08/29/13 – On August 26, the Mexican Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) re-opened a long awaited debate on the hierarchy of international law of human rights vis-a-vis the Mexican legal system. The SCJN will discuss a draft for resolution that was presented by Justice Arturo Zaldívar, which argues that human rights included in international treaties have a constitutional status and that judges should always seek the most favorable interpretation for the person, the so called “pro-homine” principle. If the resolution is passed, it would mean the Constitution does not supersede such international treaties as it does now.
The debate on the hierarchy of international treaties in the Mexican legal system is not new; the SCJN has always ruled in favor of holding the Constitution above treaties, including those regarding human rights. However, several countries in Europe and Latin America have already hosted this discussion and determined that it is necessary to rule in favor of international human rights. The urgency of this debate in Mexico was rekindled after the Inter-American Court of Human Rights (ICHR) sentencing in 2009 against Mexico in the case of the 1974 forced disappearance of Rosendo Radilla. The ICHR declared that military personnel accused of human rights violations shall be tried in civil courts rather than military tribunals, thus requiring Mexico to amend its legal system.
The Radilla case pushed the SCJN to analyze the authority of the ICHR in mandating Mexico to comply with its decisions. In July 14, 2011, after a long debate in the SCJN, the ICHR ruling was recognized as binding for Mexico and the court ordered the legislation to be amended in order to comply with the decision. Moreover, the decision of the SCJN on the Radilla sentence analyzed other important issues such as the ‘diffuse control,’ which allows federal and local judges to directly interpret the Constitution and international treaties in cases brought before them, a figure rejected for decades in Mexican law. As well, a Constitutional reform preceding the SCJN’s ruling in the Radilla case established that all human rights protected by international treaties signed and ratified by Mexico are at the same level as the Constitution. This reform lead to two contradicting rulings by federal courts on the hierarchy of international treaties with respect to the Constitution, thus leading the SCJN to the current round of discussions to resolve the issue.
During the first SCJN discussion, Justices Jorge Pardo and Sergio Valls warned that some restrictions imposed by the Constitution could be ignored if the terms of Zaldívar’s draft are approved. Critics argue that an approval could jeopardize certain constitutional figures that restrict rights, referring expressly to the most criticized procedures incorporated in the Mexican legal system by the Constitutional Reform of 2008, such as “arraigo,” which national and international organizations argue jeopardizes the protection of human rights.
Nevertheless, after three sessions, the SCJN has not reached an agreement on the issue. Thus far five of 11 Justices have argued against Zaldívar’s draft—Margarita Luna, Luis María Aguilar, Jorge Pardo, Fernando Franco, and Alberto Perez Dayán—while Jose Ramón Cossío and Olga Sánchez Cordero have expressed their approval. Justices Sergio Valls and Alfredo Gutiérrez seem to support most of the draft, although their final positions are not yet confirmed. Justice President Juan Silva Meza has not yet articulated or expressed his view, but it is believed that he will endorse Zaldívar’s resolution when the discussion continues. The approval for this draft would only require six votes from the 11 SCJN justices.
Caso Radilla Pacheco vs. México. Corte Interamericana de Derechos Humanos, Excepciones Preliminares, Fondo, Reparaciones y Costas, sentencia de 23 de noviembre de 2009, Serie C No. 209.
Expediente Varios 912/2010. Resolución del Pleno de la Suprema Corte de Justicia de la Nación. 14 de Julio de 2011.
Contradicción de tesis 293/2011.