-6possibility of the Inter-American Commission formulating
recommendations on the status of the ESCR in its annual report.
observations
and
19.
Despite the fact that that Article 19(6) of the Protocol establishes the limitation
of competence clearly and precisely, some authors have indicated that evolutive
interpretation and the pro homine principle should be used in order to update the
normative meaning and scope of Article 26 of the Convention. Consequently, I will now
examine some of the arguments employed to justify this position.
D. Evolutive interpretation and pro homine principle
20.
On this point, those who propose the direct justiciability of ESCR by the
application of Article 26 of the Convention have argued that one of the ways to
overcome the barrier to competence that the Protocol stipulates would be by applying
an evolutive interpretation. In particular, they use comparative law as a tool, because
several constitutional courts of the countries of the region have accepted the direct
justiciability of ESCR. However, I consider that this issue should be tackled in two
ways. The first entails an examination of the other interpretive methods under
international law, because the evolutive method is not the only one that should be
taken into account. Second, I will present my opinion on how the comparative law on
this issue should be assessed.
21.
Regarding the means of interpretation that should be taken into account,
Articles 31 and 32 of the Vienna Convention on the Law of Treaties establish the most
important methods. The Inter-American Court has reflected this in its case law; thus,
in addition to the evolutive method, it has used other interpretation criteria, such as
literal interpretation, systematic interpretation, and teleological interpretation. In this
regard, the Court has understood that literal interpretation is the interpretation made
in good faith in accordance with the ordinary meaning to be given to the terms used.
The Court has used this type of interpretation when considering the literal meaning of
some expressions and terms of the Convention and other treaties. 17 Meanwhile, based
on a systematic interpretation, the Court has maintained that the norms must be
interpreted as part of a whole, the meaning and scope of which should be established
in function of the legal system to which it belongs.18 In the context of this type of
interpretation, the Court has analyzed the travaux préparatoires of the American
Declaration and of the American Convention, as well as of some instruments of the
universal system of human rights and other regional systems of protection such as the
European and the African systems.19 The Court has also used the teleological or
purposive interpretation. In this regard, the Court has analyzed the purpose of the
norms involved in the interpretation, considering that the object and purpose of the
treaty and the purposes of the inter-American human rights system are pertinent.
Lastly, evolutive interpretation means that:
[H]uman rights treaties are living instruments whose interpretation must consider the changes over
time and present day conditions. […] That evolutive interpretation is consistent with the general
17
See, for example, Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica. Preliminary
objections, merits, reparations and costs. Judgment of November 28, 2012. Series C No. 257, para. 178,
and Case of Mohamed v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of
Novermber 23, 2012. Series C No. 255, para. 93.
18
Cf. Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica, para. 191, and Case of González
et al. (“Cotton Field”) v. Mexico. Preliminary objection, Merits, reparations and costs. Judgment of November
16, 2009. Series C No. 205, para. 43.
19
Cf. Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica, paras. 191 a 244.
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