TABLE OF CONTENTS
INTRODUCTION II. THE ROLE AND RANK OF INTERNATIONAL LAW IN
THE MEXICAN LEGAL ORDER
The Domestic Status of International
Treaties and Agreements
The Interaction Between National and
International Norms III. ENSURING MEXICO'S HIGH COURTS' CONSIDERATION
OF INTERNATIONAL LEGAL QUESTIONS
The Local Supreme Tribunals
Jurisdiction and Authority
Ensuring Treaty Questions Reach the High
Courts IV. THE RELATIONSHIP BETWEEN THE JUDICIARY AND
THE EXECUTIVE IN INTERNATIONAL LEGAL QUESTIONS
The Traditional Spectrum
The Executive as Plaintiff or Defendant
The Executive as Representative of
The Executive as Assistant of the
Judicial Opinions to the Executive
The Ancillary Labor and Environmental
The Executive's Advisory Role Under
The Judiciary, Denunciations,
and Reservations V. STANDING To RAISE QUESTIONS OF INTERNATIONAL
LAW BEFORE MEXICAN COURTS
The Law and Precedent
Claims of Unconstitutionality
Standing and Right of Petition
Possible Adjustments VI. ENSURING ASSISTANCE TO MEXICAN COURTS IN
THE APPLICATION OF INTERNATIONAL LAW
Rules of Evidence
Codification VII. THE EDUCATION OF MEXICAN JUDGES IN INTERNATIONAL
LAW VIII. CONCLUSION
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.
THE ROLE AND RANK OF INTERNATIONAL LAW IN THE MEXICAN LEGAL ORDER
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...