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Inter-American Human Rights Moot Court Competition Bench Memorandum Dear Judges, It is with great pleasure that we present to you the Bench Memo for the case of Serafina Conejo Gallo and Adriana Timor v. Elizabetia. We were very excited when the Washington College of Law and its Human Rights Moot Court Competition asked us to imagine a case with a focus on the rights of lesbians, gays and trans, bisexual and intersex persons. While the disastr
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  Inter-American Human Rights Moot Court Competition Bench Memorandum Dear Judges, It is with great pleasure that we present to you the Bench Memo for the case of Serafina Conejo Gallo and Adriana Timor v. Elizabetia. We were very excited when the Washington College of Law and its Human Rights Moot Court Competition asked us to imagine a case with a focus on the rights of lesbians, gays and trans, bisexual and intersex persons. While the disastrous effects of discrimination against sexually diverse populations are wide and reach across continents, cultures and legal traditions, they have also been marked by invisibility, stigma and outright negation. Lesbians, gays and trans, bisexual and intersex persons have historically been and continue to be victims of persecution, discrimination and abuse, but great progress has been made globally and locally in the recent years to bring their problematic to light. Following the rightful demands of an articulated and determined civil society, and its allies, OAS Member States have started to fulfill their debt through General Assembly Resolutions 2435, 2504, 2600, and 2653 and the actions that these prescribe. The Atala Case is a milestone at the Inter-American Commission and Court, and the adoption of the Commission’s Plan of Action 4.6.i (on the rights of lesbians, gays and trans, bisexual and intersex persons) and the creation of the Unit on their rights have inscribed it firmly in its agenda. However, much remains to be done to eradicate violence and discrimination and, to that end, increased knowledge of the violence and discrimination perpetrated against these persons and communities is a must. Our intent when creating this case has been twofold. We seek to promote academic visibility of the disastrous situation of violence and exclusion faced by trans women; we also want to bring to light the discussion concerning recognition –or not- of same sex couples as families or marriages, and all the derived legal effects. This is a highly relevant discussion in the Americas of the 2010’s, and one that will be a dominant feature in the human rights agenda for years to come. Serafina Conejo Gallo never existed. However, resemblance with the stories of a great number of brave existing women must be seen as a stark reminder of the enormity of the work that remains to be done so that stories such as Serafina’s are relegated to the world of fiction. Sincerely, Victor Madrigal-Borloz Silvia Serrano    2 Introduction This memorandum is divided in three parts that address the main legal issues in the case. Initially, international and Inter-American precedent is referenced, and then mention is made of the possible arguments of the parties. Part A concerns the substantive issues of the case. Part B deals with procedural and preliminary issues. Part C concerns the issues connected to the provisional measures. Finally, the authors have included, as an Annex, the Study on Sexual Orientation, Gender Identity and Gender Expression (some relevant terms and standards). This document was issued by the Unit for the Rights of Lesbians, Gays and Trans, Bisexual and Intersex persons with the aim of providing a baseline in terminology, and is therefore considered an interesting reference document for the Judges. A.   Substantive issues  A.1 Sexual Orientation and Gender Identity in the light of the principle of equality and non-discrimination and the right to private life and autonomy; A.2 Right to a family; A.3 The right to marry; A.4 Legal effects of same-sex unions in comparison those of heterosexual unions; A.5 Possible arguments of the injured  party; and A.6 Possible arguments of the State. A.1.   Sexual Orientation and Gender Identity in the light of the principle of equality and non-discrimination and the right to private life and autonomy 1.   Pursuant to the American Declaration on the Rights and Duties of Man, “[e]very person has the right to the protection of the law against abusive attacks upon […] his private and family life”. The right to privacy has spatial and objective components, as the home or correspondence, which are intimately connected with Articles IX and X of the Declaration. It also has spiritual components, closely connected with Article III of the same. 2.   The right to privacy also has a component related to personal choices and the human dignity that is inherent to making them 1 . This component, described among others by the Supreme Court of the United States of America, 2  the Constitutional Court of Colombia, 3  the South African Constitutional Court 4 , the 1  It is telling that the European Convention on Human Rights includes all aspects in Article 8. 2   Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 851 (1992) . The Court expressed: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” 3  Constitutional Court of Colombia, Sentencia C 098 del 96, available in Spanish at the link http://www.corteconstitucional.gov.co/relatoria/1996/c-098-96.htm, párr. 4.2. The Court said: “Apart from compromising the most intimate and personal sphere of individuals, sexuality belongs to the realm of their    3 High Court of Delhi at New Delhi 5  and the High Court of Fiji 6 , is deeply connected with intimacy, sexual autonomy and self-realization and has been also recognized by the Human Rights Committee of the Organization of the United Nations, 7  the European Court of Human Rights, 8  and the Inter-American Commission. In particular, the Inter-American Commission has stated “[t]here is a clear nexus between the sexual orientation and the development of the identity and life plan of an individual, including his or her personality, and relations with other human beings”. 