STATES OF EMERGENCY AND DEFENDING THE CONSTITUTION*
Original Text (Spanish) PDF
I. A brief account of historical precedents of states of emergency. II. States of emergency in Latin American Constitutional Statutes. III. Judicial ratification of states of emergency in Latin America. IV. States of emergency in international human rights law and its influence in Latin America. V. States of emergency in Mexican statutes. VI. States of emergency and international terrorism. VII. Conclusions.
I. A BRIEF ACCOUNT OF HISTORICAL PRECEDENTS
OF STATES OF EMERGENCY
1. The creation of legal provisions to regulate serious situations of internal or external conflicts came into being in a defined way in Roman law, in that temporary norms were established so that public authorities could overcome dangerous situations that stemmed from internal insurrections or external wars. In fact, the well-known German legal scholar Carl Schmitt pointed out that during the Republic, a commissarial dictatorship was established. This meant that, at the behest of the Senate, the Consul designated a public official for a period of six months and granted said official the authority needed to face the emergency. However, in practice, if the situation returned to normal before the end of said period, the appointee had to step down from that position. This same author made a distinction between temporary (commissarial) and permanent (sovereign) dictatorships, which became tyrannical like those of Sulla and Caesar.1
2. These two concepts continued to exist in the middle Ages. At this time and with numerous variations, distinction was made between the assuming an extensive scope of powers needed in times of internal and external conflicts for a limited period of time and becoming a tyrant, who usurped or distorted these powers permanently. Various writers, including Saint Thomas of Aquinas, justified tyrannicide in the case of the latter. During the Renaissance, a difference was made between jura imperii, which comprised the authority of the sovereign, king or emperor, as well as the issuance of legislation and its enforcement, and jura dominationes, which was exercised during war and insurrection in the interest of the survival of the State and social peace. In this situation, the sovereign could depart from ius commune. In both normal conditions and those of emergency, the sovereign's authority were, at least in theory, legally regulated, in the first case by the ius imperii and in the second by the ius especiale.2
3. During the time known as the Ancient Regime, that is, the time of absolutist regimes in Continental Europe and to a certain extent in England, situations of emergency were not regulated with precision. This was markedly true when dealing with internal conflicts in which riots -that is, uprisings- prevailed, especially in times of food shortages. These disturbances were repressed pragmatically, severely punishing the most conspicuous and pardoning the rest of the people. According to doctrine, situations of emergency were predominantly preventive in nature, rather than repressive, since measures were taken, such as the supply of foodstuffs when there was a shortage, to avoid uprisings as much as possible.3
4. With the coming of classic constitutionalism, which began with the War of Independence in the United States of America and the French Revolution on the Continent, the preventive procedures of the old regime were torn down and a new era began with the establishment of the concept of constitutional public order, as opposed to the absolutist system of the old regime. These new rules were characterized by being essentially repressive in the face of the previous preventive practices, legal instead of arbitrary and finally effective as regards the frequent inefficiency seen in the previous autocratic regime. Furthermore, guidelines on faculties of emergency, minimal as they may be, were introduced in these first modern constitutions. This gave way to begin to include declarations of states of emergency in constitutions, which would later become legislation, to face internal insurrections and external threats. Furthermore, it should be taken into account that these new constitutional documents incorporated human rights of an individual nature (of property, freedom and security). They were defined in local Constitutions in the United States of America, and incorporated into the Federal Constitution in 1791, as well as in the Declaration of the Rights of Man and of the Citizen in 1789, in France, which was added to its constitution in 1791.4
5. The Constitution of the United States of America concisely regulated emergency situations. In Article 1, Section 8, paragraph 15, on the Powers of Congress, it states that the Congress has the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions. Likewise, in Section 9, paragraph 2, it states that the privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. During the Civil War and both World Wars, the Congress issued rules authorizing the Executive to take emergency measures, among which is the suspension of said writ of habeas corpus and increasing military power, with the restriction of individual freedoms, even when federal courts intervene to protect some of these rights under these conditions.5 Diversely, the new anti-terrorist legislation issued by the United States of America after the deplorable terrorist attacks on September 11, 2001, (among other norms, the US Patriot Act, issued by Congress on October 24, 2001) and later in view of the wars against the governments of Afghanistan and Iraq, has established excessively repressive measures. These have translated into modifications in the aforementioned states of emergency in both internal constitutional norms and those of international law, considering that the United States government ratified and approved the United Nations Covenant on Civil and Political Rights. At the end of this modest study, we will briefly mention the effects this recent outbreak of international terrorism has had on this matter (see infra paragraphs 101-107).
6. However, the precept that later had significant repercussion on Latin American constitutional statutes that were inspired by the US federal regime, was Article 4, Section 4 of the United States Constitution, which has been deemed a federal guarantee or intervention. Said norm states: "The United States shall guarantee to every state in this Union a Republican form of government and shall protect each of them against invasion; and on application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic violence".6
7. Due to the excesses carried out during the French Revolution, despite the rules of the states of emergency by various statutes issued by the National Assembly, which referred to martial law and the homeland in danger, excesses that intensified during the Jacobin government with the creation of the revolutionary courts that in turn brought about the reign of terror, the Constitutions promulgated in the late 19th century included guidelines on the states of emergency. These guidelines required mandatory intervention from the Legislative branch to authorize and supervise the declarations of exception or of emergency to be exercised by the Executive, with the support of law enforcement agencies, including the army and in extreme cases the parliament itself, could declare martial law, in which civil authorities were replaced by military ones.7
II. STATES OF EMERGENCY IN LATIN AMERICAN
8. The Latin American Constitutions promulgated on attaining their independence from Spain were inspired, as is well known, on the United States and Spanish models. The latter was through the Cadiz Constitution of 1812, which was based on the liberal ideology of the French Revolution. Therefore, in said constitutions, guidelines for situations of emergency and the means to overcome them by declaring a suspension of constitutional rights and, in extreme cases, martial law, were regulated. However, during a period of political instability in Latin America, due to constant uprisings and military coups organized by mainly military leaders, extra-constitutional repression was ordered and declarations of emergency were used for a purpose contrary to its guidelines. In other words, instead of preserving constitutional order, long periods of authoritarian governments were established, which moreover brought about real constitutional inflation since the insurgents had the naïve or misleading conviction that a new Constitution (very similar to the previous one) could solve the serious political, social and economic problems that overwhelmed this region. However, these texts could apply to but a negligible fragment of real life.
9. In the end of the 19th century, with the promulgation of constitutions of a liberal nature that established the separation of Church and State; the seizure of Church property; the suppression of military jurisdiction; the elimination of guilds and corporations, and the distribution of communal property (which weakened the agrarian rights of indigenous communities, recognized by Spanish legislation), among other measures, the power of the armed forces relatively decreased, so that at least in theory they were subordinate to civil authorities. The abusive use of declarations of states of emergency did not end, but at least there was an attempt to give them a legitimate nature.
10. It would be complicated and beyond the purpose of this brief study to make an in-depth analysis of the constitutional regulations of the institutions that should be used during the declarations of emergency. Known by various names, such as situations of exception, state of siege; martial law; state of alert; suspension of constitutional rights (equivalent to fundamental rights), etc., they were above all in the hands of the Executive, since the Head of State was usually the Commander of the armed forces and those of security. They also required intervention from the legislative branch, even when congresses granted the Executive the power to issue general norms, in view of the predominance of parliamentary regimes in Western Europe. These rules were also applied to a lesser extent in presidential regimes more common in the Americas, with the exception of Canada. Sometimes congresses also granted very restricted authority to judges and courts to evaluate the corresponding declarations since they were predominantly considered as having a political nature and were therefore not subject to judicial ratification.8
11. For the purpose of this brief study, we will only point out the transformations that have come about in two areas of great importance: a) first of all in the rules for states of emergency contained in Latin American provisions and particularly in that of Mexico; b) the influence of international law, regarding human rights in particular, in the internal norms corresponding to states of emergency themselves.
12. We can say that this issue has generated significant interest in Latin American doctrine, as well as legislation and jurisprudence, due to the tragic experiences this region has had. These events prevailed not only in the 19th century, which was very prolific in terms of the existence of leaders, especially military ones, de facto governments and authoritarian regimes, but also in the 20th century, since even in the 1970s and 1980s, there was a prevalence of military dictatorships that frequently used declarations of emergency to rescind not only the basic fundamental rights, but also to suppress or modify the provisions of their respective Constitutions.
13. The noted Uruguayan constitutional and international law scholar Héctor Gros Espiell has held with great precision that there are two areas for employing declarations of emergency or of exception, also known as a suspension of constitutional rights, martial law, immediate security measures, among others: one that can be considered pathological (which unfortunately has been used the most, especially by military dictatorships) since its purpose was not to preserve a democratic regime in these extraordinary situations, especially during serious internal conflicts, but had the exact opposite as its goal, that is, the eradication of constitutional order, which was replaced with legislation that violates the fundamental principles and values issued directly by the Executive.
14. In view of a return to democratic regimes in several countries that had suffered under authoritarian governments, the other sector that has become stronger in recent years is characterized by the fact that situations of emergency or of exception are instituted according to the procedures established by constitutional provisions, precisely for the purpose of upholding democratic constitutional provisions.9 Doctrine has graphically called this last aspect constitutional dictatorship, in reference to the Roman Republic (see supra paragraph 1), meaning declarations of emergency according to constitutional rules, by granting extraordinary powers to the Legislative branch and the Executive branch in particular, with the intervention of the first in such a way that it is possible to quickly and efficiently face situations that place constitutional order at risk. However, the adopted measures should be adjusted to the situation of emergency and its duration. In other words, it cannot be prolonged after overcoming the period of serious danger, which must be exceptional in nature.10
15. Latin American constitutional law, almost unanimously, sets forth and regulates the existence and workings of states of emergency in order to face situations of extreme emergency efficiently and quickly. However, the constitutional terms and instruments for enacting and applying them are quite varied. As mentioned above, many different names have been given to describe said situations: state of war, state of siege; of emergency or of danger; immediate security measures; and suspension of constitutional rights, among others. They also usually include a list of the human rights that can be temporarily suspended or restricted, as well as others, especially in more recent constitutions that on the contrary, must be untouched, like the procedural instruments ensuring their protection.
16. All of these provisions that have or should be exceptional and temporary in nature can be grouped together under the abovementioned concept of constitutional dictatorship, as long as they are all applied according to the fundamental norms that regulate them. Therefore, they cannot be aimed at destroying a democratic State to set up a permanent authoritarian government, which in this case would be unconstitutional after Latin America's painful experience of despotic governments frequently imposed themselves, universally violating human rights without any limits. On various occasions they had but a mere semblance of legality. We fully agree with the statement made by the distinguished Mexican constitutionalist scholar Diego Valades, in that:
It is necessary to recall that states of emergency are suitable mechanisms for defending the State and that the State is often understood in its most restricted sense. On the other hand, it is known that those in power usually identify their own destiny with that of the institutions they lead, in such a way that also apply to a personal acknowledgment of the defenses that were created for the institutions.
17. In every description and analysis of states of exception or of emergency in Latin America, it is necessary to distinguish their declaration and their application by constitutional and democratic governments from declarations and applications that are but the prelude or catalyst for a coup d'état, which have given way to dictatorships or de facto governments that operated outside the boundaries of constitutional guidelines. Not making this distinction and being influenced by a formal appearance of legality is an inadmissible, unreal and dangerous position. This same position is taken when thinking that current guarantees and protected constitutional rights can exist in some dictatorships or de facto governments, when they theoretically allow some parts of the Constitution to remain the same and arbitrarily replace others through legislative measures promulgated by incompetent or illegitimate bodies.11
18. Despite the diverse modalities and nuances, we can list the constitutional norms that regulate these situations of emergency in Latin American Constitutions:12 Argentina (1853-1860, substantially reformed in 1994), Articles 23, 75, clause 29, and 99, clause 16; Bolivia (1967, reformed in 1994), Articles 111-115; Brazil (1988), Articles 137-139; Colombia (1991), Articles 212-215; Costa Rica (1949), Articles 121, clause 7, and 140, clause 4; Cuba (1976, reformed in 1992), Article 67; Chile (1980, with reforms from the 1989 referendum), Articles 39-41; Ecuador (1998), Articles 180-182; El Salvador (1983, with several later reforms, the last one in 2000), Articles 29-31; Guatemala (1985, with reforms in 1993-1994), Articles 138-139; Haiti (1964), Articles 58, 61, 62 and 195; Honduras (1982, with several reforms, the most recent one in 1991), Articles 187-188; Mexico (1917, with various later reforms, the last one in 2002), Article 27; Nicaragua (1987, with reforms in 1995 and 2000), Articles 92, 138, clause 28; 150, clause 9; 185 and 186; Panama (1972, with reforms in 1983 and 1994), Articles 47 and 51; Paraguay (1992), Article 288; Peru (1993), Article 137; the Dominican Republic (2002), Articles 37, clauses 7 and 8 and 55, clauses 7 and 8; Uruguay (1967, with reforms in 1990, 1994 and 1996), Article 168, clause 17; and Venezuela (1999), Articles 337 to 339.
