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NUMBER 4   JULY - DECEMBER 2005

    TREATY MAKING, GENEALOGY AND THE CONSTITUTION TODAY*
    Ricardo Méndez Silva

    Original Text (Spanish) PDF

    SUMMARY
    I. Outline. II. Constitutional Texts. III. Conclusions.


    I. OUTLINE

    The system for executing treaties is important in that the domestic procedures and formalities currently en force determine the obligatory commitments the State enters into with other States and international organizations.

    This paper will cover the procedures for the conclusion of treaties in light of the different constitutional texts that have existed in Mexico, including those of Apatzingán and Cádiz.1 The transcription of the articles mentioned is due to the author’s interest in sharing the exact texts with the reader in order to fully appreciate the regulation.

    It is the sovereign State that decides on the rules governing the celebration of treaties. In other words, it is up to the State to determine which internal bodies will participate in the treaty making and which procedures will be followed. Anglo-Saxon doctrine coined the term treaty making power, which is practically universally accepted, to refer to this internal authority.2

    However, in its normative sphere, generally accepted international law has defined the main stages for the conclusion of treaties: the negotiation, the signing and ratification, and, if so required, adherence, a remedy with which the State can incorporate itself into a system it is not already a part of. Likewise, in the international ground, regulations and institutions, such as reservations, have been put in place, and outlines for interpreting treaties have emerged.

    During the time of absolutist States, treaties were entered into solely by the executive without any oversight or approval from a legislative body. The executive was responsible for ratification, with the aim of evaluating the terms agreed upon by the negotiators, but there was no control or counterweight on behalf of the legislative branch. The advent of the democratic State, brought about mainly by the Independence of the United States of America and the French Revolution, implied the establishment of limits on the Executive in different areas, including those related to foreign affairs, such as naming ambassadors and consuls, declaring war, and, of course, the celebration of treaties.

    The US Constitution of 1787, in the section concerning the presidential powers, states that "He shall have power, by and with the Advice and Consent of the Senate, to make treaties, provided two-thirds of the Senators present concur...".3 The Mexican constitutional system was inspired on this model, but from the beginning it has shown interesting differences that meant something other than a passive duplicate of the US’s solution.

    Similarly, the French Constitution of 1773 had contemplated the negotiation of treaties by the Executive Council, as well as the "ratification of the treaties" by the legislative body.4

    However, certain clarifications seem pertinent. It is fitting at this moment to differentiate the meaning of the terms "approval" and "ratification". Usually, approval is used in reference to internal procedures of the competent legislative body and ratification for the final act of the Executive by which a State manifests its willingness to be bound by a treaty at an international level, once it has internal legislative approval. A certain general synonymy may seem tempting, but conceptual tidiness would advise us to lean towards this differentiation as is considered by the known treaty law expert Lord McNair when pondering the different meanings attributed to ratification.5

    On the other hand, the acceleration of international relations has brought about the execution of a wide variety of international agreements of scant importance to the general interest of the State and is legally perfected only upon signing. The 1969 Vienna Convention on the Law of Treaties contemplates precisely the possibility of treaties entering into effect upon its signature, but in order to do so it is necessary that the constitutional system allow it, in accordance with the principal of treaty making power.

    Before outlining the methods for executing treaties recognized by Mexican constitutional statutes throughout the history of Mexico, it must be pointed out that currently the Constitution should be complemented with the 1969 Vienna Convention on the Law of Treaties, the 1985 Vienna Convention on the Law of Treaties between States and International Organizations and the 1992 Law of Treaties,6 instruments which are the Supreme Law of the Union in accordance with Article 133 of the Constitution.

    II. CONSTITUTIONAL TEXTS

    1. The Cádiz Constitution of 1812

    Although this text was never in force in Mexico and led to a period of intense political upheavals in Spain, it is of relevant interest because it was not indifferent to the influence of the constitutional innovations spearheaded by the US Independence and the French Revolution. It conceived a limited monarchy in which the monarch had boundaries in different areas, including our area of interest, foreign affairs. Thus, the restraints placed on the king were due to a democratizing vision of not allowing the Executive to unilaterally impose an obligation upon the State and rather of seeking an institutional balance, the needed counterweight and adequate oversight by the Legislative Power. Throughout Mexico’s constitutional development, this model is present in both federal and centrist regimes.

    The drafting of this statute concerning international matters was without a doubt the precedent for the version found in the Mexican Constitution of 1917, particularly in what was set forth originally in Article 89, Section X. In the chapter entitled "The Inviolability of the King and his Authority", it conceives as a power of the monarch to "direct diplomatic and commercial relations with all other nations and to appoint ambassadors, ministers, and consuls".7

    Specifically regarding executing treaties, the Cádiz Constitution stated that: "The King cannot enter into an offensive alliance or special commercial treaty with any foreign power without the consent of the Courts", and further stipulated: "No foreign power can be given subsidies nor obligated without the consent of the Courts".8

    These limitations on the Executive were correlated to an express power given to the courts: "To approve before ratification treaties of an offensive alliance, those concerning subsidies, and those of special commercial agreements".9

    Certainly this Cádiz document never governed Mexico, but some of the expressions that found their way into Mexican constitutional texts originate from that document, such as the above-mentioned power of the president to "conclude international treaties" in article 89, section X.10 That assertion would survive a mere one hundred and seventy-six years until the constitutional reform of 1988, which incorporated the principles of Mexican foreign policy into the Constitution. Similarly, the king’s power to "Concede or deny entry of foreign troops in the kingdom" and to "freely appoint and remove State secretaries"11 was recognized in the Spanish political code, phrases that with the proper republican makeover have made their way into Mexico’s current Constitution.

    2. The Apatzingán Constitution of 1814

    Of congressional tone and design, the Apatzingán Constitution granted the Supreme Government the right to "Declare war and dictate the instructions under which peace shall be proposed or accepted: those that must be employed to adjust treaties of alliance and commerce, and approve these treaties before their ratification".12

    It entrusted the Supreme Government, which would be composed of three people, with the power to "announce war and negotiate peace. Celebrate Treaties of alliance and commerce with foreign nations…"13 according to the provision transcribed above.

    The Supreme Congress not only had the faculty to approve the treaties prior to their ratification (one can see a correct use of terminology), but also that of providing the instructions according to which the treaties would have to adapt. It is worth pointing out that in the prevailing system, the Senate has the power to intervene a posteriori the negotiation, the negotiation being an Executive power, without the possibility of giving instructions for drawing up a treaty.

    3. The Constitutional Act of the Federation and the Constitution of 1824

    The Constitutional Act gave the Supreme Executive Branch the power to "Direct diplomatic negotiations, celebrate treaties of peace, alliance, federation, truce, armed neutrality, commerce and others; in order to lend or deny ratification to any of them, approval must be given by the General Congress".14

    The Legislative Branch was envisioned as being formed by a Chamber of Deputies and another of Senators, and was given the exclusive power to "approve treaties of peace, of alliance, of friendship, of federation, of armed neutrality, and any other the executive power enters into".15 This is a difference with the US model worth mentioning. In this latter case, from the very beginning, the power of approval was given to the Senate, while in the constitutional awakening of Mexico it was given to Congress as a whole.

