DECALOGUE: VIRTUAL RIGHTS, CONSTITUTION AND ASSETS IN MEXICO

1) Information and Communication Technologies are fundamental pillars of development and essential tools in the progressivity of human rights. The human rights with a pedagogical purpose have been classified in three generations, this according to the historical moment in which they arose or of the recognition that they have had on the part of the States. It is convenient to indicate that the grouping of human rights in generations does not mean that some have more or less importance over others because all of them find in human dignity the beginning and end to reach. Thus, in the first generation, civil and political rights were grouped, in the second generation the economic, social and cultural rights and in the third generation those corresponding to groups of people or collectivities that share common interests were grouped. (CNDH). Opening a milestone to the fourth or fifth generation of rights, called digital or technological rights.

2) Mexico in a Constitutional State of Law, where the Constitution and International Treaties are the Supreme Law of the whole Union, in accordance with articles 1 and 133 of the Political Constitution of the United Mexican States (CPEUM), that is to say that all Law is subject to the Constitution and International Treaties, in the same order of ideas the ordinary legislation must respect it. This is how ordinary legislation and provisions that emanate from it must be in harmony with the constitutional and conventional precepts.

3) The Bank of Mexico is an Autonomous Constitutional Organization (OCA), in accordance with article 28 of the CPEUM. The OCAs are born "by virtue of the need to limit the excesses in which the traditional powers and the real factors of power incurred, since they generated social distrust, diminishing the credibility of the government, and led to the creation of autonomous constitutional bodies, already in charge whether to control or control institutions so that they do not violate the attachment to constitutionality "(Ugalde, 2010). Thus, it should be remembered that the Bank of Mexico, gained its autonomy through freedoms and rights, in addition that its function is to generate social trust, since this does not belong to the traditional powers (Executive, Legislative and Judicial), reason why what should shelter by its own nature to the virtual assets in their maximum protection.

4) There are several administrative orders such as agreement (s), annex (s), tariff, notice, bases, letter, circular, communication, agreement, call, criteria, declaration, decree, provisions, statute, instructions, guidelines, list, manual, memorandum , note (s), agreement, plan, policies, budget, program, protocol, rule (s), regulation, table (s), treaty, etc.

In the case of the Bank of Mexico or another non-representative body, with its proper enabling foundation and publication in the Official Gazette of the Federation, taking as an example the famous circular 4 / 2019 of virtual assets and that in accordance with article 4 of the Federal Law of Administrative Procedure, it is given an administrative act to these, it is so that such ordering despite its enabling basis, is not law or decree for not being issued by a representative body, including should be studied if you try to regulate undeclared matters in the special law of the matter. This circular and other provisions that are issued must be examined in conjunction with the constitutionality block, human rights, fundamental rights and constitutional guarantees, for example, neutrality, free competition, life plan, access to technology, financing, freedom of trade, freedom of work and dedication to a legal trade, as well as acquired rights.

5) Although there is an approach by the competent authorities, together with the groups, groups, companies and associations dedicated to blockchain or cryptocurrencies, consensus has not been reached between the public, private and organized civil society, in order to foster true governance and open government. Thus, not only should there be a feedback in the communication with a simple dialogue, as this could become a demagoguery, so it is necessary to take into consideration the ideas and create instruments of social participation not only on circulars, but by provisions real that impact on legislation and have a coercive nature.

6) Respecting the legal dualism, the principles of constitutionality, conventionality and human rights, taking as reference the international vehicle of the Financial Action Task Force - FATF (Financial Action Task Force - FATF, in English) that have pronounced themselves (2019), in recommendation no.15 commenting that countries should guarantee that virtual asset service providers are subject to adequate regulation, supervision or monitoring. In addition, for the purpose of applying the FATF Recommendations, countries should consider virtual assets as "property", "income", "funds", "funds or other assets", or another "corresponding value".

7) Considering that custom is a source of law, but this is not the one that gives life to the ties that bind peoples with their rights, but it is the sacrifice that makes them more durable, not by easy roads, but rather by It makes it go through the most difficult and painful paths. The Law is more than an expression and manifestation of the same people, it must be born through struggle, "the struggle for the right" (Von Jhering, 1985).

8) Considering that there are "means of defense and constitutional control" (Schmitt, 1983), jurisdictional ones such as the amparo trial, citizen protection trial in electoral matters, political trials, liability trials, as well as non-jurisdictional ones such as constitutional rigidity, the oath, the endorsement, resistance or disobedience, must also exhaust in the most social, legitimate, current, valid, factual and normative consultation of the defense of the constitution and digital rights through the instrument of consultation.

9) In the legal world there are "absolute universal rights" (Ferrajoli, 2011), 3 are immutable rights; they are life, liberty and property, that is, they do not change or can be altered, so that no provision can deny or limit these rights. «The nodes (miners) are paid to process, re-send and validate transactions. Users send transactions from one person to another. This is what P2P (peer-to-peer) means. P2P is not the state of the node, it is the act of a user exchanging a transaction with another, as cash. Each user has the right to ownership, the right to exchange the value held in the accounting book (the chain of blocks) »(Wright, October 2018).

11) Citing Craig Steven Wright, who has reiterated on several occasions to be Satoshi Nakamoto, the creator of Bitcoin, says that "The most fundamental of human rights is the right to property. There are many who would say this, but the reality is that, to be free, we need to be able to control our lives. To choose how we want to live and not be in debt to others, we need to make sure we follow a path that we can choose to control for ourselves. That is, on our own terms. To do this and live our lives freely, we need to be able to control our property and guarantee the security and integrity of those rights. "(Wright, September 2018).


REFERENCES

CNDH. (sf) WHAT ARE HUMAN RIGHTS?. Recovered from: http://www.cndh.org.mx/Que_son_derechos_humanos

FATF-FATF. (2019). Public Statement - Mitigating Risks from Virtual Assets. Recovered from: http://www.fatf-gafi.org/publications/fatfrecommendations/documents/regulation-virtual-assets-interpretive-note.html

Ferrajoli, L. (2011). Principia iuris Theory of law and democracy. 1. Law teory. Trotta

Schmitt, C. (1983). The defense of the constitution: study about the various species and possibilities of safeguarding the Constitution. Tecnos.

Ugalde, F. (2010). Autonomous constitutional bodies. Journal of the Federal Judiciary Institute Number 29.

Von Jhering. (1985). The fight for the right. Editorial Tor.

Wright, C. (2018, October). Property law in the age of Bitcoin. Recovered from: https://medium.com/@craig_10243/property-law-in-the-age-of-bitcoin-28355604618f

Wright, C. (2018, September). Human rights and property. Recovered from: https://medium.com/@craig_10243/human-rights-and-property-2cde4181c012

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Jersain Llamas
Jersain is a lawyer by the University of Guadalajara in Mexico and a Teacher in Constitutional and Administrative Law by the same house of studies. He has experience in parliamentary law and legislative technique. Its focus is on research in Law and New Technologies of Information and Communication, specifically in Digital Rights, Cybercrimes, Protection of Personal Data, Intellectual Property and Governance with Blockchain. Author of the book "Internet Weapon or Tool?" (2018).

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