19. If we review the rules of the states of emergency in Latin American statutes, it is possible to see many differences, first of all, in the names used; the reasons that can be used to ground them; the procedure and the forms adopted; the authorities that can order and apply them, that is, the Executive, the Legislative branch and with the possible participation of judges and courts; the scope and limitations of the adopted measures; their effects; their temporality and restricted or suspended rights.13 Despite this variety, some authors have tried to develop a classification of the situations of emergency established by Latin American constitutions, as distinguished judges have at various times, among which we can cite the studies carried out by Karl Loewenstein;14 Segundo Linares Quintana;15 Domingo García Belaúnde;16 and Mexican judges that will be mentioned below (see infra paragraph 72).
III. JUDICIAL RATIFICATION OF STATES
OF EMERGENCY IN LATIN AMERICA
20. One fundamental aspect in the development of constitutional rules of states of emergency in the constitutions in Latin America are based on the gradual intervention of judges and courts in evaluating certain parts of declarations of emergency and their application, which, as mentioned before, has often been distorted and used contrary to its purpose. In other words, there has been an abuse of declarations of extraordinary situations for the purpose of harming, and sometimes destroying, democratic constitutional order under a semblance of legality.
21. The only effective way to avoid arbitrary acts in declarations of emergency and their implementation is their judicial ratification, which has evolved quite slowly. This is because of the predominance for many years of legislative, as well as jurisprudential, criteria that dealt with strictly political matters and that could not be subjected to the knowledge of jurisdictional bodies. Legal reviews of the unconstitutionality of legislative provisions can be used during situations of emergency or exception, to examine conformity to and proportionality of the general measures adopted for the purpose of declarations of states of emergency. This includes the declarations themselves (even when it is done with restrictions in terms of the recognition of political opportunity and discretional aspects of the respective declarations) in that they affect the constitutional normality and the fundamental rights of the people. Likewise, the writ of habeas corpus and the right to amparo should be admitted, filed and processed so that, at the behest of those affected, judges and courts can examine the constitutionality and legality of the acts or provisions taken in said situations of emergency without prejudice that can sometimes include indirectly controlling the constitutionality of general norms on which said concrete measures are based.17
22. We can start from the observation that there are two stages in the rules of procedural instruments during extraordinary situations in Latin America. In other words, there are a) those that can be considered traditional, and b) more recent ones, whether in its promulgation or in its modification, due to the influence of international human rights treaties. Latin American Constitutions prior to those now in effect, did not expressly mention the admissibility of legal reviews on the legislative provisions of the acts of authority that arise during situations of emergency, except in the constitutions of Brazil (see infra paragraphs 35-36) and Colombia (see infra paragraph 40). On the contrary, some of them allude to the suspension of procedural instruments for the protection of fundamental rights in situations of emergency, and therefore corresponded to ordinary legislation. Often it corresponded to the legislation, which was enacted precisely under conditions that should have been exceptional and were often not so, to establish the restrictions to the abovementioned procedures, especially those of habeas corpus and amparo, without any limits on the constitutional provisions themselves that would hinder overstepping the authority of the legislative branch or of the Executive, which happens even more frequently when the latter makes use of extraordinary powers to legislate, or when concrete measures are taken in the face of extreme social or political danger.18
23. To the above, we need to add the self-limitation that Latin American judges and courts had imposed in order to know about the mentioned procedural instruments during states of emergency, because for a long time they seemed insecure, hesitant and shy in defending their jurisdiction to effect the protection of human rights in said situations.19
24. This general situation contrasts with jurisprudence, which is not always constant but significant in Argentine courts, and the Supreme Court in particular. During the difficult periods of de facto governments and military juntas, they dared to know and decide the admissibility of the judicial review, especially when the declarations and application of the declarations of exception that seriously affected fundamental rights.20 While, as mentioned, their attitude was not persistent, an evolution towards judiciability of legislative provisions and concrete measures derived from states of emergency can be seen in Argentine jurisprudence in that they translate into restrictions on the people's human rights.21
25. It can be explained by saying that the judiciability of declarations and applications of states of emergency that arose in Argentina, due to the persistence of the declaration of the so-called state of siege regulated by Article 23 of the Argentine Constitution (which was not modified by the substantial reforms of 1994), which can be declared in the event of domestic disorder or foreign attack that endangers said Constitution or the authorities established by it. These exceptional circumstances of a state of siege have been often used in Argentina, in such a way that, as doctrine so affirms, from 1853 to modern times, the incidents of state of siege can translate into an average of one state of siege every two years nine months, reaching the dramatic and long period of eight years, eleven months and twenty-two days declared by Decree 1368 dated November 6, 1974, which was used by the later military de facto governments until October 28, 1983, a date that marks the return to a democratic government.22
26. During this last long duration of state of siege, the Argentinean Supreme Court did its best efforts in its attempts to judicialize the declarations and concrete acts of application in situations of emergency. We can point out some examples; among them the rulings issued by said court, pronounced on April 18 and August 9, 1977, and on July 20, 1978, respectively, in the cases of Ana Maria M. Perez de Smith, Mariano Zamorano and Jacobo Timmerman. Regarding the persons held on the instructions of the Executive branch based on its emergency powers, said judgments held that while political matters fall outside the sphere of jurisdiction of the courts, the judicial branch did have authority for analyzing the reasonableness of the measures adopted by the Executive Branch as set forth in Articles 23, 29 and 95 of the Constitution (the latter in its original text) the situation of persons detainees placed at the disposal of the Executive Branch, since it is not possible to assume that the affected party will be left to it's fate and beyond any control by the judges of the nation, no matter how long the arrest continues.23
27. These principles were received by the National Law of Habeas Corpus issued on October 24, 1984, after a democratic government was re-established. Article 4, clauses 1 and 2 and Article 6 set apart the principle of reasonableness as a criteria for federal and local courts on knowing the demands of habeas corpus against arrests ordered in times of states of siege, since because of them, said judges have the authority to examine both the legitimacy and the constitutionality of said legislative provisions that serve as endorsement to the concrete measures against which the appeal is filed, including the declaration itself. Therefore, according to said precepts:
State of Siege. When an individual's freedom is limited by the declaration set forth in Article 23 of the National Constitution, the procedure of habeas corpus can in concrete cases tend to prove: 1. The legitimacy of the declaration of State of Siege. 2. The correlation between the arrest warrant and the situation that brought about Martial Law… Unconstitutionality. The judges can declare ex officio in concrete cases on unconstitutionality when the restriction on freedom is carried out by the written order of an authority that works by reason of a legal precept that goes against the National Constitution (italics are ours).24
28. The Supreme Court of Argentina had the opportunity of ruling on the scope of these provisions in its ruling dated December 3, 1985, in view of the Writ of Habeas Corpus advocated by Jorge H. Granada against his arrest ordered by the Executive based on the declaration of State of Siege issued during the democratic regime. In the vote expressed by the magistrate and known legal scholar Carlos S. Fayt, it was essentially held that said control of the reasonability of the arrests gave the court the authority to legally verify whether the corresponding act is proportional to the objectives sought by means of the declaration of martial law, and in each specific case, whether the detention is for a brief and limited time.25
29. The reforms made to the Argentine Constitution in August 1994 established a new emergency institution under presidential powers, according to Article 99, clause 2 (legislative powers), which described them as degrees on grounds of necessity and urgency, since they had already been used before despite the fact that they were not set forth in the original text of the constitution. Furthermore, they had been admitted by secondary legislation and jurisprudence, as well as by a sector of doctrine, since they had been decreed on twenty occasions under extra-ordinary situations between 1853 and 1983. During the re-establishment of democratic constitutional order, President Alfonsín enacted approximately 10, which were upheld by President Menem who significantly increased the number of said executive orders. So much so, that "a government by executive order" was spoken of.26
30. In this case, one must recall the Peralta case, resolved in 1990 by the Supreme Court of Argentina. In this ruling, in opposition to an important sector of doctrine, the use of these decrees before the 1994 constitutional reform was legitimized, considering that these legislative measures can be enacted in a situation of serious social risk in the face of the need for immediate measures. These criteria must have influenced the mentioned precept due to the advisability of constitutionally regulating this instrument that had been subject to abuse, and to establish essential limits.27
31. According to above-mentioned Article 99, Section 3, reformed in 1994, only when exceptional circumstances make it impossible to follow the ordinary procedures set forth by said Constitution for endorsing laws -and it is not about norms that regulate criminal issues, taxation, electoral matters or the system of political parties-, the president of the Republic may issue decrees on grounds of necessity and urgency, which shall be decided by a general agreement of ministers who shall countersign them together with the Chief of the Ministerial Cabinet. Within the term of ten days, the Chief of the Ministerial Cabinet shall personally submit the decision to the consideration of the Joint Standing Committee of Congress, which shall be composed according to the proportion of the political representation of the parties in each House. Within the term of ten days, this committee shall submit its report to the plenary meeting of each House for its specific consideration and it shall be immediately discussed by both Houses. A special law enacted with the absolute majority of all the members of each House shall regulate the procedure and scope of Congress participation.
32. According the analysis doctrine has made, said legislative decrees on grounds of necessity and urgency should be examined, and if necessary, approved or modified by the legislative chambers. The silence on Congress's behalf cannot be claimed as approval for said decrees, which should also be reviewed by judges and the courts to determine its constitutionality based on the criteria of reasonableness that jurisprudence has used (see supra note 26). However, the courts are not authorized to know its "wisdom, opportunity or advisability". This last point can be contradictory since these factors cannot be completely excluded from legal analysis. A judge can hardly enter into the analysis of its inevitability, of the degree of harm or of its excessiveness if he does not also examine the issues regarding the existence or lack thereof of other means and if there are some, how much more damaging they could be to the system, but always according to the assessment of the aspects indicated as necessary parts of the state in necessity, in its legal-political conceptualization.28
33. From the above, it is possible to reach the conclusion that said decrees on grounds of necessity and urgency have the purpose of quickly and efficiently solving the economic-social crises that have affected Argentina in recent years. However, it seems that they have really had the opposite effect. For example, the National Executive decrees on grounds of necessity and urgency 1570 and 1606, published on December 3 and 5, 2001, can be cited. These decrees imposed rigid restrictions on cash withdrawals made by accountholders that exceeded a small weekly amount in US dollars or in Argentinean pesos (which at the time had equal parity), and the transfer of funds outside the country. These measures were popularly called the "financial corralito [playpen]" and triggered an angry public response that in turn decided the fall of President Fernando de la Rúa. They also brought about political stability that led to the ensuing appointments of several presidents. While the situation was brought under control with the last elections in 2003, it implied a change in direction for the new Executive, President Nestor Kirchner.
34. The 2001 decrees were contested by those affected and the legal controversies ended with the Supreme Court ruling in the Smith case, pronounced on February 1, 2002, saying that said decrees were unconstitutional. The later decrees issued in 2002, Numbers 214, 320, 905 and 1326 by the interim presidents that replaced President de la Rúa, as well as the law enacted by Congress, Number 25,787, on April 25, 2002, attempted unsuccessfully to correct the effects of the decrees of the previous year. For this reason, they were severely criticized by doctrine that considered them clearly going against the Constitution. As to the legislative provisions issued in 2002, as a last resort, the Supreme Court recognized the amparo filed by the Province of San Luis against the National State, the Central Bank of Argentina and of the National Bank of Argentina, since said decrees on grounds of necessity and urgency, as well as the mentioned Congressional Law, were deemed anti-constitutional. The High Court pronounced its ruling on the San Luis case on September 18, 2002. A majority of five votes against three declared the provisions that established the "corralito" as unconstitutional. This sentence has been deemed one of the most important and transcendental rulings said Supreme Court has issued in its entire existence.29
35. We can also point at the efforts carried out by some magistrates of the Federal Supreme Court of Brazil during the predominantly military authoritarian period. These magistrates endeavored to legally ratify the declarations of emergency and their effects that were issued by said governments between 1964 and 1969, during which time a notion of national security that was out of proportion prevailed. During this time, said high court recognized and granted the protection of habeas corpus to protect not only individual freedoms and integrity, but also the rights of expression and thought. This attitude brought about a serious confrontation with the Executive Branch, which issued, exercising its illegitimate legislative powers, several institutional acts. Furthermore, the Executive Branch made substantial changes to the Constitution of 1964. Thus, said Executive politically pressed the Federal Court is such a way that three of the more independent magistrates were forced to request their withdrawal from the court and two others resigned their positions in protest to these measures.30
36. Interestingly, it is possible to see that in said authoritarian charter of 1964, which was reformed in 1969, there were two contradictory provisions on situations of emergency. Article 159 stated: "The non-observance of the provisions regarding Martial Law, determines the illegality of coercion and authorizes the affected party to go before the Judicial Branch". Contrarily, Article 181 of said constitution excludes legal recognition of the acts carried out by the Supreme Commander of the Revolution as of March 31, 1964, and during the duration of several previous institutional acts. This seems paradoxical, but there is an explanation. The military government did not notice this constitutional inconsistency since the first of these precepts came almost literally from Article 215 from the democratic Constitution of 1946.31
37. This situation has been favorably changed by the provisions of the Brazilian democratic Constitution of October 5, 1988 (which was also quite creative in the new specific instruments for defending certain fundamental rights). This constitution regulates situations of emergency in Articles 136 to 141 under two approaches: a) the state of defense and b) martial state. The first aims at promptly re-establishing public order and social peace in certain and restricted locations whenever threatened by serious and imminent institutional instability or affected by major natural calamities. The declaration of Martial Law proceeds under two premises, that is, by a serious disturbance with national effects or occurrence of facts that evidence the ineffectiveness of a measure taken during the state of defense, or by the declaration of state of war in reaction to foreign armed aggression.