    A provision in tune with the federal organizational outline was that of denying the states the legal possibility of directly entering into international commitments: "No State shall enter a contract or agreement with another, or with a foreign power, nor pursue war, unless in the case of actual invasion or such imminent danger as to admit no delay".16

    The Federal Constitution of the United Mexican States, of October 1824, began with the proclamation of independence, a determining condition of the emerging State: "The Mexican nation is forever free and independent of the Spanish government and any other power".17 Mexico was leaving behind 300 years of colonial rule, and considering that its independence was denied by Spain, it is understandable that its first constitutional principle would affirm its freedom and independence, assertions intimately linked to sovereignty, a premise for which the young nation would have to fight to ensure its viability in 1846-1848 and in 1862-1867.

    In reference to the Executive Branch, the Constitutional Act had indicated that said power would be placed in the individual or individuals stipulated by the Constitution. It left open the possibility of a collegiate Executive Branch, a formula used as a political solution after the fall of Emperor Agustin de Iturbide. The Constitution overcame its ambiguity and established a one-person Executive18 with the drafting that remains to this day: "The supreme executive power of the federation will be placed in a single individual named president of the United Mexican States".19 In the current text, only the word "federation" was replaced with "union".

    Along with a one-member presidency, the Legislative Power was designed to be composed of two chambers: a Chamber of Deputies and a Chamber of Senators. Congress, and not just the Senate, as in the US model, was entrusted with the power to "Approve treaties of peace, of alliance, of federation, of armed neutrality, and any other that the president of the United States (of Mexico) may celebrate with foreign powers".20

    There is a peculiarity within the text due to its moment in history. The president was granted the power "of entering into concordats with the church".21 As we know, a concordat is a special type of international agreement, equally binding as a treaty, between a State and the Vatican. Its object is that of regulating the exercise of the Catholic faith within a State. In its constitutional awakening, within the Constitution itself, Mexico left proof of its Catholicism and its intolerance: "The religion of the Mexican nation is, and will perpetually remain, Roman Catholic. The nation will protect it through just and wise laws, and prohibits the exercise of any other".22

    It is to be understood that the relationship with the Papal States would call for special attention in the Constitution, but what stands out is that these agreements would require special instructions from behalf of the Congress. While Congress’s participation in treaties took place a posteriori the negotiation, the Concordats expressly required prior intervention. In reference to the powers of Congress, the Constitution stated: "Give instructions for entering into Concordats with the Church, approve them for ratification, and arrange the exercise of trusteeship throughout the entire federation".23

    It is important to note that in the area of international agreements, internal approval was conferred to the Congress and a qualified vote was not established as in the case of the United States of America, where a two-thirds vote of all Senators present has been a real factor of control in foreign relations.

    Similarly, the US Constitution established that treaties would be entered into with "the advice and approval of the Senate". "Advice" implies that that the Senate can participate in treaty making before it is submitted for approval. In Mexico, as we have seen, this could only occur in the case of negotiating Concordats.

    As far as language is concerned, the US Constitution solely used the generic term "treaties" while the authors of that of Mexico opted for a broad range of agreements likely to be adopted: of peace, friendship, alliance, etc… and if there were any doubts, "any other".

    Within the framework of federal predominance in foreign relations, and in accordance with the Constitutional Act, states were prohibited from entering "into contracts with any foreign power, or declaring war, needing to resist in case of actual invasion, or in such imminent danger that would not allow any hesitation, in this case informing the president of the republic immediately".24 This precept is in keeping with the US constitutional statute that corresponds with the general notion of the federal regime: "No State shall enter into treaty, alliance, or confederacy whatsoever".25

    Since the Mexican State was conformed as a federal union, the validity of treaties within the internal legal framework was suggested, and although no specific hierarchy was explicitly clarified, the preeminence of the federal regime over that of the states, including treaties, is obvious in reading the corresponding article: "Each and every one of the States has the obligation… III. To keep and to preserve the Constitution and the general laws of the Union and the treaties that have been made and those that may be entered into by the supreme authority of the federation with a foreign power".26

    These two constitutional instruments, which inaugurated the Mexican State, are of particular interest, more so because after having been substituted in 1836 and 1843, they were reinstated in 1847. The Treaty of Guadalupe Hidalgo was entered into under its protection on February 2, 1848.

    4. The Constitution of 1836

    The federal structure of the State gave way to a centralist model of organization, but in what concerns treaty making, the new Constitution followed its predecessor’s approach.

    The Executive Branch was entrusted to a "supreme magistrate" named the president of the Republic27 and the Legislative Branch was formed by the "General Congress of the Nation" composed of two chambers, the Chambers of Deputies and Senators.28

    The president of the Republic was authorized to "Direct diplomatic negotiations and enter into treaties of peace, friendship, alliance, truce, armed neutrality, subject to the approval of Congress before ratification".29

    The necessary normative entailment recognized, as an exclusive right of the General Congress, to: "Approve all kinds of treaties made by the executive with foreign powers and the concordats with the Church".30 The demand for Congress to give the bases for executing the concordats does not appear as it does in the Constitution of 1824, but in the president’s attributes, such a limitation was included: "Enter into concordats with the Church, in accordance with the bases given by Congress".31

    Since the Constitution of 1836 was a centralist one, it did not highlight the need to prohibit the provinces, referred to as "Departments" in the text, from making treaties. It would not be out of place to point out that the centralist regime of 1836 was one of the triggers of the Texan separatist movement and the tragedy that would occur ten years later.

    5. Bases for Political Organization of the Mexican Republic of 1843

    During the centralist cycle of a conservative nature, a new constitutional code came into being. As in the previous case, there were no significant innovations made regarding treaty making because the main political concerns revolved around the structure of the State and the organization of public power.

    The Supreme Executive Power was placed in a magistrate named "president of the Republic".32 The Legislative Power was formed by "a congress divided in two chambers, one of deputies and one of senators…".33

    The president of the Republic was obligated to "Direct diplomatic negotiations and make treaties of peace, friendship, alliance, truce, armed neutrality, and further agreements with foreign powers, subject to the approval of congress before ratification",34 and Congress had the power to "Approve, for its ratification, all kinds of treaties that the executive enters into with foreign powers".35 In regards to the concordats, the approval of congress before ratification was anticipated as well as to "arrange the exercise of trust throughout the whole nation".36

    The drafting is more or less the same as in the two preceding documents, but the word "agreement" (one of the many synonyms for "treaty")37 was used. Congress’s authority to give instructions for the negotiations of the concordats was also not foreseen, but as with the Constitution of 1836, it was contemplated in the chapter concerning the president’s obligation to "Enter into concordats with the Church, subject to the approval of Congress".38 At this point, the system was homogenized to accommodate most treaties by not demanding that Congress issue prior instructions for its design, which implied a variance from the original demand of 1824.

    In the code of 1843, an explicit prohibition for the Executive appeared: "The president cannot transfer, sell, cede, exchange or mortgage any part of the Republic’s territory".39 Only in the Apatzingán Constitution do we find something similar. It was stipulated that the provinces members of the State could not "separate themselves from one another in government, nor transfer themselves in whole or in part".40 However, in the Organic Laws, there was a detailed prohibition for the president to transfer, cede, exchange or mortgage national territory. Obviously this resolution resulted from the mistrust that General Antonio López de Santa Anna had awakened after the disastrous campaign in Texas.

