Colombian Constitutional Court Research Articles

WITHDRAWN: Ecosystem service valuation framework applied to a legal case in the Anchicaya region of Colombia

Abstract Lack of explicit value for ecosystem services has resulted in great damage being imposed on the poor when engineering projects of wealthy corporations impose externalities on local communities. Such communities are rarely in a position to extract payment for damages from the well-healed corporations. The case study reported in this manuscript is a classic example of such social injustice. The Anchicaya region in the Colombian Pacific coast is characterized by its rich cultural and biological diversity. The primary inhabitants of this region are Afro-descendant communities who are directly dependent on the surrounding natural environment. On July 21st, 2001 there was an illegal discharge of approximately 500,000 m3 of accumulated sediment from a hydroelectric dam on the Anchicaya River, which gravely affected those inhabiting the region downstream of the dam. In 2002, the communities of the Lower Anchicaya region began a class action suit against the energy company in charge of the dam. After years of deliberations favoring the downstream communities, on April of 2012 the Constitutional Court of Colombia ruled in favor of the energy company in charge of the dam, overruling 10 years of deliberations. Through Judgment T-274, the Constitutional Court of Colombia declared that direct valuation studies that had been made in 2002, shortly after the spill, were inadmissible due to lack of objectivity and rigor and ordered that the studies be repeated. In order to value damage that had happened more than 10 years before, we determined that a land cover based ecosystem service valuation would provide the best science-based approach to conduct the valuation. For this we used historical data from geographic information systems, data collected in the affected areas, surveys, and the Ecosystem Valuation Toolkit created by Earth Economics. Several valuation methodologies were used including direct valuation, replacement costs, and benefit transfer. We used the ecosystem service valuation framework to quantify the material and non-material damages recognized under the Colombian legal framework. The total value for the valuation of material damages was of COP $356,688,589,331 (approximately $100 million USD). For the non-material damages, which we classified as cultural ecosystem services, we noted that the loss was high as the victims lost something invaluable and critical for their identity and their well-being. According to the Colombian judicial system, the judge who presides over the case will determine the amount to be paid for these non-material damages. In 2015, the Constitutional Court of Colombia ruled in favor of the Anchicaya community and ordered that the communities be indemnified; however a final value has not been decided to date. We provide a broad classification of valuation methodologies of ecosystem services that can, and has been, aptly used within a legal framework. It is also important to note that this study provides a valuation of services for a subsistence economy, with communities operating outside monetary markets, much like many other remote communities rich in supporting and regulating ecosystem services.

Personalidad jurídica de las sociedades mercantiles

The juridical personality of commercial companies implies an important consideration for the faculties that it observes through the identification of: the form of acquisition, its attributes, the form in which it is lost, and the actions that can be developed to contemplate itself. Within the indicated attributes, it is inserted, with greater relevance, the one of the patrimony through which the own assets of the associates and those of the corporate entity are separated. Nor should we forget the additional attributes of legal personality developed by the doctrine, within which are the name, address, capacity, nationality and its state: current, in causal of dissolution and liquidated. In our legal system, and depending on the type of company that is intended to be constituted, legal personality is acquired in two ways, through the elaboration of the public deed (for companies regulated under Decree 410 of 1971), or by registration of the written or private document that gives life to the company (for the Sole-Share Company and the Simplified Shares Company). The juridical personality observes its birth from diverse theories, which roughly can be summarized in 1) the theory of the fiction, that welcomes our normativity in the light of the provision of article 633 of the Civil Code, and which gives form to a legal fiction established by the legislator 2) theory of reality, which consists in giving formal existence to a figure that exists in the society in a material way. It should also be noted that the Colombian Constitutional Court recognizes in multiple judgments the existence of legal personality, and the scope it offers within the mercantile development, that is how it authorizes its protection through guardianship.

