CONCURRING OPINION OF JUDGE HUMBERTO ANTONIO SIERRA PORTO JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF GONZALES LLUY ET AL. v. ECUADOR JUDGMENT OF SEPTEMBER 1, 2015 (Preliminary objections, merits, reparations and costs) A. Introduction 1. The purpose of this opinion is to expand on and supplement the reasons why I consider that it is not necessary to declare the violation of Article 26 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) in order to achieve the effective protection and guarantee of economic, social and cultural rights (hereinafter “ESCR”). To the contrary, my legal opinion on this matter is that using this way to try and make the ESCR justiciable under the interAmerican system may be even more problematic than other ways that exist and have already been applied by the Court. For example, in this case, the Court protected the right to health by way of its connectivity to the right to life and to personal integrity, by declaring the violation of “the obligation to monitor and supervise the provision of health care services, within the framework of the right to personal integrity and of the obligation not to endanger life.”1 2. In this regard, I would like to clarify that I am basing my opinion on the premise that mechanisms must exist to protect these rights, and for this reason I understand the good intentions of the judges and academics who propose the direct application of Article 26 of the Convention. However, I believe it important to point out the main problems that, in my opinion, arise from this proposal and that are, in turn, the reason why I consider that the Inter-American Court should not adopt this position. 3. To support the foregoing, I will proceed to analyze: (i) the scope of Article 26 of the American Convention; (ii) the limitation of competence established in the Protocol of San Salvador, and (iii) the use of evolutive interpretation and the pro homine principle. Lastly, and in conclusion, I will include some general considerations on the nature and competence of human rights courts. B. Scope of Article 26 of the American Convention 4. Before beginning to examine Article 26 of the Convention, I would like to clarify that my position on this issue refers exclusively to the competence of the InterAmerican Court to declare a violation of the rights established in the Protocol of San Salvador; consequently, I will not refer in great detail to some of the discussions that exist in the context of the debate on the justiciability of ESCR. In particular, I do not find it relevant to engage in a more in-depth discussion of the nature of ESCR as rights that require action by the public authorities (derechos prestacionales), because it is clear that every right requires this to a greater or lesser extent. Furthermore, I do not consider that my position disregards the indivisible nature of human rights, because I make a distinction between the obligations that a State undertakes to meet by the 1 Para. 191 of this Judgment.