    6. The Constitutional Reforms Act of 1847

    After the political upheavals and the constitutional oscillations, in the middle of a war with the United States, this instrument revalidated the original Constitution of 1824. The preamble to this historic document reads: "That pact of alliance, origin of the first Constitution and only legitimate source of the Supreme Power of the Republic, remains in its primitive vigor, and is and ahs had to be the beginning of all fundamental institutions". In the same part of the introduction, one can read the emphatic premise: "That the constitutive document and the Federal Constitution, approved January 31 and October 4, 1824, compose the only political Constitution of the Republic".41 The mechanism concerning treaty making is consequently dealt with in Clause 2.3, regarding the Constitution of 1824.

    In regards to the Executive Power, the Reforms Act eliminated the position of vice-president and stipulated that the president of the Supreme Court would fill the position of president if the need were to arise.42 This information is of interest because four months after having adopted the Act, General Santa Anna resigned the presidency after the Battle of Chapultepec in which Mexico fell to the invading army. In accordance with the constitutional reform, Manuel de la Pena y Pena, then president of the Mexican Supreme Court of Justice, became president of the Republic. It would be his responsibility to carry out one of the most unpleasant tasks in Mexican history: leading the negotiations for the Treaty of Guadalupe Hidalgo through which Mexico lost more than half of its territory.

    Although the Reform Act did not mention treaty making and followed the Constitution of 1824, that is, the requirement of having the approval of both chambers, the introduction to an appeal of unconstitutionality that the president, in agreement with his ministers, the deputies, senators or the legislatures, could present against a law enacted by the General Congress stands out. This appeal would be used against the Treaty of Guadalupe Hidalgo and is therefore convenient to read:

      If a law of the general congress is claimed to be unconstitutional by the president in agreement with Cabinet, or by ten deputies, or six senators, or three legislatures, within a month of it having been published, the Supreme Court, to which the appeal must be made, will submit the law to examination by the legislatures which within three months, and in one single day, must give their vote. The declarations will be sent to the Supreme Court, which will publish the result, annulling the law if a majority of the legislatures decides to do so.43

    This appeal is all the more interesting because: a) the initiative for making the motion was granted to the Executive and Legislative Branches, referred to deputies and senators, and to the state legislatures against a law of Congress; b) the appeal had to be presented before the Supreme Court of Justice whose role could not conceivably be that of mere form-filling but rather that of analyzing its legal basis before handing it over to state legislatures; c) but once it was handed over, the legislatures through a majority (it does not mention a qualified majority) had the last word regarding the constitutionality of a law.

    The Treaty of Guadalupe Hidalgo was approved in May 1848 by both the Chamber of Deputies and the Senate. Opposition to the treaty was particularly noticeable in the Chamber of Deputies where it obtained a vote of 51 in favor and 35 against.44 Eleven of the opposing deputies presented an appeal of unconstitutionality against the Treaty of Guadalupe Hidalgo.45 Unfortunately, despite the precision of their arguments and the bravery of their action, realistically the country had been defeated on all fronts, and in the United States the idea of demanding more territory than that stipulated in the treaty flourished. In fact, there was a political trend in the United States that called for incorporating all of Mexico into the American Union, which even had a few followers within Mexico itself.46

    The appeal of unconstitutionality, although presented on time, was advanced to the Supreme Court on June 1st, one day after the instruments of ratification had been exchanged on the May 30th in Querétaro,47 creating a conflictive legal situation, an international treaty in force, susceptible of being annulled internally, within the context of an overwhelming military defeat. There will be further opportunity to analyze this legal episode. For now it will suffice to say that the Court adopted a formalist position and closed the doors to the appeal under the argument that "There is no principle more incontestably accepted than the inadmissibility of state legislatures participating in foreign relations". One must bear in mind that it was up to the state legislatures to declare the unconstitutionality of a law. Furthermore, the Court argued that the treaty was not, strictly speaking, a law,48 and that it could therefore not be the object an appeal of unconstitutionality.

    7. The Constitution of 1857

    The liberal Constitution of 1857, of a secular origin and outstanding for its catalogue of individual rights, deposited "the Supreme Executive Power of the Union in one single individual who shall be named president of the United Mexican States",49 and among the rights given to the president was the —by now familiar to us— right to "Direct diplomatic negotiations and make treaties with foreign powers, subjecting them to the Federal Congress for ratification".50

    As far as the structural concept of the State, the Constitution envisioned a one chamber Congress, which received the responsibility to "approve the treaties, covenants, and diplomatic contracts that the Executive enters into".51 Later we will discuss the Constitutional Reform of 1874 that transformed Congress, making it into one composed of two chambers, adding the Senate.

    In the meanwhile, in the above-mentioned article, the use of the word "ratification" for the Congress’ power stands out since in most of the previous constitutional texts the most frequently used term had been "approval". Similarly, it contains the expressions "covenants" and "diplomatic agreements". The use of the lists of specific treaties (of peace, of war, of neutrality, etc.) was left behind and replaced with these generic expressions, the use of which was not unintentional. In light of the negative experience brought about by the entering into agreements to constitute claims commissions with other countries to grant their citizens compensation for damages suffered in Mexican territory attributable to the government, while deliberating the Constitution, it was insisted that all treaties entered into by the President be submitted before Congress. The negotiated compensations were costly, abusive, and on more than one occasion, fraudulently put together by the claimants.52 Therefore, the use of the terms "covenants" and "diplomatic negotiations", along with "treaties", sought to subject all types of agreements to Congressional oversight.53

    It is also worth noting that the text, when referring to ratification by Congress, did not lean towards the formula "with the advice of" as in the case of the United States, which would have allowed the possibility of the participation of Congress during the negotiations. In fact, Ponciano Arriaga (who, we recall, was one of the eleven deputies that presented the appeal of unconstitutionality against the Treaty of Guadalupe Hidalgo) argued for this clause bearing in mind the critical moment of the Treaty of Guadalupe Hidalgo negotiations that marginalized Congress and which was given to the Plenary of each chamber for approval in a typical case of simple majority. Zarco held the opposing view, arguing in favor of the secrecy that should envelope diplomatic negotiations and requested a vote of confidence for the Executive.54 At any rate, Congress was, as it is now, capable of participating in the approval phase, which implies not only the possibility of granting approval, but of rejecting and modifying it so that its content could be renegotiated or, nowadays, in light of multilateral agreements, to present the corresponding exceptions.

