In the first decision of its kind, the Inter-American Commission on Human Rights, the leading human rights tribunal in the Americas, has found the Jamaican government responsible for violating multiple rights of a gay man and a lesbian and urges an immediate repeal of the country’s homophobic laws.
The decision was made by the Inter-American Commission on Human Rights on 28 September 2019, but remained strictly confidential under their orders until today. The Human Dignity Trust (HDT), which brought the case before the Commission almost a decade ago in 2011, says it is a crucial and precedent setting legal victory. The decision can be found here.
As the first ever decision of the Commission to find that laws criminalising lesbian, gay, bisexual and transgender (LGBT) people violate international law, this is now the landmark LGBT human rights case for the Caribbean region.
The decision also broke new ground for all minorities characterising the right to equality and the right not to suffer discrimination as a ius cogens norm of international law. It stated the following at paragraphs 52 to 53:
- 52. …..The notion of equality stems directly from the unity of humankind and is inseparable from the essential dignity of the person, in response to which the latter is incompatible with any situation that might lead to treating a given group deemed to be superior with privilege or, inversely, treating a group deemed inferior with hostility or in any way that might discriminate its enjoyment of the rights that are effectively recognized to those who do not consider themselves subject to said situation. The Court's case law has indicated that, in the current stage of evolution of international law, the basic principle of equality and non-discrimination has been included under the principle of jus cogens. It is on this principle that the legal scaffolding of national and international public order is built, and it permeates the entire legal structure
- 53. The principle of equality and non-discrimination must be understood in the sense of incorporating two conceptions: "(.) a negative conception related to the prohibition of arbitrary differences in treatment and a positive conception related to the obligation of state to create conditions of real equality with respect to groups who have been historically excluded or who are at a greater risk of being discriminated against.
Tim Otty QC was part of the legal team led by Douglas Mendes SC, acting for the successful petitioners.