derived from the authority granted by the Convention and not by a provision of domestic law
of the State in question even though evidently, as the said Article 29 indicates, this domestic
law should be taken into account when interpreting the Convention to ensure that it does not
limit the enjoyment and exercise of a right recognized by the Convention.
60.
Regarding the above, it should be pointed out that the judgment itself indicates that
“the legal issue raised by the presumed victim relates to the scope of the right to work and,
in particular, the right to job stability, understood as a right protected by Article 26 of the
American Convention.”75 Thus, the matter submitted to the Court was not the judicialization
before the Court of the violations of this right, but rather its scope.
61.
In addition, it should be noted that in other judgments handed down by the Court, a
similar result to that sought in the instant case was achieved merely by applying the provisions
of the Convention concerning rights that it does recognize and, logically, within their limits,
without needing to resort to Article 26. Consequently, there appears to be no reason for the
insistence in indicating the said article as grounds for the Court being able to examine
violations of the human rights derived from the OAS Charter, when it is evident that this is
not only superfluous but, in addition, could result in the violation of other rights – also
considered to be derived from the economic, social, educational, scientific and cultural rights
contained in the OAS Charter – being submitted to the Court’s consideration and decision.
62.
Therefore, from the foregoing it can be concluded that the application of the subjective
method for the interpretation of treaties leads to the result indicated above: namely, and
contrary to what the judgment indicates, that at no time were the economic, social and cultural
rights derived from the standards of the OAS Charter, including the right to work, incorporated
into the protection system established in the Convention.
D.
Functional or teleological method
63.
When trying to define the object and purpose of the article of the Convention in
question, it can be affirmed that:
a)
The purpose of the States when signing the Convention was “to consolidate in this
hemisphere, within the framework of democratic institutions, a system of personal liberty and
social justice based on respect for the essential rights of man”; 76
b)
To this end, “the Third Special Inter-American Conference (Buenos Aires, 1967)
approved the incorporation into the Charter of the Organization [of American States] itself of
broader standards with respect to economic, social, and educational rights and resolved that
an inter-American convention on human rights should determine the structure, competence,
and procedure of the organs responsible for these matters”;
c)
Accordingly, it is clear that what was decided at the said Conference with regard to the
economic, social, and educational rights was fulfilled with the Protocol of Buenos Aires and
with regard to the structure, competence, and procedure of the organs responsible for these
matters, with the Convention; and
d)
Therefore, it was to comply with that mandate that Article 26 was included in the
Convention in a separate chapter from the one concerning the political and civil rights and,
also, establishing a special obligation for the States Parties to the Convention, which does not
75
76
Para. 104.
Preamble, para. 1.
17