    As mentioned above, on November 13, 1874, the constitutional reform that introduced the Senate was enacted and the Legislative Branch became bicameral. Due to this restructuring, Article 72 acquired two new sections. In addition to Congress’ attributes, those for the Senate and Chamber of Deputies were also included. We are interested, of course, in those regarding the Senate’s exclusive powers to: "Approve the treaties and diplomatic agreements made by the Executive with foreign powers".55 What had been within the jurisdiction of Congress was explicitly passed on to the Senate, but probably due to the haste in which laws were made in those days, Paragraph XIII of Article 72, which gave that authority to the General Congress, was left intact, as well as the one defining the President’s powers and obligations which still maintained that treaties required "ratification by the Federal Congress".56

    The reform of 1874 lacked legal technique and caused this obvious contradiction, but the amazing thing is that the Constitution of 1917 included and reproduced the same texts with no correction. It was not until 1988, when the tenets of foreign policy were added to the Constitution, that these contradictions were corrected.57 Although the reason for the surviving contradiction fell by its own weight, in practice, confusions continued. I remember a conference in which a high-ranking official of the Foreign Relations Ministry expressed his bewilderment over the Constitution’s ambivalence and yet resolutely affirmed that he was sure it was the Senate that approved treaties. This was in the late 1970s.

    The Constitution of 1857 established an innovation regarding foreign credit. Congress received the authority to "set the bases on which the Executive can seek loans on the nation’s credit, to approve those loans, and to acknowledge and order the payment of the national debt".58 To this day, the current Constitution reads the same way with an amendment regarding the characteristics and requirements these loans must meet.59

    Of greater interest is the prohibition of making treaties related to individual rights. A notable difference in the Constitution of 1857 was precisely the inclusion of a dogmatic part relating to the rights of man, which shined because of its advanced ideological vision. It was prohibited to make treaties for the extradition of political prisoners and of those that were slaves in the country where the crime was committed. It was also prohibited to enter into treaties that altered the rights granted to man and to the citizen by the Constitution. With only minimal changes, the text of that original Article 15 was reproduced in the Constitution of 1917 with the same numeral.

    The prohibition of making treaties for the purpose of expelling slaves has a precedent in the Organic Grounds of 1843: "No one is a slave within the nation’s territory, and that which is introduced shall be considered free and protected under the law".60 This nourishing idea was rewritten and shaped more conclusively in the Constitution of 1857: "Within the Republic, all are born free. Slaves that step into national territory regain their freedom for that reason alone and have the right to protection under the law".61 Later, Article 2 of the present Constitution, faithful to the transcribed precedents, stipulates: "Slavery is forbidden in the United Mexican States. Foreign slaves that enter national territory shall, for that sole reason, be free and protected by the law".

    This precept summarizes philosophical tendencies and historic struggles: it honors Miguel Hidalgo’s abolition of slavery with the decree of December 6, 1810, and while in the United States of America, the country of progress, slavery remained legal, Mexico’s safeguard in favor of slaves had a splendorous meaning of real tutelage, bestowing the above decree constitutional hierarchy in the Constitution of 1857.

    On the other hand, in what concerns the treaties that prohibit the extradition of political prisoners, this was a trend that got under way in the mid-19th century. The first normative manifestation of this was a law in Belgium in 1856.62 Thus, it would be possible to maintain that the Constitution of 1857 was the first to recognize that principle in a constitutional setting.

    It would be worth pointing out that I have interpreted the prohibition of making treaties that alter individual rights as meaning63 those that restrict them and not those that may expand them. In this age of intense production of human rights conventions, it is natural that international regimes would extend the coverage of said protection.

    In tune with what had been established in the Constitution of 1824, there was a reiteration of the prohibition of federal entities from "Entering into alliance, treaty, or coalition with another State or with foreign powers, with the exception of the coalition of border States that may be made for the purpose of offensive or defensive war against the barbarians".64

    Lastly, alluding to the principle of federal supremacy previously outlined in the Constitution of 1824 and one that would give life to the current renowned Article 133, Article 126 stands out. In 1857, it was written that: "This Constitution, the laws of Congress that arise from it and all the treaties made now and in the future by the president with the approval of Congress shall be the supreme law of the union. The judges of each State will adjust to said Constitution, laws, and treaties despite any possible contrary dispositions and laws of the States". The influence of the American Constitution can be readily felt. Moreover, as with the Constitution of 1824, it established federal supremacy, though it does not offer an arrangement within the federal normative core.

    8. The Constitution of 1917

    The constitutionalist debates of 1916 and 1917, as well as the one throughout the 19th century, regarded the organization of the State, the system of checks and balances, the balance among the real factors of power, economic limitations, and the protection of the social classes. Although there had been dramatic diplomatic incidents during the Mexican Revolution, such as the U.S. invasion of Veracruz in 1914 and General Pershing’s so-called "punitive expedition" of 1916, among other important incidents which gave rise to the Carranza doctrine65 against foreign intervention, which he made public on September 1, 1918, the Constitution did not include a chapter specifically regarding international issues. On the contrary, issues related to declaring war, appointing ambassadors, treating making, and even the authority to grant privateering patents which had been prohibited since the Declaration of Paris respecting Maritime Law of 1856 were copied through inertia from the 1857 text which in turn carried expressions that, as we have seen, can be found since the Cadiz Constitution.

    Thus, the Executive, the president of the Republic, was given the authority "To direct diplomatic negotiations and make treaties with foreign powers, submitting them to the ratification of the federal Congress".66 Following the reform of 1874, the Senate was given the exclusive power "To approve the treaties and diplomatic conventions made by the President of the Republic with foreign powers".67 The reader will remember the contradiction that arose in 1874 and which was repeated in 1917. Moreover, in the original drafting of Article 133, Congress approval was also included, and not, as it should have been, the Senate’s.

    On the other hand, the authority granted to the president to "direct diplomatic negotiations" eventually limited the Executive’s functions in the international sphere. Beyond "diplomatic negotiations", the Executive makes outlines and announcements in the name of the State, participates individually in recognizing States and governments, and is responsible for the official positions in international organizations.

    The expression "foreign powers" also revealed a 19th century tone. Since the last quarter of the 19th century public international organizations began to emerge and their presence noticeably spread with the creation of the League of Nations and the International Labor Organization in 1919. These international legal bodies were subjects of international law and therefore capable of making treaties.

    All in all, the phrasing survived, despite the mosaic of constitutional reforms that over the decades found their way into the Constitution. It was not until 1988 that the principles of foreign policy were incorporated in the Constitution and the text was updated.68 In the Federal Official Gazette of May 11, the reform to Article 89, section X, regarding the powers of the president, was published, stating: "Direct foreign policy (instead of ‘diplomatic negotiations’) and conclude international treaties (before, it read only ‘treaties’, which was correct since the phrase ‘international treaties’ seems redundant)69 and submit them to the approval of the Senate". The reference to foreign powers was eliminated. The omission allows the association of internationally binding treaties with international organizations or even with other subjects of the international legal order, such as colonized peoples or peoples subject to foreign occupation. The term "ratification" was replaced by "approval" and "Senate" was used instead of "Federal Congress", as it should have always been. The new drafting was clearly an improvement.

    Several interesting points regarding treaty making appeared.

    i) Recently, the Supreme Court clarified that the president of the Republic does not have to sign a treaty personally.70 The ruling was due to a plaintive alleging the unconstitutionality of a treaty, which had been signed by the Minister of Foreign Affairs instead of having been signed by the president of the Republic. The Court upheld the following opinion: "TREATY OF INTERNATIONAL EXTRADITION EXECUTED BETWEEN MEXICO AND THE UNITED STATES OF AMERICA ON MAY FOURTH, NINETEEN SEVENTY-EIGHT. IT IS NOT UNCONSTITUTIONAL DUE TO THE PRESIDENT NOT HAVING SUBSCRIBED TO IT PERSONALLY IF HE INSTRUCTED THE SECRETARY OF FOREIGN AFFAIRS TO NEGOTIATE IT AND THEN RATIFIED IT PERSONALLY".