38. The two cases mentioned, the state of defense and Martial Law, can be declared by the President of the Republic after hearing the Council of the Republic and the Council of National Defense. In the case of a state of defense, the Executive shall within twenty-four hours submit the act to Congress. If Congress is in recess, it is called extraordinarily within five days. Within ten days, said congress must decide by absolute majority whether to approve this declaration. If the decree is rejected, the state of defense ceases immediately. In the case of Martial State, the President of the Republic, after hearing the Council of the Republic and the Council of National Defense, may request Congress to authorize said decree. In both sectors, the corresponding decree must indicate the rights and guarantees that are to be suspended or restricted and the period of its duration. Martial State due to internal disturbances may not be decreed for more than thirty days and each extension may not exceed thirty days. In the event of war against a foreign power, it may be decreed for the entire period of the war. In both states, of defense and Martial State, the constitutional precepts specifically stipulate the rights and terms under which said rights can be suspended during the emergency (Articles 136 and 139, respectively).32
39. With the exception of these two examples from Argentina and Brazil, most of the Latin American statutes prior to the constitutions currently in force did not make any reference whatsoever to the legal participation during the states of emergency. While some of them indicated the human rights that could not be suspended or restricted, they did not indicate the procedural instruments to protect said rights.33
40. Regarding the admissibility of judicial review on the constitutionality of legislative provisions, in the time under study, only the Constitution of Colombia of 1868, modified in 1968, expressly established in Articles 121 and 122 that the legislative decrees that the President of the Republic could issue with the authorization of the congress during martial law or states of economic and social emergency must be sent by the Executive to the Supreme Court of Justice on the day following their promulgation. Should the government fail to do so, the court would recognize them ex officio in order to definitively decide whether said decrees had been issued according to the formal requirements stipulated in said articles of the constitution and whether the corresponding legislative provisions were adapted to the government powers during said states of emergency.34
41. The current Colombian Constitution, dated July 7, 1991, reproduces this regulation on constitutionality review of the declarations of emergency in its present Article 241, clause 7, which grants the Constitutional Court with the power to decide in definitive matter on the constitutionality of the legislative decrees issued by the President of the Republic with congressional authorization during situations of emergency (Martial Law due to external war, internal disturbance and emergencies). The Executive must send these decrees to the Constitutional Court on the day following their promulgation. Should the government not comply with the duty to transmit the decrees the Constitutional Court will automatically and immediately take cognizance of them (Article 214, clause 6). However, in addition to the serious situation of civil war and economic and social emergencies, the Colombian Constitution in force includes provisions from the international right to exercise human rights (see infra paragraphs 43 et seq.). Indeed, clause 2 of Article 214, which falls under Title VII, "Of the Executive Power" Chapter 6 of the "States of Exception" states:
Neither human rights nor fundamental freedoms may be suspended. In all cases, the rules of international humanitarian law will be observed. A statutory law will regulate the powers of the government during the states of exception and will establish the legal controls and guarantees to protect rights, in accordance with international treaties. The measures which are adopted must be proportionate to the gravity of the events (Italics are ours).35
42. The conclusion that can be reached after studying several examples of regulations for situations of emergency in Latin American statutes is that there are a number of procedures and modalities for declarations of state of emergency, as well as in the government bodies with the authority to carry out said declarations and implement them. While the predominance of Executive acts can be observed, there is a tendency to increasingly limit the powers of the Executive himself through the intervention of the legislative chambers, as well as with the participation of jurisdictional bodies by means of the instruments for legally reviewing the constitutionality of the normative provisions issued during the emergency and instruments for protecting fundamental rights, basically through the habeas corpus and amparo proceedings.36
IV. STATES OF EMERGENCY IN INTERNATIONAL HUMAN RIGHTS
LAW AND ITS INFLUENCE IN LATIN AMERICA
43. Due to the complexity, diversity and approaches of the statues for states of emergency, especially in Latin American ones, international human rights law has established a set of rules that aims at establishing the basic principles for states of emergency - even when they are used to maintain and preserve constitutional order, and not to undermine it as has often happened in several countries around the world, and of course in the de facto governments in Latin America in the 1970s and 1980s. Since both general international law and that of a more conventional nature have gradually been incorporated into national statutes in Latin America, said statutes have changed substantially. Statutes are now more precise and protective of fundamental rights, especially in Latin America since the governments in the region have ratified and approved several international instruments with provisions on this matter.37
44. In general terms, we can say that most Latin American countries have acknowledged to the jurisdiction of the International Court of Justice and have ratified and approved the Geneva conventions on humanitarian law and United Nations Covenant on Civil and Political Rights, as well as the American Convention on Human Rights. These instruments have established norms and guidelines regarding declarations of emergency situation and their implementation in order to avoid, as much as possible, affecting the people's human rights and instruments of protection that cannot be limited or restricted during said emergency situations.
45. We will attempt to give a brief description of the international laws that regulate emergency situations, a task that is not easy since they are numerous and complex: A) In this case, we can point out that the jurisprudence of the International Court of Justice has established criteria for its application during states of emergency and which refer to four essential aspects: a) The individual's personal capacity for action in international law; b) The norms regarding fundamental rights in international customary law; c) The supremacy of general principles in international humanitarian law, and d) The obligations erga omnes in humans rights issues (ius cogens).38
46. B) As to international humanitarian law, which is the one that is used during both international and internal conflicts, it began with the Hague Conventions of 1899 and 1907 and its Protocol of 1954, and the Geneva conventions of 1864 and 1925. Nowadays, independently of other United Nations instruments that regulate certain aspects, humanitarian law has been compiled in the wide-ranging conventions that were signed in Geneva on August 12, 1949, and entered in force on October 31, 1950: a) Relative to the Treatment of Prisoners of War; b) Relative to the Protection of Civilian Persons in Time of War; and c) For the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. To these treaties, two additional protocols must be added: d) Relating to the Protection of Victims of International Armed Conflicts, and e) Relating to the Protection of Victims of Non-International Armed Conflicts. Both of these protocols were also signed in Geneva on July 8, 1977. The second protocol has encountered a certain degree of resistance from some Latin American governments due to the civil wars that have affected them over many years. While some of these civil wars have ended, like those in El Salvador and Guatemala, some have yet to be resolved, like those of Colombia and Peru. In the case of the latter, actions have already been limited. Overseeing the compliance to said instruments has been left in the hands of the International Committee of the Red Cross, which has done a worthy job in this aspect.39
47. C) As to international human rights law, strictly speaking, we have held that almost all Latin American governments have recognized the United Nations Covenant on Civil and Political Rights, signed in New York on December 16, 1966, and in force on January 3, 1976. (Furthermore, a significant number of Latin American countries have also signed the Optional Protocol to said covenant.) Article 4 of the covenant governs the states of emergency as follows:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. 2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.40 3. Any State Party to the present Covenant availing itself to the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
48. The United Nations Human Rights Committee, which was created by the Optional Protocol to the Covenant on Civil and Political Rights, has established a general declaration regarding Article 4 of said covenant, transcribed in the above paragraph, which merits mention here:
3. The Committee holds the view that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that, in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States Parties of the nature and extent of the derogations they have made and of the reasons therefore and, further, to fulfill their reporting obligations under Article 40 of the Covenant41 by indicating the nature and extent of each right derogated from together and with the relevant documentation.42
49. Due to the serious problems that arise from emergency situations that have been frequently declared, some of said situations have not complied with the requirements of the abovementioned article 4 of the United Nations Covenant on Civil and Political Rights. Moreover, they are recalled in cases in which timely notice of the corresponding declarations and their application is not given to the United Nations Secretary General, nor is the necessary documentation provided. The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (currently the Sub-Commission on the Promotion and Protection of Human Rights)43 appointed special rapporteurs to examine and inform on the states of emergency declared in the States Parties and in the world in general and to then draw up recommendations on these states of emergency.
50. First of all, on August 31, 1977, said sub-commission entrusted one of its experts, Ms. Nicole Questiaux, under the authority of the Economic and Social Council through the Commission on Human Rights, to carry out a study on states of emergency. After several years of hard work, Ms. Questiaux submitted an excellent report to the Sub-Commission at its 35th period of sessions in 1982.44 In its text, Ms. Questiaux's valuable and detailed study pointed out that international or national laws for states of emergency should be aimed at safeguarding institutions and at the same time they should be compatible with democratic principles. Therefore, it should comply with the following conditions: a) Legislation should be prior to the crisis; b) Legislation should foresee previous or later control procedures; and c) Legislation should be drafted in order for it to be applied as a provisional measure, or better yet, temporarily.
51. In its ruling 1983/30, the Sub-Commission decided to include in its agenda an item entitled "Implementation of the Right of Derogation Provided for under Article 4 of the International Covenant on Civil and Political Rights and Violations of Human Rights", which it subsequently decided to consider, as a matter of high priority, under the agenda item "Question of Human Rights and States of Emergency". In 1985, the Economic and Social Council endorsed the recommendation of the Commission and Sub-Commission to appoint a special rapporteur, Leandro Despouy, from among the Sub-Commission's experts. Mr. Despouy carried out the 12-year task of drawing up and updating annually a list of countries which since January 1, 1985 have proclaimed, extended or terminated a state of emergency; of examining the corresponding reports and recommending concrete measures with a view to guaranteeing respect for human rights in situations of state of siege or emergency. As a result of this work, in 1997, the sub-commission and later the commission entrusted the rapporteur to carry out a study that would collate his experience in this matter and to submit recommendation on how this question should be addressed in the future.
52. Mr. Leandro Despouy's magnificent final report was presented to the sub-commission in its 1998 session. During this session, it was approved by the sub-commission and later by the United Nations Commission on Human Rights. This document clearly shows the ample experience of the rapporteur on the issue, which allowed him to consolidate certain guidelines and principles, which in his opinion, should govern the state of emergency in order to comply with the requirements of international norms. The report itself takes into account not only the conventions signed under the competence of the United Nations, but also the norms that form part of regional treaties, such as the European, Inter-American and African Conventions, as well as other additional international norms and jurisprudence from dispute resolution bodies.45
53. In that respect, Rapporteur Leandro Despouy pointed out the following principles: a) principle of legality, which implies the necessary pre-existence of norms which govern the state of emergency and the existence of both internal and international monitoring mechanisms which verify its conformity with these norms; b) principle of proclamation, consisting of the need for the entry into force of the state of emergency to be preceded by a public announcement in the form of an official declaration; c) principle of notification, aimed specifically at the international community and addressed to other States, in the case of a convention, as well as to States Members of the United Nations, in the case of the work of the Special Rapporteur; d) principle of time limitation, which is inherent by nature in the state of emergency, since it is basically intended to indicate that the later is necessarily limited in time and thus to prevent it being unduly perpetrated; e) principle of exceptional threat, that defines the nature of the danger and refers to the de facto premises (internal disturbances, external attack, public danger, natural or man-made disasters, etc.), which make up the concept of "exceptional circumstances"; f) principle of proportionality, which is directed at the need to ensure that the measures adopted are consonant with the severity of the crisis; g) principle of non-discrimination, which is regarded as non-derogable, since international conventions consider this principle as an essential condition for exercising the right of derogation, in the case of non-derogable rights, which those instruments accord; h) principles of compatibility, concordance and complementarity of the various norms of international law, principles that have the effect of harmonizing the various obligations undertaken by the States in the international order and to strengthen the protection of human rights in crisis situations through the concordant and complementary application of all the established norms in order to safeguard those rights during a state of emergency.46
54. In turn, Salvadorian legal scholar Florentín Meléndez points out the principles that should govern states of emergency according to the rules of international law for human rights, which essentially coincide with those expressed by Rapporteur Despouy. Melendez lists the following: proclamation, notification, proportionality, provisionality or time limitation, intangibility of certain human rights; exceptional threat and necessity, as well as other secondary ones.47
55. Two more essential aspects that are dealt with in Leandro Despouy's report refer to the non-derogable condition of the exercise of fundamental human rights, since the main protection instruments, that is, the United Nations Convention on Civil and Political Rights, as well as the European and Inter-American conventions for human rights list several rights that cannot be restricted during states of emergency. Therefore, there is no possibility of formulating reservations regarding those rights. In addition to being non-derogable, other international instruments, such as the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, or the Convention on the Rights of the Child, among others, as well as the general norms of international law.48
56. Regarding the cited non-derogable rights, the international instruments on human rights of a general nature make several listings, though many coincide in various aspects. Therefore, in order to have a framework of reference, it is fitting to mention two more precepts that govern said intangibility during a state of emergency. First of all, article 15, paragraphs 1 and 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, and in force on September 3, 1953, states:
1. In time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision (Italics are ours).49
57. Article 27 of the American Convention on Human Rights, which was signed in San Jose, Costa Rica, on November 22, 1969, and entered into force on July 18, 1978, is the broadest in terms of stipulating the human rights that are non-derogable in states of exception, stating:
1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights (Italics are ours).
