v. Ecuador, 13, Poblete Vilches et al. v. Chile, 14 Cuscul Pivaral et al. v. Guatemala, 15 Buzos
Miskitos v. Honduras, 16 Vera Rojas et al. v. Chile, 17 Manuela et al. v. El Salvador, 18
Former Employees of the Judiciary v. Guatemala, 19 Palacio Urrutia v. Ecuador 20 and
Pavez Pavez v. Chile, 21 with respect to the justiciability of economic, social, cultural and
environmental rights (hereinafter “ESCER”) through the use of Article 26 of the American
Convention on Human Rights (hereinafter “the Convention”).
3.
I have previously expressed my reasons for considering that there are ideological
and juridical inconsistencies in the jurisprudential position of the majority of the Court
regarding the direct or autonomous justiciability of ESCER by invoking Article 26. This
position ignores the rules of interpretation of the Vienna Convention on the Law of
Treaties, 22 changes the nature of the obligation of progressivity, 23 ignores the will of the
States embodied in the Protocol of San Salvador 24 and undermines the legitimacy of the
Court, 25 to mention only a few of the arguments. In any case, my purpose here is to
point out the irrelevance of the analysis of Article 26 in a case that specifically refers to
public officials and that, consequently, could be developed with sufficient depth under
Article 23 of the Convention.
4.
As the Court stated in its judgment, this case is similar to others that the Court
has heard; for example, Dismissed Congressional Employees (Aguado Alfaro et al.) v.
Peru (2006), in which it declared the State’s international responsibility for the lack of
effective recourses to challenge the dismissal of 257 congressional employees in 1992
and the lack of effective judicial remedies to contest that decision. Also, the Court, in
Canales Huapaya v. Peru (2015), declared the State’s responsibility for violating the
rights to judicial guarantees and to judicial protection, to the detriment of Carlos Alberto
Canales Huapaya, José Castro Ballena and María Gracia Barriga Oré, and for the lack of
an effective judicial response to their dismissal from the Congress in 1992. The present
case refers to the violation of the rights of 164 persons, who were part of a group of
Cf. Caso Gonzales Lluy et al. vs. Ecuador. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 1, 2015. Series C No. 298. Concurring opinion of Judge Humberto Antonio Sierra
Porto.
14
Cf. Case of Poblete Vilches et al. v. Chile. Merits, Reparations and Costs. Judgment of March 8, 2018.
Series C No. 349. Concurring opinion of Judge Humberto Antonio Sierra Porto.
15
Cf. Case of Cuscul Pivaral et al. vs. Guatemala. Preliminary Objection, Merits, Reparations and Costs.
Judgment of August 23, 2018. Series C No. 359. Concurring opinion of Judge Humberto Antonio Sierra Porto.
16
Cf. Case of the Buzos Miskitos (Lemoth Morris et al.) v. Honduras. Judgment of August 31, 2021.
Series C No. 432. Concurring opinion of Judge Humberto Antonio Sierra Porto.
17
Cf. Case of Vera Rojas et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment
of September 1, 2021. Series C No. 439. Concurring opinion of Judge Humberto Antonio Sierra Porto.
18
Cf. Case of Manuela et al. v. El Salvador. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 2, 2021. Series C No. 441. Concurring opinion of Judge Humberto Antonio Sierra Porto.
19
Cf. Case of the Former Employees of the Judiciary v. Guatemala. Preliminary Objections, Merits and
Reparations. Judgment of November 17, 2021. Series C No. 445. Concurring opinion of Judge Humberto
Antonio Sierra Porto.
20
Cf. Case of Palacio Urrutia et al. v. Ecuador. Merits, Reparations and Costs. Judgment of November
234, 2021. Series C No. 446. Concurring opinion of Judge Humberto Antonio Sierra Porto.
21
Cf. Case of Pavez Pavez v. Chile. Merits, Reparacions and Costs. Judgment of February 4, 2022. Series
C No. 449. Concurring opinion of Judge Humberto tntonio Sierra Porto.
22
Cf. Case of Muelle Flores v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of
March 6, 2019. Series C No. 375. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
23
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objection, Merits, Reparations and Costs.
Judgment of August 23, 2018. Series C No. 359. Concurring opinion of Judge Humberto Antonio Sierra Porto.
24
Cf. Case of Poblete Vilches et al. v. Chile. Merits, Reparations and Costs. Judgment of March 8, 2018.
Series C No. 349. Concurring opinion of Judge Humberto Antonio Sierra Porto.
25
Cf. Case of the Dismissed Employees of Petroperú et al. v. Peru. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 23, 2017. Series C No. 344. Partially dissenting opinion of
Judge Humberto Antonio Sierra Porto.
13
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