37. Therefore, based on the principle of good faith, it is necessary to underline that
although the Preamble to the Convention affirms that “everyone should enjoy his
economic, social and cultural rights, as well as his civil and political rights,” this does
not mean – as the judgment asserts – that the practical effect of Article 26 is that the
violations of the rights it mentions are justiciable before the Court, but merely that the
States must adopt the pertinent measures, including through international cooperation,
and subject to the available resources, to realize the said rights progressively.
38. Additionally, it is essential to note that it is surprising that the judgment has not
referred more extensively to good faith as an element that is as essential as the others
established in Article 31(1) of the Vienna Convention for the interpretation of treaties.
Likewise, it is also strange that it has not provided any explanation of the inclusion of
Article 26 in a separate chapter from the political and civil rights and, in particular,
what are its fundamental purpose and its practical effect. The judgment provides no
answers with regard to the reason for the existence of Article 26 as a different article
from those established for the civil and political rights.
39. In sum, good faith leads to considering Article 26 on its own merits, which means that
it should be interpreted not as recognizing rights that it does not list or describe, as in
the instant case, but rather as referring to norms other than those of the Convention
for more complete information on such rights, such as those of the OAS Charter.
Consequently, its special and practical effect is, let me repeat, that the States Parties
to the Convention should adopt measures to achieve progressively the rights derived
from those norms, and all of this subject to international cooperation and the available
resources.
40. The judgment omits any reference to good faith and diverges markedly from what the
Vienna Convention establishes in this regard in relation to the interpretation of treaties.
B. Literal meaning
41. When interpreting Article 26 in light of its literal or ordinary meaning, it can be
concluded that this article:
i. is to be found, as the only article, in Chapter III, entitled “Economic, Social and
Cultural Rights,”53 of Part I, entitled “State Obligations and Rights Protected,”
which also includes Chapter I “General Obligations,” and Chapter II “Civil and
Political Rights”; consequently, it can be seen from this that it is the Convention
itself that, contrary to what the Court has considered in its case law,54 considers
the civil and political rights separately from the economic, social and cultural
rights, making a clear distinction between them, by providing a special and
differentiated consideration to each of them;
ii. does not list or provide details or specify the rights to which it alludes; it merely
identifies them as those derived 55 “from the economic, social, educational,
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.”
53 Chapter IV of Part I is entitled “Suspension of Guarantees, Interpretation and Application” and Chapter V is entitled “Personal
Responsibilities.”
Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
August 31, 2017. Series C No. 340, para. 141.
54
“Derivar: Dicho de una cosa: Traer su origen de otra.” Diccionario de la Lengua Española, Real Academia
Española, 2020
55