THE JUDICIAL APPLICATION OF INTERNATIONAL HUMAN RIGHTS TREATIES^*
Jorge Ulises CARMONA TINOCO^**

Original Text (Spanish) PDF

SUMMARY
I. International human rights law. II. The incorporation of human rights treaties in domestic Law, with special reference to the Mexican case. III. Effects of the coming into force of human rights treaties. IV. Legal hierarchy of international human rights treaties. V. Consequences of the hierarchy of international human rights treaties in the Mexican legislation. VI. The execution of international human rights treaties by the jurisdictional organs. VII. Brief reflections about the justification of the legality of trials regarding constitutional guarantees (juicio de amparo) as means to implement international human rights treaties in Mexico. VIII. Some comments about the performance of the judges and the international responsibility of the State.

I. INTERNATIONAL HUMAN RIGHTS LAW

The considerable evolution of the internationalization of human rights since the second post-war period, through the effort of international organizations, non governmental organizations, and the participation of the States in the adoption of compromises for the protection of the fundamental rights of the person, has developed a real international human rights Law which reaffirms itself everyday and that has acquired more strength and acceptation at an international level. This branch of International Law studies the establishment and promotion of human rights and the protection of individuals or groups of individuals in case of governmental violations of human rights.¹

The protection activities developed worldwide are complemented by that carried out regionally, through the systems of protection of human rights that operate in Europe, America, and most recently, Africa. Such systems have a similar composition, especially of structural nature, they have a conventional normative basis and they operate through supranational institutions in charge of watching and strengthening the fulfillment of the compromises of the States regarding human rights.

The development of international mechanisms of protection leave without any sense the idea that what relates to human rights is an issue exclusively of the domestic jurisdiction of the States, and it also introduces a significant shift in the character of the person as subject of international law.

If we take into account that, besides the international instruments, most of the Constitutions of the States make reference or cover fundamental rights, we may affirm that human rights constitute a field in which both constitutional law and international law converge, reason why they are a necessary point of contact between both.

II. THE INCORPORATION OF HUMAN RIGHTS TREATIES IN DOMESTIC LAW, WITH SPECIAL REFERENCE TO THE MEXICAN CASE

The treaties, pacts, protocols or conventions are the international legal instruments in which human rights have preponderantly been established at an international level,² just like the duties the States acquire with respect to their protection in such field.

There are essentially, two big procedures of incorporation, which are commonly related to the monist or dualist theories, depending on the case, about the relation between international law and domestic law. In one of them, identified with the monist thesis, we might call automatic, after the subscription of the instrument, the Legislative organ approves it, and finally the Executive Branch ratifies it. Since this moment the treaty is considered as incorporated to the domestic legislation, and thus, comes into effect.

A more complicated procedure than the latter, which identifies with the dualist thesis of international law as an order completely different to the domestic one, is that which demands, besides the requirements enounced, that the content of the treaty is reproduced through a law. Once it is published, the treaty is considered as incorporated to the domestic order through the latter.

The theory about the relation between international law and domestic law that is better for human rights, especially since the second post-war period, is the monist-internationalist theory. It agrees on the universal nature of human rights, and has allowed to gradually eliminate the idea that the matters regarding these rights are a domestic issue that concerns each State. Besides, it has helped to establish principles, like the applicability of the most favorable norm to the victims of violations of human rights in specific cases, regardless its international or domestic source.

Precisely the development of international human rights law has contributed decisively to the establishment of the new paradigm of the legal effect, applicability, hierarchy of the norms of international source in the domestic ambit.

It is necessary to point out that the treaties regarding human rights have certain particularities given their character of instruments of protection of such rights in favor of individuals. The Inter American Court has judged it this way in some of its advisory opinions OC-1/82 paragraph 24 and OC-2/82, paragraph 29, in which, in general terms, a distinction is made between the human rights treaties that entail a duty of the State to protect the individuals within its jurisdiction, and the treaties that through a negotiation derive in rights and duties in the benefits of the States.

We could affirm that in Mexico there is an automatic system of incorporation; the path a treaty follows since its subscription or signing, is composed by the phases of approval, ratification and promulgation. In fact, the subscribed treaties are part of the domestic legal order after the Legislative organ, which is an exclusive power of the Senate,³ approved them, and once the Executive Branch ratified it internationally, finally being promulgated through their publication in the Diario Oficial de la Federación.⁴

Through this process, they become domestic legal norms perfectly exigible and susceptible of execution by the State's organs. Despite the latter, the legal certainty of the procedure of incorporating international treaties in Mexico would be strengthened if precise terms were established so that, once the international instrument were subscribed, the Executive would submit it to the Senate's approval. Also, so that once the Senate approves it, the Executive carries its respective ratification; and finally, so that the latter promulgates the international instrument in the Diario Oficial de la Federación.

We consider that to this aim, certain positions shall be eradicated:

1. Considering the ratified international treaties as another's element inconsistent with the legal order;

2. That the norms that consecrate the treaties can only be efficient if the legal organ carries out modifications that retake them or that specify according to their execution, and that it is only since that moment when the authorities have duty to follow them;

3. That they are not susceptible of solving concrete cases, not even as patterns of interpretation.

This way, we shall set into context the adjective international that go along with the treaties and that make them seem not suitable to be executed. Although the treaties are international given their origin, and perhaps for the compromises acquired with respect to other States and international organisms, when they are incorporated to the legislation they have the same chance of being executed as any other norm of the Constitution, of the law, or a regulation or of a compelling jurisprudence.

The Mexican Constitution is neither abundant nor organized with respect to the norms regarding international treaties, for only few of its precepts, in disperse sections of the Constitution, and expressly mention such instruments, reason why the constitutional framework that regulates them lacks a systematic order. This has a historical explanation in the fact that the regulation of international treaties was transferred in the same terms established in the 1857 Constitution, which anteceded Constitution 1917 in force.⁵

The Constitutional regulation of international treaties is a theme studied by the doctrine, especially regarding the systematization and interpretation of the constitutional precepts referring to treaties.

The Supreme Mexican Law contains norms that ban the treaty-making in several hypotheses,⁶ the organs that intervene in the subscription and approval of the latter,⁷ the procedures and organs in charge of examining their constitutionality,⁸ the hierarchical level they have within the Mexican legal order,⁹ and norms about the competency for the judicial execution of the treaties and about remittance to international law with respect to the delimitation of the national treaty.¹⁰ This does not mean that these aspects are regulated in a clear and thorough way.

