Administration Superintendence (ANCEJUB-SUNAT) v. Peru,6
Hernández v. Argentina7 and the Indigenous Communities of the
Lhaka Honhat (Our Land) Association) v. Argentina;8 as well as
my concurring opinions in the cases of Gonzales Lluy et al. v.
Ecuador9 and Poblete Vilches et al. v. Chile.10
i)
The practice of addressing the alleged violations in a single operative
paragraph and the justiciability of the economic, social, cultural and
environmental rights
4. In previous separate opinions I have described in detail
numerous arguments that reveal the logical and legal
contradictions and inconsistencies from which the theory of the
direct and autonomous justiciability of the economic, social,
cultural and environmental rights (hereinafter “ESCER”) under
Article 26 of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”)
suffers. Indeed, this position assumed by the majority of the
Court’s judges since the case of Lagos del Campo v. Peru
disregards the rules of interpretation of the Vienna Convention
on the Law of Treaties,11 distorts the nature of the obligation of
progressivity,12 ignores the intention of the States reflected in
the Protocol of San Salvador,13 and undermines the Court’s
legitimacy;14 just to mention some of the arguments.
5. On this occasion, it is not my intention to dwell on the points
indicated above, but rather to focus attention on a practice
related to this legal position that is manifested when declaring
6
Cf. Case of the National Association of Discharged and Retired Employees of the National Tax
Administration Superintendence (ANCEJUB-SUNAT) v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of November 21, 2019. Series C No. 394. Partially dissenting opinion of Judge
Humberto Antonio Sierra Porto.
7
Cf. Case of Hernández v. Argentina. Preliminary objection, merits, reparations and costs.
Judgment of November 22, 2019. Series C No. 395. Partially dissenting opinion of Judge Humberto
Antonio Sierra Porto.
8
Cf. Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v.
Argentina. Merits, reparations and costs. Judgment of February 6, 2020. Series C No. 400. Partially
dissenting opinion of Judge Humberto Antonio Sierra Porto.
9
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.
10
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.
11
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs.
Judgment of March 6, 2019. Series C No. 375. Partially dissenting opinion of Judge Humberto Antonio
Sierra Porto, para. 13.
12
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, para. 10.
13
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, para. 3.
14
Cf. Case of the Discharged 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 Humberto Antonio Sierra Porto, para. 23.