Minimum Vital of Drinking Water in the Jurisprudence of the Colombian Constitutional Court

The minimum vital of drinking water for vulnerable people is protected by the Colombian Constitutional Jurisprudence, locally and nationally. The Constitutional Court has created a solid jurisprudential line on the right to water in relation to the suspension of water supply service for the customer’s failure to pay for the service; this Court has also defined the conditions necessary for the companies to refrain from suspending service and the minimum amount necessary for survival. Compliance with these sentences has been limited to the orders pronounced to the benefit of the company that provides such service, including the execution of payment agreements for accessing the water supply. The implementation of the free minimum vital of drinking water in Colombia has been defined through targeting and requirements that are set only to benefit market laws, such as payment agreements, except for Bogota that, from the point of view of human rights, has proposed the respect for the minimum vital of drinking water for all social strata.

"The Fetus Is My Patient, Too": Attitudes Toward Abortion and Referral Among Physician Conscientious Objectors in Bogotá, Colombia.

In 2006, the Colombian Constitutional Court partially decriminalized abortion. However, barriers to access, including improper use of conscientious objection, remain. To explore conscientious objection from the objectors' perspectives, in-depth interviews were conducted in 2014 with 13 key informants and with 15 Colombian physicians who self-identified as conscientious objectors. Recruitment included snowball and purposive sampling techniques. Analysis was conducted in tandem with data collection and focused on objectors' attitudes, beliefs and behaviors related to abortion and referral. Objectors had varied perspectives. Three types of objectors were evident: extreme, moderate and partial. Extreme objectors refused to perform abortions or make referrals, and often lectured their patients; they also provided misleading or false medical and legal information, preventing women from accessing abortions to which they were legally entitled. Moderate objectors would not perform abortions, but respected their patients and viewed referral as a way to save "one out of two" lives. Partial objectors performed some abortions but refused to do others on the basis of gestational age or case-by-case circumstances. Across the typology, objectors linked conscientious objection with medical ethics, and many described a duty to protect the fetus, which they conceptualized as a patient. Conscientious objectors exhibit diverse opinions and behaviors. Potential areas for future investigation include identifying factors that lead objectors to refer and estimating the prevalence of each type of objector. Results suggest potential interventions that could reduce the role of conscientious objection as a barrier to care.

THE ROLE OF INTERNATIONAL LAW WITHIN NATIONAL LEGISLATION ON TOBACCO CONTROL

The present article, taking into account advances in international rights and the need for domestic implementation of Framework Convention on Tobacco Control (FCTC) standards, has the objective of analyzing the competence to bring domestic and international regulations to fruition, with the purpose of creating coordinated public policies for tobacco control. So, it is possible to argue that the FCTC, by means of its guidelines, laid down at the Conferences of the Parties (COPs) and which are binding to all members states of the convention, paves the way for international regulation. Domestically, such regulation has to observe DOP guidelines, there being leeway for organizations like Brazil’s ANVISA to bring those guidelines into action, such as the one related to FTCT articles 9 and 10, which limit the use of flavour additives in tobacco products, as a way of implementing international standards within the country. There is also no conflict between free enterprise and tobacco control given that, as stated by the Constitutional Court of Colombia in a process involving the constitutionality of restrictions to tobacco advertising, this is a market that should not be stimulated, but rather merely tolerated.

Regional and inter-regional economic rules and the enforcement of the right to health: The case of Colombia.

The regional policy level is often seen as a (potential) source of progressive policy-making in health (and in social policy more widely), complementing or substituting national policy levels, which are perceived as underperforming. While it can certainly be argued that there are important opportunities to adopt regional approaches to tackle border-crossing health issues, this article draws the attention to the fact that the linkage between (inter-)regional and national policy levels is not uni-directional. While in some instances the regional level may indeed take the lead in the promotion of (the right to) health, in other instances it may well be the other way round. This article focuses on the case of Colombia, where international economic rules have deeply permeated public policies in the health sector. On one hand, Colombia has been opening markets through the conclusion of regional integration arrangements (e.g. Andean Community and the Pacific Alliance) and the new generation of Free Trade Agreements. On the other hand, Colombia has been one of the most active emerging countries in promoting the right to health as a justiciable fundamental right, in line with the International Covenant on Economic, Social, and Cultural Rights of the United Nations mainly due to the judicial activism of the Colombian Constitutional Court with interesting implications for regional social governance. The article shows that national courts can play an important role in the protection of the right to health in a context of economic integration and the absence of regional balancing policies.

