In the previous section, intimacy has been identified as a constitutional right in Mexico. The protection of intimacy in the constitution shows that it may be considered a fundamental right of individuals. Also, and probably most importantly, it may be construed as a human right. The allocation of intimacy as a human right is crucial. It determines its relevance along with other constitutional rights, and this very acknowledgment of intimacy as a human right finds a broader protection within the international treaties ratified by Mexico, because international treaties are integrated into constitutional law. Particularly after the constitutional amendments of June 2011, the relevance and effectiveness of international treaties has increased. Now, in order to understand intimacy from a human rights perspective, it is necessary to review these recent amendments to the constitution, the international law applicable to intimacy, and a comparative analysis of intimacy, considering the jurisprudence of the Supreme Court in the United States.
IV.3.1. Recent amendments to the constitution and their direct impact on human rights and intimacy
The constitutional amendments of 2011 represent the most important development in human rights protection in Mexico in over three decades. Signed by President Felipe
Calderón on June 9, 2011, these reforms entered into force on June 11, 2011.54 The essence of these amendments has been so remarkable, that it marked the beginning of a new epoch in the SCJN.55 Among other things, this amendment incorporated a more
gender-neutral language, changing words like “men” (masculine) to “persons” (genderless). The following observations are the most outstanding modifications introduced by these reforms:
Literal wording. The title of Chapter I was renamed. It used to be called “Of the Individual Guarantees”, and it is now called “Of the Human Rights and their Guarantees.” Before the change of this wording, it was unclear whether individual guarantees were the same as human rights. Scholars like Victor Martínez have discussed this issue in depth, portraying individual guarantees as something different to human rights, and backing up their point of view with plenty of literature supporting this argument.56 However, it is now clear that Human Rights have a constitutional status in Mexico, and the wording is no longer controversial. Moreover, gender-neutral language was introduced in Article 1, the first paragraph of this article acknowledges human rights recognized by the constitution and also by international treaties ratified by Mexico. It includes a non-discrimination provision based on sexual preferences and it adds that all authorities at all levels of government must protect the application of human rights. In this article, this gender-neutral language changed the word in Spanish “individuo” (male individual) to “persona” (person), securing a broad interpretation of the application of human rights, to all individuals regardless of their gender. Nonetheless, the meaning of the word persona is so broad in Spanish, that a recent decision by the SCJN had to limit the interpretation. In Mexican tax laws, an individual is called “persona física” (physical person) and a company, or a legal entity, is called “persona moral” (moral person). Since both individuals and companies are considered personas in the literal wording, a private company filed a constitutional injunction based on human rights grounds, claiming that the amount of taxes they were paying were so high that it violated their dignity as human beings, because with this taxation scheme, they were being used as a means to collect taxes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54 Official Journal of the Federation. Mexico, June 10, 2011. First Section, pp. 2-5.!
55 The SCJN sorts out its jurisprudence by epochs, every major constitutional reform leads to the
initiation of a new epoch. These reforms of June 9, 2011 have started the 10th epoch. The establishment of the Constitution of 1917 marked the beginning of the 5th epoch, and there have been only four other important reforms before this one.!
and not as human beings. The SCJN decided that the word persona in human rights provisions in the constitution was applicable to human beings only, and not to companies.57
Interpretation and procedural changes. Human rights must be interpreted according to the constitution and according to international treaties on human rights. In the past, the interpretation of the constitution had supremacy over any other legal provisions, including international treaties. This represented a problem before, individuals were not able to claim any rights conferred by international treaties directly. Any claim regarding human rights had to be justified according to legal provisions in national law. As a consequence, the material scope of international treaties had to be transposed into Mexican law so that individuals could claim a specific right. With this amendment, international human rights treaties and their jurisprudence are integrated into constitutional law, and this has modified the procedural access. Now, individuals can claim a right granted by an international treaty ratified by Mexico, even if that treaty has not been transposed into federal or local legislations. This has established a mechanism similar to the one European states have undergone when ratifying the Council of Europe (ECHR). In the European Union, member states must transpose directives, regulations and jurisprudence. In a similar way, Mexican laws, judges and courts must integrate international treaties from now on. So, any individual can claim and appeal to constitutional rights, international human rights and also their corresponding jurisprudence. Furthermore, if there is a conflict of interpretation, whichever interpretation is most favorable to the individual will be applicable.
