-3its name from the Charter, it is also necessary that the Charter provides a minimum
content for that right. This minimum content could then be clarified – to a certain
extent – by other international instruments. Defining the entire content and scope of a
right by means of other instruments would invariably result in a modification of the
Charter.”7
8.
In this regard, it is worth stressing that:
“The inclusion [of Article 26] in the text of the Convention requires a theoretical effort in order to
endow it with meaning in accordance with the other articles of the Convention and the principles
that regulate its interpretation, avoiding two position that we understand are incorrect, [including]
the temptation to introduce, by means of this article, a complete list of social rights that, clearly,
the States did not intend to incorporate into the system of the Convention, which was designed
above all to protect civil and political rights.”8
9.
Even though it would have been desirable when Article 26 was drafted to use a
less problematic legislative technique than the complex system of referrals to the OAS
Charter, the truth is that the referral is to the Charter and not to the American
Declaration of the Rights and Duties of Man, which could have led to a different
interpretation, because the Declaration does contain more precise references to the
ESCR.9 Unfortunately, this is not the case.10
10.
In addition, it has been affirmed that, in the case of Acevedo Buendía et al.
(“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru, the InterAmerican Court accepted that Article 26 of the Convention contained a precise list of
the ESCR that could be enforced directly. In my opinion, this gives an excessive scope
to that judgment. First, the judgment does not declare the violation of Article 26 and
the considerations made relate precisely to the obligation of progressive development
and not to a direct enforceability of any right in particular. Second, the judgment does
not define or clarify either the scope or minimum content of the ESCR that would be
protected. Third, even if the intention was to derive some type of direct justiciability
from the affirmation that the obligations of respect and guarantee are applicable to
Article 26 of the Convention, it should be stressed that this affirmation is an obiter
dictum of that judgment, and thus has no direct relationship to the final decision which
6
Article 45 of the OAS Charter stipulates: “The Member States … agree to dedicate every effort to the
application of the following principles and mechanisms: [..] (h) Development of an efficient social security
policy.”
7
Oswaldo Ruiz Chiriboga, The American Convention and the Protocol of San Salvador: Two Intertwined
Treaties: Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System,
Netherlands Quarterly of Human Rights, Vol. 31/2 (2013), p. 171.
8
Víctor Abramovich, and Julieta Rossi, ‘La Tutela de los Derechos Económicos, Sociales y Culturales en
el Artículo 26 de la Convención Americana sobre Derechos Humanos’, Estudios Socio-Jurídicos, Vol. 9, 2007,
p. 37.
9
For example, Article XI establishes that: “Every person has the right to the preservation of his heatlh
through sanitary and social measures relating to food, clothing, housing and medical care, to the extent
permitted by public and community resources.”
10
In this regard, “[w]hen determining whether a rights is implicit in the Charter, it is necessary, in our
opinion, to avoid the shortcut of appealing directly to the American Declaration as an instrument that forms
the basis for the content of the human rights established in the Charter. [The foregoing, taking into account
that] Article 26 refers to the rights derived from the economic, social, educational, scientific and cultural
standards of the Charter and does not refer to the Declaration.” Víctor Abramovich, and Julieta Rossi, ‘La
Tutela de los Derechos Económicos, Sociales y Culturales en el Artículo 26 de la Convención Americana sobre
Derechos Humanos’, Estudios Socio-Jurídicos, Vol. 9, 2007, p. 47.
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