DISSENTING OPINION OF JUDGE EDUARDO VIO GROSSI
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF CASA NINA V. PERU
JUDGMENT OF NOVEMBER 24, 2020
(Preliminary objections, merits, reparations and costs)
I.
INTRODUCTION
1. This partially dissenting opinion1 with regard to the judgment in reference 2 is issued to
explain why I disagree with the second operative paragraph 3 in which, based on the
provisions of Article 26 of the American Convention on Human Rights,4 the preliminary
objection on the lack of jurisdiction of the Inter-American Court of Human Rights5 to
examine violations of the right to work is rejected.
2. That said, owing to the relevance that this issue has in the Court’s case law, I find it
necessary to reiterate once again, although with the modifications imposed by the
characteristics of this case, what I have set out in other separate opinions. 6
II.
PRELIMINARY OBSERVATIONS
3. But, first, it is necessary to mention the function of the separate opinion, the role of
the Court, the rules for the interpretation of treaties and the instant case, to then refer
to the interpretation, sequentially, of Article 26, of the norms of the Charter of the
Organization of American States7 to which the said article alludes, and of the norms
Art. 66(2) of the Convention: “If the judgment does not represent in whole or in part the unanimous
opinion of the judges, any judge shall be entitled to have his dissenting or separate opinion attached to
the judgment.”
1
Art. 24(3) of the Statutes of the Court: “The decisions, judgments and opinions of the Court shall be
delivered in public session, and the parties shall be given written notification thereof. In addition, the
decisions, judgments and opinions shall be published, along with judges' individual votes and opinions and
with such other data or background information that the Court may deem appropriate.”
Art. 65(2) of the Court’s Rules of Procedure: “Any Judge who has taken part in the consideration of a case
is entitled to append a separate reasoned opinion to the judgment, concurring or dissenting. These
opinions shall be submitted within a time limit to be fixed by the President so that the other Judges may
take cognizance thereof before notice of the judgment is served. Said opinions shall only refer to the issues
covered in the judgment.”
Hereafter, each time that a provision is cited without indicating to which legal instrument it corresponds, it
shall be understood that it is from the American Convention on Human Rights.
2
Hereinafter, the judgment.
“To reject the preliminary objection regarding the Court’s lack of jurisdiction to examine arguments
concerning the right to work, pursuant to paragraphs 26 and 27 of this judgment.”
3
4
Hereinafter, the Convention.
5
Hereinafter, the Court.
66
Partially dissenting opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of the Workers of the Fireworks
Factory of Santo Antônio de Jesus and their families v. Brazil. Preliminary objections, merits, reparations and costs. Judgment of July
15, 2020; Partially dissenting opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of Hernández v.
Argentina. Preliminary objection, merits, reparations and costs. Judgment of November 22, 2019; Partially dissenting opinion of
Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of Muelle Flores v. Peru. Preliminary objections, merits,
reparations and costs, Judgment of March 6, 2019; Partially dissenting opinion of Judge Eduardo Vio Grossi, Inter-American Court of
Human Rights, Case of San Miguel Sosa et al. v. Venezuela, Merits, reparations and costs, Judgment of February 8, 2018; Partially
dissenting opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of Lagos del Campo v. Peru. Preliminary
objections, merits, reparations and costs. Judgment of August 31, 2017, and Separate Opinion of Judge Eduardo Vio Grossi, InterAmerican Court of Human Rights, Case of the Discharged Employees of PetroPeru et al. v. Peru. Preliminary objections, merits,
reparations and costs. Judgment of November 23, 2017.
7
Hereinafter, the OAS.