PARTIALLY DISSENTING OPINION OF
JUDGE HUMBERTO ANTONIO SIERRA PORTO
CASE OF MUELLE FLORES V. PERU
JUDGMENT OF MARCH 6, 2019
(Preliminary objection, Merits, Reparations and Costs)
1.
Reiterating my respect for the decisions of the Inter-American Court of Human Rights
(hereinafter “the Inter-American Court” or “the Court”), I offer this partially dissenting opinion. My
opinion focuses on the in-depth analysis undertaken by the Court regarding the international
responsibility of the State (hereinafter “the State”, “Republic of Peru” or “Peru”) for the violation of
the right to social security and the principle of progressivity. Specifically, I will explain my
disagreement with the position adopted by the Court in relation to Operative Paragraphs 1, 5 and
6, in which it was determined that those rights were violated in the instant case. In that regard, I
point out that my thoughts reflect what I have already expressed in my partially dissenting opinions
issued in the cases Lagos of the Campo v. Peru1, the Dismissed Employees of PetroPeru et al. v.
Peru2, and San Miguel Sosa et al v. Venezuela 3; as well as in my concurring opinions in the cases
of Gonzales Lluy et al. v. Ecuador4, Poblete Vilches et al. v. Chile5 and Cuscul Pivaral et al. v.
Guatemala.6 This analysis will be carried out in the following order: A. Objection to the alleged lack
of jurisdiction ratione materiae, and B. Direct justiciability of Article 26 of the American Convention
on Human Rights (hereinafter “the American Convention” or “the Convention”).
I.
OBJECTION REGARDING THE ALLEGED LACK OF JURISDICTION RATIONE
MATERIAE
2.
In the instant case, the State pointed out that the representatives did not seek to claim the
justiciability of the Convention rights, but rather of the economic, social, cultural and environmental
rights (hereinafter “ESCER”), specifically the right to social security. The State argued that Article
19(6) of the Additional Protocol to the American Convention on Human Rights in the Area of
Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August 31,
2017. Series C No. 340. Partially dissenting opinion of Judge Antonio Humberto Sierra Porto.
1
Cf. Case of Case of Dismissed Employees of PetroPeru et al. v. Peru. Preliminary objections, merits, reparations and
costs. Judgment of November 23, 2017. Series C No. 344. Partially dissenting opinion of Judge Antonio Humberto Sierra
Porto.
2
Cf. Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series
C No. 348. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
3
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
September 1, 2015. Series C No. 298. Concurring Opinion of Judge Humberto Antonio Sierra Porto.
4
Cf. Case of 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. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
August 23, 2018. Series C No. 359. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
6