and civil rights and, also, establishing a special obligation for the States Parties
to the Convention, which does not exist with regard to the latter rights;
namely, that of adopting “measures, both internally and through international
cooperation, especially those of an economic and technical nature, with a view
to achieving progressively, […] the full realization of the rights” to which it
referred and that, “by legislation or other appropriate means and subject to
available resources.”
64. In other words, the object and purpose of Article 26 is that the measures it indicates
should be adopted to achieve the realization of the rights it indicates and not that they
are enforceable immediately or, especially, that they are justiciable before the Court.
In this regard, it should be recalled that the title of the article is “Progressive
Development” and that of Chapter III – of which it is the only article – “Economic,
Social and Cultural Rights,” from which it can be understood that what this article
establishes – its object and purpose – is that measures should be adopted to achieve,
progressively, the realization of the rights to which it refers, and not that they have
already been realized.
65. Accepting that, in order to interpret a specific provision of the Convention, it would be
sufficient to evoke its general object and purpose as indicated above, which is very
vague and imprecise, would affect the legal security and certainty that should
characterize all the Court’s rulings, because it would leave to the Court with a wide
margin of discretion to determine the rights that derive from the said standards of the
OAS Charter, so that the States Parties to the Convention would not know which these
rights were prior to the corresponding proceedings.
66. This is why I am unable to share the opinion set forth in the Court’s case law that,
based on the provisions of Articles 1 and 2 of the Convention, Article 26 differentiates
between “aspects that can be enforced immediately” and “aspects that have a
progressive nature,”77 because this is far removed from what is stipulated in the said
articles which establish that the rights to which they refer are only those “recognized,”
“established,” “guaranteed,” or “protected” in or by the Convention, which is not the
case of those alluded to in Article 26. In addition, this distinction made in the judgment
would, in itself, be confusing and even contradictory because, on the one hand, it would
not be possible to know with certainty and prior to the proceedings, which aspects, or
more exactly, which of the rights that Article 26 alludes to would be enforceable
immediately and which would require progress to be made towards this end and, on
the other hand, the former would not require the adoption of measures to be
enforceable, while the others could not be enforced until measures had been adopted.
67. In addition, a process such as the one mentioned would lead the Court to assume the
international legislative function that, in the case of the Convention, only corresponds
to its States Parties.78 And, this is because, in the absence of the specification of the
rights that are derived from the standards of the OAS Charter, the Court could establish
rights that were not expressly included in the said standards and determine that they
are justiciable before it.
68. Ultimately, dissenting from the judgment, it can be asserted that the application of the
functional or teleological method for the interpretation of treaties to Article 26 of the
Convention leads to the same conclusion that was reached by using the other means
for the interpretation of treaties; namely, that the purpose of the said article is not to
Case of the Workers of the Fireworks Factory of Santo Antônio de Jesus v. Brazil. Preliminary objections,
merits, reparations and costs. Judgment of July 15, 2020. Series C No. 407, Para. 172.
77
78
Supra, footnote 25.