NUMBER 6 JULY - DECEMBER 2006
THE INTERNATIONAL TREATY-MAKING POWER AND THE DIVISION OF JURISDICTIONS IN THE MEXICAN FEDERAL SYSTEM*
José María SERNA DE LA GARZA**
Original Text (Spanish) PDF
I. Federal form of State and globalization. II. Hierarchy of norms and distribution of jurisdictions: international treaties and local laws. III. The relation between Constitutional articles 124 and 133: a proposal. IV. Conclusions.
I. FEDERAL FORM OF STATE AND GLOBALIZATION
Modern States are currently suffering the effects of the progressive erosion of the pretended strict difference between "domestic matters" and "external matters". Globalization has led to consider those spheres —previously considered of the exclusive "domestic" interest— as of global interest, potentially regulated by the sources of international law.
An example of this tendency is human rights. In the past it was believed that the way States treated their nationals was something that belonged exclusively to each State’s jurisdiction; but since World War II, the idea that the community and international law have something to say with respect to the relation between the States and their nationals about fundamental rights, began to spread.
The need of harmonizing the laws of different countries in order to create coherent regulatory regimes became an essential objective of several international treaties.1 Following this, and despite the formal difference that undoubtedly exists between international treaties and laws, their substance is often indistinguishable.2 We could even say that globalization creates a kind of pressure to regulate through international treaties those areas that were previously reserved to domestic laws.
Form the perspective of the contemporary debate about the federal system, the legal scope of globalization sets a problem worth to analyze carefully. The problem derives from the fact that in the federal systems the law-making power is assigned to organs pertaining two governmental ambits: the federal and the state. Under these circumstances, the international treaty making could have an impact on the distribution of jurisdiction between the Federation and federal entities.
This is precisely the topic we will discuss in the present work. We will examine some technical-constitutional issues derived from the stated situation just as we could witness in the 1917 Constitution of Mexico. This way, in the first place, we will make a review of the debate about the meaning of article 133 of the Constitution, particularly about the place the treaties have in the hierarchy of norms of the Mexican legal system. Moreover, in this same section, we identify the consequences of the different interpretations of article 133 and its relation with the system of distribution of jurisdictions between the Federation and the federal entities. In the second place, we attempt to find an answer to the following question: is the treaty-making power limited by the principle of article 124 of the Constitution or not? In our quest we arrived to the examination of the constitutional articles that establish powers and interdictions regarding foreign politics and treaty making. Basing on these articles, particularly articles 76.1 and 89.10, we sustain that it is possible to create an argument that justifies the impact of international treaties on the system of distribution of jurisdictions of the Mexican federalism.
II. HIERARCHY OF NORMS AND DISTRIBUTION OF JURISDICTIONS: INTERNATIONAL TREATIES AND LOCAL LAWS
The debate on the hierarchy of international treaties and their position in the national legal order has sought mainly to locate the treaties with respect to the federal laws, but in general terms, it has not focused on the discussion about their hierarchy with respect to local laws and more generally, about their relation with the system of distribution of jurisdictions of the Mexican federalism.
As it is well known, the debate on the hierarchy of norms in the Mexican legal system has developed around the interpretation of article 133 of the Constitution. Such article defines the position of the different sources of Law that create general norms in the Mexican legal system: the Constitution, the laws and the international treaties. We do not intend to repeat or review here exhaustively the constitutional debate on this constitutional article. Instead, and in order to save time, we shall walk through paths already discovered by other authors in order to build, on the basis of their ideas and concepts, our own argument.
