24
establish that the States Parties are responsible for the regulatory function in relation to the
Convention, and specifically for the purpose of “progressively including other rights in its system of
protection.” Accordingly, this area is implicitly barred to the Court, which therefore cannot include
that right among those that can be submitted to it for adjudication.
71.
Indeed, to the contrary of what appears to be stated in the Judgment, 133 the authority to
determine its own competence, under the principle of compétence de la compétence, or “kompetenzkompetenz,” does not authorize it to violate the principle of public law whereby authorities may only
act within the law. Obviously, the fact that a right is not “recognized” in the Convention does not
preclude its future inclusion among the rights that could be invoked before the Court, or preclude
the development of an existing right.134
72.
Furthermore, if we accept the position expressed in the Judgment regarding Article 26, the
provisions of Articles 31, 76(1) and 77(1) of the Convention would be rendered somewhat
unnecessary and useless; that is to say, there would be no need to sign additional protocols in order
to recognize other rights different to those established in the Convention and include them within its
protection system, since to that end it would be sufficient to apply Article 26.
73.
In other words, based on the principle that "for the same reason, the same legal provision,”
if the criterion adopted in the Judgment were to be followed and taken to its extreme, it would not
be apparent why alleged human rights violations contained in the provisions found throughout
Chapter VII of the OAS Charter could not also be invoked before the Court, 135 which would obviously
133
Para. 142.
134
The possibility exists that Protocols could be signed that do not imply the inclusion of rights within the protection
system. For example, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, of 1990, was
adopted in consideration that, under paragraph 6 of its Preamble, “an international agreement must be arrived at that will
entail a progressive development of the American Convention on Human Rights.”
Article 34:“The Member States agree that equality of opportunity, the elimination of extreme poverty, equitable
distribution of wealth and income and the full participation of their peoples in decisions relating to their own development are,
among others, basic objectives of integral development. To achieve them, they likewise agree to devote their utmost efforts
to accomplishing the following basic goals:
a) Substantial and self-sustained increase of per capita national product;
b) Equitable distribution of national income;
c) Adequate and equitable systems of taxation;
d) Modernization of rural life and reforms leading to equitable and efficient land-tenure systems, increased agricultural
productivity, expanded use of land, diversification of production and improved processing and marketing systems for
agricultural products; and the strengthening and expansion of the means to attain these ends;
e) Accelerated and diversified industrialization, especially of capital and intermediate goods;
f) Stability of domestic price levels, compatible with sustained economic development and the attainment of social justice;
g) Fair wages, employment opportunities, and acceptable working conditions for all;
h) Rapid eradication of illiteracy and expansion of educational opportunities for all;
i) Protection of human potential through the extension and application of modern medical science;
j) Proper nutrition, especially through the acceleration of national efforts to increase the production and availability of food;
k) Adequate housing for all sectors of the population;
l) Urban conditions that offer the opportunity for a healthful, productive, and full life;
m) Promotion of private initiative and investment in harmony with action in the public sector; and
n) Expansion and diversification of exports.”
Article 45: “The Member States, convinced that man can only achieve the full realization of his aspirations within a just social
order, along with economic development and true peace, agree to dedicate every effort to the application of the following
principles and mechanisms:
a) All human beings, without distinction as to race, sex, nationality, creed, or social condition, have a right to material wellbeing and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic
security;
135