III. EFFECTS OF THE COMING INTO FORCE OF HUMAN RIGHTS TREATIES

Since the beginning of a coming into force of an international human right treaty, several duties for the States emerge with respect to their execution, which could imply to the state organs the following:

1. A generic duty of respecting, protecting, satisfying, guaranteeing the rights covered by the treaty in accordance with the nature, sense, and scope of the treaty's norms;

2. The need to adjust the execution of its functions to the treaties' dispositions, such as issuing laws or other general dispositions;

3. The modification of managerial practices and of judicial criteria;

4. The establishment and implementation of public policies, and the allocation of resources, which allow the fulfillment of the rights established by the treaty.

In fact, the State's organs, whether they are located in the Executive, Legislative or Judicial ambit, in fulfillment of the international treaties, shall keep from behaving in certain ways and sometimes, on the contrary, they shall carry out positive actions of protection, legislative adjustments, modification of administrative practices or the jurisdictional protection of the rights the State has been compelled to fulfill. This way, regarding their respective jurisdictions, each State organ shall execute international treaties fulfilling the rights they claim.

This means that the duties of a State have both domestic and international character: regarding its foreign affairs, the State cannot evade these duties without incurring in international responsibility; and the legal consequences at a domestic level would be the criminal or administrative responsibility the public officers may incur at, and the duty of repairing the violations committed.

This allows asserting and clarifying that their legislative, administrative and jurisdictional organs carry the compromises and duties the States acquire through human rights treaties. This way, the States' duty is transferred to all the organs that compose it, and also, any of these organs may entail international responsibility of the State for its actions or omissions, when they breach the international compromises derived from a human rights treaty.

A special mention shall be made to the execution of the human rights' treaties carried by the autonomous public organisms of the protection of these rights, inspired in the Swedish ombudsman figure, which usually include the applicable international human rights instruments in their recommendation, and that also carry out an important job of diffusion and training of such organs.¹¹

On the other hand, it is important to make reference to the contents of the federal clause existing in several international instruments, through which the national government in those States organized in a federation, is in charge not only of fulfilling the compromises derived from the treaties, but also of adopting the necessary measures to make the competent authorities of the federal entities fulfill, within the scope of their competences, the dispositions of the international instrument.¹²

With respect to the judicial application of international human rights treaties, which is the core point of our reflections, it shall be approached once the section about the consequences of the normative hierarchy of such treaties has been exhausted.

IV. LEGAL HIERARCHY OF INTERNATIONAL HUMAN RIGHTS TREATIES

Besides the theme about the incorporation, the issue about the hierarchy of treaties in domestic law, and especially, its location with respect to constitutional norms has been of quite interest recently. However, there is still no consensus about the hierarchy of international treaties. Therefore, it is up to the Constitution of each State to determine the place the treaties occupy in the respective domestic legal order.¹³ The latter, without being an obstacle to the application in a specific case of the rules contained in article 27 of the Vienna Convention on the Law of the Treaties of 1969.¹⁴

The incorporation of a treaty to the domestic legal order grants its dispositions a certain hierarchy, which according to the different Constitutions, may place them at least in four different positions,¹⁵ with respect to the Constitution and to the ordinary laws:

1. The highest position an international treaty might have within the domestic order of a State would be above the Constitution itself; it would correspond a supraconstitutional level. This location is the one they actually have from the perspective of international law.

2. Another location would be that in which international treaties might be at the same level of constitutional norms, that is, they would have the constitutional level.

3. In decreasing order, the treaties might have an inferior level with respect to the Constitution, but superior with respect to ordinary norms; in this case, they would have a supralegal level.

4. Finally, if the Constitution grants the treaties a similar level to the ordinary norms, they would have a legal level.

It is worth to mention that although these categories might be applied to all kinds of treaties incorporated by a State, there is a tendency to make a difference specifically in human rights treaties, and to give them a superior level within the legislation, as we mentioned in previous paragraphs.

A quick analysis of several Constitutions in force would illustrate this point better.¹⁶ The Constitution of Guatemala in its article 46 points out: "Preeminence of international law. There is a general principle that the treaties and conventions of human rights that are approved and ratified by Guatemala, have preeminence over domestic law".

Article 46 of the Constitution of Nicaragua grants full effect to the contents of several international human rights instruments, among which we find the Universal and American Declarations, the International Pacts on Human Rights, and the American Convention of Human Rights.

In Costa Rica, article 7.1 of the Constitution points out: "The public treaties, international convention and concordats duly approved by the Legislative Assembly, shall have, since the date of their promulgation or since the day they establish, superior authority with respect to the laws".

In the case of Panama, the constitutional article 4 prays: "The Republic of Panama follows the norms of international law".

Article 114 of the Constitution of El Salvador states:

The international treaties subscribed by El Salvador with other States or with international organisms are laws of the Republic when they come into force, according to the dispositions of the treaty and of this Constitution.

The law shall not modify or derogate what a treaty in force establishes to El Salvador. In case of collision between the treaty and the law, the treaty shall prevail.

Another example is Honduras, whose Fundamental Charter expresses in its 16th article: "The international treaties subscribed by Honduras with other States, once they come into force, are part of the domestic law". This precept is related to article 18 that establish: "In case of conflict between the Treaty or Convention and the Law, the first one shall prevail".

A recent example is article 19 of the Bolivarian Republic of Venezuela, promulgated on March 24, 2000, which establishes:

The State shall guarantee every person, in accordance with the principle of progressiveness and without any discrimination, the irrefutable, indivisible, and interdependent fulfillment and execution of the human rights. Their respect and guarantee are compulsory for the organs of the Public Branch in accordance with this Constitution, with the treaties on human rights subscribed and ratified by the Republic, and with the laws that develop them (the italics are mine).

The particularity of this precept lies in the fact that it expressly obliges the State's organs to fulfill the Constitution and the human rights treaties. However, the latter have an infraconstitutional level.

These examples show the beneficial tendency of assigning a superior hierarchy to international human rights instruments. According to Hector Fix-Zamudio, the Spanish Constitution (article 10) and the Portuguese (article 16) are paradigmatic of this tendency.¹⁷ The first one establishes the interpretation of the constitutional norms in accordance with the dispositions of the 1948 Universal Declaration, while the Portuguese Constitution only makes reference to the interpretation in accordance with the cited Declaration.

Finally, we may say about the situation in the American continent, that,¹⁸ except for the judicial interpretation made to the Costa Rican Constitution,¹⁹ there is no fundamental law that expressly grants an absolute supranational character to human rights treaties. There are, indeed, examples of Constitutions that grant them constitutional level, as the case of Nicaragua, Panama and even Costa Rica.

