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PGDP: Los tratados Internacionales en el derecho argentino — Transcript · YTtoTranscript

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PGDP: Los tratados Internacionales en el derecho argentino

UBAXXI · 2,224 words · 11 min read · EN

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Below is the complete, readable transcript of PGDP: Los tratados Internacionales en el derecho argentino by UBAXXI on YouTube. Read the full text, copy any part you need, or generate a transcript for any video with our free tool.

Good morning, my name is Agustina Jerueira, I am a teacher in Professor Mariano Genovesi's chair of General Principles of Private Law. And in this video we are going to cover the content corresponding to chapter 2 of our book. Please remember that this video is made available provisionally until the production and editing process of the

final video, which will also be uploaded to the campus, is completed. Imagine that Argentina signs a treaty and that treaty says one thing. Years later, Congress passed a law that said the opposite. You are judges and you have to resolve a case in which both rules apply. Which one would you use? The answer changed over

time. Today we will see where the problem originates, what models exist to solve it, what solution was in place until 1994 in our country, and how the system is structured after the constitutional reform. First, we need to define what an international treaty is. An international treaty is an agreement made in writing between states and

governed by international law. The definition comes from the British Convention on the Law of Treaties, which Argentina approved through Law 1986. The normative starting point is Article 31 of our Constitution, which tells us that the Constitution, the laws of the nation that are consequently enacted by Congress, and treaties with foreign powers are the

Supreme Law of the Nation. In other words, our article 31 lists three issues or elements: the Constitution, the laws, and the treaties. And it says that all three are supreme law, but it doesn't say in what order, it doesn't rank them. And if the text does not establish a hierarchy, when two of

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those rules contradict each other, there is no express rule in that article to decide which one prevails. That gap was gradually filled by jurisprudence and was finally closed by the 1994 constitutional assembly. Now, to understand the relationship between domestic law and international law, we can refer to the theory that distinguishes two models, monism and

dualism. Dualist systems establish that there are two distinct normative systems, international law and the internal law of each country, independent of each other and mutually isolated. Some consequences arise from that separation . First, there are different recipients. International rules are directed at countries, while internal rules are directed at individuals. Secondly, for a

treaty rule to be applicable to a person, it must be incorporated into domestic law or internalized, for example, by a law. And until that happens, it cannot be invoked or applied by judges. Third, just as one law incorporates this provision of international law, another may exclude it. And the fourth, as a prior definitive law treaty of equal hierarchy, in

case of conflict the principle applies that the later rule prevails over the earlier one. Morist systems, on the other hand, maintain that international law and domestic law are part of a single legal system, and for that legal system to be unitary, one of them has to be subordinate to the other. In other words, one of them has to

prevail over the other. From that, two variations emerge. Absolute monism, which establishes that treaties are above domestic law, and moderate monism, which gives precedence to domestic law. Until the early 1990s, the Court upheld the theory of equivalence or parity of rank between treaty and law. This doctrine was established by President Martin and company, who

have in the chapter that is from 1963, which is based on certain arguments. First, neither Article 31 nor the then Article 100 attributed precedence or superiority to treaties with respect to the laws of Congress, because both were equally qualified by Congress, that is, both were sanctioned by Congress and therefore there was no

normative basis to grant priority of rank to either. If the two rules then had the same hierarchy, the conflict was not resolved by hierarchy, but by a temporal issue. Later rules took precedence over earlier ones. Therefore, under this doctrine, under the doctrine of the Martín y Compañía ruling, the treaty is valid in the internal order as just

another law and can be displaced by a subsequent law. In 1992, under President Mejián, the Court abandoned that doctrine. The treaty takes precedence over the law. The Court builds arguments that we are going to analyze at this moment. The first is that the treaty is a complex federal act. For this, it resumes the process by

which the treaty is formed, ratified, or incorporated. He says that first the executive finalizes and signs it. Congress then either rejects it or approves it through a federal law, and then the Executive Branch ratifies it. In this way, a federal act of national authority is issued . There are two powers that intervene at three different times and

thus form a complex federal act. Therefore, if a single law of Congress could repeal the provisions of a treaty, a law would be repealing a complex act in whose formation the executive also intervened, and that would violate the distribution of powers imposed by the Constitution and would be an unconstitutional advance of the legislature over the

powers of the executive, which is the one that exclusively and solely conducts the foreign relations of the Argentine State. The second argument supporting this prevalence of the treaty is that Article 27 of the Vienna Convention tells us that a party cannot invoke the provisions of its internal law as justification for non-compliance with

a treaty. In other words, the Vienna Convention gives primacy to international law over domestic law, and that priority was already incorporated into the Argentine legal system. As I told you, it was incorporated through a national law. So, there was already in Argentine law a recognition of the primacy of international law over domestic law.

