The other, distinct, is the international level. As an international court, the role of the
Inter-American Court on this level is to decide whether a State, whose responsibility
is claimed, has or has not violated one or more of the rights established in the treaty.
As has been explained, in light of the normative design of the Convention and in
accordance with its Article 26, the Court is empowered to establish the international
responsibility of a State if it has not complied with its obligations of progressive
development and of non-retrogression, but not of the ESCER considered individually.
In that context, nothing prevents the Court from considering the economic, social
and cultural dimensions of the rights contemplated in the norms of the Convention
and to exercise its adjudicatory jurisdiction by means of connectivity. That was how
the Court proceeded in cases prior to Lagos del Campo v. Peru (2017); for example,
in Ximenes Lopes Brazil (2006); 17 Gonzáles Lluy et al. v. Ecuador 18 (2015) and
Chinchilla Sandoval v. Guatemala (2016) 19 and that constitutes the correct doctrine
to follow. Subsequent to Lagos del Campo, the Court has been upholding the direct
justiciability of ESCR on the basis of Article 26, except in Rodríguez Revolorio v.
Guatemala (2019) and Martínez Esquivia v. Colombia (2020).
II.3 Interpretation of the Convention and its Protocol
With respect to the system of interpretation applicable to the norms of a convention,
the rules of interpretation of the Vienna Convention must be followed, which implies
considering good faith, the ordinary meaning to be given to its terms in their context
and its object and purpose as elements of interpretation. From this final element –
as Cecilia Medina points out – two specific criteria of the hermeneutic of human rights
treaties are derived: their dynamic nature and pro persona, which enable the judges
to entertain a “wide margin for a highly creative interpretation.” 20
One of the most relevant canons of interpretation in the international law of human
rights is evolutive interpretation. Thus, for example, the Court, in Bámaca Velásquez
v. Guatemala, broadened the definition of victim to include both the direct and the
indirect victim (family members of Efraín Bámaca, on the one hand, and Jennifer
Harbury, on the other). This evolutive interpretation is faithful to the intention of the
States Parties. However, here the Court does not apply that interpretive criterion,
but rather assumes its jurisdiction in areas that the respective instruments have not
conferred upon it; in other words, without the States having consented to it. Stated
differently, it is an error to employ the use of these hermeneutical tools as a basis to
artificially broaden the jurisdiction of the Court in view of the express norm that
precisely and clearly limits it.
The judgment makes reference to one provision of the Protocol -the right to work
established in Article 6 (paragraph 113)-, but it omits any allusion to a basic norm,
Article 19, on the mechanisms of protection recognized in the treaty.
This omission is relevant because Article 19 defines two types of mechanisms of
protection. One general –applicable to all the rights recognized in the Protocolconsisting of the examination, observations and recommendations that the different
Mr. Ximenes Lopes died in a psychiatric institution approximately two hours after having been medicated
by the clinical director of the hospital and without having been seen by a doctor. He was not given adequate
care and was, because of the care at the mercy of aggression and accidents that could have put his life in
danger. The Court found state responsibility for the violation of the rights to life and personal integrity.
18
In this case, which concerned a child infected with the HIV virus upon receiving a blood transfusion, the
Court protected the right to health of the victim by means of a connection with the rights to life and to
personal integrity, by declaring “the obligation to monitor and supervise the provision of health care within
the framework of the right to personal integrity and of the obligation not to endanger life.”
19
The victim was a woman with a disability deprived of liberty who was not given adequate health care
for her multiple illnesses and who finally died in prison. This lack of health care resulted in the Court
declaring the violation of the rights to life and to personal integrity.
20
MEDINA, “The American Convention on Human Rights” (2018:115).
17
5