In Mexico, the theme of the hierarchy of international treaties incorporated to the legislation has been object of several judicial and doctrinal interpretations.²⁰ With respect to the judicial interpretation, it has gone from general and ambiguous criteria about the relation between the treaties and the federal norms, to the assertion of the legal level of the international instruments.²¹

Nowadays, the most recent criterion establishes that the treaties in the Mexican legal order are hierarchically placed above the federal legislation, according to the most recent criterion of the Supreme Court of Justice of the Nation, in the thesis 192,867 under the title "International Treaties. Are hierarchically located above the federal laws and at a second level with respect to the Federal Constitution".²² This means, on the one hand, that in case of contradiction with the federal legislation, prevails what the treaties establish executing the hierarchical criterion of solution of normative conflicts, and on the other hand, that in case of normative vacuums in the federal legislation, the norms contained in the treaties serve as useful patterns or principles for the interpretation and integration of the legislation.²³

The cited thesis, despite being an isolated criterion that requires to be reiterated in four successive times to become compulsory jurisprudence, for the fact of emerging from the pleno of the Supreme Court, it has an important guiding character in the cases processed before the rest of the national jurisdictional organs.

From the latter we infer that in Mexico international treaties currently have the category of infraconstitutional and also supralegal; that is, they are superior to federal laws and local Law, and thus, in case of conflict between the treaty and the Constitution, the latter prevails; between treaty and federal laws, the former prevails; between treaty and local Law, the former prevails also.

As we can see, the constitutional norms that determine the hierarchy of the human rights treaties in the countries of the American continent are not always explicit, for which it is important to turn to the judicial and doctrinal interpretation, generally in a harmonious way with other precepts of the constitutional dispositions in order to determine such hierarchy.

Despite the latter, locating the treaties in a particular hierarchy is the means to reach their effective fulfillment and execution; it is not quite useful that the treaties have the maximum level (supraconstitutional) only in theory, if their dispositions are actually not executed. From this perspective, there would be no inconvenient in locating the treaties in a legal level, whenever this would guarantee their efficiency.

V. CONSEQUENCES OF THE HIERARCHY OF INTERNATIONAL HUMAN RIGHTS TREATIES IN THE MEXICAN LEGISLATION

With respect to Mexico particularly, according to the hierarchy of treaties, we could determine how to solve the normative conflicts that may emerge between the latter and the Constitution, or the federal laws, and finally, with the federal entities and the Federal District.

1. Conflict between Treaty and Constitution

In this case we shall recall the text of Constitutional article 133, which states:

Article 133. This Constitution, the laws of the Congress of the Union that emanate from it, and all the treaties in accordance with it, subscribed and that are subscribed by the President of the Republic, with the Senate's approval, shall be supreme law of the Union. Each state's judges shall follow such Constitution, laws and treaties despite the dispositions in the opposite way that could exist in the Constitutions or laws of the states.

In application of the hierarchical criterion for the solution of normative conflicts, the Fundamental Charter prevails. The treaties shall be in accordance with the Constitution in order to be considered as part of the supreme law of the Union that is imposed above the local law. The opinions of the Supreme Court about this follow the same direction.

This case might not raise questions, since it is inclined in favor of the Constitution given its supremacy. Though, according to article 27 of the Vienna Convention on Treaty Law, the States cannot invoke the dispositions of their domestic law as justification of the unfulfillment of a treaty.²⁴

If this precept is applied, things grow more complex, since it could entail the international responsibility of the Mexican State.

In this sense, Seara Vazquez asserts: "it is irrelevant for international law when treaties cannot be applied in the domestic order for being contrary to the Constitution; the State is notwithstanding responsible for the non-fulfillment of this international obligation".²⁵

In these cases, when it comes to human rights, we shall invoke the rule that make applicable the norm that most benefits the victim of the violation of human rights;²⁶ this is how in our view, the problem is solved. From the angle of the Constitution, more preeminence would be given to the rights in favor of the person, and it has constantly been said that the rights it grants are only a minimum part that could be extended whenever it benefits the individual.²⁷

From the international point of view, if the Constitution granted a broader right to the content in the treaty, the State would not be responsible for not fulfilling the latter, for its aim is to protect the human person. This is benefited in this hypothesis by preferring the constitutional disposition. It is necessary to add that the international instruments open the possibility of extending the rights in favor of the individual.²⁸

Regarding human rights treaties, it is important to remember that the Mexican Constitution implicitly supports that the rights it establishes could be extended or complemented by those treaties. This is included in constitutional article 15, which establishes: "The subscription of… convention or treaties that alter the guarantees and rights established by this Constitution to men and the citizens is not authorized".

The Mexican doctrine has argued pertinently that the word alter should be understood in the sense of restriction and not of extension of the human rights,²⁹ for which it is no problem in subscribing -as it has in fact occurred- human rights treaties that complement and extend the scope of fundamental rights that are already established in the Constitution in favor of the individual or the social groups.

2. Conflict between treaty and federal law

This hypothesis can only take place when international treaties are granted the level of law. Before the most recent criterion of the Supreme Court of Justice on this issue, the opinions towards this expressed that given the treaties were located in the same hierarchical level, such a criterion could not be used in order to solve an eventual conflict of norms between them.³⁰ Thus, it was possible to turn to other criteria to solve the conflict, such as the temporal one through which the most recent norm derogates the previous one,³¹ or the one that has as a basis the specialty, according to which the norm whose content has a more direct application to the subject of the conflict shall prevail.³²

In both cases, if the balance inclines in favor of the law, the State might incur in international responsibility.

3. Conflict between treaty and local law

In this case, given its hierarchy, the treaty prevails, which shall lead to the practice of federal and local judges that know about the controversy where the conflict of laws took place. The judge who faces such a case shall have no hesitation in preferring the treaty, both because of the international responsibility of the State, as because the Constitution determines it expressly.

In fact, the final part of article 133 establishes it this way: "Each state's judges shall follow such Constitution, laws and treaties despite the dispositions in the opposite way that could exist in the Constitutions or laws of the states" (the italics are mine).

Unfortunately, the fate of this precept in the practice has been unlucky, since the local judges tend to ignore the mandate established by the Constitution itself, to which have also contributed some of the jurisprudential criteria of the Supreme Court that have established the constitutionality control as an exclusive power of the tribunals of the Judicial Branch of the Federation.

