-518.
Above all, it is necessary to indicate that the characterization of these preliminary
discussions in the judgment in the case of Acevedo Buendía et al. (“Discharged and Retired
Employees of the Comptroller’s Office”) is incorrect. The judgment indicates the following:
In this regard, the Court notes that the content of Article 26 of the Convention was the
subject of intense discussion during the travaux préparatoires of the Convention, as a
result of the States Parties' interest in including a "direct reference” to economic, social
and cultural “rights”; “a provision establishing a certain binding legal force […] in
compliance and application” [Chile]; as well as "the [respective] mechanisms [for its]
promotion and protection” [Chile], since the preliminary draft of the treaty prepared by
the Inter-American Commission referred to such mechanisms in two articles that,
according to some States, only “referred, in a merely declarative text, to the conclusions
reached at the Buenos Aires Conference” [Uruguay]. A review of said travaux
préparatoires of the Convention also reveals that the main observations, based on which
the Convention was adopted, placed special emphasis on “granting the economic, social
and cultural rights the maximum protection compatible with the particular conditions of
most of the States of the Americas” [Brazil]. In this way, as part of the debate during the
travaux préparatoires, it was also proposed "to make it possible to implement [the said
rights] by means of the action of the courts” [Guatemala]. (The footnotes have been
substituted by the name of the State to which the different proposals are attributed.)
19.
A review of the proceedings of the Specialized Conference reveals a very different
panorama. To begin with, the judgment of the Court includes fragments of observations made
by four States from a total of 23 participating States, which is far from indicating a massive or
majority movement in a specific direction. In reality, several other States made observations.
These are transcribed below:
Observations of Uruguay7
10. Article 25, paragraph 2, reflects, in a text that is merely declarative, conclusions reached in
the Conference of Buenos Aires. Its content does not appear to be suitable for a convention, but
it may not be politically correct to oppose the inclusion of this text.
Observations of Chile8
14. The provisions concerning economic, social and cultural rights that have remained in the
draft are those that warrant the most objections as regards form and content. These are Articles
25, 26 and 41. Any direct mention of those rights has been eliminated; indirectly, in Article 25,
paragraph 1, there is an insufficient recognition of “the need for the States Parties to take every
effort to ensure that they are adopted in domestic law and, as appropriate, guaranteeing the
other rights established in the American Declaration of the Rights and Duties of Man that have
not been included in the preceding articles.” If, as it has been sought to justify it, the omission
of these rights – which are not even referred to in a separate chapter of the draft – is due to
their inclusion in special chapters of the OAS Charter, once the amendments contained in the
Protocol of Buenos Aires have been adopted, the text should at least contain an explicit
reference to the norms adopted in that Protocol, which mentions economic, social and cultural
rights.
15. However, based on correct legal standards, these rights should be included appropriately in
the draft Convention so that their application can be monitored. Naturally, the list should be
consistent with the norms of the Protocol of Buenos Aires. For example, in the document we are
examining, the wording of the economic provisions of that Protocol, which are the only ones that
are found in the draft Convention (art. 5, paragraph 2), has no relationship to a draft human
rights convention. A simple reading of this paragraph confirms this. If the concept of drafting a
7
Proceedings of the Inter-American Specialized Conference on Human Rights, November 7 to 22, 1969,
OEA/Ser.K/XVI/1.2, p. 37.
8
Proceedings of the Inter-American Specialized Conference on Human Rights, November 7 to 22, 1969,
OEA/Ser.K/XVI/1.2, pp. 42 and 43.
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