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Last week, the Inter-American Commission on Human Rights (IACHR) released a nonbinding decision against Jamaica’s ban on same-sex intimacy. The law, shared by nine other Caribbean nations, is discriminatory and should be repealed. But when it comes to hotly contested issues such as LGBTQ rights and abortion, the Inter-American system is the wrong venue for change. Instead, advocates should embrace a two-pronged approach, pushing the envelope at the domestic level while reinforcing well-established rights through international institutions.
Latin America played an outsize role in shaping the human rights movement that emerged from World War II. Later identified as the “forgotten crucible” of the movement, the region originated concepts of economic, social, and cultural rights, challenging European ideas that prioritized civil and political rights.
The resulting Universal Declaration of Human Rights (UDHR) of 1948 was plagued by problems that have only grown in the decades since. As Eric Posner notes in his provocative essay, “The Case Against Human Rights,” the declaration wasn’t binding; subsequent treaties would entail commitments, but even these came with no enforcement mechanism. The economic, social, and cultural rights that Latin American jurists had so ardently supported posed a special problem—they imposed unsustainable costs on poorly funded governments. Perhaps the greatest challenge was the vagueness of each right that the UDHR established, leaving room for constant reinterpretation and no clear arbiter.
In the years since 1948, academics, activists, and politicians have rapidly expanded their interpretation of existing rights. After a push from LGBTQ organizations, United Nations officials reinterpreted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to prohibit discrimination on the basis of sexual orientation and gender identity, three decades after its signing. Pro-choice campaigners have likewise interpreted CEDAW to justify “abortion as a human right.” The problem isn’t that abortion and LGBTQ equality have gained public support in the intervening years, but rather that changes in opinion have been inconsistent across different countries. Within the Western Hemisphere, Canada and Uruguay registered around 75 percent support for same-sex marriage in 2016, the last year for which comprehensive survey data is available. In Haiti and the English-Speaking Caribbean that same year, less than 15 percent of the population were in favor.
When international human rights bodies ignore the cultural, historical, and political differences across countries, they aren’t just ineffective; they also provoke a backlash. Social conservatives gain the upper hand, framing progressives as outside forces trying to impose foreign norms.
In May 2017, the IACHR held a hearing in Chile on reform to the country’s abortion laws. The following month, over 700 Latin American legislators signed onto the Mexico City Declaration, which rejected any imposition of “new rights” concerning abortion or same-sex marriage by the Organization of American States, the Inter-American Court on Human Rights, or the IACHR. The Commission continued to press for abortion rights, coming to a head in 2019 when conservative senators in the United States successfully lobbied the Trump administration to revoke its funding from the IACHR.
The Inter-American System courted controversy again in 2018, with the Court ruling that signatory countries must protect same-sex marriage. Fabricio Alvarado, an evangelical presidential candidate in Costa Rica, put the issue at the center of his campaign, promising not just to ignore the particular ruling if elected, but also to withdraw from the Court’s jurisdiction. His stance took him from obscurity to a first-round victory in the election, before ultimately losing to his moderate opponent in the second round.
To be clear, any campaign to advance reproductive rights and LGBTQ equality will create some amount of backlash. But there are ways to minimize it. By pursuing a two-track approach, progressive campaigners can maximize social change while avoiding overreach.
On controversial issues where public opinion varies widely across countries, activists should engage at the domestic level, tailoring their advocacy toward local conditions. LGBTQ campaigners in the English-speaking Caribbean might bring light to the colonial origins of anti-gay laws, for example, while their counterparts in Chile may emphasize the steps already taken by Argentina, Uruguay, and most of Western Europe to recognize same-sex marriage. Pro-choice campaigners in Honduras can move the needle by gradually carving out exceptions to the total prohibition on abortion. In countries that already have exemptions, local activists can push for more ambitious reforms.
Rather than weighing in on contested issues and provoking a nationalist backlash, the Inter-American Court and the IACHR should instead reinforce rights that are widely approved by the public but neglected by governments. In Venezuela, the regime of President Nicolás Maduro has used extrajudicial executions, arbitrary arrests, and restrictions on free expression to repress the opposition. In the Northern Triangle of Central America, governments routinely fail to protect their citizens’ security; Honduras and El Salvador, for example, rank among the five countries in the world with the highest homicide rates. Even countries with stronger human rights protections, such as the U.S., have distressingly high levels of police brutality. On these issues, a strong statement from international organizations can emphasize the gap between governments’ rhetorical commitments and their practices.
Given the potential for backlash against internationally imposed norms on divisive issues, human rights activists should take a cautious, two-pronged approach to reform. Doing so would advance reproductive freedoms and LGBTQ equality while also improving respect for human rights more broadly.
Robert (Bo) Carlson is the Program Coordinator of the Duke Program in American Grand Strategy. He previously held roles at the OAS and the Center for Strategic and International Studies (CSIS) and has written for The National Interest and El Faro. You can find him on Twitter: @bocarlson1.