competence is derived from the authority granted by the Convention and not by a
provision of domestic law of the State in question even though evidently, as the said
Article 29 indicates, this domestic law should be taken into account when interpreting
the Convention to ensure that it does not limit the enjoyment and exercise of a right
recognized by the Convention.
60. Regarding the above, it should be pointed out that the judgment itself indicates that
“the legal issue raised by the presumed victim relates to the scope of the right to work
and, in particular, the right to job stability, understood as a right protected by Article
26 of the American Convention.”75 Thus, the matter submitted to the Court was not the
judicialization before the Court of the violations of this right, but rather its scope.
61. In addition, it should be noted that in other judgments handed down by the Court, a
similar result to that sought in the instant case was achieved merely by applying the
provisions of the Convention concerning rights that it does recognize and, logically,
within their limits, without needing to resort to Article 26. Consequently, there appears
to be no reason for the insistence in indicating the said article as grounds for the Court
being able to examine violations of the human rights derived from the OAS Charter,
when it is evident that this is not only superfluous but, in addition, could result in the
violation of other rights – also considered to be derived from the economic, social,
educational, scientific and cultural rights contained in the OAS Charter – being
submitted to the Court’s consideration and decision.
62. Therefore, from the foregoing it can be concluded that the application of the subjective
method for the interpretation of treaties leads to the result indicated above: namely,
and contrary to what the judgment indicates, that at no time were the economic, social
and cultural rights derived from the standards of the OAS Charter, including the right
to work, incorporated into the protection system established in the Convention.
D. Functional or teleological method
63. When trying to define the object and purpose of the article of the Convention in
question, it can be affirmed that:
a) The purpose of the States when signing the Convention was “to consolidate
in this hemisphere, within the framework of democratic institutions, a system
of personal liberty and social justice based on respect for the essential rights
of man”;76
b) To this end, “the Third Special Inter-American Conference (Buenos Aires,
1967) approved the incorporation into the Charter of the Organization [of
American States] itself of broader standards with respect to economic, social,
and educational rights and resolved that an inter-American convention on
human rights should determine the structure, competence, and procedure of
the organs responsible for these matters”;
c) Accordingly, it is clear that what was decided at the said Conference with
regard to the economic, social, and educational rights was fulfilled with the
Protocol of Buenos Aires and with regard to the structure, competence, and
procedure of the organs responsible for these matters, with the Convention;
and
d) Therefore, it was to comply with that mandate that Article 26 was included in
the Convention in a separate chapter from the one concerning the political
75
76
Para. 104.
Preamble, para. 1.