1: The foreseeable production of two adverse court rulings
Recent pronouncements by foreign courts that condemn the National Government to make important payments for the benefit of investors generically identified as “vulture funds”, whether their holders are foreign or national, put on the table the institutional mess stemming from having enabled, and maintained, the submission of our legislative and jurisdictional sovereignty.
I also propose to indicate a road to recovery and its institutional foundations.
By the way that submission of legislative and jurisdictional powers is just as important as loss of territorial sovereignty which I will also examine in everything that concerns the corresponding territories and maritime spaces (First Transitory Clause, CN), Malvinas Islands and our South Atlantic.
2: The inapplicability of our legislation in the most important contracts:
I begin by clarifying that I include our legislative sovereignty among the neocolonialist submissions that we suffer, because when jurisdictional sovereignty is handed overboth for the benefit of foreign courts and economic arbitrations before international organizations, our laws intended to be applied to all legal acts that are carried out or that produce their main effects in the national territory, national legislation ceases to apply to be replaced not by a pure regulation of private international law, but by foreign laws or, worse still, the “good judgment and knowledge” of the arbitrators, as regulated by the ICSID Tribunal Regulations.
The result is that the laws voted by the Legislative Power of the Argentine Nation, guided by the noble and progressive principles established by the “progress clause” (art. 75, incs. 18 and 19; CN), does not apply in the main economic contracts and provision of infrastructure of the Argentine Nation. We are subject to the “eye of a good cubero” of arbitrators trained in the image and likeness of the World Bank and transnational legal firms who regularly litigate before arbitration tribunals representing the interests of international companies and who alternate functions of litigants with that of arbitrators.
3: We serve it on a tray:
So, that the universal quantifier: “in all cases that deal with points governed by the Constitution and by the laws of the Nation and by treaties with foreign nations”, which establishes art. 116 of the CN, which regulates the functions and responsibilities of the Judiciary of the Argentine Nation, is broken for the benefit of courts and foreign economic powers.
In other words, “…we serve it to you on a platter…” And what is even more serious, that behind these contracts is the set of wealth and natural resources that, as established by the highest-ranking norms of international human rights law, the UN International Covenants, which begin with the same clause (1.2), which have a hierarchy of constitutional clauses (art. 75, sub 22, CN), and that declare the ownership of the peoples -not the States or the Governments- all the wealth and natural resources existing in the national territory.
Sacred Natural Sites of Argentina: they are appropriate and why they are designated as such
Paradoxical, contradictory and after the Constitutional reform of the year 1994he art. 236 of the new Civil and Commercial Code of the Argentine Nation (year 2012/13), places those goods as well as the private domain of the States, National, Provincial or Local… with which they are exempt from the sovereign immunity of the Argentine Nation… and subject to the appetites of the creditors of the public debt, external and internal, of our country.
As noted, a collection of submissions and misseswhich leads to a country remarkable for its wealth and natural resources, with great technological capacities and human resources, being left prostrate and at the will of the vulture funds and the communicational and economic hegemonic powers, which act in unison.
3. From the labyrinths you exit above
3.1: Aldo Ferrer preached “…living with what is ours…”, derived from a magnificent essay by JM Keynes (The Self Sufficiency of Nations). From the defense of our institutionality we must say: “…apply our positive legal order, according to the normative hierarchy derived from articles 31 and 75, inc. 22° of the CN This proposal, in our current economic and institutional situation, is projected as a revolutionary proposal.
3.2: We must also recover our best constitutional doctrine, que has carried, once, to disqualify the judgments emanating from foreign courts and that they sought to be executed using the national jurisdiction, which -inversely to their claims- disqualified those rulings for being null and detrimental to the Argentine constitutional public order, art. 27, CN., (CSJN precedent; Clarens Ltd. v. National Government s/execution; year 2014).
