International law in Mexican courts.

Author:Cicero, Jorge
 
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TABLE OF CONTENTS

  1. INTRODUCTION II. THE ROLE AND RANK OF INTERNATIONAL LAW IN

    THE MEXICAN LEGAL ORDER

    1. The Domestic Status of International

      Treaties and Agreements

    2. The Interaction Between National and

      International Norms III. ENSURING MEXICO'S HIGH COURTS' CONSIDERATION

      OF INTERNATIONAL LEGAL QUESTIONS

    3. The Local Supreme Tribunals

    4. Federal Courts

      1. Jurisdiction and Authority

      2. Ensuring Treaty Questions Reach the High

      Courts IV. THE RELATIONSHIP BETWEEN THE JUDICIARY AND

      THE EXECUTIVE IN INTERNATIONAL LEGAL QUESTIONS

    5. The Traditional Spectrum

      1. The Executive as Plaintiff or Defendant

      2. The Executive as Representative of

        Public Interests

      3. The Executive as Assistant of the

        Judiciary

      4. Judicial Opinions to the Executive

    6. Emerging Issues

      1. Alternate Means

      2. The Ancillary Labor and Environmental

        Agreements

      3. The Executive's Advisory Role Under

        Blocking Statutes

      4. The Judiciary, Denunciations,

        and Reservations V. STANDING To RAISE QUESTIONS OF INTERNATIONAL

        LAW BEFORE MEXICAN COURTS

    7. The Law and Precedent

      1. Amparo Standing

      2. Claims of Unconstitutionality

      3. Constitutional Controversies.

      4. Standing and Right of Petition

    8. Possible Adjustments VI. ENSURING ASSISTANCE TO MEXICAN COURTS IN

      THE APPLICATION OF INTERNATIONAL LAW

    9. Dissemination

    10. Rules of Evidence

    11. Codification VII. THE EDUCATION OF MEXICAN JUDGES IN INTERNATIONAL

      LAW VIII. CONCLUSION

  2. INTRODUCTION

    In a global community where images, persons, goods, capital, services, ideas, and even crime flow swiftly, international law increasingly touches the national administration of justice. Strikingly, no matter how clearly different legal systems have incorporated treaties and other international sources, the domestic use of these international agreements is rarely realized in practice. Whether or not the national order explicitly embraces the domestic applicability of international norms, cultural factors tend to outweigh the letter of the law. Yet there is little doubt that the domestic law on a subject may significantly influence a legal community's attitudes toward international law.

    In Mexico, at least three sets of circumstances shed light on why litigants and judges have yet to take full advantage of international law. First, the specific purpose of certain Mexican constitutional provisions is to deter the importation of intrusive agreements and less protective international standards. These provisions were adopted during a time of foreign intervention, when domestic law provided not only superior, but, with few exceptions, exclusive protection in matters of fundamental rights. There are no similar restraints expressly deterring constitutional amendments to withdraw or to restrict previously acquired freedoms. The assumption is that national minimum standards are always superior and that external threats to them should be the chief, if not the exclusive, constitutional concern.

    Treaties do not achieve supreme rank in Mexico merely because of their ratification. The Mexican Constitution, unlike the U.S. Constitution, expressly cautions that the principle of supremacy applies only to treaties that conform to it.(1) Another clause in the Mexican Constitution expressly proscribes the conclusion of treaties restricting constitutional rights and freedoms.(2) This prohibition was introduced in the 1856 Constitutional Congress with the following consideration:

    [E]xperience shows [that] treaties concluded and discussed with

    precipitation often produce serious alterations in the civil and

    political rights of citizens . . . . Great powers generally tend

    to influence the business of weaker countries; alliances, protectorates

    and interventions produce such results. Currently, one notes in the

    French Empire this trend and we all know that, in the last Congress

    of Paris, Louis Napoleon's Minister attempted to restrict the freedom

    of press enjoyed in Belgium. Because of a treaty, then, certain

    political rights or other liberties such as commerce, movement, etc.,

    may be lost.(3)

    Implied in these clauses is the constitutional sanction, perhaps even the constitutional status, of international treaties advancing fundamental rights and freedoms.(4) However, reading this implication into the Constitution requires an interpretive task because the Constitution's meaning is not obvious.(5) Given this framework, skepticism about the domestic uses of international instruments is not surprising. Typically, controversies about treaties focus on unconstitutional treaty-based behavior, rather than on constitutional covenants, treaties, and conventions.

