La supremacía constitucional y el control de constitucionalidad de los tratados bilaterales de inversión en el Ecuador

Abstract

This research paper tends to analyze the interaction between basic principles of constitutional law and international law, in the light of the constitutionality control of the Bilateral Investment Treaties in Ecuador. Also, considering the profound constitutional changes experienced since the conception of the so-called Montecristi Constitution of 2008. Consequently demonstrating the impact of the principle of constitutional supremacy in the abstract control of constitutionality of the Treaties and Commercial Agreements in Ecuador. To address the issue, the fundamentals that inspire the principle of constitutional supremacy and the control of constitutionality will be analyzed. Likewise, the basic principles of International Law that demand the fulfillment of the obligations conceived through international instruments by the States. Within that framework, the importance of Ecuador's state sovereignty will be considered, in relation to national jurisdiction over international jurisdiction in conflict resolution, and the declaration of unconstitutionality of the Bilateral Investment Treaties. In the same way, the implications of the principle of constitutional supremacy will be established, in the legal certainty that Ecuador offers in its legal system in the conception of international instruments in commercial matters. Draws attention to legal certainty in the Treaties and Commercial Agreements signed by Ecuador since 1992, with the Bilateral Investment Treaties. At the same time, the denunciation of said treaties prior to the declaration of unconstitutionality in the exercise of the abstract control of the Ecuadorian Constitutional Court. By way of illustration, we will indicate the repercussions of the denunciation of the Bilateral Investment Treaties, in the productive and economic apparatus of Ecuador. Within the set of public policies oriented to Legal Security that Ecuador offers. We will also highlight the importance of devising a clear, safe legal system that provides respect for international instruments and the effective resolution of conflicts between subjects of international law. Finally, a proposal is presented for the elaboration of a draft of amendments to the Constitution of the Republic of Ecuador, in its articles 417, 421, 422, 438. This with the purpose of carrying out an abstract control of constitutionality of the international instruments to the light of the pacta sunt servanda principle, which determines that international commitments assumed through treaties cannot be breached by arguing provisions of domestic law, not even the Constitution itself. Likewise, to establish the correct path, to get rid of the obligations emanating from an international instrument, the same that the complaint procedure must be followed, in accordance with the Vienna Convention on the Law of Treaties, unless the same instrument provides for a procedure of specific complaint.