at the beginning of the 19th century
many of you know the supreme
court the united states resolved a
famous case
marbury against nuanced at that time the
supreme court had the great intuition
of generating the constitution as a
very high point in highest possible
within the legal order the states
united to control the
constitutionality of laws
confronted a law against the constitution
and this seems to me to be an advance
extraordinary in the civilization of
world
several years later towards 1920 hans
kelsen when creating the constitution
Austrian invents a different model and
generates for the European system the
possibility of testing again the
laws against the constitution and up there
we stayed and so we went to the
Second world war as humanity
you all know we had one of the
more complicated more critical moments of
the existence appeared phenomena
unknown the holocausts the German
the Soviet and some others
in that same sense when we return
of that terrible period
We also had the good fortune that
will create a new international system
we had universal statements started
a very important march to have
international treaties and the question
that at that time was raised is what is
the value of international treaties
in particular that of human rights
in front of the constitution
constitutions are up the
constitutions are below as
harmonize how they play between them
we had a very long period very
complex where the concept of sovereignty
of the national states opposed
precisely to this idea of recognizing
a maximum hierarchy to treaties
around 1970 we started
dilute is strong position of the
treaties and the constitution in a
totally different condition and set aside
in our case the case in our
region with the inter-American court with
the commission with this job so
important that he has been doing a
I work a little
do not think that these things are not
easy neither are they immediate or generate
result for the same day we started to
dissolve this same idea and in different
national states began to find
the form
first to harmonize after
set the hierarchy a little bit
above the constitution say as
if this were a geometry
balances a differentiated effects
until very recently we have
started to find as generality
it seems to me in a good part of the world that
international treaties on
of human rights are found in the
same hierarchy as the constitution that
human rights font
constitutional or plan are found
in a higher hierarchy because it was very
important to do brief counting management
because conventionality control is
is about that of the
possibility that national judges
let’s carry out a control of the rules
of the acts that are given inside of
a national state using as
reference parameter as a parameter
Regularity’s rights
human beings contained in the treaties
international and that it is the
affair
we went through a control of
constitutionality trouble in the system
that I was referring to the marbury judgment
against madison in the original system
the Austrian constitution of 20 up
this system in which the judges of
various ways now I will point out which
we can face the issue of
violation of human rights
using those that are established in
constitutions own course
say this there is the possibility of a
professional control that the possibility
of a conventionality control
does not say much but nevertheless we have left
a very important problem and how is that
inside the orders themselves
national legal authorities
judicial can carry out this
control
in other words, in my position
current judge of the supreme court of
justice of the nation of my country that is
what I do for the purpose of giving
hierarchy validity position and at the end of
accounts carry out a control of
constitutional regularity
cissé by virtue of the provisions of the
article first the cooking that I have
to take source right
constitutional and source rights
conventional
in the case of rosendo radilla that
resolved the supreme court of justice of
Mexico in the month of July of the year 2011
we found a solution that I think
is very adequate is a modern solution
is a feasible solution that allows us
really give a good framework to
these two conditions
for what reason like many of you
you know in the Mexican legal system
we had until that decision so
very clear established a control that you
we call concentrate of
constitutionality
until then what we did in the
amparo trial in controversies
alex cooking good deeds
unconstitutionality is to receive a
demand to consider the act was this a
individual act was not a law or
a rule of a general nature and
contrast it against a human right of
the Constitution
there what we were analyzing was the
law itself and the answer we could
give in those three elements was to declare
the invalidity of that challenged rule and
certainly considered unconstitutional
in the case that I am anticipating to be
contrary to the constitution and in
particular to a human right and in the
amparo trial to stop applying to
who requested it and in the controversies
and actions declare their
unconstitutional
in a general way whenever we had
8 bots
that was what we were commonly
doing
however in that case judgment
radilla happened two phenomena of the
major importance
1 in those trials of concentrated control
amparo controversy actions
we also said that we could take
the cancellation of the rules
generals can acts whenever
violate a human right contained in
an international treaty concluded by
the Mexican state
what is the importance of this that
against the control of constitutionality
we also go to the control of
conventionality since then the
supreme court of justice is
declaring not too many there are also that
say it but yes some relevant cases
the invalidity of general norms or acts
precisely taking into account the
