64.
I consider that another possible means of interpretation, in keeping with the latter
position, would be to consider the relationship of Articles 26 and 29 of the Pact of San José
with the pro persona principle. Indeed, based on the norms established in Article 29 of the
American Convention, none of the provisions of the Convention may be interpreted in the
sense of limiting the enjoyment and exercise of any right or freedom that may be
recognized under the laws of any of the States Parties, or under any other convention to
which one of the said States is a party, or to exclude or limit the potential effects of the
American Declaration of the Rights and Duties of Man and other international acts of the
same nature (such as the Universal Declaration of Human Rights) that, in the same way as
the American Declaration, establish social rights without distinction from civil and political
rights.
65.
These rules of interpretation established in Article 29 of the American Convention
should also be interpreted. If we read these criteria pursuant to the pro persona principle,
the interpretation of Article 26 should not only not limit the enjoyment and exercise of the
rights established in the laws of the States Parties, which include the Constitution of these
States, or the rights established in other conventions, but these laws and conventions must
be used to ensure the highest degree of protection. Hence, in order to know what rights are
derived from the economic, social, educational, scientific and cultural norms contained in
the OAS Charter (in the terms set out in Article 26 of the American Convention), in addition to
abiding by its text, recourse could be had to domestic laws and to other international
instruments, including the American Declaration. 106 Likewise, Article 25 of the American
Convention establishes the right of the individual to an effective recourse “for protection against
acts that violate his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention […].” 107
66.
In other words, a possible way to interpret Article 26 of the American Convention
would lead to finding that a literal interpretation of this article is not sufficient, and neither
are the criteria established in Article 29 of the Pact of San José, but rather, first, the latter
article must be interpreted in accordance with the pro persona principle. Once this has been
done, it is possible to understand that, according to the said Article 29, the economic, social
and cultural rights established in other laws, including the Constitutions of the States Parties
and the American Declaration, 108 are incorporated into Article 26 in order to interpret and
develop it.
67.
On some occasions, the Inter-American Court itself has used the basic national laws
and different international instruments to give increased content and context to civil rights
by means of the interpretation of Article 29(b) of the American Convention. Thus, for
example, article 44 of the Constitution of the Republic of Colombia (fundamental rights of
106
Cf. OC-10/89 “Interpretation of the American Declaration on the Rights and Duties of Man within the
Framework of Article 64 of the American Convention on Human Rights,” of July 14, 1989, paras. 43 and 45.
107
Cf. Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs. Judgment February 2, 2001.
Series C No. 72, para. 141 (dismissal of employees); Case of the “Five Pensioners,” supra, paras. 116 to 121
(pensions), and Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs.
Judgment of August 6, 2008. Series C No. 184, para. 163 (electoral laws).
108
Even the Universal Declaration of Human Rights, because Article 29(d) of the American Convention
establishes that no provision of the Convention shall be interpreted as: “excluding or limiting the effect that the
American Declaration of the Rights and Duties of Man and other international acts of the same nature may have”; and
the Universal Declaration, owing to its essence, has the same nature as the American Convention.
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