LGBT News Inter-American Human Rights Court backs Same-Sex Marriage

I went and looked into it just now, and from what I can tell, it is binding for most Latin American countries. Countries that are signatories to the American Convention on Human Rights are required to adhere to the court’s rulings. If that's true, this is a huge, landmark decision. I'm so excited to hear this news. It's a great advancement for LGBT rights. Yay!

 

Continued... 23 countries signed onto the Convention (19 of which do not already have same-sex marriage).
Those 19 are Barbados, Bolivia, Chile, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Guatemala, Grenada, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, and Suriname.
Chile and Ecuador have civil unions, and parts of Mexico have legalized same-sex marriage.
With the exception of Barbados, Grenada, and Dominica, the other 16 all accept the blanket jurisdiction of the Court. The effect is not immediate, however, as each government must individually apply the ruling to their own country.

 

This is pretty big but I am very cautious. This advisory opinion isn't a mere recommendation - it's technically binding on all parties under international law. That doesn't mean it'll get implemented.

When an international court makes decisions it's not like when domestic courts do. There's no automatic enforcement mechanism, so there's a bit of a gap between what states are obliged to do under international law and what domestic law says. Some states might effectively ignore the ruling, delay implementation or get rid of domestic legislation which mandates compliance with the Interamerican Court on Human Rights.

I'm not educated enough on the laws of so many countries to pass specific comment. But to help paint a clearer picture of what that gap I mentioned above can look like, imagine had this ruling come before the US Supreme Court legalised same-sex marriage. The US would have been bound by this decision under international law in the same way all other states in the Convention are. But the President wouldn't have the power to unilaterally declare it law. The Congress would not be compelled to act and would have likely declined to enact the decision as well for electoral reasons. Absent a domestic law reason, the Supreme Court would also likely find that the decision of a treaty body would have to be actively incorporated by domestic instruments into US law.

That shows how something can be binding in international law but mean next to nothing in terms of turning it into tangible domestic law. Every single state will have these sorts of domestic legal and political complexities they'll need to get over to implement this. I think it's very hard to imagine the Parliament of Jamaica just happily going from punishing gay male sex with life imprisonment to marriage equality in the blink of an eye. Parliament will have a closer eye on the virulent homophobia of the Jamaican public than on the decision of a court that can easily be spun as foreign and elitist.

The states which currently accept the court's decisions as binding in domestic law are likely to be able to repeal thsoe laws if they want to.

If some states refuse to comply, it'd probably be necessary for more progressive OAS members like Canada to put economic and political pressure on those states. It's a pity this has come during the Trump presidency, given human rights diplomacy is hardly high on the list of priorities.

Below is some nerdier stuff on the international law bit of how states can try to get out of it but it's probably going to be boring and irrelevant.

Spoiler

It's possible for states to withdraw from the American Convention on Human Rights. Doing so would likely be incompatible with membership of the Organisation of American States and is a pretty big decision to make, so hopefully it wouldn't come to that for any government.

It's also possible that states could submit what are known in law as reservations to the relevant parts of the Convention but that's difficult for two reasons. In assessing the vailidity of reservations, a court generally regards compatability with the treaty as a whole and human rights treaties with multiple signatories are very complex for making reservation. Sexual minority status is pretty integral to the treaty as a whole and international courts are generally sceptical of reservations in multilateral human rights treaties because, unlike a multilateral trade or sea boundary treaty, you can't really reject a specific part without negating the entire idea of protecting the rights of individuals regardless of demographic features. A more progressive state could submit an objection to a reservation to have its validity adjudicated and my bet would be on its being held invalid.