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 environmental rights based on Article 26 of the
Convention, understanding that they would be justiciable individually.4
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.
1
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.
2
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.
3
Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August
31, 2017. Series C No. 340, paras. 142 and 154; 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, para. 192;
Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series C
No. 348, para. 220; Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018.
Series C No. 349, para. 100; Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations
and costs. Judgment of August 23, 2018. Series C No. 359, paras. 75 to 97; Case of Muelle Flores v. Peru. Preliminary
objections, merits, reparations and costs. Judgment of March 6, 2019. Series C No. 375, paras. 34 to 37; 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, paras. 33 and 34; Case of Hernández v. Argentina. Preliminary objection, merits, reparations and
costs. Judgment of November 22, 2019. Series C No. 395, para. 62, and Case of the Indigenous Communities of the
4
2