María Alejandra Díaz Marín
The National Territory of the Bolivarian Republic of Venezuela cannot and may not be ceded, transferred, leased, or in any way alienated, temporarily or partially, to any foreign State or to subjects of international law; This is expressed in our Constitution in Articles 10 and 13 where it defines that “the territory and other geographical spaces of the Republic are those that corresponded to the General Captaincy of Venezuela before the political transformation initiated on April 19, 1810 with the modifications resulting from the Treaties and arbitration awards not vitiated of nullity”, as is the case of the Arbitration Award of 1899 that defined borders between the British Empire and Venezuela in an illegal and unlawful manner and stripped us of the territory of the Guayana Esequiba.
As in that case, any treaty, pact, action or decision of any International Court (which presents itself as supranational) would be unenforceable, if it contravenes, undermines or violates the Constitution. For this purpose, we rely on the powers of the Constitutional Chamber, as established in the decision of the Chamber 02-278 dated 02/19/2002, which delimits the scope of Article 23, which establishes the Treaties on Human Rights as domestic law, to the extent that they contain rules on their enjoyment and exercise more favorable than those set forth therein.
Treaties, Covenants and even decisions of International Courts, as well as their applicability, must be adapted to the framework of National Sovereignty, otherwise, if they were applied directly and without taking into account the circumstances pertaining to each particular State, we would be in the presence of what the doctrine has called delegated or derivative justice criticized in some European countries, as can be read in the sentence 1236 of July 1, 1992 of the Spanish Constitutional Court, also known as Transnational Justice by the author Mauro Capeletti.
The undersigned dares to test the concept of Agreed Justice Derogatory of State Powers because there is a risk that the rules of domestic law of a State end up being a franchise of the external conventional normative system or an exception to the rule if these Treaties or decisions were applied directly by a supposed supranational character of the same. Contrary to this would be that the Treaties, pacts, decisions of international organizations repeal laws or reform the National Constitution violating the principle of intangibility, hence the American legal society since 1812 with the judgment of Judge Marshall, did not accept the Block of Constitutionality or Block of Conventionality, dictating jurisprudence in this regard, through its very particular system of the Right Cercioraty.
By assuming this position, Venezuelans not only correspond to a matter of national interest and the Security and Defense of the Nation, but also strengthen our alternative project to globalism. The contrary is to surrender to the anti-national deconstructive and postmodern theses (Butler) used to dismember the sovereign Nation States, a hindrance to the voracity of the global corporatocracy and the globalists.
Defending the position of the Constitutional Chamber (Rulings 1077, 1939 and 278 among others); regarding the treatment that should be given to treaties, conventions, pacts or international decisions on human rights as a primary source of domestic law, without taking into account the conception of the constitutional model and its inapplicability without the due control of constitutionality, is fundamental because they intend to gamble the national territory in an International Court, as if it were a dice game, ignoring the principle of Sovereignty and that “every constitutional text comes from a political act of an ontological nature if we understand ontology as a reflection of a foundational nature, it is evident that such a process, insofar as it proposes to reconstruct the juridical bases of the Republic is therefore ontological…” (C. Paván)
Our model holds that, with respect to the scope of the block of conventionality, they are not regulations of supra-constitutional rank and their scope only prevails in the internal order to the extent that these treaties, covenants, conventions or decisions on Human Rights contain norms on their enjoyment and exercise more favorable to those established in the CRBV. Obviously, in order to claim their preferential application, there must be an antinomy within the constitutional system that must be resolved by the Constitutional Chamber. (Ruling SSC N° 1942/2003).
The basis for this criterion is that any solution to the antinomy must be based on the principle Interpretatio favor Constitutione, that is to say, that “the standards to settle the conflict must be compatible with the political project of the Constitution (democratic and social State of law and justice) and must not affect the validity of said project with ideological interpretative choices that privilege individual rights at the extreme or that accept the primacy of the international legal order over national law to the detriment of the sovereignty of the State” (Decision of the Constitutional Chamber (SSC-N° 1309/2001).
On the other hand, Ruling SSC No. 1265/2008 established that, in the event of a contradiction between the Constitution and an international convention or treaty, “the constitutional norms that privilege the general interest and the common good must prevail, and the provisions that privilege the collective interests over the particular interests must be applied”. In such a way that, when applying “The control of conventionality”, which implies the confrontation between the internal constitutional order and the international conventions for the solution of any controversy, the Constitutional Chamber pronounces in its interpretation by the Thesis of the Sovereignty of the Constitution against the System of Sources, denying the application of an Agreed Justice Derogatory of Powers of the State as we have coined, this issue is vital in view of the forced action attempted against Venezuela from the International Court of Justice for the case of the Essequibo.
According to this criterion, the concept of Sovereignty is in the first place the principle according to which any treaty, agreement, pact or decision of multilateral organizations must be interpreted, understood as: the unlimited power or dominion that the Nation has to determine its own political form (the constituent power), independence towards the external and embodied in an act of order (the Constitution) that creates the State as the organization holder of the powers, functions and powers that will be exercised by certain organs.
Before any decision contrary to the CRBV, which transgresses its principles and violates our territorial rights which are non-negotiable, we must invoke the principle of “Constitutional Sovereignty and the principle of interpretatio favor Constitutione” assuming for itself; the doctrines of Spain and Germany, countries whose Constitutional Courts before the so-called Treaty of Maastricht, decided that the International Treaties are always subordinated to the Constitution, as evidenced by the fact that to conclude them the sovereign concurrence of all is needed; being that these could contain stipulations contrary to the Constitution, the latter must be previously reformed by sovereign decision. Both Courts clarify that it is not possible then, due to an erroneous interpretation of the Constitution, to allow, through an International Treaty, to reform it by means of derived competences without infringing the principle of non-derogability of the sovereignty of the constituent power.
