approach should never be used to read into the Convention restrictions that are not grounded in its
text. This is true even if these restrictions exist in another international treaty. 115
52. The foregoing conclusion clearly follows from the language of Article 29 which sets out the
relevant rules for the interpretation of the Convention. Paragraph (b) of Article 29 indicates that no
provision of the Convention may be interpreted as “restricting the enjoyment or exercise of any
right or freedom recognized by virtue of the laws of any State Party or by virtue of another
convention to which one of the said states is a party.”
Hence, if in the same situation both the American Convention and another international treaty are
applicable, the rule most favorable to the individual must prevail. Considering that the Convention
itself establishes that its provisions should not have a restrictive effect on the enjoyment of the
rights guaranteed in other international instruments, it makes even less sense to invoke restrictions
contained in those other international instruments, but which are not found in the Convention, to
limit the exercise of the rights and freedoms that the latter recognizes.
69.
In any case, whatever the interpretation we accord to Article 26 of the American
Convention, there are, as we have seen, several valid and reasonable lines of interpretation
and argument that lead us to grant direct justiciability to economic, social and cultural
rights, and that the Inter-American Court could eventually admit on future occasions. Based
on the presumption, let me reiterate, that the Inter-American Court already took this step
of accepting the justiciability of the rights derived from Article 26 of the Pact of San José in
the important precedent of the Case of Acevedo Buendía v. Peru.
70. The second question is the type of obligations that States have under Article 26 of the
Convention. According to this article, States “undertake to adopt measures” to achieve
progressively the full realization of the economic, social and cultural rights “subject to available
resources.” Here, the question is to clarify what this measures consists of.
71.
Once again, we refer to the precedent of the Case of Acevedo Buendía et al. v. Peru,
which considered the nature of the obligations derived from Article 26 of the Pact of San
José, and which dealt with the failure to comply with the payment of pension equalizations,
which, according to the Inter-American Court — with its preceding composition – violated
the rights to property and to judicial protection established in Articles 21 and 25 of the
American Convention, although not Article 26, because, in the Inter-American Court’s
opinion, that article requires economic and technical measures subject to available
resources, which was not the case. Thus, the Court considered that this was a different type
of obligation and, therefore, found that the said provision of the Convention had not been
violated. 116 Nevertheless, the Inter-American Court established clearly that “regression is
justiciable when economic, social and cultural rights are involved,” 117 which left open the
possibility of further development of its case law in the future.
72.
Furthermore, it should not be forgotten that the Inter-American Court has indicated
that, in addition to regulating the progressive development of social rights, in light of Article
26 of the American Convention, a systematic interpretation of this article includes applying
115
Cf. Inter-American Court. “Other Treaties” subject to the Consultative Jurisdiction of the Court (Art. 64
American Convention on Human rights). Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1. Other
treaties used.
116
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”),
supra, Series C No. 198, paras. 105 and 106.
117
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”),
supra, para. 103.
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