Summary of Environmental Law in Mexico

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1 Introduction to the Legal System

 

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1.1 Structure of Government

 

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The basic structure of the Mexican government is set forth under Article 40 of the Political Constitution of the United States of Mexico (Constitución Política de los Estados Unidos Mexicanos) (hereinafter Mexican Constitution) which establishes Mexico as a "representative, democratic and federal republic."

Civil Law Systems

The Mexican government is based on the ancient Roman system of codified law known as the "civil law" system. In the civil law system, the legislative branch plays a key role in the development and passage of laws through its two houses, the House of Representatives and the Senate. The House of Representatives is intended to represent the people, while the Senate represents the 31 states and the Federal District. Both houses of Congress propose and pass laws, and the Senate also is responsible for ratifying Mexico's international treaties and agreements.

Commissions are formed within the congressional houses, specializing in the various matters arising under the Constitution, for which the members must have technical and specific knowledge. The Mexican civil system reduces the need for judicial interpretation. There are very few instances when, due to the lack of a specific provision in the law, the court is required to interpret the law and create a new rule. In addition to the legislative process, the executive branch creates administrative law by issuing regulations and official standards that implement existing legal provisions. The executive branch has also dominated the creation of new laws, through the tabling of proposed legislation before Congress (Congreso de la Unión).

National - Sub-national Relations.

The Mexican Constitution establishes areas of federal and state competency. In some areas, however, federal and local jurisdictions overlap (as is the case for environmental regulation). Constitutional Article 124 clearly provides that "Any powers not expressly conferred by this Constitution to federal officials are understood to be reserved to the States." The coordination of federal and local efforts is achieved through guidelines established in the federal legislation and by compacts made between the various authorities. In accordance with Article 11 of the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente) (hereinafter Ecology Law), as far as environmental issues are concerned, the federal government may enter into coordination agreements or compacts with the states or the federal district in order for them to take on specific duties. Federal laws are mandatory in the entire Mexican territory, while state and municipal laws are only binding in the issuing state or municipality involved.

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1.3 Sub-national Governments

 

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The Mexican Federal Republic (República Mexicana) is composed of 31 states and a Federal District (Distrito Federal (DF)), which serves as the seat of the Federation's powers. Each state is subdivided into municipalities while the Federal District is made up of delegations. The Mexican Constitution establishes the basis for the form and structure of state governments. Each state has its own local constitution as well as a governor who serves as the highest local executive authority. The Federal District does neither have a local constitution nor a governor, but rather Government Bylaws (Estatutos de Gobierno). The local government authorities in the Federal District are the Legislative Assembly of the Federal District, the Head of Government of the Federal District, and the Superior Court of Justice of the Federal District.

Native Governments / Indigenous People

In Mexico, some municipalities are mainly populated by indigenous peoples who have distinct organizations, laws, religions, languages, traditions and customs. These indigenous groups are granted special protection under Mexican law as minorities. Indigenous people are subject to all applicable federal and state laws and provisions and may only use their own organizations to deal with local issues.

It should be noted that in August 2001, the Constitution underwent the "Indigenous Reform" in which some constitutional articles were amended to include provisions on indigenous groups. One of the key reforms is found in Article 2, recognizing Mexico's pluricultural makeup. Section I of the same article acknowledges and guarantees the rights and autonomy of indigenous peoples and communities, to decide internally the form of their community living and their social, economic, political and cultural organization, among other aspects.

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1.6 Role of the Executive in the Law-Making Process

 

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The executive participates in the law-making process in three ways. First, the President may table a bill before Congress. Second, the President must approve and proclaim the legislation enacted by Congress before it becomes law. Finally, the President and auxiliary administrative entities participate in the implementation of promulgated laws by issuing regulations and NOMs. Regulations are issued exclusively by the Executive and must be signed by the Secretary of the Interior (Secretario de Gobernación). This process of executive rule-making is known as "referendum". Generally, executive referendums elaborate upon specific laws passed by Congress.

