Abstract
This chapter discusses developments in Argentina and Mexico implementing the Inter-American Court’s “control of conventionality” doctrine. These developments illustrate the perspective of domestic courts in these states, which appears to be markedly different from that of the US Supreme Court in Medellin v Texas. While the latter doubted that other states treat judgments by international courts (in that case the ICJ) as binding in domestic courts, the domestic court cases discussed in this chapter indicate otherwise and make concrete the obligation that treaties are to be complied with in good faith.
In 1994, Argentina reformed its Constitution and granted international human rights treaties to which it was party equal status with the rights protected by the Argentine Constitution. In 2005, the Argentine Supreme Court declared its amnesty laws unconstitutional, applying the Inter-American Court’s holding in Barrios Altos directly. Similarly, Mexico, in 2011, reformed its Constitution and incorporated international human rights from international treaties to which Mexico is a party and gave them constitutional standing. On August 21, 2012, a majority of the Mexican Supreme Court held that human rights violations and other crimes committed by military personnel against civilians will now be subject to prosecution in civilian, not military, courts in accordance with the Inter-American Court’s jurisprudence in this area.
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Notes
- 1.
Compare the table of ratifications at http://www.ohchr.org/EN/Countries/Pages/HumanRightsintheWorld.aspx; declarations and reservations are accessible via http://treaties.un.org. Accessed 11 July 2017. In particular, neither Argentina nor Mexico registered a domestic effect declaration to the ICCPR like the United States, according to which “the provisions of Article 1 through 27 of the Covenant are not self-executing”.
- 2.
US SCt, Medellín v Texas, judgment of 15 Nov 2006, 552 U.S. 491 (2008), 2.
- 3.
Ibid, 7–8. See also ICJ, Avena and Other Mexican Nationals (Mexico v US), judgment of 31 Mar 2004, ICJ Reports 2004, 12.
- 4.
Justices Scalia, Kennedy, Thomas and Alito formed the majority with Chief Justice Roberts.
- 5.
US SCt, Medellín v Texas, judgment of 15 Nov 2006, 552 U.S. 491 (2008), 8.
- 6.
Ibid.
- 7.
Ibid, 10.
- 8.
Ibid, 15.
- 9.
Ibid, 20.
- 10.
Arts 67 and 68 ACHR. See also Cerna, State Obligations in the Inter-American System, in this Volume.
- 11.
IACtHR, Almonacid-Arellano et al v Chile (preliminary objections, merits, reparations and costs), judgment of 26 Sept 2006, paras 124–125.
- 12.
IACtHR, Velasquez Rodriguez v Honduras, judgment of 29 July 1988, para 166.
- 13.
IACHR, Report no 28/92, cases 10.147, 10.181, 10.240, 10.262, 10.309 y 10.311 (Argentina) and Report no 29/92, cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 y 10.375 (Uruguay) all 2 Oct 1992.
- 14.
IACtHR, Barrios Altos v Peru, judgment of 14 Mar 2001, para 51 (4). Peru had accepted international responsibility during the litigation of this case before the Court. With the judgment of the Court in hand, the authorities transmitted the judgment to the Peruvian Supreme Court. The President of the Court sent it to several judicial instances, pointing out that the criminal proceedings for the events of the Barrios Altos case must be reopened given the “binding and inexorable” [vinculante e inexorable] character of the IACtHR’s judgment. As a result, arrest warrants were issued for the 13 individuals allegedly implicated in the massacre to be investigated, including two army generals.
- 15.
Ibid, para 41.
- 16.
Art 31: “This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of 11 November 1859”.
- 17.
Argentine Supreme Court, Ekmekdjian, Miguel Ángel c Sofovich, Gerardo, 7 July 1992, fallos 315:1492. See also Franco (2009).
- 18.
IACtHR, advisory opinion, OC-7/86, 29 Aug 1986, “Enforceability of the Right to Reply or Correction (Arts. 14(1), 1(1) and 2 of the American Convention on Human Rights),” para 35.
- 19.
See supra n 17.
- 20.
The Argentine Constitution is strongly influenced by the US Constitution and the principle that the later norm supersedes the earlier one even in the case of treaties is also the rule in the United States. See Sabsay and Onaindia (2009), p. 115.
- 21.
Para 22 of Art 75 of the amended Constitution provides: “To approve or reject treaties concluded with other nations and international organizations, and concordats with the Holy See. Treaties and concordats have a hierarchy superior to laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, have constitutional hierarchy, do no derogate any section of the first part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. They shall only be denounced, in such event, by the Executive Branch after the approval of two-thirds of all the members of each Chamber. In order to attain constitutional hierarchy, the other treaties and conventions on human rights shall require the vote of two-thirds of all the members of each House, after their approval by Congress.”
- 22.
Art 46: “Pre-eminence of International Law. The general principle is established that in the field of human rights, treaties and conventions approved and ratified by Guatemala have precedence over domestic law.”
- 23.
Art 93: “The rights and duties consecrated in this Charter, will be interpreted in conformity with international human rights treaties ratified by Colombia.”
