Cartagena Agreement (1969)

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The Cartagena Agreement of May 26, 1969 is the legal basis of the Andean legal system, a supranational legal system based on European Community law .

Andean legal system

Characteristic of the Andean legal system is the fragmentation of its most basic norms into a large number of agreements. The reasons for this confusion are the various modifications to which the law of the Andean Community has been subjected in recent decades. In addition, the amendments to the Cartagena Agreement (AC) were made not only through corresponding protocols of amendment designated as such, such as the Trujillo Protocol, but also through other international agreements. One example of this is the treaty on the establishment of the Andean Court of Justice (AGHV), which in its legal effects partly resembles an additional protocol to the AC. This also explains why it is not the AC itself, but the AGHV that provides information about the legal sources of Andean Community law. According to its Art. 1, the Andean legal system includes:

a) The Cartagena Agreement, its protocols and complementary instruments,
b) The AGHV,
c) The Decisiones (German decisions) of the Council of Foreign Ministers and the Comision (German Commission),
d) The Resoluciones (dt. Decisions) of the General Secretariat and
e) The agreements on the Complementación Industrial (dt. Industrial supplement) and others between the member states

and agreements concluded as part of the Andean integration process.

With its first four articles, concerning essential features of the Andean legal system, ten years after the start of the Andean integration process, the AGHV cleared up the legal confusion that had arisen from the incomplete or imprecise first version of the AC, which was mainly drafted by economists. His greatest merit lies in the elimination of the last doubts about the supranational nature of the Andean Community law, which is still to be discussed in more detail, and in the clarification of its relationship to the national legal systems. The catalog listed above was of no less importance. The exact enumeration of the legal sources eliminated several inconsistencies in the AC, such as the question of whether the Comision's decisions belong to the Andean legal system, which was due to the lack of reference in Art. 21 AC in contrast to the express statement of Art. 17 AC with regard to the decisions of the Council of Foreign Ministers so far remained unclear. At the same time, the catalog of legal sources, with its waiver of any reference to the ALALC system (ALALC was originally intended to be the first Latin American free trade area), contributed to presenting Andean law as a new, self-contained legal system common to all Andean states.

Like its European model, the European Community , Andean Community law differentiates between an original source of law in the form of the items listed under lit. a and lit. b listed international treaties, called primary law and a legal source derived from it in the form of legal acts passed by the Community institutions, known as secondary law. With the exception of this typical classification between primary and secondary law, which the catalog of legal sources according to of the case law of the Andean Court of Justice (AGH) at least in part, however, some questions regarding the relationship between the legal sources remain unanswered. While with regard to AC and AGHV reference can be made to the equality of international treaties, it remains unclear whether a hierarchical relationship between the Decisiones and the Resoluciones can be assumed as legal acts belonging to secondary law. The legal classification of the in lit. e mentioned agreement. Finally, a critical point to be noted is the lack of any statements in the catalog about other recognized legal sources such as customary law, case law, general legal principles, legal doctrine and, above all, international law . This does not mean, however, that these legal sources cannot be taken into account in the interpretation and application of the Andean Community law, because, as in the EC, these legal sources, which are also not listed in Art. 249 ECT, are incorporated into the European, not least thanks to the case law of the European Court of Justice Community law found.

The primary community law

With regard to primary law, reference should be made to the above study of the aims and mechanisms of the AC and the development of its institutional structure since the beginning of the integration process.

Secondary Community Law

The Decisiones and the Resoluciones belong to the secondary law of the CAN.

The reform of the integration process

The reawakening of the idea of ​​integration in Latin America in the wake of New Regionalism has led to new forms of integration, both bilateral and multilateral, but has also reactivated existing integration systems. Mercosur and the group of three can be counted among the newly created integration systems. Integration systems that have had a fresh start are the Central American Common Market, Caricom and CAN. Following the neoliberal economic policy course already discussed, the Andean Group initiated radical reforms of the mechanisms and organs of the integration system in order to achieve the long-term goal of establishing an Andean internal market.

