Guardians of integration? The Constitutional Court of Colombia and regionalism in the age of populism

Con la entrada en vigencia de la Constitución Política de 1991, uno de los cambios transcendentales que se produjo, lo constituyó la creación de la Corte Constitucional colombiana, a la cual se le confió la guarda de la integridad y de la supremacía de la Constitución mediante el otorgamiento de la competencia funcional de ejercer el tan complejo control constitucional en un estado; para el ejercicio de dicho control, la Corte Constitucional y ante el nuevo modeloconstitucional dispuesto en la Constitución de 1991, ha acudido a lo que se denomina el neoconstitucionalismo, esto es, a la aplicación de nuevas formas, figuras e instituciones dentro del derecho constitucional que le permitan cumplir esta función dejando de lado el excesivo formalismo que imponía el riguroso modelo positivista y exegético, para acudir a modelos de control mucho más acordes al del Estado Social de Derecho. Dentro del denominado neoconstitucionalismo cabe destacar el uso de los denominados test por parte de los tribunales constitucionales, y para el caso de Colombia, de la Corte Constitucional colombiana. Para el presente caso, el objeto de estudio de la investigación se centra en describir y analizar, la figura del uno de estos, como es, el test de proporcionalidad, así como revisar su uso y metodología por parte de la Corte Constitucional colombiana, tema que resulta de gran importancia nos solo para el derecho constitucional, sino para todo lo que respecta al ordenamiento jurídico colombiano; por cuanto, el test de proporcionalidad viene siendo uno de los métodos hermenéuticos más utilizados por la Corte Constitucional para el ejercicio del control constitucional, abstracto o concreto, en todas las temáticas del derecho, esto es, en lo penal, civil, laboral, familia, tributaria, policivo, disciplinario, etc. Este documento se centra en describir y analizar el test de proporcionalidad y su metodología de aplicación por parte de la jurisprudencia de la Corte Constitucional Colombiana, el cual se desarrolla en dos secciones, saber: una primera sección, en la cual se describe el marco conceptual del test de proporcionalidad, su definición y origen, y se realiza una breve referencia al derecho comparado y una segunda sección en la cual se describe el arribo del principio de proporcionalidad en la Corte Constitucional colombiana, así como la metodología del test de proporcionalidad, para finalmente presentar algunas conclusiones del test de proporcionalidad a la luz del uso dado por la Corte Constitucional colombiana al mismo.

Under what conditions are justices able to make decisions that are contrary to the executive's preferences in strong Latin American presidentialisms? To answer this question, I formulate a theory of interbranch relations, particularly of the interplay between courts and justices, on the one hand, and executives and legislatures on the other. The model of strategic prudence involves a game between two players -a court and a government-as well as a stage in which this game takes place, including the institutional design and the political environment. It specifies how players' policy preferences and their assessments of the personal and institutional risks involved in their decision making interact with the institutional setting and the political context. Based on the empirical implications derived from the game, I hypothesize that when courts are institutionally insulated, justices are more likely to decide based on their own preferences, while an institutionally weak court makes them act strategically based on their perception of how the political environment enhances or hinders the government's ability to build a coalition to sanction the court. I test the empirical predictions of the game with the of the Colombian Constitutional Court (CCC). I combine qualitative evidence, including press coverage and interviews with former justices and law clerks, with a systematic quantitative analysis of an original dataset of abstract review cases decided by the CCC between 1992 and 2006. Given its well-deserved reputation of autonomy and progressive activism, the CCC provides a crucial case test of the strategic prudence theory. The analysis of individual judicial decisions provides strong evidence supporting the hypotheses derived from the game's comparative statics analysis. Justices tend to be prudent when they face a strong administration and when the under review is salient for the executive. In addition, they are more likely to annul legislation when they have stronger preferences against it and when they anticipate that the incumbent would have to pay a higher cost should it attempt sanctioning the court. This dissertation contributes to the subfield of judicial politics in Latin America and is the first comprehensive study of the Constitutional Court in Colombia.

