The recent surge in illegal firearms trafficking from the U.S. into Mexico has helped empower Mexican criminal groups to adopt highly confrontational strategies, contributing to a surge of violence throughout the country. This article addresses the regulatory asymmetries between Mexico and the U.S. with respect to the production, import, export, sales and possession of firearms. It reviews several important gun laws and explores why this asymmetry limits bilateral cooperation and encourages gray market activity. It also examines the autonomy of U.S. states to regulate firearms, as this creates a diverse regulatory map that complicates any effort to stem smuggling. The results are flourishing gray markets on one side of the border and violent criminal activity on the other.
Abstract The recent surge in illegal firearms trafficking from the U.S. into Mexico has helped empower Mexican criminal groups to adopt highly confrontational strategies, contributing [...]
Biobanking presents significant governance challenges. This is especially evident in Mexico, where the legal framework has not kept up with significant industry expansion. Twenty years ago, Europe was in a similar position. More recently, Europe has developed a comprehensive framework for addressing biobank expansion within ever-growing scientific and biomedical research communities. Based on this experience, we can draw many lessons, including those involving the implementation of laws, procedures and stakeholders’ consensus to ethically maximize the potential of samples. Mexican biobanking raises many issues, requiring solutions that are sensitive to its own particular needs. This article analyses the flaws of current biobanking regulations in Mexico by drawing comparisons with Europe. It pays special attention to informed consent, sample/data sharing systems, ethical tissue treatment and classification, governance models, best practices and the role of ethics committees. It argues that several European provisions regarding data protection and sharing can serve as guidelines for international research collaboration currently taking place between Mexico and Europe.
Abstract Biobanking presents significant governance challenges. This is especially evident in Mexico, where the legal framework has not kept up with significant industry expansion. [...]
This study, based on thirty-eight interviews of principals from public middle schools in Mexico City, analyzes the criteria and methods used by these school officials to identify underperforming teachers, as well as how they wield discretionary authority. The study also proposes several measures that can be implemented by educational authorities to improve how these cases are handled. These measures include improving both principals’ training and the mechanisms used to evaluate teacher performance in the classroom.
Abstract This study, based on thirty-eight interviews of principals from public middle schools in Mexico City, analyzes the criteria and methods used by these school officials to identify [...]
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.
Abstract 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 international responsibility of States is based on two legal precepts: first, a State must be subject to international obligations, and second, a State must be responsible for noncompliance with such obligations. Specific and concrete damages are not required for the allocation of international responsibility to a State. Given these elements, the Inter-American Human Rights System, through the Inter-American Court, will not hear disputes involving a State’s international responsibility without the existence of a specific and concrete human rights violation. While this seems appropriate, rulings by the Inter-American Court have subsequently opened the door to States’ objective in ternational responsibility, i.e., responsibility under the American Convention on Human Rights that require no showing of a specific violation. In the author’s view, the international responsibility of States, similar to Public International Law, should be based on noncompliance without the need for a victim –especially in human rights cases. For this reason, the Inter-American Court is correct in holding States responsible for domestic laws that contravene its own human rights commitments under international treaties– regardless of whether or not these norms have been enforced.
Abstract The international responsibility of States is based on two legal precepts: first, a State must be subject to international obligations, and second, a State must be responsible [...]
This article tackles the complex question of the relationship between international and domestic adjudicatory bodies. It does so by analyzing the debate between liberals and developmentalists over the effects of investor-state arbitration tribunals on domestic courts. For liberals, investor-state tribunals are a positive complement to domestic judicial institutions for their ability to “de-politicize” investment disputes, leading to economic policy stability that encourages foreign investment. For developmentalists, the same international alternatives reduce institutional quality by allowing powerful actors such as powerful corporations to skirt local judicial institutions. Through a comprehensive analysis of the negotiations of Chapter Eleven of NAFTA and the recent cases in the sweeteners conflict between Mexico and the United States, this article attempts to address how investor-state arbitration tribunals and constitutional courts interact and affect each other. The case study reveals two important lessons to this debate: i) scholars arguing against investor-state arbitration on the grounds of “circumvention” of domestic courts may do well to calibrate the debate of the use of remedies as one of added remedial possibilities in complex litigation, ii) those defending investor-state arbitration on the grounds of “de-politicization” of investment disputes may do well to consider the veto power wielded by international adjudicatory bodies that impact the judiciary and political systems of the host country.
