competence to examine and decide disputes relating to Article 26 of the American
Convention as an integral part of the rights listed in its text, regarding which Article
1(1) establishes obligations of respect and guarantee” (paragraph 26 of the
judgment).
6.
It was in this sense that I voted to reject the objection raised, considering that the
arguments expressed by the IACtHR in the case of Acevedo Buendía et al.
(“(“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru1 could be
transferred to the position held in this case. In particular, I share the premises set
forth in that case as regards: (1) the Court “has the power inherent in its attributes
to determine the scope of its own jurisdiction (compétence de la compétence)”; (2)
when a State accepts the optional clause on the compulsory jurisdiction established
in Article 62(1) of the Convention, this results in the State’s acceptance of the Court’s
authority to decide any dispute concerning its jurisdiction; (3) the Court exercises
full jurisdiction over all the articles and provisions of the Convention, therefore, this
encompasses its Article 26; (4) if a State is a party to the American Convention and
has accepted the Court’s contentious jurisdiction, the Court is competent to decide
whether the said State has incurred in a violation or failed to comply with any of the
rights recognized in the Convention, even as regards its Article 26. Therefore, I agree
with the decisions made, in the understanding that the analysis of this dispute – that
is, the determination of whether the State is responsible for non-compliance with
Article 26 of the Convention – corresponded to be addressed in the chapter on merits
of this judgment.
b) The justiciability of the economic, social, cultural and environmental rights:
history, the debate within the Court, and the different positions. My position.
7.
The justiciability of the economic, social, cultural and environmental rights has been
a subject of discussion both in legal doctrine and within the IACtHR, and three
positions exist in this regard, as I mentioned, inter alia, in my concurring opinion to
the judgment of November 21, 2019, in the case of the National Association of
Discharged and Retired Employees of the National Tax Administration
Superintendence (ANCEJUB-SUNAT) v. Peru.2 The first position proposes that the
analysis of individual violations of the economic, social, cultural and environmental
rights must be made exclusively in relation to the rights explicitly recognized by
Articles 3 to 25 of the Convention and based on what is expressly permitted by the
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (hereinafter “the Protocol of San Salvador”) in
its Article 19(6).3 While the second viewpoint asserts that the Court has competence
to examine autonomous violations of the economic, social, cultural and
1
Cf. Case of Acevedo Buendía et al. (“Discharged 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, paras. 16 and
17.
2
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.
3
Cf. Case of the "Juvenile Re-education Institute" v. Paraguay. Preliminary objections, merits, reparations
and costs. Judgment of September 2, 2004. Series C No. 112, or the Case of the Yakye Axa Indigenous Community v.
Paraguay. Merits, reparations and costs. Judgment of June 17, 2005. Series C No. 125, to mention just two
examples, as well as the Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and
costs. Judgment of September 1, 2015. Series C No. 298.