Mexican Law Review最新文献

This article analyzes the deployment of biometric systems in immigration control. It argues that public policy for biometric data collection and processing must be based on legal principles and involve the participation of diverse actors, including civil society organizations, industry associations, special privacy advocates and government officials. Such deployments must also involve control mechanisms that help ensure transparency and accountability. Based on a comparative study of biometric immigration control system deployment in four countries (Australia, Mexico, New Zealand and Spain), two types of asymmetries stand out: first, notable differences in the types of information collected, stored, processed, retrieved, updated, analyzed and exchanged; Second, the purposes for which biometric systems are currently used. In the latter case, wide divergence exists in areas for which these systems are employed, such as border control strategies and the use of travel documents, revealing that each nation chooses to use these systems at different points in the immigration process. These asymmetries pose both short and long-term challenges for international cooperation.

Mexico is entering a phase of transitional justice. This can be observed in the numerous reforms and measures that are being taken to adapt the legal system to international standards, particularly those related to human rights and criminal justice. Some examples show an increased tendency to adhere to and enforce the rule of law and human rights; to recognize the official truth of authorized misconduct that took place in the past; to punish perpetrators, and above all, to ensure victims’ rights to truth and reparation. If these tendencies continue, it could potentially lead to the restoration of public trust in the authorities and pave the way for reconciliation between society and the State. While many experiences of traditional transitional justice have taken place in post-authoritarian contexts, the convergence of the main elements used in those traditional cases lead us to suggest that these models could also apply to societies in transition, not from a particular form of government to another, but from a developing democracy into a law-abiding society. In this sense, a bottom-up approach that aims at attaining truth, reform and change will be necessary to break a cycle of impunity and develop social and government institutions that respect and enforce the rule of law and human rights.

This article is an analysis of international and Mexican law regarding the prohibition of drug use and the right to health. It argues that the decriminalization of personal drug use in domestic legislation is not prohibited by the 1961 Single Convention on Narcotic Drugs and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Therefore, a health-oriented system to resolve the problem of drug use is not optional for the binding States, but an obligation according to the normative content of the right to health under international law. Therefore, given that Mexico has ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the right to health has constitutional status, the criminalization of drug use or drug possession for personal use is a violation of the Mexican Federal Constitution and the ICESCR.

Over the past several decades, sustainable development as a paradigm for balanced development has made its way into the constitutional regimes of many nations. The justiciability of sustainable development, however —particularly in the context of environmental legal protection— remains problematic for many legal systems, including Mexico. This article traces the evolution of sustainable development within an international context; analyzes its influence on treaties that led to the European Union; and evaluates the use of environmental protection by the European Union’s Court of Justice (referred to hereinafter as “ECJ”). An analysis of the interplay of the concept of sustainable development in the primary and secondary legislation of the European Union as interpreted by the ECJ leads us to the following conclusion: regarding the legal protection of the environment in the European Union, sustainable development may be viewed as a general principle of law that articulates a series of sub-principles contained in the treaties. These sub-principles include the precautionary principle and the “polluter-pays” principle. We also conclude that the unsystematic use of these sub-principles in the secondary legislation of the European Union weakens the ECJ’s coherent handling of the concept in its decisions. This article also suggests that Mexican judges would be well advised to carefully study sustainable development as employed by the ECJ in cases involving constitutional and international collective environmental claims which may arise under the recent amendments to the Amparo Law.

This note assesses the lessons for future Mexican relations with the United States of past episodes of conflict over border issues and U.S. intervention in Latin America. The author argues that Mexican officials have and should continue to present Mexican views and assert Mexican national interests in disputes with the United States without concern for the historically frequent tendency of U.S. officials and commentators to ascribe such positions to Mexican “anti-Americanism.”

This article discusses the impact of the influx of migrants from Mexico and Central America on the American Southwest. Specifically, it discusses how Native American tribes of the Southwest, especially the Tohono O’odham Nation, have become a magnet for illegal border crossings due to lax enforcement policies on tribal land. As a result, the tribe has encountered a surge in drug-trafficking, violence, and environmental destruction on its reservation. The article first analyzes the trust doctrine between the Native American tribes and the United States federal government. It concludes with a discussion of the monetary and equitable relief available to the Tohono O’odham Nation in the form of damage awards and increased border protection.

