Adam Dupuis's picture

Costa Rica: Pro Marriage Equality Court Ruling to Carry Over to a Total of 20 Nations

 

Marriage equality across the globe has been moving on like the little train that could.  We are proud of the advances that human rights have made in regard to the LGBTQ fellow humans on this planet.  We would love to see that train crest the top of the hill and come barreling down to the finish line.  Is one of those first turns down the hill toward that finish line in Central America. Some of us are hoping, hope is great, but let's hope that this hope is not misleading.

A marriage equality case coming out of Costa Rica is being claimed as a blanket ruling for 20 total nations. The Inter-American Court of Human Rights reached a decision on a marriage equality petition submitted two years ago by Costa Rica President Luis Guillermo Solis.  One source states:

The Western Hemisphere is rejoicing over the ruling in a marriage equality case out of Costa Rica. Not only is the ruling binding for the Central American country, the Inter-American Court of Human Rights ruling also sets precedent for 19 other countries who have agreed to abide by the court’s decisions.

...

The ruling is legally binding in Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.

These nations signed to be members of the American Convention on Human Rights.  Some nations already have marriage equality (Argentina, Brazil, Colombia, and Uruguay) where as some others recognize same-sex civil unions (Chile and Ecuador).

The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into force after the eleventh instrument of ratification (that of Grenada) was deposited on 18 July 1978.

The bodies responsible for overseeing compliance with the Convention are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, both of which are organs of the Organization of American States (OAS).

According to its preamble, the purpose of the Convention is "to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man." - wikipedia.com

As part of the governments were ordered to “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination”.

The ruling also informed countries that they should allow transgender people to change their name on identity documents.

The chatter has been quite heavy about this topic with many responses on Reddit. One post brought up a very good point.  What happens when the Pope gets involved? With so many nations following what the Pope decrees, will he step in and go against the American Convention on Human Rights?

Another Reddit post was quite involved:

There seems to be some debate (here as well as in media coverage) as to the legally-binding status of this. If the treaty that created the court is legally binding, the decisions of the court ought to be as well with respect to nations that signed and ratified the treaty consistent with their internal legal systems. But, as others have pointed out, if the decision is advisory as to other OAS member states, then there is no legally compelled effect, just moral/social/political effect.

Even if the decision is just "soft law" - that can still be used as persuasive authority in making the case for marriage equality in the nations that comprise the Organization of American States (OAS). It can help form a norm of Customary International Law (CIL).

Central to understanding this is recognizing what the jurisdiction of a court is and its ability to enforce its judgments.

Perhaps it's best to wait and see. Many mainstream media outlets (BBC Spanish excepted) don't seem to be publishing anything on this right now. Cautiously optimistic about this one. No need to brigade-downvote the OP folks.

Law stuff is confusing, even for lawyers. This especially goes for transnational tribunals such as this one with specialized subject matter jurisdiction (here, human rights) and personal jurisdiction. Don't be so sure the top karma-getting reply is necessarily the correct one.

We hope and desire this one case to insure marriage equality in 20 nations and over 280 million people. But will these nations follow through?  It will be on a case-by-case basis we are sure, but maybe with the pressure from the other nations, those that already have marriage equality, those that were almost there, and those that were on the fence, all 20 will move forward with the American Convention on Human Rights and make LGBTQ citizens happy that they have gained another "equal right."

What do you think? 

Will all 20 agree to follow the ruling?

Will it take some peer pressure for all to follow through?

Will the Pope get involved?