Another aspect to consider when interpreting the scope of decisions, treaties or agreements that affect the Constitution is the principle of Practical Concordance, which provides for a systematic conception of Law, avoiding sacrificing a constitutional norm when applying another of the same nature, excluding the independent interpretation of constitutional texts isolated from the whole. The principle consists of coordinating the content of various constitutionally relevant institutions and linking them together, in order to interpret and understand the meaning of each one of them.
The implementation of this principle is equivalent to the application of the systematic method: the integral and harmonious set of parts interrelate and interact according to common principles of operation, requiring to determine the essential content of a right in coordination with other constitutionally relevant principles or requirements, in this particular case of our analysis, must be contrasted with the non-derogability of the principle of Sovereignty.
When interpreting the Constitution, it is necessary to ensure that some constitutional norms are not sacrificed for others, in accordance with the “principle of unity and the direct applicability of its provisions”, better known as “normative binding of the Constitution”, which is fully assumed by the continental European tradition. Our constitutional system, especially our Constitutional Judges in their work of interpretation, must adhere to the functions and competences that the constituent has assigned to them, so that when interpreting, they must also ensure respect for fundamental rights and that these are always guaranteed. Thus, in his interpretative work, the Constitutional Judge must ensure that the balance inherent to the Constitutional and Democratic State, which is a prerequisite for the respect of fundamental rights, is fully guaranteed.
In this line of argument, from Spain, in different judgments regarding the Treaty of Masstricht, rejected by the Constitutional Court in judgment 1236/1992 of July 1, 1992, it has been said that the Cortes Generales can, in short, cede or attribute the exercise of powers derived from the Constitution, not dispose of the Constitution itself, contradicting or allowing its determinations to be contradicted, since neither the power of constitutional review is a competence whose exercise is susceptible to cession nor the Constitution itself admits being reformed by another channel determined by it, not allowing one right to decay in favor of another; It is for this reason that in the case of International Treaties the concordance between some rights and others must be observed in detail in each particular case.
Another conceptual line is the one maintained by the jurisprudence of the Inter-American Court of Human Rights in the Case of Heliodoro Portugal v. Panama, when referring to the rules derived from the interpretation of Article 2 of the Convention, linked to the control of conventionality, it states that the Court interprets such adequacy as implying the adoption of measures in two aspects, namely: (i) the suppression of norms and practices of any nature that entail a violation of the guarantees provided in the Convention or that disregard the rights recognized therein or hinder their exercise, and (ii) the issuance of norms and the development of practices conducive to the effective observance of said guarantees.
And it concludes that in the light of the international commitments regarding the work of the operators of justice, it must be carried out through what is called “control of conventionality, according to which each judge must ensure the useful effect of the international instruments, so that it is not diminished or annulled by the application of internal norms or practices contrary to the object and purpose of the international instrument or the international standard of protection of human rights (…)”.
We cannot fail to mention a theory that we have been working on for some time, referring to the role of the Constitution in the face of the new reality of the world system, specifically the turn taken by International Relations and the relations of neo-imperial corporatocratic domination that seek to destroy the State/Nation. In the face of their maneuvers, the protection and shield for our State model and the Nation, its sovereignty and territorial integrity, is the Constitution.
This answer is not easy to resolve, nor do we intend with it to delegitimize those positions different from this one, but in this case, referring to the Control of Conventionality and the role of the Chamber as guardian of the Constitution, without forgetting that the Chamber must have limits and they must definitely be marked as we pointed out in our work “Limits of the Control of Constitutionality”, it should not be understood that the Chamber’s hands are tied in the face of the idea of modifying the structure of the Nation State through this convention and its multilateral organizations that are acting as replicators of the interests of the world corporatocracy and its satellite States, in the specific case of Our Guayana Esequiba, UK and Guyana.
As an example, UN Resolution 1973, which authorized a military intervention and massive bombing in Libya using the justification based on “the obligation to protect the civilian population and human rights”, a theory coined by this organization in 2001, known as Responsibility to Protect (R2P), clearly violating the “principle of absolute sovereign immunity” of the countries by putting before it the justification of the protection of the human rights of the civilian population, which is nothing more than a distension of the internal legal order of the countries, in favor of imposing an Imperial Law.
From Venezuela we send the following message to the internal globalists and the world corporatocracy: We do sing and defend the Homeland and the Nation State, because today more than ever, that song speaks of our own present and future existence, openly contradicting those followers of certain truly nihilistic postmodern thinking, who conceive love, loyalty and devotion to the Homeland as outdated values, historically outdated.
The slanderers of the Nation State and the Fatherland will not be able to convince us Patriots that the cause of all evils and the source of warmongering pathologies are the sovereign nations, while they hide their true objectives of ontological and human destruction, paying tribute to techno-totalitarian globalism and its agenda of catastrophist, climatic and sanitary imposture, which is radically opposed to human life and nature.
We are alert to the certain possibility that the International Court of Justice may issue a neo-imperial sentence against the Bolivarian Republic of Venezuela, not only because of our technical defenselessness but also because of the imperial and corporate arrangements and interests that move Guyana and the UK to ignore the nullity of the infamous Arbitral Award of 1899 in order to definitively dispossess us of our territory, aspiring to take the longed-for Delta. The entire Institutionality must activate the constitutional mechanisms and all those necessary (including force) to prevent such injustice and illegality.
The Essequibo is Ours and we will defend it!
INTERNATIONALIST 360° 