Contradicción de Tesis 293/2011 and the Constitutional Supremacy of International Human Rights Law

Irene Spigno

Inter-American Academy of Human Rights

With the landmark decision Contradicción de Tesis 293/2011 (also commented by Irene Spigno & Juan Francisco Reyes Robledo), the Mexican Supreme Court of Justice of the Nation solved a conflict between two different jurisprudential criteria on the position international treaties on human rights have in the national legal order, recognizing them at a constitutional level.

The Contradicción de Tesis procedure arises from the need to establish an integrated jurisprudential system. It is an abstract procedure directed to preserve the interpretative unity of the Mexican legal order, through which the Supreme Court of Justice of the Nation (hereinafter SCJN) - functioning in Plenary session or in Chambers - resolves opposing jurisprudential criteria issued either by the SCJN itself or by other federal judges, delimiting the different interpretations that legal provisions may have. The decision issued throughout the Contradicción de Tesis procedure constitutes new jurisprudence, with mandatory nature which is based on a hierarchical criterion.

Contradicción de Tesis 293/2011 was issued on September 3, 2013, and its importance resides in the recognition that international treaties on human rights and the case law developed by international courts, as the Inter-American Court of Human Rights (hereinafter IACtHR) are binding for Mexican judges.

Actually, the general conceptualization of human rights in the national legal arena is something relatively new in Mexico. Fundamental human rights established in national and international human rights instruments were given little consideration in the national legal arena. The situation evolved only recently, with a significant change from a “closed” conception of fundamental rights to an almost “unlimited” one. This has been possible thanks to different factors that established a new constitutional paradigm and conceptual framework of the relationship between national and international human rights law (and especially the Inter-American system). They design the relevant constitutional framework in which the judgment Contradicción de Tesis 293/2011 must be read.

First of all, the 2011 constitutional reform changed the paradigm of human rights in the country, modifying the so-called “human rights clause” in Article 1 of the 1917 Mexican Constitution. This revision has been one of the biggest of Mexican constitutional history: it modified the “human rights clause” as well as the “supremacy clause” (provided in by Article 133), intervening on the relationship between national law and international law. More specifically, as far as the “human rights clause” is concerned, the “new” Article 1 introduced several significant changes. First of all, it expanded the range of human rights available in the country, stating that persons would enjoy not only those granted by the national Constitution but also those recognized by those human rights international treaties in which Mexico is part of. Second, it introduced what was later called the “consistent interpretation”, an interpretation method that will be developed by the Supreme Court. Third, the “pro personae” interpretation parameter was introduced, according to which the broadest possible protection should be guaranteed. Fourth, it introduced the obligation for all Mexican State authorities to promote, respect, protect, and ensure human rights. Fifth, it settled the principles that the obligations mentioned above should follow the principles of universality, interdependence, indivisibility, and progressiveness. Finally, it introduced the obligation for the State to prevent, investigate, sanction, and redress human rights violations.

All those changes are meaningful because before the 2011 constitutional reform, the constitutional interpretation of the “human rights clause” together with the “supremacy clause” had defined the understanding of the content and scope of human rights in Mexico for nearly a century. Before the 2011 reform, Article 1 pointed out that persons would enjoy the guarantees (and not the rights) “granted by the Constitution”, which may not be restricted or suspended, “but in the cases and under the conditions established by it”.

On the other hand, Article 133 established the hierarchy of national sources of the law: the Constitution, laws approved by Congress, and international treaties are part of the “Supreme Law of the Union”. It was precisely the interpretation given to the list contained in the “supremacy clause”, in conjunction with the “human rights clause” that led to a “closed” conception of the sources of human rights. In this context, international treaties occupied the same hierarchical position as the laws issued by the Federal Congress, and the Constitution was considered a higher-level norm. This interpretation implied that in any contradiction between the Constitution and an international treaty, the former would have prevailed over the latter. Moreover, according to this approach, the jurisprudence of the IACtHR was considered only as a “guiding” criterion in the interpretation and compliance with the provisions protecting human rights, and not as a “binding” one.

