are separate but supplementary agreements to a treaty that add, clarify, amend or supplement the
procedural or substantial content thereof. The existence of a protocol is directly linked to the
existence of the treaty; in other words, without a foundation treaty there can be no protocol.24 In
this sense, the American Convention should not be interpreted in isolation, without taking into
account its Protocol, given that these are complementary instruments that should be read and
interpreted jointly.
24.
That said, based on Article 77(1) of the Convention, the States Parties adopted the Protocol
of San Salvador with a view to “gradually including other rights and freedoms within its system of
protection,” this being understood as other rights and freedoms not established in the Convention.
In other words, the Protocol was adopted in order to establish, in a clear and precise manner, a
catalogue of economic, social, cultural and environmental rights that were not expressly recognized
in the American Convention, although some of these could be derived from the Charter, as
mentioned previously supra. However, although the Protocol establishes a clearer catalogue of
ESCER, this does not mean that this Court has jurisdiction to examine violations of any of its articles.
On the contrary, Article 19(6) of the Protocol clearly stipulates that the only rights that can be
subject to supervision through the mechanism of individual petitions are “the rights established in
paragraph a) of Article 8 and in Article 13.” Thus, it is through the Protocol of San Salvador that
the States of the region have, for the first time, defined those ESCER that may be directly
justiciable, in their individual dimension, in specific cases.
25.
Although the Court’s jurisdiction in relation to Article 26 refers solely to direct supervision of
compliance with the obligation of progressive development and its correlative duty of nonretrogression of rights that could be derived from the Charter, the Protocol of San Salvador
supplements the substance, and especially the procedural content, of the Convention. It does so
by granting, for the first time, jurisdiction to the Commission and to the Court to hear contentious
cases involving the violation of certain trade union rights and the right to education, in specific
cases concerning the individual dimension. Such jurisdiction is not established in the Convention.
In other words, the Protocol not only incorporates ESCER more specifically, but also expands the
sphere of their protection, particularly for the States parties. Thus, Article 19(6) of the Protocol
should not be seen as contradictory to the provisions of Article 26 of the American Convention, but
rather as complementary, given that, as mentioned previously, the latter does not grant the Court
jurisdiction to analyze violations of economic, social, cultural and environmental rights in their
individual dimension, but only in the context of the obligation of progressive development. Thus,
the Protocol does not modify the American Convention in the sense of weakening its jurisdiction in
relation to Article 26 with regard to the individual dimension of ESCER, because this was never
granted in the Convention. Rather, the Protocol grants jurisdiction for the first time in relation to
the two articles previously cited.
26.
That said, it is important to point out that the rights recognized by the Protocol and the
obligations of the States Parties derived therefrom, are separate to the fact that the Court has
jurisdiction to declare violations within the context of its contentious role. Simply put, in order to
monitor compliance with these rights the States devised other mechanisms, such as those
established in the other subparagraphs of Article 19 of the Protocol.
27.
Based on the foregoing, I consider that the Court can hear contentious cases in which a
violation is alleged of the obligation of progressive development of rights that could be derived from
the Charter, by virtue of Article 26 of the Convention, as well as those cases in which a violation of
Articles 8(a) and 13 of the Protocol is alleged.
See,
Definitions
of
basic
terms
in
http://www.un.org/es/treaty/untc.shtml#protocols.
24
the
United
Nations
Treaty
Collection.
Consulted
at: