will, expressed in the Convention and in subsequent agreements and practices, so as
to require from them what they really agreed to. 6
The reasoning of this dissenting opinion has two main prongs. The first is an analysis
of Article 4(1), due to the fact that the violation of this provision is the ultimate issue
of this case. The second refers to the way this Judgment made a shift in the Court’s
case law referring to this Article.
I.- ARTICLE 4(1) OF THE CONVENTION.
In turn, the analysis of Article 4(1) of the Convention raises three issues. The first
refers to the Judgment’s perspective when addressing this case. The second regards
the interpretation of this Article. The third concerns the Court’s case law on this issue.
A.- Perspective used for deciding this case.
There is no doubt that the Judgment’s perspective when addressing this case will
influence its outcome. This is why it is necessary, first and foremost, to refer to this
perspective.
In this regard, the Judgment states that it will, as the first issue on the merits of this
case,
“determine the scope of the rights to personal integrity and to private and family
life, as relevant to decide the dispute.” 7
Then, it states that
“the purpose of this case focuses on establishing whether the Constitutional
Chamber’s judgment resulted in a disproportionate restriction of the rights of the
presumed victims” 8
The Judgment is obviously referring to the Decision of March 15, 2000, of the
Constitutional Chamber of the Supreme Court of Justice of the Republic of Costa Rica
(hereinafter “the Decision”). The Decision declared unconstitutional the Executive
Decree No. 24029-S of February 3, 1995, regulating in vitro fertilization, because it
infringed Article 4(1) of the Convention (“Right to Life”).
In this regard, the Judgment states that “[h]aving verified that interference existed,
owing both to the prohibitive effect resulting from the Constitutional Chamber’s
judgment caused in general, and to the impact it had on the presumed victims in this
case, the Court considers it necessary to proceed to examine whether this interference
or restriction was justified.” Hence, it “considers it pertinent to examine in detail the
main argument developed by the Constitutional Chamber: that the American
6
Art. 2(1)(a) of the Vienna
terms. 1. For the purposes
concluded between States in
instrument or in two or more
7
Para. 141 of the Judgment.
reference to the Judgment.
8
Para. 171.
Convention on the Law of Treaties (hereinafter Vienna Convention): “Use of
of the present Convention: (a) “treaty” means an international agreement
written form and governed by international law, whether embodied in a single
related instruments and whatever its particular designation.”
Hereinafter, the expressions “para.” or “paras.” shall be understood as making