the General Secretariat of the United Nations, as well as the treaties where Romania

acts as depositary86.

3.8 Application and Termination of International Treaties

The obligations arising from the International treaties shall be performed precisely and in good faith.

The public institutions along with the judiciary, physical and artificial persons have the duty to apply and

respect the international treaties Romania is part of. The domestic legal provision cannot be used to evade

81 Law 590 (art. 25, par. 1-9) 82 Ibid. (art. 26, par. 1) 83 Orig. “note verbale” (my transl.) 84 Previous to Law 590 (art. 29, par. 1-2), the simplified form treaties and their entry into force were simply a matter of practice as shown by Grigore GEAMANU, op. cit., p. 43 85 Law 590 (art. 29, par. 1-7) 86 Ibid. (art. 30, par. 1)


such a treaty, to modify or to nullify it87. Termination of treaties by the parties' agreement, denunciation,

waiver or withdrawal shall follow the procedure provided for their entry into force88. In the period following

Romania’s accession to the European Union, for instance, the country had to terminate a series of

international treaties regarding the promotion and protection of foreign investments of EU non-member

states (i.e. Australia, Argentina, Bangladesh, Cameroon, Chile, Gabon, Senegal, Sri Lanka, Thailand,

Uzbekistan), due to their incompatibility with the provisions of Lisbon Treaty (i.e. one of the founding EU

treaties)89.

A treaty contrary to the Constitution of Romania90 can be ratified only after the modification of the

Constitution91. However, if a treaty contrary to the Constitution of Romania has already been ratified, it is the

Ministry of Foreign Affairs who will attempt the appropriate procedures for the renegotiation or termination

of the respective treaty92. In the case where an international treaty has been concluded in violation of the

norms of international law, it may be declared void by following the procedures identical with those followed

for its entry into force93. It worth noting that the above mentioned provision does not offer a clear definition

of “norms of international law” nor does it state an explicit obligation to terminate such a treaty.

4. CONCLUSIONS

Romania’s domestic regulation of international treaties is defined within the scope of the Constitution of

Romania and Law 590/ 2003. Subject of an organic development, Law 590 is a successor of Law 4/ 1991.

While maintaining identical structural norms, Law 590 further details the processes related to the stages of

initiating treaty negotiations, conducting treaty negotiations, initialing and signing of international treaties,

ratification of international treaties, entry into force, potential conflicts with domestic law and termination of

international treaties. In the light of the Romanian doctrine presented at times to complement or further

detail the regulatory provisions, we may argue that the domestic regulation of international treaties is in line

with the practice, statutes and customs of international treaty law, though Romania is not a signatory of

Vienna Convention on the Law of Treaties (1969). However, at times, certain aspects of domestic treaty

regulation may seem “sui generis”, such as the issuance of full powers letters at the end of negotiations and

only if there is an explicit requirement. Arguably, these measures serve rather as legal enhancements than

measures to evade the international customs and diplomatic usages into the matter.

87 Law 590 (art. 31, par. 1-5) 88 Such as memorandum, exchange of instruments (in certain cases only), the signature of the Minister of Foreign Affairs, the seal of Romania, publishing in the Official Gazette, etc. For further details see Law 590, art. 32-34. 89 For further details, see http://discutii.mfinante.ro/static/10/Mfp/transparenta/proiect_lege_iesiredinvigoareBIT.pdf, as retrieved on June 16, 2014 90 As decided by the Constitutional Court of Romania. 91 According to art. 40, par. 1 of Law 590, at least 50 deputies or 25 senators may require the opinion of the Constitutional Court of Romania at any moment between signature and ratification. 92 Law 590 (art. 40, par. 4) 93 Law 590 (art. 42)


Reference List

Statutes

- The Constitution of Romania, adopted on November 21, 1991, published in the Official Gazette No.

233 of November 21, 1991, entered into force by referendum on December 8, 1991. Revised and approved

through referendum on October 18-19, 2003, entered into force on October 29, 2003, published in the Official

Gazette No. 758 of October 29, 2003.

- Law 415/ 2002 Concerning the Organization and Operation of the Supreme State Defense Council,

published in the Official Gazette No. 494 of July 10, 2002

- Law No. 4/ 1991 Concerning the Conclusion and Ratification of Treaties, published in the Official

Gazette No. 5 of January 12, 1991

- Law No. 52/ 2003 Concerning Decisional Transparency in Public Administration, published in the

Official Gazette No. 70 of February 3, 2003

- Law No. 590/ 2003 Concerning Treaties, published in the Official Gazette No. 23 of January 12, 2004

- Vienna Convention on the Law of Treaties, 1969

Articles & Books

- CONSTANTINESCU, Mihai, IORGOVAN, Antonie, MURARU, Ioan, TANASESCU, Elena Simina & al.,

Constituția României revizuită. Comentarii și explicații (The Revised Constitution of Romania. Commentaries

and Explanatory Notes, my transl.), București, Editura All Beck, 2004

- ECOBESCU, Nicolae, DUCULESCU, Victor, Dreptul tratatelor (Law of Treaties, my transl.), Editura

Continent XXI, Bucuresti, 1995

- GEAMANU, Grigore, Dreptul international contemporan (Contemporary International Law, my transl.),

Editura Didactica si Pedagogica, Bucuresti, 1975

- JAIN, J.P., Romania: A Case Study in Non-Conformity, The Indian Journal of Political Science, Vol. 36, No.

1, Indian Political Science Association, 1975

- MIGA BESTELIU, Raluca, Drept international (International Law, my transl.), ALL, Bucuresti, 1999

- NASTASE, Adrian, BOLINTINEANU, Alexandru, AURESCU, Bogdan, Drept international contemporan

(International Contemporary Law, my transl.), Editura All Beck, Bucuresti, 2000

- NICIU, Martian, Dreptul international public (International Public Law, my transl.), Editura Servosat,

Arad, 1997

- NICIU, Martian, TAKAS, Ludovic, Drept international public (Public International Law, my transl.),

Editura Didactica si Pedagogica, Bucuresti, 1976

- ROBERG, Jeffrey L., The Importance of International Treaties: Is Ratification Necessary?, World Affairs,

Vol. 169, No. 4, 2007, World Affairs Institute

- WEINER, Robert, Romania and International Law at the United Nations, The International and

Comparative law Quarterly, Vol. 32, No. 4, Cambridge University Press, 1983


Online Resources

- Romanian Chamber of Deputies website,

http://www.cdep.ro/pls/proiecte/upl_pck.lista?cam=2&std=DZ, as retrieved on June 16, 2014

- Romanian Ministry of Finance website,

http://discutii.mfinante.ro/static/10/Mfp/transparenta/proiect_lege_iesiredinvigoareBIT.pdf, as retrieved

on June 16, 2014

- Romanian Ministry of Foreign Affairs website, http://mae.ro/node/2011, as retrieved on June 16,

2014

- Romanian Ministry of Justice website,

http://www.just.ro/Sectiuni/Direc%C5%A3ii/Direc%C5%A3iaDreptInterna%C5%A3ional%C5%9FiTratate

/tabid/173/Default.aspx, as retrieved on June 6, 2014

- Romanian Senate website, http://www.cdep.ro/pls/proiecte/upl_pck.home?cam=1, as retrieved on

June 16, 2014

Word Count

5.269 words (footnotes not included)

6.548 words (footnotes included)