4
mention this circumstance in order for the corresponding institutions to take, if they
deemed fit, the appropriate actions to enable the complete clarification of the facts of
the case and establish responsibility that follows.
It is also important to highlight the treatment in the judgment given to the violation
of the rights of María Macarena Gelman García concerning the suppression and
substitution of her identity as enshrined in the Pact of San Jose. The judgment
alludes to the "Right to Identity," but expressly recognizes that it is not expressly
provided for in this Convention. Perhaps it is for this reason that in its operative
paragraphs, the judgment does not expressly mention that the State violated this
right. And although it would include the rights provided in this normative text, it also
encompasses others referred to therein. The Right to Identity would therefore be
more broad than the sum of the rights to the family, a name, a nationality, and to
the rights of the child referred to by the American Convention on Human Rights. 9
That is why the reference made by the judgment in regard to such right, should be
understood precisely in relation to the function of the jurisprudence of the Court,
which, as an auxiliary source of international law, does not create law, but interprets
the meaning and scope established by an independent source, be it a treaty, custom,
general principles of law, or unilateral legal act. 10 In that sense, what is done with
that reference should be understood as a catalyst for the competent bodies of the
Organization of American States (OAS) or the States Parties of the Convention, if
they so deem, to expressly and pursuant to the Convention enshrine and develop
said law, thereby allowing that in the future and when the pertinent law is vague or
in question, and is therefore susceptible to various alternative applications, the
jurisprudence of the Court interpret it, establishing its true meaning and scope. In
short, it must be taken into account that, in this regard, the Court need not head
exclusively nor principally to its own jurisprudence, but rather to that which is
established in the corresponding international law, established by a treaty, custom,
general principles of law or unilateral legal acts, in force for the State Party to the
case. From there, consequently, the relevance of citing and reproducing, in the
judgments of the Court, the applicable rules subject to its interpretation can be
concluded.
EVG.
Eduardo Vio Grossi
Judge
Pablo Saavedra Alessandri
Secretary
9
CJI/RES.137 (LXXI-O/07).The scope of the Right to Identity.
10
Article 38.1.d. of the Statute of the International Court of Justice.“ “1. The Court, whose function is to
decide in accordance with international law such disputes as are submitted to it, shall apply: d. subject to
the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of law.”