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Published online by Cambridge University Press: 27 February 2017
The judgment of the Supreme Court of Colombia, rendered upon the petition by a citizen to declare Law 20 of 1974, approving the concordat between the Holy See and Colombia, to be unconstitutional, deals with one of the most controversial aspects of the interface between international law and constitutional law under many modern constitutions. In most contemporary constitutional systems, the conclusion of international agreements requires parliamentary participation. In the United States only one house—the Senate—must give its advice and consent, but in the majority of states with bicameral systems, including Colombia, the approval must be given by both houses, usually in the form of a statute, the so-called ratification law. According to Article 120, subsection 20, of the Constitution of Colombia,
it is the task of the President, as head of the state and highest administrative authority, to conduct the diplomatic and commercial relations with the other nations and entities under international law … and to conclude with other nations and entities under international law treaties and conventions, which are to be subject to approval by Congress.
1 See Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal, 74 AJIL 892, 898–900 (1980).
2 E.g., Austria, the Federal Republic of Germany, Italy, Spain and Chile.
3 Constituclon Nacional [CN] Art. 214 (Colom.).
4 The Supreme Court of Colombia is divided into four chambers, dealing with issues of private law, criminal law, labor law and constitutional law, respectively. However, the complaints of individuals challenging the constitutionality of legislative acts or statutes (demanda de inconstitucionalidad de un acta legislativo o demanda de inexequibilidad de una ley) must be decided by the full Court after deliberation of the constitutional chamber. See López Blanco, Instituciones de Derecho Procesal civil colombiano, Parte general 60 (3d ed. 1983); Decree 432 (Mar. 26, 1969); 3 Ospino García, Codigo de Procedimiento civil 58 (1985).
5 CN Art. 118, subsec. 7.
6 Arts. VII, VIII.
7 Arts. XI, XII.
8 CN Art. 214.
9 CN Art. 53.
10 CN Art. 214. The composition of the Court is determined by statute. CN Art. 147. Currently, the Court is divided into four chambers (salas) and has 24 members. See supra note 4.
11 1987 Universitas 291–99.
12 1987 Universitas 301–03.
13 Legislative Act No. 3 of 1910, reformatorio de la Constitutión nacional, Art. 41.
14 23 Gaceta Judicial [Gac. Jud.] 9(1914) (constitutional complaint by Carlos José Espinosa challenging the constitutionality of Law No. 14 of 1914 approving the conclusion of the treaty between Colombia and the United States of April 6, 1914, “for the settlement of differences arising out of the events which took place on the Isthmus of Panama in Nov. 1903,” 42 Stat. 2122).
15 138 Gac. Jud. 274 (1971), reprinted in 10 Derecho de la Integración 155 (1973). See Riesenfeld, Legal Systems of Regional Economic Integration, 22 Am. J. Comp. L. 415, 442 (1974).
16 Designated as comments on the judgment.
17 Judgment No. 41, 14 Jurisprudencia y Doctrina [Jur. Doc.] 1064 (1985) (constitutional complaint by E. Rojas Arias).
18 187 Gac. Jud. 580 (1986) (constitutional complaint by J. Hernando Hernández).
19 Law No. 27 of 1980.
20 The Court apparently proceeded on the theory that the approbation law required promulgation (CN Art. 85) prior to ratification pursuant to that law.
21 As to the reason for that delegation, see Kavass, Introductory Note (to Judgment of June 25, 1987), 27 ILM 492, 493 (1988). In his discussion, Prof. Kavass omitted Article 120, subsec. 20, which mandates congressional approbation.
22 See note on the Nicolo case, 84 AJIL 765, 766 (1990).
23 For instance, in Italy it has been held that a law authorizing the ratification of a multilateral treaty and ordering its domestic application is not operative until the President has duly ratified the treaty, with the consequence that prior to that time the statute, though promulgated, is not subject to adjudication of its constitutionality. Constitutional Court of Italy, Order No. 282 (Sept. 29, 1983), concerning Law No. 305 of 1977 (authorizing ratification and ordering execution of the European Convention on the International Validity of Criminal Judgments), 28 Giurisprudenza Costituzionale I, at 1807 (1983), 67 Rivista di Diritto Internazionale 149 (1984). In that case, the law actually prescribed its entry into force three months after the deposit of the instrument of ratification as agreed in Article 58 of the Convention, but the Constitutional Court indicated that the order of internal application is necessarily conditioned on the entry into force with respect to Italy of the Convention itself.
24 Judgment of June 25, 1987, translated in 27 ILM 498 (1988).
25 See the background recounted by Kavass, supra note 21.
26 Two of the dissenters did not attend the final session, because they were out of the state on a special mission.
27 18 Jur. Doc. 882(1989).