Abstract

OSORIO TABORDA, Juan Camilo. Towards an Eventual Constituent Assembly: Limits from the International Law of the Human Rights 30 Years after the Constituent Assembly of 1991. Opin. jurid. [online]. 2021, vol.20, n.spe43, pp.455-484.  Epub Nov 19, 2022. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v20n43a19.

30 years after the 1991 constitutional process we can analyze in retrospective, with dialectical method, the characteristics of that disruptive process with the previous constitutional regime and the principal arguments that allowed the existence and effectiveness of a National Constituent Assembly, despite the prohibitions of the last Constitution. Since then, it has shown us that the power of the primary constituent, attached in the National Constituent Assembly is unlimited and, therefore, the constitution that results from these does not depend on anything different than their own will. However, looking ahead, it is impossible not to warn that a process that determines the main normative instrument of the legal system, if it has no limit, could lead easily to the establishment of tyranny. Because of these, it is determined the existence of a limit to the Constituent Power from the international obligations of the State in matter of Human Rights and that responds to the biding control of the international mechanisms of protection of the Human Rights, which enables to conclude that the popular power adhered in an eventual Constituent Assembly must gird to design the structure of the institutions and the course of the State to the recognition, respect and effective guarantee of human rights.

Keywords : Constitutional Right; International Law; Democracy; Legal Regime; Totalitarianism.

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