This way, we could follow here the pioneer work of Jorge Carpizo,3 who two decades ago summarized the different doctrinal postures around the mentioned article, making allusion to the opinions of Eduardo García Máynez and Mario de la Cueva as follows:
According to García Máynez4 the hierarchy of norms in the Mexican legal order could be explained this way: in the summit of the system, there is the Constitution. In a second level we have the federal laws and the international treaties. And in a third level are found the local norms (including those of the Federal District). What we wish to underline here is that this outline leads to the following consequences:
The federal laws and international treaties prevail over the local laws in case of conflict between both. From the point of view of the debate about the system of distribution of jurisdictions of the Mexican federalism, this means that the federal organs, through two different combinations, may regulate any subject, even those that in the beginning could be considered as reserved to federative entities. In a first hypothesis, the Congress of the Union is the one that could do it through issuing federal laws, by means of the ordinary legislative procedure. In a second hypothesis, would be the President of the Republic together with the Senate, through the process of negotiation, subscription and ratification of international treaties.
García Máynez’s scheme would mean also that a new federal law could abrogate a previous treaty (or vice versa). That is, by sharing both the federal laws and international treaties the same hierarchy, in case of a conflict between them, the rule of conflict would be applied, according to which the subsequent norm derogates the previous one. This situation offers a "structural anomaly" in our constitutional system given the different procedures to approve a law and to approve an international treaty. Under the present scheme, the President and the Senate may derogate a law approved by the Congress in a subsequent period of time, through a treaty; and an international treaty subscribed by the Executive and ratified by the Senate, could be derogated by the Congress in a subsequent period of time.
Carried to the extreme, the interpretation of Constitutional article 133 made by García Máynez would allow the nullification of the legislative jurisdiction of the federal entities, by prevailing the federal laws and the treaties over the local legislation in case of conflict.
Likewise, the interpretation of García Máynez leaves open the expedient regarding the international effects of a federal law that might derogate a treaty: the international responsibility of the Mexican State in hands of the president and the Senate.
On the other hand, according to Mario de la Cueva,5 the hierarchy of norms of the Mexican legal order can be described in the following way: in the summit we find the Constitution. The "constitutional laws" and the treaties are located at a second level. And in a third level we find the federal and local laws.
To de la Cueva, the "constitutional laws" are those that emanate materially and formally from the Constitution. They differ from the federal laws in that the latter emanate only formally from the Constitution. "That is, the constitutional laws are part of the Constitution; they are the Constitution itself which extends, ramify, grows", points out Carpizo.6
Leaving aside the not-so-clear notion of "constitutional laws" and their difference with federal laws, de la Cueva’s argument leads to the following consequences:
The international treaties prevail over the federal and local laws in case of conflict. That is, the federal and local laws cannot abrogate a treaty (only a "constitutional law" can do it).7
The latter means that the president and the Senate, through a treaty, may jointly make prevail their position over the Chamber of Deputies, with respect to a subject they consider necessary to regulate in certain sense (through an international treaty).
And it also means that two organs of the Federation, that is, the President and the Senate, may jointly impose their position over that of the local legislators, with respect to a subject they consider necessary to regulate (also, through an international treaty).8
Taken to the extreme, the proposal would allow the nullification of the legislative jurisdiction of the federal entities, by prevailing the treaties over the local legislation.
Finally, de la Cueva’s scheme leaves open the possibility of conflict between a "constitutional law" and an international treaty, which would lead to the same statements appointed with respect to García Máynez’s scheme between federal laws and treaties: the subsequent norm would derogate the previous one. This, taking the hypothesis that a constitutional law derogates a treaty, would leave open the expedient of international responsibility of the Mexican State.