- 24.
Art 23: “The treaties, pacts and conventions relating to human rights, signed and ratified by Venezuela, have constitutional ranking and prevail in the internal legal order, insofar as they contain provisions concerning the enjoyment and exercise of such rights that are more favorable than those established by this Constitution and the laws of the Republic, and shall be immediately and directly applied by the courts and other organs of the Public Power.”
- 25.
Art 74 (3): “The treaties, pacts and conventions relating to human rights, signed and ratified by the Dominican State, have constitutional ranking and shall be directly and immediately applicable by the courts and other organs of the State.”
- 26.
Tried were Lt. Gen. Jorge Videla, Brig. Gen. Orlando Agosti, Admiral Emilio Massera, Lt. Gen. Roberto Viola, Brig. Gen. Omar Graffigna, Admiral Armando Lambruschini, Lt. Gen. Leopoldo Galtieri, Brig. Gen. Basilio Lami Dozo and Admiral Jorge Anaya.
- 27.
General Jorge Videla was accused of various crimes and convicted and sentenced to different prison terms. He died on 17 May 2013 in prison while on trial in the Plan Condor case. General Emilio Massera died on 8 Nov 2010. General Roberto Viola died on 30 Sept 1994. General Armando Lambruschini died on 15 Aug 2004. General Orlando Agosti died 6 Oct 1997.
- 28.
Law 23.492, Full Stop Law, promulgated on 24 Dec 1986; Law 23.521, Due Obedience Law, promulgated on 8 June 1987.
- 29.
Presidential Decree 1002 of 7 June 1989 was the first of the ten pardons and included the members of the military.
- 30.
Argentine Supreme Court, Camps, Ramon Juan Alberto y otros, judgment of 22 June 1987, fallos 310:1162.
- 31.
Following the repeal of the amnesty laws, on 13 July 2007, the Argentine Supreme Court revoked General Videla’s pardon and his life sentence was reinstated. On 22 Dec 2010, Videla was again convicted and sentenced to a second term of life imprisonment for the torture and death of 31 prisoners in Cordoba (crimes against humanity). Viola and Galtieri died before 2005, the year that the Amnesty laws were repealed. In 2007, Bignone, the leader of the fourth junta, was charged with human rights abuses and taken into custody; he was convicted in 2010 and received a 25-year sentence. Hundreds of military officers have been tried following the Supreme Court decision and according to the 4 Mar 2015 website of the Centro de Estudios Legales y Sociales (CELS), a leading Argentine NGO, some 2071 civilians and armed forces and security personnel were involved in cases related to state terrorism. Again, according to CELS, some 134 trials have been completed and an additional 331 cases are still at different levels of processing. It should be noted that trials against members of the guerrilla organizations were not reinitiated after the repeal of the amnesty laws because under international human rights law only States can commit human rights violations. The actions of the members of the guerrilla organizations were considered violations of the criminal code and not human rights violations, and since crimes under the code have statutes of limitations, the statutes of limitations had expired when the trials of the military were reinitiated. This asymmetry is a cause of some concern today among certain sectors of Argentine society.
- 32.
Argentine Supreme Court, Simón, Julio Héctor, Privación de la libertad y otros, judgment of 14 June 2005, causa 17.768, considerando 14.
- 33.
Ibid, considerando 16.
- 34.
Ibid, considerando 17.
- 35.
Ibid, considerando 22. The operative part of the Barrios Altos judgment (supra n 14) with regard to a violation of Art 2 stated: “3. To find, in accordance with the terms of the State’s recognition of international responsibility, that the State failed to comply with Articles 1(1) and 2 of the American Convention on Human Rights as a result of the promulgation and application of Amnesty Laws No. 26479 and No. 26492 and the violation of the articles of the Convention mentioned in operative paragraph 2 of this judgment.”
- 36.
IACtHR, Almonacid-Arellano et al v Chile (preliminary objections, merits, reparations and costs), judgment of 26 Sept 2006.
- 37.
IACtHR, Gomes-Lund et al (Guerrilha do Araguaia) v Brazil (preliminary objections, merits, reparations and costs), judgment of 24 Nov 2010: “The provisions of the Brazilian Amnesty Law that prevent the investigation and punishment of serious human rights violations are not compatible with the American Convention, lack legal effect, and cannot continue as obstacles for the investigation of the facts of the present case, neither for the identification and punishment of those responsible, nor can they have equal or similar impact regarding other serious violations of human rights enshrined in the American Convention which occurred in Brazil,” at para 325 (3); and: “The State has not complied with its obligation to adapt its domestic law to the American Convention on Human Rights, pursuant to Article 2, in relation to Articles 8 (1), 25, and 1 (1) thereof, as a consequence of the interpretation and application given to the Amnesty Law in cases of serious violations of human rights,” at para 325 (5).
- 38.
Peru and Uruguay have repealed their amnesty laws whereas Brazil and Chile to date have not. See Soltman (2013).
- 39.