Actually, in our opinion, the local judges have not fulfilled the duty previously mentioned for the following reasons:

1. The judges in general act with certain inertia, shared also by the attorneys and the parties in the processes, by not invoking the applicable international treaties, rather arguing within the framework of the laws or the Constitution.

2. In order to unexecute^*** a law for considering it as contrary to a treaty or to interpret it in harmony with the Constitution, a detailed analysis and deep knowledge is required about the respective normative dispositions. The judge shall thus have a solid preparation that shall begin in the Law faculties or schools, in which, unfortunately, no emphasis has been put in the role of international law, particularly with respect to the protection of human rights.

3. There is also certain fear that by unexecuting a law, the decision is reverted by the hierarchical superior officers, or even by federal tribunals. This shows a certain judicial "discipline" that impedes the establishment of innovative criteria within the framework of the legislation in force. The latter has raised practices that ignore the hierarchy and applicability of the international human rights treaties even when, as it has already been demonstrated, once being ratified they become domestic norms.

4. These last aspects reveal a much deeper problem in which the federal tribunals take part, trying to keep within their exclusive jurisdictional ambit, the constitutionality control, claiming that article 103 is determinant and that such extra control belongs to the sphere of power of the Judicial Branch of the Federation. There are jurisprudential theses in both senses, that is, on the one hand, some accept the possibility of the local judges unexecuting the laws they consider contrary to the supreme law (which includes the treaties) and, on the contrary, there are some criteria that strongly deny it.

Regarding conflicts between the laws and the Constitution, this faculty of the local judges is set into a discussion that emerged since the coming into force of the 1857 Constitution. Jorge Carpizo, in his interesting and deep study about the interpretation of constitutional article 133 argues:

Castillo Velasco, Coronado and Vallarta declared that the local judges were authorized to examine the laws' constitutionality, that is, a law could stop being executed for considering it unconstitutional. Rabasa also followed this idea, with a single restriction: that the local judges could only carry out such examination if the local laws were evidently in opposition with the Constitution. On the other hand, Ruiz stated that only the Supreme Court could solve the problem of unconstitutionality.³³

In the present century, several authors have showed their opinion, among which the most outstanding ones is Tena Ramírez, who qualifies article 133 as the most obscure, incongruous and dislocating one in the legal order. Fix-Zamudio and Jorge Carpizo consider that the judges have certain power and that they shall exert it.³⁴ We think these ideas have full application in the cases in which the laws that are contrary to the established in a human rights treaty shall be unexecuted by the local judges.

This way, regardless the theoretical position adopted, the truth is that article 133's inefficiency towards this has weakened the local tribunals and judges. Another thing would have been if such judges (including of course the magistrates, which are their superiors) fulfill their duties backing their decisions with article 133 of the Federal Constitution.

We think it is never too late to accomplish this, even gradually, since the constitutional precept is still in force in every term. Therefore, only the judges' disposition to grant it with effectiveness is required, to which the most recent criterion of the Supreme Court that locates the treaties in an infraconstitutional level but above the federal laws, would be quite helpful.

VI. THE EXECUTION OF INTERNATIONAL HUMAN RIGHTS TREATIES BY THE JURISDICTIONAL ORGANS

Although the international order has mechanisms to watch the effective fulfillment of the compromises acquired by States on the basis of the international human rights treaties of which they are signatories, there are also instruments within each State's domestic order that allow to demand the organs part of it to respect the rights derived from such treaties.

Among the state organs bound by the human rights treaties, the judges stand out for the transcendence of their performance, since, according to the nature of their functions, they are the ones who can accomplish the respect and effectiveness of the international treaties, constraining their activities according to the dispositions contained in the treaties, as well as punishing the transgressors of their dispositions.

In order to carry out such an important task, the national jurisdictional organs shall incorporate as an everyday-practice the management of international instruments, especially in the controversies between the authorities and the particulars when it comes to human rights. The judges can also manage the normative content of the treaties in order to apply them to specific cases and use them as interpretative patterns in the application of the Constitution and the laws.

Nowadays, a great deal of the attention to the application of international human rights treaties has focused precisely, in the role the Judicial Branch has in this respect.

This theme is quite pertinent, and we consider that despite the studies prestigious authors have made about it, it still lacks further analysis, but specially, judges shall be the ones who participate actively expressing their opinions, inconveniences and proposals. Important meetings have been held on this issue, as well as international events having as a core point the judicial application of the international human rights norms in the domestic ambit.³⁵

Antonio Cancado Trindade has made deep reflections about the topic and he has stated:

The human rights treaties attribute a capital function to the protection by domestic tribunals, as evidenced by the obligations of providing efficient domestic remedies and exhausting them. Having also entrusted the primary protection of human rights, the domestic tribunals have, as a counterpart, to interpret and know about the pertinent dispositions of the human rights treaties.³⁶

In fact, the judges' performance gains outstanding relevance through the rule of the previous exhaustion of domestic remedies and their efficiency, since the latter determines if the competency of the organisms of international supervision of contentious character come into effect or not.³⁷

In this sense, the fact that the domestic tribunals apply the international norms of protection of human rights lessens the possibility of conflict or contradictions between these norms and the constitutional or legal norms. This defines through the interpretation, the harmonization of several normative dispositions. According to the same author, this has caused that an emphasis is being made in the tendency towards improving the domestic instruments and mechanisms of judicial protection.³⁸

In this sense, the national judges need to play a more active, creative, and decisive role than the one they have played until now, because many times they are in charge of the initial knowledge of the cases that involve human rights violations. The reformulation of the relation of the national judges with human rights treaties would enable in many cases the immediate reparation of the damage produced by the violation of such rights, the cease of the latter and the subsequent punishment of the public officers involved without the need of turning to international instances to accomplish this.

The change in the judges' performance and in the attitude with respect to human rights consecrated in the international treaties would enable

...an improvement of the domestic administration of justice... a deeper relationship between the States, not any more because of the classical predominance of the contacts between the Executive branches with their almost instinctive devotion to the dogma of the exclusive sovereignty, but also through the international contacts of the judicial branches, benefiting this way with the mutual knowledge of the domestic legal realities of the States; and… the coordinated performance of the domestic tribunals under the human rights treaties, in themes ruled by them despite the variations in the different domestic legislations, making possible certain level of uniformity in the application of the norms of the treaties referred.³⁹

We shall point out that the precepts included in the treaties cover norms of different scope, category, and thus, effectiveness. There are norms whose direct application is not a big problem, since their wording is determinant, they do not need to be legally detailed, and they generally do not admit exceptions.⁴⁰ Among these norms we can find the prohibition of torture, the prohibition of the reestablishment of the death penalty in those States that have abolished it, the application of the principle non bis in idem or the prohibition of transcendental penalties.