It is convenient to mention that despite the problems it represents, the last one is the theory that is gradually gaining acceptance even at the level of the Supreme Court of Justice. A proof of this is the thesis sustained by the Pleno of the Court with respect to the amparo under revision 1475/98 whose core part I allow myself to transcribe:
The problem regarding the hierarchy of the other norms of the system has found different solutions in the jurisprudence and in the doctrine, among which are: the supremacy of the federal Law before the local one and the equal hierarchy of both, in their plain variants, and with the existence of "constitutional laws"; and that the law qualified as constitutional would be supreme law. However, this Supreme Court of Justice considers that international treaties have a place immediately under the fundamental law and above federal and local Law. This interpretation of Constitutional article 133 is because these international compromises are assumed by the Mexican State as a whole and they compel all its authorities with the international community. This explains why the Constituent branch authorized the president of the Republic to subscribe international treaties in his character of head of State, and the same way, the Senate intervenes as representative of the federal entities, and through its ratification, the authorities are bound. Another important aspect to consider this hierarchy of the treaties is that in this subject there is no jurisdictional limitation between the Federation and the federal entities. The federal or local jurisdiction of the treaty is not taken into account, but by express mandate of the article 133, the President of the Republic and the Senate may compel the Mexican State in any subject, regardless that for other effects this jurisdiction pertains to the federal entities.9
As we can see, the thesis sustained by the Court follows quite closely the theory originally developed by Mario de la Cueva and strengthened subsequently by Jorge Carpizo. However, we believe that the important statements made in this thesis are not supported in solid reasons and arguments. Given this, in the next section of this work, we shall see whether in the constitutional text in force such reasons can be found, or if on the contrary, it is necessary to build another kind of solution to the one given by the Court.
III. THE RELATION BETWEEN CONSTITUTIONAL
ARTICLES 124 AND 133: A PROPOSAL
The summary of the debate about the hierarchy of norms in the Mexican legal system enables us to see that the different doctrinal solutions lead to the consideration that the principle of the Federation’s express powers and the implicit reserve of the federal entities contained in article 124 of the Constitution, doe not rule international treaties. Both in García Máynez and de la Cueva’s interpretations, international treaties prevail over the local laws regardless and above the reserve made by article 24 in favor of the federal entities. However, we believe this point has not been thoroughly debated neither by the writers of treaties nor by tribunals. Without further discussion, they have assumed that the local laws are subordinated to what establish the international treaties subscribed between the Mexican State, through the federal Executive’s signature and the Senate’s ratification, even when this implies an invasion in the jurisdiction that would belong to them if the rule of constitutional article 124 were executed.10
This lack of attention towards the implications of constitutional article 133 regarding federalism relies partly on such disposition’s wording. Since the Constitution, the Congress’ laws that emanate from the Constitution, and the international treaties are supreme Law of all the Union, it would seem obvious to understand that the local laws are located beneath all those norms. Even more, if we take into account the second part of article 133 that indicates that in case of conflict, the States’ judges would adapt to the Constitution, the Congress’ laws that emanate from it, and treaties, despite the dispositions existent on the opposite side in constitutions or laws of the states.
However, we believe that such interpretation of article 133 is "simplistic". To put it in other terms, we consider that this way of understanding article 133 gives a not quite satisfactory answer to the following question: is the treaty-making power limited by the principle of constitutional article 124 or not?
In our point of view, the problem of conflict between a treaty and a local law cannot be solved simply and exclusively by invoking the superior hierarchy of the first one derived from the various interpretations about constitutional article 133, since this article establishes a condition to the treaties in order to be hierarchically superior. In fact, this constitutional disposition establishes that the international treaties that are in accordance with the Constitution are supreme law of all the Union.11 Would this mean then that if an international treaty does not agree with article 124 it will not be considered as supreme law of all the Union, and thus it will not prevail above a local law in case of conflict?
To try to give an adequate answer to this question, we shall remember that article 124 of the 1917 Constitution establishes a rigid system of distribution of jurisdictions between the Federation and the federal entities. This means that the jurisdictions that are not expressly assigned by the Constitution to the federal authorities, belong to the federal entities. The reasons of this rigidity have been analyzed in other works, so we will not analyze this issue too much here.12 What we want to discuss here is if the rule of article 124 applies to the international treaty-making power in such a way that leads to consider that the treaty that does not follow the division of jurisdictions between Federation and states, might be considered contrary to the Constitution and that thus, it could not obtain the level of supreme law of all the Union in terms of constitutional article 133.