Corte Suprema de Justicia, Sentencias Definitivas n° 44–2013AC de Sala de Lo Constitucional, judgment of 13 July 2016. The judgment was 4:1. The four-person majority consisted of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, who grounded their decision in the jurisprudence of the Inter-American Court of Human Rights. It should be noted that Florentín Meléndez was a former member of the Inter-American Commission on Human Rights.
- 40.
IACtHR, Radilla Pacheco v Mexico (preliminary objections, merits, reparations, and costs), judgment of 23 Nov 2009.
- 41.
IACHR, Rosendo Radilla Pacheco v Mexico, Report no 65/05, Petition 777/01, admissibility, 12 Oct 2005. Available online via http://www.cidh.org/annualrep/2005eng/Mexico777.01eng.htm. Accessed 11 July 2017.
- 42.
Ibid, para 312.
- 43.
Ibid, operative para 10.
- 44.
The ICJ in Avena declined to consider whether the VCCR rights were “human rights” and termed them “individual” rights, without explaining the difference. See ICJ, Avena, supra n 3, para 124.
- 45.
Available via http://fueromilitar.scjn.gob.mx/Resoluciones/Varios_912_2010.pdf. Accessed 11 July 2017. The English version is available via https://law.utexas.edu/colloquia/archive/papers-public/2011-2012/03-19-12_The%20Rosendo%20Radilla%20Case%20(2010).pdf. Accessed 11 July 2017. See also Cerna (2013).
- 46.
Ibid “Quinto. Reconocimiento de la competencia contenciosa de la Corte Interamericana de Derechos Humanos y de sus criterios vinculantes y orientadores.”
- 47.
Ibid, para 15.
- 48.
Ibid, para 16.
- 49.
Ibid, para 17.
- 50.
Ibid, para 19.
- 51.
Ibid, paras 23–36.
- 52.
Ibid, para 20.
- 53.
Ibid, para 31.
- 54.
An “amparo” lawsuit is a legal action in “protection of one’s constitutional rights. The party filing the suit must demonstrate that a governmental authority caused the injury and that the injury is not irreparable. Also, an amparo, inter alia, may contest the constitutionality of federal or state legislation.
- 55.
IACtHR, Resolución de la Corte Interamericana de Derechos Humanos de 17 de abril de 2015, Casos Radilla Pacheco, Fernández Ortega y Otros, y Rosendo Cantú y Otra v México, Supervisión de cumplimiento de sentencia. Available online via http://www.corteidh.or.cr/docs/supervisiones/radilla_17_04_15.pdf. Accessed 11 July 2017.
- 56.
SCJN, Contradicción de tesis 293/2011, judgment of 25 Apr 2014, available online: https://www.scjn.gob.mx/Transparencia/Epocas/Pleno/DecimaEpoca/293-2011-PL%20CT%20Ejecutoria.pdf. Accessed 11 July 2017.
In Mexico, jurisprudence is made in one of two ways: by the reiteration of a thesis or by the resolution of a conflict among jurisdictions. The first consists of five decisions on the same subject being resolved in the same way without interruption (eg five amparo appeals being decided in the same way in succession) whereas in the second, the Supreme Court brings about the resolution of divergent criteria used by different Chambers of the Mexican Supreme Court or by Circuit Courts. The contradiction (the divergent criteria) can be denounced by the judges who make up the Circuit Courts, the Supreme Court Chambers, or the parties that intervened in case that gave rise to the contradiction.
- 57.
Ibid, contradicción de tesis 293/2011.
- 58.
Ibid.
- 59.
Ibid, para 68.
- 60.
Ibid, paras 50–53 and 67–68.
- 61.
IACtHR, Cabrera García and Montiel Flores v Mexico (preliminary objection, merits, reparations, and costs), judgment of 26 Nov 2010; see concurring opinion of judge ad hoc Eduardo Ferrer Mac-Gregor Poisot (who was subsequently elected and is currently a judge on the Inter-American Court).
- 62.
Contradicción de tesis 293/2011, supra n 56, 40–42, 44, 52–53, 56–57. See dissent of judge José Ramón Cossío Díaz.
- 63.
Amnesty International Mexico, La Decisión de la SCJN es un retroceso en la protección de los derechos humanos en México. Available via https://www.amnesty.org/es/documents/amr41/057/2013/es/. Accessed 11 July 2017.
- 64.
In recognition of these advances, the United Nations awarded the Mexican Supreme Court its UN Prize in the field of Human Rights in 2013.
- 65.
Corte Suprema de Justicia 368/1998 (34-M) /CS1, Ministerio de Relaciones Exteriores y Culto s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico v Argentina’ por la Corte Interamericana de Derechos Humanos, 14 Feb 2017. Available via http://www.uasb.edu.ec/documents/62017/1494568/Sentencia+Corte+Argentina/24b5f91a-b1f6-4864-bcd8-6dbcecdfe031. Accessed 11 July 2017.
- 66.
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Cerna, C. (2019). Argentina and Mexico. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_14
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