7
in the main briefs, I would not have found the declaration so lacking in pertinence (from a
procedural standpoint), because the State had the opportunity to present its position on the issue.
However, arriving at the conclusion reached in this judgment without the due debate between
the parties could be seen by the States as an over-hasty and arbitrary decision of the Court,
which endangers its legitimacy.
32.
Due respect for and compliance with the Court’s decisions is essential to ensure that the
judgments convicting the States for disregarding human rights become not only a mechanism of
reparation for the victims, but also serve as a positive catalyst of structural changes in society
and in the State apparatus. Judicial rulings by an international court on the adequate use and
distribution of economic resources, which are scarce by definition, signify a particularly profound
intervention in internal affairs and, therefore, require a legitimacy that can only be derived from
an explicit manifestation.
33.
When declaring a violation of Article 26, judgments could, and at times should, establish
reparations that would have a more pronounced impact in the area of public policies than those
that have been handed down by the Court to date. Consequently, it will be necessary that, in
contexts of instability and restricted budgets, characteristic of most of the States of our region,
inventories of economic availability are established that allow priorities for the investment of
scarce resources to be reoriented. In this regard, the way in which the jurisdiction of the InterAmerican Court is substantiated and legitimized is not irrelevant.
D. FLAWS IN THE ARGUMENTS OF THE JUDGMENT
34.
In addition to the reasons set forth above, I consider it necessary to demonstrate the flaws
in the judgment’s arguments, because they reveal that the decision concerning the violation of
Article 26 was not subject to the exhaustive analysis required. To this end, I will refer to three
main problems, which are: (i) failure to provide explicit grounds to justify the change in case law;
(ii) use of a single interpretation method to reach the decision, and (iii) confusion between the
existence of the right and the Inter-American Court’s jurisdiction.
a) Failure to provide explicit grounds to justify the change in case law
35.
First, I should indicate that the judgment completely fails to explain why it made a change
in precedent, because it proceeded as if it were reiterating case law, which is absolutely false.
This resulted in two different flaws in the arguments. The first is the omission of arguments that
reveal the reasons why the Inter-American Court decided to make a change in precedent. The
second is giving a specific judicial ruling the value of precedent, in order to conceal that, in reality,
a new judicial position has been adopted.
36.
Regarding the first point, it is evident that courts must be consistent with their previous
decisions. This is a basic requirement, not only from the perspective of the theory of legal
arguments, but it is also an essential element to ensure legal certainty and the effective
application of the principle of equality between the recipients of their decisions. Sudden and
unjustified changes in case law are arbitrary and undermine the legitimacy of judicial organs.
37.
This means that, in this judgment, it was crucial to recognize that a change in case law
was being made that moved away from the position adopted by the Inter-American Court in
previous decisions in this regard, and also to explain with much more substantial grounds the
reasons why it found it necessary to make this change. The values in play are legal certainty and
the right to equality; therefore, the States and everyone subject to the jurisdiction of the
American Convention need to understand the compelling reasons that the Court had to change
its precedent. And this is especially relevant, if we consider that this is not just a simple change