Noción,justificación y críticas al principio de proporcionalidad*

The principle of balancing is an argumentative structure that provides juridical solutions when fundamental rights have problems coexisting with one another. It allows to maximize fundamental principles within their own factual and juridical boundaries and consists of three sub-principles: suitability, necessity and weighting. The sub-principle of suitability serves to determine if state intervention in matters of fundamental rights has a constitutional basis. The sub-principle of necessity has the purpose of determining if the state intervention in fundamental rights is the least onerous alternative. The weighting sub-principle allows us to choose the constitutional principle that should prevail. The principle of balancing is a tool to bring harmony between fundamental rights in specific situations and it is superior to other methods of constitutional interpretation because it does not state a hierarchy a priori in constitutional principles but promotes the maximization of fundamental rights if possible.     

La ley natural y su falta de determinación. apuntes sobre la teoría clásica de la determinación del derecho natural

In classical philosophy only a fragment of the legal system is natural law. The natural precepts are solely a little part of the normative system of civil societies. Even though the natural principles are the fundament of positives rules, the iusnatural norms are not sufficient for the regulation of all aspects of human life. They are “indeterminate”. This is the reason of the need the normative power of State, of judges and particulars.     

Las restricciones a la libertad de reunión en relación con las elecciones en españa y méxico

This article compares and contrasts the laws that restrict freedom of assembly in Mexico and Spain during elections and electoral campaigns. It analyzes the key decisions and precedents of the Constitutional Court of Spain, the Supreme Court of Justice of Mexico and the Electoral Tribunal of Mexico. It also examines the decisions of the European Court of Human Rights with regard to the freedom of assembly, noting that this Court typically defends citizens freedom of assembly in political contexts although it tends to favor States in contexts of extreme violence such as terrorism. The present article argues that electoral authorities are mistaken if they prohibit meetings out of the mere suspicion that during the event, public support may be expressed for or against a candidate. Electoral authorities should enforce the principle of “favor libertatis” when deciding on limitations on freedom of assembly in electoral contexts.     

Interpretación de normas internacionales de distintos ordenamientos bajo el acuerdo de obstáculos técnicos al comercio de la OMC

This study gives evidence through the International Comparative Law, two rules that come from standardization bodies of different nature, such as standards of the International Organization for Standardization (ISO) and ASTM International (ASTM International), which are recognized in the international trade and domestic trade, but it plays erratically, being in some significant cases and not in others mandatory. Thus constituting real technical barriers to trade through discriminatory criteria, contrary to the provisions and spirit of the Agreement on Technical Barriers to Trade (TBT) of the World Trade Organization (WTO) and Free Trade Agreement (NAFTA), of which Mexico, the U.S. and Canada are also part.     

Facultad libre de la autoridad para reinstalar a los miembros de las corporaciones policiales como resultado del juicio de ponderación

Due to the existing climate of violence, corruption and public insecurity, the Constitution was amended to stop police forces' members from being reinstated in their jobs despite having obtained a judicial decision proving their dismissal was unfounded. This amendment was adopted in order to Streamline the police forces but it ultimately affects other constitutional rights and principles such as police forces members' careers and their professionalism. Based on the use of a weighted assessment or a proportionality test, this article proposes an alternative application of the constitutional reform to satisfy the enforcement of the will of the constituent and to avoid unnecessary or disproportionate action against the police forces' above-mentioned fundamental rights.     

La evolución del crimen de lesa humanidad en el derecho penal internacional*

Due to its “ex novo” character and the lack of a definition provided by a treaty, crimes against humanity have been evolutionarily defined by different international norms and by the jurisdictional activity of the International criminal tribunals that have been established throughout recent history up until the creation of the International Criminal Court. Thus, both positive and customary International criminal law have represented a competent judicial cooperative way to face these acts, first and foremost, by developing its gradual conceptualization and final codification and, secondly, through enabling the prosecution and the punishment of those responsible for these crimes. Accordingly, the evolution of the crimes against humanity’s definition is an outstanding legal element, which has contributed to the further consolidation of international criminal law.     

Hacia un modelo de atención a la discapacidad basado en los derechos humanos

The social model of disability is presented as a new paradigm of the recent disability treatment, that has had theoretical and legal current development. It is a model that considers that the origins of disability are not either religious or scientific, but social in a great measure. From this new perspective, it is emphasized that the population with disability can contribute to the society in the same circumstances that the rest of the population, which integrates the society, all this from a valorization of the inclusion perspective and respect of diversity. This model is closely related with certain essential values which underline the human rights, such as human dignity, individual freedom and equality; all these conduce to a decrease of barriers and lead to a social inclusion that sets basis to principles as: personal autonomy, nondiscrimination, universal accessibility, environmental normalization, civil dialogue, inter alia. The premise is that disability is part of a social construction, and it is not the deficiency created by the society itself what limits and prevents people with disability to be included, to decide or to design autonomously their own life plan with opportunity equality.     

El libre acceso a la información,las innovaciones tecnológicas y la publicidad de los actos Procesales

This paper raises questions about the Brazilian legal system, which takes to an extreme the constitutional principle (the Publicity Principle) requiring publication of legal cases, and is unable to properly distinguish between the need to publish judicial decisions, and the publication of documents and texts produced by the parties, thus endangering the protection of personal data, and representing a possible security risk to the State and society as a whole.     