    The above-mentioned criterion is not a merely intellectual exercise. Despite the Court having adopted it in 1998, I have reliable information that the Global Agreement between Mexico and the European Union, which entered into effect October 1, 2000, faced serious opposition from the Senate precisely because it had not been personally signed by the president of the Republic. Apparently no one remembered the enlightening Court precedent and the discussion went along other argumentative paths, to ultimately come to a happy ending.

    ii) Another point worth analyzing is whether the Senate should remain as the sole body that approves treaties, or if this jurisdiction should be extended to the Chamber of Deputies.

    For the sake of efficiency, it would be convenient for the Senate to handle approval exclusively. Likewise, it is understood that the Federation as a whole participates in the approval of treaties because Senators represent each of the states on equal terms.

    However, it could be argued that there are new realities that must be taken into account and which I group in the following way:

      a) The commitments that the State assumes have a greater significance to society and its community project. For example, the North American Free Trade Agreement with the United States and Canada, independently of the appraisal made of the results, it was a change in the direction of the economic, commercial and financial systems.

      b) Certain subjects within the Free Trade Agreement, specifically trade itself, foreign investment, the transfer of technology, copyright, are under Congress authority.71 However, regulations concerning such matters are adopted through a treaty whose composition would require the participation of the Chamber of Deputies. Certainly, a treaty is a heterodox method of legislative creation: a law is created,72 a supreme law of the Union, with the participation of a single chamber and without the Constitution limiting or restricting the possible contents of a treaty. This is even more interesting in light of a recent Supreme Court ruling that says treaties are at a higher level than the laws emanating from the Constitution (this opinion will be considered later).

      c) Diego Valadés recently published an article73 in which he analyzes the treaty approval and ratification procedure in different federal systems.

      In Latin America, of the nine countries that have a bi-cameral system, only the Mexican Constitution entrusts a single chamber for approval. In the European Union, only Austria, among the countries with a bi-cameral system, relies on a single chamber for approval.

      d) According to what has been seen in this retrospective of Mexican constitutional texts, the approval of treaties has historically been under the jurisdiction of Congress in 1814, 1824, 1836, 1843 and in 1847 when the Constitution of 1824 was reinstated. Therefore, this method, which has prospered at the foundations of its constitutional history, would not be new to Mexico.

      e) Finally, it is agreed that Mexican society is going through a process of change and democratic growth. Although it can already be felt in the Senate, previously closed to a clear majority of the Institutional Revolutionary Party (PRI), the Chamber of Deputies is a vibrant center of the nation’s democratic activities. Giving the Chamber of Deputies a greater role in this area would be in tune with the historic times we are living. I have heard this last opinion since 1978 from Antonio Carrillo Flores who always had the lucidity of a visionary legal scholar. It was voiced at a round table discussion organized by the Matías Romero Institute of the Ministry of Foreign Relations of which a memoir was published.74

    iii) Of course a constitutional reform on the matter should deal with various points within a broader context of a new constitutionality, and not continue with the unsatisfactory habit of normative patchwork. Until then, greater attention should be demanded of the Senate in reviewing the treaties submitted to it. A reading of the opinions that this chamber approves reveals that the suggestions made by the Ministry of Foreign Relations are reproduced with only minimal modifications. Considering that treaties commit the State and that in accordance with the 1969 Vienna Convention on the Law of Treaties internal legal bodies cannot argue against their adherence, a detailed review of the Executive’s activities is a nontransferable obligation. Bernardo Sepulveda75 discussed the case of the APPRI (Accord for Reciprocal Promotion and Protection of Investments) the purpose of which is to allow a foreign company to appeal to an international court of arbitrage eluding State jurisdiction, which severs the equality between nationals and foreigners and threatens a constitutional norm, the Calvo Clause. Having entered into these agreements with various countries, they went on to the Senate, where the isolated arguments made regarding their unconstitutionality bore no fruit.

    La Pergola76 has stated that in light of the increase in obligations derived from treaties, parliaments tend to rely on specialized technical bodies that professionally review the compatibility of international agreements with internal norms. In other words, beyond the corresponding Senate commissions, there should be an expert committee to carry out an exhaustive, technical, unpartisan analysis, not only because of possible mistakes, but also because of politically motivated approvals brought about by simple majority voting, despite being aware of their unconstitutionality.

    iv) Paradoxically, a regulation requiring the Executive’s signature in order to allow certain treaties to be in force should be distinctly expressed. When only dealing with administrative matters of a minor importance, it would not require general regulation. These types of agreements are known as "administrative agreements" or "executive agreements". The most common are those which exempt travelers of visas, establish counseling services in certain fields, such as foreign trade, cultural cooperation programs, postal services, student exchange programs, mechanisms for the exchange of diplomatic pouches, the establishment of committees for cooperation in the case of natural disasters, technical administrative measures to facilitate the notification of unscheduled flights, etc.

    The vast range of international life brings with it negotiations and agreements of lesser transcendence and solemnity than those of traditional treaties in the various administrative spheres of a country. They are not foreseen in the Mexican Constitution. On the contrary, the expression "international treaties and diplomatic agreements" in Article 76 was introduced in the Constitution of 1857 with the express purpose that all agreements be known by Congress. Of course the mid-nineteenth century did not exhibit the fast pace of our times.

    Although administrative agreements are not contemplated on a constitutional level, it does not impede them from being made by State ministers, governors or even municipal presidents, especially in border areas. The 1992 Law of Treaties attempted to assimilate and regulate this practice. It labeled these agreements "inter-institutional" and defined them as:

      …an agreement ruled by international law, put in writing by any decentralized body of federal, state, or municipal administration and one or more foreign government bodies and international organizations, whatever their title, whether or not it derives from a previously approved treaty.77

    The Law of 1992 also obliges the mentioned authorities and bodies to register these agreements with the Ministry of Foreign Relations.

    The following observations are in order: a) There is a constitutional void and no validation of these so-called "inter-institutional agreements" exists in the highest levels of normative hierarchy; b) The definition of an "inter-institutional agreement" coincides with the definition of "treaty" in the 1969 Vienna Convention on the Law of Treaties, which states that these agreements are governed by international law; in other words, they are recognized as treaties and are therefore obligatory for the State as a whole even if they were made by an isolated authority and even without having passed through the Senate; c) Articles 6 and 7 of the law indicate that the authorities have the capacity to conclude inter-institutional treaties (state ministries, the attorney general, governors, municipal presidents) must have a resolution from the Ministry of Foreign Affairs. It is understood that this an a priori resolution, and since these agreements are considered treaties and commit the State as a whole, the Ministry of Foreign Relations must carefully supervise the matter, more so at a time in which internationalization processes commit authorities at different levels in acute interaction. It would not be out of place for the Senate to be informed of these inter-institutional agreements, along with their corresponding resolution, in order to verify their legal basis. The Spanish Constitution78 contemplates precisely such a mechanism: treaties that do not require a prior authorization of the Courts must be immediately reported to the Congress and Senate.

