Monday, February 28, 2005

Mexico, Genocide, and the (Non)Supremacy of International Law

Central America expert David Holiday points me to this LA Times op-ed yesterday on the recent Mexican Supreme Court decision to bar an indictment for genocide against a former Mexican President. If correct, the article suggests that the recent fad for genocide indictments in Latin America are being driven almost completely by the requirements of international law. Thus, as I argued here, the Bolivian genocide indictment is probably an attempt to force the U.S. to extradite their former President. Similarly, the Mexican indictment (according to the article) was an attempt to circumvent domestic Mexican law, namely Mexico's statute of limitations. As the article explains,

In Mexico, domestic laws still trump international treaties. Although many nations have surrendered their sovereignty to international norms on human rights, Mexico has not. So, because he had no other choice, the special prosecutor resorted to the charge of "genocide" against former President Luis Echeverria in the 1971 killings of student protesters. The prosecutor believed that perhaps crimes against humanity might be punished even if murder committed long ago could not. But the court ruled the Mexican Constitution establishes a 30-year statute of limitations that not even international treaties on genocide can void.

It is not clear to me whether the decision was based on Mexican constitutional law or not, but either way, it does appear that Mexico views international law in the same way as the United States does -- that is to say, international law cannot supersede domestic law simply because it is international law (please correct me if I'm wrong about this Andreas).

There are all sorts of good reasons why domestic law, especially domestic constitutional law, should trump international law (even international human rights law) when the two kinds of law come into conflict. The U.S. has always had this rule (albeit with some permutations I won't go into here) and it is interesting that Mexico has the same approach. If so, perhaps Mexico will be more understanding if the United States Supreme Court does not go out of its way to overrule U.S. domestic law based on a judgment won by Mexico in the International Court of Justice in Medellin. OK, they almost certainly won't, but at the very least Mexico will have to recognize that all the U.S. court would be doing in Medellin, if it rules against the Mexican petitioner, would be what Mexico's own Supreme Court just did, namely, give effect to domestic over international law.

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