These new approach to the direct interpretation of human rights could be identified in a recent divorce matter. A Mexico City tribunal made a decision on the interpretation of the obligations to provide nourishment after marriage.58 Their thesis is that women have the right to alimony after a divorce even if they did not have children during that marriage. The tribunal argued that the requirement of procreation for alimony was a discriminatory measure against women, with particular !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
57 Judicial Gazette of the Federation. Constitutional Jurisprudence. 10th Epoch. Book XXIII, Vol. 3,
August 2013; p. 1408.!
58 Judicial Gazette of the Federation. Third Tribunal on Civil Matters, First Circuit. 10th Epoch. Book
disadvantage to men or to same-sex couples, who did not have that requirement in the Cohabitations Partnership Law. The decision added:
“The conception of women that serves this interpretation and institutionalizes gender inequality is that of woman-mother, woman-child bearer, woman-sexual object, but it does not treat women as a person. This is a historic social interpretation made from a masculine logic (androcentrism), because even if the decision to have children belongs to the couple, it is not the male, but rather, the female who is judged for the lack of procreation.”59
This decision separates the constructive and economic sphere of matrimony when it comes to executing the right to alimony. The tribunal based its thesis on Art. 4 MexCon (men and women are equal before the law) and Art. 16 par. 1 of The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women…”60 This
thesis issued by the tribunal is important for this research due to its material scope and to its procedural approach. The scope includes marriage and gender equality, using the term androcentric to describe the logic of the discriminatory measure. And from a procedural point of view, it can be seen that a lower tribunal is directly applying an international treaty (CEDAW), without the intermediation of the SCJN. As mentioned before, international treaties have been integrated into constitutional law. Therefore, a Mexico City tribunal can directly integrate these treaties as constitutional law into their decision-making.
Basic conditions. In the temporary suspension of human rights due to a state of emergency as described by Article 29, this reform introduces restrictions for the application of such suspension mechanism. Even during the temporary state of emergency, human rights shall be protected, forbidding torture and capital punishment. The fifth paragraph of Art. 29 also foresees a review mechanism by the SCJN of any executive decrees passed during the state of emergency. The protection
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59 Ibidem
60 Ratified by Mexico on March 23, 1981. United Nations. Treaty Series. Vol. 1249. New York: United
of human rights is also applicable for citizens in basic conditions; Article 18 introduces the respect for human rights within the prison system.
Foreigners. Article 33 reinforces the human rights of foreign citizens, limiting the executive power of the President to expel foreign citizens without justification. After this amendment, the deportation process cannot discriminate a specific foreign citizen without a cause and a due process. Also, the amendments reinforce the protection of foreigners through asylum.
Delegation. The duty to protect human rights is also delegated to entities beyond the Supreme Court. These reforms grant the National Commission for Human Rights (NCHR) the proactive capacity to investigate human rights violations. The NCHR is currently entitled to submit Motions of Unconstitutionality. Any federal or sate law, as well as treaties ratified by Mexico can be challenged by the NCHR if it considers that they would constitute a violation of human rights. Also, public servants in general, according to Article 102, are now obliged to respond to the recommendations and claims regarding human rights issues. The public officer with the highest rank, the President, is now responsible for the protection of human rights as well. Article 89 includes the protection and promotion of human rights as another duty of the President.
IV.3.2. International Law
Mexico has signed and ratified many international treaties in human rights matters. As a member of the Organization for American States (OAS) since its very beginning, Mexico ratified its Charter on November 23, 1948. Subsequently, the American Convention on Human Rights (ACHR), also know as the Pact of San Jose, Costa Rica, was ratified on March 2, 1981.61 In this convention, Article 11 describes the right to privacy:
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61 United Nations. Treaty Series. Vol. 1144. New York: United Nations Secretariat, 1987. pp. 123 et
(1) Everyone has the right to have his62 honor respected and his dignity recognized;
(2) No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation;
(3) Everyone has the right to the protection of the law against such interference or attacks.
Furthermore, Article 17 defines the rights of the family:
(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the state;
(2) The right of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention;
(3) No marriage shall be entered into without the free and full consent of the intending spouses; (4) The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests;
(5) The law shall recognize equal rights for children born out of wedlock and those born in wedlock.
