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ABSTRACT
Conventionality review is a recent Latin American doctrine seeking that states which had ratified the American Convention of Human Rights verify the conformity of their national laws to norms of the Convention. In Mexico, several changes have placed the country in a better position to follow this inter-American doctrine: 1) a 2011 human rights constitutional amendment; and 2) an interpretation handed down by the Mexican Supreme Court after its appraisal of the Rosendo Radilla-Pacheco case. These events allow all judges in the country (federal and local) to disregard national laws if they contravene norms established in the Convention or the Constitution. How then are these changes operating in practice? This article explores the extent to which conventionality review is being used by intermediate level court's judges and defenders in the states of Jalisco, Nuevo Leon, and Oaxaca.
Acknowledgment
I thank Jorge Corona for his research assistance.
Notes
1. With the thesis P. LXVIII/2011 national and subnational judges are compelled to disregard secondary laws that contravene the constitution and international treaties on human rights (SCJN Citation2011d).
2. “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (UN Citation1969: 339).
3. In this advisory opinion, the IACHR stated that “the promulgation of a law in manifest conflict with the obligations assumed by a state upon ratifying or adhering to the Convention is a violation of that treaty” (IACHR Citation1994: para. 50).
4. In Mexico, once the Executive and the Senate agree to ratify a treaty, it becomes supreme law of the land and, as the Mexican Supreme Court recently instructed, international treaties are placed at the same level as the constitution; that is, both legal tools belong to the same “human right's constitutional block” (SCJN Citation2013: 8), unless there is a constitutional limitation of rights; if that is the case, the constitution prevails (SCJN Citation2013).
5. See cases of Castañeda-Gutman in 2008, González et. al. (“Campo Algodonero”) in 2009, Rosendo Radilla-Pacheco in 2009, Cabrera-Garcia and Montiel-Flores in 2010, and Fernandez-Ortega et al. in 2011 (IACHR Citation2003, Citation2006a, Citation2006b, Citation2008, Citation2009a, Citation2009b, Citation2010a, Citation2010b).
6. Note, however, that in April 2014 the Federal Congress approved a reform to the military code. This was a long-standing request of the IACHR derived from sentences in Radilla-Pacheco and Cabrera-Garcia and Montiel-Flores cases against Mexico.
7. A thesis from the Plenary of the Mexican Supreme Court is an interpretation of the law that justices elaborate before a case to which the law does not contemplate a clear solution. It offers subnational judges guidelines to decide in the same manner futures cases.
8. Rights to personal liberty, humane treatment, fair trial, judicial protection, juridical personality, and life (OAS Citation1969).
9. As a matter of fact, those arguments still prevail in the Mexican Supreme Court as well. See, for instance, the opinion in this case of Justice Sergio Aguirre Anguiano (SCJN Citation2011c); see also the opinion of Justice Margarita Luna Ramos in “Contradiction of thesis” 293/2011 where she defends the supremacy of the Constitution over international human rights treaties ratified by Mexico (SCJN Citation2013).
10. In 2013, the plenary of the Supreme Court decided in case 293/2011 a “Contradiction of thesis” between two circuit tribunals regarding the prevalence of rights in the constitution or in international treaties when the former contravene the latter. Even if they recognized the constitutional character of international human rights, they agreed by 10 votes (out of 11) that “when there is a restriction in the Constitution, it must prevail what states the constitutional norm” (SCJN Citation2013).
11. This, however, was subjected to constitutional limitation. See Contradiction of Thesis 293/2011 (SCJN Citation2013) handed down in 2013.
12. This last fact is also shared by Schulte (Citation2004: 29).
13. Each state has various federal circuit courts assigned by the federal judiciary depending on the state's population. Jalisco (the most populated state among those selected) has five federal circuit courts for the civil area, four for the administrative area, and three for the criminal area; Nuevo Leon has three circuit courts for the civil area, three for the administrative area, and two for the penal area: Oaxaca has a circuit tribunal for the civil and administrative area and another for the criminal and administrative areas.
14. I used randomizer.org.
15. Selection of cases in the labor arena was avoided given that direct Amparos are issued against decisions of a special department called Procuraduría Federal del Trabajo and not a federal or local judge.
16. The concluded decisions are classified as “fundamental public information” according to the Federal Transparency and Access to Information Law and should be available in the judiciary webpage. This was the case for the most federal decisions (Supreme Court, circuit tribunals, unitary tribunals, and district courts).
17. I included local judges since, in most of the cases — in some decisions federal authorities such as the Fiscal and Administrative Federal Courts handed down the decision the plaintiff was appealing — they adjudicated the decision the plaintiff was appealing. However, we have to consider an important issue: Most of the local decisions against which the Direct Amparo was issued were adjudicated during or before the 2011 constitutional amendment and before the Supreme Court landmark decision on the case Varios 912/2010, and thus we can expect local judges not to use conventionality review or to use it sparingly. It is worth noting, however, that few local and federal judges' decisions exercising conventionality review existed before those reforms were accomplished.
18. To decide what actor invoked human rights arguments, I read the selected decisions and the arguments presented; in many of them, both the defender and the federal judge recalled human rights, but I classified the reference in relation to the former given that the judge just repeated the lawyer's argument without adding any other reasoning, articles, or protocols on human rights.
Additional information
Notes on contributors
Azul A. Aguiar-Aguilar
Azul A. Aguiar-Aguilar is an Associate Professor in the Department of Law and Sociopolitical Studies at ITESO, Universidad Jesuita de Guadalajara in Mexico. She teaches courses in political science, rule of law, and political science methodology at ITESO, the University of Guadalajara, and El Colegio de Jalisco. She works on the field of comparative judicial politics and her research interests and recent publications include several articles and book chapters: “Rule of Law and Political Regimes,” “Justice-Sector Institutions in Transition: The Reform to the Public Prosecutor Office in Comparative Perspective,” “The Role of the Mexican Electoral Tribunal in Recent Elections,” and “Police Reform at the Municipal Level.” She has been distinguished as a member of the National Researchers System (SNI) in Mexico.