The exception of unconstitutionality vis-à-vis rules contrary to international human-rights treaties

Introduction

Article 4 of the 1991 Political Constitution establishes the supremacy of the Charter as the norm of norms and the duty to set aside, in the concrete case, any provision incompatible with it. That second operation is the exception of unconstitutionality, which belongs to so-called diffuse constitutional review. The problem is not merely the incompatibility of a statute with the formal constitutional text, but whether the ordinary judge or the administrative officer may and must set aside a domestic rule when the contradiction is predicated not only of the Constitution’s articles, but of a human-rights treaty ratified by Colombia.

The answer is yes, with a prior caveat: the Constitutional Court has rejected the supra-constitutional rank of human-rights treaties. Their prevalence does not place them above the Charter; it integrates them into it, as a constitutional block (Constitutional Court, judgments C-225 of 1995 and C-030 of 2023). That does not cancel the prevalence that article 93 itself attributes to treaties that recognize human rights and forbid their limitation in states of exception. Read with the second paragraph of the same article, with article 94, and with the pro persona principle, that prevalence yields a practical ceiling of protection: a domestic rule — including a restrictive reading of the Constitution itself — cannot be applied when it lowers the more favorable standard recognized in the treaty. Human-rights treaties thus operate as a preferred parameter for setting a rule aside in diffuse review. Judgment T-681 of 2016 supplies the dogmatic frame of the exception; the block, conventionality control, and the doctrine of favorability supply the parameter. The last section turns to the administrative authority: how the exception operates there, and why, on the same ground, an administrative exception of conventionality is available.

1. Diffuse review and the exception as a power-duty

Comparative constitutionalism often opposes the Kelsenian concentrated model — a constitutional court as negative legislator, erga omnes judgments, expulsion of the rule — to the North American diffuse model, opened by Marbury v. Madison (1803), in which every judge is a judge of the Constitution and non-application has inter partes effects. That opposition, useful as an ideal type, does not describe the Colombian model. Since 1910 Colombia has combined concentrated review, once in the Supreme Court and now in the Constitutional Court (art. 241), with diffuse review by all authorities. The 1991 Constitution did not abandon that dualism; it reordered it. Abstract principal review remains the Court’s monopoly under article 241; concrete, incidental, and ex officio review remains open to every legal operator under article 4.

Judgment T-681 of 2016 states the statute of that second path. The exception of unconstitutionality “is erected on article 4 of the Political Constitution” and “is a power-duty of the authorities to set a rule aside and instead make the Constitution effective, consolidating a form of diffuse constitutional review” (Constitutional Court, T-681 of 2016). The Court insists on the dual character: it is a power because it need not be pleaded as an action; it is a duty because “the authorities cannot fail to use it when they detect a clear contradiction between the provision applicable to a concrete case and the constitutional norms.” Non-application proceeds in three cases. First, when the rule contradicts the Constitution and the Court has not yet spoken with res judicata force; if there is already an erga omnes judgment, the judge must follow the Plenary Chamber. Second, when a living rule reproduces one already held unconstitutional or void. Third — the case relevant here — a rule may be constitutional in the abstract and still inapplicable if, in the concrete case, it produces a result contrary to the Constitution or the block. The judge does not expel it from the legal order: he merely declines to apply it to that dispute (inter partes). The last word on the rule’s general validity remains with the Court.

The Colombian origin of the exception should not be confused with foreign antecedents. Dr. Bonham’s Case (1610) and Marbury v. Madison (1803) illustrate judicial review of statutes in the common law; they are not the source of article 4. The domestic antecedent is Legislative Act 3 of 1910, which in article 40 required that the Constitution be preferred to the statute and in article 41 entrusted the Supreme Court with the guardianship of the Charter. The 1991 Constitution recast that dualism in articles 4 (diffuse review) and 241 (concentrated review). Setting aside a statute that contradicts a treaty in the block is not copying Marbury: it is applying article 4 read with article 93.

2. The constitutional block as harmonization of articles 4 and 93

The first paragraph of article 93 provides that treaties ratified by Congress that recognize human rights and forbid their limitation in states of exception “prevail in the domestic order.” The second paragraph orders that the rights and duties in the Charter “shall be interpreted in accordance with the international human-rights treaties ratified by Colombia.” Between the supremacy of article 4 and that prevalence of article 93 there is a textual tension that the Court resolved, in 1995, with a technique drawn from French law: the constitutional block.