    On the other hand, "inter-institutional agreements" regulate administrative issues, but in the past the Executive signed agreements under the name of "letters of intent" or "understandings" that have entered into force with only a signature and have introduced regulations of a general scope in matters as varied as trade, elimination or reductions in subsidies, costs of utilities, tax deficit, financial matters, pacts with other States and organizations like the World Bank and the International Monetary Fund. Some could be emergency commitments entered into moments of severe crisis, when there is no other choice, but in other cases, "understandings" or similar instruments, besides accepting general assumptions of regulation, paved the way for a reorientation of the model of economic development with all of its consequences for the different areas of national life. I call to attention the fact that the North American Free Trade Agreement process began with commitments by the Executive, which were an expression of its supremacy in the political scene, a supremacy that has recently been limited through the advent of democracy to Mexico. These agreements should definitely be rejected and it is important to highlight their unconstitutional character.

    v) There are some further reflections regarding the execution of treaties. Once approved by the Senate, the Executive is not obligated to ratify them on an international level or to do so in a determined amount of time. It is not common for treaties to include a clause dictating a specific time range within which a treaty must be confirmed. A curious exception was Article XXIII of the Treaty of Guadalupe Hidalgo that contemplated the exchange of ratifications within four months of having been signed, and a secret article79 that foresaw an extended period of eight months in case the original deadline was not met. It is up to the State whether or not to adhere itself definitively to a conventional regulation, based on its sovereignty and the principle of ex consensu advenit vinculum,80 that recognizes consent as the basis of conventional obligations. Some treaties are never ratified and others can spend decades before a State carries out the act of confirmation.

    As to multilateral and even bilateral agreements, ratification is separate from their going into effect, which is often subject to a later date. In the case of multilateral agreements, they are subject to having a certain number of ratifications deposited, for example, the 1988 Statute of the International Criminal Court, which requires sixty ratifications for it to go into effect.

    This could present sui generis situations. Is a ratified treaty that has not yet gone into effect internationally in force internally? The answer is speculative. Article 133 only states that treaties "concluded by the President of the Republic with the approval of the Senate" shall be the supreme law of the Union. But it is obvious that a treaty requires reciprocity from all concerned parties and cannot be unilateral. I ask myself, however, what would happen with the treaties on human rights which are already a differentiated category of international law and have a different nature than that of traditional treaties that have imposed obligations on States, their object being to expand individual freedom and personal fulfillment. The Inter-American Court of Human Rights has tackled this distinction,81 and with the firm object of protecting human beings. I would venture to say that regardless of whether or not it is in force internationally, a treaty must be considered obligatory internally.

    On the other hand, the notice of termination of a treaty gives rise to reflections. A denunciation is the unilateral method of terminating a treaty, but for the sake of acquiescence, and for it to be legally valid, it is necessary for the treaty to contain an explicit clause within the articles. It is common for treaties to foresee that after a certain period of time, say five years, States can terminate it, giving notice six months to a year in advance. The unilateral termination of a treaty is such only in its consummation, since it needs to be agreed upon in the treaty itself. Upon the approval of the treaty, the Senate or the corresponding legislative body accepts this possibility of termination, and although it is not usual for terminations to be constitutionally regulated, it is generally granted to the Executive. Therefore, a treaty that is the supreme law of the Union, in whose creation only the Senate participated, without the Chamber of Deputies, can be ended by the sole figure of the president of the Republic. The recent cases of Jamaica and Peru, which withdrew from the Inter-American Court of Human Rights, illustrate worrisome regression in this matter. Prudence would advise that the same process followed for approval be carried out for termination as well. In Mexico’s current system, that would first require the approval of the Senate and then termination by the Executive.

    Forbidden Treaties. As established, the Constitution of 1857 incorporated Article 15 on the prohibition of entering into certain treaties related to individual rights. It would be fitting to indicate that in the prohibition to make treaties that would allow the extradition of prisoners that were slaves in their country of origin, slavery —unfortunately still a common practice in various parts of the world— should be understood in a broader sense, not only as the appropriation and the treatment of a person as legal property, but as comparable practices identified by the United Nations: child labor, the obligatory enrollment of children for military service, the slave trade and sexual exploitation, including pornography, especially child pornography, the sale of children, servitude due to debts, apartheid and colonialism, as well as subservient forms of marriage.82

    It can be deduced from what is stated in the Mexican Law of International Extradition that regulates the matter, and which is the basis for international cooperation, that it would also be forbidden to enter into extradition treaties or include within them clauses that would allow that extradition of people who have been the object of absolution, pardon or amnesty, or when the person has already completed his or her sentence for the crime for which he or she is requested.83 The same law includes other assumptions derived from individual rights and is explicit when it specifies that extradition will not be carried out if the alleged crime falls within military jurisdiction.84 An issue or particular interest is that of the death penalty. Article 22 of the Constitution allows it, however, secondary legislation does not, except in military law. The Law of Extradition requires that the Mexican government demand that the State requesting extradition not enforce the death penalty if its laws allow said punishment for the crime for which the requested person is accused.85

    On the other hand, in international law, the norms of jus cogens or imperative norms of international law have been consolidated. They are interpreted as being those that are not susceptible to being repealed by international subjects’ treaties or customs, unless a new treaty or custom reaches the level of an imperative norm of international law.86 Therefore, the Mexican government would be prevented from making treaties not only in the cases foreseen internally in Article 15 of the Constitution and in the articles which state the prohibitions and limitations of the Law of Extradition, but it would also be prevented from making treaties that would challenge international regulations, particularly the prohibition of the use of force, de-colonization, human rights and cultural heritage.87

    Another constitutional prohibition, brought forth since 1824, is the one contained in Article 117 that forbids federal entities to "conclude alliances or treaties, or join a coalition with any other State, or with foreign powers".

    Article 133 was an exact copy of Article 126 from the Constitution of 1857, which shaped the clause on federal normative supremacy and in which treaties were seen as part of the supreme law of the whole Union. This text, in turn, came almost literally from what was put forth in Article Six, paragraph two of the Constitution of the United States of America:

      This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Article 133 was reformed on January 18, 1934,88 in order to polish the drafting, removing inexperience of requiring Congress to approve treaties, and as a backdrop, clarifying that treaties must agree with the Constitution. The current version, product of this reform, reads:

      This Constitution, the laws of the Congress of the Union that come form it, and all the treaties that are in accord with it, that have been concluded and that are to be concluded by the President of the Republic with the approval of the Senate will be the Supreme Law of all the Union. The judges of every State will follow this Constitution and these laws and treaties in considering dispositions to the contrary that are contained in the constitutions or the laws of the States.

    There is a federal supremacy, but at the peak of the legal pyramid lies the Constitution. The laws of congress that arise from the Constitution are found at a lower level, as are the treaties that are in accordance with it. However, a recent Supreme Court opinion gives primacy to treaties over constitutional laws.

