Courts rarely play a role in scholarship pertaining to the diffusion, or spread, of human rights and the advancement of international law. This absence ignores the increasing reality that domestic courts can take the lead in promoting human rights. Through changes in international and domestic politics, judicialization,^[1] and conventionality control, courts have grown in power and are starting to exert their influence in adopting international human rights laws unilaterally.

This chapter argues that courts matter in promoting human rights domestically and in internalizing and institutionalizing international law by translating and implementing international law as domestic, legally enforceable law. As such, this chapter fills the lacuna regarding the role of courts in the expansion and institutionalization^[2] of international human rights laws within nation-states.

Why Would Courts Choose to Promote Human Rights?

Domestic courts can promote human rights by increasingly holding violators accountable and expanding rights protections to a larger set of situations or contexts for a larger proportion of society. Why would courts choose to promote these rights? Three possible motivations exist. First, judges serving on courts may sincerely believe promoting rights is morally right or makes good policy. In essence, judge attitudes, political ideologies, or preferred policies align with the expansion of rights protections. Second, judges may be compelled by their perceived inherent duty to acknowledge and promote rights. In other words, judges may promote rights because they want to or because they think they ought to. Third, judges may seek to empower the court as an institution by strategically choosing to promote rights to expand public support and legitimacy, thereby making it more capable and effective at constraining state behavior.^[3] While this chapter does not distinguish between these possible motivations, it seems plausible that judges might want to expand human rights if they can.

Two general outcomes should appear if courts are deciding to promote human rights. First, courts with discretionary dockets^[4] should increase the proportion of rights cases within those dockets. Increases in human rights cases imply increased court attention to rights issues and the desire of the court to rule on these issues. Second, promoting courts should increase pro–individual rights (i.e. pro-rights protection) decisions. Increased attention to rights issues is insufficient for rights protections and expansion; courts must decide cases in a way that promotes human rights protections in order to support these hypotheses. This leads to the following hypotheses:

Methodology

I evaluate these two hypotheses predicting changes in discretionary docket and decision outcomes using original and secondary data from Mexico. Mexico is particularly useful because it incorporates complex and contradictory domestic politics, including a recently transitioning judicial system and intensifying organized crime and cartel violence, and significant achievements in certain areas of human rights. Moreover, Mexico exemplifies the same judicialization trends as experienced throughout Latin America, where, since the 1980s, courts have become increasingly politically important. Latin American courts are asserting rights not effectively guaranteed by the executive or legislature, leading citizens to more frequently resort to courts to resolve issues that were previously reserved for the political sphere (Seider, Schjolden, and Angell 2005). Mexico’s Supreme Court of Justice (Suprema Corte de Justicia de la Nación; SCJN)^[5] has similarly evolved and transformed through a series of constitutional reforms and changes in the power structures of the Mexican political system (Ríos-Figueroa 2007).^[6] As with many other Latin American countries, the Mexican Supreme Court had been perceived as historically subservient to the executive, corrupt, and ineffective. Since the 1994 judicial reforms, however, the  Court has adopted a more active role, taking controversial positions and garnering public attention in an unprecedented manner for judicial review and rights cases. This expansion of review powers has emboldened the Court to deal with controversial issues more openly than in the past (Domingo 2005; 2000). Indeed, the Court openly challenged executive power in 2000, when it resolved a conflict between lower-chamber members of the Congress of the Union and President Zedillo to investigate illegal campaign funds (Staton 2010). Importantly, the increased activism of the Court as a check to executive power has occurred in hand with relatively high compliance to the Court’s rulings even when they are politically inconvenient to the ruling party (Staton 2010; 2007).^[7]

In 2008, Mexico passed additional judicial reforms that introduced public oral trials to criminal cases and instituted the presumption of innocence in police investigations . While this reform passed in 2008, however, the deadline for full implementation by the Mexican states was 2016. As such, by October 2013, only three of the thirty-two states had fully implemented these reforms; thirteen other states partially transitioned. Finally, in 2011, the Mexican constitution was amended so that ratified international treaties and law are ranked as equal to constitutional law, which further empowers and obligates courts to constitutionally protect these international rights obligations.

In this sense, the case study of Mexico is descriptive, and it provides preliminary evidence to test my hypotheses. While a single case study examining only one country cannot offer a systematic test to generate conclusions that can be applied to countries beyond Mexico, it offers a first step in generating attention to this important topic and in generating empirically testable theories that can be examined in other contexts in future research. As such, the results provided in this chapter are applicable only to Mexico, though future research can examine the extent to which other countries’ high courts choose to promote human rights protections. Nonetheless, this chapter is the first to examine trends in domestic high court incorporation of international human rights laws.

I gather aggregate case data from the Mexican Supreme Court’s yearly reviews publicly available on its website from 2009 to 2014.^[8] Unfortunately, more detailed data on individual cases, issue areas, and panels are not publicly available. As such, my analyses are limited to the self-reported aggregate data. The limitation of aggregate data based on case type, rather than data for individual cases, is  that I cannot identify human rights cases at the case level. In other words, I can only identify types of cases that are predominantly rights related; however, I cannot identify the proportion of rights-related cases within each category, the types of rights represented within each category, or the case outcomes specifically. Nonetheless, I divide case types between mandatory and discretionary jurisdiction and then identify which categories of cases are predominantly rights related and which include identifiable-rights cases.

Within the Court’s mandatory jurisdiction, rights cases are represented as amparo cases.^[9] As such, this category of cases reflects Court attention and activity on rights issues.^[10] Within the Court’s discretionary jurisdiction, rights issues appear in action of unconstitutionality cases (acciónes de inconstitucionalidad) and facultad de atracción cases.^[11] Action of unconstitutionality cases represent abstract review^[12] over the constitutionality of state and federal laws.^[13] These include rights-related cases derived from the National Commission for Human Rights (Comisión Nacional de los Derechos Humanos; CNDH).^[14] Action of unconstitutionality cases brought by other parties may also be rights related, but we cannot know with aggregate data. As such, this public organization monitors potential rights abuses and brings these cases to the Mexican Supreme Court.

Facultad de atracción  cases represent a discretionary amparo jurisdiction, where if a case falls outside of the Court’s appellate jurisdiction but the Court deems some element of the case to be fundamentally important to Mexican law, it may rule on the matter itself.^[15] Hence facultad de atracción cases are rights cases that the Court would not normally have jurisdiction to hear, yet the Court decides to rule on the matter by essentially placing it within its jurisdiction.

Is the Mexican Supreme Court Choosing to Hear More Rights Cases?

In order to evaluate changes in discretionary dockets (H1), I use action of unconstitutionality and facultad de atracción cases. These cases represent the only discretionary portions of the Mexican Supreme Court’s docket. In other words, these are the only types of cases where the Court can choose whether it wants to take the case. Amparo cases cannot be examined in relation to H1 because the Court is forced to hear these cases; hence, changes in docket reflect not the Court’s desire to rule on these issues but changing litigation strategies beyond the Court.

Tables 1–3 show the number of cases within each category and the percentage of the total docket from 2009 to 2014 each represents. The number and percentage of cases (out of the total docket) represent the cases the Court actually accepted and heard (i.e., made decisions on).

Tables 1–3 show that Mexico enjoys discretionary power in only a small proportion of cases. They also reveal, however, that the Court has been increasingly activist in terms of “attracting” cases that would otherwise fall outside of their jurisdiction. The Court has increased the number of facultad de atracción cases it hears consistently each year. This means that the Court is increasingly making decisions and law on cases that would not normally fall within its jurisdiction. Action of constitutionality cases show some fluctuation across years, yet these increases in Court attention to rights issues demonstrate its desire to rule on these issues in ways that affect national law.^[16]

Table 4 depicts the proportion of cases by litigant for action of unconstitutionality cases in Mexico from 2008 to 2014.^[17] As the percentages indicate, rights cases introduced by the CNDH have garnered increasing attention by the Court.^[18] These yearly percentages underestimate the percentage of rights cases, since rights cases are often brought forward by other litigants (which would appear in the other categories).^[19] Nonetheless, the percentage of rights cases brought forward by the CNDH that the Supreme Court ruled on increased to nearly 28 percent in 2013.^[20] Since these cases represent a discretionary portion of the Court’s docket, the Court therefore decided to rule on more rights claims brought forward by the CNDH in 2013 and to a lesser degree in 2011.

