I state the foregoing because I consider that, with the rulings in the instant case, the
Court is in fact modifying the provisions of Article 8(1), especially when it does not
invoke or apply the rules for the interpretation of treaties included in the Vienna
Convention on the Law of Treaties, particularly those relating to agreements between
States,66 to support the interpretation adopted, but rather exclusively case law which,
although consistent, reiterated and uniform, is insufficient for this purpose.
This does not mean, however, that case law should not give expression to the law, as
the living, active and dynamic discipline that it should be. The role of justice is rooted
precisely in deciding whether the law invoked is applicable to each specific case, and
this is because, obviously and as is normal, the case probably does not correspond
exactly to the circumstances that existed when the law was enacted, because, if it did,
it is possible that no interpretation would be needed.
But, in the instant case, it is not that the matter to be decided concerned the
application of Article 8(1) to the reality that existed when it was adopted, but rather as
it has evolved up until today. However, the result has been to make it applicable to
totally different circumstances by taking its interpretation to extremes, which is what
happens when it is considered that Article 8(1) has been violated in a procedure before
an administrative authority, in which there was no dispute.
Lastly, this dissenting opinion is evidently emitted with the greatest respect for the
decision of the majority of the members of the Court; in other words, by the Court. It
is not intended to question the legitimacy of the decision. To the contrary, it seeks to
express the purpose of a dissenting opinion and, to some extent also, a concurring
opinion;67 that is, to demonstrate not only the dedication with which a collegiate court
(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of
the object and purpose of the treaty as a whole.”
65
Article 76: “1. 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.
2. Amendments shall enter into force for the States ratifying them on the date when two-thirds of the
States Parties to this Convention have deposited their respective instruments of ratification. With respect to
the other States Parties, the amendments shall enter into force on the dates on which they deposit their
respective instruments of ratification.”
66
Art. 31(2) and 31(3) of the Vienna Convention on the Law of Treaties: “2. The context for the purpose of
the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection
with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or
the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.”
67
Regarding concurring opinion and dissenting opinion, see brief on constancia of complaint filed by the
undersigned on August 17, 2010, related to the dissenting opinion and the concurring opinions issued in
relation to the Orders of the Court relating to “Provisional measures with regard to the Republic of Colombia,
Case of Gutiérrez Soler v. Colombia,” of June 30, 2011, “Provisional measures with regard to the United
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