interpretation of the Convention, and mandating that, in that exercise, the meaning
and scope that is understood cannot permit a limitation of the human right that the
Convention ensures or that is recognized by the other legal instruments it indicates.
Therefore, this article obliges the Court to interpret the rights ensure in the Convention
with the broadest meaning and scope established in this instrument or in other
applicable legal instruments.
21. Furthermore, regarding case law as an instrument of interpretation, it should be
recalled that the judgment delivered by the Court in a case that has been submitted to
its consideration is binding only for the State Party or States Parties to the case.36 For
all the other States, it constitutes a supplementary means for determining the rules of
law.37 And, in the case of advisory opinions, these are not binding and cannot be binding
because the States are not obliged to appear before the Court in the process for their
elaboration, and it does not involve an adversarial procedure. Moreover, the Convention
does not assign a binding nature to advisory opinions since the OAS organs and even
the States can request them with regard to the compatibility of any of their laws with
the Convention38 and .39
22. Also, with regard to case law, it appears necessary to include some brief comments on
the expressions used in several of the Court’s judgments, such as that “human rights
treaties are living instruments, the interpretation of which must evolve with the times
and current circumstances.”40 The first comment is that this is established in Article
31(3)(a) and (b) of the Vienna Convention, when it indicates that, together with the
context, there should be taken into account the agreements and the practice of the
States regarding the interpretation of the treaty concerned. Thus, the evolutive aspect
should refer more to the applicable law than to the case law issued concerning it.
23. The second comment is that, consequently, the said evolutive interpretation should
relate specifically to the society regulated by international law and, in particular, by the
Convention; in other words, the international society formed of sovereign States that
are all equal, among which there is no pre-established hierarchy of power or of laws,
or enforceability of submission to an international judicial instance, and where the
legislative and executive functions correspond to the States. It is in that context in
which, as legal doctrine indicates, the judicial function consisting in transforming the
(c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of
government, or
(d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of
the same nature may have.
36
37
Supra, footnote 12.
Supra, footnote 13.
38 Supra,
footnote 11.
39
Separate opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Advisory Opinion OC-24/17, of November
24, 2017, requested by the Republic of Costa Rica, Gender Identity, and Equality and Non-Discrimination with regard to Same-Sex
Couples. State Obligations in relation to Change of Name, Gender Identity, and Rights deriving from a relationship between SameSex Couples (Interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American
Convention on Human Rights), paras. 8 to 16.
40
Case of the Workers of the Fireworks Factory of Santo Antônio de Jesus v. Brazil. Preliminary objections, merits, reparations and
costs. Judgment of July 15, 2020. Series C No. 407, para. 158.
Hereafter, each time that “para.” or “paras.” Is indicated, it is understood that this refers to a “paragraph”
or “paragraphs” of the judgment or document referred to.