-10mechanisms, it is better to choose the most effective means and leave academic
pretensions to one side.
31.
Thus, in this judgment, the Court decided to examine Talía Gonzales Lluy’s
health problems as a persons living with HIV under the rights to life and to personal
integrity recognized in Articles 4 and 5 of the Convention. The fact that the Court
chose to argue the case in this way, did not prevent it from making important progress
as regards the requirements of availability, accessibility, acceptability and quality in
the provision of health care services, as well as the obligation to regulate, monitor and
supervise the provision of services in private health care centers. This does not entail
the creation of a new right, but merely provides content and scope to rights such as to
life and to integrity that are recognized in the Convention and, therefore, accepted by
the States Parties.
32.
Furthermore, another of my concerns is that expanding the Court’s competence,
in disregard of the will of the States, delegitimizes the Court and calls into question the
progress made, with considerable effort, on other issues in its case law. The legitimacy
of the courts stems, in the first place, from the will of the States that decided to
establish them, as well as from their judgments, the reasoning that they present in
those judgments, and their adherence to the law. If the Court exceeds the functions
assigned to it under the American Convention and other treaties of the inter-American
system, it would be undermining the legitimacy and confidence that the States have
deposited in it. A decision that involved disregarding the will of the States on this point
could give rise to a negative reaction or displeasure that jeopardizes the system. Even
though the Court was not established to please the States, because its mandate is to
rule on their international responsibility, it should not create an imbalance that could
lead to a lack of protection for the human rights that it seeks to safeguard. In this
regard, I agree that:
“A Court interpretation of the scope of article 26 that would permit direct access for ESC violations
could constitute either broadening of the jurisdiction, or expansion of the "opportunities to detect,
expose or remedy noncompliance” - in either case, results likely to produce hostile state reaction.
Again, in both cases, a given state's hostility would flow primarily from its belief that the
supranational body is engaging in more or a different kind of oversight than the state initially
accepted. In this model, state perception is more important than the correctness (to the extent
that this may be judged objectively) of the supranational decision. If, as we argue, states
understand the terms of the American Convention and the Court's rulings in Five Pensioners and
subsequent cases as limits on direct access for ESC litigation via article 26, a broader interpretation
of that article by the Court would constitute overlegalization.”27
33.
Lastly, I consider that human rights courts, such as the Inter-American Court,
cannot try and make up for the democratic deficiencies of the countries, and should
therefore exercise caution in this regard. 28 Human rights courts should seek to protect
the rights of minorities, but based always on the competences that have been assigned
to them. The stability and future of the inter-American system depends to a great
extent on the balance that the Court achieves between the temptation to over expand
it competences and the need to make progress in legal standards for the effective
protection and guarantee of human rights.
27
James L. Cavallaro and Emily Schaffer. Rejoinder: Justice before Justiciability: Inter-American
Litigation and Social Change, New York University Journal of International Law and Politics, Vol. 39, Issue 2
(Winter 2006), p. 365.
28
In this regard, see: “Sin lugar para la soberanía popular. Democracia, derechos and castigo en el caso
Gelman. Roberto Gargarella (2012).
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