Revista Derecho del Estado

Cuando despertó, la representación política todavía estaba allí. A propósito de El sistema representativo. Las representaciones políticas y la transformación de la democracia parlamentaria, por Felipe Rey, Barcelona: Gedisa, 2023

Alejandro Cortés-Arbeláez — Mon, 29 Apr 2024 00:00:00 -0500

Are All of Us Vulnerable when Ageing? Legal Theory’ Contributions for the Judicial Decision-Making

María Isolina Dabove — Mon, 29 Apr 2024 00:00:00 -0500

This paper addresses some questions posed to the Law by the current scenario of global aging: are we all vulnerable when we age? Old age is still a contingency? What criteria do judges use to make decisions that affect the rights of older people? Do these approaches comply with the current gerontological perspective and with current human rights standards for this group? To answer these questions, the research was organized into five axes. (1) The meanings of the term vulnerability, its origins and its legal scope are studied. (2) The concepts of old age and vulnerability that judges have been using when making decisions regarding the rights of the elderly are considered, from the beginning of the Argentine State –1853– to the present. (3) The complex approach to old age of current gerontology and that of human rights standards on this stage of life is analyzed; they also distinguish the scope that they have for the development of affirmative action policies with respect to those of the judicial framework. (4) Finally, intersectional criteria are postulated that can be useful to interpret and establish judicial decisions regarding the position of vulnerability of the elderly in question. For this, the differential and intersectional approach of the right of old age is taken into consideration.

Fundamental Right to Dignified Death in Colombia. A Jurisprudential Correction to A Legislative Omission

Santiago Aicardo Vergara, John Fernando Restrepo — Mon, 29 Apr 2024 00:00:00 -0500

The failure to explicitly enshrine the right to a dignified death in the Constitution and its lack of legislative development have not been an impediment for the Constitutional Court to recognize the existence of this right and determine its legal nature as a fundamental right. Initially this normative concession was recognized as a fundamental right due to its connection with the rights to human dignity, life and the free development of personality. The progressive development of jurisprudence has made it possible to understand that the right to a dignified death is a complex and autonomous fundamental right that can be translated into a subjective right. It is a complex right because it depends on very particular circumstances for its configuration and involves criminal elements that distort or reinforce its guarantee. It is an autonomous right insofar as its violation is not conditioned to the transgression of other constitutional rights and although it is related to the right to life, dignity, autonomy, health and other rights, it retains its independence as a fundamental constitutional guarantee.

An Interpretative Model for the Progressive Enforcement of Social Constitutional Rights

Jorge Alexander Portocarrero Quispe — Mon, 29 Apr 2024 00:00:00 -0500

This article addresses, from a theoretical perspective, the problem of the enforcement of fundamental social rights. The central thesis of the article claims that this enforcement can take place by means of a progressive three-level model, namely: the level of basic functionality, the level of welfare optimization and the level of welfare supplementation. The article begins with the justification of the equiparability of fundamental social rights with the “traditional or classic” fundamental rights, this being the theoretical requirement to justify the justiciability and enforceability of fundamental rights; it then goes on to develop the idea of the minimum core obligation to incorporate it as the first level within the progressive structure of enforcement. Finally, this theoretical model will be tested by reconstructing the Cuscul Pivaral et al. v. Guatemala case, ruled by the Inter-American Court of Human Rights.

The Principle of Non-Discrimination in the Legal Systems of Spain and Ecuador

Grisel Galiano Maritan — Mon, 29 Apr 2024 00:00:00 -0500

As it is known, for some years now, the law has been developing one of the most important legal regulations of our times, the significance of which is becoming increasingly undeniable. This is precisely the so-called “Non- Discrimination law”, composed of all non-discrimination community directives, as well as their incorporation into the domestic law of states. Hence, the fundamental topic of this article, which aims to review the regulatory framework of the prohibition of discrimination in the legal systems of Spain and Ecuador. The goal is to understand the main normative principles that recognize the rights of individuals in various cases of discrimination. To achieve this objective, methods and techniques typical of a socio-legal research were employed, including historical-logical analysis, exegetical-analytical method, comparative law method, and, of course, bibliographical analysis. Through the examination of doctrinal, legal, and jurisprudential sources, a comprehensive analysis of the research object was carried out, allowing for the achievement of the proposed objective.