58. As can be seen, the rights that cannot be suspended according to the provision of the American Convention are much more extensive than those in the other two instruments mentioned: the United Nations Convention on Civil and Political Rights and the European Convention. Furthermore, it has a very important provision stating that the indispensable procedural instruments for protecting said intangible human rights cannot be suspended. This precept is very significant since the possibility of restricting and affecting said legal guarantees, as has often happened in declarations of state of emergency in Latin America (see supra paragraphs 22-24), obstructs court intervention to oversee the declarations, the legal provisions and actual acts of their application to emergency situations.
59. The tragic experience of the declaration of states of emergency in Latin America mentioned above (see supra paragraphs 13-17), the prohibition or suspension of the procedural instruments needed to protect human rights in emergency situations, whether said restriction is authorized by constitutional or legal provisions or carried out arbitrarily, is an experience that has already been examined by doctrine and jurisprudence for many years. Thus, at the 1st Latin American Congress on Constitutional Law, which took place in Mexico City on August 25-30, 1975, at a time when there were still military dictatorships in several Latin American countries, after analyzing the situation of states of emergency, the following conclusion was reached:
The jurisdictional authority of Latin American courts, especially Supreme Courts and the exercise of the responsibilities of constitutional power, can only achieve effectiveness, thus limited, when it overcomes the heretofore unredeemable obstacles of the exaggerated interpretation of political and government acts, as well as the constant declarations of emergencies and the promulgation of qualified statutes with or without reason, of "revolutionaries". For this, they can use the instruments of "reasonability" that has bravely sustained the Argentine Supreme Court at some point in history and thus the remedy of "abuse of power" can become applicable. This remedy was created by the jurisprudence of the French State Council to determine the limits of Executive discretional powers (Italics are ours).50
60. By means of various advisory opinions, the Inter-American Court of Human Rights established very important criteria on the interpretation of Article 27 of the American Convention transcribed above. Opinion number six, "The Word 'Laws' in Article 30 of the American Convention on Human Rights", pronounced on May 8, 1986, essentially held that in terms of a state of emergency, states of emergency cannot be interpreted as the temporary suspension of the Rule of Law and that the corresponding government is empowered with absolute powers that go beyond the conditions authorized by such exceptional legality. As the court had previously held, the principle of legality, democratic institutions and the Rule of Law are inseparable.
61. However, much more precisely in terms of procedural instruments, the Inter-American Court issued advisory opinions eight and nine. In the first, resolved on January 30, 1987, requested by the Inter-American Commission on Human Rights, entitled "Habeas Corpus in Emergency Situations", the Court basically held that the procedures set forth in Articles 25(1) (amparo) and 7(6) (habeas corpus) of the American Convention may not be suspended because they are judicial guarantees essential for the rights and freedoms whose suspension Article 27(2) prohibits.
62. These concepts were analyzed further in Advisory Opinion Nine, entitled "Judicial Guarantees in States of Emergency", which was issued on October 6, 1987, as requested by the Government of Uruguay. In this opinion, it was basically stated that they should be considered essential judicial guarantees which are not subject to derogation, according to the precepts mentioned in the Convention that include habeas corpus, the amparo and any other effective remedy before judges or competent tribunals, which is designed to guarantee the respect of the rights and freedoms whose suspension is not authorized by the Convention. Judicial procedures inherent to representative democracy as a form of government as provided for in the laws of the States Parties as suitable for guaranteeing the full exercise of non-derogable rights and whose suppression or restriction entails the lack of protection of said rights, are also deemed not subject to suspension. As to this latter point, the court ruled that the concept of due process of law, as expressed in Article 8 of the Convention, should be understood as basically applicable to all the judicial guarantees set forth in the American Convention, even under circumstances of suspension as regulated by Article 27 of said convention.51
63. At least for the State Parties of the American Convention [of which the United States of America is not a signing party since its Constitution allows the suspension of the habeas corpus in situations of emergency (see supra paragraph 57)], the above means that procedural human rights protection instruments cannot be suspended or restricted and must not be affected by declarations of emergency, especially that of habeas corpus, the right to amparo and the basic guidelines of due process, which in our opinion also includes legal review of the unconstitutionality of legislative provisions.52
64. Almost all Latin American constitutional provisions have included the rights established in international human rights treaties, especially United Nations Covenants and the American Convention, into their domestic law, whether as a supreme law or at least as positioned above internal legislation. Therefore, the very different national regulations on states of exception, states of siege, internal unrest, economic emergency or natural disasters, have been modified -and some expressly- by international norms. Thus, the declared states of emergency are subject to the modalities, principles and conditions established by international instruments and the jurisprudence of supranatural jurisdictional bodies in such a way that intangible rights established by said instruments cannot be suspended or restricted. Neither can the indispensable procedural instruments for protecting said rights, such as the habeas corpus, the right of amparo or any other effective remedy, nor the basic guidelines of due process or law be limited.53
V. STATES OF EMERGENCY IN MEXICAN STATUTES
65. Since its independence, Mexico has undergone serious political instability with numerous changes of government due to riots and coups d'état, especially during the 19th century and early decades of the 20th century. In spite of this, some of the various Constitutions that were issued in that time did not expressly regulate the states of emergency. However, some of them did establish modalities for emergency situations, which more than setting limitations on the fundamental rights translated into granting the Executive extraordinary powers on behalf of the congressional chambers, which in turn frequently meant the issuance of delegated legislative norms.
66. Article 308 of the Spanish Constitution of Cadiz, which was intermittently in force in Mexico between that year and the closing stages of the country's independence in 1821, established a very succinct regulation on states of emergency, stating that if under extraordinary circumstances the security of the State so demanded, the courts could proclaim the suspension of some of the formalities set forth for criminal arrests for a certain period of time in all or parts of the kingdom. Nonetheless, the Federal Constitution of October 4, 1824, did not accept situations of emergency or granting extraordinary powers to the Executive, despite the petitions of some of the framers of the constitution. However, in view of the turbulence in political life at that time, the congress itself granted the Executive powers, or else he used them without having received authorization. Among these powers was legislative power by means of congressional delegations to issue general norms, including those that were not linked to states of emergency. This became a tradition during the 19th and early 20th centuries.
67. None of the seven constitutional nature laws of a centralist character issued in 1836 regulated emergency situations. It is only until the Constitution of 1843, under the name of Organic Bases for the Mexican Republic, that the suspension of certain fundamental rights during states of emergency was first ever included in Article 198. In this article, the congress was given power for a certain period of time to proclaim the suspension of the formalities stipulated for arresting and detaining criminals when extraordinary circumstances so demanded it for the security of the nation or part of it.
68. Mariano Otero's personal vote at the Constitutional Congress of 1846-1847 referred to the states of emergency in terms of suspending certain fundamental rights in Article 4 (2) of his proposal. Here he proposed the inviolability of the guarantees (basically, human rights), except in cases of foreign invasion (which was precisely the situation at the time with the war with the United States of America), or of internal rebellion, in which cases the Legislative Branch could suspend the established formalities to apprehend and detain individuals, such as searching rooms, but only for a certain period of time. However, this provision was not approved by congress and was therefore not included in the text of Article 5 of the Constitution and Reforms (to the Constitution of 1824) promulgated on May 21, 1847. Despite not having stipulated the extraordinary powers, the Congressional Congress itself, by means of a Decree dated April 20, 1847, granted the executive branch the power to issue the necessary rulings to endure the war, defend the country and save the (republican, popular or federal) form of government under which the nation was established. However, said attributes must end once the war has ended.54
69. Granting extraordinary powers and the suspension of fundamental rights were embodied definitively in Article 29 of the 1857 Constitution,55 under which:
In cases of invasion, serious disruption of public peace or any other situations that place society in serious danger or conflict, only the president of the republic, along with the Council of Ministers and with the approval of the Congress (one chamber at that time) and in congressional recesses, of the permanent commission, can suspend the guarantees (rights) granted by this Constitution, excepting those that ensure human life; but it shall be done for a limited time, through general stipulations and without permitting the suspension to be assumed by a single individual (italics ours).
70. Soon, due to the controversies that this constitution caused among the various political schools of thought of the time, said Article 29 was used when President Ignacio Comonfort asked congress for the use of extraordinary powers, which were granted with limitations by the decrees of November 5, 1857. These decrees authorized the Executive in Chief to suspend some individual rights, but did not grant the president any legislative power.56 The situation worsened with various pronouncements and discussions, even within the heart of the government, which led President Comonfort to adhere to the so-called Plan of Tacubaya, written by General Felix Zuloaga from the conservative group. This plan meant the suspension of the new constitution, which had hardly been enacted in the first place. The events that led Comonfort to step down from the presidential seat are well known. As stated in Article 79 of the Constitution, the position was filled by Benito Juarez, president elected by the Supreme Court of Justice. This marked the onset of a bloody three-year civil war, which ended in 1861 with the victory of the liberals led by President Juarez, who governed with extraordinary powers, though not always within the framework of Article 29 of the 1857 Constitution.
71. The civil war ended in 1861 and later the invasion of the French army, which began in 1862, instated Emperor Maximilian of Hapsburg, who led an imperial regime that ended tragically at Cerro de las Campanas in Querétaro in 1867, with the execution by firing squad of Maximilian and two conservative generals, and the definite reestablishment of the republic. In spite of having been convinced by conservatives to come to Mexico under French protection, this emperor had liberal ideas. On April 10, 1865, he issued the so-called Provisional Statute of the Mexican Empire, which established the classic individual rights. Article 77 of this statute contained a provision to regulate states of emergency without legislative intervention, since it stated "Only by the decree of the Emperor and Imperial Representatives and when the preservation of the peace and public order so demanded it, could the enjoyment of some of these guarantees (rights) could be suspended temporarily".
72. In view of the situation in Mexico in those years, during which it was not possible to put the Constitution of 1857 in force, extraordinary situations of serious disturbances arose from the beginning. First came the internal disorder (end of 1857 to 1861) followed by foreign invasion (1862-1867). President Juarez had to run an itinerant government without any real possibility of assembling congress, but for short periods. Therefore, it was necessary to make use of extraordinary powers, which at that time were necessary and justified to defend constitutional order. Even then, as the great Mexican constitutional scholar Felipe Tena Ramírez pointed out, "sometimes there was not enough to justify it in what was foreseen by Article 29 of the Constitution of 1857". In this sense, one can look to the law issued by President Juarez on January 25, 1862, which aimed at punishing crimes against the nation, order, public peace and individual guarantees, almost all of which were punishable by the death penalty and leaving it in the hands of military authorities. Thus, the good intentions of the Constitution of prohibiting the suspension of "the guarantees that ensure the life of man" were left without being applied.57
73. With the exception of some brief periods, President Juarez's administration turned to use extraordinary powers not only during the civil war, but also at the onset of his new term with the law he issued in Veracruz, the port where he had transferred his government due to the pursuit of the conservative army, on January 21, 1861, on the state of war and of siege without having extraordinary powers. It was not until June 7th that year that the Congress granted him said extraordinary powers, which were extended several times: on May 3 and October 27, 1862. With the victory of the republic on October 27, 1867, President ended the use of the extraordinary powers and the suspension of fundamental rights. But five months later, on May 8, 1868, he again asked congress for the use of extraordinary powers, which were renewed by the same legislative body on January 17, 1870 and on December 2, 1871 (this last date was due to the rebellion led by General Porfirio Diaz).
74. However, it was during the last term of President Juarez, who died during his term in 1872, when a practice that became custom began, unduly based on Article 29 of the Constitution of 1857. According to this, congress was able to grant extraordinary powers to the Executive to legislate on matters that were not related to the state of emergency. Thus, in the mentioned congressional decree on December 9, 1871, the Executive was authorized to put in force the Criminal and Civil Codes of Procedures provisionally. The president had ordered these codes to be drawn up, without prejudice to what the congress would have to properly determine when experience counseled dictating the reforms said codes would need. After the death of President Juarez, his successor, President Sebastian Lerdo de Tejeda, used the authorization of the delegating legislative powers to promulgate the Code of Civil Procedures for the Federal District and the Baja California Territory on August 13, 1872.
75. After this, powers were openly and no longer provisionally granted to the Executive. Thus, on May 12, 1875, the two-chamber congress as of the previous year authorized President Lerdo to promulgate the Code of Criminal Procedures, as well as reforms to the organization of the Federal District courts and issue the corresponding regulating laws. The delegation of legislative powers was an attempt to disguise the violation of Article 29 of the Constitution, the requirements of which were not taken into account, and of Article 50, that prohibited consolidating powers, as pointed out by Felipe Tena Ramirez.58 The distinguished constitutional scholar Jorge Carpizo correctly believed that due to this practice of both bodies, the custom that considers the delegation of legislative powers to the Executive outside constitutional limits "corrupt and unconstitutional".59
76. Porfirio Diaz stepped into power through the so-called Tuxtepec revolution, which was nothing more than a new armed declaration that forced President Sebastian Lerdo de Tejeda's exile. With the presidential intermediary and right-hand man, General Manuel González, General Díaz was able to perpetuate his power in the succession of re-elections, until 1911 when the revolution that began the previous year forced him to step down.
77. Without the express reform of the Constitution, the congress gradually conceded more powers to the Executive, until it became a docile and tolerant instrument for General Diaz. This transformed the Executive into a real "chieftain". Latin American nations have frequently endured systems of dictatorships. As Mexican constitutional scholar Jorge F. Gaxiola has pointed out, in these nations, the need for a strong Executive has been tradition because in most of the countries that make up Latin America, order and peace has not been balanced internally, but suffered external pressure from the power granted to the head of government.60
78. The most obvious aspect of concentrating legislative powers in the Executive was made manifest by means of Congress' delegation of said powers outside the period of emergency, the only thing that justified this delegation under the terms in cited Article 29 of the Constitution of 1857, a system that begun during the administration of President Benito Juarez as mentioned above (see supra paragraphs 74-75). During the long administration of General Diaz, declaration of emergency and the suspension of fundamental rights were avoided, but the use of the delegation of legislative powers were frequent and almost normal. Thus a significant number of important provisions were issued, to be later ratified, just out of protocol, by the chambers of Congress. Even then, this practice implied a violation to Articles 29 and 50 of the Constitution, as stated above (see supra paragraph 75).
79. Supreme Court jurisprudence followed the criteria of the then Supreme Court president, the illustrious Ignacio Luis Vallarta, in several now classic sentences, such as the rulings of September 27, 1878, February 23, 1829, and January 21, 1882, in the amparo proceedings requested by Jose Maria Villa, Guadalupe Quesada de Almonte and Guadalupe Calvillo. In these proceedings, the central debate was regarding the argument that the principle of the division of powers established in Article 50 of the Constitution, by which the concentration of the three branches in the other two or one of them was prohibited. They argued that it should be understood in the sense that said fusion should be permanent, but could not be applied when a transitional delegation of legislative powers was being bid by the Congress to the Executive to issue specific provisions, reserving for Congress the power to approve the use given by said delegation.61
80. Meanwhile, an important sector of doctrine of the time justified this almost permanent delegation of legislative powers stating that through this laws and codes were issued since their study and creation would be complicated and their debates difficult and time-consuming in the chambers. It also coincided with the jurisprudence of the Supreme Court, in that said delegation was transitory and furthermore required the subsequent approval of Congress.62
81. The Constitution in force, promulgated on February 5, 1917, included in its current Article 29 that has not undergone but a single reform regarding detail on April 21, 1981, substituting the phrase "Council of Ministers" for "holders of State Ministries, Administrative Departments and the Attorney General's Office", almost literally copied the text of the same article in the Constitution of 1857, with a few additions (see supra paragraph 69). This precept states:
In the event of invasion, serious disturbance of the public peace, or any other event which may place society in great danger or conflict, only the President of the Mexican Republic, with the consent of the Council of Ministers and with the approval of the Federal Congress, and during adjournments of the latter, of the Permanent Committee, may suspend throughout the country or in a determined place the guarantees which present an obstacle to a rapid and ready combat of the situation; but he must do so for a limited time, by means of general preventive measures without such suspensions being limited to a specified individual. If the suspension should occur while the Congress is in session, the latter shall grant such authorizations that it deems necessary to enable the Executive to meet the situation. If the suspension occurs during a period of adjournment, the Congress shall be convoked without delay in order to grant them.
82. During the term of the current Mexican constitution, only once has the suspension of certain fundamental rights been decreed based on Article 29 of the Constitution. This happened in 1942 due to Mexico's state of war with the "Axis" (Italy, Germany and Japan) and was lifted at the end of said world war in 1945. At the behest of the president, the Congress issued the legislative decree of June 1, 1942, which authorized the suspension of several human rights set forth in the constitution; stipulated the state of emergency (for the duration of the state of war with a possible extension of thirty days after its conclusion); and granted the Executive powers to regulate said suspension of rights, impose the modifications deemed indispensable to defend the nation effectively in all the branches of public administration. Backed by this authorization, the so-called Law of General Provisions, which regulated the congressional legislative provisions, was issued on June 13, 1942.
83. However, the important issue in this situation of emergency consisted in the Executive's issuing, by the delegation of the congress, of several legal provisions even though some of them were not related to the state of emergency, but to matters not concerned with the emergency itself. Thus, there was dual legislation during that period, in which, depending on the matters considered standard, some laws were issued by Congress and others by the executive invoking the legislative delegation based on the application of Article 29 of the constitution. Here there was a debate in doctrine and jurisprudence on the constitutionality of the delegation of powers to legislate matters that were not related to the state of emergency. In some rulings, the Supreme Court deemed unconstitutional the Executive's issuance of legislative provisions with the authorization of congress, as mentioned on June 1, 1942, based on Article 29 of the Constitution, when the enacted law had nothing to do with the emergency (amparo proceedings requested by Fernando Coronado, ruled on December 6, 1944).63
84. What is true is that based on an age-old habit of powers delegated by congress without any direct tie to the emergency regulated by Article 29 of the Constitution, the Executive issued several provisions between the state of emergency between 1942 and 1945. This really corresponded to the Congress, which continued to work normally since they were not tied in with the emergency. Doctrine pointed out that some of the legislative provisions that went beyond the authorization of Congress given on June 1, 1942, were unconstitutional.64
85. In its legislative decree of September 28, 1945, that lifted the suspension of the rights authorized in June 1942, Congress carried out the ratification of various legislative statutes issued by the Executive during the emergency, but that should survive for not being related to the emergency. It stopped ratifying the issued provisions with terms limited to said state of emergency and those which would have been expressly declared that were based on the rights suspended during that period.65 By doing this, Congress validated and granted permanence to an unorthodox delegation, to say the least, that was unduly used by the Executive on invoking the authorization granted by the legislative branch based on Article 29 of the Constitution.
86. It is true that the congress' habit of granting extraordinary legislative powers to the Executive without grounds in Article 29 of the Constitution was consolidated during the legal effect of the Constitution of 1857 (see supra paragraph 79), came up again in the early decades with the entry into force of the Constitution of 1917. During this time several statutes were issued under the powers delegated under normal circumstances.66 As also happened in the 19th century, Supreme Court jurisprudence accepted the validity of this derogated habit of the current Article 49 of the Constitution on the division of powers, which is very similar to Article 50 of the Constitution of 1857 (see supra paragraph 79) and was adopted by mutual agreement between the congress and the Executive. At that time it also extended to state governments. However, now, the high court's reasoning was scrutinized more than it was in the time of Ignacio Luis Vallarta.
87. The court precedent that appears under number 481 in the appendix to Volume XCVII of the Semanario Judicial de la Federación, but that comes from the first Supreme Court rulings under the current Constitution, refers to the congress's delegation of extraordinary powers to the Executive in order to legislate. In the opinion of the highest court, this did not mean combining two branches in one since all the attributes that correspond to congress are not passed on to the Executive. Nor does it mean that a general delegation of the Legislative Branch to the Executive branch, but cooperation or assistance from one branch to another.
88. In precedent 482 of the same appendix, which although refers to a local problem, is grounded on a generic principle. Based on this, the court held that the delegation of legislative powers to the Executive did not violate the principle of division of powers since, due to its exceptional nature, this delegation resulted in the fact that the Legislative Branch on granting it and the Executive Branch for using it, would do so in the precise measure and with the fitting precision so as not to overstep the boundaries of the emergency.67
89. This jurisprudence, upheld by the Supreme Court did not receive the approval of doctrine, as had happened during the regime of General Diaz, since author Aurelio Campillo categorically concluded at that time that "empowering the president to become a legislator under normal circumstances is something that is outside the political philosophy of the doctrine and of our Constitution, which indisputably prohibits it".68
90. However, an interesting phenomenon took place that could hardly have occurred in another constitutional statue and that consists in the partial repeal of the derogated habit referred to by means of an express addendum to the constitutional text, aptly deemed by the illustrious Mexican jurisconsult Antonio Martinez Baez to be a "partial repeal by written law of a habit that had partially repealed a written law".69
91. We are referring to the addition made to Article 49 of the Constitution by the legislative decree published on August 12, 1938, which added to the already explicit text of this fundamental precept, the following phrase: "In no other case (the suspension of the rights in Article 29 of the Constitution) may extraordinary powers to legislate may be granted to the Executive". With this addition, any possible delegation of legislative powers to the Executive under normal circumstances (even when they were improperly deemed "extraordinary powers") was eliminated. However, through one of those paradoxes that abound in the political life of Mexico, when the complications of modern life came to demand more involvement of the Executive in legislative tasks, the same ones were expressly prohibited since as said above with the strongly expressed by constitutional scholar Antonio Martinez Baez, no sooner had the addition to Article 49 of the Constitution been approved under the initiative of President General Lázaro Cárdenas, the selfsame holder of the Executive Branch felt wistfulness for those delegated legislative powers that he had cut off, he believed, for ever.70
92. Due to the economic transformations towards industrialization that Mexico underwent in the 1950s, Article 49 of the constitution was again modified. Its final part was drafted as follows: "In no other case, except as disposed in the second paragraph of Article 131, may extraordinary abilities to legislate be granted". This last draft again falls into the error of describing the delegation of legislative powers in certain matters as "extraordinary powers" when they are not really so.71
93. This second paragraph of Article 131 of the Constitution was introduced in the same decree of March 28, 1951. It establishes the delegation of ordinary legislative powers of Congress to the Executive in various economic matters when the Executive himself deems it urgent to regulate foreign trade, the nation's economy, the stability of national production and carrying out any other purpose to benefit the nation. It also states that, on sending the tax budget to congress each year, the Executive should present to its approval any use he may have made of the powers granted. This precept was developed by the so-called "Regulatory Law of the Second Paragraph of Article 131 of the Political Constitution of the United Mexican States", promulgated on January 2 of that year.
