Revista Derecho del Estado

Tests and their Use by the Constitutional Justice

2025-04-30T21:00:32-05:00

Tests are argumentative structures used by constitutional judges to resolve recurring issues. The tests establish a common ground for deliberation and argumentation, in which the different actors in the processes of abstract and concrete judicial review participate, reinforcing the legitimacy of the decisions adopted by judges in this type of controversy. This paper examines the tests used by constitutional justice, in their variety, consistency and constitutive elements; it points to structured discretion as their foundation and discusses the legitimacy of the courts and tribunals that elaborate and apply these tests.

A Conceptual Analysis of Constitutional Res Judicata in Abstract Judicial Review

2025-04-30T21:08:42-05:00

Constitutional res judicata is a fundamental notion that provides stability to decisions that define the content of the current Constitution. Constitutional justice finds in this institution a mechanism to close debates on unconstitutionality and to consolidate both the interpretation of the text and the scope of rights. However, the flexibility in the conceptual elaborations of the Colombian Constitutional Court causes this category to collapse with other properties of judicial decisions. This paper analyzes constitutional res judicata to place its role within the conceptual framework used to recognize the effects of judicial decisions. The text argues that although constitutional res judicata coexists with other properties of a judgment, it is not reduced to them. This institution creates a second-level legal situation that ensures decisions of accept or reject norms subject to control.

Democracy, Religion, and Secularism: The Moral Climate in the Ruling of Same-Sex Marriage in Ecuador

2025-04-30T21:26:58-05:00

The relationship between politics and religion tests the principle of secularism of the State, especially when societies, in the 21st century, are considered post-secular. The 2019 ruling of the Constitutional Court of Ecuador, which approved same-sex marriage, evidenced the fragility of that principle and also the fragility of the Ecuadorian democracy due to the moral climate that religious discourse created, conditioning the understanding of the constitutional decision. The general objective of this article is to analyze three categories: deliberative democracy, religion, and the principle of secularism, with the specific purpose of proposing alternative readings that allow religious conceptions to strengthen democracy instead of weakening it. The method used is that of analytical political philosophy, furthermore, with a normative approach. Thus, it will be possible to carry out an analysis of conceptual nuances, through which deliberative democracy allows religious conceptions to be integrated into public debate, since religious thought has the potential to improve the epistemic quality of democratic decisions. At the same time, secularism implies a much more active State that responds to religious diversity in order, with its action and dialectical relationship with religions, to better guarantee the values of the political community.

The Discreet Labor of the Congress of Colombia at the Beginning of Three Peace Processes (1958, 1991, 2016)

2025-05-01T09:11:55-05:00

This article historically examines the performance of the Congress of the Republic of Colombia in the initial implementation of three peace processes- National Front (1958), Constituent Assembly of 1991, and Havana Peace Agreement (2016). Under the shadow of emergency times, the transition towards peace has yielded a democratic deficit evidenced by the weakness and lag of the Congress when starting the implementation of these three peace initiatives. This, from the outset, has hindered the proper representation and participation of conflicting actors as well as the exercise of their rights. While this trend, to the detriment of the Congress and in favor of the Government, has moderated in recent years, there is still a long way to go for the democratic principle embodied by the legislature to be fully respected.

The Protection of the Territory as a Victim of the Armed Conflict in the Framework of Transitional Justice. An Analysis of Cases 002 and 005 of the Special Jurisdiction for Peace

2025-05-01T09:23:50-05:00

El conflicto armado colombiano ha alterado la relación que numerosos pueblos tienen con su entorno natural. En algunos casos estudiados por la Jurisdicción Especial para la Paz (JEP) se ha reconocido el territorio que habitan estos pueblos como víctima del conflicto armado y por primera vez se han imputado responsabilidades por crímenes cometidos contra la naturaleza y el territorio. A partir del estudio de los casos 02 y 05 de la JEP, este artículo argumenta que la figura del territorio como víctima ha sido el resultado de la activa participación de los pueblos en la construcción del campo jurídico, poniendo en evidencia la adopción de un enfoque intercultural y un diálogo de diversas ontologías en la jurisprudencia de la JEP. Sobre esta base, propone un análisis normativo desde la perspectiva de diversas ramas del derecho internacional y el derecho penal, con el fin de ilustrar los retos que el concepto del territorio como víctima plantea a la justicia transicional.

Reconceptualization of Non-Pecuniary Damage Based on the Conventional Approach in the Integral Reparation of Conventionally Protected Assets and Rights

2025-05-01T09:32:43-05:00

The recognition of State responsibility for the commission of grave violations of human rights and international humanitarian law – resulting from the non-observance of both national and conventional norms binding on Colombia – has led to the correlative emergence of the duty of reparation. This entails the recognition of measures aimed at providing the most extensive compensation for the damage caused by proportional and comprehensive reparation. The type of reparation recognized in each case will depend on the magnitude and nature of the damage caused. However, within the traditional theory of damage and reparation, measures have been conceived that essentially seek economic compensation for damages that do not have an economic nature. This includes compensatory measures for health damage, moral damage, damage to the life project, among others. Thus, rethinking the concept of non-pecuniary damage is necessary to understand that it is constituted when the impairment affects dimensions of the victim that cannot be economically compensated in any way. Instead, they require the recognition of non-pecuniary measures aimed at restoring the essential core of the affected right.

