Tell-all Event Exposes Judicial Activism of Inter-American Court

By | October 26, 2017

NEW YORK, October 27 (C-Fam) The Inter-American Court may try to impose same-sex marriage and access to abortion on all countries in Latin America, at least based on recent remarks by its President, Roberto Caldas, and other judges of the court.

Caldas boasted of the power of the court to bind all judges and courts across the entire American continent during an event on vulnerable populations at the close of the 58th session of the court in Panama. All seven of the judges of the court were present.

In the keynote address of the event last week Caldas said that discrimination based on “sexual orientation and gender identity” denies people “some of the most basic rights, such as that to marry and to have personal documents reflecting their real identity.”

Recent judgments of the Inter-American Court have stated that all national judges across the American continent must ensure their own judicial decisions conform to the judgments of the Inter-American Court and its interpretations of the American Convention of Human Rights. This new doctrine is known as “conventionality control.”

Legal experts say this doctrine risks violating the Convention that establishes the court, transforming the international tribunal into a supra-national constitutional court.

The judicial power of the court has traditionally been limited to parties involved in the litigation before the court. The new doctrine turns all Inter-American court decisions into binding precedents on all states that signed the Convention and accepted the court’s jurisdiction, regardless of whether they were party to the case in which the judgments were issued. The cross-border implications of the doctrine can be remarkable.

Caldas mentioned a judge in Peru who invoked a judgment of the Court involving Chile to grant legal status to a homosexual marriage contracted in Mexico. In the Chilean judgment the court cited “sexual orientation” as a protected category of non-discrimination alongside, sex, race, and religion, even though the Convention does not include this category.

The doctrine remains highly controversial. A Supreme Court judge in Panama just declined to use this doctrine, saying national prohibition of same-sex marriage does not violate the constitution. The Supreme Court of Chile also said it was “not bound” by the precedents of the Inter-American Court when it rejected a challenge to Chilean legislation to permit abortion in limited circumstances.

Judge Odio Benito said sexual and reproductive rights are too often “demonized” and violated by patriarchal discrimination. She did not say abortion was a right under the Convention but that legislation should be “open to this option” and suggested children should be able to access abortion.

Judge Vio Grossi, a frequent dissenter on the court, was the sole voice at the event calling for judicial deference to sovereign states and democratic processes. Grossi dissented from the judgment of the court when it denied that children had a right to life from the moment of conception. The American Convention famously contains explicit protections for children “from conception,” but the court redefined conception to begin with implantation.

Sounding a note of alarm Grossi said the importance of the court had “tempted us to act as more than judges” and that “it is a temptation we must resist,” warning sternly that this would lead to lawlessness.

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