On Monday, the Inter-American Commission on Human Rights (IACHR) filed an application to the Inter-American Court of Human Rights on the matter of a Colombian man who requested and was denied the pension of his deceased homosexual lover.
The case is one in a steady stream emanating from the Organization of American States’ judicial organisms attempting to impose a liberal social agenda upon a culturally traditional region.
The petitioner, Angel Alberto Duque, who has HIV, petitioned the Inter-American Commission after the local courts in Colombia found his case to be without merit in 2007.
In the opinion of the Commission, the failure to provide Mr. Duque with his homosexual lover’s pension constituted unlawful discrimination which violated his rights under the American Convention on Human Rights, specifically the right to humane treatment (Art. 5.1), the right to a fair trial (Art. 8.1), the right to equal protection (Art. 24), and the right to judicial protection (Art. 25).
The decision relies heavily on the precedent set by the Inter-American Court’s 2010 ruling in Atala Riffo and Daughters v. Chile. In the Atala case, the Court held that a person’s “sexual orientation” grants them special protection under the American Convention on Human Rights.
While the Inter-American Commission and the Court have chosen to disregard explicit protections enshrined in the American Convention on Human Rights such as the right to life (Article 4), it appears that they are willing to recognize inexistent international rights and “consensus” to promote the homosexual agenda.
In paragraph 19 of the report issued this Monday by the Inter-American Commission, the commission decrees that “the basic principle of equality and non-discrimination has become part of the jus cogens and that ‘sexual orientation’ is a category protected under the American Convention and is one of the prohibited grounds for discrimination.”
Jus Cogens is a legal term of art that is defined as a fundamental principle of international law that is accepted by the international community of states as a law from which no derogation is permitted. Normal examples of jus cogen are war crimes, torture, genocide, and slavery.
In practice however, special protections based on a person’s “sexual orientation” is anything but the norm, especially in Latin America.
For the member nations of the Organization of American States, not only is there no consensus on granting special status to “sexual orientation,” there is in fact longstanding legal and cultural consensus on the criminalization of homosexual acts, which are seen as harmful to the moral fabric of the member nations.
Out of the 35 member nations only six partially recognize homosexual “marriage,” 30 prohibit it, and a majority criminalize homosexual acts as harmful to society.
The extreme activism of the commission and court is evident when one considers that Colombia has been one of the most accommodating countries to the homosexual lobby in Latin America and yet is still being held to be in violation of the commission’s interpretation of the law.
In fact, the main defense put forward by the Colombian government to the charges of discrimination contained in the Duque case is that since 2007, the Colombian constitutional courts have already struck down laws that discriminate against homosexuals, including the denial of pension rights. In effect the Colombian state is asking for a margin of flexibility in order to voluntarily implement laws to protect this new protected class of individuals.
Sensing blood in the water, the judicial activists at the commission are not satisfied with Colombia’s judicial appeasement. The commission, through the escalation of the case to the Inter-American Court, is seeking to use this case to trample on the natural and traditional societal norms of the member nations.
One need look no further than the report of the commission itself to discern that the intention of the commission is to destroy the concept of the natural family as the basic unity of society. In paragraph 77 of the report, the commission acknowledges that “the reasons to exclude the alleged victim [homosexual lover] from the right to a survivor’s right, which were given both by administrative and judicial authorities, stemmed from the need to ‘protect the family.’” However the commission summarily dismisses these concerns enshrined in the laws of Colombia as “a narrow and stereotyped understanding of the concept of family, which arbitrarily excludes diverse forms of families such as those formed by same-sex couples.”
By their own admission, the commission is on a judicial activist mission to destroy the traditional understanding of the family espoused by the overwhelming majority of the member nations of the OAS. An ancillary problem is that the elites in power in many of the member nations of the OAS are offering little or no resistance to this usurpation of their national sovereignty and cultural heritage.
Instead of complying with the judicial tyranny of the Inter-American Court and Commission, member nations should develop a robust Latin American version of the principle of the Margin of Appreciation.
The Margin of Appreciation is a doctrine formulated in the European Court of Human Rights that has developed when considering whether a member state has breached the European Convention. It means that a member state is permitted a degree of discretion when it takes legislative, administrative, or judicial action in the area of a Convention right. The doctrine allows the Court to take into account the fact that the Convention will be interpreted differently in different member states, given their divergent legal and cultural traditions. In the case of Latin America, this Margin of Appreciation theory should be applied to prevent the undemocratic imposition of cultural imperialism on issues such as abortion and the creation of special rights for homosexuals.
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The Margin of Appreciation theory should also be welcomed by the Inter-American system itself, as it is likely to prevent the erosion of the international system which is caused when countries find themselves forced to reject the jurisdiction of the fledgling Inter-American legal system.
It is not surprising that much of the precedent that has formed the Margin of Appreciation originates from the United Kingdom, a powerful nation that is zealous of its independence and traditions. The seminal case that established the theory of Margin of Appreciation is Handyside v. United Kingdom (ECHR, 1976). In that case the European Court of Human Rights ruled in favor of the United Kingdom’s prohibition of certain obscene materials that were to be peddled to minor schoolchildren as a form of “sexual education.” The court noted that:
By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morals] as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. … Nevertheless, Article 10(2) does not give the contracting states an unlimited power of appreciation. The Court which … is responsible for ensuring the observance of those states’ engagements, is empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with European supervision.
The question of the breadth of local authority in the Margin of Appreciation theory has been debated widely. However, the current standard, developed in another case originating in the United Kingdom (Evans v. UK) is that in there has to be a balancing of interests and with regard to questions of the “protection of morals” the widest margin of appreciation is to be given to local authorities.
Unfortunately, in the Inter-American system, the most powerful nations such as the United States and Canada have chosen a much more imperial manner of preserving their sovereignty. In the case of the United States, we have simply avoided the ratification of many of the conventions that establish international tribunals, thus rejecting the jurisdiction of these international tribunals altogether. Simultaneously however, the United States and non-governmental institutions based mostly in the United States hypocritically continue to push other nations in the OAS system into compliance with these international tribunals. They accomplish this through selective funding, through the hosting of the actual international bodies such as the OAS in Washington, D.C. and the UN in New York City, through the provision of academic positions to high level officials and judges at prestigious liberal universities, etc.
The Atala case in Chile and now the Duque case in Colombia as well as the recent rejections of the jurisdiction of the Inter-American tribunals by Brazil, the Dominican Republic, Venezuela, and others show that there must either be significant reform of the Inter-American judicial system or else it will be nothing more than an instrument of cultural imperialism of those nations able to influence the composition of the court over those that cannot.
It is high time that the theory of a Margin of Appreciation be introduced at the Organization of American States.