These provisions are in accordance with the United Nation’s Universal Declaration of Human Rights (UDHR) from theGeneral Assembly Resolution 217 A (III) of December 10, 1948. They relate to Article 12 for privacy:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks;”
and Article 16 for family and marriage:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
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62 The use of masculine possessive pronouns appears in the text of the conventions, it was not modified
Moreover, the International Covenant on Civil and Political Rights (ICCPR) of 1966, which was ratified by Mexico on March 23, 198163 reinstates the protection of
privacy in Article 17,
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation;
(2) Everyone has the right to the protection of the law against such interference or attacks.
Directly linked to this Convention, there is the case of Joslin et al v. New Zealand,64
decided on July 17, 2002, where the United Nations Human Rights Committee (UNHRC) rejected the arguments, stating that the New Zealand law regarding marriage did not violate the International Covenant on Civil and Political Rights. Fortunately, this is now irrelevant, because same-sex marriage became legal in that country on April 19, 2013. However, it does show precedent regarding the approach of the UNHRC towards this issue.
In a similar way, the Convention on the Rights of the Child of 1989, ratified by Mexico on September 21, 1990,65 protects the privacy of children in Article 16,
(1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honor and reputation.
(2) The child has the right to the protection of the law against such interference or attacks.
John Tobin and Ruth McNair have analyzed the Convention on the Rights of the Child extensively and they question whether it imposes an obligation on states to allow gay and lesbian couples to adopt.66 At least, there is no clear prohibition and the convention does not limit the term “parent” to a male-female couple constellation. In their findings, they share that, “There is no credible evidence that such relationships !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
63 United Nations. Treaty Series. Vol. 999. New York: United Nations Secretariat, 1983. pp. 171 et sqq.! 64 Dorsen, Norman, et al. Comparative Constitutionalism: Cases and Materials. Second Edition. USA:
West, 2010. p. 640.
65 United Nations. Treaty Series. Vol. 1577. New York: United Nations Secretariat, 1999. pp. 44 et sqq. 66 Tobin, John and Ruth McNair. Public International Law and the Regulation of Public Spaces: Does
the Convention on the Rights of the Child impose an obligation on states to allow gay and lesbian couples to adopt? International Journal of Law, Policy and the Family, 23 (2009), Oxford University Press, pp. 110-131.
[same-sex] cause harm to the development of children by virtue of the sexual orientation of their parents. On the contrary, there is an overwhelming and growing body of evidence to suggest that people living in same-sex relationships are just as capable of fulfilling their duties and responsibilities towards the children in their care as parents living in heterosexual relationships.”67
Regarding the protection of women, the Convention on the Elimination of All Forms of Discrimination against Women ratified by Mexico on March 23, 1981,68 provides specific details regarding the rights of women in marriage and family life; Article 16 states:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
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67 Ibidem, p. 127.
Comparing these multilateral treaties, what all of them have in common is that they grant the right to some sort of privacy and they protect the rights of the family. However, they do not mention the concept of intimacy and they do not define the concept of family. Reviewing the layers of privacy discussed in IV.2.2., the term privacy is being used in these conventions as a shelter of privacy in the umbrella of private life that secures its protection from external interference. Although the term family is not clearly defined by any of these international conventions, the UDHR does acknowledge in Art. 16 par. 3. that the family is the natural and fundamental group unit of society and that it is entitled to the protection by society and the State. It is noteworthy that the recognized fundamental group unit is the family, not marriage. As Chapter VI.1. will argue later on in this research, the most important institution when it comes to the legalization of intimacy is not marriage, but rather, the family. And the UDHR already acknowledges the family as the most important unit. As mentioned before, with the recent amendments to the constitution, international treaties and their jurisprudence become constitutional law. Hence, how do these conventions affect the protection of intimacy in Mexico and the decisions of the SCJN?
In terms of jurisprudence, the Inter-American Court of Human Rights has issued seven sentences in trials that involved Mexico. However, none of these cases has dealt with the issue of privacy, intimacy, marriage or the family yet. Eventually, any changes in the jurisprudence, even in cases that do not involve Mexico, will be used to interpret human rights according to Mexican Constitutional Law. Although the concept of intimacy is not mentioned in these treaties, it has been explained how the SCJN identifies intimacy within privacy. Justice Jose Ramón Cossío Diaz has