27
Convention" in light of article 133 and the four judgments issued so far by the I/A
Court of H.R. regarding the Mexican State and which have applied that doctrine.
71.
Now, the above criteria from Mexico's highest court jurisdiction make up
"constitutional interpretations" that could eventually change, either through new
reflections, or by reason of constitutional reform.
72.
There are currently two constitutional reform bills being processed that are
of great relevance in human rights99 and amparo, 100 both adopted by the Senate
and pending approval by the Chamber of Deputies, which if it gets to the point of
being converted into constitutional text, will surely produce "new thinking" by the
Mexican Supreme Court regarding the interpretation criteria mentioned above.
Regardless of its approval and the "consultation in process" that the President of
the Supreme Court held before the plenary session of that body on May 26, 2010,
on compliance by the Federal Judicial Power of the Judgment of the Case of Radilla
Pacheco101 on the case; the fact is that in that international case, as in the cases
referred to of Fernández Ortega, Rosendo Cantú, Montiel and Cabrera Garcia and
Flores, there are "direct" obligations that must be met by Mexican judges (as
organs of the Mexican State) "immediately" and "ex oficio" as discussed below.
73.
It should not be overlooked that the judgments against the Mexican State
allude that the norms need to be "interpreted," in view of the aim pursued by
Article 2 of the American Convention on Human Rights, namely, to "enforce" the
rights and freedoms of the American Convention on Human Rights. In this
conventional provision, it provides that "the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect
99
As relevant here, what is highlighted of this reform is the "Article 1. In the United Mexican
States all persons shall enjoy the rights recognized by this Constitution and international treaties on
human rights of which the Mexican State is a party, as well as guarantees for their protection, which can
not be restricted or suspended except in cases and under conditions established by this Constitution.
The rules on human rights shall be construed in accordance with this Constitution and with
international human rights treaties mentioned above.
All authorities within the scope of its powers, 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 must prevent, investigate, punish and
remedy human rights violations in the terms established by law." (Underlining added.)
100
Article 103, fraction I, of this reform notes: “Article 103. . The federal courts decide all
controversies that arise: I. By general norm, acts or omissions of the authority that violate human rights
and the guarantees for protection under this Constitution and by international treaties to which the
Mexican State is a party. "(Underlining added).
101
The "consultation process" corresponds to the file 489/2010, having been discussed for the
project by the Plenary of the Supreme Court on August 31, 2, 6, and 7 September 2010. The debate in
those four days is of utmost importance for relations between national and international law of human
rights, which even allowed for positions on and for the "diffused control of conventionality;" however, for
by a majority, it determined to restrict the query to "make 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 Garcia,” so the matter went to another Minister to define the
specific obligations of the Judiciary of the Federation and the manner of the instrument.
Significantly, the Supreme Court in this "consultation process" 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 concrete case, and that could have on other international disputes in
which a future United Mexican States could also become a party. "(Underlining added).
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