Abstract This article tackles the complex question of the relationship between international and domestic adjudicatory bodies. It does so by analyzing the debate between liberals and [...]
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.
Abstract 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 [...]
BRICS is an exogenous invention that was institutionalized as a convenient geopolitical market strategy, which favored each of the five BRICS countries to a greater or a lesser degree. As such, it is now a political group without deep roots and its future will be conditioned by any dividends it might yield over the coming years as a result of political, economic and social correlations and divergences.
Abstract BRICS is an exogenous invention that was institutionalized as a convenient geopolitical market strategy, which favored each of the five BRICS countries to a greater or a lesser [...]
The main function of administrative courts in Mexico is to resolve disputes between administrative agencies and citizens. Mexico is a federal system with 31 states and a Federal District. Twenty-nine states and the Federal District have administrative courts of this type. Most of these courts follow the French model of reviewing administrative actions in bodies that do not form part of the regular justice system. However, almost half of the states have deviated from this model and ascribed these administrative courts to the judicial branch. How does this change in the institutional framework influence the way administrative court judges review administrative action disputes? In order to answer this question we analyzed the rulings of judges from the different types of courts empirically. The Mexican federal court structure made this experiment possible because there are both administrative courts incorporated into the judiciary and autonomous courts. We used a database of more than 4, 000 cases from over twenty local administrative courts. We analyzed the influence of the branch to which the court belongs, the procedures of appointment for judges, the length of a judge’s term in office, and the protection of judges’ salaries over their actual decisions. We classified decisions into two broad categories: pro-government decisions and case dismissals. The results point toward evidence that the branch to which the court belongs, the length of a judge’s term in office and governor intervention in the appointment of judges affect judges’ decisions.
Abstract The main function of administrative courts in Mexico is to resolve disputes between administrative agencies and citizens. Mexico is a federal system with 31 states and a Federal [...]
In June 2000, the United States and Mexico signed a treaty for the delimitation of the continental shelf in the western Gulf of Mexico beyond 200 nautical miles. When the treaty was signed, both countries realized that the interpretation and implementation of the treaty depended on the scientific and legal certainty of determinations regarding how far their respective submarine continental shelves extended. On 13 December 2007, Mexico submitted information to the Commission on the Limits of the Continental Shelf regarding the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in relation to the Western Polygon in the Gulf of Mexico. Mexico sought an extension of its continental shelf in the Western Polygon based on international law, UNCLOS, and bilateral treaties with the United States, in accordance with Mexicos domestic legislation. Peaceful delimitation of maritime borders is essential to maintaining world order. Mexico is a country of peace, and has attempted to use international law as a tool to represent its interests. Mexico has meticulously adhered to a series of international precedents and treaties to support its claim. Moreover, Mexico has gathered significant scientific evidence to verify its sovereign authority over its maritime areas. In the authors opinion, the United States should recognize these claims and show the world that the U.S. stands for fairness, equity and the rule of law.
Abstract In June 2000, the United States and Mexico signed a treaty for the delimitation of the continental shelf in the western Gulf of Mexico beyond 200 nautical miles. When the [...]
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.
Abstract 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 [...]
Drawing on T.H. Marshall’s classic analysis of how civil, political and social rights evolved in Great Britain, this article follows authors, like Rose and Shin, who used a “social pyramid” to illustrate how the inverted development of such citizenship rights in other nations may weaken liberal democracy. In contrast, I argue that this sequence varies depending on a society’s own unique history, and that no one single path can define the development of liberal democracy. In Mexico, the development of citizenship rights (mainly social, political and civil, following T.H. Marshall’s categorization) was catalyzed by a series of economic and security-related crises that impacted a broad cross-section of Mexican society. The result of these pressures —both from above (organized elites) and below (organized popular groups)— has been greater enforcement of already existing political rights. This major change eventually led to competitive ballot elections (since the late 1990s) which in turn has forced politicians to focus on reshaping social rights (e.g., making their application universal rather than selective). Since President Felipe Calderon’s (2006-2012) “war on drugs, ” there has also been notable legislation —backed by widespread public support— to strengthen civil rights (e.g., 2008 criminal justice reform, 2011 reforms to the amparo and human rights).
