The Pro Persona Principle and Mexico's Human Rights

For the casual observer, the dusty legal system of constitutional supremacy might seem like a relic from a bygone era. But venture south of the Rio Grande, and you'll find a legal landscape positively abuzz with this seemingly archaic concept. Here, in the heart of Mexico, a quirky legal principle known as the "pro persona" principle has become the unlikely protagonist in a fascinating narrative of legal evolution.

Imagine a magnificent pyramid, a la Hans Kelsen, each layer meticulously organized, representing the hierarchy of laws. In pre-2011 Mexico, the Constitution, our beloved "Magna Carta," sat proudly at the apex. Below it, international treaties resided in a layer of comfortable familiarity, nestled snugly beside federal laws. But this tidy arrangement was destined for a shakeup.

The year is 2011, and Mexico is about to begin a grand constitutional reform, a human rights struggle. Signs of change begin to ripple through the legal corridors: the pro persona principle, championed by the reform, is poised to disrupt the established order. This curious fellow, the pro persona principle, throws a wrench into the Kelsenian pyramid, elevating international human rights treaties to a position above even national laws.

Think of it as a promotion, a long-overdue recognition of the importance of human rights standards. But why the sudden shift? Well, dear reader, it all boils down to a desire to modernize, to bring Mexico's legal framework in line with the international conversation on human rights. The creation of the National Human Rights Commission in 1990 marked the first tentative steps in this direction, followed by Mexico's acceptance of the contentious jurisdiction of the Inter-American Court of Human Rights in 1998.

This latter move was a game-changer. It meant that individuals who felt their human rights had been violated by the Mexican state could now bypass national mechanisms and appeal directly to the Inter-American Court. A safety valve, a champion for the downtrodden – the pro persona principle, with its unorthodox approach, was proving its worth.

However, the story doesn't end there. This legal saga, like any good Mexican telenovela, is filled with twists and turns. The pro persona principle, though lauded by some, has its fair share of detractors. Critics argue that it undermines the sovereignty of the Mexican legal system, creating a messy overlap between national and international laws. They yearn for the days of the neat and tidy Kelsenian pyramid, where everything had its designated place.

How International Law Took Flight in Mexico

The pro persona principle, with a name that sounds like a lost spell from a forgotten language, translates roughly to "on behalf of the person." It's a champion of the individual, ensuring that international human rights treaties, those grand pronouncements promising dignity and freedom, aren't just lofty pronouncements but enforceable realities. The story of how this principle rose to prominence in Mexico is a captivating telling, one that intertwines with the very notion of what it means for a nation's laws to be supreme.

The pre-2011 Mexican legal system was a strictly hierarchical one. The Constitution, Mexico's Magna Carta, reigned supreme, followed by national laws passed by Congress. International treaties, even those on human rights, occupied a lower rung. This meant that if a Mexican law conflicted with a human right enshrined in a treaty, the law often won. It was a frustrating reality for those seeking justice, their cries for dignity muffled by the thick walls of national legislation.

Then came the 1990s, a decade of change and awakening. Human rights concerns were gaining international traction, and Mexico, eager to be a part of this global conversation, set out on a legal search for justice. In 2011, it culminated in a landmark reform – the "constitutionalization of international human rights law." This reform was a legal sleight of hand, a clever maneuver that elevated the status of human rights treaties. With a flourish of legalese, these treaties were granted the same constitutional weight as Mexico's own Magna Carta.

This, however, sparked a debate amongst legal scholars. Some saw this as a weakening of the Constitution's supremacy. After all, weren't treaties now on equal footing with the nation's foundational document? But others, like our unnamed doctrinaire, offered a more nuanced perspective. They saw the concept of supremacy evolving. The Constitution, they argued, wasn't being dethroned; it was becoming a "crucible of rules." It remained the ultimate authority, but now, its power lay in setting the framework for how all these legal instruments – national laws and international treaties – interacted with each other.