94. We will not delve into the use of delegated powers established in the second paragraph of Article 131 of the Constitution since the situation has changed with the economic openness carried out in the 1980s, due to both the loss of the absolute majority of representatives of the official party, that is the Institutional Revolutionary Party, in the legislative chambers since 1994, and the political plurality that was highlighted with the 1996 electoral reforms. What is true is that the Mexican Constitution institutes the delegation of ordinary legislative powers to the Executive.72
95. An important aspect in terms of the situations of emergency regulated by Article 29 of the constitution refers to the admissibility of the procedural instrument for protecting fundamental rights in Mexican statutes, that is amparo proceedings, with the known explanation that said procedural mechanism does not only protect the human rights established in the constitution, but that it is also the means of last appeal of all legal rulings, of all the judges and local and federal courts. It also includes appeals to legislative provisions that are considered unconstitutional. In other words, the highest procedural institution in Mexico has five proceedings, some of which are to check ordinary legality and only some can be considered to check constitutionality. In summary, we can state that amparo proceedings include: a) in the first place, the protection of personal freedom and integrity by means of a condensed procedure similar to that of habeas corpus, and therefore it has been defined as an amparo of personal freedom or and amparo-habeas corpus; b) it also covers, as said before, the appeal of unconstitutional laws, in the sector called amparo against laws; c) a third process, numerally the most important one, is essentially identified with the remedy of casacion, since it is an extraordinary appeal for annulment and has therefore been called a legal amparo or amparo-casacion; d) some positions in which administrative acts or rulings cannot be fought in administrative-law courts of either a federal nature (Tax Justice and Administrative Court) or in the Federal District and various states, it can be contested immediately through amparo proceedings. This sector has been called amparo regarding court actions under administrative law, as sector in which, when fundamental rights are affected directly, is included in the amparo in the strictest sense against actions; e) and the so-called social agrarian amparo, when it is filed by peasants under the regime of agrarian reform (ejido members, commune members and the corresponding sectors of society).73
96. Of all of these proceedings, only those that refer to direct appeal of the unconstitutionality of actions, rulings or general norms, that is, the sectors of the amparo-habeas corpus; the administrative amparo when actions or rulings that directly affect fundamental norms are contested, and the amparo against laws, can be considered protectors of fundamental rights, those embodied in both the Mexican Constitution and the human rights treaties ratified by the Executive and approved by the Senate under the terms of Article 133 of the Constitution and which have been incorporated into Mexican internal law. Meanwhile other processes should be considered means of last resort to appeal before federal courts and should therefore be reckoned as a check of ordinary legality. Both aspects, check of constitutionality and of legality, were separated, in terms of their jurisdiction matter to recognize them, by the constitutional reforms of 1988 and 1995. The first corresponded as a last resort before the Supreme Court and the other, to the Collegiate Circuit Courts.74
97. In Article 18 of the above-mentioned Law of General Provisions of June 13, 1942 (see supra paragraph 82) dealt with the lack of legal grounds for amparo proceedings before federal courts for amparo proceedings when it filed claim against a provision of emergency laws or the actions derived from said laws. However, as mentioned above (see supra paragraph 83), the Supreme Court stated that legislative provisions and the corresponding actions could be appealed, even when they had been issued by the Executive using the powers delegated based on the authorizations granted by Congress in its law of June 1, 1942, when it is not directly linked to any of the rights suspended due to the state of emergency. Therefore, it is necessary to examine the consistency of said legislative provisions and the actions of its application with Article 29 of the constitution.75 Doctrine of that time reached a similar conclusion. Known Mexican legal scholar José Campillo Sainz pointed out then that the prohibition of amparo proceedings in Article 18 of the cited Law of General Provisions could only be interpreted in the sense that the amparo itself was only inadmissible in terms of the rights that were expressly suspended, but not in terms of the other ones. Furthermore, the lack of legal grounds of the amparo should not be admitted against undue application of emergency provisions.76
98. As mentioned above, the only time the state of emergency was expressly invoked under Mexico's present constitution, based on Article 29 of the Constitution, that is, from 1942 to 1945, because of the state of war between Mexico and Germany, Italy and Japan during the Second World War. Even then, in certain situations of internal conflict, which while transcendent cannot be deemed as having been of serious danger or conflict, such as the 1968 movement in which high school and university students participated, and during the repression of some guerilla movements in the 1960s, certain rights were restricted and many of them were violated without grounds in an express declaration of state of emergency.
99. From this we can conclude that while Article 29 of the Constitution does not establish very precise criteria on the rights that can be suspended during states of emergency, when it did serve as a basis for an express declaration of emergency, it did not incur in the excesses of authoritarian governments that suspend not only some rights but the legal effects of the Constitution itself, and even the dissolution of the legislative body, since the country continued to run normally with the exception of certain restrictions. However, in our concept, the regulation of states of emergency has changed in Mexican statutes since the president ratified and the Senate approved various international human rights agreements, especially the American Convention on Human Rights, which was published on May 7, 1982 and the United Nations Covenant on Civil and Political Rights published on May 20th.77 Thus, Mexican statutes have incorporated these, among others, in its internal statutes, Article 27 of the first and Article 4 of the second, as seen above (see supra paragraphs 57 and 47, respectively), and regulate Mexico's constitutional precepts regarding emergency situations more precisely. Therefore, in the event of a State declaration of emergency, in addition to the guidelines in Article 29, the mentioned international precepts must be followed since they are internal provisions from an international source and have been adapted with certain obligations of said conventions along with certain international bodies.
100. Along this line of thought, even when said Article 29 of the Constitution does not stipulate the rights that cannot be suspended, as of the ratification of the mentioned international instruments, those listed in Article 4 of the United Nations Covenant of Civil and Political Rights and Article 27 of the American Convention, cannot be affected as a whole. Moreover, the admissibility of amparo proceedings can no longer be prohibited since it is the only instrument that can be used to protect these rights. Its purpose is also for Federal courts to be able to examine whether emergency provisions and their application comply with Article 29 of the Constitution, precepts from international sources and the principles identified by international bodies on legality, proclamation, notification, time limitation, exceptional threat, proportionality and non-discrimination, as well as compatibility, concordance and complementarity of the various norms of international law. These last are established in certain documents approved by the United Nations (see supra paragraphs 50-53). The interpretation that the Inter-American Court of Human Rights has made in its advisory opinions eight and nine mentioned above (see supra paragraphs 61-62) need to be followed, even more so since the Mexican government has expressly adhered to the legal or judicial jurisdiction of the Inter-American Court as of December 16, 1998.78
VI. STATES OF EMERGENCY AND INTERNATIONAL TERRORISM
101. Since the current issue of international terrorism and its effects on internal constitutional statutes and international law would require a monographic study that we are unable to do at this time, we should marginally point out some brief considerations on the influence said phenomenon has had on regulating states of emergency, which is the matter of this cursory investigation.
102. There is no doubt that as of the striking events of September 11, 2001 that had an impact on the United States of America (the continental territory of which had never suffered an attack of this nature) as well as on the entire world, a series of legal transformations began in both that country and several others aiming at fighting against international terrorism, which has not been stopped, if we take into account the recent and terrible attack that took place in Madrid on March 11, 2004. Internationally, studies and declarations have begun in the heart of the United Nations on this situation that so concerns the international community of our times. As an example we can mention Ruling 1373, adopted by the Security Council on September 28, 2001 (in view of the terrifying attacks in New York a few days earlier). This ruling created a Counter-Terrorism Committee that has the purpose of regularly examining the efforts and practices of each country regarding this matter.
103. According to the pointed observations of notable French legal scholar Jacques Robert, there is no single type of terrorism, but various modalities that should be approached with the proper measures, those that cannot be generalized, but he recognizes that the legal regulation against terrorism that has increased in recent years as something that could not be any other way. However, the instruments that have been established could have unfavorable consequences (the author calls them evil), since it is possible to fall in a kind of security frenzy that could result in an excessive number of measures that are introduced or that could go from emergency legislation to other emergency regulations that could undermine the essential principles that are the basis of democratic regimes.79
104. Professor Robert also points out the proliferation of special legal previsions that have been recently issued to fight internal and international terrorism, among which are the prolonged surveillance of suspects (Germany, Great Britain, Italy and Spain), the use of the maximum penalties established by criminal law (Spain), centralized processes (Spain), a single court that replaces ordinary judges (Great Britain) and the reduction of sentences for those who have repented (Germany, Italy, Great Britain and France), among others. The author correctly believes that we have gone almost unnoticeably from repression to prevention, but it is necessary to carefully analyze the deeper causes of the new terrorism that goes beyond borders and continents and search our souls.80
105. On the other hand, we should also take into account the recent in-depth analysis carried out by the distinguished Italian constitutional scholar Giuseppe de Vergottini on the repercussions that international terrorism has had on the concept of war (which is one of the most serious aspects in the regulation of states of emergency and that has altered several principles and guidelines of said states of emergency that have also been drawn up internationally, see supra paragraphs 45 et seq.). As the author states, the events that happened on September 11, 2001 have had the effect that both in the United States of America and the States of the Atlantic Alliance (NATO) members the value of security coincides with survival, and this last will end by obviously prevailing over the value of peace. Furthermore, it has had repercussions on the legislative modifications that have been adopted in many European statutes and have altered the normal running of governments and legislative bodies, in the sense that there is a more uncertain and risky perspective that makes it difficult to reach an agreement on the obvious demands of survival in the face of terrorist attacks and the also essential demands of citizens to know and share such serious decisions. Moreover, these legislative modifications imply restrictions on the citizens' fundamental rights, as happens in times of war, and that could even affect the concept itself of liberal democracy.81
106. The most extreme of these transformations came about in the legislation of the United States of America, as pointed out above (see supra paragraphs 5 et. seq.) since it was the country most affected by international terrorism. It was therefore understandable that from the general alarm and anxiety in the US population that were initially generated by the oft-mentioned attacks of September 11, 2001, legislative norms have been issued and practices considered excessive have been carried out that could have later been tempered in a less urgent period. However, not only have the drastic provisions of the Patriot Act of 2001 been maintained, but the number of security measures have increased, as have other examples we can quote such as prolonged incarceration without legal guarantees to suspects of possible terrorist acts in the United States of America and the indefinite legal situation of those detained at the US naval base in Guantánamo, Cuba, as a result of the war in Afghanistan.82 Furthermore, the US government has carried out military campaigns that have been approved by some of the governments that have collaborated in them, but has also found opposition from other countries. We refer to the state of war against the governments of Afghanistan and of Iraq, by means of a new practice on the so-called preventive war that alters the principles established by the international community and the United Nations Security Council regarding the legitimate defense as a justifiable cause for military operations and in particular the general principle of the proscription of a unilateral war as an instrument to solve international conflicts.83
107. As can be seen, the most recent constitutional and international doctrine has shown concern for the recent changes in legislation and in the practice that aims at fighting international terrorism since changes have been made in the regulation of states of emergency in that concerning the bodies empowered to issue the respective norms and their effects, which instead of being temporary can be extended indefinitely, because this phenomenon also seems to extend itself indefinitely. What are more unsettling are the effects on the fundamental rights both internally and internationally in view of the issuance of anti-terrorist laws and their enforcement. According to the principles and guidelines that had been reached in regulating the states of emergency that had been studied in this modest work, an acceptable balance had been reached between the declarations and exercise of states of emergency in order to face situations of serious danger or conflict in terms of protecting human rights, which should only be affected to the degree needed to overcome emergency situations. With the events of recent years, these rights could once again be threatened.
108. First. The issue regarding states of emergency has evolved historically since internal and external conflicts that placed the political community in danger have existed since antiquity. Therefore it was necessary to create instruments to face this situation for a certain period of time. Thus, during the Roman Republic, a commissarial dictatorship was established. This consisted of, at the behest of the Senate, the Consul named a public official for a period of six months and granted said official the authority needed to face the emergency. However, this mandate was to end, even if it was before the end of said period, when the situation returned to normal, even when -even in those days- it exceeded its temporary stage to become tyrannical, as happened with Sulla and Caesar. This occurrence was constantly repeated both during the Middle Ages and in the absolutist monarchies of Continental Europe during the Renaissance.
109. Second. With the coming of classic constitutionalism, which began with the War of Independence in the United States of America and the French Revolution on European Continent, the procedures of the ancient regime were substantially modified. Thus, a new era began with the establishment of constitutional public order essentially characterized by being repressive in the face of previous preventive practices, legal instead of arbitrary, and finally effective as regards the frequent inefficiency seen in the previous authoritarian regime. Therefore, principles of emergency powers, however minimal, were introduced in the first modern constitutions. This later became legislation to face internal insurrections and external threats.
110. Third. Due to the excesses carried out during the French Revolution, especially in its last Jacobin stage, time in which the constitutional and legislative provisions on the state of emergency were not applied, the constitutions issued in the late 19th century incorporated the mandatory intervention from the legislative branch to authorize and supervise the declarations of exception or of emergency to be exercised by the Executive, who with the support of law enforcement agencies, including the army and in extreme cases parliament itself could declare martial law, in which civil authorities were replaced by military ones.
111. Fourth. As to the legal regulation of states of emergency in Latin America, we can assert that it has translated into a tragic experience in this region. These events prevailed not only in the 19th century, which was very prolific in terms of the existence of leaders, especially military ones, de facto governments and authoritarian regimes, but also in the 20th century, since even in the 1970s and 1980s, there was a prevalence of military dictatorships that frequently used declarations of emergency to rescind not only the basic fundamental rights, but also to suppress or modify the provisions of their respective Constitutions. Doctrine has held that there are two areas for employing declarations of emergency or of exception, also known as the suspension of constitutional rights, martial law, immediate security measures, among others: one that can be considered pathological (which unfortunately has been used the most, especially by military dictatorships) since its purpose was not to preserve a democratic regime in these extraordinary situations, especially in terms of serious internal conflicts, but had the exact opposite as its goal, that is, the eradication of constitutional order, which was replaced with legislation that violates the fundamental principles and values issued directly by the Executive.