3.3: In several essays he maintained -and here I will have to reaffirm it- that our Constitution is not only to be exhibited in an institutional showcase, but to be applied, together with the International Human Rights Treaties, other International Treaties and National Laws, in all those cases that make up its contents must be applied, which expresses the validity of the value of institutional legality.
3.4: Therefore, it is not idle to point out -and claim- that the public debt must be contracted by the National Congress, which is characteristic of the power to proceed with its arrangement, and that the treaties concluded by the National Executive Power with foreign states, international organizations and the Holy See, must be approved or rejected by both Chambers (art. 75; subsections 4, 7 and 22, CN). Complementing this empowerment, art. 76 of the CN declares the expiration of the delegation of powers of the Legislative Power in benefit of the National Executive Power; Later, in the Eighth transitory provision of the CN, a period of survival of the delegation is granted, for 5 years, which by provisions of the budget laws was extended annually, and for the last time, in the year 2009. It is necessary to finish with the vicious practice of invoking Financial Administration Law 24,156 (year 1992), with regard to international loans as a power of the PEN (arts. 60/65), which are those that have expired, notwithstanding which the Governments insist on continuing to invoke it and apply provisions that have lost their validity. temporary validity.
The non-application of this constitutional norm, revalidated by the Constitutional Reform of 1994, has no explanation; at least, in the right. It seems that “institutional malpractice” has a higher regulatory status than the Constitution itself. Certainly not so; there is no customary creation of law that is contrary to its positivity.-
3.5: Behind his cloak of mist…
Also our territorial sovereignty has been affected by this institutional malpractice. Indeed, neither the treaties called Madrid I, Madrid II and the ethyl “Foradori-Duncan”, which favor not only our territorial sovereignty in the Malvinas Islands, the South Atlantic and corresponding maritime spaces, but also the immense existence of wealth and natural resources in their territories and in the submarine platform, have been submitted for the approval or rejection of both Chambers of the National Congress.-
Foreign Ministry announcements that “Foradori-Duncan” has expired”. It does not correspond at all with the verbs “approve” or “discard”, used in art. 75, Inc. 22, as a faculty of the National Congress.-
There are shared responsibilities in this task of institutional demolition; the PEN appropriates, and the PL is silent… with which the CN stops governing to the same extent.-
4: The need for a new National Constitution, the work of all the people:
I committed an institutional proposal to recover and preserve our territorial, legislative and jurisdictional sovereignty.-
4.1: The fundamental and totalizing one is that of a Constitutional Reform that is the work of all the people and not an agreement between political leaders.-
We need to provide constitutional registration to the unity of the peoples and governments of the South American Continent and the Caribbean, so that it is permanent and intangible at this stage.-
We need the protection of the ownership of the Argentine people over all of its wealth and natural resources to be brought into our national legislation, beginning with the National Constitution. It is a public domain, not private.-
We need the incorporation of the main international human rights treaties made in 1994 to be strengthened with constitutional and legal regulations that implement the effectiveness of their provisions. The right is that which can generally be realized, and is enforceable. Otherwise it becomes moral gibberish or political talk, but not law.
We need a National Judiciary that is representative, republican and federal (art. 1, CN). The current one is not a representative or a republican. With effective commitment to the new constitutional text and their duty to obey its supremacy.
We need a National Judiciary that is representative, republican and federal (art. 1, CN)
5: Meanwhile: In the immediate future: That the National Congress examine In addition to initiating the debate on a new Constitution, validate what must be validated, and discard what must be discarded. And that the Judicial Power of the Nation, with the spirit of the Nation, or of the Homeland, as Pope Francis has pointed out, recovers and preserves its knowledge and decision on all causes that, according to the constitutional text (art. 116), must assume.
This will result, ultimately, not only in the recovery of sovereignty and institutional fullness, but will allow effective ownership of the Argentine people over our wealth and natural resources, so exalted -and desired- by ”the friend” of the US Embassy, and its South Atlantic Command.-
*Titular Consulting Professor; Faculty of Law (UBA); Constituent National Convention (year 1994).
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