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Colombia’s Treaty-Making Process: Constitutional Framework and International Commitments

Introduction

Colombia’s engagement in international relations through treaty-making is a critical aspect of its foreign policy and legal framework. As a sovereign state in Latin America with a history of internal conflict and a commitment to peacebuilding, Colombia’s approach to international commitments reflects both its constitutional mandates and its aspirations for global cooperation. The treaty-making process in Colombia is governed by a detailed constitutional framework that delineates the roles of various branches of government, ensuring democratic oversight while aligning with international legal norms. This article explores the constitutional underpinnings of Colombia’s treaty-making process, focusing on the relevant provisions of the 1991 Constitution, the country’s approach to integrating international law into its national legal system (whether monist or dualist), and its relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969. Furthermore, it examines how Colombia’s practices can inform other states in negotiating and entering into treaties with the country. Through this analysis, the article seeks to provide a comprehensive understanding of the legal and political mechanisms that shape Colombia’s international commitments.

Constitutional Framework for Treaty-Making in Colombia

The Constitution of Colombia, enacted in 1991, serves as the foundational legal document governing the country’s treaty-making powers and processes. It establishes a clear separation of powers among the executive, legislative, and judicial branches, each with distinct roles in the creation, approval, and implementation of international agreements. The following sections analyze the key constitutional provisions that outline how Colombia can legally enter into treaties, with specific references to the relevant articles.

Role of the President in Treaty Negotiation

Under Article 189 of the Colombian Constitution, the President of the Republic is designated as the head of state and government, with the authority to direct international relations. This includes the power to negotiate and conclude treaties with other states and international organizations. Specifically, Article 189(2) stipulates that it is the President’s responsibility to “direct international relations, appoint diplomatic and consular agents, receive foreign agents, and conclude treaties or agreements with other states and international law entities, which must be submitted for congressional approval.” This provision underscores the executive branch’s pivotal role in initiating treaty-making processes, positioning the President as the primary representative of Colombia in international negotiations.

The President’s authority to negotiate treaties, however, is not absolute. While the executive can engage in discussions and sign agreements, such treaties do not become binding on Colombia until they have been subjected to legislative scrutiny. This requirement reflects a system of checks and balances designed to ensure that international commitments align with national interests and constitutional principles.

Congressional Approval of Treaties

Article 150 of the Colombian Constitution outlines the functions of Congress, which include the approval of treaties negotiated by the President. Specifically, Article 150(16) mandates Congress to “approve or disapprove treaties that the Government concludes with other States or with international law entities.” This legislative oversight is a critical component of the treaty-making process, ensuring that international agreements receive democratic validation. Congressional approval typically involves a detailed review by both the Senate and the House of Representatives, often with input from relevant committees, to assess the implications of the treaty on national sovereignty, human rights, and economic interests.

Furthermore, certain treaties—particularly those involving territorial boundaries or fundamental rights—may require additional procedural steps, such as a supermajority vote in Congress or a public referendum, depending on the nature of the agreement. This demonstrates Colombia’s commitment to safeguarding its sovereignty and ensuring broad-based support for significant international commitments.

Judicial Review by the Constitutional Court

A distinctive feature of Colombia’s treaty-making process is the mandatory review of treaties by the Constitutional Court prior to their ratification. According to Article 241(10) of the Constitution, the Constitutional Court is tasked with reviewing “the constitutionality of international treaties and the laws approving them.” This ex-ante review ensures that treaties conform to constitutional principles, including the protection of fundamental rights, before they become binding. If the Court finds a treaty or its approving law to be unconstitutional, it cannot be ratified unless the identified issues are addressed, either through renegotiation or constitutional amendment.

This judicial oversight adds a layer of legal rigor to Colombia’s treaty-making process, distinguishing it from many other jurisdictions where judicial review of treaties occurs only after ratification, if at all. It reflects Colombia’s prioritization of constitutional integrity in its international engagements.