In judgment C-225 of 1995, reviewing Additional Protocol II to the Geneva Conventions and its approving statute, the Court held that “the only reasonable sense that can be given to the notion of prevalence of human-rights and international humanitarian law treaties (arts. 93 and 214(2)) is that they form, with the rest of the constitutional text, a ‘constitutional block,’ which is imposed on the statute.” The block, in that first formulation, neither degrades the Constitution nor lifts the treaty above it: it integrates them into one parameter, so that the statute is subject to both. Uprimny (2006) put the point exactly: the Colombian jurisprudential solution is not the treaty’s supra-constitutionality, but the joining, in a single block, of the 1991 text and certain international instruments whose respect is imposed on ordinary legislation.

Judgment C-400 of 1998 refined that tension. The general rule is that the Constitution prevails over treaties (art. 4), with exceptions: human-rights treaties that cannot be limited in states of exception, and boundary treaties; as to them the ordinary supremacy of the Charter over the convention does not govern (C-400 of 1998). That caveat prevents reading article 93 as decoration. If an intangible human-rights treaty had the same rank as a commercial convention, the Court would not have built an exception.

Later case law distinguished two circles of the block. The block in the strict sense gathers the constitutional text, intangible human-rights treaties that cannot be limited in states of exception (art. 93.1), international humanitarian law (art. 214.2), and, on the more demanding reading, ius cogens. The block in the broad sense groups the other human-rights treaties ratified by Colombia: they are not, by themselves, a parameter of validity identical to the Charter, but they do require that rights be interpreted in accordance with them, under the second paragraph of article 93 (C-067 of 2003 and C-269 of 2014). Judgment C-030 of 2023 restated that the aim of the block is to harmonize constitutional supremacy and the domestic prevalence of human-rights treaties “whose limitation is forbidden in states of exception,” “without it being possible in any case to affirm the supra-constitutionality of the latter.” That warning must be taken seriously. It does not cancel the operation that article 93 itself describes with the verb prevail: the treaty is not above the Constitution, but it does prevail over the statute and binds the reading of the Charter’s rights.

3. The thesis of reinforced prevalence

The thesis here is not that the American Convention or the International Covenant on Civil and Political Rights stand “above” the Constitution. It is that, in a conflict between a domestic rule and the more protective standard of a treaty in the block, the legal operator is bound to prefer the latter, even if that means setting the domestic rule aside or discarding a minimalist reading of a constitutional precept. Three arguments support that reinforced, or functional, prevalence.

First, the constituent assembly did not say that human-rights treaties merely “integrate” the domestic order, or that they are a complement to the Constitution. Its words say that those treaties prevail. In C-225 of 1995 the Court read that prevalence as integration into the block, so as not to sacrifice the supremacy in article 4; that integration does not evaporate the word “prevail” in article 93(1), which translates as “prefer.” The second paragraph reinforces that preference as a hermeneutic rule of conformity with the treaty. Article 94 closes the system: the enumeration of rights in the Constitution and in the treaties in force is not to be understood as a denial of others inherent in the human person. From the tripod of 93.1, 93.2, and 94 there issues a mandate to maximize the right, not an indifferent equilibrium between the domestic and the international text.

Second, the pro persona principle, recognized by the Constitutional Court and the Inter-American Court, is a rule of preference for the norm more favorable to the person. When the treaty offers a broader content or a narrower restriction than the domestic legal precept, the operator does not “choose” between two equivalent readings: he is bound by the more protective one. In terms of harmonization — not an ad hoc Alexyan weighing of interests — the internationally recognized core of the right cannot be reduced by a statute, a decree, or an administrative practice on the pretext that “the Constitution does not say as much.”

Finally, the Inter-American Court, from Almonacid Arellano et al. v. Chile (2006) and Dismissed Congressional Employees v. Peru (2006), imposed on all judges in the region the duty of conventionality control: to verify that the domestic rules they apply do not disregard the American Convention or the interpretation given by its authentic interpreter. That control is not a foreign court’s whim; it is the consequence of articles 1.1 and 2 of the Convention, treaties Colombia ratified and that form part of the block in the strict sense. Quinche Ramírez (2014) has shown that conventionality control is not an exotic figure superimposed on article 4, but the contemporary way of exercising the exception of unconstitutionality when the parameter is the inter-American corpus iuris. Uprimny (2006) warned early that the block not only constitutionalizes procedure and rights, but requires domestic law to be read from a human-rights perspective.

