Case Studies in the Advancement of Sexual Orientation Rights and the Role of Developing International Legal Norms: Argentina and Brazil

Article excerpt

Abstract

This Comment discusses the influence of international legal norm development on the advancement of sexual orientation rights. Case studies of Argentina and Brazil demonstrate that progress in this area of human rights law has been "outward-looking": the countries that are most progressive in terms of sexual orientation rights are at once substantially influenced by and seeking to actively influence the development of international legal norms. To demonstrate this "outward-looking" character, this Comment analyzes nongovernmental organization activity, legislative enactments, judicial opinions, and proposed resolutions in international and regional governmental bodies in both Argentina and Brazil. It then argues that sexual orientation rights development in these two countries is a manifestation of the significant impact that international law has had upon this area of human rights law. Ultimately, this Comment suggests that international law can provide a means to progress sexual orientation rights in countries that have not yet recognized them to the same degree as Argentina and Brazil.

Table of Contents

I. Introduction........... 260

II. The Status of Sexual Orientation Rights in International Law .............. 265

A. Terminology .............266

B. An Historical Overview of Sexual Orientation and International Human Rights Law.................. 267

1. Interpretations of global and regional treaties by courts and treatymonitoring bodies.................... 267

2. Domestic state practices and the development of customary international law.............. 269

3. Non-governmental organizations and other sources of "soft" international law....................... 270

III. Argentina and Brazil: Case Studies of Outward-Looking Sexual Orientation Rights Development.................... 271

A. Introduction: Why Look at Argentina and Brazil? ..............271

B. Argentina: A Country Influenced by Developing International Legal Norms ...............272

C. Brazil: A Country Influenced by and Influencing Developing International Legal Norms.............. 278

IV. Developing International Legal Norms and Sexual Orientation Rights: Providing a Pathway for Further Progress ..............285

V. Conclusion............... 288

I. Introduction

In the past twenty years, "concern with discrimination on the basis of sexual orientation" has gained sufficient recognition worldwide such that it is "realistic to say that this issue [has] come onto the international human rights agenda."1 Two countries in particular, Argentina and Brazil, have been at the forefront of this change, the former substantially influenced by, and the latter substantially influencing, the developing international legal norm recognizing sexual orientation rights. Despite academic commentary implying the contrary, these two countries not only illustrate the importance of international law in efforts to advance sexual orientation rights, but also suggest the promise that international law offers to eradicate sexual orientation discrimination globally.

In July 2010, Argentina became the first country in Latin America, and only the tenth in the world, to authorize same-sex marriage.2 Argentina's President Cristina Fernández de Kirchner sponsored the marriage law, promoting it as a manifestation of the increasingly liberal and less discriminatory social atmosphere of the country.3 The same-sex marriage bill, however, only narrowly passed in the Senate of the Argentine National Congress (