^{Data compiled from: https://www.scjn.gob.mx/transparencia/paginas/trans_jurisd.aspx (inactive link as of 5/21/2020). Note that 2008 data reflects only the final fourth trimester.}

Tables 5 and 6 similarly reveal increased judicial attention and activism in facultad de atracción cases. These cases represent a discretionary amparo jurisdiction, where the increased number of these cases indicates that the Court is increasingly choosing to rule on rights issues. Table 6 shows the same data in percentage form, enabling direct comparisons across years and caseload. These results imply an increasingly activist Court, since these cases would normally fall outside of its jurisdiction. By resolving an increasing number of these cases, then, the Court is essentially informally expanding its jurisdiction.^[21]

^{Data compiled from: https://www.scjn.gob.mx/Transparencia/Indicadores_Gestion/SGAIG2T14.pdf (inactive link as of 5/21/2020)}

Tables 5 and 6 also show marked increases in direct amparo cases, which also consist of rights cases but are part of the Court’s mandatory docket (in blue). Amparo protects individual constitutional rights, and direct amparo consist of appeals of the final judgments in criminal or civil cases.^[22] The size of the amparo docket increased by roughly 8.5 percentage points between 2009 and 2014, when the most significant trend appears in direct amparo cases, moving from 25 percent to 43 percent of the total docket. Since these cases are mandatory, this substantial increase in cases does not necessarily reveal the Court’s desire to resolve these particular rights issues (unlike the changes in the discretionary docket composition), but it implies increased rights litigation.^[23]

Case Outcomes

Thus far, this study has addressed Court attention to rights cases. Yet how does the Court decide these cases? Since no case-level data are available, quantitative empirical analysis is not possible to evaluate H2. In other words, there are no data that attach individual cases to Court votes or outcomes. For this reason, I offer qualitative analyses of Court decisions on rights cases. The limitation of this type of analysis is that it cannot offer a systematic analysis across each case, panel, and time frame. Additional research will be necessary to collect case-level (or judge-level) data so as to better determine more detailed, systematic trends in case outcomes as well as driving forces (and motivations) for increased rights protections.

Qualitatively, it appears that the Court has increasingly resolved cases in favor of individual rights. The Court has become especially active in promoting habeas corpus and criminal procedure rights, antidiscrimination and reproductive rights, and civilian rights with respect to military actions. The Court’s active promotion of individual rights is illustrated by the UN’s awarding of the Defense of Human Rights Award in December 2013. The UN Selection Committee for this award recognized that “The national Supreme Court has accomplished very considerable progress in promoting human rights through its interpretations and enforcement of Mexico’s constitution and its obligations under international law. Additionally, the national Supreme Court has set important human rights standards for Mexico and the Latin America region.”^[24] Indeed, the Court has emphasized human rights and has placed increased weight on international treaty obligations. In 2011, the Court declared that judgments by the Inter-American Court of Human Rights (IACHR) represent the “law of the land,” and the Court ruled in 2013 that rights guaranteed by international human rights treaties have equal weight to those guaranteed by the Mexican constitution. Furthermore, court decisions include substantial references to international laws, including treaties, conventions, IACHR rulings, and other supranational court decisions.

Perhaps the most significant policy change instituted by the Mexican Supreme Court is the reduction of military jurisdiction and the extent to which the military enjoys in-house criminal or disciplinary procedures. In 2011, the Court ruled to reform Mexico’s flawed military justice system to hold soldiers accused of human rights violations accountable for their crimes. It declared that no civilian or human rights case should be tried in the military justice system. The ruling also stated that courts are obligated to comply with IACHR judgments and that its jurisprudence should be taken into account by Mexican judges. In 2012, the Court formally declared unconstitutional part of the military code requiring service members charged with a crime against civilians to be tried before a court-martial. The Court further published a formal order confirming its ruling and directing ordinary federal criminal courts to henceforth assume jurisdiction. The same year, the Court conferred legal standing to third parties who were not themselves direct victims of military aggression, which enabled family members of civilians killed by military forces to intervene procedurally in such cases.

