jurisprudence is mandatory for all Mexican judges in terms of applicable standards,
we believe it should be harmonized to ensure a greater development of “diffuse
conventionality control” in light of Article 133 and of the four judgments issued so
far by the Inter-American Court regarding the Mexican State, which have applied
that doctrine.
71.
The foregoing criteria established by Mexico's highest court comprise
“constitutional interpretations” that could eventually change, either through new
insights or due to constitutional reforms.
72.
At present, two constitutional reform bills are being processed which are of
major importance for human rights 98 and amparo. 99 Both have been approved by
the Senate and are pending approval by the Chamber of Deputies. If these should
eventually be incorporated into constitutional text, will surely lead to “new
thinking” in the Mexican Supreme Court regarding the interpretative criteria
mentioned above. Regardless of its approval and of the “consultation process”
undertaken by the President of the Supreme Court during the plenary session held
on May 26, 2010, regarding the Federal Judiciary’s compliance with the Judgment
in the Case of Radilla Pacheco 100, the fact is that in this particular international
“INTERNATIONAL TREATIES. CONFLICTS THAT ARISE IN RELATION TO HUMAN RIGHTS
SHOULD BE ANALYZED AT THE CONSTITUTIONAL LEVEL.
Treaties or conventions on human rights signed by the Mexican government must be placed at
the level of the Constitution of the United Mexican States, because these instruments were designed as
an extension of the provisions of Basic Law concerning human rights, inasmuch as these constitute the
purpose and object of the institutions. Thus, the principles governing subjective public law must be
adapted to the different purposes of the means of defense contemplated in the Constitution itself and, in
accordance with Article 133 thereof, the Mexican authorities must respect them; therefore under no
circumstances may they disregard these in acting within their jurisdiction." (Underlining added)
Published in the Semanario Judicial de la Federación y su Gaceta, TCC, Tome XXXI, May 2010, p. 2079).
98
The following aspects of this reform are especially relevant here: "Article 1. Everyone in the
United Mexican States shall enjoy the rights recognized by this Constitution and international treaties on
human rights to which the Mexican State is a party, as well as the guarantees for their protection, which
cannot be restricted or suspended except in the cases and under the terms established by this
Constitution.
Human rights standards shall be interpreted in accordance with this Constitution and with the
aforementioned international human rights treaties.
All authorities, within the framework of their competences, have an obligation to promote,
respect, protect, and guarantee human rights in accordance with the principles of universality,
interdependence, indivisibility and progressiveness. Consequently, the State shall prevent, investigate,
punish and repair violations of human rights under the terms established by law.” (Underlining added.)
99
Article 103, part I, of this reform notes: “Article 103. The Federal courts shall settle all disputes
that arise: I. Regarding general rules, actions or omissions by the authorities that violate human rights
and guarantees for their protection recognized under this Constitution, as well as by international
treaties to which the Mexican State is a party.” (Underlining added).
100
The “consultation process” corresponds to File 489/2010, the draft bill having been discussed
by the Plenary of the Supreme Court on August 31, 2, 6, and 7 September 2010. The debate during
those four days was of the utmost importance for the relationship between domestic and international
human rights law, since it reflected positions for and against "diffuse conventionality control;" however,
by a majority, it was decided to restrict the consultation to a statement about the possible involvement
of the federal judicial power in implementing the ruling of the Inter-American Court of Human Rights in
the “Case of Cabrera and Montiel Flores García.” Thus the matter was submitted to another Minister in
order to define the specific obligations of the Federal Judiciary and how to apply these.
Significantly, in this "consultation process" the Supreme Court established, by a majority, the
object of analysis, noting, inter alia, "it will be necessary to interpret the scope of reservations or
interpretative declarations made by the Mexican State, both in adhering to the American Convention
[sic] on Human Rights and the Convention on Forced Disappearance of Persons, given the impact that
such exceptions would have on the specific case, and other international disputes to which the United
Mexican States could also be a party in the future. "(Underlining added).
26
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