CONCURRING OPINION OF JUDGE MARGARETTE MAY MACAULAY IN THE CASE OF
FURLAN AND NEXT OF KIN v. ARGENTINA
1.
I voted for the adoption of this judgment of the Inter-American Court of Human
Rights in the Case of Furlan and Next-of-Kin V. Argentina. However, in this concurring
opinion, I wish to state my personal opinions about the possibility of resolving a part of the
controversy from a perspective regarding the direct justiciability of economic, social and
cultural rights under the scope of article 26 of the American Convention. Even though I
concur with the decision of the Court, I wish to analyze the issue of the duty to respect and
guarantee the right to health and the right to social security. My intent is to contribute to
the discussions that the Court will have in the future regarding these issues .
2.
Chapter III of the American Convention is intituled “Economic, Social, and Cultural
Rights.”
This chapter includes article 26 as it’s only provision and identifies it as
“Progressive Development”:
The States Parties undertake 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 implicit in
the economic, social, educational, scientific, and cultural standards set forth in the Charter of the
Organization of American States as amended by the Protocol of Buenos Aires.
3.
The Court’s jurisprudence has established specifics which permit an understanding
of the scope of the referral in Article 26 concerning the standards “set forth in the Charter
of the Organization of American States, and amended by the Protocol of Buenos Aires.” In
fact, in its advisory opinion regarding the scope of the American Declaration, the Court
noted that “the Member States have understood that the American Declaration” of the
Rights and Duties of Man “contains and defines the basic human rights that the Charter
refers to, and therefore the Charter of the Organization cannot be interpreted nor applied in
human rights matters without integrating its standards with the corresponding provisions in
the Declaration.” 1 With regard to the instant case, the American Declaration contains
standards regarding the right to health and the right to social security.2
4.
In addition, the American Declaration states in Article XI the right of everyone "to
the preservation of his health through sanitary and social measures relating to food,
clothing, housing and medical care, to the extent permitted by public and community
resources." Article 45 of the OAS Charter requires member states "to dedicate every effort
to [...] [d]evelopment of an efficient social security policy." Likewise, Article XVI of the
American Declaration states that "every person has the right to social security which will
protect him from the consequences of unemployment, old age, and any disabilities arising
from causes beyond his control that make it physically or mentally impossible for him to
earn a living."
5.
On the other hand, the Court has referred to the various obligations derived from
these rights within the framework of the American Convention. In this regard, the Court
has specified various aspects of the notions of progressive realization and non-regression in
1
Interpretation of the American Declaration of the Rights and Duties of Man within the framework of Article
64 of the American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10,
para. 39.
2
Article 34 i) of the OAS Charter, which includes within the goals to achieve the integral development
“(p)rotection of man's potential through the extension and application of modern medical science.”