Building a bridge between reality and the constitution: The establishment and development of the Colombian Constitutional Court

The Colombian Constitutional Court has gained a high reputation around the world. In a country that is plagued by the war on drugs, violence, inequalities, and corruption, the court has managed to strengthen the rights of the displaced and homeless victims of these conflicts, women, workers, sick persons, and other underprivileged social groups. The trust of the citizens in the court therefore is high, which is reflected in the constantly growing number of constitutional complaints and judicial reviews. By proving its independence, the court has also earned the respect of politicians. However, the court took on this role only gradually, and had to learn from mistakes made at the beginning. This article presents not only the history and the most important achievements of the court from its founding to the present, but also addresses the challenges it faces.

Análisis de la interpretación y construcción del derecho a la vida en la jurisprudencia constitucional colombiana

The way the Colombian Constitutional Court has interpreted the text of legislation that recognizes the right to life and how rules on the general problem of abortion have been developed are analyzed in this article. According to this assessment, the rights associated with the problem of abortion in Colombia have been created and developed as constructions of the Constitutional Court and, in doing so, the extent of the obligations pertaining to these construed rights have been confused. The first part of the article offers an explanation of the distinction between interpretation and construction, and outlines the interpretative theses on the right to life upheld by the Constitutional Court when deciding the constitutionality of criminalizing abortion. The rules that have been constructed are identified as well. In the last part, the rules of the Court are reconstructed on the basis of Hohfeld operators.

O direito fundamental à água e sua intrincada satisfação no Direito colombiano

O objetivo deste artigo é determinar se a jurisprudência da Corte Constitucional colombiana acerca do caráter fundamental do direito à água e do dever de satisfazê-lo atribuído aos prestadores desse serviço é plausível. A estratégia para alcançar esse objetivo é uma análise da Sentença T-740 de 2011. Esta Sentença desafia a tendência presente no Direito Comparado que diminui a proteção dos direitos sociais, em razão do esforço dos juízes em levar a cabo uma harmonização entre os direitos sociais protegidos pela Constituição e os princípios reitores da globalização neoliberal. A jurisprudência constitucional colombiana não somente afirma o caráter fundamental do direito à água, como também atribui aos prestadores desse serviço, e não ao Estado, o dever de satisfazê-lo. Essa atribuição implica o fortalecimento dos direitos sociais frente às liberdades econômicas dos agentes do mercado que prestam o serviço de água.

Balancing Free Trade Principles with Other Constitutional Provisions in the Context of Preferential Trade Agreements

Colombia’s Constitution of 1991 is an ambitious text which tries to strike a balance between laying a strong foundation for economic modernization and liberalization, on the one hand, and the creation of a Social State of Law and the protection of an impressive list of constitutional rights, on the other. Because of the doctrine that has been developed by the Constitutional Court since then, it has been considered as one of the most activist courts worldwide, next to courts such as the South African court. One of the factors that has thereby complicated its task is the fact that, since the 1990s, the government has actively multiplied its international economic commitments. In this article, case law of the Colombian Constitutional Court is analyzed, with a focus on balancing: (a) between the binding character of (regional and bilateral) free trade commitments and the constitutional competences of the sub-national level, and (b) between international free trade commitments and the protection of constitutional social rights. Both cases shed light on the balancing task of the court in a complex international context, in the presence of a multi-level regulatory architecture.

The Implementation of the Human Right to Water in Argentina and Colombia

The article deals with the recognition of access to water as a human right in various international legal instruments offering a comparative perspective from the practice in Argentina and Colombia. The essay explores the human right to water providing with new insights about the enforceability (referred to as “justiciability”) of the right to water in light of recent rulings issued by the Colombian Constitutional Court and different judgements by Argentine courts. In the analysis the authors further underline main obstacles in the enforcement of the human right to water and the challenges for its protection in the context of climate change.