Legitimación en las acciones colectivas

This paper analyses the standing in collective actions to enforce undefined and collective interests as well as homogeneous individual interests, according to the Brazilian legal doctrine and legislation. He treats the types of class actions, the standing to bring a suit and the adequate representation in the Latin American countries that have developed these matters: Argentina, Brazil, Chile, Colombia, Mexico and Uruguay. Of Argentinean Law, the author examines the collective amparo contained in article 43 of the National Constitutional, and the environmental and consumer’s procedures. Of Brazilian Law, the author studies the actions to enforce undefined and collective interests and homogeneous individual interests, contained in the 1990 Consumer’s Defense Code. The Brazilian Law guidelines have influenced the Model Code of Collective Procedures for Iberoamerica and the Chilean and Mexican Laws. In Colombia the collective interests are enforced by popular actions, and the equivalent to the homogeneous individual interests are defended through group actions.     

La protección de los derechos fundamentales del deportista en la lucha contra el dopaje. Una visión desde el ordenamiento jurídico español

Doping is addressed in this paper from two different scopes: on one hand, the legal regulations for prevention and repression are studied; on the other hand, the clash between the anti-doping control mechanism and a fundamental right such as the athlete's privacy is noted. We start from the irrefutable fact that “awareness against doping” is practically universal. The enactment of this law was a milestone in the history of the fight against doping in the Spanish regulation. However, the problem arises when the anti-doping legislation worldwide and in Spain, which enables some healthcare professionals and other people involved, to carry out several anti-doping operations that may conflict with the athlete's fundamental right to privacy, all of this in a context of strong media and social impact. For this reason, it is pertinent to raise the issue if one of these operations, such as the duty of permanent localization, is sufficiently justified in terms of protecting the sportsperson's health.     

La construcción de una democracia respetuosa de los derechos humanos. reflexiones a partir del modelo constitucional adoptado por la república de timor oriental

This paper proposes to show the benefits of adopting a constitutional model that incorporates fundamental rights and judicial review systems in order to build a democracy respectful of human rights. Such goal will be achieved analyzing the constitutional model adopted by the young republic of East Timor. To that end, first we will explain briefly the political background and the roots of the Constitution of this country. Further on, we will present some of the characteristics of the constitutional model of East Timor. Specifically, we will show that this Constitution: i) it is not made up only of rules, but also includes values and principles which are directly applicable, and works as validity standards for the whole legal system; and ii) it recognizes some legal contents -related to human rights- that limit the rules, decisions and actions made by authorities and citizens. Finally, we will point out some challenges that this constitutional models usually face when reviewing authority decisions.     

¿Por qué prevalece el estado de derecho? una aproximación comparada a las explicaciones centradas en la cultura de la legalidad

The objective of this paper is to analyze the relation between the concept of the Rule of Law and the culture of legality from a compared approach in order to establish the scope and limitations of explanations that are based in cultural factors. More specifically, we are interested in comparing the scope and limitations of culture-based explanations on why the Rule of Law prevails in certain countries: these explanations are centered in the construction of wide agreements between social actors and the control by civil society. Also we consider equally important the comparing of different definitions of culture of legality and the strategies and instruments that allow its construction. For this purpose we will center, specially, in the experiences of Hong Kong, Palermo and Bogotá.     

El régimen jurídico de la mediación civil y mercantil en conflictos transfronterizos en españa tras la ley 5/2012, de 6 de julio

This article analyzes in depth the regulation set forth by the Act 5/2012, of 6-7 as regards cross-border mediation. The article addresses some essential issues of this institution. Thus, the regulation of the agreement to mediate; the role played by mediators, their training and the recognition of their status; the law applicable to the merits of the dispute or the foreign recognition of any agreement reached between the parties after a mediation procedure are some of the issues studied in this article. The analysis highlights the relevance of the Act 5/2012 in Spain for promoting the use of mediation in Spain. But at the same time it shows the need for the Act to be fully implemented in order to solve some of the questions and problems that it still raises.     

La sumisión del poder público al derecho en el civil law y en el common law: estado de derecho,rule of law y su expansión al ámbito internacional

Generally regarded as synonyms, the Rule of Law and the Rechsstaat are different. There are between the two legal institutions substantial differences that we must distinguish rigorously. The idea of the public power submission to the law —expressed through both theoretical constructions— has gone beyond the State borders and, progressively, made its way into international scenario. For some authors, the root for the application of the principle of the Rule of Law to interstate relationships, within international society, could date back to the XVIII century. However, it was until a few years ago that the Rule of Law analysis, from a sttrictly international point of view, started to take off. In this article the author analyzes the differences between the Rechsstaat and the Rule of Law in order to study the extension of these conceptions and how it could be applied to highlight the preeminence of law at international level.     

La maternidad subrogada: una confrontación entre italia y méxico

The development of assisted reproductive technologies has amplified the procreative expectations and has changed the traditional conception of parenthood. A significant example of this phenomenon is offered by surrogacy, whose practice has raised several questions. The present article, suggests considering two perspectives of the contemporary debate, the ethical and the juridical. On the one hand the ethical context points out the deepest problems of the practice, analyzing the role f thepeople involved and establishing a comparison between two bioethical currents, the liberal and the personalist. On the other hand, the legal perspective sets some considerations about the Italian and Mexican laws.