3
obstacles, limitations, and contradictions—direction, consistent with the best
tendencies in this stage of the ample and difficult history of equality between men
and women in the eyes of the law (and, even more so, before the application of the
law to a strict reality).
10.
Of course, when I refer to women’s rights and liberties I am alluding to two
sectors in this universe of juridical protection: a) on one hand, those shared,
without exception or distinction, with men: general rights; and b) on the other
hand, those related directly and exclusively –or almost exclusively—with the
condition of women of their holders. In this last sector what should reign is the
adoption of special measures that acknowledge specific characteristics of women –
an evident example is the protection before and after giving birth – and that
reestablish, introduce, or favor equality between men and women in realms in
which they have found themselves in an unfavorable situation with regard to the
first due to cultural, economic, political, religious, or other considerations.
11.
In rulings regarding equality before the law and other related matters, the
Court has clearly stated that the principle of equality and non-discrimination does
not suffer damages or a reduction when people are treated differently in situations
that justify it, precisely in order to place them in a position that lets them truly
exercise their rights and authentically take advantage of the guarantees
acknowledged by law to all human beings. Real inequality, marginalization,
vulnerability, and weakness must be compensated with reasonable and sufficient
measures that generate or favor, as mush as possible, conditions of equality and
dismiss all forms of discrimination. The principle of lawfulness –whose origin is in an
equal treatment for all- not only does not exclude, but demands, the admission –
even better: the need—of a specificity that feeds on such an equal treatment and
avoids the failure to which it is frequently exposed.
12.
Due to all of the aforementioned, it is perfectly justifiable, and even
desirable, that the defense of women’s rights that has been deposited in specific
declarations and conventions on this matter occupy front stage in the consideration
of international protection organizations. That relevant admission contributes to
clarify, strengthen, and enlarge the protective system in its totality. It is consistent
with its objectives and it is pertinent and opportune if one takes into account the
situation that normally prevails in this matter. Thus, there are legal substantive
grounds that back the interest shown in the Convention of Belém do Pará.
13.
Having solved this first matter, along comes the one regarding the
applicability and, therefore, the application of that instrument by the InterAmerican Court in a specific case, within the fulfillment of its adjudicatory
jurisdiction, in such a way that the judgment analyzes and decides on the
infringement that could have been suffered by the alleged victim pursuant to the
Convention of Belém do Pará. Does the Inter-American Court have the power to
issue a ruling regarding that infringement, which would form part of the operative
part of a judgment, and to order, based on that, certain consequences derived from
the illegal act declared, which would be part of the condemnatory part of the
judgment?
14.
This question, with its corresponding effects, was solved with regard to the
ACHR -–support for the jurisdiction itself of the Court, in its different aspects--, as
well as to the Protocol of San Salvador, the Convention regarding Torture and the
Convention referring to Forced Disappearances. Now it arises in reference to the
Convention of Belém do Pará, surrounding which there have been different points of
view. I would not allow myself to disregard them and much less censor them in
what they do not coincide with my point of view, but I must express –with regard
to them—the opinion I have finally held when voting the Judgment.