In other times, the norms have a generic and abstract content that require subsequent domestic legal actions that detail them or that enable their application to particular cases; they are generally mandates to the legislator. Though, this should not be an obstacle for the administrative and judicial organs to take them into account as models of performance or interpretation by carrying out the tasks that correspond them. Other norms establish limits to the enjoyment of certain rights, leaving in each State's hands to establish their scopes, according to the limitations that impose notions such as public order or national security, among others.

An illustrative example of the type of duties the State acquires when ratifying human rights treaties is what article 1.1 of the American Convention of Human Rights establishes:

Article 1. Obligation to respect rights

1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

This is complemented by article 2 of the Convention, which states that; "the States parties undertake to adopt, in accordance with their constitutional processes and the provisions to this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms", when they are not already guaranteed.

VII. BRIEF REFLECTIONS ABOUT THE JUSTIFICATION OF THE LEGALITY OF TRIALS REGARDING CONSTITUTIONAL GUARANTEES (JUICIO DE AMPARO) AS MEANS TO IMPLEMENT INTERNATIONAL HUMAN RIGHTS TREATIES IN MEXICO

The Constitutions of the States have norms that are similar in sense or content -and that sometimes are written identically- to the norms established in international treaties.

This is the reason why violations to the constitutional precepts that consecrate fundamental rights are claimed, whenever a case is put under the consideration of a domestic jurisdictional organ, without any reference being made to the infraction of the norms contained in the treaties. This leaves the treaties, to a certain point, lacking efficiency.

However, the question is what happens in those cases where the constitutional norms are surpassed in their ambit of protection of the person, by those contained in a particular treaty; or when what this treaty establishes is not reflected in the Constitution; what would be the appropriate mechanism within the State in order to make the treaty's content effective.

In Mexico, the jurisdictional instrument of protection of human rights par excellence is the trial regarding constitutional guarantees (juicio de amparo), which has showed its efficiency since the second half of the 20th century until these days. We shall ask ourselves whether the amparo is the ideal instrument to make effective international human rights treaties in the cases described.

Unfortunately, the Mexican doctrine has not made a thorough approach, and there are only some opinions by prestigious jurists, who have pronounced themselves about this.

Antonio Carrillo Flores, when in 1980 our country ratified some of the most important international human rights instruments, stated that since they were part of the Supreme Law according to constitutional article 133, their breach could be claimed through the juicio de amparo.⁴¹

Antonio Martínez Báez, making express reference to Carrillo Flores' opinion, points out that only the international organizations are in charge of watching the fulfillment of the international human rights instruments.⁴²

However, both opinions would seem contradictory at a first sight if analyzed with detail both are right in certain sense. In fact, there is no doubt that in the international ambit these organisms are in charge of urging the States, through various mechanisms, to fulfill with the compromises acquired in favor of the person. Though, stating that it is an exclusive duty of such organs means taking a step back in the evolution of the protection of human rights, and it goes against the tendency that claims for the complementarity of the international and domestic mechanisms in favor of a more efficient protection of such rights.

We coincide with Antonio Carrillo Flores without giving less importance or disregarding what Antonio Martínez Báez thinks, with the ideas previously expressed.

Now we shall explain the arguments that would support such statement:

1. International treaties, by being promulgated in the Diario Oficial de la Federación once being approved by the Senate and ratified internationally by the Federal Executive, immediately are part of the Mexican legal order.

2. According to article 133, the treaties, together with the Constitution and the laws that derive from it, the character of supreme law of the Union. According to the most recent criterion of the Supreme Court that we already discussed, the treaties are hierarchically superior to the federal and local laws.

3. The legal norms contained in international treaties, once incorporated to the legislation, are perfectly applicable and exigible, as any other norm of the Constitution, federal or local laws or by-laws.

4. The authorities, regardless their nature, shall include as part of the foundation and motivation of their actions, the content of the human rights treaties, especially when it comes to actions that might affect such rights, and they shall not limit to cite the constitutional, legal or regulatory precepts. Only this way would full efficiency would be given to what constitutional article 16 expresses with respect to the exigency of due fundament of the authority's actions.

5. In this sense, the unfulfillment or breaching of any of the norms covered in the human rights treaties represents a direct violation to article 133, as well as to article 16, in such a way that its claim through the juicio de amparo is legally permissible.

6. An additional argument is included in constitutional article 128, which establishes the duty every public officer has of fulfilling and executing the Constitution and the laws.

7. The Mexican State expressly accepts the interpretation we made in its observations about the Report about the Situation of Human Rights in Mexico, in the following terms:

There is the possibility that the rights consecrated in the international treaties have judicial application, since the unfulfillment of such rights would imply a violation to articles 16 and 133 of the Constitution, which establish the legality principle and that of the normative hierarchy of the treaties in the Mexican legal order, respectively.⁴³

If the juicio de amparo were not considered, taking into account what we already explained -the ideal means for an effective judicial application of human rights contained in international treaties- the Mexican legal order would have a huge vacuum that would compromise its international posture in favor of such rights, and the more than fifty international instruments our country has ratified up to now on this matter, would remain only as "prizes" lacking effective judicial tutelage, which would mean a generalized defenseless state of the individuals.

These logical-legal considerations are not enough to change the criteria, practices and tendencies deeply rooted in our country. Therefore, we shall celebrate that in the Project of Law of Amparo proposed by the Supreme Court of Justice of the Nation⁴⁴ in 2001, the legality of the juicio de amparo in case of breach of the human rights treaties was expressly included.

Article 1 of such project states:

Article 1. The juicio de amparo has the purpose of solving every controversy caused by general norms or authority actions that breach the guarantees consecrated in the Political Constitution of the United States of Mexico or the human rights protected by the general international instruments in the subject that agree with the latter, subscribed and that are subscribed by the President of the Republic with the Senate's approval.

A first approach to the scope of such precept indicates that it only refers to "general" treaties, such as the American Convention of Human Rights and its additional protocol on economic, social and cultural rights ("San Salvador Protocol"), as well as the two pacts of the United Nations. However, in the practice this would be object of interpretation so that other more specific instruments (on discrimination, torture or forced disappearance) but equally important, could be susceptible of application through the juicio de amparo.