Since 2008, criminal and procedural rights have been at the forefront of Supreme Court promotion—so much so that the Court has faced significant public controversy. While the 2008 reforms to move the country to faster public trials and an adversarial system, where prosecutors and defense attorneys can present evidence and oral arguments (like in the US),   represented a significant shift in criminal procedure, these reforms have not yet been fully instituted nationwide. As noted, by 2013, only three of the thirty-two states had fully transitioned, while thirteen states had partially transitioned. Hence full implementation of these institutional protections was not expected prior to 2016 (the deadline), especially with the difficulty of retraining prosecutors, lawyers, police, and judges. Yet the Supreme Court has moved to enforce criminal and procedural protections, especially through the presumption of innocence and firm conviction to due process rights. In 2013, the Court ruled that evidence obtained through torture and other violations of human rights is inadmissible. The Court also released a Canadian national who was in custody for eighteen months on charges of attempting to smuggle one of Muammar al-Gaddafi’s sons into Mexico on the grounds that his due process rights were violated. Even more controversially, the Court also ordered the immediate release of Florence Cassez, a French national who had been in prison for eighty-five months after being convicted of kidnapping and murder as one of the heads of the Los Zodiacos gang, because her rights to due process were violated.

In terms of women’s rights and discrimination, the Court has also made significant moves toward actively promoting rights. In 2012, the Court reinstated the original attempted murder charge in a domestic abuse case and remanded the prosecution to a judge for a new trial, saying that the victim’s legal rights were violated when the charge was reduced by a lower-court judge. From 2011 to 2013, the Court expanded abortion rights through a series of cases by striking down state laws that declared that life begins at conception and decriminalized abortions. The Court also upheld state laws authorizing gay marriage in 2012 in a series of cases and required the recognition of those marriages across all Mexican states. In 2013, the Court ruled that antigay comments and homophobic speech are not protected speech, which marks the first case dealing with hate speech heard by the Court. Indeed, in 2014 the IACHR applauded Mexico’s Supreme Court for adopting a protocol that aims to help judges decide cases dealing with sexual orientation and gender identity in ways that conform to internationally recognized rights standards.^[25] In essence, this protocol calls on judges to question the neutrality of the law applicable to a case if a situation of disadvantage is identified on account of gender identity or sexual orientation.

Hence even though Mexico has not been considered as pioneering or progressive with regard to rights—even as recently as 2011 (see Helmke and Ríos-Figueroa 2011)—important transitions are under way. Specifically, the Mexican Supreme Court has played an active role in promoting rights and enforcing them through reforms of the judiciary, military code, and criminal codes. For example, consistent with the 2011 Court decision, both houses of the Congress of the Union passed a reform of military justice code in 2014, ensuring that abuses committed by the military against civilians are investigated and heard in a civilian, rather than military, jurisdiction.^[26]

Furthermore, Mexico’s Supreme Court constitutionalized the IACHR’s conventionality control^[27] in 2011, where the Court recognizes the IACHR decisions as res judicata and thus binding. This 2011 constitutional amendment changed several articles of the Mexican constitution, creating a “new legal system of human rights protections” (Colli-Ek 2012) that places responsibility on all Mexican state authorities to take into account treaties to which Mexico is a party and requiring them to always favor rules that support the person. The Supreme Court has furthered issued decisions that altered the way Mexican judges adjudicate human rights cases by introducing conventionality control applied ex officio by all judges, thereby allowing judges to disregard domestic norms, laws, and administrative actions that breach international human rights treaties. Hence the Mexican Supreme Court dramatically changed the way judges (can) adjudicate.

Beyond the High Court, conventionality control appears preliminarily effective at the lower levels as well. In 2012, just one year after the constitutional amendment, lower-court decisions in three Mexican states (Jalisco, Nuevo Leon, and Oaxaca) made conventionality control arguments in 5.4 percent to 14.2 percent of human rights (direct amparo) cases. Specifically, lower courts in Jalisco made arguments using conventionality control in 5.4 percent of cases, Nuevo Leon courts made the same conventionality control arguments in 13.6 percent of cases, and Oaxaca made conventionality control arguments in their decisions in 14.2 percent of cases (Aguiar-Aguilar 2014). These courts (and lawyers) still defend human rights protections using national laws more often than international law, but they frequently cite the American Convention on Human Rights, International Covenant on Civil and Political Rights, Universal Declaration on Human Rights, and United Nations Convention on the Rights of the Child.

