design of the text, and in view of Article 26, the Court has the power to
declare the international responsibility of a State if it has fallen short of its
obligations for progressive development and no regression, but not for
violation of the ESCERs considered individually.
22. This view is consistent with my position as expressed in earlier opinions, that
the correct doctrine the Court should follow is specifically to consider the
economic, social, cultural and environmental dimensions of the rights
enshrined in the text of the Convention, and to exercise its adjudicatory
jurisdiction on the basis of related actions, if in fact a relationship of this kind
can be determined. The declaration of responsibility based on related actions
in no case empowers the Court to hold that rights not recognized in the
Convention have been violated. Even this type of procedure simply provides
a means to identify the appropriate relationships between the ESCERs and
the civil and political rights set forth in the Convention.
23. It should also be stated, as I mentioned earlier, that the system of
interpretation applicable to the provisions of the Convention should adhere
to the rules of interpretation of the VCLT. This means considering such
factors of interpretation as good faith, the usual meaning of terms in the
context of the treaty, and the object and purpose of the treaty. The latter
point, as Cecilia Medina teaches, points to two specific features in the
hermeneutics of human rights treaties: “their dynamism and the pro persona
role, which provide judges with ample scope for a very creative
interpretation.” 67
24. One of the most important canons of interpretation in international human
rights law is the evolving, pro persona interpretation. This standard was
followed in several cases, including the Case of the Mayagna (Sumo) Awas
Tingni Community v. Nicaragua, 68 regarding the right to property, 69 or the
Case of Atala Riffo and daughters v. Chile, 70 on the right to equality and nondiscrimination. 71 In the instant case, however, the Court has not applied this
standard of interpretation, but instead asserts its jurisdiction over matters
that the different instruments have not entrusted to it, that is, to which the
States Parties have not consented. In other words, it is an error to wield
these hermeneutic tools as a basis to expand the Court’s jurisdiction, when
there is an explicit provision that sets clear, precise boundaries to it.
25. In short, this approach undermines the legal certainty that an international
court must guarantee, as well as the legitimacy of its decisions, because the
argument as given simply ignores a provision that expressly limits the
Court’s jurisdiction to hear cases of alleged violations of ESCERs.
26. The justification and grounds for a judicial decision should properly be that
the arguments put forward allow the reader to replicate and understand the
reasoning process by which the Court arrived at a particular ruling. The
decision that an ESCER is enforceable cannot be based on ignoring the rules
of jurisdiction set forth in the Convention and its additional Protocol.
67
Cf. MEDINA, Cecilia: The American Convention on Human Rights (2nd edition). Crucial Rights for their
Theory and Practice. Intersentia Ltd. Cambridge, UK, 2016, p. 54.
68
I/A Court HR. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations
and Costs. Judgment of August 31, 2001. Series C No. 79.
69
In this case, the Court interpreted that Article 21 of the Convention, the right to property, protected the
particular characteristics of communal land ownership of indigenous peoples.
70
I/A Court HR. Case of Atala Riffo and daughters v. Chile. Request for Interpretation of the Judgment on
Merits, Reparations and Costs. Judgment of November 21, 2012. Series C No. 254.
71
In this case, the Court judged that sexual orientation and gender identity are categories protected by
the American Convention under the notion of “other social condition” set forth in Article 1(1).