Foreign doctrine converges, without being precedent. Bidart Campos, in Argentine constitutionalism, described the block as the set that starts from the Constitution and adds, at the same rank, internationally sourced provisions that are materially constitutional. Ferrajoli places fundamental rights in the sphere of the undecidable: the democratic legislator cannot dispose of them. Neither construction is transplanted mechanically to Colombia. They do illustrate that a human-rights parameter with the force of a ceiling is not a local extravagance: it is a recurring answer of rigid-rule constitutionalism to the risk that constitutional supremacy becomes supremacy of the less protective clause.

4. How the exception operates when the parameter is the treaty

Translated into the judge’s craft, the thesis has four operative consequences: (i) the parameter of the exception is not exhausted by the articles of the 1991 Constitution; it includes the strict-sense block and, as binding hermeneutic, the treaties of the broad-sense block (setting a statute aside because it disregards article 8 or 25 of the American Convention is not a control of “international legality” foreign to article 4; it is diffuse constitutional review whose parameter has been widened); (ii) the “clear and evident contradiction” required by T-681 of 2016 is not relaxed because the parameter is a treaty — the judge must show the objective opposition between the verifiable content of the domestic rule and the content of the treaty, interpreted in accordance with its text and its authorized interpreter; (iii) non-application may and must be ex officio, for if the officer detects a result incompatible with conventional judicial guarantees he cannot hide behind the fact that no one pleaded the treaty; and (iv) the effects remain inter partes: the trial judge does not expel the statute or usurp article 241, leaving the rule alive for others, unless the Court, in abstract review, withdraws it from the legal order.

Some doctrine has proposed calling “exception of unconventionality” the setting-aside founded on the treaty. The name is didactic and underlines the international origin of the parameter. In Colombian positive law, however, the operation remains that of article 4: setting aside what is incompatible with the Constitution, once the treaty has been integrated into it by the block. Keeping the name exception of unconstitutionality is not formalism; it recalls that the 1991 constituent assembly did not create a parallel foreign control, but opened the Constitution itself to international human-rights law. Conventionality control, in Quinche Ramírez’s formulation (2014), is the contemporary mode of that opening, not its substitute.

The case decided in T-681 of 2016 illustrates the point, even though its immediate object was the right to decent housing and a municipal subsidy. The Court did not confine itself to contrasting the administrative act with article 51 of the Charter: it reconstructed the protection of the right “in the domestic and international sphere” and enabled the exception to remove a ground that, applied to the case, blocked effective enjoyment of the right. The same movement is proposed here when the obstacle is a legal or regulatory rule incompatible with a treaty in the block: the right is not realized by citing the treaty as ornament, but by setting aside the rule that denies it.

5. Limits: what the thesis does not authorize

Any thesis of prevalence invites excess. Three limits already drawn by national case law should be fixed. Not every clause of every treaty enters the block. The Court has said from early on that ratification is not enough: the strict block requires recognition of a human right and, in the classic formulation of article 93.1, intangibility in states of exception, with the modulations introduced by international humanitarian law and ius cogens (C-295 of 1993 and C-225 of 1995). Turning any technical or commercial convention into a parameter for setting rules aside would be a mutation of article 93.

Prevalence does not enable the diffuse judge to hold an article of the Constitution unconstitutional. C-544 of 1992 recalled, in a formula still in force, that constitutional norms are hierarchically equal among themselves; the articulation of values does not authorize disqualifying a precept of the Charter as unconstitutional by contrast with another. The treaty may and must guide the interpretation of both; it does not authorize a trial judge to “repeal” a constitutional article. Where the conflict appears to set the treaty against the express text of the Constitution, the institutional path is harmonization under article 93.2 and, if need be, abstract review or amendment, not an abrupt exception.

Finally, constitutional res judicata under article 243 binds the judge of the exception. If the Plenary Chamber has already judged the rule with a parameter that included the treaty and held it constitutional, the concrete operator cannot reopen that judgment on a pretext of conventionality. He may, however, invoke the third hypothesis of T-681 of 2016: the rule, abstractly conforming, produces, in the specific circumstances of the case, a result that is inadmissible as a matter of fundamental rights. That nuance preserves both the Court’s authority and the efficacy of the right in the particular situation.

