38.
Additionally, it is essential to note that it is surprising that the judgment has not
referred more extensively to good faith as an element that is as essential as the others
established in Article 31(1) of the Vienna Convention for the interpretation of treaties.
Likewise, it is also strange that it has not provided any explanation of the inclusion of Article
26 in a separate chapter from the political and civil rights and, in particular, what are its
fundamental purpose and its practical effect. The judgment provides no answers with regard
to the reason for the existence of Article 26 as a different article from those established for
the civil and political rights.
39.
In sum, good faith leads to considering Article 26 on its own merits, which means that
it should be interpreted not as recognizing rights that it does not list or describe, as in the
instant case, but rather as referring to norms other than those of the Convention for more
complete information on such rights, such as those of the OAS Charter. Consequently, its
special and practical effect is, let me repeat, that the States Parties to the Convention should
adopt measures to achieve progressively the rights derived from those norms, and all of this
subject to international cooperation and the available resources.
40.
The judgment omits any reference to good faith and diverges markedly from what the
Vienna Convention establishes in this regard in relation to the interpretation of treaties.
B.
Literal meaning
41.
When interpreting Article 26 in light of its literal or ordinary meaning, it can be
concluded that this article:
i. is to be found, as the only article, in Chapter III, entitled “Economic, Social and Cultural
Rights,”53 of Part I, entitled “State Obligations and Rights Protected,” which also includes
Chapter I “General Obligations,” and Chapter II “Civil and Political Rights”; consequently,
it can be seen from this that it is the Convention itself that, contrary to what the Court
has considered in its case law,54 considers the civil and political rights separately from the
economic, social and cultural rights, making a clear distinction between them, by
providing a special and differentiated consideration to each of them;
ii. does not list or provide details or specify the rights to which it alludes; it merely identifies
them as those derived55 “from the economic, social, educational, scientific, and cultural
standards set forth in the Charter of the” OAS; in other words, rights that can be
understood or inferred from56 the latter’s provisions;
iii. ergo, it unambiguously does not recognize the rights referred to and does not ensure
their exercise, as the Convention does [in the case of the civil and political rights];
iv. it does not make such rights effective or enforceable, because if it had wished to do so,
it would have stated this directly and without any ambiguity; in other words, contrary to
the Court’s case law, there is no “reference with a sufficient degree of specificity to the
Chapter IV of Part I is entitled “Suspension of Guarantees, Interpretation and Application” and Chapter V is entitled
“Personal Responsibilities.”
53
Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August 31,
2017. Series C No. 340, para. 141.
54
“Derivar: Dicho de una cosa: Traer su origen de otra.” Diccionario de la Lengua Española, Real Academia Española,
2020
55
56
“Inferir: Deducir algo o sacarlo como conclusión de otra cosa”, Idem.
12