The Colombian Constitutional and Supreme Court’s interpretation of superior responsibility as cases of commission by omission and indirect perpetration excludes most military superiors’ omissions of their duties to prevent, repress and submit subordinates’ international crimes to the competent authorities. Nevertheless, the notion of complicity by omission, as a form of accessorial liability, and the crime of abetting could cover this gap with regard to omissions carried out by military superiors with dolus. Furthermore, although Colombian criminal law does not provide for negligent military superiors’ omissions, the Colombian Armed Forces Operational law attaches disciplinary responsibility to military superiors’ omissions, which are carried out with gross negligence. Moreover, the Peace Agreement of 24 November 2016 between the Colombian Government and the Revolutionary Armed Forces of Colombia – Popular Army (‘the FARC’), explicitly provides for criminal liability for gross negligent omissions of Colombian Security Forces superiors and FARC superiors with regard to subordinates’ international crimes related to the armed conflict. Further, the provisions of the Agreement on superior responsibility of Colombian Security Forces superiors have been subsequently incorporated into the Colombian Constitution by the 4 April 2017 Legislative Act 01/2017 and the provisions relating to FARC superiors were incorporated into Colombian law through the 30 November 2017 Law on the Special Jurisdiction for Peace. Although this approach was upheld by the 24 November 2017 Colombian Constitutional Court (‘CCC’) judgment C-674/2017 and the CCC’s 16 August 2018 public statement, which declared, respectively, the constitutionality of Legislative Act 01/2017 and the Law on the Special Jurisdiction for Peace, this position has come at a high prize because not only have all references to international law been eliminated from the definition of superior responsibility for Colombian Security Forces superiors (they have only been kept in relation to FARC superiors), but several additional requirements have also been added to the definition. The result significantly restricts the scope of application. Last but not least, the notion of superior responsibility for civilian superiors is not yet applicable in Colombia due to the absence of an explicit reference to it under Colombian law and the Colombian Constitutional Court’s ‘distinctive approach’ doctrine.

Purpose ”“ Considering the relevance of personal data protection, this article focuses on the identification of the criteria used by Colombian Courts regarding the rights to access, modification and erasure personal data within the context of information made available through search engines. This framework will expose the different cases ruled by the Colombian Constitutional Court as it attempts to highlight which were the criteria used by the courts that brought them to rule that search engines are mere intermediaries between the content makers and data subjects. Finally, this study aims to contribute not only to the data protection legal literature in Colombia, but also, to improve the possibilities to effectively implement user´s rights of online search engines in Colombia. Methodology ”“In order to achieve the purpose of this research project, the following methodological strategies will be employed: (i) Legal-analytical study, by way of reviewing the Colombian regulatory framework in order to map out main rules regarding the fundamental rights to access, modification and erasure of personal data, and determining which ones are the aspects hindering the effective implementation of the rights; (ii) Legal-theoretical study, where it reviews the issues identified by legal scholars as hampering the implementation of data protection rights in general; (iii) Legal-empirical study that aims to raise awareness regarding the incidence of the activities carried out by search engines in the life of data subjects. Findings ”“ The Colombian Constitutional Court has seen search engines as mere intermediaries, meaning they do not have to rectify, correct, eliminate or complete the information listed in the results they provide. This approach demands that the Judiciary enforces the existence of a right to request the erasure of links and the need of procedures provided by them to do it effectively without erasing or altering the content of the website. This delisting process should not be arbitrary based on conditions that allow data subjects to ask the erasure of links associated with their names. In the European Union, the conditions to get those results delisted are inadequacy, irrelevance, or excessiveness in relation to the processing purposes. The current position of the Constitutional Court about the search engines role and their responsibilities has not protected the user’s fundamental rights to privacy, reputation, and honor. Therefore, a more committed study on behalf of the Court is required. Practical Implications ”“ In the Muebles Caquetá Case, the Court must point out the importance of the activities carried out by online search engines, and force them to face the implications of being a “controller” of the processing of personal data that takes place within their services. I suggest that the Court itself should draft clear delisting guidelines considering the opinions of a group of impartial experts, civil society representatives and the local Data Protection Authority. Originality ”“ Considering the implications posed by personal data and data mining, this article identifies the legal and regulatory framework surrounding those activities and in way contribute to create a data protection culture in Latin America, raise awareness regarding the incidence of search engines in the life of data rights holders, identify possible disconnections between the existent regulatory framework for personal data rights, and facilitate the cooperation between Courts and stakeholders of the telecommunication and media sectors, based on the common goal of fulfilling the public interests of ensuring data protection rights.

