in the sense that Article 26 recognizes the existence of “rights” that must be ensured by the
State to all persons subject to their jurisdiction in the terms established by the American
Convention. The purpose of the recognition of those rights and of the Court’s competence to
decide disputes regarding them is to consolidate a regime of personal liberty and social
justice based on respect for the essential human rights recognized in the OAS Charter,
which is clearly compatible with the object and purpose of the American Convention.
B.1.4. Supplementary means of interpretation
94.
Fourth, the Court recalls that, according to Article 32 of the Vienna Convention,
supplementary means of interpretation, especially the preparatory work of a treaty, may be
used “in order to confirm the meaning resulting from the application of Article 31.” This
signifies that they are used in a supplementary manner.
95.
In this regard, the Court recalls that the content of Article 26 of the Convention was
the subject of intense debate during the preparatory work for the Convention. This arose
due to the interest of the States in including a “direct mention” of the economic, social and
cultural “rights”; “a provision that makes their application and compliance with them […]
legally binding to a certain extent”; and also “the [respective] mechanisms [for their]
promotion and protection,” because the draft treaty prepared by the Inter-American
Commission referred to them in two articles that, according to some States, only “reflected
conclusions reached at the Buenos Aires Conference in a text that is merely declarative.”91
96.
A review of the preparatory work of the Convention reveals also that the main
considerations based on which it was adopted placed special emphasis on “giving the
economic, social and cultural rights the maximum protection compatible with the specific
conditions of most of the States of the Americas.” Thus, in the discussions during the course
of the preparatory work, it was also proposed to “enable the implementation [of those
rights] by the action of the courts.” The Court considers that these declarations by the
States do not contradict the thesis that Article 26 does, indeed, recognize “rights” that are
subject to the general obligations of the States by virtue of Articles 1(1) and 2 of the
American Convention and that, consequently, they are justiciable.
B.1.5. Conclusion
97.
The Court notes that a literal, systematic and teleological interpretation leads to the
conclusion that Article 26 of the Convention protects the rights derived from the economic,
social, educational, scientific and cultural standards set forth in the OAS Charter. The scope
of such rights should be understood in relation to the other articles of the American
Convention and they are therefore subject to the general obligations contained in Article
1(1) and 2 of the Convention and may be supervised by the Court in the terms of Articles
62 and 63 of this instrument. This conclusion is based not only on formal issues, but results
from the interdependence and indivisibility of civil and political rights and economic, social,
cultural and environmental rights, as well as their compatibility with the object and purpose
of the Convention, which is the protection of the fundamental rights of the human being. In
each specific case that calls for an analysis of the ESCER, it will be necessary to determine
whether a human right protected by Article 26 of the American Convention can be explicitly
derived from the OAS Charter, and also the scope of this protection.
Cf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v.
Peru. Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 99,
and Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349, para. 101.
91
33