The gap of the bases

Years ago, before the judges aired their decisions through the microphones, when the strength of their texts and arguments was the only voice, it was impossible to know the meaning of a sentence. And even less possible it was to know the content of one of their interventions. Today, the decisions of the high courts are even filtered through Twitter. Therefore nobody is surprised by the Constitutional Court’s decision, last Tuesday, not to endorse the agreement that allowed the use of seven Colombian military bases by U.S. personnel.

Since the negative intervention of that Court’s Judge Jorge Ivan Palacio became of common knowledge in late July, tendencies became clear. Consequently, various stakeholders adapted their positions to the circumstances. President Hugo Chavez, who a year ago said that the bases were the spearhead for a future U.S. invasion, said at a news conference in Santa Marta that they were an internal Colombian issue. The new government, headed by the Foreign Minister, Maria Angela Holguin, and Defense Minister Rodrigo Rivera, visited the Court the same day of their last session in an unusual move, just before the decision was announced. The Santos administration had already pointed out its total compliance with the sentence.

Instead of proclaiming the helplessness in which the county was left without the agreement, both ministers and military leaders expressed that nothing had changed. That the American aid was still standing and that time would be necessary to decide the next step.

This serene position triggered some suspicions. If it wasn’t as critical to national security, why is it that the Colombian government signed such a controversial deal, which generated many difficulties in the region and which gave exceptional powers to U.S. officials, including diplomatic immunity? In other words, what changed?

For starters, there's a new government whose foreign policy and defense canons aren’t exactly the same as its predecessor’s. For Alvaro Uribe, war against terrorism had no shades. The world was either black or white. On one side, there was the U.S., Bush and Uribe, along with their crusade against evil. And in the other, the ones who protect narco-terrorists. Suspicions about Venezuela began rising since the contents in Raul Reyes’ computer were known by the Colombian government. Those who always saw Hugo Chavez as Colombia’s number one enemy gained more space in the decision-making. An opportunity was presented for Colombia to strengthen ties with the Pentagon, and to show muscle before the Venezuelan leader, when it became clear that Ecuador wouldn’t renew the American use of the Manta base.

In the beginning, it seemed an exaggeration to offer access to seven military bases to the U.S. being that American aspirations kept only to the one called Palanquero. But the vision that Venezuela's military purchases to Russia were a prelude to a potential Bolivarian intervention in Colombia, increase the presence of military personnel in our country seemed deterrent. The moment Chavez started complaining and producing a regional crisis, signing the agreement in Colombia became an imperative. It’s quite revealing that, for Uribe, there was never much concern about if the text gave the U.S. personnel too many liberties. To him, these were a small cost in sovereignty in exchange for a lot of benefits and a considerable deterrence capability.

President Santos’ government seems to have a different view of things, a more pragmatic and less ideological one. He knows that it’s not the end of the world if the agreement isn’t applied in it’s entirety. At the end of the day, new collaborations weren’t yet working. Although the government has considered bringing the discussion to the Congress, other options are being analyzed, like removing the most controversial issues from the text, such as diplomatic immunity. Or even negotiating a much lower aid for the Palanquero base, already granted with 47 million dollars by the U.S. Congress. Neither of the two governments want to lose that money.

In Washington the Colombian court’s decision was surprisingly received with equivalent serenity. The State Department spokesman said that "nothing has changed."

While there’s a calm-keeping message around the military bases, there are also concerns about precedents that may result from the sentence. Colombia has signed understanding agreements with many countries and on many issues, ranging from security and defense to trade and investment. The vast majority of them have not been approved by Congress nor reviewed by the Constitutional Court. They’re fundamental foreign policy tools, which are used by every government around the world.

Now some are concerned that in the coming months there may get a cascade of lawsuits seeking to force the executive branch to submit all these instruments to the legislature. In case those are endorsed by the Court, the management of foreign policy -which is granted to the President by the Constitution-, would be subordinated to both Congress and Court. This isn’t a theoretical danger: Judge Palacio’s initial intervention questioned the applicability of the United Nations Security Council’s Resolution 1368, which was issued after the September 11, 2001attacks. He raised the need for it to be approved at the Congress in order to be effective. As known by SEMANA, this opinion will eventually be excluded from the final decision.

In a globalized world, governments need flexibility in order to reach understanding with other States and therefore treaties are now very rare. United States and Brazil, for example, signed a cooperation agreement in April, in which they contemplate assistance and military equipment acquisitions.

It is clear that, for the Court, the cooperation agreement with the United States was more a treaty that a common agreement. Uribe's government underestimated the sensitivities produced by the foreign troops presence in Colombia and by the disastrous precedents on the diplomatic immunity issues. The question, however, is whether the Court considers this something exceptional. Therefore, there are great expectations around the final verdict reads and if it will close the gap opened by the Court.