    Second, from a historical standpoint, the judicial application of customary international law in Mexico is infrequent and similarly related to external threats.(6) Several basic rules of contemporary international law now enjoy the status of constitutional principles governing Mexican foreign policy.(7) Even so, these principles are oriented toward the President.(8) The constitutional control of his foreign policy corresponds to the Senate, not the courts.(9)

    Unlike standard domestic references to treaties and conventions, in the Mexican order there are few express references to "international law." Although such references appear in respect to territorial waters and airspace,(10) consular and diplomatic assistance to courts, protection of nationals abroad,(11) and in statutes blocking foreign laws with extraterritorial reach,(12) there is little case law applicable to, let alone arising from, international sources other than treaties. In matters of international law, the bench and bar, for good reason, cling to the juridical certainty that rules recorded in treaties and statutes provide, rather than attempting to apply more nebulous "international law" concepts.

    Finally, Mexican courts usually will not consider questions of international law not timely raised by the parties. International sources are not always precise, accessible, widely known, or even translated into Spanish. When domestic law leads in principle to the same result, the direct or indirect application of international law appears inconsequential. Furthermore, if international bodies are available, the interested parties may refrain from asserting the relevant agreement before national courts in order to promptly reach the international bodies.

    Still, while some international sources and rules add little to national law, others are increasingly crucial to domestic adjudication. As for the prior exhaustion of domestic remedies, it is true that sometimes it admits of waivers and exceptions. But it is equally true that international jurisdictions cannot replace national courts, they often rely on national courts, where the cases may ultimately be tiled.

    Traditional case law consistently indicates that Mexican courts are prone to interpret, consider, and apply, as appropriate, duly concluded treaties and conventions. More importantly, the Mexican legal system is undergoing unprecedented developments that strikingly expand the avenues to give effect to international undertakings, if necessary, by judicial means.

    This Article discusses the actual and potential uses of international law in Mexican courts, considering each topic suggested by the International Law Association (hereinafter ILA) Helsinki Conference.(13) While reviewing how the Mexican system already ensures judicial consideration of international undertakings, this Article also identifies several areas susceptible to possible refinements. Part II examines the current domestic status of international law in Mexico. Part III discusses the means of ensuring that Mexico's high courts hear questions of international law. In Part IV, the author examines both traditional and newly-emerging aspects of the relationship between the Executive and Judiciary regarding international law. The author explains in Part V the current concept of standing with respect to international law issues and proposes changes to the current rules. Part VI suggests means of assisting Mexican courts in the application of international law. Finally, in Part VII the author discusses the importance of educating Mexican judges about international law.

  3. THE ROLE AND RANK OF INTERNATIONAL LAW IN THE MEXICAN LEGAL ORDER

    1. The Domestic Status of International Treaties and Agreements

      Unlike the legal systems of other Latin American nations,(14) Mexico's system does not require the domestic introduction of treaties by special legislation.(15) Instead, treaties concluded by the Executive and approved by the Senate achieve national status after their official domestic publication.(16) Mexican courts consistently equate treaties with legislative acts,(17) affirm their incorporation into national law's.(18) and hold they are binding throughout the land.(19) For adjudication purposes, whether a treaty becomes self-executing once domestically in force is relevant, namely, to determining when private parties may seek judicial protection against it.(20) Refusal to give effect to treaties on non-self-execution grounds(21) is not, however, a doctrine characteristic of Mexican courts.(22)

      In Mexico, which is a federal republic composed of thirty-one states and the Federal District, the Constitution has a well-known supremacy clause according national rank to international treaties:

      This Constitution, the laws of the Congress of the Union that stem

      therefrom, and all treaties that are in accordance with it, made or which

      shall be made by the President of the Republic, with approval of the

      Senate, shall be the Supreme Law throughout the Union. The judges of

      every State shall be bound by the said Constitution, laws, and treaties,

      any provisions to the contrary that may appear in the Constitutions or

      laws of the States notwithstanding.(23)

      As judicially interpreted, the Constitution "does not preestablish the subject-matter . . . of treaties and conventions concluded by the Government of the Republic," provided they are in accordance with the Constitution.(24) Mexican judges are bound to give primacy to constitutional treaties over state laws, but they are also bound to give primacy...

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