81. This is particularly evident, for example, as regards the “[a]ccelerated and diversified
industrialization, especially of capital and intermediate goods,” the “[s]tability of
domestic price levels, compatible with sustained economic development and the
attainment of social justice,” the “[p]romotion of private initiative and investment in
harmony with action in the public sector,” the “[e]xpansion and diversification of
exports, “[t]he operation of systems of public administration, banking and credit,
enterprise, and distribution and sales, in such a way, in harmony with the private
sector, as to meet the requirements and interests of the community,” and the
facilitation of “the process of Latin American regional integration.” It is, at the very
least, questionable that, on the basis of these assertions, the Court has wanted to
derive human rights relating to these issues which, anyway, are part of the State’s
internal, domestic and exclusive jurisdiction.90
82. Therefore, based on all the foregoing, it is evident that, contrary to what is indicated
in the instant case, “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” to which Article 26 refers do not signify the competence of
the Court to hear and decide possible violations of the rights “derived” from them.
V.
THE PROTOCOL OF SAN SALVADOR
83. Furthermore, it is necessary to refer to the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights
(Protocol of San Salvador), which is also cited in the Court’s case law to support its
interpretation of Article 26;91 however, to the contrary, the undersigned considers that
its signature and validity support what is maintained in this opinion.
84. This instrument92 was adopted as a result of the provisions of Articles 31, 76 and 7793
of the Convention, and this is indicated in its Preamble which indicates that:
“Bearing in mind that, although fundamental economic, social and cultural rights
have been recognized in earlier international instruments of both world and
regional scope, it is essential that those rights be reaffirmed, developed, perfected
and protected in order to consolidate in America, on the basis of full respect for
the rights of the individual, the democratic representative form of government as
well as the right of its peoples to development, self-determination, and the free
disposal of their wealth and natural resources; and [c]onsidering that the
American Convention on Human Rights provides that draft additional protocols to
that Convention may be submitted for consideration to the States Parties, meeting
together on the occasion of the General Assembly of the Organization of American
States, for the purpose of gradually incorporating other rights and freedoms into
the protective system thereof.”
85. The above reveals that this is an agreement additional to the Convention, whose
specific purpose is to reaffirm, develop, perfect and protect the economic, social and
cultural rights and to gradually incorporated them into the Convention’s protection
system and achieve their full realization.
86. In other words, the Protocol was adopted because, at the date of its signature, the
economic, social and cultural rights had not been reaffirmed, developed, perfected and
90
Supra, footnote 23.
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. 161.
91
92
Hereinafter, the Protocol.
93 Supra,
footnote 25.