Conditionally Constitutional

Abstract

Abstract The Colombian Constitutional Court has a lengthy record of testing investment treaties for their constitutional compliance. Ever since constitutional amendments prompted by the Court’s ruling that a Colombia-UK BIT was unconstitutional, the Court has consistently been deferential to the political branches, exhibiting disinterest in closely scrutinizing these treaty texts. The Court’s decision in C-252 of 2019, concerning the constitutionality of a Colombia–France BIT, exhibited less deference but favoured a more pragmatic posture, adopting a stance sitting somewhere between soft deference and soft defiance. This is because the Court takes seriously the question of constitutional conformity, insisting that the executive branch renegotiate the terms of the treaty. But rather than challenging the investment treaty regime, the Court issued a series of conditional rulings that could be remedied if the party states revised the treaty so that it looked more like investment treaty rights promoted by other capital-exporting sates. The effect of the ruling was to trim some of the treaty’s excesses so that it was more in conformity, not only with the Constitution, but with investment treaty trendlines exhibited in newer treaties like CETA’s investment chapter. The Court’s ruling does not so much stand in the way of the pursuit of new international investment agreements as it requires that Colombian negotiators make commitments that mirror capital-exporting state ‘best practices’. There is, otherwise, little daylight between investment law and Colombian constitutional law.