Mexico's Position before the United Nations
The government of Mexico has submitted a document to the UN General Assembly and Security Council, dated January 13, 2025, rejecting the expansive interpretation of Article 51 of the United Nations Charter as a basis for justifying the use of force against non-state actors in foreign territory.
Mexico's Position before the United Nations
The government of Mexico has submitted a document to the UN General Assembly and Security Council, dated January 13, 2025, rejecting the expansive interpretation of Article 51 of the United Nations Charter as a basis for justifying the use of force against non-state actors in foreign territory. In its statement, Mexico emphasizes that the use of force in the territory of another State without its consent is contrary to the UN Charter and violates the principle of sovereignty.
The doctrine of "unwilling or unable" is a concept in international law that establishes that a State may use force in the territory of another State without its consent if the latter is unable or unwilling to eliminate a threat affecting the former. This doctrine has been primarily invoked by the United States to justify military interventions against terrorist groups in countries like Pakistan, Syria, and Somalia. The "unwilling or unable" doctrine lacks widespread recognition in international law and undermines the collective security system. The expansion of this criterion represents a threat to global stability, as any country could justify military interventions without clear restrictions. The UN Security Council should be the only body authorized to validate the use of force in situations affecting international security.
Mexico highlights that the trend of invoking the "unwilling or unable" doctrine in increasingly broad contexts endangers the international security system and opens the door to arbitrary justifications for the use of force in various regions of the world.
U.S. Executive Order on Terrorist Designation
In this context, the recent executive order issued by the White House on January 20, 2025, reinforces the concerns expressed by Mexico. The designation of certain international cartels as Foreign Terrorist Organizations (FTO) or Specially Designated Global Terrorists (SDGT), based on the Immigration and Nationality Act (INA) and the International Emergency Economic Powers Act (IEEPA), could constitute a step towards a broader interpretation of self-defense in international law.
Although Mexico's document to the UN does not focus on a particular country, its analysis is applicable to the case of the U.S., as by categorizing cartels as terrorist organizations, the U.S. government could, in the future, argue that it has the right to act unilaterally in Mexican territory under the justification of self-defense.
U.S. Executive Order on Tariffs
Subsequently, the U.S. president issued another executive order expanding the national emergency of said country, arguing that Mexico has played a central role in drug trafficking and illegal migration. In this order, the U.S. government states:
- That Mexico has not allocated sufficient resources to curb drug trafficking and illegal migration.
- That Mexican criminal organizations have an "intolerable alliance" with the Mexican government.
- That the Mexican government has provided a safe haven to the cartels, allowing the manufacture and transport of drugs.
- That the lack of action by the Mexican government represents an unusual and extraordinary threat to the national security of the U.S.
Based on these claims, the executive order imposes an additional 25% tariff on all products imported from Mexico, with the possibility of increasing it or expanding its scope if the Mexican government does not take adequate measures according to the evaluation of the U.S. government. Although this executive order is on "pause," the premises used in the document are relevant to this analysis; especially when pointing out intolerable alliances between the Mexican government and criminal groups.
The Precedent of Álvarez-Machaín
A clear precedent is the case United States v. Álvarez-Machaín, in which the U.S. Supreme Court determined that the capture of a Mexican citizen in Mexico by U.S. agents, without the consent of the Mexican government, did not violate the extradition treaty between both nations. Just as in the Álvarez-Machaín case, U.S. executive orders and the interpretation of self-defense could lead to the implementation of direct measures against individuals linked to the cartels in Mexican territory. This would revolutionize the security—and collaboration—dynamic between both countries.
Compliance Measures and Risk Management
In this scenario, it is essential that companies and economic actors in Mexico consider the possible legal and regulatory implications arising from recent and future American national security decisions. At VWyS we recommend strengthening compliance programs to refine the identification and mitigation of risks arising from possible sanctions or trade restrictions, as well as monitoring the evolution of U.S. policy regarding the application of these measures and their impact on international transactions.
At VWyS we will continue to provide information and advice on this topic to our clients. For any specific inquiries, please do not hesitate to contact our team.