Ratification and Entry into Force

Once a treaty has been approved by Congress and deemed constitutional by the Constitutional Court, the President proceeds with ratification, as stipulated under Article 189(2). Ratification is the formal act by which Colombia expresses its consent to be bound by the treaty under international law. Following ratification, the treaty may require the enactment of domestic legislation to ensure its implementation, depending on the nature of the agreement and its alignment with existing national laws. This process will be discussed further in the section addressing Colombia’s monist or dualist approach.

In summary, the constitutional framework for treaty-making in Colombia is characterized by a collaborative process involving the executive, legislative, and judicial branches. Articles 189, 150, and 241 of the 1991 Constitution collectively establish a system that balances the President’s diplomatic authority with congressional and judicial oversight, ensuring that international commitments are both democratically endorsed and constitutionally sound.

Monist or Dualist Approach: Integration of Treaties into National Law

A fundamental question in international law concerns how treaties are incorporated into a state’s domestic legal system, often framed as a dichotomy between monism and dualism. In a monist system, international law and national law form a unified legal order, with treaties becoming part of domestic law automatically upon ratification. In contrast, a dualist system views international and national law as separate, requiring specific legislative action to translate treaty obligations into enforceable domestic law. Colombia’s approach to this issue is nuanced, combining elements of both monism and dualism, with a strong constitutional emphasis on the integration of international human rights law.

Constitutional Provisions on International Law

Article 93 of the Colombian Constitution is central to understanding the country’s approach to the integration of international law. It states that “international treaties and agreements ratified by the Congress, that recognize human rights and that prohibit their limitation in states of emergency, have prevalence over internal law.” This provision establishes a form of monism with respect to human rights treaties, granting them a hierarchical superiority over domestic legislation. Such treaties, once ratified, are directly applicable in the national legal system and can be invoked before Colombian courts without the need for additional legislation.

Moreover, Article 94 reinforces this principle by affirming that the enumeration of rights in the Constitution “does not deny others that, being inherent to the human person, are not expressly mentioned in it.” This provision implicitly recognizes the role of international human rights instruments in expanding the scope of protections available under Colombian law, further aligning the country with a monist perspective in this domain.

The “Constitutional Block” Doctrine

Colombia’s Constitutional Court has developed the concept of the “constitutional block” (bloque de constitucionalidad), which incorporates ratified human rights treaties into the constitutional framework. According to this doctrine, such treaties are not merely part of domestic law but hold a status akin to constitutional norms, serving as parameters for the interpretation and application of national legislation (Constitutional Court of Colombia, Sentence C-408/1996). This approach has significantly influenced how international human rights law is applied in Colombia, ensuring that treaty obligations in this area are binding and enforceable without additional legislative action.

Dualist Elements in Practice

Despite the monist tendencies evident in the treatment of human rights treaties, Colombia exhibits dualist characteristics with respect to other types of international agreements. For treaties that do not concern human rights or fundamental freedoms, incorporation into national law often requires the enactment of specific legislation by Congress. This legislative act transforms the treaty’s provisions into domestic legal obligations, a process typical of dualist systems. For example, trade agreements or bilateral investment treaties may necessitate implementing laws to align national regulations with international commitments.

Additionally, the mandatory judicial review by the Constitutional Court, as mandated by Article 241(10), introduces a procedural element that aligns with dualist principles. The Court’s role in scrutinizing treaties for constitutionality before ratification suggests a separation between international commitments and their domestic enforceability, requiring explicit national validation.

Conclusion on Monist-Dualist Approach

In conclusion, Colombia’s approach to the integration of treaties into national law is neither purely monist nor purely dualist but rather a hybrid model. For human rights treaties, the country adopts a monist stance, granting such agreements direct applicability and constitutional status through Articles 93 and 94 and the “constitutional block” doctrine. For other treaties, a dualist approach prevails, necessitating legislative incorporation to ensure domestic enforceability. This hybrid system reflects Colombia’s commitment to upholding international human rights obligations while maintaining national sovereignty over other areas of law, providing a flexible framework for balancing international and domestic legal priorities.

