SEPARATE OPINION OF JUDGE EDUARDO FERRER MAC-GREGOR POISOT CASE OF CUSCUL PIVARAL ET AL. V. GUATEMALA JUDGMENT OF AUGUST 23, 2018 (Preliminary objection, merits, reparations and costs) Judge Elizabeth Odio Benito and Judge Patricio Pazmiño Freire adhered to this opinion of Judge Eduardo Ferrer Mac-Gregor Poisot. INTRODUCTION: THE DIRECT JUSTICIABILITY OF THE RIGHT TO HEALTH AND THE OBLIGATION OF PROGRESSIVITY AND NON-RETROGRESSIVITY 1. The judgment in the case of Cuscul Pivaral et al. v. Guatemala (hereinafter “the judgment” or “Cuscul Pivaral”)1 makes an important contribution to jurisprudence in the area of economic, social, cultural and environmental rights (hereinafter “ESCER”). The judgment adds to the approach followed by the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”), in the cases of Acevedo Buendía et al. (Dismissed and Retired Employees of the Comptroller’s Office”) v. Peru, 2 Lagos del Campo v. Peru,3 Dismissed Employees of Petroperú et al. v. Peru, 4 San Miguel Sosa et al. v. Venezuela,5 Poblete Vilches et al. v. Chile, 6 as well as in Advisory Opinion OC-23/2017 on the Environment and Human Rights,7 as regards the direct justiciability of the ESCER and the interpretive scope of Article 26 of the American Convention on Human Rights (hereinafter “the American Convention,” “the Convention” or “the Pact of San José”). 2. The judgment reaffirms that the right to health is derived from the economic, social, educational, scientific and cultural norms contained in the Charter of the Organization of American States (hereinafter “the OAS Charter”) and that, by virtue of Article 26 of the American Convention, this right is justiciable autonomously before the Inter-American Court Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359. 1 Cf. Case of Acevedo Buendía et al. (Dismissed and Retired Employees of the Comptroller’s Office”) v. Peru. Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198. 2 Cf. Case of Lagos del Campo v. Peru. Preliminary objections merits, reparations and costs. Judgment of August 31, 2017. Series C No. 340. 3 4 Cf. Case of the Dismissed Employees of Petroperú et al. v. Peru. Preliminary objections merits, reparations and costs. Judgment of November 23, 2017. Series C No. 344. Cf. Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series C No. 348. 5 Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No. 349. 6 Cf. The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity: interpretation and scope of Articles 4(1) and 5(1) in relation to Articles 1(1) and 2 of the American Convention on Human Rights). Advisory Opinion OC23/17 of November 15, 2017. Series A No. 23. 7