-25.
Article 31, entitled “Recognition of Other Rights,” regulates the way in which these
other rights “may be included in the system of protection of this Convention,” “in accordance
with the procedures established in Articles 76 and 77.”
6.
This means that there are “other rights,” in addition to those recognized by the
Convention, that may be justiciable according to domestic law or to another legal order, but
they would only be “recognized” for the effects of the Convention (Article 1(1)) and included
in the protection system created by this instrument when the procedures established in Article
76 or Article 77 have been followed (either by amendments or protocols).
B. The system of protection
7.
The system of protection is established in Part II, “Means of Protection,” which assigns
this competence to the Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights (according to Article 33). The whole of this protection system relates
to the human rights established in the Convention or to the rights and freedoms recognized
by the Convention. Let us look at the pertinent provisions:
a)
The Commission (Chapter VII): the pertinent articles refer to the competence
of the Commission, the admissibility of cases, and the procedure. The Commission has
competence in relation to the “petitions” lodged by “[a]ny person or group of persons, or
non-governmental entity legally recognized in one or more Member States of the
Organization [of American States]” “containing denunciations or complaints of violation of this
Convention by a State Party (Article 44) or “communications in which a State Party alleges
that another State Party has committed a violation of a human right set forth in this
Convention” (Article 45). “The petition or communication that does not state facts that tend
to establish a violation of the rights guaranteed by this Convention” shall be considered
inadmissible (Article 47(b)). And the section on “Procedure” refers to the case in which the
Commission “receives a petition or communication alleging violation of any of the rights
protected by this Convention.”
b)
The Court (Chapter VIII): the pertinent articles refer to cases that may be
submitted to the Court and its competence. Regarding the submission of cases: it may only
hear a case submitted by the States Parties or the Commission when the procedures before
the Commission have been exhausted (Article 61), so that all the norms cited in relation to
the Commission are applicable. Regarding competence, the Court must decide whether
“there has been a violation of a right or freedom protected by this Convention,” and, if so, it
“shall rule that the injured party be ensured the enjoyment of his right or freedom that was
violated,” and, “if appropriate, that the consequences of the measure or situation that
constituted “the breach of such right or freedom be remedied.”
8.
Scope of the “compétence de la compétence.” Adding rights is not a competence of the
Inter-American Court, but rather of the State. The competence to decide, in each contentious
case whether or not it has competence does not mean that the Court may modify the
meaning and scope of the competence assigned to it by the Convention.
II.
A MERE COMMITMENT
RECOGNITION OF RIGHTS
TO
PROGRESSIVE
DEVELOPMENT
AND
NOT
A
9.
A reading of Article 26, the sole article under Chapter III of Part I (Economic, social
and cultural rights) entitled “Progressive Development,” reveals that this article does not
recognize or establish the economic, social and cultural rights; rather it establishes something
very different; the undertaking of the States to achieve progressively the full realization of the
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