6. The exception of unconstitutionality and of conventionality in administrative proceedings

Article 4 does not reserve non-application to the judge alone, but to anyone who must apply a legal rule, including private persons. This text focuses on the public administration. When the administration, through its agents, expresses its will by issuing an administrative act, it does not escape constitutional supremacy. It remains bound to prefer the Constitution to any incompatible rule. Judgment C-122 of 2011 put it this way: review by way of exception “may be carried out by any judge, administrative authority, and even private persons who have to apply a legal rule in a concrete case,” ex officio or on request, with effects solely inter partes. The excepted rule does not disappear from the legal order, and the Court keeps the last word in abstract review (C-122 of 2011). T-681 of 2016 restated that universe of addressees: the power-duty is not a privilege of the judicial branch.

In administrative practice the operation is this. The officer compares the legal provision he is about to apply — statute, decree, resolution, and so on — with the Constitution or the block. If the contradiction is clear and evident, he sets that provision aside in the file before him and decides on the direct basis of the higher norm. He does not annul the general act, legislate, or replace the administrative-law judge. Article 148 of Law 1437 of 2011 regulates another piece of the same system: the review by way of exception that the administrative judge exercises over administrative acts in contentious proceedings.

The same logic projects onto a treaty in the block. If the administrative authority detects that the domestic rule it must apply produces, in the concrete case, a result contrary to a human-rights treaty whose limitation is forbidden in states of exception, or contrary to the reading of a Charter right in accordance with those treaties (art. 93), it must set the domestic rule aside. This is not a parallel “international” control: it is the exception of unconstitutionality whose parameter has been widened by the block. Didactically it may be called an administrative exception of conventionality. In Colombian positive law it remains an expression of article 4, read with article 93.

The Inter-American Court, from Almonacid Arellano v. Chile (2006), made clear that conventionality control does not fall only on the constitutional court: it binds all organs of the State, including administrative ones, within their competences. Quinche Ramírez (2014) has insisted that the control is normative, not ornamental, and that in Colombia it is exercised through the exception when the parameter is the inter-American corpus iuris. C-030 of 2023, in denying formal supra-constitutionality, did not deactivate that duty: it ordered that it be channeled through the block.

Application of the administrative exception of unconstitutionality-conventionality requires that: (i) the contradiction be manifest; a complex hermeneutic doubt does not authorize departing from the statute; (ii) the effects remain inter partes; the general act or the statute continues in force for other addressees; and (iii) if the Plenary Chamber has already held the rule constitutional with a parameter that included the treaty, the officer does not reopen that judgment; he may only, under the third hypothesis of T-681 of 2016, set the rule aside when its use in those concrete circumstances produces a result that is inadmissible as a matter of fundamental rights.

Conclusion

The exception of unconstitutionality derived from article 4 makes the Constitution a governing norm, not a program. When the parameter of that exception is read with article 93, the legal operator does not confront the statute with the constitutional text alone: he confronts it with the block — that is, with the Constitution and with the human-rights treaties the constituent assembly wished to see prevail in the domestic order. That prevalence, articulated by the pro persona principle and by conventionality control, turns the treaty into a ceiling of protection and, therefore, into a sufficient title to set aside, ex officio or on request, the domestic rule that disregards it in the concrete case.

References

Bidart Campos, G. J. (1995). El derecho de la Constitución y su fuerza normativa. Ediar. (Argentine doctrine; cited as foreign doctrine).

Congress of the Republic of Colombia. (2011). Law 1437 of 2011, article 148.

Constitutional Court of Colombia. Judgments C-544 of 1992; C-295 of 1993; C-225 of 1995; C-400 of 1998; C-067 of 2003; C-122 of 2011; C-415 of 2012; C-269 of 2014; T-681 of 2016; C-030 of 2023; SU-543 of 2023; T-496 of 2025.

Inter-American Court of Human Rights. (2006). Almonacid Arellano et al. v. Chile. Series C No. 154. Dismissed Congressional Employees v. Peru. Series C No. 158.

Ferrajoli, L. (2001). Derechos y garantías. La ley del más débil. Trotta. (Italian doctrine; cited as foreign doctrine).

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). (U.S. case law; cited as a foreign antecedent of judicial review of statutes).

Quinche Ramírez, M. F. (2014). El control de convencionalidad. Inter-American Institute of Human Rights.

Uprimny, R. (2006). Bloque de constitucionalidad, derechos humanos y nuevo procedimiento penal. Dejusticia.