The problem could be best explained through a couple of examples. The Constitution does not expressly assign the Federation the jurisdiction to issue norms about adoption. If the Constitution does not make this assignation expressly, we shall understand, according to article 124, that the topic of adoption is confined to the federal entities. As a consequence, a treaty that regulates the topic of adoption, compelling the whole nation towards another country or towards the international community, would be unconstitutional.13
In this sense, the Constitution does not assign expressly to the Federation the jurisdiction to issue norms regarding the possibility of application of foreign Law in Mexican territory. If this express assignation does not exist, then the topic shall be considered as reserved to federal entities. Therefore, if the principle of constitutional article 124 were applied, a treaty that defines the rules for the execution of foreign Law in Mexican territory would also be unconstitutional.14
For comparative effects, it is useful to mention the answer in the USA to this problem. The review is quite pertinent, especially if we consider that the text of the Mexican Constitution’s article 133 was taken practically literally of the so-called supremacy clause contained in article 6 of the Constitution of the United States of America.15
In the United States the predominant doctrine considers that the international treaty-making power is not submitted to the rule of distribution of jurisdictions between the Federation and the states established in Amendment 10. This has been possible because article 6 allows the existence of a flexible or non-rigid jurisdiction distribution system between the Federation and the states of such country. Such formula has allowed developing the judicial doctrine according to which it has been understood that the Federation has powers that go beyond those that have been explicitly assigned by the Constitution. That is, the Federation has its own powers in spite of not being explicitly attributed to the Federation by the fundamental charter.
This idea led, for example, Minister Holmes to consider that the treaty-making power was delegated additionally and regardless the express attributions that the Constitution grants to the Congress of the USA. Consequently, the treaty-making power is not submitted to Amendment 10.16
However, the formula of the Mexican 1917 Constitution’s article 124 does not allow developing this kind of reasoning. As we have said, our system establishes a rigid formula of distribution of jurisdictions between the Federation and the states. This makes hard to understand that the Federation could have powers beyond the ones expressly assigned by the Constitution. If we conform to such statement, we would have to conclude that the international treaties that rule subjects reserved to federal entities are unconstitutional, thus they could not be considered as supreme law of the Union, as article 133 of the Constitution establishes.
Nonetheless, the fact that constitutional article 124, been taken itself in an isolated way, is incompatible with the way how the hierarchy of international treaties has been understood traditionally with respect to local laws, does not mean that the compatibility could not be assumed from the systematic interpretation of the constitutional text involving other articles. Viewing the problem from this dimension, we shall ask ourselves then: could we identify any basis in the Constitution’s text that excludes the international treaty power from the rigid rule of constitutional article 124?
To begin with, we shall have in mind that article 124 is not the only one that sets the basis of the Mexican federalism’s system of distribution of jurisdictions. The full image of such system is obtained through the analysis of many other articles, in which, besides the express powers of the Federation, powers that correspond expressly or tacitly to the federal entities are assigned; or that are banned to the Federation; or that they are banned to the federal entities, both in an absolute (article 117) and relative way (article 118), as well as the coincident powers, or the coexistent powers.
However, we do not think that these constitutional dispositions have the answer to the question above. In my opinion, the argument that the treaty-making power is not submitted to the scheme of distribution of jurisdictions established in its most general level in article 124, could be built from the constitutional articles that establish attributions and prohibitions on foreign policy and treaty-making.
Such articles are:
a) Article 15: it bans the subscription of treaties to the extradite political prisoners and those criminals that were slaves in the country where they committed the crime; it also bans the subscription of treaties that alter the guarantees and rights established by the Constitution to man and the citizen.
b) Article 18: includes the possibility of subscribing treaties on exchange of prisoners.
c) Article 76.1: grants the Senate with the power to analyze the foreign policy developed by the federal Executive, and to approve the international treaties and diplomatic conventions subscribed by the Executive of the Union.
d) Article 89.10: grants the federal Executive the power to direct the foreign policy and subscribe international treaties, submitting them to the Senate’s approval.
e) Article 117.1: bans the states the subscription of alliances, treaties or coalitions with another State and with the "foreign powers".
Article 117.1 offers a starting point worth to explore, since it bans the federal entities to subscribe treaties with other states and with the "foreign powers". The banning of subscribing treaties is absolute, and it does not make distinction between those subjects on which they can subscribe treaties and those on which they cannot. That is, the federal entities cannot subscribe international treaties, not even on those subjects that would correspond them as reserved to them, according to the rule of constitutional article 124.
