between its functions and those of the Inter-American Court, the judgments cited in this
reasoned vote are of great importance, as we shall see in Chapter II.
II.
IT IS NOT NECESSARY OR PRUDENT TO INVOKE ARTICLE 17.1
18. As I have already indicated, I do not consider it necessary or prudent to declare a
violation of Article 17, which could be taken as an implicit pronouncement on the
interpretation of different provisions of said Article. Indeed, Article 17 contains a number of
provisions connected with each other, beginning with the declaration of principle that “the
family is the natural and fundamental group unit of society,” followed by the provision,
within the same paragraph 1, whereby the family “is entitled to protection by society and
the State,” and further on several provisions that could be interpreted (a point on which in
this vote makes no pronouncement) in a way that presupposes that the family is based on a
heterosexual marriage or de facto union. The right to not “be the object of arbitrary or
abusive interference with his private life, (or) his family”, enshrined in Article 11.2, is a
specific and autonomous aspect of the general duty of protection, so therefore it is not
necessary to invoke Article 17.1 cumulatively with Article 11.2. The determination that
some of the facts themselves violate a general duty and a specific duty (or the
corresponding rights) does not change the nature or severity of the violation, and nor does
it lead to different reparations being ordered than if only invoking the provision that
enshrines the right or specific duty. Instead, invoking Article 17.1 includes the
aforementioned declaration of principle, and, by implication, could encompass the rest of
Article 17.
19. The declaration of principle regarding the family contained in Article 17.1 essentially
agrees with the provisions of many Latin American constitutions:
Bolivia: Article 62. The State recognizes and protects families as the fundamental nucleus of
society, and guarantees the social and economic conditions necessary for their integral
development. All family members have equal rights, obligations and opportunities.
Article 63. I. Marriage between a woman and a man is constituted by legal ties and is based on
the equal rights and duties of the spouses.
II. Free or de facto unions which are stable and monogamous and entered into by a woman and a
man without legal impediment, shall have the same effects as a civil marriage, both as regards
the personal and patrimonial relations of the spouses and as regards the children adopted or born
of these unions.
Brazil: Article 226. The family, which is the foundation of society, shall enjoy special protection
from the State.
This article continues with specific provisions related to wedlock or marriage, and the “stable
union between a man and a woman as a family entity,” among other matters.
Chile: Article 1 (in Chapter I, Bases of Institutionality). Men are born free and equal in dignity and
rights.
The family is the basic core of society.
The State recognizes and defends the intermediate groups through which society organizes and
structures itself and guarantees them the necessary autonomy to fulfill their own specific
objectives.
The State is at the service of the individual and its goal is to promote common welfare. To this
effect, it must contribute to the creation of the social conditions which permit each and every one
of the members of the national community to achieve the greatest possible spiritual and material
fulfillment, with full respect for the rights and guarantees established by this Constitution.
It is the duty of the State to safeguard national security, provide protection for the people and the
family, promote the strengthening of the latter, further the harmonious integration of all sectors
of the Nation and guarantee everyone the right to participate in national life with equal
opportunities.
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