PARTIALLY DISSENTING OPINION OF
JUDGE HUMBERTO ANTONIO SIERRA PORTO
CASE OF BRÍTEZ ARCE ET AL. V. ARGENTINA
JUDGMENT OF NOVEMBER 16, 2022
(Merits, Reparations and Costs)
1.
With the customary respect for the majority decisions of the Inter-American Court
of Human Rights (hereinafter “the Court”), this opinion has the purpose of explaining
my disagreement with Operating Paragraph 7, which declares the international
responsibility of the State of Argentina for violating the right to health of Cristina Brítez
Arce.
2.
Allow me to repeat the position expressed on prior occasions that there are logical
and juridical inconsistencies in the jurisprudential position of the Court’s majority on the
direct and autonomous justiciability of the economic, social, cultural and environmental
rights (hereinafter “the ESCER”), by means of Article 26 of the American Convention on
Human Rights (hereinafter “the “Convention”). 1 This position ignores the rules of
interpretation of the Vienna Convention on the Law of Treaties, 2 changes the nature of
the obligation of progressivity, 3 ignores the will of the States embodied in the Protocol
of San Salvador 4 and undermines the Court’s legitimacy, 5 to mention only some
arguments.
3.
Moreover, with respect to the peculiarities of this case, allow me to repeat my
position on the scope of the principles of interdependence and indivisibility in relation to
the interpretation of Article 26 of the Convention. These principles state that all rights
have an equal hierarchy and importance and that the enjoyment of any of the rights
depends on the realization of the other rights. This does not imply, however, that the
ESCER should automatically be incorporated as autonomous and justiciable rights into
the content of the Convention. Although it is true that the rights are intrinsically
connected and that the respect and enjoyment of certain rights and freedoms cannot
justify the denial of others, that argument is not sufficient to modify the competence of
a court. In fact, the principles of indivisibility and interdependence and the notion that
“equal attention and urgent attention should be given to the implementation, promotion
1
This opinion complements the position already expressed in my partially dissenting opinions in Lagos
del Campo v. Peru, Dismissed Employees of Petroperú et al. v. Peru, San Miguel Sosa et al. v. Venezuela,
Muelle Flores v. Peru, Hernández v. Argentina, ANCEJUB-SUNAT v. Peru, Indigenous Communities of the Lhaka
Honhat (Our Land) Association v. Argentina, Employees of the Fireworks Factory of Santo Antônio de Jesus v.
Brazil, Casa Nina v. Peru, Guachalá Chimbo v. Ecuador, FEMAPOR v. Peru, Guevara Díaz v. Costa Rica and
Mina Cuero v. Ecuador; as well in my concurring opinions in Gonzales Lluy et al. v. Ecuador, Poblete Vilches
et al. v. Chile, Cuscul Pivaral et al. v. Guatemala, Buzos Miskitos v. Honduras, Vera Rojas et al. v. Chile,
Manuela et al. v. El Salvador, Former Employees of the Judiciary v. Guatemala, Palacio Urrutia v. Ecuador and
Pavez Pavez v. Chile, concerning the justiciability of economic, social, cultural and environmental rights by
means of Article 26 of the Convention.
2
Cf. Muelle Flores v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of March
6, 2019. Series C No. 375. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
3
Cf. Cuscul Pivaral et al. v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment
of August 23, 2018. Series C No. 359. Concurring opinion of Judge Humberto Antonio Sierra Porto.
4
Cf. Poblete Vilches et al. v. Chile. Merits, Reparations and Costs. Judgment of March 8, 2018. Series
C No. 349. Concurring opinion of Judge Humberto Antonio Sierra Porto.
5
Cf. Dismissed Workers of Petroperú et al. v. Peru. Preliminary Objections, Merits, Reparations and
Costs. Judgment of November 23, 2017. Series C No. 344. Partially dissenting opinion of Judge Humberto
Antonio Sierra Porto.
1