- 12"The object and purpose of the Convention as an instrument for the protection of individual
human beings also requires that Article 2 be interpreted so as to make its safeguards
practical and effective."36
39.
The two international human rights courts (the Inter-American and the
European Courts) have thus proceeded to develop case law on the right to life, based
on the reiterated affirmation of its fundamental nature, either by recognizing its
comprehensive normative or material content, or by surrounding this right with all the
measures – regarding both prevention and investigation – that tend to maximize its
protection. We must continue resolutely in this direction.
e)
Conclusion
40.
In my concurring opinion in Five Pensioners v. Peru (Judgment on merits and
reparations of February 29, 2003) I recalled that:
"(...) The [Inter-American] Court has consciously moved in the correct direction, in the
exercise of one of its inherent powers, and taking both the American Convention and its
interna corporis as living instruments, that require an evolutionary interpretation (as stated
in its consistent case law),37 to attend to the changing needs of the protection of the
individual" (para. 16).
41.
The Inter-American Court, in keeping with its evolutionary interpretation of the
American Convention,38 could not avoid, as it did in this judgment, proceeding to
develop the necessary case law to which I referred above. In summary, I do not see
how the Court could fail to conclude that the respondent State has violated the right to
identity (with its components embodied in Articles 18 and 17 of the American
Convention, supra, on the rights to a name and to the protection of the family) in
relation to Article 1(1) of the Convention, to the detriment of Ernestina and Erlinda
36
ECourtHR, petitions Nos. 43577/98 and 43579/98, Nachova and Others v. Bulgaria, para. 92, and cf.
para. 175.
37
Cf., in this regard, the obiter dicta in: Inter-American Court of Human Rights (ICourtHR), Advisory
Opinion OC-10/89, on the Interpretation of the American Declaration on the Rights and Duties of Man in the
Framework of Article 64 of the American Convention on Human Rights, of July 14, 1989, paras. 37-38;
ICourtHR, Advisory Opinion OC-16/99, on the Right to Information on Consular Assistance within the
Framework of Due Process of Law, of October 1, 1999, paras. 114-115, and concurring opinion of Judge A.A.
Cançado Trindade, paras. 9-11; ICourtHR, the “Street Children” case (Villagrán Morales et al. v. Guatemala),
judgment on merits of November 19, 1999, paras. 193-194; ICourtHR, Cantoral Benavides v. Peru, judgment
on merits of August 18, 2000, paras. 99 and 102-103; ICourtHR, Bámaca Velásquez v. Guatemala, judgment
on merits of November 25, 2000, Separate opinion of Judge A.A. Cançado Trindade, paras. 34-38; ICourtHR,
the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, judgment on merits and reparations of August 31,
2001, paras. 148-149; ICourtHR, Bámaca Velásquez v. Guatemala, judgment on reparations of February 22,
2002, separate opinion of Judge A.A. Cançado Trindade, para. 3.
38
Illustrated, with such emphasis, in its three historic and pioneering Advisory Opinions Nos. 16, 17
and 18, regarding, respectively, The Right to Information on Consular Assistance in the Framework of Due
Process of Law (OC-16/99, of October 1, 1999, Series A, no. 16, paras. 32, 34, 36 and 42); Juridical Status
and Human Rights of the Child (OC-17/02, of August 28, 2002, Series A, no. 17, paras. 20-22); and Juridical
Status and Human Rights of Undocumented Migrants (OC-18/03, of September 17, 2003, Series A, no. 18,
paras. 54 and 120). and also in its judgments in the “Street Children” case (Villagrán Morales et al. v.
Guatemala), judgment of November 19, 1999, Series C, no. 63, paras. 192, 193 and 194; Cantoral Benavides
v. Peru judgment of August 18, 2000, Series C, no. 69, paras. 98, 100 and 101; Bámaca Velásquez v.
Guatemala, judgment of November 25, 2000, paras. 126, 157 and 209; the Gómez Paquiyauri Brothers v.
Peru, judgment of July 8, 2004, Series C, no. 110, paras. 165 and 166; the "Children’s Rehabilitation
Institute” v. Paraguay, judgment of September 2, 2004, Series C, no. 112, para. 148; and Tibi v. Ecuador,
judgment of September 7, 2004, Series C, no. 114, para. 144, among others.
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