-7rules of treaty interpretation established in Article 29 of the American Convention, and in the 1969
Vienna Convention on the Law of Treaties. By making an evolutive interpretation, the Court has
given special relevance to comparative law, and for this reasons has used domestic law or the case
law of domestic courts when examining specific disputes in contentious cases.20
22.
In this regard, it should be pointed out that a method of interpretation should
be used when a norm is ambiguous, and I do not consider that this is the case as
regards the limitation of competence stipulated in Article 19(6) of the Protocol of San
Salvador in relation to Article 26 of the Convention, because, as indicated above, the
meaning of the norm is clear. Nevertheless, when a norm must be interpreted, it is not
sufficient to use one of the different methods of interpretation that exists, because
they are complementary and none of them outranks the others.
23.
For example, I will use the other methods of interpretation to show that,
instead of upholding the direct justiciability of ESCR by means of Article 26 of the
Convention, they support the position that I have been defending in this opinion. The
literal interpretation of the two norms: namely, Article 26 of the Convention and Article
19(6) of the Protocol, implies exactly what I have been doing, and that is to conclude
that a reading of the two norms reveals that it was not the intention of the States to
establish an option of direct justiciability of Article 26 and, to the contrary, in Article
19(6) they determined a limitation of competence. The literal interpretation refers to
the good faith with which treaties should be interpreted, which is relevant in this
regard, because it would appear that, in some cases, the aim of reaching a specific
result leads to confusing the literal meaning of the norm or to disregarding norms or
factors that are relevant for the interpretation.
24.
Regarding the systematic interpretation, in order to determine the scope of
Article 26 of the Convention, the provisions of the Protocol should not be forgotten,
because, as I mentioned previously, the two treaties must be read together.
Accordingly, a systematic interpretation that only uses the other articles of the
Convention cannot be considered valid. In addition, some authors indicate that a
systematic interpretation based on Article 4 of the Protocol could lead to the
conclusions that Article 19(6) of the Protocol is inapplicable. In this regard, the said
article stipulates that:
Article 4
Inadmissibility of Restrictions
A right which is recognized or in effect in a State by virtue of its internal legislation or international
conventions may not be restricted or curtailed on the pretext that this Protocol does not recognize
the right or recognizes it to a lesser degree.
25.
In this regard, I consider that this article would be applicable if Article 26 of the
Convention had stipulated a list where the ESCR were clearly established, but, as I
have already indicated, this is not so; hence, it cannot be argued that the two norms
compete with each other. In addition, it would not be logical to think that Article 26
cancels or annuls the limitation of competence under Article 19(6), because this does
not restrict rights, but rather limits the competences of the Commission and of the
Court. Confusing the restriction of a right with the limitation of competences could lead
to the absurd result of opening up the Court’s competence completely, even contrary
to the wishes of the States.
20
Case of Artavia Murillo et al. (In vitro fertilization) v. Costa Rica, para. 245, and The Right to
Information on Consular Assistance within the Framework of the Guarantees of Due Process of Law. Advisory
Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 114.
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