17
jurisdiction in relation to Article 26 of the Convention,”96 something that did not really occur.
Nevertheless, the Judgment itself does have recourse to an evolutive interpretation of the matter; it
does so by recalling that this is contemplated in Article 31 of the Vienna Convention, 97 and proceeds
to apply that provision to determine the scope and content of the right to social security. The latter
is clearly not the purpose of this partially dissenting opinion, which is restricted to the question of
the judicialization of that right before the Court.
40. However, (in the case of Cuscúl Pivaral et al.) the Ruling actually adheres to the system
comprised of the literal interpretation, internal context– systematic interpretation, the teleological
interpretation and supplementary interpretation methods, an order that I will follow in this analysis.
A. Literal interpretation
41.
Although the Ruling indicates that it applies the literal or textual method of treaty
interpretation, this does not really appear to be the case.
42.
Indeed, the literal interpretation invoked in the Ruling98 is confused with the teleological
method of interpretation or, at least, the latter prevails over the former, insofar as it argues that
“the Court considers that the ordinary meaning that should be given to the rule established in Article
26 of the Convention is that the States undertook to realize “rights” derived from the economic,
social, educational, scientific and cultural rights set forth in the Charter” of the OAS. Thus, “(t)he
text of the provision should be interpreted in such a way that its terms acquire meaning and a specific
significance, which, in the case of Article 26, means understanding that the States agreed to adopt
measures in order to fully realize the “rights” recognized in the OAS Charter.” 99 In other words, what
the Court considers, or could be considered, as the object and purpose of the rule, prevails over its
terms.
43.
Indeed, what the States Parties to the Convention actually undertake to do, according to
Article 26, is “to adopt measures” with the aim of “achieving progressively the full realization of the
rights derived from” the OAS Charter. Thus, they are not obligated to realize such rights but to adopt
measures to achieve this objective. The Ruling explicitly recognizes that the rights referred to in
Article 26 are, on the one hand, not truly “realized”, in other words, “real or true,”100 for which reason
“the States undertake to adopt measures […] with a view to achieving […] (their) full realization”
and, on the other hand, that they are not “recognized” by the American Convention, but derived
from “the Charter” of the OAS, completely departing from the literal meaning of that norm, inasmuch
as it disregards what it has established.
96
Para. 36.
97
Footnote 53.
98
Para. 78 of the Ruling [Case of Cuscúl Pivaral].
99
Para. 78 of the Ruling [Case of Cuscúl Pivaral]
100
Diccionario de la Lengua Española, Real Academia Española, 2018.