Colombia and the Vienna Convention on the Law of Treaties (1969)

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a cornerstone of international law, codifying rules governing the formation, interpretation, and termination of treaties. Adopted on May 23, 1969, and entered into force on January 27, 1980, the VCLT provides a framework for states to engage in treaty-making with clarity and consistency (United Nations, 1969). This section examines whether Colombia is a party to the VCLT, the implications of its status, and how this informs other countries on how to properly enter into treaties with Colombia.

Colombia’s Status as a Party to the VCLT

Colombia is not a party to the 1969 Vienna Convention on the Law of Treaties. It neither signed nor ratified the Convention upon its adoption, and there has been no subsequent accession to the treaty as of the most recent records available. This status means that Colombia is not formally bound by the specific provisions of the VCLT, such as those concerning the conclusion of treaties (Articles 6-18), reservations (Articles 19-23), or termination and suspension (Articles 54-64).

However, many of the VCLT’s provisions are considered reflective of customary international law, which is binding on all states regardless of treaty membership. Principles such as pacta sunt servanda (treaties must be performed in good faith, Article 26 of the VCLT) and the rules on treaty interpretation (Articles 31-33) are widely accepted as customary norms. Consequently, Colombia, while not a party to the VCLT, generally adheres to these principles in its treaty-making practices, as they form part of the broader international legal order to which it subscribes.

Implications for Treaty-Making with Colombia

Colombia’s non-party status to the VCLT has specific implications for other states seeking to enter into treaties with the country. First, while the VCLT provides a standardized framework for treaty-making, Colombia’s practices are guided primarily by its national constitution and customary international law. Other states must therefore pay close attention to the procedural requirements outlined in the Colombian Constitution, such as congressional approval and judicial review, rather than assuming compliance with VCLT protocols. For instance, a treaty signed by the President of Colombia is not binding until it undergoes the domestic approval process, even if the signing aligns with VCLT rules on consent (Article 11).

Second, the absence of formal adherence to the VCLT may lead to variations in how Colombia interprets or applies certain treaty-related concepts, such as reservations or the grounds for invalidity of treaties. Other states should engage in detailed negotiations to clarify these aspects, ensuring mutual understanding of the treaty’s terms and potential areas of dispute. Consulting with Colombian legal experts or the Ministry of Foreign Affairs can provide insight into the country’s customary practices in lieu of VCLT obligations.

Lessons for Other Countries

Colombia’s treaty-making process offers valuable lessons for other countries on navigating international agreements with states that are not parties to the VCLT. First, it underscores the importance of understanding a state’s domestic legal framework as a prerequisite for effective treaty-making. While the VCLT provides a universal standard, non-party states like Colombia operate under national rules that may diverge from or supplement international norms. Other countries should prioritize bilateral dialogue to align expectations regarding the treaty’s lifecycle, from negotiation to implementation.

Second, Colombia’s hybrid monist-dualist approach illustrates the complexity of treaty integration in national systems. States entering into agreements with Colombia must distinguish between treaties that are directly applicable (e.g., human rights treaties) and those requiring legislative incorporation, tailoring their expectations and follow-up actions accordingly. For example, a trade agreement may necessitate monitoring Colombia’s domestic legislative process to ensure compliance, whereas a human rights treaty could be directly enforceable upon ratification.

Finally, Colombia’s emphasis on judicial review by the Constitutional Court highlights the value of constitutional safeguards in treaty-making. Other states might consider adopting similar mechanisms to ensure that international commitments align with national legal principles, enhancing the legitimacy and sustainability of treaties. While not a VCLT party, Colombia’s rigorous process can inspire confidence in its treaty partners by demonstrating a commitment to legal oversight and accountability.