Again, then, the proposition that there is no normative basis for granting priority to the treaty over the law, as argued in Martín y Compañía, is no longer accurate; rather, there is now a normative basis that supports the priority of the treaty over the law. Certain consequences arise from this new doctrine . First, a

treaty violation can be by action or by omission. A state is in breach both when it enacts internal regulations that are manifestly contrary to the treaty and when it fails to enact provisions that would make it possible to comply with what the treaty stipulates. The second consequence, the operability of the clauses. When a treaty is ratified

, the State undertakes to ensure that its organs apply the treaty to the cases it contemplates, provided that they contain descriptions specific enough to allow for immediate application. In other words, a distinction is made between an operational norm, which is one that is directed to a situation in reality in which it can operate immediately, without the

need for Congress to establish institutions, laws or other matters relating to its application, versus the programmatic norm, which is one that does require prior legislative development by Congress. So, going back to this idea, the operability of the clauses implies that upon ratification of a treaty, the internal bodies already apply the operational rules

to the cases they contemplate. How can they distinguish between an operational and a programmatic norm? Well, perhaps a first way to distinguish it is the wording of the text itself. If the text says everyone has the right to freedom of expression, this indicates operability. The law, on the other hand, must recognize that it is a formulation of a

programmatic norm. Again, if the text tells us that everyone has the right to this, it indicates operability. If, on the other hand, the text says, "The law must recognize or it will be prohibited by law, this refers to prior legislative activity and there we find ourselves facing a programmatic norm." So far, what we have seen

are issues that the Court resolved without the Constitution saying anything about hierarchy. Two years after Mejian Konofovic, the 1994 constituents adopted that doctrine. They rewrote it and took the opportunity to do something even more ambitious, which was to create a new level for human rights treaties. The new scheme pivots between three articles: 27 and 31 of

the Constitution, and 75, which was reformed and was formerly article 67. Certain rules arise from the interplay of these three articles. First, Article 27 states that the federal government must strengthen its relations of peace and commerce with foreign powers through treaties that are in accordance with the principles of public law established in the

Constitution. Rule number two arises from article 31. The Constitution, the laws and the treaties are the supreme law of the nation. Rule number three is that there are certain international human rights treaties that have the same hierarchy as the Constitution and are listed in article 75, paragraph 22. The fourth rule is that

the remaining treaties with other nations or concordats with the Holy See have a higher hierarchy than laws, but not constitutional hierarchy. So, this is the most significant new feature of the 1994 reform. Now we have a constitutional framework that considers the Constitution and human rights treaties on the same level. Article 75, paragraph 22 lists 10

instruments and, in addition, subjects this hierarchy to three formulas. First, treaties are valid under the conditions of their validity, that is, they enter into our legal system as they effectively govern at the international level with their reservations, with their interpretative declarations and according to the predominant reading with the interpretation made by their

application bodies. The second formula states that these treaties do not repeal any article of the first part of the Constitution, that is, the dogmatic core of the constitutional text is preserved. And the third rule is that these treaties must be understood as complementary to the rights and guarantees recognized by the Constitution. In other words, the relationship between treaties and the

constitution is not one of substitution or competition, but of complementation. The treaty adds to, clarifies and expands upon, but does not replace what is already provided for in the Constitution.

Vidar Campos defines the constitutional block as a set of norms that starts from the Constitution and adds provisions, principles and values that are materially constitutional, that are outside the text of the written Constitution and that serve for the interpretation of the Constitution and the integration of normative gaps. There are two ways to enter this constitutional framework. The

original enumeration, which are those 10 instruments listed in section 22 of the 1994 constituent and the subsequent incorporation. Congress can add other instruments to the constitutional framework as long as a special majority of two-thirds of the total members of each chamber is reached. That is to say, three more instruments can be added to those 10 instruments,

and in fact they have already been added. Now, to refer to the other treaties, those that are not human rights and are not part of the constitutional bloc, these have a higher hierarchy than the laws, but are not above the Constitution. They have supralegal hierarchy. Now, a question arises: this scheme is barely understandable. We already

know that the treaty has supremacy over the law and any other lower-ranking norm. What about the Constitution? What about the relationship between the treaties of the constitutional bloc and the Constitution? The answer is based primarily on Article 27 of the Constitution, which states that there is a sphere of sovereign reserve delimited by the principles of

public law established by the Constitution, to which treaties must conform and with which they must comply. It follows that it is not possible to automatically give precedence, without any scrutiny, to international law over the constitutional order, but rather it is necessary to review whether it is respectful and compatible with this sphere of sovereign reserve.

And in addition to that, it is important to note that by giving constitutional status to human rights treaties, it is clarified that their rules do not repeal any article of the first part of the Constitution. This discussion about the link between human rights treaties that form part of the constitutional bloc and the Constitution

is far from over and has divided the court itself. You will see this reflected in the chapter's rulings, particularly in the ruling of the Ministry of Foreign Affairs or Fonte Bequia, which you will find closer to the end of the chapter. So, let's review. Above all, we have with constitutional hierarchy our Constitution plus the

human rights treaties established in article 75 paragraph 22 and those incorporated by special majority. This is the constitutional framework. One step below, with supralegal hierarchy, we have the other treaties and then the laws. Again, try to review this issue. Don't forget to review the rulings in this chapter, which are very important, and particularly the

most recent one, which is from the Ministry of Foreign Affairs or Fontevequia, found at the end of the chapter, which will give you an overview of how jurisprudence itself has interpreted the relationship between the Constitution and international treaties and between the Constitution and the treaties that form part of the constitutional bloc. See you in the next videos.