This circumstance denotes certain separation between the constitutional rules and principles regarding the international treaty-making power. On the one hand, we are before a federal system that expressly assigns the Federation certain powers, and it reserves to the federal entities all that is not attributed to the Federation. And on the other hand, there is a constitutional limitation to the way of regulating the reserve of attributions corresponding the federal entities: they cannot regulate through international treaties those subjects reserved to them. They can only do so through (local) laws. The ones with the international treaty-making power are two bodies of the Federation through the intervention of the President and the Senate. However, this does not entail automatically that the Federation has the power to rule through international treaties those subjects reserved for the federal entities. In other words, the fact that the international treaty-making power is exclusively attributed to the Federation’s organs (and expressly forbidden to the states) does not mean that the Federation can regulate through treaties the subjects corresponding the Federal entities. The attribution to Federation’s organs of the international treaty-making power does not mention any subject at all, just like the prohibition to the federal entities does not mention them.
We consider that the isolated interpretation of article 117.1 related to the rigid rule of distribution of jurisdictions of article 124 would lead us to conclude that there are subjects on which no international treaty can be subscribed. These subjects would not be others than those reserved to federal entities. However, this conclusion is not free from serious inconveniences from a practical point of view.17
Summarizing, article 117.1 allows to create a separation between the principles that rule the Mexican federal system and the constitutional treaty-making principle, but it does not allow to justify the fact that the Federation’s organs such as the President of the Republic and the Senate may regulate any subject through international treaties, including those reserved for the federal entities in accordance with the rule of article 124. This directs the attention towards other constitutional norms in order to find such justification or even discard it.
In our opinion, the concept of "foreign policy" offers a seam worth to explore. According to constitutional article 76.1, the Senate has the power to analyze the foreign policy carried out by the federal Executive branch, and to approve the international treaties and diplomatic conventions subscribed by the Executive of the Union. Likewise, article 89.1 grants the federal Executive the power to direct the foreign policy and subscribe international treaties, submitting them to the Senate’s approval.
We should point out that both dispositions were not included in the original text of the 1917 Constitution, but they were the result of the reforms of December 6, 1977 (article 76.1) and of May 11, 1988 (article 89.10).
From this reasoning we perceive two questions that shall be answered: a) What shall we understand by foreign policy? In other words, what is the substance of the concept of foreign policy used by the 1917 Mexican Constitution? And b) The foreign policy to which articles 76.1 and 89.10 mention, refers to the Federation’s foreign policy or to the Mexican State’s foreign policy?
With respect to the first question, we shall acknowledge that the Constitution does not indicate what shall be understood as foreign policy. That is, the term used in articles 76.1 and 89.10 is an open concept, which does not specify the particular subjects that shall be included in it. That is, the concept "foreign" is quite imprecise and ambiguous, especially under the circumstances that not only Mexico but also the whole world is going through, characterized by globalization and the crisis of the traditional concept of sovereignty.18
The fact the concept of "foreign policy" has a high level of generality does not mean it lacks content. However, the concept’s generality leads to the circumstance that this content is not determined, being instead determinable through a political decision.19 If this is the case, the truly relevant here from the point of view of the system of distribution of jurisdictions, is the existence and efficiency of controls on the political decision of regulating a relevant activity for the State through international treaties. It is worth to mention that such controls could only be found in the political process or in the mechanisms of control of constitutional regularity carried by the tribunals.
Moreover, both article 76.1 and 89.10 treat foreign policy and the international treaty-making power as two components of a whole: the Senate has the power to analyze the foreign policy developed by the federal Executive, and approving international treaties and diplomatic conventions subscribed by the Executive of the Union; while the federal Executive has the power to direct the foreign policy and subscribe international treaties, submitting them to the Senate’s approval. This is not strange since it is easy to understand that the international treaties are the instruments par excellence of a State’s foreign policy.
