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International Law and Colombian Constitutionalism: A Note on Monism

  • William Marion Gibson (a1)

Extract

In explaining the nature of international law, each of the two major schools of thought draws upon legal philosophy and practice for evidence in support of its interpretation. It is not the purpose of this note to offer any conclusions or proofs as to the validity of the reasoning of one or the other of the two schools. It would require more than the subject-matter here considered to prove the “Monist” position, or to detract from that of the “Dualist.” However, inasmuch as state practice is one of the guides to the resolution of the debate on the nature of international law, it is hoped that an explanation of the attitude of the Colombian Supreme Court concerning the relationship of pacta to the national constitution and legislation of that state may merit mention.

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1 H. Kelsen, “Théorie Générale de Droit International,” 42 Recueil des Cours de la Académie, (1932), 117–352, especially pp. 298ff. See also, J. L. Kunz, “The ‘Vienna School’ and International Law,” 11 N. Y. Univ. Law Quar. Rev. (1934), 370–421.

2 See, Hermann Meyer-Lindenberg, “El control judicial de la constitvcionalidad de las leyes,” 15 Revista Javeriana, (1941), 68–79, especially pp. 76–79.

Dr. Meyer-Lindenberg is Professor of International Law in the National University, Bogotá. The author wishes to acknowledge his indebtedness to Professor Meyer-Lindenberg whose tireless answering of questions enabled the author better to understand the problem under discussion.

Some evidence of at least the presence of this idea in U. S. jurisprudence is to be found in Cook v. United States (1933), 288 U. S. 102.

3 Repüblica de Colombia, Leyes (1914), p. 24.

4 U. S. Stat., Vol. 42, Pt. 2, p. 2122.

5 Art. 149, Constituciόn Politico, de la Repüblica de Colombia, p. 50 (Codification of 1936).

The full text of the article is:

“The Supreme Court of Justice is entrusted with the guardianship of the integrity of the Constitution. Consequently in addition to the other powers conferred upon it bythis [Constitution] and laws, it shall have the following power”:

“To decide definitively, after consultation with the Attorney-General, upon the validity [exeguibUidad] of legislative acts objected to by the Government as unconstitutional, or upon the validity of all laws or decrees questioned before it by any citizen whatsoever as unconstitutional.”

6 Decision of July 6,1914, 23 Gaceta Judicial (1915), p. 9.

7 “Sole Article: The treaty signed in this capital April 6th of this year between the Republic of Colombia and the United States of America is hereby approved:” Then follows the text of the treaty. Law No. 14 of 1914, loc. cit.

8 “It is seen clearly then that the claim of invalidity is directed against the solearticle of Law No. 14 of 1914 approving a treaty, and that the basis of such invalidity consists not in that this article is contrary to the fundamental charter, but in that some of the stipulations contained in said treaty not only violate the cited provisions of the Constitution but are repugnant to the spirit thereof. In other words, not the spirit of the law itself, but the fact that it approves a treaty containing clauses which violate the National Constitution is challenged.” Loc. cit., pp. 10, 11; italics inserted.

9 For text, see above, footnote 5.

10 “Although the law approving a public treaty follows the same procedure required for ordinary legislative acts, there can be no doubt that for other reasons it differs substantially from ordinary laws. The latter are unilateral acts, expressions of the will of the sovereign which commands, prohibits or permits; the sovereign’s sanction and promulgation completes them. The former [type of law] is an element of a complex juridic act; it is the manner in which one of the high contracting parties manifests its consent to the stipulations of a pact essentially international; it does not by itself establish any legal relations and its efficacy depends upon the consent of the other contracting party if the latter on its part ratifies the clauses agreedto by the negotiators.” Loc. cit., p. 11.

11 “Even less would the court be able to declare the unconstitutionality of a treatyafter the exchange of ratifications; since the agreement is between two states, it would not be possible for one of them even through its highest tribunal to break the contractual bond, which would be equivalent to declaring unconstitutional and therefore without obligatory force a law that it had approved.” Loc. cit., p. 11.

12 The President is authorized to make treaties, with the approval of the Congress. Art. 116 of the Constitution in part provides: “The President of the Republic shall have power . . . to negotiate [celebrar] with foreign Powers treaties and conventions which shall be submitted to Congress for approval.”

Art. 69, Sec. 19 provides: “Congress shall have power . . . To approve or disapprove treaties which the Government negotiates [celebre] with foreign Powers.”

The constitutional basis for the doctrine of separation of powers is found in Art. 57 of the Constitution of 1886 which provides: “All public powers are limited, and they are separately exercised in respective functions.”

(Unless otherwise indicated, all constitutional citations are to the codification of1936. When this case was decided (1914), the Constitution of 1886 and certain subsequent amendments were in force. Since all provisions cited, except the one immediately above, are still in force, it is thought that use of the 1936 codification would facilitate reference. However, the text of the Constitution of 1886 is found in said codification beginning at p. 73.)

13 “. . . and finally, if in the light of elemental principles it cannot be admitted that the validity and efficacy of international pacts are subject . . . to the decision of a single high contracting party, it is necessary to conclude that the court may not uphold the claim brought against the treaty of April 6th of this year, because it lacks jurisdiction.” Loc. cit., p. 12.

14 Decision of Dec. 6, 1930, 36 Gaceta Judicial (1930–1931), p. 248.

15 Decision of Nov. 18, 1930, 36 Ibid., p. 233.

16 “Rights acquired by natural or juridic persons in accordance with law [leyes civiles] may neither be denied nor modified by subsequent law.

“Whenever the execution of a law enacted for reasons of public utility results in a conflict between individual rights and the [public] necessity recognized by the law itself, private interest should give way to public interest. But the expropriations which it may be necessary to make must be fully indemnified in accordance with the following article.” Loc. cit., p. 79; italics inserted.

17 “A public treaty is a pact creative of rights and obligations between the parties which enter into it and approve it by legislation. . . . If these rights are of a private [civil] nature, they are protected by the article [31] of the Constitution, and consequently, when alaw violates them, any citizen whatsoever . . . may complain of suchviolation.” Loc. cit., p. 236.

18 See, Decision of June 13, 1925, 31 Gaceta Judicial (1924–1925), p. 248.

In this case the court said, “. . . it is a principle of public law that the Constitution and public treaties are the supreme law of the land and their provisions prevail over ordinary legislation which is in conflict, even if the legislation is of later date.” (p. 250)

19 It is to be remembered that the court has clearly indicated that mere agreement is sufficient. The exchange of ratifications is not necessary to this situation.

20 For text, see above, footnote 5.

International Law and Colombian Constitutionalism: A Note on Monism

  • William Marion Gibson (a1)

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