favorable interpretation must be applied not only with regard to the substantive aspects of
the Convention, but also as regards procedural aspects related to the attribution of
competence, provided that a real and specific conflict in interpretation exists. If the Protocol
of San Salvador had expressly indicated that it should be understood that Article 26 was no
longer in force, the interpreter could not reach the opposite conclusion. However, no article
of the Protocol refers to the reduction or limitation of the scope of the American Convention.
44.
To the contrary, one of the articles of the Protocol indicates that this instrument
should not be interpreted in order to disregard other rights in force in the States Parties,
which include the rights derived from Article 26 within the framework of the American
Convention. 80 Moreover, in the terms of Article 29(b) of the American Convention, a
restrictive interpretation of the rights is not permitted. 81
45.
Thus, this – apparent – problem must be resolved based on a systematic, teleological
and evolutive interpretation that takes into account the most favorable interpretation to
ensure the best protection of the individual and the object and purpose of Article 26 of the
American Convention regarding the need to truly guarantee economic, social and cultural
rights. In the presence of a conflict in interpretation, prevalence should be given to a
systematic interpretation of the relevant norms.
46.
In this regard, the Inter-American Court has indicated on previous occasions 82 that
human rights treaties are living instruments, the interpretation of which must keep up with
the times and current living conditions. Furthermore, it has also affirmed that this evolutive
interpretation is consequent with the general rules of interpretation established in Article 29
of the American Convention, and also in the Vienna Convention on the Law of Treaties. 83
When making an evolutive interpretation, the Court has given special relevance to
comparative law, and has therefore used domestic laws 84 or the case law of domestic
courts 85 when analyzing specific disputes in contentious cases.
Commission, No. 3, 2012, pp. 31-51; Ruiz-Chiriboga, Oswaldo, The American Convention and the Protocol of San
Salvador: Two Intertwined Treaties. Non-enforceability of Economic, Social and Cultural Rights in the Inter-American
System, op. cit. supra 39; Uprimny, Rodrigo, and Diana Guarnizo, “¿Es posible una dogmática adecuada sobre la
prohibición de regresividad? Un enfoque desde la jurisprudencia constitucional colombiana,” in Eduardo Ferrer MacGregor and Arturo Zaldívar Lelo de Larrea (coords.), La ciencia del derecho procesal constitucional. Estudios en
homenaje a Héctor Fix-Zamudio en sus cincuenta años como investigador del derecho, Mexico, UNAM-Marcial PonsIMDPC, 2008, volume IV: “Derechos fundamentales y tutela constitucional,” pp. 361-438; and Urquilla, Carlos, La
justiciabilidad directa de los derechos económicos, sociales y culturales, San José, IIDH, 2009.
80
Protocol of San Salvador: “Article 4. Inadmissibility of Restrictions. A right which is recognized or in effect
in a State by virtue of its internal legislation or international conventions may not be restricted or curtailed on the
pretext that this Protocol does not recognize the right or recognizes it to a lesser degree.”
81
Cf. Case of the “Mapiripán Massacre,” supra, para. 188;
82
Cf. The Right to Information on Consular Assistance within the Framework of the Guarantees of Due
Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 114, and Case of Atala Riffo
and daughters v. Chile. Merits, reparations and costs. Judgment of February 24, 2012. Series C No. 239, para. 83.
83
Cf. The Right to Information on Consular Assistance within the Framework of the Guarantees of Due
Process of Law. Advisory Opinion OC-16/99, supra, para. 114, and Case of Atala Riffo and daughters, supra, para.
83.
84
In the Case of Kawas Fernández v. Honduras. Merits, reparations and costs. Judgment of April 3, 2009.
Series C No. 196, para. 148, the Court took into account for its analysis that it noted: “that a significant number of
States Parties to the American Convention have adopted constitutional provisions expressly recognizing the right to
a healthy environment.”
85
In the Case of Heliodoro Portugal v. Panama, supra, and the Case of Tiu Tojín v. Guatemala. Merits,
reparations and costs. Judgment of November 26, 2008. Series C No. 190, the Inter-American Court took into
account judgments of the domestic courts of Bolivia, Colombia, Mexico, Panama, Peru and Venezuela on the nonprescription of permanent offenses such as forced disappearance. In addition, in the Case of Anzualdo Castro v.
16