VIII. SOME COMMENTS ABOUT THE PERFORMANCE OF THE JUDGES AND THE INTERNATIONAL RESPONSIBILITY OF THE STATE

Up to this point, we have examined the positive role that corresponds to the national judges and tribunals in the application of the human rights treaties, but it is also necessary to analyze, even if it is in a superficial way, the international responsibility in which a State may incur because of actions of its jurisdictional organs.

We begin this point by stating that the jurisdictional organs are part of the State, thus, the actions that yield in certain way the compromises acquired by that State in the benefit of the people through international treaties, compromise the country internationally.

This way, opinions have been made in this sense:

Every State is responsible of the actions of their tribunals, when they are against international law, without this altering their autonomy in the domestic order, since… they are state organs. The tribunals could, in fact, be independent with respect to other state spheres, but not with respect to the State itself.⁴⁵

The national tribunals could make the State internationally responsible when they disregard a treaty, for example preferring in their decision to apply a norm of inferior hierarchy to a treaty, deciding against what it establishes or being reluctant to decide when one of its norms is invoked. Another case would also be when the tribunals, by applying a treaty, interpret it erroneously giving it a different sense that incurs in damage to the fundamental rights of the person.

This could occur frequently, among other factors, because of ignorance of the international instruments by the jurisdictional organs and of the difficulty to interpret and apply such instruments.⁴⁶ In these cases the international organisms of protection of human rights play a very important role, which may solve the situations in a subsidiary way.

In this sense, Antonio Cancado states:

…the international human rights tribunals that exist nowadays -the European and Inter American human rights courts- do not "substitute" the domestic tribunals, nor do they operate as courts of appeals or cassation of decisions of the domestic tribunals. However, the domestic actions of the States might become object of examination by the international organs of supervision when it comes to verifying their conformity with the international compromises of the States regarding human rights…⁴⁷

Therefore, the jurisdictional organs of domestic nature and the international organizations carry out a complementary function in the protection of human rights. Even more, we could assert that there is no legal obstacle that keeps the domestic tribunals from applying, through their verdicts, the international human rights treaties, and that this is a matter of decision and will of the judges to carry out this important task.⁴⁸

