conduct this “control” and the degree of intensity will be determined by their
competences and procedural regulations. In principle, all Mexican judges must
ensure that the national standard adheres to the principle of constitutionality and
conventionality. Therefore, from the outset they must “interpret” the national
standard in line with the Constitution and conventional parameters, which means
opting for the most favorable interpretation for the use and exercise of
fundamental rights and freedoms in application of the pro homine libertatis or favor
libertatis principle enshrined in Article 29 of the Pact of San Jose, rejecting
interpretations that are incompatible or less protective. Conversely, whenever
rights and freedoms are restricted or limited, judges must use the strictest
interpretation of that limitation. And only when it is not possible to arrive at a
constitutional and conventional interpretation, should judges disregard the national
provision or declare it invalid, according to the jurisdiction conferred by the
Constitution and national laws on each judge, producing a greater degree of
intensity in the “conventionality control.”
70.
It should be noted that the Supreme Court of Justice has interpreted Article
133 of the Constitution to mean that (i) although international treaties indeed form
part of the "Supreme Law of the Union" they rank below the Constitution; 94 and
(ii) that local judges do not conduct “diffuse constitutionality control”. 95 The first
interpretation is not considered a binding precedent, since it did not obtain the
number of votes required, 96 and different interpretations have been rendered by
other Mexican courts; 97 as to the second interpretation, although this
94
Thesis IX/2007, of the Plenary of the Supreme Court, whose rubric and text are:
“INTERNATIONAL TREATIES ARE AN INTRINSIC PART OF THE SUPREME LAW OF THE UNION
AND ARE RANKED ABOVE THE GENERAL, FEDERAL AND LOCAL LAWS. CONSTITUTIONAL
INTERPRETATION OF ARTICLE 133.
The systematic interpretation of Article 133 of the Constitution of the United Mexican States
reveals the existence of a superior legal order, of a national character, integrated by the Federal
Constitution, international treaties, and the general laws. Similarly, based on this interpretation,
harmonized with the principles of international law dispersed in the constitutional text, as well as rules
and basic premises of that law, it is concluded that international treaties are ranked below the Federal
Constitution and above the general, federal and local laws, to the extent that the Mexican State when
signing such treaties, in accordance with the provisions of the Vienna Convention on the Law of Treaties
between States and International Organizations or among International Organizations, following the
fundamental principle of customary international law "pacta sunt servanda" freely contracted obligations
to the international community cannot be disregarded by invoking rules of law, a breach which is,
moreover, implies international liability." (Underlining added). Published in the Semanario Judicial de la
Federación y su Gaceta, Pleno, Tome XXV, April 2007, p.6.
95
Jurisprudential Thesis 74/99, of the Plenary of the Supreme Court, whose rubric and text are:
“DIFFUSE CONVENTIONALITY CONTROL OF GENERAL STANDARDS IS NOT AUTHORIZED BY
ARTICLE 133 OF THE CONSTITUTION.
The text of Article 133 of the Federal Constitution specifically states that “Judges in every
State shall abide by the Constitution, its laws and treaties, notwithstanding any contradictory provisions
that may appear in Constitutions or laws of the States.” This literal meaning was eventually adopted by
the Supreme Court; however, the position held subsequently by this same High Court has been,
predominantly, in another direction, taking into account a systematic interpretation of the precepts and
principles that govern our Constitution. Indeed, the Supreme Court of Justice considers that Article 133
of the Constitution is not a source of constitutional control for authorities exercising jurisdictional
functions over the actions of others, such as the laws emanating from the Congress itself, or of their
own actions, allowing them to disregard some and not others, since that provision must be interpreted
in light of the system established by the Constitution itself to that effect. "(Underlining added).
Published in Semanario Judicial de la Federación y su Gaceta, Tome X, August 1999, p. 5.
96
Under Article 192 of the Law of Amparo, resolutions shall constitute obligatory jurisprudence,
provided that the decisions therein are supported by five consecutive applications, uninterrupted by a
contradicting one, and with at least eight votes by judges of the Full Court. In the specific case, the
matter was approved by a majority of six votes against five.
97
For example, Thesis XI.1º.A.T.45 K, whose heading and text are:
25
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