PARTIALLY DISSENTING OPINION OF
JUDGE PATRICIA PEREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF BRÍTEZ ARCE V. ARGENTINA
JUDGMENT OF NOVEMBER 16, 2022
(Merits, Reparations and Costs)
With full respect for the majority opinion of the Inter-American Court of Human Rights
(hereinafter “the Court”), I issue this opinion 1 with the purpose of explaining why it
is not proper to establish a State’s international responsibility for an alleged
infringement of the individual right to health on the basis of Article 26 of the American
Convention on Human Rights (hereinafter “the Convention”).
In the following paragraphs, I indicate the reasons why the Court is not competent
to declare such a violation.
1.
In the first place, it is necessary to point out that the Commission found that
the facts of this case demonstrated the international responsibility for violating
the rights to life, to personal integrity and to health to the detriment of Ms.
Brítez Arce and for infringing the rights to judicial guarantees and to judicial
protection with respect to her children. The representative considered those
same rights to be infringed and the State, in its answering brief, accepted its
international responsibility for those violations.
2.
The judgment states that an analysis will be conducted on the alleged violation
of the right to health “simultaneously” with that on the rights to life and to
personal integrity of Ms. Brítez Arce. The principal idea on which this decision
rests has as its basis that “the rights to life and to personal integrity are directly
and immediately linked to human health care and that the lack of adequate
health care may imply a violation of Articles 4(1) and 5(1) of the Convention.” 2
3.
Once again and as I expressed in my opinions in Guevara Díaz v. Costa Rica
and Mina Cuero v. Ecuador, I confirm my position on the Court’s lack of
jurisdiction to declare the autonomous violation of economic, social, cultural
and environmental rights (hereinafter “the ESCER”).
4.
I will not repeat here the many logical, juridical and practical difficulties raised
by the theory of the direct justiciability of the ESCER that, with its acceptance
by the Court’s majority beginning with Lagos del Campo v. Peru, has created a
group of new problems that do nothing but affect the reasonable predictability
and the legal security that the Court must ensure.
5.
To proceed thus evades the requirement that all international obligations must
emanate from the prior and express consent of the States; it omits making
explicit that those States have not granted jurisdiction to the Court to rule on
Article 65(2) of the Rules of Procedure of the Court establishes that: “Any judge who has taken part in
the consideration of a case is entitled to append a separate reasoned opinion to the judgment, concurring
or dissenting. These opinions shall be submitted within a time limit to be fixed by the Presidency so that
the other judges may take cognizance thereof before notice of the judgment is served. Said opinions shall
only refer to the issues covered in the judgment.”
2
Cf. Para. 59.
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