46
American Convention constitute, ultimately, the basis for determining a State’s international
responsibility for violations of the rights recognized in the Convention, 180 including those recognized
under Article 26. However, the American Convention itself explicitly refers to the general rules of
international law for its interpretation and application, specifically through Article 29, which
establishes the pro personae principle.181 Thus, as has been the consistent practice of this Court,182
when determining the compatibility of a State’s acts and omissions, or of its norms, with the American
Convention or other treaties over which it has jurisdiction, it is able to interpret the corresponding
obligations and rights in light of other pertinent treaties and norms.
175. Accordingly, the Court will use the sources, principles and criteria of the international corpus
iuris as special rules that are applicable in determining the content of the right to social security. The
Court advises that these norms will be used to supplement the provisions of the American
Convention, and affirms that is not assuming a jurisdiction over some treaties that it does not have,
nor is it granting Convention status to norms contained in other national or international instruments
related to ESCER.183 On the contrary, the Court will make an interpretation pursuant to the standards
established in Article 29, and its own case law, in order to update the meaning of the rights derived
from the OAS Charter that are recognized by Article 26 of the Convention. The determination of the
right to social security will place special emphasis on the American Declaration, given that this Court
has established that:
[…] the Member States of the Organization have signaled their agreement that the
Declaration contains and defines the fundamental human rights referred to in the
Charter. Thus, the Charter of the Organization cannot be interpreted and applied as
far as human rights are concerned without relating its norms, consistent with the
practice of the organs of the OAS, to the corresponding provisions of the
Declaration.184
176. Similarly, this Court has indicated on other occasions that human rights treaties are living
instruments, the interpretation of which must accompany the evolution of the times and current
living conditions. An evolving interpretation is consistent with the general rules of interpretation
established in Article 29 of the American Convention, as well as in the Vienna Convention.185 In
180
Cf. Case of the "Mapiripán Massacre" v. Colombia. Judgment of September 15, 2005. Series C No. 134, para. 107, and
Case of Cuscul Pivaral et al. v. Guatemala, supra, para. 100.
181
Cf. Case of the Pacheco Tineo Family v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of
November 25, 2013. Series C No. 272, para. 143, and Case of Cuscul Pivaral et al. v. Guatemala, supra, para. 100.
182
Cf. Case of Poblete Vilches et al. v. Chile, supra, para. 103; Case of Lagos del Campo v. Peru, supra, para. 145; Case
of I.V. v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of November 30, 2016. Series C No. 329,
para. 168; Case of the Pacheco Tineo Family v. Bolivia, para. 129; Case of Atala Riffo and Daughters v. Chile. Merits,
reparations and costs. Judgment of February 24, 2012. Series C No. 239, para. 83; Case of Gelman v. Uruguay. Merits and
reparations. Judgment of February 24, 2011. Series C No. 221, para. 78 and 121, and Case of Cuscul Pivaral et al. v.
Guatemala, supra, para. 100.
183
Cf. Case of the Pacheco Tineo Family v. Bolivia, supra, para. 143 and Case of Cuscul Pivaral et al. v. Guatemala, supra,
para. 101.
184
Cf. Interpretation of the American Declaration on the Rights and Duties of Man within the Framework of Article 64 of
the American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para. 43, and Case
of Cuscul Pivaral et al. v. Guatemala, supra, para. 101.
185
Cf. The Right to Information on Consular Assistance within the Framework of the Guarantees of the Due Process of
Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 114, and The institution of asylum, and its
recognition as a human right under the Inter-American System of Protection (interpretation and scope of Articles 5, 22(7)
and 22(8) in relation to Article 1(1) of the American Convention on Human Rights). Advisory Opinion OC-25/18 of May 30,
2018. Series A No. 25, para. 137.