provision intended to restrict the scope of the American Convention.” 70 In addition, she
stated that: 71
[…] when interpreting the Convention [and the Protocol of San Salvador], a systematic interpretation of
the two treaties should be made, taking their purpose into account. In addition, the Vienna Convention
requires an interpretation in good faith of the terms of Article 26, as made previously to determine the
scope of the textual reference to the said article in relation to the OAS Charter and its relationship to
Articles 1(1) and 2 of the Convention. This interpretation in good faith requires recognizing that the
American Convention does not establish distinctions when indicating that its jurisdiction covers all the
rights established from Article 3 to Article 26 of the Convention. Furthermore, Article 4 of the Protocol of
San Salvador establishes that no right recognized or in force in a State may be restricted or infringed by
international instruments, under the pretext that the said Protocol does not recognize it or recognizes it to
a lesser degree. Lastly, the Vienna Convention declares that an interpretation should not lead to a
manifestly absurd or unreasonable result. In this regard, the conclusion that the Protocol of San Salvador
limits the scope of the Convention would lead to the absurd consideration that the American Convention
could have certain effects for the States Parties to the Protocol of San Salvador while having a different
effect for the States that are not a party to this Protocol. 72
38.
Judge Macaulay specified that it was incumbent on the Inter-American Court to
update the normative meaning of Article 26 as follows: 73
[…] what matters is not the subjective intention of the delegates of the States at the time of
the Conference of San José or during the discussion of the Protocol of San Salvador, but the
objective intention of the text of the American Convention, taking into account that the
interpreter’s obligation is to update the normative meaning of the international instrument.
Moreover, it is not possible to discredit the explicit content of the American Convention using a
historical interpretation, based on the hypothetical intention that the delegates who adopted
the Protocol of San Salvador would have had with regard to the Convention.
39.
Besides the above, some arguments additional to this interpretation of the
relationship between the American Convention and the Protocol of San Salvador can be
considered concerning the Court’s competence to examine direct violations of economic,
social and cultural rights in light of Article 26 of the Pact of San José.
40.
First, it is essential to establish the importance of taking into account the literal
interpretation of Article 26 with regard to the competence established to protect all the
rights established in the Pact of San José, which include the rights established in Articles 3
through 26 (Chapter II: “Civil and political rights, and Chapter III: “Economic, social and
cultural rights”). As I have already mentioned, the Inter-American Court recognized this
expressly in the judgment en el case of Acevedo Buendía et al. v. Peru: 74
100.
Furthermore, it is pertinent to note that even though Article 26 is contained in Chapter III of the
Convention, entitled "Economic, Social and Cultural Rights,” it is also located in Part I of the 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 indicated in Chapter II (entitled “Civil and Political Rights”).
70
Concurring opinion of Judge Margarette May Macaulay in the Case of Furlan vs. Argentina, supra, para. 8.
71
Idem.
72
Only
15
States
have
ratified
http://www.cidh.oas.org/Basicos/basicos4.htm.
73
the
Protocol
of
El
Salvador.
Source:
Concurring opinion of Judge Margarette May Macaulay in the Case of Furlan v. Argentina, supra, para. 9.
74
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”),
supra, para. 100.
14