precedents, that is, acts that are repeated constantly and uniformly with the
understanding of being required by law. They are not general principles of law, either
because they cannot be inferred or deduced logically from the international legal
structure, or because they are not enough as for being considered common to the
great majority of the States parties to the Convention.
Nevertheless, what is even more important is that these agreements or instruments
are not applicable to this case, not only because some of them do not bind the Member
States to the Convention, but also because they clearly do not consider the situation of
the unborn or the conceived, so as to allow or not to prohibit abortion. 80
c.- Rule regarding the prevalence of specialized law over general law.
It is due to this reality that none of these instruments contain a provision like Article
4(1) of the Convention, a particularity of the Inter-American system on human rights.
The Judgment does not take this into account when interpreting this Article. It, hence,
omits a rule of general legal interpretation, found in international law and in the Law of
Treaties, which provides that “specialized law prevails over general law.”
Article 4(1) is part of the body of international laws which—although it cannot be
qualified as Latin American, regional or particular international law—are particular to
the Member States to the Convention. Hence, this provision cannot be interpreted
through the use of other general norms of international law or other Human Rights
systems that do not include this provision. This would make the latter prevail over the
American Convention, eventually modifying it in practice.
d.- Incapacity
Taking the above into account, this opinion does not share the Judgment’s conclusion
when making a systematic interpretation of the Convention and the American
Declaration of Rights and Duties of Man, when it indicates that “it is not feasible to
maintain that an embryo is the holder of and exercises the rights established in each”
of the Articles of these texts. This is so, because the Judgment leaves out any
consideration of the existing concepts of absolute and relative legal incapacity of
persons. These concepts exist in different jurisdictions, and they may limit or preempt
the exercise of these people’s rights, without taking away their legal recognition as
persons.
Even greater dissent needs to be expressed in the Judgment’s statement that:
“taking into account, as indicated previously, that conception can only take place
within a woman’s body [infra…], it can be concluded with regard to Article 4(1) of
the Convention, that the direct subject of protection is fundamentally the
pregnant woman, because the protection of the unborn child is implemented
essentially through the protection of the woman”. 81
And this vote cannot agree with the affirmation in this paragraph because of its
understanding of conception as a phenomenon that “can only take place within a
woman’s body,” which is correct, but is based on a statement in another paragraph
that “conception or gestation is an event of the woman, not of the embryo.” This
would lead to the conclusion that conception is an issue affecting the pregnant woman
only.
Second, this statement cannot be agreed with because, if the intent had been to
protect the unborn’s “right to have his life respected” through protection of the
pregnant woman, the Convention would have specifically stated so, which was not the
case.
80
Paras. 226, 227, 235, 236, 237, and 249.
81
Para. 222.