Notes
* Translated by Ingrid Berlanga Vasile.
** Researcher at the Legal Research Institute.
1 Buergenthal, Thomas et. al., Manual internacional de derechos humanos, Caracas-San José, IIDH-Editorial Jurídica Venezolana, 1990, p. 9.
2 There are also additional and complementary sources that derive in obligations for the States, like the declarations, rules, group of principles, resolutions or decisions from international organizations, among which are the verdicts of international jurisdictional organs, the costume, the ius cogens, the general principles of international law and other subsidiary sources.
3 The publication of the Senate's approval in the Diario Oficial de la Federación should not be mistaken with the promulgation of the international treaty, which is carried once it has been ratified internationally.
4 The Treaty-Making Law in its article 4.2 states: "The treaties, in order to be obligatory in the national territory, should have been previously published in the Diario Oficial de la Federación".
5 In this sense, Ricardo Méndez Silva considers: "even when Mexico is a State with international vocation, its Constitution is domestic, traditional and rigid, especially in international matters", in "La Constitución política mexicana y los tratados", PEMEX Lex, Revista Jurídica de Petróleos Mexicanos, Mexico, nos. 75-76, September-October 1994, p. 53.
6 The Constitutional precepts that establish the prohibition to subscribe certain kind of treaties are constitutional articles 15 and 117.1.
7 Such power is clearly established in the first part of article 89.10 which includes within the powers and duties of the President of the Republic: "To conduct foreign policy and subscribe international treaties, submitting them to the Senate's approval...".
Article 76.1 of the Constitution appoints within the exclusive powers of the Senate: "I. To analyze the foreign policy carried by the Federal Executive on the basis of annual reports that the President of the Republic and the Secretary of the corresponding office render before the Congress; besides, approving international treaties and diplomatic conventions subscribed by the Executive of the Union".
8 In the cases where an international treaty's breach dispositions of the Constitution, in Mexico there is a possibility to impugn them through the juicio de amparo, or also through the recently established inconstitutionality action. The legal basis of these instruments of constitutional defense is found in articles 103 and 107, to the juicio de amparo, and 105.2 with respect to unconstitutional actions, as well as in its respective by-laws.
9 Article 133 of the Constitution textually establishes: "This Constitution, the laws of the Congress of the Union that emanate from it, and all the treaties that are in accordance with it, subscribed and that are subscribed by the President of the Republic, with the Senate's approval, shall be Supreme Law of the Union…".
10 Other constitutional dispositions that refer, although indirectly, to international treaties are constitutional articles 27, 42, 94 and 104. The two first ones remit to international law in order to delimit the national territory. The establishment of this type of limits is regularly established through international treaties with the bordering States or the nations interested in such issues.
On the other hand, article 94, 7th paragraph, is the foundation of the compulsory jurisprudence of the Federal Judicial Branch's tribunals. Article 104 of the Constitution establishes as a power of the tribunals of the Federal Judicial Branch, to know about the civil and criminal controversies that involve the execution of both federal laws and treaties. However, the same precept points out that in those cases where only particular interests were affected, the fact of turning to the federal or local jurisdictions is optional to who plays the role of actor in such trials, thus enabling the tribunals of the states and of the Federal District also to know about such issues.
11 Cfr. Comisión Estatal de Derechos Humanos de Querétaro, La aplicación de tratados en materia de derechos humanos por el ombudsman mexicano, México, CEDH. In the case of Mexico, at a federal level, the National Human Rights Commission's Law points out this aspect expressly in its article 6.13 and 6.14: "Article 6. The National Commission shall have the following attributions: XIII. Formulate programs and propose actions in coordination with the competent branch offices that encourage the fulfillment within the national territory of the treaties, conventions and international agreements on human rights subscribed and ratified by Mexico; XIV. Propose to the Federal Executive, within the terms of the applicable legislation, the subscription of conventions or international agreements on human rights". Besides that its efforts on diffusion of international instruments has been quite relevant, the compilation with the title Instrumentos internacionales sobre derechos humanos ONU-OEA, Mexico, Comisión Nacional de Derechos Humanos, 1994, three volumes, should be mentioned given its transcendence. In the international ambit, with respect tot the American continent, we should point out the training and diffusion of human rights carried by the Inter American Institute of Human Rights.
12 See article 28 of the American Convention on Human Rights. The International Pact on Civil and Political Rights points out in its article 50: "The dispositions of this document shall be applicable to all the parties that form part of the federal States, without any limitation or exception".
13 Fix-Zamudio, Héctor, "El derecho internacional de los derechos humanos en las Constituciones latinoamericanas y en la Corte interamericana de Derechos Humanos", Justicia constitucional, ombudsman y derechos humanos, México, Comisión Nacional de Derechos Humanos, 1993, pp. 445-481.
14 Article 27 of the Vienna Convention states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46".
Article 46 of the same Convention establishes: "Provisions of internal law regarding competence to conclude treaties. 1. 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. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith".
15 Cfr. Inter-American Institute of Human Rights, Guía sobre la aplicación del derecho internacional en la jurisdicción interna, San José, IIDH, 1996, pp. 33-43; cfr. Gros Espiell, Héctor, "Los tratados sobre derechos humanos y el derecho interno", Estudios en homenaje al doctor Héctor Fix-Zamudio, Mexico, UNAM, 1988, vol. 2, pp. 1025 and ss.
16 Some of the constitutional articles mentioned here are cited an explained thoroughly in the publication of the Inter American Institute of Human Rights, cit., pp. 33-42.
17 Fix-Zamudio, Héctor, "El derecho internacional de los derechos humanos en las Constituciones latinoamericanas y en la Corte Interamericana de Derechos Humanos", cit., p. 48.
18 About this issue, cfr. Inter American Institute of Human Rights, cit., pp. 33-43; cfr. Gros Espiell, Héctor, "Los tratados sobre derechos humanos y el derecho interno", cit., pp. 1025 and ss.
19 The Constitutional Room in such country has pointed out that the international human rights treaties have a higher hierarchy, even above the Constitution itself, granting more rights to the people. This criterion was cited in the "Guía sobre aplicación del derecho internacional en la jurisdicción interna", cit., p. 37.
20 For this issue, see Carpizo, Jorge, "La interpretación del artículo 133 constitucional", Estudios constitucionales, 2nd ed., Mexico, UNAM, 1983.
21 LEYES, ORDEN JERÁRQUICO DE LAS. Petróleos Mexicanos, p. 2156, vol. LXXXIV, June 11, 1945. Four votes. See: 5th period, vol. XVI, p. 1106, Puerto Vda. de Zavala, Tomasa, Instance: third room; Source: Semanario Judicial de la Federación; 5th period, vol. LXXXIV; p. 2156. PETRÓLEOS MEXICANOS, DEBE DAR FIANZA EN EL AMPARO (DEROGACIÓN). Vol. XCVIII, P. 1236. Petróleos Mexicanos. November 13, 1948. Five votes. Instance: second room; source: Semanario Judicial de la Federación, 5th period, vol. XCVIII, p. 1236. CONVENIO DE PARÍS PARA LA PROTECCIÓN DE LA PROPIEDAD INDUSTRIAL. TIENE CATEGORÍA DE LEY SUPREMA. Seventh period. Third part: vol. 72, p. 23. Denuncia de contradicción de tesis. Varios 329/71.Tribunales colegiados Primero y Segundo en materia administrativa del Primer Circuito. March 15, 1973. 5 votes. Ponent: Alberto Jiménez Castro. This thesis was published, with the number 421 in the Apéndice 1917-1988, third part, p. 751. Apéndice al Semanario Judicial de la Federación 1917-1988, second part, salas y tesis comunes, thesis 522, p. 905. TRATADOS INTERNACIONALES. EL ARTÍCULO 133 CONSTITUCIONAL, ÚLTIMA PARTE, NO ESTABLECE SU OBSERVANCIA PREFERENTE SOBRE LAS LEYES DEL CONGRESO DE LA UNIÓN EMANADAS DE LA CONSTITUCIÓN FEDERAL. Tercer Tribunal Colegiado en Materia Administrativa del Primer Circuito. Instancia: Tribunales Colegiados de Circuito, source: Semanario Judicial de la Federación, seventh period, vol. 151-156, sixth part, p. 195. TRATADOS INTERNACIONALES Y LEYES DEL CONGRESO DE LA UNIÓN EMANADAS DE LA CONSTITUCIÓN FEDERAL. SU RANGO CONSTITUCIONAL ES DE IGUAL JERARQUÍA. Tercer Tribunal Colegiado en Materia Administrativa del Primer Circuito. Amparo en revisión 256/81. C. H. Boehring Sohn, July 9, 1981. Unanimity of votes, ponent: Genaro David Góngora Pimentel. Instancia: Tribunales colegiados de circuito, source: Semanario Judicial de la Federación, seventh period, vol. 151-156; sixth part, p. 196. LEYES FEDERALES Y TRATADOS INTERNACIONALES. TIENEN LA MISMA JERARQUÍA NORMATIVA. Amparo en revisión 2069/91. Manuel García Martínez, June 30, 1992, majority of fifteen votes, ponent: Victoria Adato Green. Secretary: Sergio Pallares y Lara.