Broader Implications of Colombia’s Treaty-Making Practices

Colombia’s treaty-making framework and its engagement with international law have broader implications for global diplomacy and legal practice. Its constitutional emphasis on democratic participation through congressional approval ensures that treaties reflect a national consensus, which can strengthen their domestic implementation. This approach contrasts with systems where executive dominance in treaty-making may lead to political or legal challenges post-ratification. Other countries, particularly those with federal or decentralized governance structures, may draw inspiration from Colombia’s inclusive process to enhance the legitimacy of their international commitments.

Moreover, the priority given to human rights treaties under Article 93 and the “constitutional block” doctrine positions Colombia as a leader in the protection of fundamental rights within the Latin American context. This monist approach to human rights law can serve as a model for states seeking to harmonize international and domestic legal frameworks, especially in regions with histories of human rights violations. By granting treaties constitutional status, Colombia ensures that international norms are not merely aspirational but actionable within its jurisdiction.

Colombia’s non-party status to the VCLT also highlights the diversity of approaches to treaty-making in the international community. While the VCLT remains a widely accepted standard, not all states are bound by its provisions, necessitating flexibility and adaptability in diplomatic relations. Colombia’s adherence to customary international law, coupled with its robust constitutional process, demonstrates that effective treaty-making can occur outside the formal VCLT framework, provided there is mutual respect for legal principles and national procedures.

Case Studies: Treaty-Making in Practice

To illustrate the application of Colombia’s treaty-making framework, this section briefly examines two significant treaties: the 2016 Peace Agreement with the Revolutionary Armed Forces of Colombia (FARC) and the Free Trade Agreement (FTA) with the United States, ratified in 2012. These cases highlight the interplay of constitutional provisions, the monist-dualist hybrid, and international cooperation.

The 2016 Peace Agreement

The 2016 Peace Agreement, while not a traditional bilateral treaty between states, involved international actors and was subjected to Colombia’s constitutional processes. Negotiated under the President’s authority (Article 189), the agreement required congressional approval as a special legislative act (Article 150) due to its profound implications for national policy and human rights. The Constitutional Court reviewed the agreement for compliance with constitutional norms (Article 241), ultimately endorsing its alignment with the “constitutional block” of human rights obligations (Constitutional Court of Colombia, Sentence C-699/2016). This case exemplifies the monist integration of human rights principles, as the agreement’s provisions on transitional justice were directly incorporated into national law without additional legislation.

Free Trade Agreement with the United States (2012)

In contrast, the FTA with the United States followed a dualist path. After negotiation by the President and signing in 2006, the treaty underwent congressional approval in 2007 (Law 1143 of 2007) and Constitutional Court review (Sentence C-750/2008). Subsequent implementing legislation was required to adjust national laws on tariffs and intellectual property, reflecting the dualist requirement for domestic legal transformation. This process demonstrates how non-human rights treaties in Colombia necessitate legislative action to become enforceable, contrasting with the direct applicability of human rights agreements.

Conclusion

Colombia’s treaty-making process is a sophisticated interplay of constitutional mandates, democratic oversight, and international legal principles. Governed by Articles 189, 150, 93, 94, and 241 of the 1991 Constitution, the process involves the President, Congress, and the Constitutional Court in a balanced system that ensures both national legitimacy and legal integrity. The country’s hybrid monist-dualist approach to treaty integration prioritizes human rights through direct applicability and the “constitutional block” doctrine, while requiring legislative incorporation for other agreements. Although Colombia is not a party to the 1969 Vienna Convention on the Law of Treaties, its adherence to customary international law and rigorous domestic procedures provide a reliable framework for international cooperation.

For other states, engaging with Colombia in treaty-making requires an understanding of its constitutional processes, attention to the type of treaty being negotiated, and flexibility given its non-VCLT status. Colombia’s practices offer valuable lessons on balancing sovereignty with international commitments, prioritizing human rights, and ensuring democratic participation in global engagements. As the country continues to navigate complex international challenges, from peacebuilding to trade liberalization, its treaty-making framework remains a critical tool for fostering cooperation while safeguarding national interests.

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