Cultural Diversity, Legal Pluralism, and Human Rights from an Indigenous Perspective: The Approach by the Colombian Constitutional Court and the Inter-American Court of Human Rights

The increasing cultural diversity and legal pluralism prevailing in the global South should not always be seen as a threat to a universal concept of human rights, but as an enriching input for it. The progressive recognition of indigenous peoples’ rights in the last decades is forging, sometimes with difficulties, a more open and dynamic conception of human rights. By opening the door to the indigenous conceptions of law, justice, and dignity, both the Colombian Constitutional Court and the Inter-American Court of Human Rights are decisively contributing with their progressive jurisprudence to an increasingly more multicultural approach to human rights. The culmination of this complex and somewhat contradictory process took place with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in September 2007, a clear example of an attempt to balance indigenous conceptions of dignity with the very basics of international human rights law. The aim of this work is to analyze how the Colombian Constitutional Court and the Inter-American Court of Human Rights conceive the problematic but also challenging relationship between indigenous legal pluralism and the protection and promotion of human dignity. The so-called multicultural jurisprudence is paving the way for a more inclusive conception of human rights, a conception enriched by local ways of framing and understanding human dignity.

Conscientious Objection to Abortion and Accommodating Women's Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective

AbstractIf applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which are imposed on the conscientious objector, as well as the state, in order to accommodate women's reproductive health rights. In recent years, the Colombian Constitutional Court has been giving a judicial lead on the development of a right to conscientious objection that accommodates women's fundamental rights. This article reflects on one of the court's decisions and draws lessons for the African region.

Blasphemy, Holocaust Denial, and the Control of Profoundly Unacceptable Speech

Many new democracies exhibit a disturbing lack of electoral competition. All too often, the first party to hold office creates a network of power and patronage that chokes off meaningful political challenge. These strong party democracies, with power often being held by the inheritors of the political mantle of those that led the opposition to prior authoritarian rule, exhibit a tendency toward the three “C's” of associated with the lack of accountability: clientelism, cronyism, and corruption. Such strong-party regimes and their associated pathologies present relatively new constitutional courts with a distinct set of controversies that necessarily bring the judiciary into conflict with consolidating political power. This article explores the form that judicial responses to the excesses of political dominance might take. Three courts are selected as exemplars of such responses. In the first instance, the Colombian Constitutional Court repudiated the attempt of President Uribe to amend the constitution to permit a third term in office, despite the lack of reasoning to support the rejection of a largely procedurally proper constitutional amendment. In the second, the South African Constitutional Court has scrupulously avoided any frontal confrontation with the current African National Congress government, instead casting its repeated rejection of government efforts to insulate itself from accountability in narrow procedural rulings or in rulings based on other, non-politically charged sources of law. Finally, there is the Thai Constitutional Court which, while providing the strongest jurisprudential defense of its intervention, appears an active ally of one partisan camp as the country hovers on the brink of civil war. Rather than offer any off-the-rack solution for the difficult realm of constitutional courts as democracy falters, this Article examines the relation between the issues presented to such courts and the fundamental absence of electoral challenge and accountability. To the extent these courts navigate this difficult terrain, the Article concludes, the decisive feature will likely be the ability to contribute to the establishment of a competitive electoral system able to constrain single-party dominance.

Facticidad y acción de tutela: presentación preliminar de un estudio empírico de la formulación y efectos de la acción de tutela en el marco colombiano, entre los años 1992-2011

El presente texto corresponde a resultados parciales de la investigación: “Facticidady acción de tutela”; que desarrolla interés en la materialización de la normatividadconstitucional a través de la interposición y ejecución de acciones de tutela en elcontexto colombiano, entre los años 1992 y 2011. De esta forma, presenta unaprimera orientación investigativa relacionada con la construcción del conceptode estado de cosas inconstitucional, en la doctrina de la Corte Constitucionalcolombiana, como herramienta de la actividad judicial para proteger la aplicaciónfáctica de la Constitución Política de 1991. En este sentido, recurriendo al métodocensitario para la recolección y selección de la jurisprudencia, se hace un análisisinicial de la doctrina constitucional sobre la categoría propuesta.

Reconceptualización del derecho a la libertad y seguridad personal: Análisis de la sentencia T-719/2003

La Revista de Derecho es una publicación arbitrada, de carácter semestral, que tiene por objeto la divulgación de la producción intelectual internacional resultado de proyectos de investigación, en el campo del derecho y la ciencia política.

