SEPARATE OPINION OF JUDGE DE ROUX RENGIFO
I share the point of view, according to which, the right to the recognition of juridical
personality, that is, to be considered a subject of rights by the legal system, is not
related to the question of whether or not a person is allowed to exercise such rights
in the practice.
In this respect, there is a valid distinction between the juridical personality (which
would be the who of the condition of subject of rights and obligations), the legal
capacity (which would be the how much, the quantitative expression of this
condition, and which could be measured and compared in order to say, for example,
that it is more in an adult and less in a minor), and the effective exercise of this
capacity (which could be affected in many different ways, by the legal or illegal
action of the State or of individuals).
It would be possible to mention numerous examples of behaviors that signify severe
illegal restrictions to the exercise of rights, without it being viable to affirm that they
suppress the juridical personality of the victim. This would be the case, to mention
the first thing that comes to mind, of arbitrary detention (particularly when this is
accompanied by the prolonged, solitary confinement of the person detained), of
submitting a person to a regime of restraint due to madness or dissipation without
previously conducting a due process, or of abduction.
However, we could imagine that certain restrictions to the exercise of rights are so
intense and so profound that they are equivalent to a derogation of the recognition
of juridical personality, and that forced disappearance constitutes an exemplary case
in this respect. Nevertheless, it will always be pertinent to counter this with the
argument that the question of juridical personality belongs to a completely different
legal category to that of the use and enjoyment of the rights of the subject, in the
context of the facts that we are discussing. And not because the recognition of
juridical personality is a sort of entelechy that lacks points of contact with the reality
of real men and women, but rather because the normative embodiment of the right
to that recognition is addressed at counteracting a scourge that merits combating, in
its specificity, with the greatest vigor: that by which some legal systems establish,
by definition, that certain categories of human beings lack the condition of subjects
of rights and obligations and are, to all intents and purposes, comparable to things 1.
In any case, in recent decades, international human rights law has been considering
the issue of whether forced disappearance does or does not violate the right to
recognition of juridical personality.
The Declaration on the Protection of All Persons from Enforced Disappearances
adopted by the General Assembly of the United Nations in its resolution 47/133 of 18
1
In the preparatory work for the International Covenant on Civil and Political Rights, there are
traces of the fact that, at that time, the members of the Drafting Committee faced the question of the
level at which the right to the recognition of juridical personality should be placed. In this respect, the
differences should be noted between the pertinent part of the Drafting Committee's report on the first
working session in 1947 and the text that emerged from the Commission on Human Rights in 1950,
corresponding to Article 16 of the Covenant. The formula contained in the 1947 report united in the same
provision the issue of the exercise of rights and that of "judicial personality"; it said: “no person shall be
restricted in the personal exercise of his civil rights or deprived of judicial personality, save in case of: a)
minors, b) ...”. The final text concentrates on the issue of juridical personality and states: “everyone shall
have the right to recognition everywhere as a person before the law.”