The defense of substantive limits on constitutional change has mainly taken two roads. One has been to claim that certain constitutional provisions cannot ever be changed, though they might be restricted or suspended under some conditions. A second road has been to claim that, ex ante, any provision can be amended, though the constitution’s essential structure either cannot or can only be amended following a more restricted procedure. In other words, this position claims that a “normal” process of constitutional change cannot “substitute” or replace the constitution. Courts have taken part in discussions around these limits. The notion of substitution or replacement—or close relatives—has been invoked by litigants and judges in such different countries as Ireland, Italy, and India, to mention a few. In Latin America, it has been employed in politically salient decisions in the past fifteen years or so by the Colombian Constitutional Court. This paper concerns itself with this notion, and critically analyzes the Court’s invocation of it. The Court has taken pains to present the doctrine on procedural grounds concerning both the constitution’s amendment provisions and the Court’s authorization to supervise changes, and the paper reviews that attempt. Yet the doctrine also deals with substantive questions about the nature and content of the (Colombian) constitution, the activation and limits of constituent power, and judicial review in a democracy. The paper engages these questions as well. What does it mean to say a constitution—and, in particular, the Colombian constitution—cannot be substituted? What exactly is the “constitution” implicated in the analysis? Should the Constitutional Court partake in these discussions? Given both the Court’s current use of the doctrine and the renewed discussions of constituent power in the region, these are all timely questions.

Contents: Foreword Introduction, Pilar Domingo. Theory: Theories of democracy, the judiciary and social rights, Roberto Gargarella Courts and social transformation: an analytical framework, Siri Gloppen The changing role of law and courts in Latin America: from an obstacle to social change to a tool of social equity, Javier A. Couso. Case Studies: Social rights as middle-class entitlements in Hungary: the role of the constitutional court, AndrA!s SajA^3 The record of the South African constitutional court in providing an institutional voice for the poor: 1995-2004, Jackie Dugard and Theunis Roux The Enforcement of social rights by the Colombian constitutional court: cases and debates, Rodrigo Uprimny Yepes Courts and social transformation in India, R. Sudarshan Judicial enforcement of social rights: perspectives from Latin America, Christian Courtis Brazilian courts and social rights: a case study revisited, Jose Reinaldo de Lima Lopes Courts under construction in Angola: what can they do for the poor?, Elin Skaar and Jose OctA!vio Serra Van-DA * nem Weak courts, rights and legal mobilisation in Bolivia, Pilar Domingo Courts, rights and social transformation: concluding reflections, Roberto Gargarella, Pilar Domingo and Theunis Roux. Bibliography Index.

This chapter addresses the changing role and reception of international law into domestic constitutional jurisdictions in Latin America and Europe. It begins by presenting a descriptive analysis of the differences between Europe and Latin America. Despite the existence of the 'conventionality control' doctrine developed in Latin America by the Inter-American Court of Human Rights (ICtHR), the European context seems more complex and diverse due to the 'three spheres of human rights protection': the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ), and the national constitutional courts. The chapter then argues that, despite the fact that the multilevel architecture of protection provides States with a large range of opportunities for improving the effective protection of human rights both in Europe and Latin America, in practice, the most relevant level of guaranteeing such protection still seems to be at the domestic constitutional level. After exploring the 'conventionality control' and the application of the 'constitutionality block' doctrine developed by the Colombian Constitutional Court, it turns to examine the 'margin of appreciation doctrine'. Paradoxically, this doctrine, introduced by the ECtHR, has recently regained power both in Europe and Latin America as a bedrock of the 're-birth' of nationalistic movement.

