CONCURRING OPINION OF
JUDGES NANCY HERNÁNDEZ LÓPEZ AND PATRICIA PÉREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF HENDRIX V. GUATEMALA
JUDGMENT OF MARCH 7,2023
(Merits)
Concurring with the majority decision of the Inter-American Court of Human Rights
(hereinafter, “the Court”), we issue this opinion 1 in order to explain why the condition
established in the domestic laws of Guatemala, consisting in requiring nationality by
naturalization of those who exercise the notarial function, does not contravene Article 24 of
the American Convention on Human Rights (hereinafter, “the Convention” or “the American
Convention”) in relation to Articles 1(1) and 2 of this instrument.
1.
First, the judgment based its deliberations on determining whether or not Mr. Hendrix
was in a similar factual situation to nationals who exercise the notarial function in
Guatemala. It made this analysis because, only if the alleged victim had been in a similar
situation, would it have been in order to examine whether or not an unjustified
differentiated treatment had existed, with the consequent violation of the right to
equality established in Article 24 of the Convention.
2.
The judgment asserts that, in Guatemala, those who exercise the notarial profession
must not only be Guatemalan nationals, but also – among other requirements – they
must prove that they have roots in the country. This requirement is justified owing to
the many different functions performed by notaries, all of which lead to the conclusion
that they exercise a public role that must be subject to the principle of accountability
and permanent oversight. This permanent oversight can only be exercised with regard
to notaries if they have roots in the country.
3.
In this specific case, the judgment concluded that Mr. Hendrix never had either
temporary or permanent residence in Guatemala because he was a foreign citizen who
lived in Guatemala intermittently while performing functions for an agency of the United
States government. 2 Thus, as Mr. Hendrix had no roots in the country in which he sought
to exercise the notarial function, he was not in a similar factual situation to other
notaries in Guatemala. Consequently, the judgment concluded that the State had not
violated Article 24 of the Convention, in relation to Articles 1(1) and 2 of this instrument.
4.
While sharing the Court’s reasoning on this point and, evidently, the conclusion that
exonerates the Republic of Guatemala from international responsibility, we believe that,
in this case, the Court should have examined whether or not the nationality requirement
for those who exercise the notarial profession in Guatemala constitutes a discriminatory
1
Article 65(2) of the Inter-American Court’s Rules of Procedure: “Any Judge who has taken part in the
consideration of a case is entitled to append a separate reasoned opinion to the judgment, concurring or dissenting.
These opinions shall be submitted within a time limit to be fixed by the President so that the other Judges may take
cognizance thereof before notice of the judgment is served. Said opinions shall only refer to the issues covered in
the judgment.”
2
Para. 69.