-9Accordingly, I agree that “[i]f the States really want to take this issue seriously, it is
urgent that they revise the relevant treaties so that it is the States themselves that
decide to update their obligations in this area.” 23
29.
Meanwhile, some authors have used the pro homine principle established in
Article 29 of the Convention to affirm that this tends towards the direct enforceability
of the ESCR via Article 26, given that this position would provide more extensive
protection. Regarding this principle, the Court has established that “the international
system of protection should be understood to be comprehensive, a principle
established in Article 29 of the American Convention, which imposes a protection
framework that always accords preference to the interpretation or the norm that is
most favorable to human rights, the cornerstone for protection of the whole interAmerican system. In this regard, the adoption of a restrictive interpretation of the
scope of the Court’s competence would not only run counter to the object and purpose
of the Convention, but would also affect the practical effects of the treaty itself and the
guarantee of protection that it establishes, with negative consequences for the
presumed victim in the exercise of his right of access to justice.” 24 Thus, the pro
homine principle should be applied when the Court is faced with two possible precise
and valid interpretations. Indeed, what the analysis made in this opinion has
demonstrated is that the direct justiciability of the ESCR based on Article 26 of the
Convention is not a valid interpretation because its intention is to generate a normative
statement that does not correspond to that article.25
E. Conclusion and final considerations
30.
Having set out the legal arguments that support my decision in this judgment, I
also find it appropriate to present other reasons that reinforce my position. To start,
one of the reasons why I consider that the arguments of those who are in favor of the
direct justiciability of the ESCR under Article 26 are not persuasive is because they
have not been able to justify how this approach, which contravenes what is expressly
stated in the Protocol, is a better option that the other means of protection that the
Court has used, such as the connectivity with the right to life or the right to personal
integrity, or the concept of a “decent life.” Some authors affirm that that approach is
necessary in order to provide a specific sphere of protection for the ESCR, without
taking into account that the Protocol of San Salvador created this sphere of protection,
but concluded that the Court would only consider directly the rights established in
Article 8(a) and 13 of the Protocol. In addition, it has not been proved that the use of
connectivity or the concept of a “decent life” as mechanisms for the indirect protection
of the ESCR26 is not effective for the protection and guarantee of the victims’ rights, or
that it is not an option that provides extensive protection. I agree that it is important
that case law must be progressive and provide all possible guarantees, but in those
cases in which protection can be achieved by less problematic and controversial
23
Juan Carlos Upegui Mejía, Diálogos Judiciales en el Sistema Interamericano de Garantía de los
Derechos Humanos. Barcelona, España, February 26, 2015. Available at https://www.youtube.com
/watch?v=7cAls8PSzmo&feature=youtu.be
24
Case of Vélez Loor v. Panamá. Preliminary objections, merits, reparations and costs. Judgment of
November 23, 2010. Series C No. 218, para. 34.
25
Similarly see: Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, Merits,
reparations and costs. Judgment of November 16, 2009. Series C No. 205, para. 79.
26
Similarly, during the public hearing in this case, expert witness Courtis stated that: “Conceptually, [he
had …] no objection [to the interpretation of the right to health by means of the right to physical integrity,
because] rights [are] indivisible, interdependent, and of equal rank.”
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