5
expresses, and the debates that have arisen based on its provisions. Despite that intention, it is
clear that the validity and obligatory nature of a norm cannot depend on whether it is mentioned
in any specific judgment. In other words, even if the intention is to omit it, this does not in the
least affect its existence or binding nature.
c) Evolutive interpretation and pro persona principle
21.
The idea of overcoming the problems of the justiciability of the ESCR based on an evolutive
and supposedly “pro persona” interpretation of Article 26 of the ACHR has been a constant for
those who support this thesis. However, this claim entails a basic problem, because it fails to take
into account that, to interpret a treaty correctly, it is necessary to have recourse to other methods
of interpretation that exist in international law, because the evolutive method is not the only one
that should be taken into consideration.
22.
Regarding methods of interpretation that should be taken in account, Articles 31 and 32
of the Vienna Convention on the Law of Treaties establish the main methods. The Inter-American
Court has incorporated these into its case law;12 thus, in addition to the evolutive method, it has
used other interpretation criteria such as literal interpretation, systematic interpretation, and
teleological interpretation.
23.
In this regard, it should be pointed out that, to interpret a norm, it is not sufficient to use
just one of the different methods of interpretation that exist, because these methods are
complementary and all of equal rank. Indeed, in the aforementioned concurring opinion, I
analyzed13 Article 26 of the ACHR based on all the methods of interpretation, and this revealed
that it does not permit a direct justiciability of the ESCR, because the jurisdiction of the InterAmerican Court in this regard is regulated by Article 19(6) of the Protocol.
24.
Consequently, this point is also fairly controversial in the instant judgment because it
merely uses one method of interpretation, disregarding one of the most basic rules of public
international law, which is the Vienna Convention on the Law of Treaties. In addition, it does not
explain or argue why it seeks to make an interpretation of the treaty using a single methodology.
Moreover, this is unusual for the Inter-American Court which, on different occasions, has made
interpretations based on all the methods established.
25.
Lastly, I stress that this case does not include an interpretation that provides the most
protection for the norm that permits the application of the pro persona principle. This is because
the pro persona principle should be applied when the Court is faced with two possible
interpretations that are both valid and correct. Specifically what I have demonstrated is that the
direct justiciability of the ESCR using Article 26 of the Convention is not a valid interpretation
because the intention is to derive a normative principle that does not correspond to the norm. 14
In other words, the pro persona principle cannot be used to validate an interpretive option that
does not emanate from the norm and that, to the contrary, entails its modification.
C. LACK OF PERTINENCE OF THE SPECIFIC CASE
26.
Having described my general arguments in this matter, I will now present the reasons why
I considered that this case, in particular, possessed various complex features that meant that it
A good example of the correct use of the methods of treaty interpretation can be found in Advisory Opinion No.
21 on the Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System.
12
13
In this regard, concurring opinion, Case of González Lluy et al. v. Ecuador, paras. 23 to 28.
Similarly, see: Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objections, merits, reparations and
costs. Judgment of November 16, 2009. Series C No. 205, para. 78.
14