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The Colliding Vernaculars of Foreign Investment Protection and Transitional Justice in Colombia: a Challenge for the Law in a Global Context

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The Colliding Vernaculars of Foreign Investment Protection and Transitional Justice in Colombia: a Challenge for the Law in a Global Context Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 5-27-2016 The olC liding Vernaculars of Foreign Investment Protection and Transitional Justice in Colombia: A Challenge for the Law in a Global Context Marco Alberto Velasquez Osgoode Hall Law School of York University Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Recommended Citation Velasquez, Marco Alberto, "The oC lliding Vernaculars of Foreign Investment Protection and Transitional Justice in Colombia: A Challenge for the Law in a Global Context" (2016). PhD Dissertations. 26. http://digitalcommons.osgoode.yorku.ca/phd/26 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. THE COLLIDING VERNACULLARS OF FOREIGN INVESTMENT PROTECTION AND TRANSITIONAL JUSTICE IN COLOMBIA: A CHALLENGE FOR THE LAW IN A GLOBAL CONTEXT Marco Alberto Velásquez Ruiz A Dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the Degree of Doctor of Philosophy Graduate Program in Law York University – Osgoode Hall Law School Toronto, Ontario May 2016 © Marco Alberto Velásquez Ruiz 2016 ii Abstract This doctoral dissertation explores an argued normative tension between the legal protection of foreign investors via international investment agreements and the implementation of a transitional justice project in Colombia. Considering its nature and extent, this tension is regarded from a global perspective. These legal fields are acknowledged as the opus of transnational legal processes that have been triggered both to diffuse the political vision and to represent the interests of corresponding global epistemic communities. Therefore, their placement at the same political/legal level, and the shared interest they have in regulating access to and use of land and natural resources located within the country’s jurisdiction, encompass a conflictual dynamic. That is, the spread of a neoliberal economic model through the domestic internalization of a set of rules and institutions that limit the capacity of the state to intervene in certain areas of public concern, as opposed to the exercise of legal resistance to the detrimental socioeconomic effects produced on the occasion of the country’s internal armed conflict, by means of the structural adjustment of social relations. The main contention of this dissertation is that, within the realm of the aforementioned normative tension, the legal protection offered to foreign investors in Colombia by virtue of the systematic conclusion of international investment agreements, has the potential to restrict the country’s democratic and sovereign choice to achieve durable peace through the production of profound transformations at the level of social justice. In particular, it is argued that although the international investment agreements concluded by the country are the result of the effective exercise of sovereign prerogatives and place-binding obligations on the state, they cannot be constituted as impregnable commands able to shape indeterminately the country’s public policy space with regards to the implementation of the transitional justice project. Moreover, it is also contended that the legal responses to these investor-state controversies must encompass strong political considerations rather than mere technical issues, since they must acknowledge both the contextual particularities of this type of controversies and the transnational nature of the interests at stake. iii To Claudia: my sparkle, my shining star, my constellation. iv Acknowledgments As a Colombian national, I am a very fortunate person. I was born in a household full of love and stability. Unlike most of my compatriots, I have never had to live in poverty or suffer the horrible effects of the country's armed conflict. By engaging in a doctoral project on Colombia I wanted not only to achieve personal objectives but also to start giving back a small part of all that I have received in my privileged circumstances. This is an idealistic but deeply honest conviction. I dream for a peaceful and socially just Colombia. First and foremost, I want to thank my advisor professor Gus Van Harten. It has been an honor to be his doctoral student. I appreciate all his contributions in terms of time and direction, as well as his ethical example. In turn, professors Peer Zumbansen and Shin Imai, the other members of my supervisory committee, provided me with crucial counseling in their areas of expertise and support on the occasion of certain moments of discouragement. Further, the York University and Osgoode Hall Law School community contributed to make this Ph.D. experience productive and stimulating. I had the opportunity to meet amazing people at Osgoode. As part of the Graduate Studies Program, I was able to join academic spaces that critically engaged with different areas of legal theory and practice under the facilitation of professors Dayna Scott and Robert Wai. I also had the opportunity to represent the Law Faculty in several research workshops, of which the Atlas Agora’s seminars in Singapore and Melbourne deserve special recognition. In such events I was able to present my ideas and receive important feedback from peers around the world. Particularly fruitful and stimulating has been the collaboration and friendship established with colleagues like Natalia Angel, Colleen Mathews and Igor Gontcharov. In turn, Johana Reynolds was the person who kindly welcomed me upon my arrival in Toronto, for which I will always be grateful. Finally, a v special spot is left for Eric Cheng, who apparently sees me as a big brother but has no idea how much I have learnt from him. Some of the most important teachings I received throughout these years of doctoral studies come from my work as research assistant in the SSHRC-funded project “Human Security and the Canada-Colombia Free Trade Agreement”, directed by professor James Rochlin from the University of British Columbia - Okanagan. His confidence in my credentials and ideas made possible the production of academic pieces that will help me in the next stages of my career as a researcher. I wish to express all my gratitude and respect. Back home, my family supported my decision to become an academic. They provide me with a solid emotional foundation and have offered me unconditional love. I feel pride and great emotions when reflecting on their support. Likewise, the humour and backing of my old friends, los Lavaperros, has always reminded me that true friendship is one of the purest motives for returning to Colombia after this outstanding intellectual adventure in Canada. I also wish to acknowledge a number of persons who were crucial in my decision to embark on a PhD. Roberto Vidal, my mentor and good friend; Beatriz Sánchez, a key partner in many projects and academic adventures; and Carolina Olarte, who enlightened the path to study international investment Law as an interdisciplinary field. Likewise, I want to thank a number of colleagues and organizations involved in my topics of interest. Their generous advice was important at different stages of my doctoral studies: Andrés Bernal, Albert Berry, Lorenzo Cotula, Jorge González, Francisco Gutiérrez Sanín, Andrea Saldarriaga, Yamile Salinas, Ignacio Santamaría, Dustin Sharp, Juan Pablo Suarez Orozco, the NGO Tierra Digna, and René Urueña. Marco Alberto Velásquez-Ruiz York University – Osgoode Hall Law School April 2016 vi Table of Contents Abstract .......................................................................................................................................... ii Dedication ..................................................................................................................................... iii Acknowledgments ........................................................................................................................ iv Table of Contents ......................................................................................................................... vi List of Tables ................................................................................................................................. x Introduction ................................................................................................................................... 1 I. Statement and hypothesis ..................................................................................................... 1 II. Justification and theoretical approach .............................................................................. 5 III. Structure, methodology and outline of the dissertation ................................................. 12 Chapter One: Theoretical Foundations .................................................................................... 17 I. Introduction ........................................................................................................................ 17 II. The changing role of the state on the occasion of the rise of global governance ........... 19 III. The “substance” of global governance: transnational legal processes ........................... 23 IV. The “trace” of transnational legality within the Colombian Constitutional Order and its regulatory implications ............................................................................................................
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