Small arms and light weapons continue to wreak havoc at an international level, both in areas of conflict and in those at peace. In order to combat this phenomenon, several lines of action need to be explored in the context of multilateral diplomacy. One possible solution lies in arms embargoes sponsored by the United Nations Security Council (UNSC), the main topic of this article. The author addresses several issues in relation to the scope and objectives of existing regional instruments as well as the Arms Trade Treaty, which could enter into force but —unlike UNSC arms embargoes— would bind only ratifying countries.

This note examines the political context surrounding the banning of the Mexican American Studies program in Tucson, Arizona and the Acosta v. Huppenthal decision, which leaves the ban largely intact. The convergence of economic crisis and partisan politics contributed to the rise in anxiety over the demographic shifts of the state of Arizona, for which Mexican American Studies became a symbolic target for Republicans. Mexican American Studies was declared in violation of a new law passed by the Republican dominated legislature, A.R.S. § 15-112, by Arizona Superintendent John Huppenthal, despite the conclusion by an independent audit he ordered which concluded otherwise. This left leaders within the Mexican American community and civil rights organizations with the conclusion that the ban on Mexican American Studies was politically motivated. This note explores the motivations by individual political actors, such as the current Attorney General of Arizona Tom Horne, and how he rose to power on a platform centered on the ban against Mexican American Studies.

The author advances the thesis that the now well established international crime victims’ right to know the truth creates an opportunity for an applied epistemology reflection regarding international criminal justice. At the heart of the project lies the author’s argument that this victims’ right —if taken seriously— implies both the right that the international criminal justice system’s normative structures or legal frameworks and practices feature a truth-promoting profile, or in other words, that they be designed, specified, and harmonized so as to enable the system as a whole to regularly lead to the formation of (fallible, though more likely) true beliefs about the world (both when it convicts and when it acquits); and a duty for the international community to implement the best epistemically-suited set of procedural and evidentiary rules and practices when it engages in the enterprise of engineering and setting in place international criminal tribunals, panels, chambers, or special courts. The author suggests that the research of the epistemologist Larry Laudan is quite relevant to the aims of the above project in that it outlines the general contours of a truth-promoting profile applicable to all instances of empirical systems of investigation. By contrasting Laudan’s guidelines with the legal frameworks and practices of some international criminal tribunals, the author holds (though of course more research is needed) both that the victims’ right to know the truth is being systematically transgressed at the international level in that these international institutions do not seem to possess an acceptable truth-promoting profile as one of their attributes; and that endowing them with such a profile is one of the ways in which the international community can pay its respects to victims’ concerns.

Over the last twenty-five years, a number of justice reform projects funded by international actors have been implemented in Latin America. No less than 2 billion US dollars were disbursed for this purpose. Several questions on this issue are addressed in this article: How does international aid work in the field of justice and what is the rationale used? What is the relationship between and the dynamics of the actors who participate in international aid? What are the results of the funded projects and what limits have been encountered? Has international support for justice reform been worthwhile? The author elaborates on the central argument that international actors underperform their role mainly for two reasons. One, the approach used in the recipient country seriously restricts the proper comprehension of the root causes of the problems country faces. Two, international actors lack serious interest in learning. In the predominant approach, bureaucratic criteria prevail: projects are designed and promoted according to the aid agency’s blueprint, evaluation is usually poor and money is readily available. If in a given country there are no strong national actors, international agencies establish asymmetrical relationships with their counterparts, tend to import recipes that hardly suit the conditions in the country, and impose paths to reform that are difficult for local actors to appropriate. Cooperation agencies have disseminated an ideological construct based on a non-proven causal relationship between justice systems and economic growth as the driving force for reform. International actors could do better were they to develop a capacity for learning, but this goal seems difficult for them to reach.