The Empty Chair: US Bases Getting the Boot from Colombia?
There is a majority in the Constitutional Court to overthrow the agreement on U.S. bases
For several hours, the full chamber of the Constitutional Court discussed the August 11 agreement allowing the gringo military the use of seven military bases. The meeting finished without reaching a decision. Although there is still the intervention of two judges missing, three different official sources told The Empty Chair that there is a clear majority to overthrow this agreement between Colombia and the United States.
Most judges would vote in favor of a presentation by Jorge Ivan Palacio, who proposed to declare the agreement unconstitutional and defer the impact of this declaration until June next year. Palacio agrees with the arguments in a non-binding concept of the State Council.
As explained at the time, this means the agreement between the two countries is quite elastic and leaves several issues for future development. Unlike the Manta Agreement (which, when expired gave rise to Colombia) which specified exactly where the planes could fly, this agreement does not say anything about it. The Agreement does not say anything about caps with the U.S. military presence in Colombia.
And with regard to immunity, the Americans achieved their mission, which was to protect all staff, civilian and military, against any disciplinary action for crimes in Colombia, no matter that these have not been committed as part of their service. The only people who may be tried in Colombian courts are the military contractors. On taxation, even spouses were exempted. And in terms of visas, civilians are included.
The axes of debate
The debate in the full chamber has revolved around two points. The first is whether the agreement concluded on October 30, 2009 between the governments of Colombia and the United States is an international treaty or is simply a 'simplified agreement' to develop an international treaty.
The difference is important because if it is considered an international treaty, then it has to be submitted to Congress for approval, a step the government of Alvaro Uribe saved itself. If it is a 'simplified agreement', which is limited to developing an international treaty as a decree develops a law, this procedure would not be necessary.
The Court's jurisprudence is clear that no matter what you call the agreement, if it incorporates new and far-reaching obligations for the State it is a question of an international treaty. And it is considered new if not covered in the 'mother' International Treaty or if they exceed the obligations established there.
Uribe's government argued before the Court that this agreement is simplified because it develops many cooperation agreements with the United States.
The problem is that these previous agreements put forward by the Government that have something to do with the use of military bases was not passed by Congress either, that is to say, they were not international treaties either. And there is a consensus in which it is not possible to sign a simplified agreement based on another simplified agreement.
Plan Colombia II, signed during the Uribe administration, for example, was "a memorandum of understanding for a strategic security relationship." It was an inter-administrative agreement between the Ministry of Defence and the Pentagon, signed by former Foreign Minister Fernando Araujo and former Defense Minister Juan Manuel Santos with former U.S. Ambassador William Wood.
Taking advantage that less than six months had passed since the attack on the Twin Towers in New York, and the war against terrorism was in full swing, Uribe was able to expand the U.S. Plan Colombia signed by Andres Pastrana as a binational administrative agreement. In the new agreement, restrictions were lifted as the initial terms called only for counternarcotics operations. It was now extended to the anti-insurgent struggle. That is, you could attack the guerrillas and the growing of cocaine was not being taken care of.
At first, it was understood that the agreement to allow the use of military bases was a 'development' of Plan Colombia. But Plan Colombia was never an international treaty, or passed by Congress.
The argument of the minority
Colombia and the United States have signed international agreements and multilateral agreements against drugs, but most judges, Mauricio Gonzalez and Jorge Pretelt are part of the exception, have thought that they are too generic and do not include obligations of importance to the Colombian state such as regarding the exercise of sovereignty, tax exemptions, criminal immunities, including military families, like the new agreement for the bases.
The minority argues that 'state practice' in the implementation of previous military cooperation agreements and treaties were valid even though not passed by Congress. They have also proposed to interpret this agreement, which for them is simplified, in the light of the macro objectives of a relationship of long-standing military cooperation between both countries. Their view is also that in a globalized world it is normal that treaties are generic and are developed using the simplified arrangements to meet changing conditions.
The other point that has turned the discussion is about the scope of the jurisdiction of the Court to consider the demand: at one end, a proposal was to inhibit the court's involvement, while the other defended the idea that the Court, by-procedural efficiency, should come to consider the constitutionality of the relevant agreements, once approved by Congress and sent to the Court for examination. But the two arguments failed to convince the majority.
So, what the judges have to decide today is whether they simply knock down the agreement. Or if, as proposed by the reporting judge, they knock it down but defer the execution of the sentence until June next year to allow time for the new government to renegotiate the treaty, submit to Congress for approval or refrain from doing so and denounce it to end its effects.
In either case, the agreement on military bases, with which Uribe showed his teeth to Chavez and FARC, have their hours numbered.
Translated from the Spanish version by: