Friday, June 26, 2009

Hard Cases Make Bad Law?: the case of Colombia and LGBT Rights Litigation

In 1991, Colombia adopted a new Constitution which replaced the one issued on 1886. This new Magna Carta included a clause –article 93- to guarantee the direct application of international human rights law in the country. In other words, the Constitution made enforceable in the domestic jurisdiction human rights instruments with no other requirement than the approval of the treaty by Congress, and without the need for further legislation. This event has reconfigured the way in which minorities and discriminated groups in Colombia have approached and used litigation in the past 17 years. Moreover, it has meant a change in the way Justices study and decide cases. Indeed, international human rights law is now a mandatory subject in every suit and, therefore, an obliged stage in the judicial review.

In this light, LGBT rights cases have now turn out to be a matter of understanding, protecting and developing international law, specifically, human rights. Through the last 10 years, the Colombian Constitutional Court has become a progressive scenario where not only domestic law, covenants and treaties are analyzed, but also the jurisprudence emanated from specialized international bodies, and relevant decisions from national and international tribunals. In a remarkable decision, C-075/2007, not only for its outcome, but for the way the case was built and the national and international organizations took part in it, the Court extended the benefits of the heterosexual domestic partnership to same-sex couples. The arguments given by the plaintiffs, amicus curiae, and the Court were deeply entrenched with international law and the principle of non-discrimination recognized in the U.N. Declaration and the International Covenant on Civil and Political Rights.

Lawyers use to say that hard cases make bad law, however, regarding LGBT rights and the litigation for its acknowledgement before the Constitutional Court in Colombia that is not the case. Since decision C-075/2007 was issued, nobody in the country can denied the essential relation between human rights and LGBT issues, and nobody can talk, study or litigate LGBT rights without a deep understanding of international law. That the case has become a landmark is obvious, nevertheless, what was not evident by the time was the incredible impulse this outcome would give to the international human rights law discussion in the country. Nowadays, it is unthinkable to present a suit regarding minorities or discriminated groups before the Constitutional Court without international human rights law charges; as it is viewed as unpardonable for the Constitutional Court to establish and solve the issue without taking human rights law into account. In this sense, the domestic Colombian law reconfiguration was due not exclusively for the Constitution, but also due to the litigation strategies and the Constitutional Court accountability before the public opinion. Consequently, this trend has created a novel understanding of Law among lawyers, public servants, judges, and citizens: Colombian Law is a corpus integrated by international and domestic law, and any attempt to make distinctions could violate the Constitution. Since then, LGBT issues have been connected permanently to the developments in the international human rights arena. Furthermore, this judicial conquest has meant the demystification of that black letter rule about difficult cases, and an incentive to raise LGBT human rights issues through litigation.

by Lina Maria Cespedes

No comments:

Post a Comment