Moreover, with decision Varios 912/2010 of July 14th 2011, the SCJN pointed out that federal judges shall carry out an ex officio control of conventionality between domestic regulations and the American Convention on Human Rights (hereinafter ACHR) and the interpretation given to it by the IACtHR, according to a diffuse model of judicial review of legislation. More specifically, the Mexican Court distinguished between IACtHR’s “binding criteria” and “guiding criteria”. The former are those arising from IACHR decisions issued against Mexico, since resolutions issued by the IACHR against a specific State are mandatory for all the country's authorities in their respective sphere of competence. The latter are those deriving from the IACHR's decisions issued against another State, but only in the case in which the criteria elaborated by the IACHR is more favorable to the victim.

This approach was “inspired” by the IACtHR decision issued on November 23, 2009, in the Radilla Pacheco vs. Mexico case, which declared the Mexican State responsible for the violation of several articles of the ACHR in a case of enforced disappearance. In that decision, the IACtHR stated that even if domestic judges and tribunals are subject to the rule of law (and therefore they are compelled to apply the regulations in force within the national legal system), once a State has ratified an international treaty - such as the ACHR -, its judges are also submitted to it. It means that judges must ensure that the provisions of the ACHR are not affected by the application of national laws contrary to its object and purpose and that they do not lack legal effects from their creation. In other words, judges shall exercise an ex officio control of conventionality between domestic regulations and the ACHR, evidently within the framework of its respective competences and the corresponding procedural regulations. Within this task, judges shall take into consideration not only the treaty but also the interpretation the IACtHR, as the final interpreter of the ACHR, has made of it.

The same approach by the SCJN was preceded by the almost isolated interpretation developed by federal judges, according to which, in case of contradictions on human rights contained in international treaties, these instruments should be considered at the same hierarchical level as the Constitution.

Within this background, with the judgment Contradicción de Tesis 293/2011, the SCJN focuses mainly on two issues: the constitutional position of human rights international treaties, and the legal nature of the case law on human rights issued by the IACtHR.

As far as the first point is concerned, the SCJN stated that a “harmonic” criterion must guide the relationship between human rights recognized in the Constitution and those recognized in international treaties and that both categories of human rights – constitutional and conventional – integrate the same parameter of validity.

Regarding the second point, the Court settled a contradiction between two previous  decisions: according to the first one (Amparo Directo 623/2008), it was possible to invoke the IACtHR’s case law as a “guiding criterion” when it comes to the interpretation and enforcement of protective human rights provisions. On the contrary, according to the second one (Amparo Directo 1060/2008), international human rights case law must be considered a “compulsory criterion”, to be applied by all judicial authorities.

Resolving this contradiction, the SCJN stated in the commented judgment that the application of the IACtHR’ case law “(...) must be done in terms of collaboration and not in contradiction with national precedents, taking into account at all times the pro persona principle” as “the binding force of the case law from the IACHR arises from the very constitutional mandate established in Article 1 of the Constitution, since the principle of pro-persona compels national judges to decide based on the interpretation that is most favorable to the individual”.

The resolution of the Contradicción de tesis 293/2011 means a great advance for human rights in Mexico. Establishing that human rights, without any distinction of the source from which they come from, whether conventional or constitutional, constitute the parameter of the control of constitutionality, the decision stated once and for all that the jurisprudence of the IACtHR is binding on Mexican judges.

Irene Spigno is the General Director of the Inter-American Academy of Human Rights.

Suggested citation: Irene Spigno, ‘Contradicción de Tesis 293/2011 and the Constitutional Supremacy of International Human Rights Law’ IACL-IADC Blog (16 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/16/contradiccin-de-tesis-2932011-and-the-constitutional-supremacy-of-international-human-rights-law