22 For a legal analysis of such thesis see Carpizo, Jorge, Nuevos estudios constitucionales, Mexico, Porrúa-UNAM, 2000, pp. 493-498.
23 For a general view about the hierarchy and execution of the human rights treaties in the American continent see Inter American Institute of Human Rights, Guía sobre aplicación…, cit.
24 See above, note 14.
25 Cited by Carpizo,Jorge, "The interpretation of constitutional article 133", cit., pp. 33 and 34.
26 Antonio Cancado Trindade points out, when referring to the monist and dualist theses about the relations between international law and domestic law, "the supremacy is that of the most favorable norm to the victims, whether it is a norm of international law or domestic law. Both systems interact in favor of the protected beings", Reflexiones sobre la interacción entre el derecho internacional y el derecho interno en la protección de los derechos humanos, Guatemala, Procurador de los Derechos Humanos, Colección Cuadernos de Derechos Humanos 3/95, 1995, p. 36.
27 This is the meaning given to constitutional article 15.
28 For example, article 5.2 of the International Pact of Civil and Political Rights points out that "No restriction nor breach of any of the fundamental human rights recognized or in force in a signatory State of laws, conventions, by-laws or costumes shall be allowed, given that the present Pact does not acknowledge them or acknowledges them in a minor degree".
29 Given the authority of the opinion given by Antonio Martínez Báez, we decided to reproduce it: "There is no doubt that such prohibition refers, regarding the use of the word "alter", to its sense or connotation of "disturb", "upset", "trouble", that is, with a negative connotation to human rights, individual guarantees or fundamental freedoms.
But the rights of men and citizens can be object of changes, alterations, always in a positive sense, of expansive increase in the sphere of the individual liberties, both through the additions to the chapter regarding the Political Constitution, with its superior level of Fundamental Law, and through by-laws of the ordinary laws. In the same way, through international legislation, either conventions or treaties, new human rights could be added, since the domestic Constitution of a country includes in its catalogue of individual liberties, those basic and minimum norms or principles, which shall always be a limit or border to the State's action, from whose limits it could draw back in order to extend the legal statute of the human person". "Correlaciones entre la Constitución y los pactos de Naciones Unidas", in the comipiling volume of his Obras politico-constitucionales, Mexico, UNAM, 1994, vol. I, p. 109.
30 Carpizo, Jorge, "La interpretación del artículo 133 constitucional", cit., pp. 33-35.
31 Sepúlveda points out that a subsequent norm derogated the treaty to which it refers because it supposes that the Legislative branch knew about that treaty and it intends to nullify it. In such cases, the international responsibility lies in the Executive branch. A subsequent treaty derogates the previous law that contradicts it, but it is not an authentic abrogation, since it only takes place in cases of specific application, and in that moment, the treaty's precept is preferred to the domestic precept. Author cited by Carpizo, Jorge, "La interpretación del artículo 133 constitucional", cit., p. 33.
32 "In the conflicts about the contents, it should be examined whether the Constitution of such state considers the treaties as incorporated to the domestic order, and in such way, whether the treatment they receive is of a norm of domestic law, and the same general rules are applied to it as those applied to the conflicts of laws that emerge in the domestic order, as the principle that the subsequent law derogates the previous law, and that the particular law derogates the general law". Carpizo, Jorge, "La interpretación del artículo 133 constitucional", cit., p. 34. In this same sense, it has been said that when the treaties are subsequent to the law that is in the same level, they derogate it, but the same thing could not happen if the law is subsequent, because article 27 of the Vienna Convention would have application, cfr. Inter American Institute of Human Rights, Guía sobre aplicación…, cit., pp. 45 and 46.
*** In this case, it means "desaplicar" in Spanish (N. of the T.).
33 Cfr. Carpizo, Jorge, op. cit., p. 25.
34 Ibidem, pp. 35-37 and 41.
35 Some of these important meetings have been the judicial colloquiums that have been held periodically among the Commonwealth countries, about the domestic application of international human rights norms, from which notorious suggestions about the topic have emerged as declarations. Cfr. Commonwealth Secretariat, Developing Human Rights Jurisprudence, vol. 5, Fifth Judicial Colloquium on the Domestic Application of International Human Rights Norms (Judicial Colloquium at Baillol College, Oxford 21-23 September 1992), London, Commonwealth Secretariat, 1993. We shall also mention the seminar held in Barbados in 1993, of which the following title emerged: Inter American Institute of Human Rights-University of the West Indies, Seminar for Caribbean Judicial Officers on International Human Rights Norms and the Judicial Function (Proceedings of the 1993 Barbados Seminar), San Jose-Bridgetown, Inter American Institute of Human Rights-University of the West Indies, 1995. See also Barkhuysen, Tom et al. (eds.), The Execution of Strasbourg and Geneva Human Rights Decision in the National Legal Order, Netherlands, Martinus Nijhoff Publishers, 1999, result of the symposium about the execution of Strasbourg and Geneva Human Rights Decisions that took place in Netherlands, November 1997.
36 Cancado Trindade, Antonio A., Reflexiones sobre la interacción entre el derecho internacional y el derecho interno en la protección de los derechos humanos, cit., p. 16. Emphasis has also been put in this issue in that "in the tribunals' role as protectors of the full effect of the human rights, the group of norms of international origin on the topic, but that, once being incorporated to the domestic order have applicability in it, is nowadays crucial", Inter American Institute of Human Rights, Guía sobre aplicación…, cit., p. 29.
37 To this respect, see Fix-Zamudio, Héctor, "Eficacia de los instrumentos protectores de los derechos humanos", Anuario Mexicano de Derecho Internacional, Institute of Legal Research, Mexico, vol. II, 2002, pp. 11-50.
38 Inter American Institute of Human Rights, Guía sobre aplicación…, cit., p. 28.
39 Ibidem, pp. 28 and 29.
40 Ibidem, pp. 49-53.
41 Carrillo Flores, Antonio, La Constitución, la Suprema Corte y los derechos humanos, México, Porrúa, 1981, n. 9.
42 Martínez Báez, Antonio, Correlaciones entre la Constitución y los pactos de Naciones Unidas, cit., pp. 110 and 111.
43 See Inter American Commission of Human Rights, Informe sobre la situación de los derechos humanos en México, September 24, 1998, original: Spanish, American States Organization, 1998, p. 21.
44 Proyecto de la Suprema Corte de Justicia de la Nación de la Ley de Amparo Reglamentaria de los Artículos 103 y 104 de la Constitución Política de los Estados Unidos Mexicanos, Mexico, Suprema Corte de Justicia de la Nación, 2001, pp. 31-32.
45 Human Rights Commission of Querétaro, "Responsabilidad del Estado a través de los órganos judiciales, ante la inaplicabilidad de los tratados sobre derechos humanos", Crónica, México, CEDH, no. 4, January-March 1994, p. 97.
46 Ibidem, p. 100.
47 Cancado Trindade, Antonio A., Reflexiones sobre la interacción entre el derecho internacional y el derecho interno en la protección de los derechos humanos, cit., p. 26.
48 To this respect, Antonio Cancado points out: "The domestic tribunals, naturally, have the duty to interpret and apply the laws of the respective countries, being the international organs supervisors specifically, under the terms and parameters of the mandates attributed by the respective treaties and instruments of human rights. Though, the domestic tribunals -as well as other organs of the States- have also the duty of insuring the implementation at a national level of the international norms of protection, which underlines the importance of their role in an integrated system such as the one of protection of human rights, where the conventional obligations entail a superior common interest of all the States parties, which is the protection of the human being", ibidem, p. 20.
It has also been said that: "Therefore, there is not even the slightest doubt that the tribunals as state organs, can adopt measures -verdicts in a broad sense- to make effective the rights and liberties recognized in the international treaty. If they do not do so, they compromise the State's international responsibility, for its function is to administer justice", Human Rights Commission of Queretaro, "Responsabilidad del Estado a través de los órganos judiciales, ante la inaplicabilidad de los tratados sobre derechos humanos", cit., p. 101.