Objectives: to examine the theory of the Unconstitutional State of Affairs (ECI), formulated by the Constitutional Court of Colombia and subsequently incorporated by the Brazilian Federal Supreme Court (STF), from a historical, conceptual, and applied perspective. Theoretical Framework: the research is grounded in the theory of the Unconstitutional State of Affairs (ECI) as a critical instrument of constitutional analysis, articulating the foundations developed by the Colombian Constitutional Court, the jurisprudence of the STF, and the general theory of fundamental and human rights. Method: the study adopts the hypothetico-deductive method, with a monographic approach, based on bibliographical research and analysis of doctrine and case law from both the Colombian Constitutional Court and the Brazilian Federal Supreme Court (STF). Results and Discussion: The jurisprudential analysis of the ECI theory reveals the gap between normative formulation and the effectiveness of fundamental rights, emphasizing the interdependence between fundamental rights and state duties. It was observed that the full enjoyment of these rights depends on social and institutional commitment to their enforcement and on coordinated action among the branches of government. Once an unconstitutional state of affairs is identified, there is no room for the full realization of citizenship, which calls for structural and cooperative responses to address widespread violations of rights. Research Implications: tthe findings reinforce the relevance of the ECI theory as a legal and political instrument of social transformation, capable of promoting integrated institutional action and confronting structural and persistent violations in democratic contexts. The research contributes to the improvement of institutional practices and to the strengthening of judicial oversight of public policies, as well as to the development of shared accountability and justification standards in constitutional governance. Originality / Value: the originality of the study lies in the systematic analysis of the application of the ECI theory within the Brazilian context, through a comparative examination between the Colombian experience and the STF precedents. The paper offers a critical and applied interpretation of the Judiciary’s role in overcoming structural state omissions, highlighting the ECI theory as an innovative mechanism for the realization of fundamental rights in democratic societies.

Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.

INTRODUCTION Often ignored by the law, intersexuality has been the subject of numerous decisions by the Colombian Constitutional Court. For more than 20 years now, this court has discussed the issue of sexual diversity, producing a consistent legal framework for practitioners, activists and intersex people. Such a framework, interestingly, was developed through the interpretation of general constitutional provisions – such as those aimed at protecting dignity (Article 1 Constitucion Politica , henceforth CP), the free development of the personality (Article 16 CP) and the right to equality (Article 13 CP). Moreover, the Constitutional Court has demonstrated a significant will to engage with a difficult area of law from an interdisciplinary angle, relying not only on traditional medical sources, but also on critical theory and activists ‘insights. To set the Court's activity in context, we must recall that the model of medicalisation applied to intersexuality, as we know it today and as it has come to be gradually – de facto – challenged by the Colombian Constitutional Court, was developed in the mid-1950s in the United States, essentially under the scientific direction of the psychologist Dr. John Money and his team. According to him, what we now call gender identity seemed to be independent from physical characteristics and be the result of different stimuli, including education and social models, which influenced the development of the individual at the early stages of life. Among these stimuli, genitals were given a paramount importance. In Money's understanding, any conflict among the stimuli – primarily, genitalia deviating from established standards of maleness and femaleness (henceforth, non-normative or diverse) – could trigger misalignments with the attributed social gender – what one may call now a ‘trans condition’ – which was perceived as a risk to psychological health. Normalisation – so to say – of non-normative genitalia was thus prescribed. After the initial gender assignment based on the interpretation of biological markers, came surgical and hormonal therapies, aimed at giving a more usual look to the intersex anatomy. Additionally, practical considerations also played a determinant role in gender assignment – especially with biological males – in consideration of the technical limitations to phallus reconstruction. Boys for whom masculinisation was not a viable option would be reassigned to the feminine gender and subject to consistent treatments.

