19
has been a violation of a right derived from Article 26 in the terms of Articles 62 and 63 of the
Convention.”108
50.
Likewise, the Ruling adds that this “results not only from formal matters, but also from the
reciprocal indivisibility and interdependence of the civil and political rights and the economic, social,
cultural and environmental rights”109 and that “the interdependence and indivisibility of the rights
recognized by the American Convention denies any separation, categorization or hierarchy between
rights for the purposes of their respect, protection and guarantee.”110
51. In maintaining that position, the Ruling omits to mention that Article 1(1) of the Convention
requires the State Parties to respect and guarantee the free exercise of the rights “recognized
therein” and that Article 29 (a) of the same instrument, related to the “pro personae” principle,
employs the same formula.111 Nor does it refer to other provisions of the Convention that mention
“the rights established,” “guaranteed”, “enshrined” or “protected,”112 which, logically, should be
understood to mean the rights that have been “recognized.”113
52.
Furthermore, the Ruling does not take full account of the agreements and instruments related
to the Convention, or concerning its interpretation, or the relevant practice of its States Parties. On
this point, it merely evokes in a generic manner the link between civil and political rights and
economic, social and cultural rights,114 but without providing details of agreements subsequent to
the signing of the Convention that reflect the interpretation made by its States Parties. Instead, the
Ruling only mentions the Protocol of San Salvador, downplaying its importance by not considering
the fact that it establishes that the Court can only examine two very specific situations contemplated
therein, ultimately calling into question its purpose and the need for it. 115
53.
Moreover, the Ruling appears to confuse the nature of subsequent agreements that the States
Parties to the Convention reach or have reached. Indeed, it states that “the Court recalls that Article
76 of the American Convention establishes a specific procedure for amendments, which require the
ratification of two-thirds of the States Parties to the Convention” and that, “it would be contradictory
to consider that the adoption of the Additional Protocol, which did not require such a high margin of
ratification as an amendment to the American Convention, could modify the content and scope of
the latter’s effects.”116 Thus, in relation to the amendment and modification of treaties, pursuant to
108
Para. 84 of the Ruling. [Case of Cuscúl Pivaral]
109
Para. 85 of the Ruling. [Case of Cuscúl Pivaral]
110
Para.86 of the Ruling. [Case of Cuscúl Pivaral]
111
Footnote 50.
112
Para. 33, d).
Hereinafter, whenever reference is made to the rights “recognized” in the Convention, it should also be understood to
include those “established”, “guaranteed”, “enshrined” or “protected” therein.
113
114
Para. 85 of the Ruling[Case of Cuscúl Pivaral]
115
Paras. 88 and 89 of the Ruling [Case of Cuscúl Pivaral]
116
Para. 89 of the Ruling [Case of Cuscúl Pivaral]