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my position with reference to treaty interpretation methods, the interpretation of Article 26 and,
finally, other arguments outlined in the Judgment.
I.
PRIOR CONSIDERATIONS
3.
The prior considerations concerning the matter at hand are related to the role of the separate
opinion, the function of the Court and the present dissenting opinion.
A. Regarding the role of the separate opinion
4.
This partially dissenting opinion11 is formulated, as are my previous opinions, with full and
absolute respect for the decision issued by the Court in this case, which must therefore be complied
with. Thus, this opinion cannot be interpreted, in any way or under any circumstance, as undermining
the legitimacy of the decision adopted in the instant case.
5.
It is also appropriate to clearly state that the view expressed in this opinion does not seek to
weaken or restrict, in any way, the effective exercise of human rights; in fact, it seeks precisely the
opposite. Indeed, what I state here responds to an inner certainty that effective respect for human
rights can only be achieved if the States Parties to the Convention are required to do what they
actually agreed to, in a free and sovereign manner. In this regard, legal certainty has a fundamental
role and, therefore, cannot be considered as a limitation or restriction to the development of human
rights. Rather, it should be considered as the instrument that can best ensure that these rights are
fully respected; or, if such rights have been breached, that they are promptly restored by the
respective State. It is not merely a question, then, of issuing solid and well-founded judgments aimed
at developing human rights; rather, when these have been breached, the aim is to restore their
effective exercise as soon as possible by the State concerned.12
6.
Furthermore, the issuance of separate opinions not only constitutes the exercise of a right,
but is fundamentally the fulfilment of a duty to contribute to a better understanding of the judgment
to which it refers.
Article 66 (2): “If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge
shall be entitled to have his dissenting or separate opinion attached to the judgment.”
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Article 24(3) of the Statute of the Inter-American Court of Human Rights: “The decisions, judgments and opinions of the Court
shall be delivered in public session, and the parties shall be given written notification thereof. In addition, the decisions,
judgments and opinions shall be published, along with judges' individual votes and opinions and with such other data or
background information that the Court may deem appropriate.”
Article 65(2) of the Rules of Procedure of the Court: “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 Presidency, so that the other Judges make take cognizance thereof before notice of the judgment
is served. Said opinions shall only refer to the issues covered in the judgment.”
Article 62(3):” The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of
the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have
recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement.”
12