Summarizing, the rule of article 124 has to coexist with a concept whose generality impedes drawing precise and immovable lines. This only dispossesses the disposition of article 124 of any pretension to own an absolute character, gelatinizing it.
The relativization of the rule of constitutional article 124 comes from the answer to the second question stated above: does the foreign policy to which articles 76.1 and 89.10 mention refer to the Federation’s foreign policy or to the Mexican State’s foreign policy?
If we could only understand that the Federation (the federal authorities) executes the "foreign policy" mentioned by articles 76.1 and 89.10, then such dispositions, and of course, the execution of the powers regarding "foreign policy" would have to fall within the scope of constitutional article 124. However, if it were possible to understand that the organs in charge of the Mexican "foreign policy" are, besides federal organs, organs of the Mexican State, it would be possible to subtract the powers included in articles 76.1 and 89.10 from the scope of the constitutional article 124.
This remark is quite interesting, especially if we take into account that the double character of the federal organs in a federal State has recently gained influence in the Mexican doctrine. In this sense, backed in Kelsen,20 Jorge Carpizo and Ulises Schmill have depicted the legal nature of the federal State in terms of an order conformed by three normative orders. One of them corresponds to the federal State or total order, with its own organs, as the power to revise the Constitution. Beneath this total order, there are two partial delegated orders: the federal legal order and the federal entities’ legal order.21
In a quite interesting way, Schmill mentions that in the Mexican federal State there are normative functions that refer to the constitutional order, which cannot be ascribed neither to the Federation’s order nor to the local orders. Such normative functions are, according to Schmill, the reforms or additions to the Constitution, the reform to the Constitution in its geographic aspect, the suspension of guarantees, and the constitutionality control.22 According to Schmill, the three first functions can be entrusted by the Constitution both to federal and local organs, or a combination of both. Finally, this author points out that:
When these organs carry out the procedure of reform or addition to the Constitution, they are not acting on behalf of their quality as organs of the Federation or the local states, since they do not exercise any jurisdiction of such orders. On the contrary, they exercise a jurisdiction that can only be attributed to the constitutional order, because with it, the division of jurisdictions among the federal or local orders could be varied, or the dispositions that can only be ascribed to the constitutional order could be modified… Providing that there is no special organs —although they might exist— to carry out the specific functions that should be attributed to the constitutional order, the Constitutions of the federal states use the organs of the subordinated partial orders to perform them. Thus, when the jurist exposes the content of the constitutional norms, he shall be very careful in distinguishing which functions are subordinated and which belong to the constitutional order.23
Taking these concepts from Kelsen and prestigious Mexican jurists into account, we believe the following reasoning could be built: the function of creating general norms through the subscription and ratification of international treaties might be qualified as another normative function of the constitutional order of the whole federal State. This is because the Constitution itself establishes the basis for the federal Mexican State acts like a unity in its treatment towards the other states.
In fact, by banning the federal entities the use of the instrument of foreign policy par excellence, which is the international treaty-making power,24 and assigning the powers on foreign policy and treaty-making to the Federation’s organs (one of which, by the way, is the head of the Mexican State, that is, the President of the Republic), the Constitution locates such organs above the partial legal orders of the Federation and of the federal entities with respect to the execution of functions related to foreign policy and international treaty-making.
Also, given the inexistence of special organs, the normative functions of the constitutional order related to the general law-making power through treaties, are entrusted to Federation organs, that is, to organs of one of the partial legal orders. However, in the exercise of such function, such organs do not act on behalf of their quality as Federation’s organs, but they exercise a power that in the Mexican order could only be attributed to the constitutional order.
It should be said, also, that the fact the foreign policy and the treaty-making power belong to the constitutional order entails that the partial legal orders, that is, the federal one and that of the federal entities are subordinated to them. That explains why the treaty-making power is not subordinated or submitted to the division of jurisdictions and validity ambits of the federal and local orders, but precisely the opposite. So, this means that the international treaty-making power is not submitted to the rule of constitutional article 124.