The Communication of Constitutional Cases and it’s Diffusion in Judicial Hierarchies: An Analysis of the Mexican Case

Gladys F. Morales Ramírez — Mon, 29 Apr 2024 00:00:00 -0500

The literature specialized in the transmission of judicial precedents in the United States of America identifies that the communication strategies developed by the sender court has impacts its application in the judicial hierarchy. This article follows the United States’ literature and presents the findings of an empirical research conducted in Mexico’s judicial system, with the purpose of analyzing the formal and informal mechanisms developed by the National Supreme Court of Justice to communicate its precedents among federal and state courts.

Legal Foundations of the Pluri-National State: Reconfiguring Constitutionalism’s Central Categories

John Charney, Manuel Núñez — Mon, 29 Apr 2024 00:00:00 -0500

This paper explores the normative foundations of the plurinational State in the global North and in Latin America. While the legal/juridical justification of the first rests on the basic principles of liberalism, the second rests on the tenets of international human rights law, specifically on the international law of indigenous peoples. Regardless of all their differences, some of which are significant, the paper claims that both are part of a critical approach that aims at reformulating some of the central categories of constitutionalism. Finally, the paper describes the impact of plurinationalism in the current Chilean constituent debate.

Parliamentary Control in Mexico

Gonzalo Santiago Campos — Mon, 29 Apr 2024 00:00:00 -0500

Parliamentary control can be understood in two senses: strict and broad, the difference between one and the other being the direct legal consequences. And it is through the broad sense, through which it is considered that the Congress or Parliament carries out control activities regardless of whether they cause a concrete or immediate legal effect, that it can be considered that countries with a presidential regime – such as the case of Mexico – it has parliamentary controls. Thus, in the constitutional history of Mexico, the Legislative Power has been endowed with tools to control the other powers, in particular the Executive Power. This work focuses on reviewing parliamentary control in the history of Mexico, especially from the Political Constitution of 1917 and its various reforms, in addition to reflecting on the perspective of parliamentary control in Mexico.

Constitutional Justice and Subnational Constitutionalism in Mexico

Josafat Cortez Salinas, Camilo Saavedra Herrera — Mon, 29 Apr 2024 00:00:00 -0500

To what extent do conflicts over the content of local constitutions affect constitutional justice bodies? Taking Mexico as a case study, this works provides an answer to this question through the analysis of litigation regarding the content of subnational constitutions presented in the Mexican federal system through the two figures of constitutional control exclusive to the jurisdiction of the Supreme Court. Based on a systematization of records of actions of unconstitutionality and constitutional controversies filed in the period 1995-2015, a significant difference in the use of litigation is highlighted as the main finding. In the case of actions, litigation originated from federal actors and focused on electoral provisions, while in the case of disputes, it arose from local and municipal actors and focused on rules regulating access and the exercise of public resources, as well as how public officials should perform their functions.

Fighting Corruption in Latin America and the Caribbean at a Supranational Level: Balances and Challenges of the Inter-American Convention Against Corruption

