8.
As I have mentioned in previous concurring opinions and reiterating the arguments
presented in them,5 I adhere to a different position, which I have called “the thesis of
indivisibility-simultaneity” which is based on the universality, indivisibility, interdependence
and interrelationship of the human rights, to maintain that the Court has competence to
examine violations of the economic, social, cultural and environmental rights. And this is due
to the conviction that human rights are interdependent and indivisible so that the civil and
political rights are interwoven with the economic, social, cultural and environmental rights.
This interdependence and indivisibility allow the individual to be observed integrally as the
titleholder of all rights. If he/she is not seen in this way, the rights and human dignity would
be artificially fragmented.
9.
A similar perspective is asserted in the Preamble to the Protocol of San Salvador:
“Considering the close relationship that exists between economic, social and cultural rights,
and civil and political rights, in that the different categories of rights constitute an indivisible
whole based on the recognition of the dignity of the human person, for which reason both
require permanent protection and promotion if they are to be fully realized, and the violation
of some rights in favor of the realization of others can never be justified.”
10.
In this perspective, Article 26 of the Convention functions as a framework article, in
the understanding that it makes a general reference to the economic, social, cultural and
environmental rights, and refers us to the OAS Charter for their description and determination.
The Protocol of San Salvador individualizes and provides content to the economic, social,
cultural and environmental rights, explaining that cases related to trade union rights and
education are justiciable before the Court by means of individual petitions (Art. 19(6)). The
Protocol mentions that it is essential that those rights be reaffirmed, developed, perfected and
protected (see Preamble). Finally, a series of instruments of the inter-American corpus juris
also refer to the ESCER.
11.
I have already underlined the importance of Article 4 of the Protocol of San Salvador
insofar as it does not admit restrictions of the ESCER. Article 4 of the Protocol of San Salvador
indicates that: “[a] right which is recognized or in effect in a State by virtue of its internal
legislation or international conventions may not be restricted or curtailed on the pretext that
this Protocol does not recognize the right or recognizes it to a lesser degree.” In application
of this provision, the Monitoring Mechanism of the Working Group on the Protocol of San
Salvador has been established responsible for defining the indicators that should be included
in the reports of the States Parties and for monitoring compliance with the obligations under
the Protocol.
12.
In my opinion, based on the foregoing and its precedents, it is necessary to conclude
that it is not possible to restrict access to inter-American justice in the case of alleged
violations of economic, social, cultural and environmental rights. That position would even be
contrary to the principle of the pro persona interpretation of human rights established in Article
29 of the Convention understanding this as a hermeneutic tool from the systemic perspective
of the inter-American system for the protection of human rights.
13.
I have also noted that the Protocol of San Salvador, while developing the content of
Lhaka Honhat (Our Land) Association v. Argentina. Merits, reparations and costs. Judgment of February 6, 2020.
Series C No. 400, para. 195.
Cf. 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.
and to the judgment of November 22, 2019, in the Case of Hernández v. Argentina; Case of the Indigenous
Communities of the Lhaka Honhat (Our Land) Association v. Argentina, and Case of the Workers of the Fireworks
Factory of Santo Antônio de Jesus and their families v. Brazil.
5
3