    I will explore two concerns: the first is linked with the hierarchy between the Constitution and treaties. The Constitution is clear in positioning itself above all else, but the progress made in international law has imposed a dominant range on conventional norms of internal law. The 1969 Vienna Convention on the Law of Treaties maintains that a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty.89 Moreover, even in the case of irregular ratifications, when an international treaty is confirmed without having followed the proper internal procedure, the general rule adopted by the 1969 Vienna Convention is to accept the validity of the treaty, although the contemplated solution is really ambivalent.90 As it turns out, Mexico is part of the Convention. It may be argued that according to Article 133, the Constitution would prevail over the Vienna Convention and in this way save itself from the contradiction, but this would be valid internally. Internationally, the treaty would prevail. Furthermore, from a political perspective we live in times of close cooperation in which commitments are important not only legally, but also in a State’s own interest in not being excluded from different processes of cooperation.

    As long as the contradiction between the two normative spheres is not resolved, the solution within the reach of a State, as mentioned above, lies in meticulously reviewing its internal laws in relation with the treaty being negotiated, the possibly opposing concepts and terminology and the regulatory incompatibilities given that in an international legal body the agreements reached in treaties will always carry more weight.

    The second concern refers to the existing hierarchy between law arisen from the Constitution and treaties. Article 133 does not give primacy to either one. The Supreme Court had traditionally maintained that laws and treaties stood on equal footing and that conflicts would be settled according to the temporary criteria that a newer law invalidated an older one.91 In other words, the Supreme Court leaned towards the principle of equality between both sources. From another perspective, the solution is again internal and the argument does not resolve the conflict between international and domestic law, whether or not the latter is constitutional or secondary.

    Recently, on May 11, 1999, the Supreme Court expressed a new opinion that distanced itself from its previous opinion. The nourishing apex of the supreme law of the Union that recognized two stages becomes three, placing the Constitution on the first level, the treaty is placed in the second level, which implies a rearrangement of the traditional legal order, and beneath that one are the laws that arise from the Constitution. Opinion 192-867 is entitled: "INTERNATIONAL TREATIES ARE HIERARCHICALLY ABOVE FEDERAL LAWS AND BENEATH THE FEDERAL CONSTITUTION".92

    This view has already generated much discussion, and opinions both in favor and against it have been and will be heard. On the one hand, legal chauvinism persists with an ample legion of followers for whom it is incomprehensible that a treaty could weigh more heavily than the laws that arise from the Constitution. On the other hand are the legal scholars that have an updated view on the intense interaction between the international and internal spheres.

    That notwithstanding, regarding Opinion 192-867, it may still be years before jurisprudence arises from it and it becomes obligatory. It is also possible that in the future the Supreme Court may lean towards a different direction. What can be said is that the opinion recognizes the growing, complex and far-reaching agreements that States enter into currently, even more so when a new generation of international Constitutions, as Héctor Fix-Zamudio calls them, stands out. These international constitutions recognize the priority treaties have, or at least, their being on equal footing with the Constitution in matters as delicate as human rights. The opinion of 1999 is a notable step forward. The interpretation of the Court was more for the sake of life, than for the sake of the strict function of hermeneutics.

    III. CONCLUSIONS

    1. Among the constitutional texts, the term used throughout history is "treaty", which is precisely the one used by the Vienna Convention on the Law of Treaties as the generic term.

    2. It is important that the convenience of having Congress, and not only the Senate, involved in the approval of treaties be considered.

    In the meantime, it would be convenient for the Senate to create a specialized technical committee to carry out a well thought-out and detailed review of the treaties up for approval. This procedure is followed in many parliaments around the world in light of the importance of the commitments the State enters into.

    3. The experience during the dawn of Mexican constitutionalism was precisely the participation of Congress and it is also the tendency of present day federal and bi-cameral systems. It is a relevant point because there are matters that are the exclusive authority of Congress that move on to become the supreme law of the land in the form of treaties entered into by the Executive with the approval of the Senate.

    4. The Constitution should establish the making of administrative or inter-institutional agreements, specifying the content that may be included.

    5. The Supreme Court opinion on the hierarchy within the Mexican legal system is palpable progress, in accordance with the times we live in.

    I would like, however, that in tune with the tendency of International Constitutions, for treaties, at least those concerning human rights, to have the same rank as the Constitution. Mexico has undergone great political changes, and perhaps these will be reflected in the mindset and legal concepts that may lead the way to rearranging the legal pyramid. Even in the field of law, that which is imagined becomes real.

