scientists have changed their views, but the definition of the term enshrined by the
Convention framers remains unchanged.
Now, it is appropriate to refer to the second argument in which the Judgment bases its
position, this is, that the Dictionary of the time, 1969, “differentiated between the
moment of fertilization and the moment of conception, understanding conception as
implantation.”
This dissenting opinion has already pointed out (infra) that this
assertion is not, strictly speaking, accurate. It is not apparent that the 1959 Dictionary
considered the terms “to conceive” and “to fertilize” as antagonistic or different.
Furthermore, the 1970 edition of the Dictionary, issued a year after the subscription of
this Convention, define “to conceive” as “for the female to become pregnant,” and the
term “to make pregnant” as “to impregnate, to fertilize, to make a woman conceive.”
These definitions remain in the present edition of the Dictionary.
Finally, and still in relation to the interpretation method of the ordinary meaning of
terms, the Judgment asserts that “The literal interpretation indicates that the
expression [in general] relates to anticipating possible exceptions to a particular
rule.” 67 It then concludes that “the term ‘in general’ infers exceptions to a rule.” 68
However, this dissenting vote has pointed out (infra) that the Dictionary’s
understanding of the expression “in general” has nothing to do with the establishment
of exceptions. If the Convention would have wanted to establish an exception, instead
of providing “in general, from the moment of conception,” it would have stated, for
instance: “and, exceptionally, from the moment of conception.” The Convention did
not do this, precisely, for providing that the law’s protection of the right of “every
person [to have] his life respected” will be granted always and in every case or
circumstance—although perhaps in a somewhat different fashion—from the moment of
conception.
2.- Systematic and historical interpretation.
The Judgment also refers to the historical and systematic methods of interpretation.
When doing so, it mentions Article 31 of the Vienna Convention, particularly its third
paragraph. It does so in order to take “‘take into account not only the agreements and
instruments formally related to it (Article 31(2) of the Vienna Convention), but also its
context (Article 31(3))’; in other words, international human rights law.” 69 Likewise,
and under the same heading, the Judgment states that it will utilize the supplementary
means of interpretation of Article 32 of the Vienna Convention “for determining the
interpretation of Article 4(1) of the American Convention” it is relevant to consider
“that Article 31(4) of the Vienna Convention, which provides that a special meaning
shall be given to a term if it is established that the parties so intended.” 70
a.- Rule of the special meaning given to terms.
From a methodological standpoint, it is impossible to agree on the foregoing, because
the reference to Article 31(4) of the Vienna Convention is out of context. This norm is
the final or last among the rules that constitute what is known as the general rule of
interpretation. Within them, Article 31(4) is the rule of the special meaning of terms,
which is an exception to the norm of the ordinary meaning of terms. Hence, this rule
67
Para. 188.
68
Para. 189.
69
Para.191.
70
Para.193.