recognisition that the American Convention did not establish distinctions when pointing out
that its jurisdiction covers all the rights established between articles 3 and 26 of the
Convention. Furthermore, article 4 of the Protocol of San Salvador establishes that any right
recognized or in force in a State by reason of internal law or by virtue of international
instruments, can be restricted or curtailed by virtue a pretext that the Protocol aforementioned does not recognize the right or recognizes it to a lesser degree. Finally, the
Vienna Convention states that an interpretation should not lead to a manifestly absurd or
unreasonable result. In this regard, the conclusion that the Protocol of San Salvador limits
the scope of the Convention, would lead to the absurd consideration that the American
Convention can have some effects among the Participating States of the San Salvador
8
Protocol while having another effect for the States that are not parties to the said Protocol.
344.
I would also like to stress that it is necessary that the Court, as the authorized
interpreter of the Convention, up-dates the normative sense of article 26. In my opinion,
what matters is not the subjective intention of the State´s delegates at the time of the San
José´s Conference or during the discussion of the Protocol of San Salvador, but the
objective intention in the text of the American Convention, taking into account that the duty
of the interpreter is to update the normative meaning of the international instrument. In
addition, using a historical interpretation, based on the hypothetical intention that it would
have been about the Convention from the delegates which adopted the Protocol of San
Salvador, cannot discredit the explicit content of the American Convention.
345.
On the other hand, the Vienna Convention's rules of interpretation are also subject
to interpretation. The "intention of the State" is an aspect that is subject to interpretation.
Hence the importance of harmonizing the rule of the "ordinary meaning" with the other
rules relating to the context and the object and purpose of the treaty, and also the travaux
preparatoires. In the Cotton Field case, the Court developed a more comprehensive concept
9
of the means of interpretation considered in the Vienna Convention. This is extremely
important taking into account that it is necessary to interpret a convention, such as the
American Convention, which has now been in force for more than 40 years, and a protocol,
such as the Protocol of San Salvador, adopted more than 20 years ago, so as to give full
effect to the rights contained therein.
346.
In the instant case, as mentioned above, it could be implied that even though the
State referred to the existence of legislation and policies that could have permitted
Sebastián Furlan to gain access to social security schemes and free public health services,
there is no information of the regulations and specific evidence which disproves the
problems of accessibility faced by Sebastian Furlan, and, neither bearing in mind the
behavior of Danilo Furlan considered as unreasonable on those occasions when he and his
family did not appear before the health authorities. It is clearly understood that several
obligations of the State, established by the international law and also in the domestic
sphere, were assumed, in a disproportionate manner, by the family group of Sebastián
Furlan, whose members did not have sufficient economic resources to deal with the mental
disability of the victim.
347.
The omissions and deficiencies in the medical care provided by hospitals and the
lack of more guidance by the different state institutions involved in this case, particularly at
the beginning, after the accident, hindered the access to social security benefits and to a
8
Only
15
states
have
ratified
the
Protocol
of
San
Salvador.
Source:
http://www.cidh.oas.org/Basicos/basicos4.htm
9
I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits,
Reparations, and Costs. Judgment of November 16, 2009. Series C No. 205.
3
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