2
also to meet an obligation, which is to contribute to a better understanding of the function
assigned to the Court.
From that perspective, it should be pointed out that this opinion, such as others issued by the
judges in this and other cases, is a clear demonstration of the dialogue and the diversity of
opinions that exist in the Court, as well as the deference shown to its members, all of which
evidently enhances the delicate and transcendental task with which they are entrusted.
Furthermore, it should be noted that this text is based on the conviction that the work of the
Court is to interpret and to apply the Convention;8 that is, to indicate the meaning and scope of
its provisions, which may be applied in different ways since, to some extent, they are perceived
to be obscure or debatable. In this regard, it is not for the Court to amend the Convention, but
merely to indicate what it really establishes and not what the Court would like it to establish.
Thus, the Court’s function is to clarify the intention that the States Parties to the Convention had
when signing it and, eventually, how it should be understood in relation to new situations. And,
it is in order to determine that intention that it should abide by the rules for the interpretation of
treaties contained in the Vienna Convention on the Law of Treaties and, in particular, those
established in its Article 31,9 understanding that the four elements set out in it should be applied
simultaneously and harmoniously.
It is worth adding, in this regard, that the Court’s mandate is to impart justice using the law.10 It
is not incumbent on the Court to promote human rights, which is the function that the Convention
assigns to the Inter-American Commission on Human Rights.11 Consequently, as a judicial organ,
the Court does not have the authority to rule outside or disregarding the legal provisions
established, for the purposes of the Court, in the Convention.
This dissent is manifested, therefore, with the hope that, in future, it will be adopted either by
the Court’s case law or by a new provision of international law. Regarding the former, because
the Court’s judgment is only binding for the State that is a party to the case in which it is
delivered,12 and thus, the Court’s case law, as an ancillary source of international law and,
Art. 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.”
8
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.”
9
10
Footnote 8.
11
Hereinafter the Commission.
Art. 41: “The main function of the Commission shall be to promote respect for and defense of human rights. In the exercise
of its mandate, it shall have the following functions and powers:
a) to develop an awareness of human rights among the peoples of America;
b) to make recommendations to the governments of the member states, when it considers such action advisable, for the
adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional
provisions as well as appropriate measures to further the observance of those rights;
c) to prepare such studies or reports as it considers advisable in the performance of its duties;
d) to request the governments of the member states to supply it with information on the measures adopted by them in matters
of human rights;
e) to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member
states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory
services they request;
f) to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through
51 of this Convention; and
g) to submit an annual report to the General Assembly of the Organization of American States.
12
Art.68(1): “The States Parties to the Convention undertake to comply with the judgment of the Court in any case