In an effort to modernize the law making process, Congress recently enacted the Federal Law on Metrology and Standardization (Ley Federal de Metrología y Normalización) (hereinafter Standardization Law) on 1 July 1992. The Standardization Law changed the status of all technical standards issued before 1 July 1992, from mandatory to voluntary. Nearly all technical standards were subsequently issued anew or consolidated as NOM pursuant to the new Standardization Law. The Law makes the distinction between Mexican Official Standards With regard to environmental protection, NOMs impose standards in the areas of: biodiversity and natural resources, water usage and the prevention and control of water pollution and the pollution of aquatic ecosystems, the exploration and exploitation of nonrenewable resources, the prevention and control of air pollution, hazardous waste management, environmental risks, noise emissions, vibrations, thermal and light energy, and the generation of pollution. For information on citizen participation in the standardization process, see Chapter 6.1.

It should be noted that Chapter II of the Standardization Law provides for citizen participation in the development and modification of Mexican Official Standards. Note that the Regulations to the Law were published on 14 January 1999, containing provisions on the standards and on the Standards Advisory Committees.

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1.7 Role of the Courts

 

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The Federal Courts (Tribunales Federales) have two basic functions in the Mexican legal system: the resolution of legal conflicts and the interpretation of law through jurisprudence. The most important function is the resolution of legal conflicts. Generally, this implies applying the law to a case in contention. In some instances, however, when the court is required to interpret or apply a law to special circumstances not directly addressed by the law, it creates jurisprudence when deciding on the conflict. The creation and effects of jurisprudence are established in the Amparo Law (Ley de Amparo). Only the Supreme Court of Justice and the Collegiate Circuit Court (Tribunal Colegiado de Circuito) may create jurisprudence that is binding upon all lower federal and state courts and tribunals. Obligatory jurisprudence of the Supreme Court is created only when there has been a series of five consecutive similar rulings or judgments. A single ruling to the contrary annuls the binding nature of jurisprudence. The Supreme Court has final appellate jurisdiction over all federal tribunals and, as a matter of fact, over state courts as well, through the amparo process described below.

Amparo. Mexico has a federal judicial review system for the protection of individual rights guaranteed under the Mexican Constitution, known as amparo. An amparo suit may be brought in regard to: (1) any law or action by authorities that violates an individual right guaranteed under the Mexican Constitution or federal laws; (2) laws or federal official actions that violate or restrict the sovereignty of the states or that of state laws; or (3) official actions that invade the sphere of federal authority. Only the parties that are directly affected by an action or a law of the government may bring an amparo suit. The amparo system does not empower the Mexican Federal Courts to make a general declaration that an action taken by Congress or the President is unconstitutional, since the declaration only applies to the parties involved in the proceedings.

There are three types of amparos:

Direct Amparo. Decisions made by state or federal courts, or by administrative tribunals may be appealed through a direct amparo. The direct amparo is brought before a Collegiate Circuit Court or the appropriate chamber of the Supreme Court and may be based on both procedural and substantive errors. It is independent from a standard appeal.

Indirect Amparo. An amparo brought to challenge an official action, which allegedly violates a constitutional right, is known as an indirect amparo. Such official actions involve the following issues: federal treaties; federal or local laws, regulations, decrees or agreements, or actions that do not involve judicial, administrative or labor tribunals. The procedure consists in the aggrieved party filing a petition for an order with the District Court where the offending agency is located or where the action took place, requesting the Court to require the responsible authority to cease and desist from such action.

Amparo Against a Law. Instead of pursuing the amparo against the implementing authority, the aggrieved party may bring an amparo suit "against a law", challenging the constitutionality of a federal or state treaty, law, regulation or decree. As discussed above, the decision of the court will only be binding upon the parties involved in the proceedings. Thus, other courts hearing similar appeals in the future are not compelled to follow such a ruling until obligatory jurisprudence has been created following five consecutive decisions of the same nature.

General limitations of the amparo system are set forth in the Amparo Law. One such limitation is that decisions of the Supreme Court are not subject to amparo appeals. Another one stems from the fact that judicial and administrative remedies must be exhausted before an amparo suit may be brought.

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2003