Abstract Drawing on T.H. Marshall’s classic analysis of how civil, political and social rights evolved in Great Britain, this article follows authors, like Rose and Shin, who used [...]
This article is about the great changes that have happened in recent years in international politics as well as the challenges that these thorough transformations imply. Some examples of great significance are the fall of the Berlin Wall (1989), the attack on the New York World Trade Centers twin towers and the Pentagon (2001), and the crash of Wall Street (2008). These are historical events that have had practical and theoretical repercussions for different humanistic disciplines like political science, law and international studies. The authors purpose is to analyze both practically and theoretically the new paradigms of global politics. The impact of globalization on Latin America is given special attention. The author concludes by presenting some alternatives in order to resolve the dilemmas posed by globalization.
Abstract This article is about the great changes that have happened in recent years in international politics as well as the challenges that these thorough transformations imply. Some [...]
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.
Abstract 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 [...]
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.
Abstract 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 [...]
This article reviews the development of the Mexican media, both broadcast and print, through an analysis of their current legal framework, culture, ownership structure and common practices. It is based on archival research, interviews and a review of the available literature. Its analytical framework is based on concepts of the theory of deliberative democracy developed by contemporary philosophers such as Jürgen Habermas, James Bohman, Jane Mans-bridge and Joshua Cohen. Within this framework, it argues that the major obstacles to democracy in Mexico, which include social and economic inequalities, patronage and a weak rule of law, also constitute obstacles to the deliberative development of the Mexican media.
Abstract This article reviews the development of the Mexican media, both broadcast and print, through an analysis of their current legal framework, culture, ownership structure and [...]
Over the past two decades, Mexico has gone from an authoritarian regime to an electoral democracy. Although this change is undoubtedly positive, the institutional engineering in place and the balance of power among institutions has led to increased political instability and a latent risk of political paralysis. There is substantial literature asserting that these problems may be connected to the core characteristics of presidential systems, however, I demonstrate that in the Mexican case, it is also due to the electoral rules derived from the reforms of the 1990s and the subsequent electoral results. To substantiate this claim, I present the historical conformation of the presidential, political and electoral systems, as well as the balance of power derived from later system structures and the problems that can trigger instability. Finally, in response to the vast amount of literature that asserts that presidential systems generally shift to a parliamentary or semi-presidential system to perform better, I present an original formula based on relatively simple and feasible political reforms that can enhance the Mexican presidential system and prevent political paralysis.
Abstract Over the past two decades, Mexico has gone from an authoritarian regime to an electoral democracy. Although this change is undoubtedly positive, the institutional engineering [...]
Telecommunications reform, one of the pillars of President Enrique Peña Nietos highly-publicized structural reforms, was enacted to recognize as human rights access to: (i) information and communications technology; and (ii) broadcasting and telecommunications services, including broadband and the Internet. The reform also gave the Mexican government the authority to sanction or even split up companies engaged in monopolistic practices, and to establish ad hoc restrictions to minimize undue market advantages for dominant industry players – defined as companies that capture 50 percent market share measured by number of users/audience, capacity or network infrastructure. This article explores several aspects of this new legislation, including regulatory agencies; media and plurality; audience and users’ rights; restrictions to minimize market manipulation; mergers; data retention and geo-localization; and access for persons with disabilities. It also examines various aspects of the legislative process, as well as some broader implications of the new law.
Abstract Telecommunications reform, one of the pillars of President Enrique Peña Nietos highly-publicized structural reforms, was enacted to recognize as human rights access to: (i) [...]
