3
social rights matters. Furthermore, the Court has interpreted and stated that, besides
regulating the progressive development of these rights, a systematic interpretation of the
American Convention requires an understanding that the obligations of respect and
guarantee are applied also to economic, social, and cultural rights. In fact, the Court has
stated that this article, “while it is under chapter III of the Convention,” it is also part of
Part I of the instrument, and intituled “State Obligations and Rights Protected,” and
4
therefore, it is subject to the general obligations contained in articles 1.1 and 2.
In this
regard, the obligation established in article 26 functions as a special standard in relation to
the general standard enshrined in article 2 in regard to the adoption of domestic legal
measures.
341.
In the instant case, there are laws and regulations by which the access to various
benefits has been established in relation to the right to health and the right to social
security. However, the parties argued about the alleged obstacles to the access of the
benefits aforementioned. In this regard, in my opinion, the issue is not a discussion about
the progressive realization or regression of these rights, but instead about the duty to
guarantee them. Therefore, it would be useful to use the sources which allow for the
interpretation of the content of the obligation to guarantee the right to health and the right
to social security. Generally, these sources specify the manner in which the State must
guarantee the effective use of social rights and the obligation to adopt measures to remove
5
any possible obstacles against the enjoyment of the said rights.
342.
To determine these sources, one needs to apply the pro persona principle and bear
in mind that, according to the content of article 29.b of the Pact of San Jose, the provisions
of the American Convention cannot be interpreted in a way which “restricts the enjoyment
or the exercise of the rights recognized in other conventions to which the States are
6
parties.” Consequently, for the purpose of providing content to both rights, it is necessary
to refer to treaties such as the Protocol of San Salvador, the International Covenant on
7
Economic, Social, and Cultural Rights, and those specified by the entity in charge of its
interpretation, the Committee on Economic, Social, and Cultural Rights.
343.
Considering that the Protocol of San Salvador could be used for the interpretation of
the scope of the provisions of the American Convention, it is, in my opinion, necessary to
establish some specifics. Although the Protocol of San Salvador establishes that among the
social rights it enshrines, only the right to education and some labor union rights will be
justiciable (article 19), this Protocol did not establish any provision aimed at limiting the
scope of the American Convention. Consequently, when interpreting the Convention one
must carry out a systematic interpretation of both treaties, taking into account their
purpose. Moreover, the Vienna Convention demands an interpretation in good faith of the
terms of article 26, as was previously done to determine the scope of the textual referral
performed on the article before mentioned as to the Charter of the OAS and its relation to
articles 1.1 and 2 of the Convention. This interpretation in good faith requires the
3
I/A Court H.R., Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
Comptroller”) v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Series C
No. 198.
4
I/A Court H.R., Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
Comptroller”) v. Peru, supra.
5
This is the general scope of the duty of guarantee of all human rights. I/A Court H.R., Case of VelásquezRodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4
6
I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series
A No. 5, para. 52.
7
Approved by Argentina by Law 23.313, ratified on August 8, 1986.
2
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents