32
violation of Article 26 of the Convention, the Court has determined that the
alleged victims, his next-of-kin or his representatives may invoke rights other
than those asserted in the petition filed before the Commission, on the basis of
the facts described thereof.80
98.
The Tribunal notes that the arguments of the representative are based,
mainly, on the following two aspects: a) the lack of payment of the total amounts
owed from April 1993 to October 2002 and the non-compliance with the judicial
rulings that ordered such reimbursement in this case and b) the adoption and
application of Decrees No. 25597 and 036-93-EF.
99.
Before entering into the analysis of these two aspects, the Court
deems appropriate to make some general considerations in this respect. In this
sense, the Tribunal notes that the content of Article 26 of the Convention was the
subject-matter of an intense debate in the preparatory works of the Convention,
as a result of the States Parties' interest to assign a "direct reference” to
economic, social and cultural “rights”; “a provision establishing certain legal
mandatory nature […] in its compliance and application”;81 as well as "the
[respective] mechanisms [for its] promotion and protection”,82 since the
Preliminary Draft of the treaty prepared by the Inter-American Commission made
reference to such mechanisms in two Articles that, according to some of the
States, only “contemplated, in a merely declarative text, the conclusions reached
in the Buenos Aires Conference.”83 The review of said preparatory works of the
Convention also proves that the main observations, upon which the approval of
the Convention was based, placed a special emphasis on “granting the economic,
social and cultural rights the maximum protection compatible with the peculiar
conditions to most of the American States.”84 In this way, as part of the debate in
the preparatory works, it was also proposed "to materialize the exercise of [said
rights] by means of the activity of the courts.”85
100.
Furthermore, it is pertinent to note that even though Article 26 is
embodied in chapter III of the Convention, entitled "Economic, Social and Cultural
Rights”, it is also positioned in Part I of said instrument, entitled “State
Obligations and Rights Protected” and, therefore, is subject to the general
obligations contained in Articles 1(1) and 2 mentioned in chapter I (entitled
“General Obligations”), as well as Articles 3 to 25 mentioned in chapter II
(entitled “Civil and Political Rights”).
101.
In this regard, the Court deems it is appropriate to recall the
interpendence that exists between civil and political rights and economic, social
and cultural rights, since they should be fully understood as human rights,
80
Cf. Case of the “Five Pensioners", supra note 61, para. 155; Case of Kawas Fernández, supra
note 13, para. 127; and Case of Perozo et al., supra note 13, para. 32.
81
Special Inter-American Conference on Human Rights (San José, Costa Rica, November 7-22,
1969). Minutes and Documents. Observations of the Government of Chile to the Draft of the InterAmerican Convention on Human Rights, p. 42-43.
82
Special Inter-American Conference on Human Rights, supra note 81, Intervention of the
Delegate of the Government of Chile in the debate about the Draft of the Inter-American Convention
on Human Rights, during the Fourteenth Session of the “I” Commission, p. 268.
83
Special Inter-American Conference on Human Rights, supra note 81, Observations of the
Government of Chile to the Draft of the Inter-American Convention on Human Rights, p. 37.
84
Special Inter-American Conference on Human Rights, supra note 81, Observations and
Amendments of the Government of Brazil to the Draft of the Inter-American Convention on Human
Rights, p. 125.
85
Special Inter-American Conference on Human Rights, supra note 81, Intervention of the
Delegate of the Government of Guatemala in the debate about the Draft of the Inter-American
Convention on Human Rights, during the Fourteenth Session of the “I” Commission, p. 268. 268-269.