THE AMERICAN CONVENTION AND THE PROTOCOL OF SAN SALVADOR:

TWO INTERTWINED TREATIES NON-ENFORCEABILITY OF ECONOMIC, SOCIAL AND

RIGHTS IN THE INTER-AMERICAN SYSTEM

OswALDO R. Rmz-CHIRIBOGA*

article discusses the direct enforceability of economic, social, and cultural

rights in the Inter-American System, also called 'the direct approach: It starts

presenting two apparent conflicts between certain provisions of the American

Com1ention on Human Rights ("the Convention") and the Protocol of San Salvador

Protocol") related to the ESC rights recognised in Article 26 of the Convention and

mechanisms of protection of such rights. The author concludes that ESC rights were

· n.ever intended to be directly enforceable before the Inter-American System and therefore

direct approach is not feasible, except for the right to unionisation and the right to

education, the only rights expressly conceived as directly enforceable by the Protocol.

The recent decision of the Inter-American Court of Human Rights in Acevedo-Buendfa

et al. v. Peru is also studied. The Court declared that it has contentious jurisdiction over

alleged violations of ESC rights, but it took no notice of the Protocol. This ar.ticle stresses

that every interpretation on ESC rights in the Inter-American System must not ignore

the Protocol of San Salvador.

Keywords: conflicts of norms; economic, social and cultural rights; enforceability of rights; Inter-American Court; interpretation of treaties; Protocol of San Salvador

Doctoral researcher, Human Rights Centre, Ghent University; LLM in International Human Rights and Criminal Justice {Utrecht University); LLM in International Criminal Law {Granada University); Postgraduate Degree in Legal Argumentation (Alicante University); Postgraduate Degree in Human Rights {Andean University Sim6n Bolfvar); Postgraduate Degree in Human Rights and Democracy {Pontifical Catholic University of Ecuador); former Senior Staff Attorney of the Inter-American Court of Human Rights. I am indebted to Alvaro PaUl D:iaz and to the three blind reviewers of this journal for their helpful comments and editorial review. Of course, I assume personal responsibility for any remaining errors. Email: Oswaldo.RuizChiriboga@UGent.be; Blog (on the Inter-American Court): http://corteidhblog.blogspot.com.

I Osw,ldo R. Ruiz-Chicibog"

1. INTRODUCTION

The Inter-American System (lAS) has three main instruments related to economic social, and cultural (ESC) rights: the American Declaration of the Rights and Duties of Man (the Declaration), 1 the American Convention on Human Rights (the Convention or ACHR),2 and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as the 'Protocol of San Salvador' (the Protocol or PSS). 3

The Declaration was adopted by the Organization of American States (OAS) in 1948. This instrument set forth a series of fundamental human rights with no distinction between civil and political rights, and ESC rights. The Convention was adopted in 1969, in San jose, Costa Rica. So far 23 of 35 OAS Member States have ratified it4 While the Convention provided treaty-level protection to principles previously contained in the Declaration, it also reduced the entire topic of ESC rights to a single provision: Article 26. This article provides:

The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means,

the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States [ ... ].

The Protocol was adopted in San Salvador, El Salvador, in 1988. So far 16 State Parties in the Convention have ratified the Protocol. 5 This instrument protects a number of ESC rights," but according to Article 19(6) PSS, only violations of the right to unionisation (Article 8(1)(a) PSS), and the right to education (Article 13 PSS) may

160

Organization of American States, American Declaration of the Rights and Duties of Man, OAS Res. XXX (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS Doc. OAS/Ser.L/V/1.4 rev. 13 (2010).

Organization of American States, American Convention on Human Rights, 22 November 1969, 1144 UNTS 123.

Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area ofEconomic, Social, and Cultural Rights "Protocol of San Salvador", 17 November 1988, OAS Doc. 0AS/Ser.L/V/I.4 rev. 13.

The States that have ratified the ACHR are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay. Trinidad and Tobago and Venezuela were States Parties to the Convention, but they later denounced it.

The States that have ratified the Protocol are: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam, and Uruguay.

The rights protected are: right to work (Art. 6); just, equitable and satisfactory conditions of work (Art. 7); trade union rights (Art. 8); right to social security (Art. 9); right to health (Art. 10); right to a healthy environment (Art. 11); right to food (Art. 12); right to education (Art. 13); right to benefits

Intersentia

The Amedcon Convention "nd the Protocol of s,n s,[v,doc I

give rise, through participation of the Inter-American ComJ?ission of Human Rights Commission or IAComHR) and, when applicable, of the Inter-American Court

· of Human Rights (the Court or IACtHR), to application of the system of individual petitions governed by the Convention. In other words, the Protocol only gives jurisdiction ratione materiae to the Commission and the Court over two ESC rights_ As Cavallaro and Schaffer assert, '[t]he negative inference of the language used in Article 19 is that the violation of other rights enshrined in the Protocol does not give rise to the right of petition to the [IAS]'.7