The Quito Changelog

The Quito Protocol of May 12, 1987 and the decisions of the Presidential Councils from 1989 to 1991 made profound changes to the AC. The newly drafted preamble to the AC, with its self-commitment to the principles of peace, justice, solidarity and democracy and the goal of building a common subregional and a Latin American market, best reflects this change of direction. If the Andean Group was the prime example of a protectionist integration process containing elements of a planned economy before it was signed, this protocol transformed the Andean Group into a more market-oriented integration system, which declared industrialization with the help of exports and foreign investments to be its goal. The new mechanisms to achieve this goal were the liberalization programs, the common external tariff and the harmonization of economic policies. The social dimension of integration, which has been the focus of the Andean integration process since the formation of the Andean group, was not overlooked. According to the preamble and Art. 1, the aim was namely a "balanced and harmonious development" of the member states, which speaks in favor of an Andean integration process with a new social content. The establishment of a common market should also enable the free movement of workers, thus opening up new job opportunities for all citizens. The reforms were supported by the increasing commitment of the presidents of the member states, who, when they met in a council that had not yet been constituted as an organ, took over the political control of the integration process and thus effectively ousted the committee as the highest organ in its political functions. The originally informal meetings of the Andean heads of government increased in number from 1988 and were held twice a year in accordance with an agreement of February 1989. They achieved remarkable successes within a few years, such as the resolution of a Strategic Draft ("Diseño Estratégico") on the Galápagos Islands on December 17, 1989, which was to determine the development of the Andean Group in the 1990s. The draft defines two main objectives: the consolidation of the Andean economic area and the external articulation of the Andean group with the world and in particular with the rest of Latin America. In the following presidential councils, the deadlines for the establishment of the free trade area and the adoption of a common customs tariff were shortened. On December 5, 1991, on the occasion of the VI. Andean Presidents Council passed the Barahona Act, according to which the free trade area was to come into force in 1992, while the common customs tariff to be adopted later was set. In addition to economic issues, institutional aspects were also dealt with during this period. The Quito protocol initially raised the AGH and Andean Parliament to the status of main bodies and created new auxiliary bodies such as the advisory councils for employers and workers, among others that had to be set up by the Comision.

The Trujillo Changelog

On March 10, 1996, the heads of government of the Andean states in the Peruvian city of Trujillo signed a protocol to the AC, which mainly made several changes to Chapter II, which regulates the organizational structure of the Andean Group. The Trujillo Protocol created the Community of Andin Nations (Comunidad Andina de Naciones) or the Andean Community for short , which is now subject to international law in accordance with Art. 48 AC. The new name was chosen based on the European model and was intended to emphasize the intention of the member states to found a community of nations that would be able to take the Andean integration process beyond the area of ​​mere economic cooperation. Achieving the forms of economic law integration of the free trade area and the customs union should not be goals in themselves, but means to achieve a higher level of integration. This is proven first of all by a systematic interpretation of the AC, which, behind the integration goals in Art. 1 AC, lists the instruments of trade liberalization and the common external tariff called integration mechanisms. The aforementioned social dimension of Andean integration is also evidence of this intention. In dealing with social issues, the signatory states believe that society should be more involved in the integration process, which would give it the democratic legitimacy it needs to achieve the higher long-term goal of political integration. This characteristic of the Andean integration process enables it to be assigned to the European integration model, which is aimed at restructuring society and uses economic cooperation for this purpose. From an institutional point of view, the Andean Integration System (AIS), which is still to be examined in more detail, was set up, which is composed of bodies and institutions that control the integration process. According to Art. 7 AC, the task of the AIS is to ensure effective coordination of the work of the institutions in order to advance the Andean integration process and enable it to be articulated externally. The AIS is politically controlled by the Andean Presidential Council, which had grown to become a decisive political steering force since the late 1980s. Consistently, this fact was taken into account by its incorporation as the highest organ through the amending protocol, whereby the activity of the Andean Presidential Council was given a legal basis. The Comision, made up of the Ministers for Economic Affairs, Trade and Integration, has lost its influence because it has not only been legally ousted from its previous position as the highest body, but because it now shares the legislative competence with the Council of Foreign Ministers. Likewise, in favor of the other body, the Comision loses the power of external representation and the right to elect the Secretary General and to issue instructions to him. Furthermore, the junta is being transformed from a technical to an executive body, which will be called the "General Secretariat". In order to fulfill the functions of an executive body, to which the General Secretariat will be called, changes are being made to its internal structure, for example by replacing the three members of the junta with the figure of the General Secretary and the directors subordinate to him. Despite his limited legal powers, high expectations are placed on the figure of the Secretary General, who is modeled on that of the President of the European Commission and, according to Art. 32 II AC, “should be a person with a high level of representation and recognized excellent reputation”. According to the ideas of the governments of the member states, it should primarily have a unifying, representative function within the integration system. However , the Secretary General does not have the power to represent the CAN as a whole vis-à-vis third countries or other international organizations. The Trujillo Protocol came into force on June 3, 1997 after all the ratification documents had been deposited with the General Secretariat and was codified by Decision 406 of the Comision for publication in the Legal Gazette of the CAN.