9  3.   Sexual autonomy is therefore an integral part of private life. It is generally a manner “in which human beings strive to achieve self-realization by way of actions that do not interfere with the liberty of others”. 10  Further, when it occurs in private and among consenting adults, sexual activity is  per definitionem not capable of violating the rights of third parties. 11  Hence, any interfering State action under these circumstances must be restrained and satisfy the strictest tests of legitimacy and necessity 12 . 4.   The legitimate nature of State actions is outlined straightforwardly in the considerations of the American Declaration, according to which “juridical and political institutions, which regulate life in human society, have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness”. Interference in privacy can only answer to the protection of the rights of others when they may be at risk. fundamental freedoms, in which neither the State nor the collective may intervene because there are no public interests at stake, and no social damage can be perpetrated (translation of the IACHR). 4  Constitutional Court of South Africa. Judgement in Case CCT 11/98, available at http://www.saflii.org/za/cases/ZACC/1998/15.pdf. The Court recognized that sexual expression ''is at the core'' of ''a sphere of private intimacy and autonomy”. 5   Naz Foundation v. Government of Delhi   WP(C) No.7455/2001. The Court stated “at the root of dignity is the autonomy of the private will and a person’s freedom of choice and of action”. 6  McCoskar v The State [2005] FJHC 500; HAA0085 & 86.2005 (26 August 2005), available at http://www.humandignitytrust.org/uploaded/Library/Case_Law/Nadan__McCoskar_v_State.pdf . The Court stated “[t]he criminalization of carnal acts against the order of nature between consenting adult males or females in private is a severe restriction on a citizen’s right to build relationships with dignity and free of State intervention and cannot be justified as necessary”. 7 Toonen. Communication No. 488/1992 : Australia. 04/04/1994. CCPR/C/50/D/488/1992. (Jurisprudence); CCPR/C/50/D/488/1992. Original: English. Vide also, CCPR/C/79/Add 50; CCPR/C/79/Add 104.  8 European Ct HR.; Dudgeon v. United Kingdom, application 7525/76; available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473.  9 CIDH, Karen Atala and daughters, Caso 12.502 (Chile), Presentation of September 17, 2013, available under the classification of 2010 at http://www.oas.org/en/iachr/decisions/cases.asp, párr. 111..  10  IACHR, Report No. 4/01, María Eugenia Morales de Sierra (Guatemala), January 19, 2001, paragraph 47; IACHR, Report No. 38/96, X and Y (Argentina), October 15, 1996, paragraph 91. 11  Nowak, Manfred; CCPR Commentary (2nd revised edition) N.P. Engel, Publisher; pág. 297. 12  Vide also, European Ct HR.; Dudgeon v. United Kingdom, application 7525/76; disponible en inglés al vínculo http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473, par. 43    4 5.   Further, any measure interfering with privacy in a democratic society must answer to an “imperative social need” 13  In this sense, it is not sufficient that such a measure answer to preferences or the mores of some: it must be proven that it answers to a need the satisfaction of which is an appropriate manner to protect the rights of the majority and, at the same time, has been carefully weighed to respect the rights of minorities. 6.   Any State action denounced as an undue interference in privacy in relation to the sexual conduct of consenting adults shall be scrutinized with basis on those requirements. 7.   Pursuant to the American Declaration, all persons are “born free and equal, in dignity and in rights” and “are equal before the law […] without distinction as to race, sex, language, creed or any other factor”. This definition expresses the right of everyone to equal protection of the law without discrimination. 14  This right to equality before the law means that the application of the law should be equal for all. 15  The provision was intended to ensure equality, not identity of treatment, and would not preclude reasonable differentiations between individuals or groups of individuals. 16  8.   In its Annual Report for the year 2000, the Inter-American Commission referred to the principle of non-discrimination as “a lynchpin of the inter-American system”, and declared that the observance of that principle is also a primary challenge for Member States, who must create or strengthen the legal and institutional mechanisms to fight discrimination within the parameters established in the system. On that occasion, the Commission remarked that, once and for all, Member States had to seriously commit themselves to providing special protection for certain persons or groups of persons. Three years later, the Commission added that “[n]on-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a founding, basic, general and fundamental principle relation to the international protection of human rights”.  17   13  ECHR, Lustig-Prean and Beckett, vide http://www.wcl.american.edu/hrbrief/07/3european.cfm, parr. 80 and 14  Bjorn Stormorken and Leo Zwaak, Human Rights Terminology in International Law: A Thesaurus, (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988) and Dudgeon v. United Kingdom, application 7525/76; available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57473, par. 43. 15  Article 26 of the International Covenant on Civil and Political Rights provides: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social srcin, property, birth or other status. See Travaux preparatoires of the ICPR, Annotation on the Text of the Draft International Covenant on Human Rights, 10. U.N. GOAR, Annexes (Agenda item 28, pt.II) 1, 61, U.N. Doc. A/2929 (1955). 16  Id. See also Case Relating to Aspects of Laws on the Use of Languages in Education in Belgium, 1EHRR 252. 17  IACHR; Annual Report 2003; OEA/Ser.L/V/II.118; Doc. 70 rev. 2; 29 December 2003; Original: Spanish; par. 5.
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