as well as in my concurring opinions in the cases of Gonzales Lluy et al. v. Ecuador, 10
Poblete Vilches et al. v. Chile, 11 Casa Nina v. Peru, 12 Vera Rojas et al. v. Chile, 13 and
Manuela et al. v. El Salvador, 14 in relation to the justiciability of Article 26 of the
American Convention on Human Rights (hereinafter “the Convention” or “ACHR).”
2.
I have consistently held that the direct justiciability of economic, social, cultural
and environmental rights (hereinafter “ESCER”) through Article 26 of the American
Convention suffers from multiple logical and legal inconsistencies. Among other points,
this jurisprudential position ignores the literal wording of the American Convention; 15
ignores the rules of interpretation of the Vienna Convention on the Law of Treaties; 16
modifies the nature of the obligation of progressive development; 17 ignores the will of
the States embodied in Article 19 of the Protocol of San Salvador; 18 and undermines the
legitimacy of the Court in the regional sphere. 19 All these considerations prevent me
from voting in favor of the declaration of State responsibility based on the direct and
autonomous violation of the ESCER through Article 26 of the Convention.
3.
In this regard, I have pointed out the difficulties created by the Court’s practice
of grouping together all or a significant group of violations of treaty obligations in a
single operative paragraph, particularly because it reduces the ability of the judges to
express their discrepancies in relation to the justiciability of the ESCER. 20 This reasoning
is what motivates my separate opinion because, although I agree with the declaration
of the violation of the rights to freedom of association (Article 16 ACHR) and to freedom
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
11
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.
Cf. Case of Casa Nina v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
November 24, 2020. Series C No. 419. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
12
13
Cf. Case of Vera Rojas et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment
of September 1, 2021. Series C No. Concurring opinion of Judge Humberto Antonio Sierra Porto.
14
Cf. Case of Manuela et al. v. El Salvador. Preliminary objections, merits, reparations and costs.
Judgment of November 2, 2021. Series C No. 441.
Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment
of August 31, 2017. Series C No. 340. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
15
16
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
March 6, 2019. Series C No. 375.
17
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359.
18
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018.
Series C No. 349.
19
Cf. Case of the Dismissed Workers of PetroPeru et al. v. Peru. Preliminary objections, merits,
reparations and costs. Judgment of November 23, 2017. Series C No. 344.
20
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, para. 6; 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, para. 17; Case of Casa Nina v. Peru. Preliminary objections, merits, reparations and
costs. Judgment of November 24, 2020. Series C No. 419. Partially dissenting opinion of Judge Humberto
Antonio Sierra Porto, para. 7; Case of Guachalá Chimbo et al. v. Ecuador. Merits, reparations and costs.
Judgment of March 26, 2021. Series C No. 423. Partially dissenting opinion of Judge Humberto Antonio Sierra
Porto, para. 6.
2
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