112. Fifth. In view of a return to democratic regimes in several countries that had suffered under authoritarian governments, the other sector that has become stronger in recent years is characterized by the fact that situations of emergency or of exception are instituted according to the procedures established by constitutional provisions, precisely for the purpose of upholding democratic constitutional provisions. Doctrine has graphically called this last aspect constitutional dictatorship. In reviewing the rules of states of emergency in Latin American statutes, it is possible to see many differences, first of all in the names used; the reasons that can be used to ground them; the procedure and forms adopted; the authorities that can order and apply them, that is, the Executive, the Legislative branch and the possible participation of judges and courts. Despite this variety, it is possible to see a tendency towards the judiciability of declarations and applications of states of emergency initiated by the Supreme Court of Argentina in the 1970s, which has slowly been consolidated. Therefore, in more recent constitutions and reforms, it is possible to see the establishment of powers to jurisdictional bodies to assess both the admissibility and the scope of declarations of emergency, which should be proportional to the situations of emergency, as well as the constitutionality and legality of its concrete application.
113. Sixth. Despite the considerable differences among Latin American statutes, they have undergone a certain harmonization due to the increasing influence and application of international laws, establishing principles, declarations and norms for regulating states of emergency. Most Latin American countries have approved various covenants and treaties that establish the guidelines on states of exception and incorporated them into their internal statues, which in turn have gradually attained a higher rank. Along these lines we can highlight that most Latin American countries, if not all of them, have signed the United Nations Covenant on Civil and Political rights of December 1966. Some (including Mexico, just recently) have also ratified its Optional Protocol on being subject to the recommendations made by the United Nations Human Rights Committee. Therefore, they are subject to the application of Article 4 of said covenant, which regulates states of emergency. The same can be said of the American Convention on Human Rights, signed in San Jose, Costa Rica, in 1969, whose Article 27 establishes the guidelines for states of emergency, in addition to the norms established by the Hague Conventions and the Protocol of 1954, and the Geneva conventions of 1864 and 1925 on international humanitarian law, which is the one used during both international and internal conflicts.
114. Seventh. The body of norms, principles and values of international law that should be applied internally by Latin American governments is vast due to the fact that a large part of it has been incorporated into its national legislation. Therefore it should be considered internal law from an international source that has been adapted in its statutes in the area of states of emergency. To this, it is necessary to add the studies carried out by the United Nations in this field, especially those carried out by United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (currently the Sub-Commission on the Promotion and Protection of Human Rights) experts Nicole Questiaux, presented in 1982, and Leandro Despouy, concluded in 1998. These documents minutely analyze the basic principles of states of emergency according to international law. Furthermore, it is necessary to take into account advisory opinions eight and nine of the Inter-American Court of Human Rights, ruled on January 20 and October 6, 1987, respectively, that interpret the norms of Article 27 of the American Convention on Human Rights in the sense that states of emergency cannot suspend the remedies of habeas corpus and of amparo, or the basic principles of due process of law, since they are the ideal instruments to guarantee the enjoyment of the fundamental rights that the precept of the convention itself considers non-derogable during said states of emergency.
115. Eighth. In view of the above, it is necessary to study this matter in depth, since it is not enough to analyze the constitutional and legal provisions in constitutional and legal statues currently in force in Latin America. It is also important to adjust them to contemporary international law, which has modified and adapted said national precepts. Without the knowledge of international norms, principles and values, many of which have been incorporated internally, it is not possible to know the precise legal instruments of states of emergency that are essential to preserve democratic constitutional order and assume a fundamental nature to avoid Latin America's tragic experience when said states of emergency have been used to undermine or even destroy said constitutional order.
116. Ninth. It can briefly be stated that terrorism, which has increased over recent years and has acquired an international nature, especially after the terrible attacks at the Twin Towers in New York City on September 11, 2001, has had repercussions both nationally and internationally on legislation and the exercise of states of emergency by means of an anti-terrorist legislation that has brought modifications and changes in both spheres. These changes can affect the delicate balance that had been reached in the regulation of states of emergency, in that there is a growing danger that anti-terrorist measures undermine citizens' fundamental rights and even those of nations. This is more and more evident since international rules on war conflicts have been altered with the introduction of the new practice of preventive war in legitimate defense, which changes the previous United Nations rules on the legitimate use of international force. Moreover, internally, certain norms and practices on states of emergency and even of the relationship among the constitutional bodies that should dictate and apply them have been amended. Thus, it is possible to say that terrorism has had a perverse influence that is necessary to analyze in order to correct as much as possible the double negative effects it has generated and that tend to increase.
* Translated by Carmen Valderrama Ramos.
** Researcher Emeritus at the Legal Research Institute and Member of El Colegio Nacional [National College].
1 Cfr. Schmitt, Carl, La dictadura. Desde los comienzos del pensamiento moderno de la soberanía hasta la lucha de clases proletaria, trans. by José Díaz García, Madrid, Alianza Editorial, 1985, pp. 33 and 34; Arriola, Juan Federico, Teoría general de la dictadura. Reflexiones sobre el ejercicio del poder y las libertades políticas, 2nd ed., Mexico, Trillas, 2000, pp. 19-22.
2 Cfr. Schmitt, Carl, op. cit., previous note, pp. 47 and 48.
3 Cfr. Cruz Villalón, Pedro, El estado de sitio y la Constitución. La constitucionalización de la protección extraordinaria del Estado, Madrid, Centro de Estudios Constitucionales, 1980, pp. 21-58.
4 Cfr. ibidem, pp. 59-120.
5 Cfr. Swisher, Carl Brent, El desarrollo constitucional de los Estados Unidos, trans. by Hugo Charny, Buenos Aires, Editorial Bibliográfica Argentina, Vol. I, pp. 243-273, 525-584 and 869-906.
6 Cfr. Corwin, Edward S., The Constitution and What it Means Today, 14th ed., 6th reprint, revised by Harold W. Chase and Craig R. Ducat, Princeton University Press, 1992, pp. 266-267.
7 Cfr. Cruz Villalón, Pedro, op. cit., note 3, pp. 367-445.
8 Cfr. Biscaretti di Ruffia, Paolo, Introducción al estudio del derecho constitucional comparado, trans. by Héctor Fix-Zamudio, Mexico, Fondo de Cultura Económica, 1996, pp. 153-444.
9 Cfr. Gros Espiell, Héctor, "Medidas prontas de seguridad y delegación de competencias", Revista de la Facultad de Derecho y Ciencias Sociales, Montevideo, 1966; id. and Zovatto G., Daniel, "La regulación jurídica internacional de los estados de emergencia en América Latina", Coloquio sobre la protección jurídica internacional de la persona humana en las situaciones de excepción, Mexico, International Red Cross Committee-Inter-American Institute of Human Rights, 1987, pp. 29-38 in particular.
10 Cfr. Valadés, Diego, La dictadura constitucional en América Latina, Mexico, UNAM, 1974, esp. pp. 123-154; García Belaúnde, Domingo, "Regímenes de excepción en las Constituciones latinoamericanas", in various authors, Normas internacionales sobre derechos humanos y derecho interno, Lima, Comisión Andina de Juristas, 1984, pp. 4-111.
11 Cfr. Gros Espiell, Héctor, "La defensa de la Constitución en el Uruguay", in various authors, La Constitución y su defensa, Mexico, UNAM, 1974, pp. 619 et seq.
12 This is based on the most recent collection, edited by López Guerra, Luis and Aguiar de Lucque, Luis, Constituciones de Iberoamérica, Madrid, Centro de Estudios Políticos y Constitucionales-Unión Iberoamericana de Colegios de Abogados-Ilustre Colegio de Abogados de Madrid, 2001.
13 A detailed analysis of all these modalities and nuances has been carried out by Valadés, Diego, op. cit., note 10. This notable Mexican constitutional scholar's sharp comparative study is summarized in the tables included at the end of his work.
14 Loewenstein, Karl, Legislación para la defensa política en las repúblicas americanas, Montevideo, 1947, pp. 100 and 101.
15 Linares Quintana, Segundo, "La suspensión de las garantías constitucionales en la teoría y la práctica argentina", La Ley, Buenos Aires, September 14, 1945; id., Tratado de la ciencia del derecho constitucional argentino y comparado, 2nd ed., Buenos Aires, Plus Ultra, 1980, Vol. VI, pp. 307-561.
16 García Belaúnde, Domingo, op. cit., note 10, pp. 4-111.
17 Cfr. Fix-Zamudio, Héctor, "La protección procesal de los derechos humanos en América Latina y las situaciones de emergencia", El Foro, Mexico, April-June 1973, pp. 63-75 and 29-45.
18 Cfr. Gros Espiell, Hector et al., "Los estados de excepción en Latinoamérica y su incidencia en la cuestión de derechos humanos en casos de disturbios internos", in various authors, Estados de emergencia en la región andina, Lima, Comisión Andina de Juristas, 1987, pp. 21-56.
19 Cfr. Cafferena de Giles, Elena, El recurso de amparo frente a los regímenes de emergencia, Santiago de Chile, 1957, pp. 21-30; García Belaúnde, Domingo, El habeas corpus en Perú, Lima, Universidad Nacional Mayor de San Marcos, 1979, pp. 136-142.
20 Cfr. Vocos Conesa, Eduardo, "El estado de sitio en la jurisprudencia de la Corte Suprema desde 1853 hasta el 30 de julio de 1970", Jurisprudencia Argentina, Buenos Aires, September 1, 1970, pp. 57-73.
21 Cfr. Linares Quintana, Segundo V., "Control judicial de los gobiernos de facto", in various authors, Festschrift für Karl Loewenstein [Homage to Karl Loewenstein], Tübingen, J. A. B. Mohr (Paul Siebeck), 1971, pp. 400-406.
22 Cfr. Hernández, Antonio María, Las emergencias y el orden constitucional, Mexico, UNAM-Rubinzal-Culzoni Editores, 2003, pp. 22-28.
23 Cfr. Linares Quintana, Segundo V., Tratado de la ciencia del derecho constitucional argentino y comparado, 2nd ed., Buenos Aires, Plus Ultra, 1979, Vol. VI, pp. 408 and 409.
24 Cfr. Saguës, Néstor Pedro, "Control judicial de la declaración de estado de sitio y de los arrestos correspondientes", La Ley, Buenos Aires, December 23, 1985, pp. 1-3.
25 Cfr. Bidart Campos, Germán, "Lo viejo y lo nuevo en la jurisprudencia actual de la Corte sobre el estado de sitio", El Derecho, Buenos Aires, February 4, 1986, pp. 1-3.
26 Cfr. Hernández, Antonio María, op. cit., note 22, pp. 29-31.
27 Cfr. Pérez Hualde, Alejandro, Decretos de necesidad y urgencia. Límites y control, Buenos Aires, Depalma, 1995, pp. 110 and 111.
28 Cfr. ibidem, pp. 263-283.
29 Cfr. Hernández, Antonio María, op. cit., note 22, pp. 71-152.
30 Cfr. Nadorff, Norman J., "Habeas Corpus and the Protection of Political and Civil Rights in Brazil; 1964-1978", Lawyer of the Americas, Autumn 1982, pp. 297-333.
31 Cfr. on Article 215 of the Constitution of 1946: Pontes de Miranda, Comentarios a Constituiçâo de 1946, 3rd ed., Rio de Janeiro, Borsoi, 1960, Vol. VI, pp. 466 and 467.
32 Cfr. Silva, José Alfonso da, Direito constitucional positivo, 23rd ed., São Paulo, Malheiros Editores, 2003, pp. 740-750.
33 Cfr. García Belaúnde, Domingo, op. cit., note 10, pp. 90-95.
34 Cfr. Restrepo Piedrahita, Carlos, Las facultades extraordinarias, Bogota, Universidad Externado de Colombia, 1973, in particular pp. 153-259; Sáchica, Luis Carlos, Constitucionalismo colombiano, 7th ed., Bogota, Temis, 1983, pp. 207-220; Gallon G., Gustavo, "La experiencia colombiana en los estados de emergencia y la viabilidad de su control internacional, in various authors, op. cit., note 18, pp. 79-92.
35 The states of exception in the Colombian Constitution of 1991 and its legal interpretation.
36 Cfr. Fix-Zamudio, Héctor et al,. "La regulación jurídica interna de los estados de excepción en el derecho constitucional latinoamericano comparado", pp. 10-17.
