appropriate means and subject to available resources, the full realization of the
rights implicit in [Note: literally “derived from” in the Spanish original] 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.”
33. However, first a preliminary note. Although it is laudable that judgments cite or invoke
previous judgments to support a similar line of reasoning, it is also true that the mere
reference to them is not sufficient to substantiate this. If this were so, it would be
sufficient, as appears to occur in the instant case, 49 to assert that, since the Court has
already made a ruling in a certain sense, in this case it will make the same ruling.
Moreover, by proceeding in this way, it should be recalled that the Court is confirming
the premises that supported the precedents, so that it may be essential for anyone
dissenting with the decision, as in the instant case, to refer to them, even though the
corresponding judgment did not include any reference in this regard.
A. Good faith
34. According to the method based on good faith, it is more than evident that the practical
effect of this rule is that the States Parties to the Convention should truly adopted
measures, both in the domestic sphere and also in the area of international cooperation,
to achieve progressively the full realization of the rights derived from the standards of
the OAS Charter, and all of this subject to available resources. Thus the State obligation
established in Article 26 is to adopt measures to make the said rights effective and not
that they really are in effect. The obligation is one of conduct, not of results. This
obligation could not be otherwise, when it depends on two factors: available resources
and international cooperation, which are beyond the control of the State concerned.
35. In this regard, attention must be drawn to the fact that the provisions of Article 26 are
similar to those of Article 2 of the Convention; namely, in the latter, the States are
obliged to adopt measures where the exercise of any of the rights or freedoms referred
to in Article 1 of the Convention are not already ensured 50 and, in the former, to adopt
measures in order to achieve progressively the full realization of the rights that it
mentions derived from the standards set forth in the OAS Charter. However, the two
articles differ in that the latter conditions compliance with its provisions to international
cooperation and the availability of the corresponding resources.
36. Based on the foregoing, it is necessary to reflect on the reason why Article 26 was
adopted and, therefore, why the rights that it refers to were not addressed in the same
way as the civil and political rights. Based on good faith, the answer can only be that
the Convention considered that both types of human rights – although closely linked
owing to the ideal to which they aspire, which is, according to its Preamble, to create
the conditions that permit their “enjoyment”51 – are, however, different and, in
particular, have been developed differently in the sphere of public international law, so
that they required a differentiated treatment, which is precisely what the Convention
does as also indicated in its Preamble. 52
Paras. 26 and 104.
Art. 2: “Domestic Legal Effects. Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured
by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the
provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.”.
49
50
Para. 4: “Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of
free men enjoying freedom from fear and want can be achieved only if conditions are created whereby
everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights.”
51
Preambular para. 5: “Considering that the Third Special Inter-American Conference (Buenos Aires, 1967)
approved the incorporation into the Charter of the Organization itself of broader standards with respect to
52