2 why, in my opinion, in this case in particular it was not pertinent to arrive at a declaration of the violation of Article 26 of the ACHR and not even to embark on that discussion, and (iii) I will indicate the flaws in the arguments in the judgment that make this a very sensitive precedent in the case law of the Inter-American Court. B. MAIN ARGUMENTS AGAINST THE DIRECT JUSTICIABILITY OF THE ESCR BASED ON ARTICLE 26 OF THE AMERICAN CONVENTION 5. Given that, in the said concurring opinion, I gave a wide-ranging explanation of each argument that substantiates my position, I consider that it is not pertinent to reproduce these extensively, and will therefore focus on the more relevant reflections and conclusions of that text. 6. However, and on a preliminary basis, I wish to repeat that my position on the InterAmerican Court’s jurisdiction should not be understood as denying the importance and the need to make the ESCR justiciable, because these are two distinct issues. Indeed, the abundant case law on the matter that I helped to develop while a justice of the Colombian Constitutional Court1 proves that my position is in favor of ensuring those rights directly when the jurisdictional circumstances are appropriate. Thus, my discussion does not focus on whether the ESCR are human rights that should be respected and ensured by the State, but rather on the way in which this justiciability is achieved under the inter-American system in particular. That said, I will proceed to recall why the direct application of Article 26 of the American Convention is so conflictive. a) Scope of Article 26 of the American Convention 7. The scope of this article has been discussed profusely by academics2 and within the InterAmerican Court,3 and efforts have been made to expand the debate to issues such as the benefitrelated nature of the ESCR or their indivisibility, when the central question that should be asked to understand the scope of these rights is: does Article 26 of the ACHR contain subjective rights? 8. In this regard, I have indicated on previous occasions4 that Article 265 of the ACHR does not establish a list of rights; rather the obligation entailed by this article, which the Court is able to monitor directly, is compliance with the obligation of progressive development – and the consequent obligation of non-retrogressivity – of the rights that may be derived from the Charter of the Organization of American States (hereinafter “the Charter”). In this regard, see the jurisprudence of the Constitutional Court of Colombia on the transmutation of the ESCR. For example, T-1079 of 2007. Available at: http://www.corteconstitucional.gov.co/relatoria/2007/T-1079-07.htm. 1 In this regard, see for example: Oswaldo Ruiz Chiriboga, The American Convention and the Protocol of San Salvador: Two Intertwined Treaties Non-enforceability of Economic, Social and Cultural Rights in the Inter-American System, Netherlands Quarterly of Human Rights, Vol. 31/2 (2013); Abramovich, V. and Rossi, J., ‘La Tutela de los Derechos Económicos, Sociales y Culturales en el Artículo 26 de la Convención Americana sobre Derechos Humanos,’ Estudios Socio-Jurídicos, Vol. 9, 2007; Oscar Parra Vera, Justiciabilidad de los derechos económicos, sociales y culturales ante el sistema interamericano, Comisión Nacional de los Derechos Humanos, Mexico, 2011. 2 See dissenting opinion of Judge Ferrar McGregor in the Case of González Lluy et al. v. Ecuador or opinion of Judges Caldas and Ferrer McGregor in the Case of Canales Huapaya et al. v. Peru. 3 4 In this regard, concurring opinion Case of González Lluy et al. v. Ecuador, paras. 7 to 11. Chapter III. Economic, Social and Cultural Rights. Article 26. Progressive Development: The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, subject to available resources, by legislation or other appropriate means, the full realization of the rights derived from the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires (underlining added). 5