Ratified treaties;¹ Instruments not subject to ratification²

Freedom of association/ A foreigner’s civil rights/ Discrimination against foreign workers and exclusion from the position of union representative/ Direct resolution of a dispute on the basis of international law

Initiating a lawsuit for unconstitutionality, two citizens brought into question several articles of the Labour Code, holding that those articles violated the Constitution, various international instruments and more specifically ILO Conventions Nos. 87, 98 and 111.³ The articles questioned required that unions be composed of at least two thirds of members of Colombian nationality and forbade foreign workers from holding the position of union representative.

Settlement of this case required taking into consideration Article 100 of the Constitution of Colombia, which states that “the law could, for reasons of public order, refuse or subordinate to special conditions the exercise of certain civil rights for foreigners. Thus, within Colombia, foreigners shall benefit from the same guarantees as granted to Colombian citizens, except any limitations established by the Constitution or by law.”

Initially, the Court pointed out that Congress could not restrict the exercise of foreigners’ civil rights by invoking abstract reasons of public order, but that “restrictions on fundamental rights should be express, necessary and strictly indispensable and must lead to the achievement of legitimate constitutional goals in a democratic society, such as to guarantee harmony within society.”

Next, the Constitutional Court decided that: 

“in accordance with Articles 53(4),⁴ 93⁵ and 94⁶ of the Constitution, the contents and scope of freedom of association must be in agreement with international conventions and treaties on human rights at work.”⁷

The Court made explicit reference to Articles 2, 3, 6 and 8 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise⁸ and stated:

“that there was no doubt that the provisions challenged are in opposition to the Convention previously cited, which does not provide for a single instant the possibility that the freedom of association of foreign workers can be restricted.”⁹

In the light of the above and on the basis of the National Constitution and ILO Convention No. 87, the Constitutional Court ruled that the provisions of domestic law that restricted the freedom of association of foreign workers were invalid.

¹ ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98); ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); International Covenant on Economic, Social and Cultural Rights, 1966; International Convention on the Elimination of All Forms of Racial Discrimination, 1965.

² Universal Declaration of Human Rights, 1948; UN Declaration on the Elimination of All Forms of Racial Discrimination, 1963.

³ Articles 384, 388, 422 and 432 of the Colombian Labour Code.

⁴ Article 53(4) of the Constitution of Colombia: “Congress shall adopt a labour law. That law will take into consideration at least the following minimum principles: (…) duly ratified international labour conventions are part of domestic legislation.”

⁵ Article 93(1) of the Constitution of Colombia: International treaties and conventions, ratified by Congress, recognizing human rights and prohibiting their limitation at the time of a state of emergency, have precedence in domestic legal order. The rights and duties confirmed in this Charter shall be interpreted in accordance with international treaties on human rights ratified by Colombia.

⁶ Article 94 of the Constitution of Colombia: “The listing of the rights and guarantees contained in the Constitution and in the international conventions in force does not negate the other rights which, inherent to every human being, do not expressly figure there.”

⁷ Page 13 of the decision.

⁸ Article 2 of Convention No. 87: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join an organization of their own choosing without previous authorization.”

Article 3 of Convention No. 87: “Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.  The public authorities shall refrain from any interference that would restrict this right or impede the lawful exercise thereof.”

Article 6 of Convention No. 87: “The provisions of articles 2, 3 and 4 hereof apply to federations and confederations of workers’ and employers’ organizations.”

Article 8(2) of Convention No. 87: “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.”

⁹ Page 14 of the decision.