Chairs:

• Bernardo Javier Puetaman Baquero bernardo.puetaman@uexternado.edu.co
• Kenny Dave Sanguino Cuéllar Ksang6@uic.edu
• Rafael Cruz Vargas rafael.cruz.vargas@gmail.com

SPEAKERS

Mónica	Pedroza Garcés
Nadia Paola	Iriarte Pamo

The doctrine of the “Unconstitutional State of Affairs” is a novel concept—both in its meaning and in its foundations—originating in Latin American constitutional law. It has been developed jurisprudentially in Colombia, Ecuador, Peru, and Brazil, and studied doctrinally in various countries in the region such as Mexico, Chile, and Argentina. Unlike other legal figures or institutions whose direct normative source is the Constitution or the law, the Unconstitutional State of Affairs was not created by the constituent power nor by the legislature as the representative of popular sovereignty, but rather by the highest constitutional court through its judicial decisions. In other words, the Unconstitutional State of Affairs is not contained in nor regulated by any provision of positive law. Its conceptualization, scope, and evolution have emerged from constitutional jurisprudence as a source of law.

As can be inferred, the declaration of an Unconstitutional State of Affairs is not a minor or superficial matter. On the contrary, it constitutes a novel and highly significant doctrine within Constitutional and Democratic States governed by the rule of law, raising major concerns due to its implications and consequences. The judicial declaration of an Unconstitutional State of Affairs in a court ruling can be interpreted from at least two perspectives—two sides of the same coin: on the one hand, it implies the recognition that the Democratic and Constitutional State governed by the rule of law has failed in a specific context; it acknowledges the failure of institutions to protect the fundamental rights of certain individuals. On the other hand, it represents the ultima ratio used by State institutions—through the leadership of constitutional judges—to fulfill one of their essential purposes: the protection of citizens’ fundamental rights. Thus, when we speak of an “Unconstitutional State of Affairs,” various philosophical, epistemological, and evidently legal-normative problems arise.