DISSENTING OPINION OF JUDGE EDUARDO VIO GROSSI.
INTER-AMERICAN COURT OF HUMAN RIGHTS,
CASE OF ARTAVIA MURILLO ET AL.
(“IN VITRO FERTILIZATION”) v. COSTA RICA
JUDGMENT OF NOVEMBER 28, 2012
(Preliminary Objections, Merits, Reparations and Costs)
INTRODUCTION.
This dissenting opinion 1 is issued with the utmost respect and consideration towards
the Inter-American Court of Human Rights (hereinafter “the Court”) and, certainly, to
all of its members. The arguments that will be presented are, of course, limited solely
and exclusively to what was addressed in the above judgment (hereinafter “the
This opinion refers, particularly, to Article 4(1) of the American
Judgment”). 2
Convention on Human Rights (hereinafter “the Convention”), because the author of
this opinion considers that the analysis of this Article was a determining factor in the
outcome of all other issues of this case.
The commentaries made in dissenting opinion are, certainly, based on the law and not
on the author’s wishes. This opinion also bears in mind that the Court must interpret
and apply the Convention, 3 instead of assuming the role of the Inter-American
Commission of Human Rights 4 or the lawmaking function. The latter belongs to the
States, which have the exclusive power to modify the Convention. 5 Finally—and
especially—, this dissenting opinion notes that the Court must determine the States’
1
Art. 66(2) of the Convention: “If the judgment does not represent in whole or in part the unanimous
opinion of the judges, any judge shall be entitled to have his dissenting or separate opinion attached to the
judgment”; and Art. 24(3) of the Statute of the Court: “The decisions, judgments and opinions of the Court
shall be delivered in public session, and the parties shall be given written notification thereof. In addition,
the decisions, judgments and opinions shall be published, along with judges’ individual votes and opinions
and with such other data or background information that the Court may deem appropriate.” In this
particular, see also Declaration of Complaints, presented to the Court on August 17, 2011, regarding part of
the conjoint Concurring Opinion issued in relation to the Court’s orders “Provisional Measures Regarding
Colombia. Case of Gutiérrez Soler,” June 30, 2011, “Provisional Measure Regarding the United Mexican
States, Case of Rosendo Catú et Al.,” July 1, 2011, and “Provisional Measures Regarding the Republic of
Honduras, Case of Kawas Fernández v. Honduras,” July 5, 2011.
2
Art. 65(2) of the Rules of the Court: “Any Judge who has taken part in the consideration of a case is
entitled to append a separate reasoned opinion to the judgment, concurring or dissenting. These opinions
shall be submitted within a time limit to be fixed by the Presidency so that the other Judges may take
cognizance thereof before notice of the judgment is served. Said opinions shall only refer to the issues
covered in the judgment.”
3
Art. 62(3) of the Convention: “The jurisdiction of the Court shall comprise all cases concerning the
interpretation and application of the provisions of this Convention that are submitted to it, provided that the
States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration
pursuant to the preceding paragraphs, or by a special agreement.”
4
First sentence of Art. 4(1) of the Convention: “The main function of the Commission shall be to promote
respect for and defense of human rights.”
5
Art. 76(1) of the Convention: “Proposals to amend this Convention may be submitted to the General
Assembly for the action it deems appropriate by any State Party directly, and by the Commission or the
Court through the Secretary General”; and Art. 39 of the Vienna Convention: “General rule regarding the
amendment of treaties. A treaty may be amended by agreement between the parties. The rules laid down in
Part II apply to such an agreement except insofar as the treaty may otherwise provide.”