even relate to the exercise of the right to freedom of thought and expression recognized in
the Convention.32
19.
Furthermore, based on the foregoing, the mechanism of the separate opinion is also
established in the international norms of the European Court of Human Rights,33 the African
Court of Human and Peoples’ Rights,34 the International Court of Justice, 35 the International
Criminal Court36 and the International Tribunal for the Law of the Sea. 37
20.
Consequently, this opinion is issued with the hope that, in future, its contents will be
incorporated either in case law or in a new provision of international law. Regarding the
former, since the Court’s ruling is only binding for the State Party to the case in which it is
delivered,38 the Court – as a subsidiary source of international law that must, consequently,
determine the “rules of law” established by an autonomous source of international law; in
other words, a treaty, custom, general principle of law or unilateral legal act39 – may in future
change when adjudicating another case. And, regarding the latter, since the States have
Art. 13: “Freedom of Thought and Expression. 1. Everyone has the right to freedom of thought and expression. This
right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be
subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a) respect for the rights or reputations of others; or
b) the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or
private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information,
or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship
for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless
violence or to any other similar action against any person or group of persons on any grounds including those of race,
color, religion, language, or national origin shall be considered as offenses punishable by law.”
32
Art.74(2) of the Rules of Court: “Any judge who has taken part in the consideration of the case by a Chamber or
by the Grand Chamber shall be entitled to annex to the judgment either a separate opinion, concurring with or
dissenting from that judgment, or a bare statement of dissent.”
33
Article 44 of its Statute: « If the judgment does not represent in whole or in part the unanimous opinion of the
Judges, any Judge shall be entitled to deliver a separate or dissenting opinion.”
34
Art. 57 of its Statute: “if the judgment does not represent in whole or in part the unanimous opinion of the judges,
any judge shall be entitled to deliver a separate opinion.
35
Art 74(5) of the Rome Statute of the International Criminal Court: “The decision shall be in writing and shall
contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial
Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views
of the majority and the minority. The decision or a summary thereof shall be delivered in open court.”
36
Art. 30(3) of its Statute: “If the judgment does not represent in whole or in part the unanimous opinion of the
members of the Tribunal, any member shall be entitled to deliver a separate opinion.”
37
Infra, footnote 41.
Art.68(1): “The States Parties to the Convention undertake to comply with the judgment of the Court in any case to
which they are parties.”
38
Art. 46(1) of the European Convention on Human Rights: “ The High Contracting Parties undertake to abide by the
final judgment of the Court in any case to which they are parties.”
Art. 46(1) and (3) of the Statute of the African Court of Justice and Human Rights: “Binding Force and Execution of
Judgments. 1. The decision of the Court shall be binding on the parties. … 3. The parties shall comply with the
judgment made by the Court in any dispute to which they are parties within the time stipulated by the Court and
shall guarantee its execution.”
Art. 59 of the Statute of the International Court of Justice: “The decision of the Court has no binding force except
between the parties and in respect of that particular case.”
39
Supra, footnote 25.
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