Campo, the Court has been finding ESCER directly justiciable on the basis of Article
26, except in the cases of Rodríguez Revolorio v. Guatemala (2019) and Martínez
Esquivia v. Colombia (2020). In the first of these cases, the Court decided to address
the violations of the right to health in a prison in the framework of Article 5 of the
ACHR, and in the second—which dealt with the unjustified dismissal of a prosecutor—
the Court established that the arbitrary dismissal had affected the victim’s right to
remain in the position under conditions of equality, in violation of Article 23(1)(c) of
the Convention.14
16.
Regarding the system of interpretation applicable to the norms of the
Convention, the rules of interpretation of the VCLT must be followed. This means
considering good faith, the ordinary meaning of the terms in the context of the treaty,
and their object and purpose as elements of interpretation. From this latter element—
as Cecilia Medina teaches—emerges two specific criteria of the hermeneutics of
human rights treaties: their dynamic and pro persona nature, which gives judges
"ample margin for highly creative interpretation."15
17.
One of the most relevant canons for interpretation of international human
rights law is the evolutionary and pro persona interpretation. Thus, for example, in
the case of Atala Riffo and girls v. Chile, regarding the right to equality and nondiscrimination, the Court understood sexual orientation and gender identity as
categories protected by the American Convention under the expression “another
social condition” established in Article 1(1) of the Convention. This evolutionary and
pro persona interpretation is faithful to the intention of the states parties. However,
in this case, the Court does not apply that interpretative criterion, but rather asserts
it has jurisdiction over areas where that the respective instruments have not
conferred it—that is, without the states parties having consented to it. In other words,
it is a mistake to use these hermeneutical tools as a basis to expand the jurisdiction
of the Court when there is an explicit norm that precisely and clearly limits it.
18.
The judgment refers to two provisions of the Protocol: the right to work
established in Article 6 (paragraph 59) and Article 18, called "Protection of the
Handicapped (sic)"16 (paragraph 62). However, it omits any reference to an essential
provision, Article 19, on the mechanisms of protection of the rights recognized in the
agreement.
19.
This omission is relevant, because what article 19 does is define two types of
protective mechanisms. A general one—applicable to all the rights recognized in the
Protocol—that consists of examinations, observations and recommendations issued
by different organizations of the Inter-American System regarding the reports that
the states must present about the progressive development of ESCER; and a second
mechanism—admissible only with respect to the rights of union organization and
affiliation and the right to education—makes it feasible that the Court may hear any
eventual violation of them.
20.
The state issued an acknowledgment of responsibility that included violation
of Article 26 because it understood that the conduct displayed by its agents was in
compliance with its obligations under the Convention; however, it does not follow
As Contesse notes, “it is vital for the Court to take special care in justifying the exercise and
extent of its legal authority.” See CONTESSE, Jorge: “The international authority of the Inter-American Court
of Human Rights: a critique of the conventionality control doctrine,” in The International Journal of Human
Rights (2017), p.11.
14
MEDINA, Cecilia: La Convención Americana de Derechos Humanos. Teoría y jurisprudencia,
Ediciones Universidad Diego Portales, Santiago (2018), pg. 115.
15
It is to be hoped that in the future, in addition to advancing with respect to the content and
protection of ESCER, states parties could replace this unfortunate expression with another that is respectful
of human dignity, such as, for example, “person with a disability.”
16
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