José Ignacio Hernández G. — Mon, 29 Apr 2024 00:00:00 -0500

The 1996 Inter-American Convention Against Corruption was the first treaty signed to tackle corruption at a transnational level. The Convention was adopted due to the increasing interest of the Organization of American States to protect democracy in the region, particularly against corruption and other vices of elected Governments. In that sense, the Convention promotes the convergence of national anti-corruption frameworks and international cooperation in transnational corruption cases. To improve its effectiveness, in 2001, the Organization created a Follow-up Mechanism based on consensual and technical cooperation. In 2016, a further step was adopted with the creation of the Mission to Support the Fight Against Corruption and Impunity in Honduras, which was terminated in 2020 by the Honduran Government to protect national sovereignty. The Convention demonstrates that the greatest weakness of supranational responses to corruption is the lack of international enforcement mechanisms. To address this situation, the Organization of American States has created flexible instruments to supervise the fulfillment of the Convention based on the cooperation and collaboration of the states. However, the defense of national sovereignty (due to the non-intervention principle) and the State’s fragility to implement anti-corruption policies have created further challenges.

Legal Globalization Facing Free Trade and Rural Development in Colombia

Silvana Insignares Cera, María Andrea Bocanegra Jiménez — Mon, 29 Apr 2024 00:00:00 -0500

Legal globalization is a phenomenon that responds to the plurality of events that occur in the cultural, economic and social spheres of globalization. In this, it is possible to identify multiple aspects such as the universal protection of human rights, the unification of the sources of law and legal theory and new forms of corporate economic negotiation. In this article, free trade agreements are analyzed as manifestation of this globalization, not only because of its economic aspects, but also because of the non-economic costs involved in the implementation of state policies aimed at the legal protection of human rights. Furthermore, in some cases those treaties do not consider specific social aspects from the countries involved in the agreement. Particularly in the Colombian case, it is worth to analyze the existent tensions between FTA signed with the United States and the political and legal measures implemented against rural development in the rice sector.

Constitutionalizing Legal Transnational Actors: A Theoretical Legal Model to Counter the Wild Powers of Deregulated Globalization

Iván Leonardo Martínez Pinilla — Mon, 29 Apr 2024 00:00:00 -0500

The paper presents a theoretical model of law capable of interpreting the pressing needs for responsibility imposed on transnational actors in the face of obligations to respect human rights and the role of the State in guaranteeing them. The document interprets the phenomenon of the constitutionalization of law in a transnational key starting from an antithetical condition between constitutionalization and anarcho-capitalism. This study proposes a strong criticism of the global trend for deregulation, emphasizing in the deontic paradox of a deregulated international commercial law and an international and constitutional law regulated by fundamental rights. Once this criticism has been made (anarcho-capitalism vs. constitutionalization), the author finds in post-positivist constitutionalism a paradigm capable of opening an orderly research program (a method of analysis) that allows raising the questions of a constitutionalization of International law. Finally, based on the basic postulates of the chosen theoretical paradigm the author proposes several research problems or “niches” that aim to serve as a “starting point” or complement for future research around the phenomenon of the constitutionalization of transnational actors.

Índice temático

Revista Derecho del Estado — Mon, 29 Apr 2024 00:00:00 -0500

The Duties of Solidarity do not Judicially Justify the Civil Liability of the State in Colombia

Luis Felipe Giraldo Gómez — Mon, 29 Apr 2024 00:00:00 -0500

There is a jurisprudential practice of resorting to the principle of solidarity as an argument to support a sentence for civil responsibility of the State. This paper aims to show that this position is not adequate; Although solidarity is a founding value of the Social and Law State embodied in the Political Constitution of 1991, none of the generic constitutional duties that emanate from this principle aim to generate an obligation to make reparation by an individual or by the State under its title of civil liability. The principle of solidarity constitutes a philosophical foundation of damage compensation mechanisms, but the differences that exist between unilateral mechanisms that seek to socialize damages resulting from social risks must be recognized, compared to bilateral ones such as civil liability, in charge to generate the obligation to make reparation in the head of who has caused damage. Under these conditions, it is not correct to impose in court the obligation to make reparation by way of civil liability to an individual or to the State based on the principle of solidarity; such a practice implies a clear transgression of the rules of the bilateral system of compensation for damages, an excess of the functions by the judge and an undue mutation of the function of civil liability.