This is where the pro persona principle steps in, our dusty protagonist finally getting its moment in the legal spotlight. It ensures that when a Mexican citizen faces a situation where a national law violates their human rights as guaranteed by a treaty, they can invoke the pro persona principle. This allows them to bypass the lower-ranking law and directly seek protection under the higher authority of the treaty.

The implications of this are profound. It empowers individuals to hold the government accountable for upholding human rights. It injects a dose of fairness into the legal system, ensuring that the lofty promises of international treaties translate into tangible realities on the ground. This, of course, isn't the end of the story.

A Legal Chameleon with a Human Heart

This shift wasn't without its skeptics. Legal purists, clinging to the old pyramid model, worried that the Constitution's supremacy was being diluted. But as legal scholar Marcos Del Rosario points out, this isn't a power struggle. It's a beautiful paradox: by sharing the spotlight with international law, the Constitution actually strengthens its ability to protect its citizens. It's like a superhero gaining a powerful new ally, not a rival.

The 2011 reform of the Mexican legal system marked a turning point. It enshrined the principle of pro persona, making it abundantly clear that judges, when faced with a human rights dilemma, must engage in a delicate art called "harmonious interpretation." This process involves piecing together Articles 1 and 133 of the Constitution, prioritizing a reading that elevates human rights above all else.

Imagine a judge faced with a national law, perhaps one passed decades ago, that restricts freedom of speech. Now imagine this law collides head-on with a recently ratified international treaty guaranteeing the same right. Pro persona steps onto the scene, whispering in the judge's ear, "Remember, human rights take precedence." The judge, guided by this principle, might choose to interpret the national law in a way that aligns with the treaty, ensuring the fullest possible protection of free speech.

Pro persona isn't just a legal principle; it's a philosophy. It embodies the belief that human rights are not mere words on paper, but the very foundation of a just society. It's the legal chameleon, adapting to the ever-evolving international law, ensuring that individuals are always at the center of the legal system. The Mexican legal system, once a solitary monarch, has embraced the power of collaboration, building legal instruments that safeguards the fundamental rights of its citizens.

Can Law Keep Up with a Globalized World?

The idea of a single, global law might be tempting for the control freaks amongst us (we're looking at you, micromanaging monarchs of the past). But the reality is, countries are like snowflakes – beautiful in their individuality, and a bit of a mess if you try to shove them all into the same cookie cutter.

Mexico, for instance, has its own unique set of values and traditions, a rich culture that originates from ancient Aztec wisdom and vibrant modern life. A one-size-fits-all law wouldn't account for these local flavors, and could end up forcing a top hat onto a head that craves a good ol' sombrero.

Some issues, like climate change or the rise of rogue robots (think Skynet, but with a penchant for salsa), do demand a global conversation. That's where international organizations like the United Nations or the Organization of American States come in, acting as legal matchmakers. They get countries talking, comparing notes, and finding common ground. It's like creating a global recipe book – everyone contributes their specialties, but they still have the freedom to add a dash of local spice.

Take artificial intelligence (AI) for example. This futuristic tech is like a mischievous mariachi band – full of potential, but it needs some clear guidelines. The European Union is all about strict regulations, wanting to keep this AI fiesta under control. Southeast Asia, on the other hand, is taking a more laid-back approach, recognizing that a one-size-fits-all digital poncho might not work for everyone.

Mexico is wisely joining the conversation on AI regulation. Here, too, the key is adaptation. We can learn from the global recipe book, but we need to cook it up with our own special ingredients, considering our cultural context and technological needs.

So, while a single global law might seem like a legal utopia, it's actually a recipe for disaster (or at least a very bland burrito). Instead, let's celebrate the diversity of legal frameworks, fostering international cooperation that respects local autonomy. Because in the end, a world with a bit of legal spice is a world that's much more interesting, wouldn't you agree?

In-text Citation: (Villa Bedolla, 2024, pp. 16-19)