16
international cooperation, especially those of an economic and technical nature, with a view to
achieving progressively, the full realization of the rights derived from the economic, social,
educational, scientific, and cultural standards set forth in the Charter of the Organization of
American States, as amended by the Protocol of Buenos Aires, subject to available resources, by
legislation or other appropriate means.”
36.
Finally, the application of the functional or teleological method of treaty interpretation in
relation to Article 26 of the Convention leads to the same conclusion reached by using the other
methods of treaty interpretation, namely, that this provision is not intended to establish a human
right, but only to enshrine the obligation of the States Parties to adopt measures to fully realize the
economic, social and cultural rights “derived” from the OAS Charter.
III.
DISAGREEMENT WITH THE JUDGMENT.
37. Based on the foregoing analysis, which highlights the difference between the interpretation of
Article 26 made in the Judgment, and the one expressed in this opinion, it nevertheless seems
appropriate or useful to explain this divergence in greater detail. To that end, I will begin by pointing
out that, for the purposes of interpreting Article 26 of the Convention, I will refer to the content of
the judgments issued in the cases of “Acevedo Buendía et al. (“Discharged and Retired Employees
of the Comptroller’s Office”) v. Peru,” 89 “Lagos del Campo v. Peru”90 and most especially, “Cuscúl
Pivaral et al. v. Guatemala.”91 Considering that, in the first two judgments separate opinions were
issued92 which were ratified, and that the Judgment in the instant case makes particular mention of
the last of these rulings93 (i.e. Cuscúl Pivaral et al. v. Guatemala) in which the undersigned did not
participate,94 in order to fully understand the disagreement I express in this opinion it is imperative
to refer to it.95
38. That said, as a prior consideration, it should be noted that in other judgments the Court
achieved a result analogous to the one sought in this case by applying only those provisions of the
Convention that refer to the rights recognized therein, logically within their limits, such as those that
protect the right to personal integrity, property, judicial guarantees and judicial protection, without
the need to refer to the aforementioned Article 26.
39. Also, as a second preliminary consideration, it is noteworthy that the Judgment in the instant
case indicates that in the Ruling (issued in the case of Cuscúl Pivaral et al.) the Court undertook a
“literal, systematic, teleological and evolutive interpretation regarding the scope of (the Court’s)
89
Para. 34.
90
Para. 146.
91
Para.143.
92
Footnote 10.
93
Para. 36.
94
Footnote 1 of the Judgment [Case of Cuscúl Pivaral].
95
Hereinafter, the Ruling [Case of Cuscúl Pivaral]