A fundamental question concerning the upstream business model that is incorporated into the 2014 Energy Reform in Mexico concerns the intended evolution of the energy policy framework in which it appears. The situation of “before,” as alluded to in President Peñas remarks on March 18, 2015, was one in which Pemex served as the iconic state monopoly, and through which, by virtue of Article 6 of the now-abrogated Petroleum Law of 1958, all contracting was required to take place under restrictive terms that excluded the business model of an oil company. The government is now offering a mineral contract that approximates the business model of a mineral lease as understood diverse jurisdictions, including the U.S. and Mexico. There are important differences, however, ones that represent for the State and the prospective operator and layers of uncertainty and regulatory discretionality. As for the broader benefits for the country that the new involvement of oil companies might bring, there are a priori reasons for concern: the government seeks to sharply restrict the reporting of statistical data on the operations and discoveries of the oil companies, including Pemex. All such data are to be funneled through and managed by a single government agency (CNH), redolent of the way the way that Pemex has traditionally reported data. A decade will be needed to recast the national oil narrative in a way that allows for an evolution of the upstream regime in 2026 in which a mineral lease will be offered to oil companies.
Abstract A fundamental question concerning the upstream business model that is incorporated into the 2014 Energy Reform in Mexico concerns the intended evolution of the energy policy [...]
The study of commercial law can be divided into four basic categories: (a) individuals (natural persons); (b) objects of commerce; (c) legal instruments and (d) administrative and legal procedures. Business relations between individuals and business entities requires significant legal documentation, including atypical or nonstandard business contracts. A central feature of all business transactions is the “legal entity”, used by organizations worldwide to conduct business. In order for many businesses to carry out routine activities, they must have many of the same legal rights and responsibilities as natural persons. In a word, these entities require “legal personhood”. Which leads us to the question of Legitimation. The most widely used legal instruments are nonstandardized business contracts. In essense, this is the delineation of contracting parties as entities with well-defined rights and obligations. This authority depends, in turn, on the legitimacy of the “personhood” of the contracting parties, which is often a point of dispute in business relations. Regardless of whether one accepts the use of terms “legal entity” and “legal personhood”, they often give rise to immeasurable and diverse conflicts domestically, regional and at global level. This had led to efforts to improve the rules of the International Chamber of Commerce and improve legal models that provide guidance to diverse nations. We have reviewed the works of different authors concluding with the personal insights of Elvia Arcelia Quintana.
Abstract The study of commercial law can be divided into four basic categories: (a) individuals (natural persons); (b) objects of commerce; (c) legal instruments and (d) administrative [...]
The Michoacanazo was a federal criminal trial in Mexico prosecuted by the Attorney Generals Office against local and state public officials from the state of Michoacán who were indicted for having ties with the local drug cartel formally known as “La Familia Michoacana.” With the indictment, more than 30 public servants were arrested and sent to prison in a roundup carried out by the federal police in May 2009. Within a two-year period, all of those arrested were eventually released. This case had strong legal and political implications nationwide because it pitted the state of Michoacán against the federal government, as well as President Felipe Calderons administration against the Mexican Federal Judiciary. The Michoacanazo provides a glimpse into the inner workings of the Mexican federal judiciary when powerful interests collide, and corruption intermingles with politics, a drug cartel, and the complexities of handling drug-related trials.
Abstract The Michoacanazo was a federal criminal trial in Mexico prosecuted by the Attorney Generals Office against local and state public officials from the state of Michoacán who [...]
This work gives a synopsis of the evolution of public administration control mechanisms in Mexico. It highlights the instrumental nature of oversight, as well as regulatory and assessment aspects, and discusses issues like the historical design of the control instruments used in Mexican public administration. Certain social and political aspects from a legal perspective of administrative anti-corruption regulations are then underscored. The article concludes by drawing attention to the fact that neither the newly designed political-administrative anti-corruption structure in Mexico (the National Anti-Corruption Commission) nor the new mechanism to emerge from draft legislation (the National Anti-Corruption and Oversight Institute) will not eliminate corruption in the country because they replicate the same model established for reforming legal institutions. This article aims to show how the Mexican model has repeatedly designed administrative rules and structures that are unable to rise above the political and social spheres in which the complex phenomenon of corruption is deeply entrenched and creates a schism between legislative development and Mexicos social-political experiences in its fight against corruption. These observations can serve to help other countries design anti-corruption instruments. China is cited in this article because this article was presented as a speech regarding the Mexican experience in that country. It should be noted that the intention of this study was not to make a comparison of corruption or of the legal structures in these countries, but to analyze the case of Mexico.
Abstract This work gives a synopsis of the evolution of public administration control mechanisms in Mexico. It highlights the instrumental nature of oversight, as well as regulatory [...]