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the treaty in their context and in the light of its object and purpose.” 9 This brief will also make
reference to a possible evolutive and pro homine interpretation.
1.1. Primary Method of Interpretation According to the Rules of the Vienna Convention
This brief will interpret the text of the relevant norms of the Pact of San José, taking into
account this Convention’s context, object and purpose. 10 In doing so, this brief will begin by
thoroughly analyzing Article 4(1), which is composed of three sentences:
1st: “Every person has the right to have his life respected;”
2nd: “This right shall be protected by law and, in general, from the moment of conception;”
and
3rd: “No one shall be arbitrarily deprived of his life.”
The first of these sentences declares the existence of a right to life. The second refers to
the right declared in the previous sentence and establishes an obligation of the State. The third
makes explicit a consequence of the right established in the first sentence.
The second sentence alludes to conception, posing the challenge in determining whether
this means that a human organism has rights from this time. 11 This sentence, the most
important for this brief’s textual analysis, is severed by the “in general” phrase. Without this
insertion it would read as follows: This right shall be protected by law and from the moment of conception, 12
which is the wording that was proposed by the three original drafts of the Convention. 13
9 Art. 31(1) VCLT.
10 Originally the Inter-American Court asserted “the principle of the primacy of the text” (Advisory Opinion
OC-3/83, Inter-Am. Ct. H.R. (ser. A) No. 3, 50), but now it tends to stress the importance of analyzing the
Convention as a whole. See Advisory Opinion OC-20/09, Inter-Am. Ct. H.R. (ser. A) No. 20, 23 ff.
11 This amici curiae will use the words “conception” and “fertilization” interchangeably. Works of legal
scholarship do not usually define conception, but seemingly the majority of authors consider it as a synonym of
fertilization, e.g.: Rudy J. Gerber, Abortion: Two Opposing Legal Philosophies, 15 AM. J. JURIS. 1, 7 (1970); Eithne Mills &
James McConvill, The 2002 Irish Abortion Referendum: A Question of Constitutionalism and Conscience, 4 EUR. J.L. REFORM
481, 488 (2002) (Neth.); Marco Gerardo Monroy Cabra, Derechos y Deberes Consagrados en la Convención Americana sobre
Derechos Humanos “Pacto de San José de Costa Rica”, in LA CONVENCIÓN AMERICANA SOBRE DERECHOS HUMANOS 33,
36 (Comisión Interamericana de Derechos Humanos ed., 1980); Ángela Vivanco Martínez, La Píldora del Día
Después, 35 REVISTA CHILENA DE DERECHO [R. CH. D.] 543, 544 (2008) (Chile). More recently, many legal scholars
asserted in the first footnote to the San José Articles that conception or fertilization “is the union of an oocyte and
sperm cell.” SAN JOSE ARTICLES, http://www.sanjosearticles.com/?page_id=88 (last visited Feb. 8, 2012).
12 This provision can be compared with the second sentence of Article 6(1) of the International Covenant
on Civil and Political Rights, which states: “This right shall be protected by law.” International Covenant on Civil
and Political Rights, Dec. 16, 1966 (ratified by the U.S. on June 8, 1992), G.A. Res. 2200 A, U.N. GAOR, 21st Ses.,
Supp. No. 16, at 52, U.N. Doc. A/6316 [hereinafter ICCPR].
13 I.e., the Draft Convention on Human Rights approved by the Fourth Meeting of the Inter-American
Council of Jurists, Santiago, Chile, Sept., 1959, Doc. CIJ-43; the Proyecto de Convención sobre Derechos Humanos,