    Notes
    * Translated by Carmen Valderrama.
    1 The review of the Constitutional texts was carried out in a volume written by Horacio Labastida, Las Constituciones de Mexico, 2nd ed., Mexico, Congreso de la Unión, 1991, p. 596.
    2 See Parry, Clive, "The Law of Treaties", Manual of Public International Law, Max Sorensen (ed.), England, Macmillan, 1968, pp. 180 et seq.
    3 Article II, Section two, paragraph two.
    4 Articles 70 and 55.
    5 "Popularly, the approval of other [sic] state organ whose approval may be necessary [sic]; this is an unfortunate use of the word and should be avoided", Mc Nair, The Law of Treaties, Oxford at the Clarendon Press, United Kingdom, 1961, p. 130.
    6 Both Conventions were ratified by Mexico and published in the Diario Oficial de la Federación [Federal Official Gazette] on February 14, 1975, and April 28, 1988, respectively.
    7 Article 171, section ten.
    8 Article 172, sections V and VI.
    9 Article 108.
    10 Article 168, section X.
    11 Article 131.
    12 Article 108.
    13 Article 159.
    14 Article 116, section II.
    15 Article 13, paragraph 11.
    16 Article 29.
    17 Article 1.
    18 See Carpizo, Jorge, Estudios constitucionales, Mexico, UNAM, 1980, pp. 27 et seq.
    19 Article 74.
    20 Article, 50, section XIV.
    21 Article 50, section XIII.
    22 Article 3.
    23 Trusteeship was originally a colonial institution through which the Spanish Crown financed the Church’s endeavors of evangelization. In exchange, it would put forward bishops for the Holy See to appoint and would even propose the distribution of the diocese. Gómez Ciriza, Roberto, México ante la diplomacia Vaticana, Mexico, Fondo de Cultura Económica, 1977, pp. 56 et seq.
    24 Article 162, section IV.
    25 Article 1, section ten, paragraph one.
    26 Article 161, section III
    27 Part four, Article one.
    28 Part three, Article one et seq.
    29 Part four, Article 17, section XX.
    30 Part three, Article 44, section VIII.
    31 Part four, Article 17, section XIX.
    32 Title V, Article 83.
    33 Title IV, Article 25.
    34 Article 86, section XVI.
    35 Article 66, section IX.
    36 Article 66, section X.
    37 For the act of executing an international agreement we find ourselves with many synonymous terms, verbi gratia: convention, covenant, agreement, charter, pact, protocol, declaration, etc.
    38 Article 86, section XVIII.
    39 Aritcle 89, section IV.
    40 Article 43.
    41 Pragraph III.
    42 Article 15, "The constitutional articles that established the position of Vice President of the Republic are repealed, and the temporary absence of a president will be covered by the means established within the Constitution in the event that both officials are missing". Articles 97 and 98 of the Constitution of 1824 establish the president of the Supreme Court of Justice as the replacement for the President and the Vice-President.
    43 Article 23.
    44 Archivo Histórico Diplomático Mexicano, Algunos documentos sobre el Tratado de Guadalupe Hidalgo, Mexico, Porrúa, 1971, p. 405.
    45 For the record, the names of the deputies who pushed for the appeal were: Ignacio Muñoz Campuzano, Gerónimo Elizondo, Eugenio María de Aguirre, Manuel Doblado, Vicente Rodríguez, José María Herrera y Zavala, José María del Río, Ponciano Arriaga, José María Mateos, Anastasio Cañedo, and Ignacio P. Villanueva. Idem.
    46 Sobrazo, Alejandro, Deber y Conciencia, Nicolás Trist, el negociador norteamericano en la guerra del 47, 2nd ed., Mexico, Fondo de Cultura Económica, 1996, p. 287.
    47 Archivo Histórico Diplomático Mexicano, op. cit., note 44, p. 405.
    48 Interestingly, these documents are not found in the Supreme Court of Justice’s Archives, but were published by the Archivo Histórico Diplomático de México, op. cit., note 44.
    49 Article 75.
    50 Article 85, section X.
    51 Article 72, section VIII.
    52 See Archivo Histórico Diplomático Mexicano, Dos reclamaciones internacionales fraudulentas contra México, with a preliminary study by César Sepúlveda, Mexico, Secretaría de Relaciones Exteriores, 1965, p. 263.
    53 Méndez Silva, Ricardo, "La Constitución política mexicana y los tratados", Obra jurídica mexicana, Mexico, Procuraduría General de la República, 1988, pp. 4709-4736.
    54 Idem.
    55 Article 72, Section I, sub-section A.
    56 Article 65, section X.
    57 Rabasa, Emilio, O., "Artículo 89", Constitución Política de los Estados Unidos Mexicanos comentada, 5th ed., Mexico, Procuraduría General de la Republica-UNAM, Instituto de Investigaciones Jurídicas, 1994, p. 403.
    58 Article 72, section VIII.
    59 Article 73, section VIII states: "No agreement shall be entered into unless for the carrying out of works that will directly produce an increase in government income, except those with the purpose of monetary regulation, exchange operations, and those entered into during a declared state of emergency by the President of the Republic under the terms set out in Article 29".
    60 Article 9, section I.
    61 Article 2.
    62 "The first exception to the no extradition of a person responsible for a political crime, in the sphere of internal laws, was contemplated in the Belgian Law of March 22, 1856… until attaining almost general application precisely under the label of the Belgian clause", La práctica del asilo y del refugio en México, Mexico, Potrerillos Editores, 1995, p. 29.
    63 Méndez, Silva, op. cit., note 53.
    64 Article 111. In 1857.
    65 See Seara Vázquez, Modesto, Síntesis del derecho internacional público, Mexico, UNAM, 1965, p. 71.
    66 Article 89, section X.
    67 Article 76, section I.
    68 Méndez Silva, Ricardo, "Bases constitucionales de la política exterior", Problemas actuales del derecho constitucional, Mexico, UNAM, 1994, pp. 253-275.
    69 Kelsen distinguishes treaties from contracts and reserves the use of the generic term convention for an act of agreement among people or States. Kelsen, Hans, El contrato y el tratado, Mexico, Editora Nacional, 1974, p. 1.
    70 See Méndez Silva, Ricardo, "La firma de los tratados", Cuestiones Constitucionales, Mexico, No. 3, 2000, pp. 209-228.
    71 Article 73 of the Constitution.
    72 La Pérgola, Antonio, Constitución del Estado y normas institucionales, Mexico, UNAM, 1985, pp. 25 et seq.
    73 Valadés, Diego, "Asimetrías en el Congreso", Excélsior, Mexico, March 27, 2000.
    74 Carillo Flores, Antonio, "Comentarios a la exposición de Don Antonio Martínez Báez sobre las funciones del Congreso en la vida internacional de México", La Constitución y las relaciones exteriores de México, Mexico, Secretaría de Relaciones Exteriores, 1978, pp. 31 and 32.
    75 Unpublished text, conference held at the Julio Cortázar chair, Universidad de Guadalajara, Mexico, September 20, 2000.
    76 La Pérgola, Antonio, op. cit., note 72.
    77 Article 2, paragraph 2.
    78 Article 94.2. Pastor Ridruejo, José Antonio, Curso de derecho internacional público y organizaciones internacionales, 6th ed., Madrid, Tecnos, 1996, pp. 125 and 126.
    79 Although there is no internal statute banning secret treaties or articles, they’re prohibited by international law.
    80 Méndez Silva, Ricardo, "Los principios del derecho de los tratados", Boletín Mexicano de Derecho Comparado, Mexico, new series, Year III, No. 7, January-April 1970, pp. 93 et seq.
    81 "On approving these treaties on Human Rights, States submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to the States, but to the individuals under their jurisdiction", Salinas Rivera, Alejandro, "Chile, dos ejemplos de lucha contra la impunidad", Revista de la Comisión Internacional de Juristas, Geneva, No. 53, December 1994, p. 16.
    82 The United Nations Center for Human Rights, Contemporary Forms of Slavery, Geneva, Fact Sheet No. 14, Geneva, 1991, 15 pages.
    83 Article 7, section I.
    84 Article 9.
    85 See Gómez-Robledo Verduzco, Alonso, Extradición en derecho internacional, Mexico, UNAM, 2000, p. 477.
    86 The Vienna Convention of 1969 defines the norms of jus cogens as follows: "For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". Article 53.
    87 "Doctrine is far from showing agreement regarding which the subjects that fall under the regime of jus cogens are". Regarding the subjects I have stated, I coincide with what Pastor Ridruejo has set forth, op. cit., note 78, pp. 66-70.
    88 Gómez-Robledo, Alonso, "Artículo 133", Constitución Política de los Estados Unidos Mexicanos comentada, Mexico, Procuraduría General de la República-UNAM, Instituto de Investigaciones Jurídicas, 1994, pp. 641-644.
    89 Article 27.
    90 Article 46, with little success, approached the subject: "Provisions of internal law regarding competence to conclude treaties", which states: "A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance". There is, therefore, a general rule and an exit for an exception. In practice, in virtue of such writing, a matter of this type must be resolved casuistically.
    91 "It is therefore a rule of conflict to which Mexican authorities must subject themselves to, but it cannot be established that treaties are a greater legal obligation than the laws of Congress". Amparo in review, 191/81, Roberto Guadarrama Nicanor, July 22, 1981, majority of votes. "International treaties. Article 133 of the Constitution, in its last part, does not establish its preferred adherence over the laws of Congress that arise from the Federal Constitution", in Guerrero Lara, Ezequiel and Gudarrama López, Enrique, La interpretación constitucional de la Suprema Corte de Justicia, Mexico, UNAM, 1985, pp. 23-45.
    92 On this Supreme Court opinion, the following notes are highly recommended: Becerra Ramírez, Manuel; Carpizo, Jorge; Corzo Sosa, Edgar; López Ayllón, Sergio, in "International Treaties. Hierarchically, they are above the laws and under the Federal Constitution (Amparo in review 1475-98)", Cuestiones Constitucionales, Mexico, No. 3, 2000, pp. 169-208.

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