Chapitre 2. El fallo Artavia murillo c/ Costa Rica de 28.11.2012 y su eficacia en la legislación interna

Résumé Fr En Es

Le contrôle de conventionalité et le principe pro homine peuvent parfois se confronter. En tels cas, les dispositions internes des Etats, plus protectrices, ont priorité sur la résolution de la CIDH.

The Artavia Murillo v. Costa Rica judgement wants to make the Convention say the opposite of what it clearly states: that one is a person from the moment of conception. Contrary to what the Inter-American Court maintains, conduct cannot be ethical if it is not based on criteria of justice, and the concept of justice is based on reality.In order to know how to treat something, it is first necessary to know what the thing – in reality – is. Then it is necessary to treat it as it is in reality: to treat each thing as it should be treated, according to its being.Human life cannot be treated like animal or vegetable life. Human life is superior. The capacity to will and to understand give it an exclusive nobility characterized by freedom. It must therefore be treated in accordance with its dignity.For treatment to be dignified, it must first prevent the destruction of its object (abortion). The principle of preservation applies. Once its reality, its being, has been preserved, its integrity must be respected. The violation of integrity is the removal of part of the being. Then we must respect its nature, which presupposes the idea of an end according to the operations that are proper to it. If we maintain that human life is an end in itself, it cannot be instrumentalized. This rule is universally accepted in the Western world from the ethical point of view, and it is the application of the golden rule of Kantian ethics: “treat the human being as an end in itself”; “treat others as I would like to be treated myself”.The concept of personhood is not fundamental to assigning special dignity to human life. It is its consequence. Personhood is an essential attribute of human life. It is the attribute that best corresponds to it. However, recent legal systems have not granted personal status to unborn life because they are old norms. They come from times when science was not able to prove its existence. Their evolution is hindered by scientific hesitations created by the dispute between different criteria. But this discussion does not make sense, it should not exist. If there is any doubt, whatever it may be, one must pronounce oneself in favour of life. This must be an essential principle of today’s bioethics – derived from the primum non nocere – and therefore, of the law based on it, and in particular that provided for in the Inter-American Convention.

Control de convencionalidad y principio pro homine pueden resultar enfrentados, en cuyo caso, la normativa interna de los Estados, más protectoras, tienen prioridad sobre el fallo de la CIDH.