Diffused conventionality control and its applicability disjunction in the Colombian state: approach from the clash between the Constitutional Court and the Council of State

Abstract

In this research article, the problem question is raised: What are the criteria to apply the control of diffuse conventionality by the Council of State and the Constitutional Court with respect to the position of the Inter-American Court of Human Rights? From which it is intended to analyze the divergence between the positions adopted by the Council of State and the Constitutional Court regarding the diffuse control of conventionality and its application as a mandatory figure to be applied within the Colombian State in order to comply with the provisions provided by the ACHR. It is concluded that the Constitutional Court still shows an abstentionist position of investing as a conventional judge, considering under a little evolutionary concept that applying the control in question can endanger the Constitution and its role as a constitutional judge. Therefore, the need for the Constitutional Court to adopt the example advocated by the Council of State is proposed, in order to guarantee not only the conventional provisions, but also the Constitution itself.