Lawyers cited these international laws as well as conventionality control more frequently than the federal judges, however, which is relatively unsurprising, since Mexican courts’ adoption of conventionality control is so recent. In other words, litigation strategies change more quickly than lower-court judicial decisions after changes in domestic policy. Considering that lawyers and their litigation are strategic (Wedeking 2010) and often responsive to changes in human rights laws (Simmons 2009), it seems logical that lawyers add these new legal norms and frames into their litigation strategies.

The virtually immediate appearance of conventionality control and the frequent references to international law at Mexican state-court levels provide some evidence of the use of these legal rationales by both local lawyers and lower courts in addition to the significant changes by the Mexican Supreme Court. While the Supreme Court appears to want to play an active role in catalyzing domestic legal change, promote human rights, and internalize international laws, this preliminary evidence provides limited but optimistic support that the Supreme Court is effectively facilitating international human rights law incorporation.

Conclusions

These preliminary results reflect important trends in the role of courts in actively promoting human rights. In Mexico, the Supreme Court is increasing the number of rights cases they hear in their discretionary docket. This activism has signaled the Court’s interest in and receptiveness to rights cases, which may persuade potential litigants to seek out the Court (see Baird 2007). Such a response to this signaling could explain the increase in amparo cases, which increased by roughly 8.5 percentage points between 2009 and 2014. Trends in amparo cases in courts’ mandatory dockets suggest that people are increasingly turning to the courts to resolve their rights issues.^[28]

Furthermore, judicial rulings by the Supreme Court since the 1994 reform, and especially after 2000, have indicated the willingness of the Court to act independently of the executive and even rule against the government (Domingo 2005). These rulings—along with the high levels of government compliance to them—have signaled to individuals, opposition parties, and political opponents that legal mobilization is a useful means to assert legal boundaries (Domingo 2005).^[29]

These results also suggest that there have been significant shifts in domestic law in terms of rights protections and that domestic courts are actively expanding substantive rights. While these results cannot offer a systematic, widespread perspective on the activities of these courts, they submit that the court plays a meaningful role in the diffusion of human rights and enforcement of international human rights laws, which future research should address. Courts have the ability to promote and expand human rights protections in a unique way. In the case of Mexico, the courts appear to play active roles in determining human rights policy through their decisions.

This chapter only provides a preliminary analysis due to severe data limitations. Data collection is necessary to systematically evaluate Court decisions on rights cases and the causal mechanisms for changes observed, such as judicial ideology, constitutional amendments, conventionality control, and domestic political pressures. Furthermore, it is important to discover whether federal court promotion affects individuals, especially when civil law mandates that most rights cases do not set policy unless a specific majority is reached and/or a series of similar, consecutive decisions occur. In terms of Mexico’s judicial reform, will states adequately transition to the new system to make the rights enshrined effectively enforced? Additionally, problems of police corruption rampant in Latin America may cause the region to fall behind in several human rights areas. Also, one must consider how ideologies and the professionalization of justices affect the decision to promote rights. How do international legal changes through conventionality control, for example, compare to domestic institutional changes in their ability to influence international law internalization? Are these recent trends in rights promotion and court activism temporary or part of a longer process of the development of the rule of law? These questions illustrate that these mechanisms and courts are ripe for future research.

Nonetheless, this study suggests that domestic high courts may play a more active role in the diffusion and enforcement of international human rights laws than previously assumed. Even in a country experiencing significant legal transitions, organized crime, intense violence, and widespread government corruption, the Mexican High Court still appears to increasingly prioritize human rights cases, thereby improving the lives of its citizens and promoting the diffusion of rights. As such, the domestic judiciaries of states—even those beyond the typical Western, liberal democracies—may play a more significant role in the development of human rights regimes than credited.

References

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