CONCURRING OPINION OF JUDGE RODRIGO MUDROVITSCH INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF GUEVARA DÍAZ V. COSTA RICA JUDGMENT OF JUNE 22, 2022 (PRELIMINARY OBJECTIONS, MERITS, REPARATIONS AND COSTS) 1. The case of Guevara Díaz v. Costa Rica involves the state’s international responsibility for acts of employment discrimination. In short, Mr. Luis Fernando Guevara Díaz, a Costa Rican citizen with an intellectual disability, was rejected in a public competitive hiring process for a position in the Ministry of Finance of Costa Rica—whose functions he had been performing on an interim basis for two years— despite having topped the shortlist. 2. I submit this concurring opinion with the purpose of offering a vertical approach to issues I believe to be fundamental in the long and worthy history of the Inter-American Court of Human Rights (“Court”), especially as regards the interpretation and application of economic, social, cultural, and environmental rights ("ESCER”). 3. I believe that in this case, there has been a clear violation of the right to equal protection, set forth in Article 24 of the American Convention on Human Rights (“Convention”), and here there is no disagreement between the judges of the Court. However, significant disagreement has arisen regarding recognition of the violation of Article 26 of the Convention. With respect to the robustness and sophistication of the arguments made by my colleagues, it is my belief that this point deserves an indepth analysis. 4. The issue of the applicability of Article 26 of the Convention has been addressed before in the Court's case law, but that does not take away from the reflections that naturally arise from the matter and justify the varying approaches to it. I believe that the justiciability of economic, social, cultural, and environmental rights raises important questions not only for international courts, but also for the constitutional courts of states. 5. The community of interpreters of conventional and constitutional norms is therefore facing a hermeneutical problem. This caveat is not simply rhetorical or formal—rather, this concurring opinion centers on the premise that coherence and integrity are fundamental for the legitimacy and functioning of the inter-American human rights system (“IAHS” or the “System”). 6. With this concurring opinion, I intend to demonstrate that the Court’s case law supporting a finding of the violation of Article 26 of the Convention must continue to be recognized, mainly for reasons of integrity and coherence. I also maintain that the interpretive framework developed around the enforcement of ESCER has already been incorporated into the language of the Court and states, as well as of that of other actors comprising the open society of interpreters of the Convention.1 The path to take, therefore, is not to dismantle the bloc of precedents recognizing the justiciability of ESCER but rather to recognize the evolution of robust reparation parameters for interpreting and applying Article 26 of the Convention. In my view, The expression “open society of the interpreters of the Convention” is inspired by the idea of “die offene gesellschaft der verfassungsinterpreten,” or “open society of the interpreters of the Constitution,” put forward by Peter Häberle in the much-cited work Hermenêutica Constitucional. A sociedade aberta dos intérpretes da Constituição: contribuição para a interpretação pluralista e procedimental da Constituição. Translation: Gilmar Ferreira Mendes. Porto Alegre. Sergio Antonio Fabris Editor, 2002. The correct understanding of this concept will be duly explained in chapter III of this concurring opinion. 1