Protocol may give rise, through participation of the Inter-American Commission on
Human Rights and, when applicable, of the Inter-American Court of Human Rights,
to application of the system of individual petitions governed by Article 44 through
51 and 61 through 69 of the American Convention on Human Rights.”
94. This means that only in the event of a violation of the rights relating to trade unions
and to education are the pertinent cases justiciable before the Court. To the contrary,
with regard to the violation of the other rights, which include the other aspects of the
right to work, only the system of reports established in Article 19 of the Protocol is in
order.
95. Consequently, the Protocol is an amendment to the Convention. This is revealed by its
very text because it is considered a protocol, a mechanism expressly established in the
Convention.102 Also, its Preamble places on record that it is adopted considering that
the Convention establishes that possibility.103 Thus, it is an “additional protocol” to the
Convention signed “for the purpose of gradually incorporating other rights and
freedoms into the protective system thereof,” which, therefore, did not include them.
96. Consequently, this instrument, by establishing in its Article 19 the competence of the
Court to examine possible violations of the rights concerning trade unions and
education is not limiting the Court; rather, to the contrary, it is expanding its
competence. If the Protocol did not exist, the Court could not even examine the possible
violation of those rights.
97. All the foregoing is, consequently, evident proof that, for the States Parties to the
Protocol, the provisions of Article 26 of the Convention cannot be interpreted to mean
that it establishes or recognizes economic, social and cultural rights or that it authorizes
cases in which they are violated to be submitted to the consideration of the Court. Let
me repeat that, if it had established this, obviously there would have been no need for
the Protocol. It was for that reason that it was necessary to adopt it. Its signature
cannot be explained in any other way.
98. Based on the above, it can be concluded that the Protocol is, consequently, the clear
demonstration that the provisions of Article 26 do not establish any human right.
VI.
CONCLUSIONS
effectively in a democratic and pluralistic society and achieve a decent existence and should foster
understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups and
promote activities for the maintenance of peace. 3. The States Parties to this Protocol recognize that in
order to achieve the full exercise of the right to education: a. Primary education should be compulsory and
accessible to all without cost; b. Secondary education in its different forms, including technical and
vocational secondary education, should be made generally available and accessible to all by every
appropriate means, and in particular, by the progressive introduction of free education; c. Higher education
should be made equally accessible to all, on the basis of individual capacity, by every appropriate means,
and in particular, by the progressive introduction of free education; d. Basic education should be
encouraged or intensified as far as possible for those persons who have not received or completed the
whole cycle of primary instruction; e. Programs of special education should be established for the
handicapped, so as to provide special instruction and training to persons with physical disabilities or mental
deficiencies. 4. In conformity with the domestic legislation of the States Parties, parents should have the
right to select the type of education to be given to their children, provided that it conforms to the principles
set forth above. 5. Nothing in this Protocol shall be interpreted as a restriction of the freedom of individuals
and entities to establish and direct educational institutions in accordance with the domestic legislation of
the States Parties.”
102
Supra, footnote 25.
103
Supra, para. 84.