The “Katsa Su” Territory of the Awá Indigenous People Recognized as a Victim of the Conflict: A Historical Milestone for Restorative Justice

2025-05-01T09:42:35-05:00

This research seeks to determine the importance of the recognition of the large territory “Katsa Su” belonging to the Awá indigenous people as a victim of the armed conflict, a precedent that invites to understand how this community, despite living in the flesh the armed confrontations and a struggle of the territory by external agents, demonstrates a survival of the population in order not to lose their worldview. Therefore, it is of great relevance to know their history, their customs, their identity, their own justice and how the State is currently guaranteeing the prevalence of their rights based on elements such as interjurisdictionality and interculturality. In this regard, it is noteworthy that in 2016 in Colombia a Peace Agreement was signed that creates the Special Jurisdiction for Peace (JEP), a decision-making body that currently has touched important issues for the populations wrongly called “minorities”, example of this is the recognition of the territory “Katsa Su” as a victim of the armed conflict, giving relevance to the cosmovision of the Awá regarding what they conceive as territory, the remembrance of the place they inhabit as a victim, involving in this way the rights of nature indicating these beings as new subjects of special protection and, in conclusion, repairing in a concrete way the true victims in Colombia.

Gradual Definition of Administrative Law in Academic Methodology: Systematic Construction and Language Analysis

2025-05-01T09:56:25-05:00

This paper studies the relevance of the definition of administrative law as a task of contemporary academic methodology. Based on the contributions of the systematic construction of this area of Law and the analysis of language, it proposes a concept that considers the singularity of the sectors of reference and moves away from essentialist definitions. To justify the need for the concept of administrative law, the text examines the material, subjective and eclectic criteria that have traditionally been used to characterize it. He also argues why the definition of administrative law is not just a theoretical matter. It shows that jurists must know what it means, because some substantive and procedural rules use this concept to attribute legal effects to it. In addition, it is important to be clear about the topics that enter this discipline, from a pedagogical point of view. In this way, a gradual definition of administrative law, such as the one suggested in this paper, can be useful in dogmatic and practical terms.

The Use of Topics in the Jurisprudence on Children’s Rights of the Inter-American Court of Human Rights

2025-04-30T21:33:58-05:00

This research delimits the content and scope of the measures to protect the rights of the child, established in Article 19 of the American Convention on Human Rights, based on the argumentative agreements established by the Inter-American Court of Human Rights (IACHR) in advisory opinion OC-17 and the use of this precedent in the judgments of the contentious cases. As a result, the following topics commonly used by the Court in its decisions on children’s rights were identified: best interests of the child, protection of the nuclear family, equality based on speciality and special protection measures, which acquire functionality through their relationship with a circle of problems – situations of risk or danger, conflict with criminal law, family separation and discrimination – in the arguments produced by the Court up to 2023. This paper uses the contributions of the theory of legal argumentation, especially the contributions of the philosopher and jurist Theodor Viehweg, on the philosophy of law as basic research and the legal topic, in this case that produced in the jurisprudence on children’s rights of the IACHR.

Fundamental Right to the Protection of Personal Data in Latin America: Challenges Faced with the Extraterritorial Reach of the General Data Protection Regulation of the European Union

2025-05-01T09:03:00-05:00

Advances in the field of computing have had a great impact on the processing of personal information. A consequence of this situation is the approval and recent application (2018) of the General Data Protection Regulation of the European Union (GDPR), a regulation to which an extraterritorial vocation is attributed. The importance of the Regulation is associated with the nature of the fundamental right recognized in Europe to the protection of personal data. In contrast, despite the concern about the issue in Latin America and its development in the constitutional and legal sphere, in this region this development has an asymmetrical character, a scenario that requires determining the state of the art with respect to this disparity. The above aspects, linked to the review of other elements deduced from the European Regulation, will allow us to contribute to the discussion on the challenges that the fundamental protection of personal data in Latin America must face, in view of the application of the GDPR.

Ross: Between Theory and Practice of Law. A Critical Rereading of Demokrati, magt og ret

2025-04-30T20:50:25-05:00

Alf Ross (1899-1979) is the most authoritative representative of xx’s century legal realism. From 1938, he held the chair of International Law at the University of Copenhagen, and later that of Philosophy of Law. From 1935 until 1977, he was appointed Secretary of the Chamber of Commerce. In 1953 he took part in the drafting of the Danish Constitution. Furthermore, from 1959 to 1972, Ross held the position of Judge of the European Court of Human Rights in Strasbourg. In Demokrati, magt og ret [Democracy, Power and Law], Alf Ross had selected and published some articles, previously released in various Danish newspapers over a period of about twenty years (from 1957 to 1974). The Italian translation of the Danish version (edited and introduced by Alessandro Serpe) is supplemented by two significant and more nourishing essays released some years before: “Kommunismen og Demokratiet” [“Communism and Democracy”] and “Socialismen och Demokratin” [“Socialism and Democracy”]. The former was published as a Danish brief monograph in 1945, while the latter, on the Swedish journal Tiden in 1947. In those essays, Ross reflects upon the concept of democracy, by comparing it with the concepts of Liberalism, Communism and Socialism. The articles contained in Demokrati, magt og ret reveal multiple further aspects of Ross’s thought – alongside those well-known within his legal-philosophy scholarship. From the viewpoints of chronicler and passionate political and social commentator, in these articles Ross makes evident his dedication to the practice of law, by dealing with then-actual matters falling into a wide spectrum of domains: from philosophy of law to criminal law, from international law, to political science and comparative law.

¿Balance in Access to Justice Between Foreign Investors and those Affected by Operations of Transnational Companies?

2025-05-01T09:50:35-05:00

The right to access to justice constitutes an essential condition of the rule of law and a international minimum standard. This article seeks to highlight the current imbalance between foreign investors, especially transnational companies, and those affected by their activities, regarding the access to justice at foreign investment law and international human rights law was developed. Both international and national case law and arbitration practice on investment matters constituted an important source of analysis.