1) We started from the consideration that the hierarchy of international treaties and their relative position with respect to the local laws has been scarcely discussed and analyzed both by the doctrine and by the Mexican tribunals.
2) Without further analysis, the idea that the international treaty-making power is not submitted to the system of distribution of jurisdiction of the Mexican federalism has been broadly accepted.
3) Although this solution might be judged convenient from the practical point of view, it is not based on solid reasons.
4) In this work we have tried to explore whether it is possible to build such reasons from the constitutional text in force.
5) We have found two reasons: the first one comes from the use the Constitution makes of the concept "foreign policy". The generality and imprecision of the content of this concept obliges to relativize the rule of constitutional article 124.
6) The second reason is found in the notion accepted by the doctrine regarding that the federal State is conformed by three normative orders: that of whole federal State, that of Federation, and that of the federal entities. Moreover, according to this theory, in the Federal State the Federation’s organs can also have the character of organs of the total federal State and perform normative functions related to the total constitutional order.
7) The international treaty-making power could be considered as a normative function of the order pertaining the whole federal State. This locates the organs in charge of such function, above the partial legal orders of the Federation and of the federal entities with regards to the execution of the functions related to foreign policy and the international treaty-making power.
8) The latter explains why the international treaty-making power is not subordinated or submitted to the division of jurisdictions and validity ambits of the federal and local orders, but the opposite. In summary, this means that the international treaty-making power is not submitted to the rule of constitutional article 124.
* Translated by Ingrid Berlanga Vasile.
** Researcher at the Legal Research Institute.
1 Think for example in the international conventions on industrial property, international contracts or conflicts of law in treaties such as: the Convention of Paris to the Protection of Industrial Property; the Inter American Convention on the Law Applicable to International Contracts; or the Inter Americana Convention on General Norms of International Private Law.
2 "Restructuring Modern Treaty Power", Harvard Law Review, vol. 114, 2001, p. 2491.
3 Carpizo, Jorge, Estudios constitucionales, Mexico, UNAM, 1980, pp. 27-30.
4 García Máynez, Eduardo, Introducción al estudio del derecho, Mexico, Porrúa, 1961, pp. 87 and 88.
5 Cueva, Mario de la, Apuntes de derecho constitucional, Mexico, 1965, pp. 46-48.
6 Carpizo, Jorge, op. cit., note 3, p. 28.
7 Carpizo mentions, among the authors that sustain that there is no supremacy of the federal Law over the local Law, but that both orders are subordinated to the Constitution, Felipe Tena Ramírez, Federico Jorge Gaxiola and Alberto Salceda. Ibidem, p. 29.
8 Diego Valadés has turned to this situation as follows: "The president and the Senate may, through treaties, incide in the most varied aspects of the national life, above what the Congress of the Union and the local congresses decide in the subject of their jurisdiction". Excélsior, March 27, 2000, main page and 9, see Corzo Sosa, Edgar, "Comentario al amparo en revisión 1475/98 resuelto por la Suprema Corte de Justicia", Cuestiones Constitucionales, Mexico, no. 3, 2000.
9 "INTERNATIONAL TREATIES. THEY ARE HIERARCHICALLY LOCATED ABOVE THE FEDERAL LAWS AND IN A SECOND POSITION WITH RESPECT TO THE FEDERAL CONSTITUTION". Amparo under revision 1475/98. Sindicato Nacional de Controladores de Tránsito Aéreo, May 11, 1999. Unanimity of ten votes. Semanario Judicial de la Federación y su gaceta, vol. X, November 1999, Thesis: P. LXXVII/99, p. 46.
10 The Supreme Court of Justice has stated this, as we appointed above, and Manuel Becerra and Jorge Carpizo have accepted it in their well documented and exhaustive analysis of the thesis sustained by the Supreme Court of Justice in the amparo 1475/98. See Cuestiones Constitucionales, Mexico, no. 3, 2000.