centralized / a priori Bolivia Chile Colombia Costa Rica Ecuador El Salvador Honduras Panama Venezuela Not possible Not observed Bolivia Chile Colombia Costa Rica Ecuador El Salvador Honduras Panama Venezuela Abstract/centralized/a posteriori Bolivia Brazil Chile Colombia Costa Rica Dom. Repub. Ecuador El Salvador Guatemala Mexicoa Nicaragua Panama Peru Venezuela Not possible Colombia El Salvador Guatemala Nicaragua Panama Bolivia Brazil Chile Costa Rica Dom. Repub. Ecuador Mexico Peru Venezuelacentralized/a posteriori Bolivia Brazil Chile Colombia Costa Rica Dom. Repub. Ecuador El Salvador Guatemala Mexicoa Nicaragua Panama Peru Venezuela Not possible Colombia El Salvador Guatemala Nicaragua Panama Bolivia Brazil Chile Costa Rica Dom. Repub. Ecuador Mexico Peru Venezuela a Effects in these cases are erga omnes only if a supermajority of judges votes in the same direction.

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia under-took constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance. These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This essay argues that the constitutional changes that occurred are a necessary but not sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and by long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court.

This paper analyzes whether south-south cooperation is legitimately a recent practice or merely an improved version of previous regional integration processes in Latin America and the Caribbean. The authors reviewed and systematized the historic development of subregional integration processes in Latin America and the Caribbean and focused on health cooperation in the following contexts: the Central American Integration System, the Andean Community of Nations, the Caribbean Community, the Amazon Cooperation Treaty Organization, the Southern Common Market, and the Union of South American Nations. The study concludes that the conceptual and methodologic foundations of south-south cooperation in health were born from and nurtured by the processes of regional integration in Latin America and the Caribbean. This paper posits that regional political and economic integration initiatives bring potential benefits to the health sector and act as an important mechanism to develop south-south cooperation in this domain. The study recommends furthering this type of research to provide information that will allow national and multilateral agencies, or other stakeholders, to formulate and implement better policies for international health cooperation that target reducing inequities and promoting health and well-being for all people.

Why are some newly empowered courts more likely than others to engage in progressive judicial activism? This paper addresses this question through an analysis of the origins and subsequent activism of the Colombian Constitutional Court towards rights in general, and the right to health in particular. My research suggests that ideational variables are the most effective in explaining this outcome. On the one hand, I argue that the Constitutional Court’s behavior reflects the dominance within it of a particular set of ideas about the judicial role. On the other, I provide evidence that programmatic beliefs about the relationship between rule of law and market-driven economic growth led power holders to create the Court and to appoint judges of this orientation. The emergence of progressive judicial activism in Colombia, my analysis suggests, was the unexpected outcome of purposeful political choices made by proponents of neoliberal economics. NOTE: THIS PAPER HAS BEEN PUBLISHED Nunes, Rodrigo. 2010. Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health. Latin American Politics and Society 52(3).

The Indian Supreme Court, the South African Constitutional Court and the Colombian Constitutional Court have been among the most important and creative courts in the Global South. In Asia, Africa and Latin America, they are seen as activist tribunals that have contributed (or attempted to contribute) to the structural transformation of the public and private spheres of their countries. The cases issued by these courts are creating a constitutionalism of the Global South. This book addresses in a direct and detailed way the jurisprudence of these Courts on three key topics: access to justice, cultural diversity and socioeconomic rights. This volume is a valuable contribution to the discussion about the contours and structure of contemporary constitutionalism. It makes explicit that this discussion has interlocutors both in the Global South and Global North while showing the common discourse between them and the differences on how they interpret and solve key constitutional problems.