before the judgment delivered in the case of Lagos del Campo v. Peru (2017)
as occurred, for example, in the Case of Ximenes Lopes v. Brazil (2006) 22;
Gonzáles Lluy et al. v. Ecuador 23 (2015) and Chinchilla Sandoval v. Guatemala
(2016) 24 and that establishes the correct doctrine to be followed. Since Lagos
del Campo, the Court has been upholding the direct justiciability of ESCER
based on Article 26, except in cases like Rodríguez Revolorio v. Guatemala
(2019) and Martínez Esquivia v. Colombia (2020).
15. Regarding the system of interpretation applicable to treaty norms, the rules
of interpretation of the VCLT (Vienna Convention on the Law of Treaties) must
be followed, which entails considering elements of interpretation such as good
faith, the ordinary meaning of terms in the context of the treaty, and the
object and purpose of the treaty. From this last element – as Cecilia Medina
teaches – two specific criteria of the hermeneutics of human rights treaties
emerge: their dynamic nature and pro persona, allowing judges to have a
"broad scope for highly creative interpretation." 25
16. One of the most relevant norms of interpretation in international human rights
law is evolutionary interpretation. Thus, for example, in the case of the
Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Court interpreted
that Article 21 of the Convention, concerning the right to private property,
protected the special characteristics of communal property rights of
indigenous peoples. Such evolutionary interpretation is faithful to the intention
of the States parties. However, in this case, the Court does not apply that
interpretative criterion but rather exercises its jurisdiction in matters that the
respective instruments have not conferred upon it, that is, without the consent
of the States parties. In other words, it is an error to use these hermeneutical
tools as a basis for expanding the jurisdiction of the Court when there is an
explicit norm that clearly sets its limits.
17. The judgment makes reference to a single provision of the Protocol: the right
to work established in Article 6 (paragraph 131), but omits any mention of an
essential norm, Article 19, concerning the protection mechanisms for the
rights recognized in the agreement.
18. This omission is relevant because Article 19 defines two types of protection
mechanisms. One general mechanism - applicable to all rights recognized in
the Protocol - consists of the examination, observations, and
recommendations that various bodies of the Inter-American System can make
regarding the reports that States must submit concerning the progressive
development of ESCER. And another one - provided solely in relation to the
rights of organization and trade union affiliation, and the right to education which allows a possible violation of these rights to be brought before the InterAmerican Court.
Ximenes Lopes died in a psychiatric facility, approximately two hours after being medicated by
the clinical director of the hospital, without being evaluated by any medical professional. He did not receive
appropriate care and, due to the lack of supervision, was exposed to all kinds of aggression and accidents
that could endanger his life. The Court established state responsibility for the violation of the right to life
and humane treatment.
23
In this case, which involved a girl who was infected with the HIV virus due to a blood transfusion,
the Court protected the right to health of the victim through its connection with the rights to life and
humane treatment. The Court declared a violation of "the obligation to oversee and supervise the provision
of health services, within the framework of the right to humane treatment and the obligation not to
endanger life."
24
The victim was a woman deprived of liberty with a physical disability who did not receive adequate
healthcare regarding the multiple illnesses she suffered from, and who ultimately died in the prison facility.
This lack of health care resulted in the Court declaring a violation of the right to life and humane treatment.
25
Medina, "The American Convention on Human Rights" (2018:115).
22
7