The Cochabamba Changelog

Shortly after the signing of the Trujillo Protocol , the AGHV was modified by an amendment protocol on May 18, 1996 in the Bolivian city of Cochabamba . The AGH was given additional jurisdiction through an expansion of the lawsuit system. Since then, disputes between bodies and private individuals have been possible. New types of action such as actions for failure to act and civil servants were also added, as were other improvements to existing types of proceedings, such as actions for annulment, infringement and preliminary ruling proceedings, which are still to be discussed in more detail. The intention of this reform was both to strengthen this judicial body in the institutional structure of the Community and to facilitate access for natural persons.

Sucre's changelog

Even before the publication of Decision 406, the Sucre amendment protocol was signed at the I Extended Council of Foreign Ministers of the CAN in Quito on June 25, 1997 . Contrary to the concerns of some authors about the legality of this procedure, however, this procedure did not violate the AC's amendment procedure, which, as a prerequisite for its entry into force, in addition to the consent of the member states according to their constitutional provisions, only the AC's declaration of compatibility with the principles and Aims of the ALALC and Resolucion 203, but does not provide for publication in the law gazette. The codification of the protocols by decisiones for the purpose of publication, which is also not required by Art. 152 AC, but which is often carried out, would under these circumstances only have a declarative character, which can also be explained with the nature of these organ files. As organ acts, decisions do not always have to be aimed at bringing about legal consequences, but can, as will be examined later, also fulfill other functions. While the Quito Protocol established new goals and mechanisms for the Andean integration process and the Trujillo Protocol made the necessary institutional reforms to cope with the challenges of regionalism today, the Sucre Protocol complements this development by introducing new deadlines for the establishment of the customs union and the integration of services extended. With a view to the establishment of an Andean internal market, a new chapter is being added to the AC, which entitles the Comision to issue norms for the liberalization of the service sector. The Sucre Protocol extended the powers of this body by also giving it legislative powers in the field of social development, for example in the creation of educational programs or the recognition of university degrees for the purpose of promoting the provision of services. Standards that refer to the liberalization program for the movement of goods that have already been implemented will also be eliminated. Of particular importance for the external articulation of the CAN as a further important goal of the integration process is the transfer of competences to the Council of Foreign Ministers and the Comision in the field of external relations, which means that the CAN can be transformed from an inward to an outward integration system, similar to the EU , executes. The new competencies include matters of common interest, such as developing a strategy for political, social and economic integration with other regional economic blocs, coordinating common positions at international forums such as the WTO or in negotiations on the FTAA. However, it should be noted that the matters to be regulated partially overlap, which could make a clear delimitation of the responsibilities of the two bodies difficult. The area of ​​common trade policy could prove to be problematic in the future, because while the Council of Foreign Ministers seems to have general competence for external relations according to Art. 16 AC, the Comision has special competence for the area of ​​trade and the Investments. In view of the fact that foreign trade represents a comprehensive and important sector for an outward-facing economic bloc, there is a risk of competition between the two bodies, which could be further intensified by the fact that Art. 16 d) AC exclusively assigns the Council of Foreign Ministers the power to conclude contracts. This sole competence thus gives the Council of Foreign Ministers the last word in the CAN's foreign contract law, so that the Comision is inevitably dependent on cooperation with it if it wants to realize its own commercial policy projects. Despite the designation of the organization as the Andean Community, which suggests a geographically closed system, its founding treaty according to Art. 151 AC was open to the accession of further Latin American states from the beginning. Before the Sucre Protocol, however, the association of third countries was not provided for . Panama's application for association has been taken into account with the addition of a new chapter on the treatment of associated states. Thereafter, on the proposal of the Comision, after hearing the General Secretariat and the other organs and institutions, the Council of Foreign Ministers grants this status by decision to those states that have agreed a free trade agreement and submit a corresponding application. The decision issued by the Council of Foreign Ministers defines the participation of the associated state in the organs and institutions as well as the legal relationships between it and the member states of the CAN.

literature

  • Kühn, Werner Miguel, The Andean Community: Legal Aspects of International Relations between the European Union and Latin American Integration Systems in the Age of the New Regionalism, Aachen: Shaker Verlag , 2003. - XLII, 292 S. - (Reports from the jurisprudence) Zugl .: Kiel , Univ., Diss., 2003, ISBN 3-8322-2102-6 .