37 Cfr. Gros Espiell, Héctor and Zovatto G., Daniel, "La regulación jurídica...", cit., note 9, pp. 29-56.
38 Cfr. Cançado Trindade, Antonio Augusto, "La jurisprudence de la Cour Internatinale de Justice sur les droits intangibles - The Case Law of the International Court of Justice on Non-Derogable Rights", in Prémont, Daniel, Droits Intangibles et Ëtats d'Exception - Non-Derogable Rights and States of Emergency, Bruxelles, Ëtablissements Émile-Bruylant, 1996, pp. 53-71 and 73-89, respectively. On the concept of ius cogens see the classic book by Gómez Robledo, Antonio, Ius Cogens International. Estudio histórico-crítico, 2nd ed., Mexico, UNAM, 2003.
39 Cfr. Swinarski, Christophe, Introducción al derecho internacional humanitario, San Jose, Costa Rica, International Committee of the Red Cross-Inter-American Institute of Human Rights, 1984; id., Principales nociones e institutos del derecho internacional humanitario como sistema internacional de protección de la persona humana, San Jose, Costa Rica, Inter-American Institute of Human Rights, 1990; Peytrignet, Gerard, "Sistemas internacionais de proteçâo da pessoa humana o direito internacional humanitario", in various authors, Tres vertientes da proteçâo internacional dos direitos da pessoa humana. Direitos humanos, direito humanitario, direito dos refugiados, San Jose, Costa Rica-Brasilia, Inter-American Institute of Human Rights-International Committee of the Red Cross and the United Nations High Commissioner for Refugees, 1996, pp. 125-215; Plattner, Denise, "Droit International Humanitaire et droits de l'homme intangibles ou non susceptibres de derogation-International Humanitarian Law and Inalienable or Non-Derogable Rights", in Prémont, Daniel, op. cit., previous note, pp. 333-348 and 349-363, respectively.
40 The cited precepts uphold: Article 6, the right to life. Article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment; Article 8 (paragraphs 1 and 2) prohibits slavery and servitude. Article 11 establishes that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. Article 15, prohibits holding any person guilty on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Article 16 regulates the right to recognition everywhere as a person before the law. Article 18 establishes the right to freedom of thought, conscience and religion, as well as the respect for the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions.
41 Cfr. Article 40 of the Covenant of Civil and Political Rights essentially establishes that the States Parties undertake to submit reports on the measures they have adopted which give effect to the rights recognized in said covenant, and on the progress made in the enjoyment of those rights. It also establishes the manners in which said reports should be adopted and that they must be transmitted to the Human Rights Committee for consideration. Regarding the Human Rights Committee's study of said reports in the light of Article 4; cfr. McGoldrick, Dominic, The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford, Claredon Press, 1996, pp. 302-317.
42 Cfr. the collected work edited by Carbonell, Miguel et al., Derecho internacional de los derechos humanos. Textos Básicos, Mexico, Porrúa-Comisión Nacional de Derechos Humanos, 2002, pp. 260-261. It should be noted that the General Comment cited above was taken during the 13th Session of the Human Rights Committee in 1981.
43 Cfr. Humprey, John P., "The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities", The American Journal of International Law, Vol. 62, pp. 869-888.
44 Document: Etude sur les conséquences pour les droits de l'homme des developments concernants les situations dites d'Etat de Siége ou d'Exception, E/CN 4/Sub.2/1982/15.
45 Cfr. Fix-Zamudio, Héctor, "Los organismos jurisdiccionales de solución de controversias jurídicas internacionales y comunitarias", in various authors, Héctor Gros Espiell Amicorum Liber. Persona humana y derecho internacional, Personne humaine et droit internacional, Human Person and International Law, Bruxelles, Bruylant, 1997, Vol. I, pp. 337-374. The International Criminal Court, which has recently begun its running, should be added to the above.
46 Cfr. Despouy, Leandro, Los derechos humanos y los estados de excepción, Mexico, UNAM, 1999, pp. 25-45.
47 Cfr. Meléndez, Florentín, La suspensión de los derechos fundamentales en los estados de excepción según el derecho internacional de los derechos humanos, San Salvador, Criterio, 1999, pp. 90-108.
48 Cfr. Despouy, Leandro, op. cit., note 46, pp. 47-54.
49 The non-derogable precepts quoted refer to Article 2 on the right to life; Article 3 prohibiting torture or inhuman or degrading treatment or punishment; Article 4, paragraph 1, states that no one shall be held in slavery or servitude; and Article 7, in its two paragraphs, establishes that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed, nor shall a heavier penalty be imposed that the one that was applicable at the time the criminal offence was committed. However, this article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations. Cfr. Cohen-Johnathan, Gerard, La Convention Européene des Droits de l'Homme, Aix-en-Provence-Paris, Presses Universitaires d'Aix-Marseille-Economica, 1989, pp. 556-566.
50 Cfr. La función del Poder Judicial en los sistemas constitucionales latinoamericanos, Mexico, UNAM, 1977, p. 202.
51 Cfr. among others, Zovatto R., Daniel, "La interpretación del artículo 27 de la Convención Americana sobre Derechos Humanos en las opiniones consultivas de la Corte Interamericana de Derechos Humanos", Revista del Instituto Interamericano de Derechos Humanos, San Jose, Costa Rica, No. 7, January-June 1988, pp. 41-65.
52 Cfr. The procedural instrument that should prevail in states of emergency has been examined by Meléndez, Florentín, op. cit., note 47, pp. 109-134.
53 Cfr. the documented comparative study regarding the influence of the Inter-American System for the Protection of Human Rights in Latin America, in Ayala Corao, Carlos M., "Recepción de la jurisprudencia internacional en los derechos humanos por la jurisprudencia constitucional", in various authors, Jurisdicción constitucional en Colombia. La Corte Constitucional 1992-2000 Realidades y perspectivas, Santa Fe de Bogota, Escuela Judicial Rodrigo Lara Bonilla-Konrad Adenauer Stiftung, 2001, pp. 117-192.
54 Cfr. Tena Ramírez, Felipe, "La suspensión de garantías y las facultades extraordinarias en el derecho mexicano", Revista de la Facultad de Derecho de México, Nos. 25-28, January-December, 1945, pp. 113-123.
55 Cfr. on the debates about approving this precept in the Constitutional Congress of 1856-1857, see various authors, Derechos del pueblo mexicano. México a través de sus Constituciones, 4th edition, Mexico, LV Legislatura de la Cámara de Diputados-Miguel Ángel Porrúa, 1994, Vol. V, pp. 613-621.
56 Cfr. Tena Ramírez, Felipe, op. cit., note 54, p. 130.
57 Ibidem, p. 131.
58 Ibidem, pp. 131 and 132.
59 Carpizo, Jorge, La Constitución mexicana de 1917, 10th ed., Mexico, Porrúa, 1997, pp. 198-200.
60 Gaxiola, Jorge F., "La presidencia de la república", Revista de la Facultad de Derecho de México, No. 49, January-March 1963, p. 47.
61 Cfr. Vallarta, Luis Ignacio, Votos. Cuestiones constitucionales, 2nd ed., Mexico, J. J. Terrazas Printers, 1894, pp. 93 et seq., 108 et seq.; Moreno Cora, Silvestre, El juicio de amparo conforme a las sentencias de los tribunales federales, México, La Europea Typography and Lithography, 1902, pp. 1456 and 1457.
62 Cfr. Ruiz, Eduardo, Derecho constitucional, 2nd ed., Mexico, Aguilar and Sons Typography, 1902, pp. 189 and 190 (facs. ed., Mexico, UNAM, 1978); Coronado, Mariano, Elementos de derecho constitucional mexicano, 3rd ed., Mexico, Ch. Bouret Bookstore, 1906, pp. 129-131 (facs. ed., Mexico, UNAM, 1977).
63 Cfr. Tena Ramirez, Felipe, op. cit., note 54, pp. 144 and 145.
64 Cfr. Velasco, Gustavo R., "El estado de sitio y el derecho administrativo" and Cueva, Mario de la, "La suspensión de garantías y la vuelta a la normalidad", Revista de la Escuela Nacional de Jurisprudencia, pp. 161-167 and 186-190, respectively.
65 Cfr. Valadés, Diego, op. cit., note 10, pp. 148-150.
66 Cfr. the main laws issued under delegated powers in the work by Palacios Vargas, Ramon J., Las facultades extraordinarias al Ejecutivo, Puebla, 1965, pp. 59-61.
67 Inexplicably, these precedents appeared in the mentioned appendix to volume XCVII, published in 1948, when ten years before the constitutional reforms had been left the criteria groundless and with even less justification these same precedents were formalized in the additional appendix to precedents published in 1955 under numbers 477 and 478, but with better criteria, they were omitted from the appendix that appeared in 1965.
68 Cfr. Campillo, Aurelio, Tratado elemental de derecho constitucional mexicano. Compilación de los estudios de reputados publicistas, Jalapa, La Económica Typography, 1928, pp. 19-23.
69 Martínez Báez, Antonio, "Concepto general del estado de sitio", Revista de la Escuela Nacional de Jurisprudencia, cit., note 64, p. 108.
70 Ibidem, pp. 109-111.
71 The current text of Article 49 of the Constitution states: "For purposes of its exercise, the Supreme Power of the Federation is divided into Legislative, Executive and Judicial. Two or more of these powers may not be concentrated in one individual person or corporation, except in case of extraordinary powers to the Executive of the Union (as specified in Article 29). In no other case (except as disposed in the second paragraph of Article 131) may extraordinary abilities to legislate be granted.
72 Cfr. Fix-Zamudio, Héctor, "Valor actual del principio de la división de poderes y su consagración en las Constituciones de 1857 y 1917", Boletín del Instituto de Derecho Comparado de México, Nos. 58-59, January-August 1967, pp. 42-44 and 52-56; updated study with "Algunas reflexiones sobre el principio de división de poderes en la Constitución mexicana", Memoria del II Congreso Iberoamericano de Derecho Constitucional, Mexico, UNAM, 1987, Vol. II, pp. 631-632 and 638-640.
73 Cfr. Fix-Zamudio, Héctor, "Breve introducción al juicio de amparo mexicano", Ensayos sobre el derecho de amparo, 3rd ed., Mexico, Porrúa-UNAM, 2003, pp. 18-41.
74 Cfr. Fix-Zamudio, Héctor, "El amparo mexicano como instrumento protector de los derechos humanos", various authors, Garantías jurisdiccionales para la defensa de los derechos humanos en Ibero-américa, Mexico, UNAM, pp. 253-301, transcribed in op.cit., previous note, pp. 619-666.
75 Cfr. Fix-Zamudio, Héctor, "Comentario al artículo 29 constitucional", in various authors, op. cit., note 55, pp. 593-606.
76 Campillo Sainz, José, "El juicio de amparo y la legislación de emergencia", Revista de la Escuela Nacional de Jurisprudencia, México, Nos. 21-22, January-June 1944, pp. 23-42 and especially pp. 37-42.
77 Cfr. various authors, Los tratados sobre derechos humanos y la legislación mexicana, Mexico, UNAM, 1981.
78 Cfr. Fix-Zamudio, Héctor, México y la Corte Interamericana de Derechos Humanos, 2nd ed., Mexico, Comisión Nacional de Derechos Humanos, 1999.
79 Robert, Jacques, "Le terrorismo et le droit", Anuario Iberoamericano de Justicia Constitucional, Madrid, No. 7, 2003, pp. 361-372.
80 Cfr. ibidem, pp. 464-469.
81 Vergottini, Giuseppe de, "Nuevos aspectos de la guerra y relaciones entre el Parlamento y el gobierno", Anuario Iberoamericano de Justicia Constitucional, Madrid, No. 6, 2002, pp. 549-565.
82 Cfr. Benavides, Luis, "El estatus jurídico internacional de los prisioneros detenidos por Estados Unidos de América en Guantánamo, Cuba, a raíz del conflicto en Afganistán", Anuario Mexicano de Derecho Internacional, Mexico, Vol. III, 2003, pp. 67-91.
83 Cfr. Acosta Estévez, José B., "El derecho internacional ante el fenómeno bélico: la prevención y atenuación de los conflictos armados"; Byers, Michel, "International Law and the Angy Superpower" and Gros Espiell, Héctor, "La prevención de conflictos bélicos en el derecho internacional actual, las Naciones Unidas y el Sistema Interamericano", op. cit., previous note, pp. 11-65, 93-106 and 175-194; Sagüés, María Sofía, "Justicia para el terrorismo. El actual desafío de la Suprema Corte de Estados Unidos de América", Debates de Actualidad, Buenos Aires, Asociación Argentina de Derecho Constitucional, No. 192, November 2003-March 2004, pp. 19-31.