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 Convention 38 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 general and abstract mandates of the
Convention into concrete and specific mandates should be inserted. To this end, the respective
judicial instance should not delegate to others its authority to determine the said evolution
and the current circumstances, because, if it did, this would lead to assertions unrelated to
the justice that it should impart.
24.
Moreover, when resorting to evolutive interpretation, the Court should take special
care not to devalue what was agreed on literally, leaving it without any practical usefulness,
and thus giving rise to legal uncertainty in the States Parties to the Convention and, above
all, doubts and fears about adhering to the Convention in those that have not yet done so.
D.
The instant case
36
Supra, footnote 12.
37
Supra, footnote 13.
38
Supra, footnote 11.
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 Same-Sex 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.
39
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.
40
8