Legal Typologies and Topologies: The Construction of Indigenous Alterity and Its Spatialization Within the Colombian Constitutional Court

This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous “cultural survival.” I analyze how the jurisprudence of the Colombian Constitutional Court manifests and rests on the diverse combinations of these two factors. The typology/topology binary characterizes the manner in which these legal discourses portray indigeneity and culture. This binary also offers insight into a broad range of issues, including the access that indigenous peoples have to minority rights, the use of customary law, and the spatial delimitations that frame indigenous legal jurisdictions. Some of the complexities that arise from this binary are: the conceptualization of indigenous places as habitats, the idea of culture as a list of traits, and the concept of “degrees” of indigeneity that determine these peoples' access to minority rights.

Transitional Justice within the Framework of a Permanent Constitutional: The Case Study of the Legal Framework for Peace in Colombia

This article examines a dilemma facing architects of transitional justice processes within the framework of a permanent constitution. According to the dilemma, if the transition is successful the permanent constitution is replaced; if the permanent constitution remains in place, the transition is rendered impossible. The dilemma is illustrated by the 'constitutional replacement doctrine' of the Colombian Constitutional Court, which has held that constitutional amendments (including transitional justice mechanisms) which 'replace' essential principles of the constitution are a species of 'unconstitutional constitutional amendment' and are invalid. There is undeniable logic to this doctrine—a constitutional change which degrades the fabric of a constitution by ousting its underlying principles should require the enactment of a new constitution, rather than a process of amendment. However, applied in a rigid fashion, doctrines of this sort render processes of transitional justice within the framework of a permanent constitution impossible. This in turn presents a major obstacle for both transitional justice and constitutionalism in post-conflict societies. The recent jurisprudence of the Constitutional Court applying the 'replacement doctrine' to the current peace process with the Armed Revolutionary Force of Colombia, however, suggests a middle way: transitional constitutional amendments which might trigger the doctrine are nonetheless constitutional if they are enacted consistently with the international and transnational framework for transitional justice, assessed by means of a balancing test, whereas a strict syllogistic application of the doctrine is called only for in cases of suspected 'abusive constitutionalism'. This article analyzes and endorses the Constitutional Court's revised doctrine. The solution presented here recognizes that, although the design of a successful process of transitional justice is likely to 'replace' the existing constitution with something substantially different, it should be regarded as 'constitutional' if the transitional justice mechanisms only limit essential principles of the permanent constitution in the degree that is required for the adopted mechanisms to achieve their goals. The result is an internationally nuanced notion of 'transitional constitutionalism'.

Técnicas de reproducción asistida y su incedencia en Colombia

El artículo analiza, en primer lugar las técnicas de reproducción asistida, sus antecedentes, las existentes, su procedimiento y aplicación; como estas prácticas, no solamente son diferentes en su procedimiento médico, sino en las incidencias frente a las consecuencias jurídicas. En segundo lugar, se analiza, los Derechos Sexuales y Reproductivos y la aplicación de estas técnicas. Finalmente realizamos un análisis del tratamiento de estas técnicas en el caso colombiano, centrándonos en los pronunciamientos de la Corte Constitucional con relación a acceso a estas técnicas y los efectos que implican sus pronunciamientos, y sus vacíos jurídicos.

“Si no vas al Senado, no te eligen magistrado”. Instituciones informales y criterios de selección de los magistrados de la Corte Constitucional colombiana en el Senado (1992-2009)

Los nombramientos judiciales son procesos políticos que no sólo se definen por las reglas formales, sino también por los desarrollos y prácticas informales. Este artículo se pregunta por qué se eligen ciertos candidatos, y no otros, como magistrados de la Corte Constitucional en el Senado, desde 1992 hasta 2009. Con base en la triangulación de diferentes fuentes de información, se pudo identificar que, tal como sucede en Estados Unidos, los nombramientos de los jueces están dominados por consideraciones ideológicas y políticas, y en algunos casos, por otros criterios, tales como características sociodemográficas y cualificaciones profesionales. El hallazgo central es que el cabildeo directo realizado por los candidatos, e indirecto, mediante el padrinazgo político, son los factores con mayor incidencia. A partir del análisis cuantitativo y cualitativo, se argumenta que el cabildeo es una institución informal determinante en la elección de los magistrados de la Corte Constitucional porque es una condición necesaria, la regla de entrada, para que los demás criterios interactúen en la decisión final de los senadores.