content of those provisions
constitutional in a couple of cases
magnificent from my point of view a
transfer of prisoners from zacatecas to
Veracruz and a condition of work
forced in the state of Campeche
the supreme court was required was presented
front thus the rights of source
cooking to the font rights
conventional and saw which of these two
they were the most protective and generated then
your protection nullifying the acts that
they had been challenged
but additionally in that same
sentence reaffirmed something that had gone
appearing sporadically cyclically
if you want in the legal order
Mexican that was the control and fus is
say the possibility that any
judge of our country with beyond the
Amparo judges will come to sap and
carl to the specific case they were
judging a rule of a legal nature
priority that it was contrary not
only to a human right of source
constitutional but also to a right
human being that is contained in the
constitution that I want to say then
that our country today and
fortunately what we are seeing is
a legal dynamic completely
different where this cooking control
reality
this conventionality control have been
inserted fully in the own
legal order
today the federal judges of the
judicial power of the federation or
Federal Court of Justice
still existing administrative and
conciliation and arbitration board with
the judges of the federal entities
we can when we are presented with a case
where a standard is challenged
direct an act in front of a right
human of constitutional source or of
international font source
conventional carry out then
these exercises to protect from the
best possible way the rights
humans of people
I believe like many other people that
the right has a function at the end of
civilizing accounts
at the end of the day what the right
allows us is a condition of
coexistence among all of us and in
the times that we are living
the general paradigm the general way
to organize our coexistence is to
starting from human rights and
we know that historically it has not always
been like that and I do not know what will happen to us
the future
this is an extraordinarily
difficult to predict what is left
Of course, in this historical moment
there is this general idea of protection
of constitutional source and source
conventional
now well in our country for a
tradition can be internationalist or
for a desire to find legitimacy to
the different political regimes that
we have not always had all of them
fully democratic character have been
signed in our country a number of
international treaties that problem
interesting is the
conventionality find a kind
of rule recognition not in the sense
from a huge English teacher
importance but yes in the know
when in an international treaty
celebrated by the Mexican state that does not
have in principle the vocation of
human rights not the
convention gin treaties
etcetera that does not have in principle this
occasion we can identify a right
human
This seems to me a task
very important for the coming years
example is possible in a water treaty
in a free trade agreement in a
double taxation treaty find
human rights or it is not possible if it is
possible as under what rules under what
concept we can identify bring to the
legal order for effect of doing
operations with it and proceed to the
broader protection of people
This seems to me to be a problem
important of the conventionality of
our time
a second problem equally
interesting the 10 is to know how
let’s play with human rights
of constitutional source and source
conventional when we have to do
legal operations on a daily basis
example if what I have is a
claim of a subject that tells me and
returned to the case of the transfer of prisoners
from zacatecas to veracruz that what he
he wants is to return to his place of origin
or be in the prison where
it was originally put that is what
I must do I must consider the
content of article 18 that has everything
the system of social reintegration and
simultaneously
I have to look at all of the
human rights that are celebrated
for the Mexican state
which is the most protective of the condition
of people who are deprived of their
freedom
the interesting thing about our constitution
also in this game of the
conventionality is to confront us
we as judges the greatest
right or the greatest protection it generates
a right by the constitution and the
greater protection that generates a right
by the convinced by a treaty
international put the two together
look for which one is the most protection
generates and apply that to precisely
give the greatest possible satisfaction to
this person that I find an exercise
important
He said that unfortunately not always
not all of us are doing in our
locality of judges and neither I
seems to be completely explicit in the
academic exercises and in
legislative exercises and in different
forms of production of law in
our country
I also think this is a question
interesting and the third as a challenge
also very important is how to motivate
the judges who do not have in principle
a vocation to protect the
human rights because his is
know mercantile civil processes
working relatives etc so that
start this important work
this protection work they learn
to take the scope of cooking right to
the scope of conventional law do
an exercise
in this sense and we really achieve
among all the best protection of these
rights
the discipline of politics the
discipline of the exercise of power in
general and we give him this condition of
protection to the inhabitants of
National territory
I think with these ideas of that treaty
to explain at least a general idea of
conventionality a general idea of
the protection and I thank you very much
all of you your attention very good is
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