3.
On this occasion, I would like to reiterate that the position taken by the majority
of the judges of the Court since the case of Lagos del Campo v. Peru ignores the scope
of Article 26 as determined based on the rules of interpretation of the Vienna Convention
on the Law of Treaties (literal, systematic and teleological interpretation). 17
Furthermore, it modifies the nature of the obligation of progressive development
enshrined with absolute clarity in Article 26; 18 it ignores the will of the States as
expressed in Article 19 del Protocol of San Salvador; 19 and it undermines the legitimacy
of the Court in the regional sphere, 20 just to mention a few arguments.
4.
Likewise, I must recall that the posture I have taken does not deny the
interdependence and indivisibility of civil, political, economic, social, cultural and
environmental rights, nor does it disregard the individual dimension of the ESCER. In
my opinion, the justiciability of all rights must be advanced through the channels
established by each of the regulatory systems. Thus, the direct protection of the ESCER
can be achieved in the sphere of the domestic jurisdictions, and before this Court by
means of “connectivity”, as was done in other cases prior to the case of Lagos del Campo.
This makes it possible to achieve the same degree of protection that is now afforded by
the jurisprudential position of the majority, and, at the same time, to respect the
regulatory framework that grants jurisdiction to the Inter-American Court, and to protect
its operation as one of the highest authorities of the Inter-American System for the
Protection of Human Rights.
5.
In the judgment, the Court declared the responsibility of the State, considering
that the withdrawal of Ms. Sandra Pavez’s certificate of suitability to teach Catholic
religion classes owing to her sexual orientation violated her rights to equality and nondiscrimination, personal liberty, privacy, and work in relation to the obligations to respect
and guarantee rights. Likewise, the Court found the State responsible for not providing
effective remedies for the protection of her rights, and particularly the means to
challenge decisions issued by the religious authorities, which, under the provisions of
domestic law, were granted legal effects. I must say that I agree with all the
considerations set forth in the body of the decision, with the exception of those referring
to the direct violation of the right to work (Article 26 ACHR), which do not have sufficient
legal grounds.
6.
As a starting point, I would like to emphasize that, in the judgment, prior to the
analysis of the alleged violation of the right to work, the Court examined the alleged
violation of the right of access to public service under conditions of equality (Article 23
ACHR). The Court considered that this right was not impaired because, after the
revocation of the certificate of suitability required to teach Catholic religion classes, Ms.
Pavez continued to carry out public duties as a general inspector at the educational
institution where she worked. Likewise, it found that this change did not constitute a
demotion, but rather a reassignment of duties in accordance with the terms of her
contract, which took the form of a promotion, with higher remuneration and greater
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs.
Judgment of March 6, 2019. Series C No. 375.
17
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, Merits, reparations
and costs. Judgment of August 23, 2018. Series C No. 359.
18
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March
8, 2018. Series C No. 349.
19
Cf. Case of Dismissed Employees of Petroperú et al. v. Peru. Preliminary objections, merits,
reparations and costs. Judgment of November 23, 2017. Series C No. 344.
20
3