11
29.
As to the right to social security, in this opinion I argue that the Court, contrary to what is
indicated in the Judgment, lacks competence to examine its violation; in other words, that right is
not subject to being internationally justiciable by the Court. Consequently, this matter is the subject
of the present opinion.
II.
INTERPRETATION OF ARTICLE 26
30.
That said, prior to stating the reasons why I disagree with this Judgment, and to ensure that
these reasons can be properly understood, it is important to offer an interpretation of the
aforementioned Article 26,58 according to the treaty interpretation methods established in the Vienna
Convention.
A. Textual or literal method.
31.
In interpreting the article in question, we may conclude that:
a) it contemplates an obligation to act, not to produce a result, on the part of the States Parties to
the Convention, and specifically, “to adopt measures, both internally and through international
cooperation, especially those of an economic and technical nature, with a view to achieving
progressively, by legislation or other appropriate means, the full realization of the rights”
mentioned therein;
b) indeed, as indicated in the title of the article, namely, “Progressive Development”, this obligation
involves the gradual development of the rights alluded to, precisely because they have not been
fully realized;
c) this provision refers to “rights derived59 from the economic, social, educational, scientific, and
cultural standards set forth in the Charter of the Organization of American States,” that is, rights
that are implicit in or may be inferred 60 from the latter’s provisions. However, these rights are
not enshrined or contemplated; instead their definition is left for interpretation;
d) therefore, those rights are not “recognized” by the Convention;61
may subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social
interest, and in the cases and according to the forms established by law.
3. Usury and any other form of exploitation of man by man shall be prohibited by law.”
58
Footnote 6.
“Derive: Obtain something from a source. Originate from something. Diccionario de la Lengua Española, Real Academia
Española, 2018
59
60
“Infer: To deduce something or reach a conclusion”, Idem.
61
Footnote 25.