Andrew Novak; Using International and Foreign Law in Human Rights Litigation: The Decriminalization of Homosexuality in Belize, Journal of Human Rights Practice, Volume 10, Issue 2, 1 July 2018, Pages 346–354
Abstract
International and foreign law is a powerful tool of transnational human rights advocates. Through litigation, advocates can create a global body of persuasive fundamental rights jurisprudence that can be used across borders. Using the August 2016 decision of the Belize Supreme Court in Orozco v. Attorney General as a starting point, this essay traces how LGBT rights activists are constructing a transnational body of jurisprudence decriminalizing consensual sexual relations between persons of the same sex. Belize courts had previously been receptive to international and foreign citations in other contexts, such as constitutional death penalty challenges. Advocates themselves, rather than judges, are the primary instrumental drivers of this jurisprudential ‘sharing’ process. The Belize decision is likely to be cited in future constitutional challenges against anti-sodomy laws elsewhere in the Commonwealth, helping to reinforce a global trend towards decriminalization of homosexuality.
On 10 August 2016, the Supreme Court of Belize, the country’s trial court of general jurisdiction, found that Section 53 of the Belize Criminal Code criminalizing ‘carnal intercourse against the order of nature’ was unconstitutional (Orozco v. Attorney General 2016). The decision cited a wide range of international and foreign jurisprudence from courts such as the South African Constitutional Court, United States Supreme Court, and European Court of Human Rights, purporting to discern a global consensus toward the protection of privacy and equal protection for sexual minorities. The case raised interesting questions about the ‘internationalization’ of domestic constitutional jurisprudence and the role that transnational advocacy organizations play in coordinating with local activist groups, particularly where a successful outcome may run counter to popular opinion or political environment. The United Belize Advocacy Movement (UNIBAM), a local gay rights organization, initiated the litigation and received assistance from a network of international human rights organizations including the Human Dignity Trust, the Commonwealth Lawyers Association, and the International Commission of Jurists. The decision serves as a powerful example of how transnational legal advocates can use international and foreign law to advance a specific human rights agenda, while also highlighting the risks of promoting LGBT (lesbian, gay, bisexual and transgender) rights advocacy in the global South.
A strategy for international human rights advocates
Judges across legal systems frequently refer to international law and the constitutional jurisprudence of other nations in resolving domestic constitutional questions (Jackson 2004). This ‘dialogue’ or ‘conversation’ among judiciaries is weblike and fragmented, drawing in domestic courts, supranational tribunals, and treaty bodies (Slaughter 2000: 1104). In this process of judicial interaction, domestic courts act as ‘mediators between international and domestic legal norms’ that can create and reinforce the international norms themselves and promote harmonization across borders (Waters 2005: 490, 527). However, judges do not interpret and cite international and foreign law in a vacuum. Human rights advocates select and cite specific cases in their pleadings, serving as the instrumental driving force behind the transnational judicial dialogue (Jackson 2003: 324). Some legal scholars allege a selection bias, as advocates have ‘great discretion’ to ‘upgrade foreign decisions that they like … and downgrade ones they dislike’ (Roberts 2011: 61). This is the first analytical point about the diffusion of fundamental rights norms across borders through litigation: it is not strictly organic. It is cultivated by advocates with a specific human rights agenda in mind. Read more via Journal of Human Rights Practice