11 Alonso Gómez-Robledo says that this phrase was the result of the "unnecessary" addition to article 133 approved in 1934 without a previous discussion in general and in particular neither in the Senate nor in the Chamber of Deputies. Gómez-Robledo, Alonso, "Comentarios al artículo 133 constitucional", Constitución Política de los Estados Unidos Mexicanos comentada, vol. 2, Mexico, Porrúa-UNAM, 1997, pp. 1390 and 1391.
12 See Carpizo, Jorge, "Comentario al artículo 124 constitucional", Chamber of Deputies, Derechos del pueblo mexicano. México a través de sus Constituciones, LV Legislature, Mexico, Porrúa, 1994, pp. 953-959; Faya Viesca, Jacinto, El federalismo mexicano, Mexico, Porrúa, 1998; Serna de la Garza, José Ma., "Federalismo y sistemas de distribución de competencias legislativas", Documento de Trabajo, no. 12, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2001.
13 Think for example, in the Convention of The Hague on Protection of Children and Cooperation in respect of Intercountry Adoption, of which Mexico is Party.
14 As example we could cite the Inter American Convention on General Norms of Private International Law.
15 Article 6of the Constitution of the United States of America states: 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.
16 Healy, Thomas, "Is Missouri v. Holland still good law? Federalism and the Treaty Power", Columbia Law Review, vol. 98, 1998, p. 1731. See also Henkin, Louis, Foreign Affairs and the United States Constitution, Clarendon Press, Oxford, 1996, pp. 191-193. Also, we remember here that the Amendment 10 establishes the rule of distribution of jurisdictions between the Federation and the states in the following way: The powers that the Constitution does not delegate the United States of America nor banns the states, are reserved to the states or the people, respectively.
17 From a practical point of view, we do not think it is convenient to exclude certain subjects from the possibility of being regulated by international treaties. The world is getting more independent; the resolution of multiple problems requires the cooperation between the States and the best instruments of cooperation are international treaties.
18 About this subject, we recommend to revise the essay of Fix-Fierro, Héctor and López Ayllón, Sergio, "Estado y derecho en la era de la globalización", Estudios en homenaje a Don Santiago Barajas Montes de Oca, Mexico, UNAM-Instituto de Investigaciones Jurídicas, 1995, pp. 191-238.
19 In fact, it could be argued that each subject’s content and extension, not only "foreign policy", are conventional to a certain point. The determination of an activity fits or not in the subject of "trade", or "education", or "foreign investment" or "mining" relies on the extension the legislator (and eventually the tribunals) give to the concept related to the subject in particular.
20 Kelsen, Hans, Teoría general del derecho y del Estado, Mexico, UNAM, 1988, pp. 376-390.
21 Carpizo, Jorge, La Constitución mexicana de 1917, Mexico, Porrua, 1986, pp. 237-240. Schmill, Ulises, "Fundamentos teóricos del control de constitucionalidad en México", in Vázquez, Rodolfo (comp.), Interpretación jurídica y decisión judicial, Mexico, Fontamara, 2001, pp. 271-276.
22 Schmill, Ulises, op. cit., note 21, p. 275.
23 Ibidem, pp. 275 and 276.
24 Jaime Cárdenas interprets this way the prohibition contained in constitutional article 117.1: "One of the prohibitions to the federal entities is precisely related to the necessity of preserving the federal pact. In its article 29, the 1824 Constitutive Act of the Mexican Federation established that no State would hold transactions or contracts with another one, nor with a foreign power, situation which is regulated by the 1824 Constitution itself. In 1842 a particular vote was issued by the minority of the Constituent Commission, where it was claimed that no State could hold by itself any kind of foreign relations, sustain coalitions with other States, nor intervene in any way in their issues"… "It was not until the 1857 Constitution when similarly to the present content of clause 1 of the article I am commenting, it was established the prohibition to the federal entities to have alliances, subscribe treaties or sustain coalition with another State or with foreign powers, limiting this way its legal personality to domestic issues and suppressing it with respect to issues of external sovereignty", Constitución Política de los Estados Unidos Mexicanos comentada, Mexico, Porrúa-UNAM, 1997, pp. 1192 and 1193.