Nevertheless, some scholars argue that Article 26 ACHR is directly applicable to any ESC rights violation, and the limitation set by Article 19(6) PSS shall not alter this possibility. 8 This has been called the 'direct

of culture (Art. 14); right to the formation and the protection of families (Art. 15); rights of children (Art. 16); protection of the elderly (Art. 17); and protection of the handicapped (Art. 18). Cavallaro, J. L. and Schaffer, E., 'Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas', Hastings Law Journal, Vol. 56,2005, pp. 217-281, at'227. Center for Justice and International Law (CEJIL), La protecci6n de los derechos econ6micos, sociales y culturales y el Sistema Interamericano [The Protection of Economic, Social, and Cultural Rights and the Inter-American System], CEJIL, San Jose, 2005; Inter-American Institute ofHuman Rights (IIHR}, La justiciabilidad directa de los derechos econ6micos, sociales y culturales ['The direct justiciability of Economic, Social, and Cultural Rights], IIHR, San Jose, 2008; Abramovich, V. and Rossi, J., 'La Tutela de los Derechos Econ6micos, Sodales yCulturales en el Artfculo 26 de la Convenci6n Americana sabre Derechos Humanos' [1he Protection of Economic, Social, and Cultural Rights in Article 26 of the American Convention on Human Rights], Estudios Socio-Jurfdicos, Vol. 9, 2007, pp. 34-53; Aguilar­Cavallo, G., 'La Corte Interamericana de Derechos Humanos y los derechos sociales' [The Inter­American Court of Human Rights and Social Rights], Revista Iberoamericana de Derecho Procesal Constitucional, Vol. 13,2010, pp. 3-60; Courtis, C., 'La protecci6n de los derechos econ6micos, sociales y culturales a traves del articulo 26 de la Convenci6n Americana sabre Derechos Humanos' [The Protection of Economic, Social, and Cultural Rights Through Article 26 of the American Convention on Human Rights], in: Ferrer Mac-Gregor, E. and Zaldivar Lelo de Larrea, A. (eds.), La ciencia del derecho procesal constitucional. Estudios en homenaje a H&tor Fix-Zamudio en sus cincuenta afws como investigador del Derecho [The Science of Constitutional Procedural Law: Studies in Honour of Hector Fix-Zamudio in his Fifty Years as Legal Researcher], Vol. IX, UNAM, Mexico, 2008, pp. 361-438; Melish, T., La protecci6n de los derechos econ6micos, sociales y culturales en el Sistemt;tlnteramericano de Derechos Humanos: Manual para Ia presentaci6n de casas [The Protection ofEconomic, Social, and Cultural Rights in the Inter-American System of Human Rights: A Handbook for B~inging Cases], Yale-Law School/CDES, Quito, 2003; Melish, T, 'Rethinking the Less as More Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas', New York University journal of International Law and Politics, Vol. 39, 2006-2007, pp. 171-343; Melish, T., 'Counter-Rejoinder: Justice vs. Justiciability: Normative Neutrality and Technical Precision, the--Role of the Lawyer in Supranational Social Rights Litigation', New York University Journal oflnternational Law and Politics, Vol. 39,2006-2007, pp. 385-415; Melish, T., 'The Inter-American Court of Human Rights: Beyond Progressivity', in: Langford, M. (ed.), Social Rights jurisprudence: Emerging Tretids in Comparative and International Law, Cambridge University Press, New York, 2008, updated version available at http:/!ssrn.coln/abstract""1000265; Parra Vera, 0., 'Notas sobre acceso ala justicia y derechos sociales en el Sistema Interamericano de Derechos Humanos' [Notes on Access to Justice and Social Rights in the Inter-American Human Rights System], Inter-American Institute of Human Rights Journal, Vol. 50, 2009, pp. 131-157; Parra Vera, 0., La justiciabilidad de los derechos econ6micos, sociales y culturales ante el Sistema lnteramericano [The Justiciability of Economic, Social, and Cultural Rights in the Inter-American System], Comisi6n Nacional de los Derechos Humanos, Mexico, 2011; Urquilla, C., 'Los derechos econ6micos, sociales y culturales en el contexto de Ia reform a al sistema interamericano de protecci6n de los derechos humanos' [Economic, Social, and Cultural Rights in the Context of the

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approach '9 Critics to this approach counter by arguing that Article 26 ACHR does not recognise individual, immediately justiciable rights, and Article 19(6) PSS, in conjunction with the terms of the Convention, 'leads to the conclusion that the American States drafting those two instruments did not intend to authorise the Court to adjudicate petitions alleging ESC rights abuse through article 26'. 10

The case-law of the Court regarding Article 26 ACHR has not been consistent over the years, l1 and until recently no State Party has challenged the jurisdiction of the Court regarding ESC rights claims under Article 26 ACHR. The situation changed in the case Acevedo-Buendfa et al. v. Peru.l 2 The Government objected to

ll

n

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Reform of the Inter-American System of Human Rights], Inter-American Institute of Human Rights Journal, Vol. 30-31, 2000, pp. 259-281.

This paper will not discuss other approaches to the enforceability of ESC rights, such as: the so-called indirect approach, which uses the procedural rules (Arts. 8 and 25 ACHR) or the right to equal protection (Art. 24 ACHR) to allege violations of ESC rights (CEJIL, La protecci6n de los derechos econ6micos, sociales y culturales, op.cit. note 8; Melish, La protecci6n de los derechos econ6micos, sociales y culturales, op.cit. note 8; Burgorgue-Larsen, L., 'Economic and Social Rights', in: Burgorgue-Larsen, L. and Obeda De Torres, A. (eds.), The Inter-American Court of Human Rights: Case Law and Commentary, Oxford University Press, New York, 2011, pp. 613-640); the so-called integration approach or elements approach, where economic, social, and cultural 'elements' of rights traditionally understood as civil and political are considered integral components of these rights (CEJIL, La protecci6n de los derechos econ6micos, sociales y culturales, op.cit. note 8; Melish, La protecci6n de los derechos econ6micos, sociales y culturales, op.cit. note 8; Cavallaro and Schaffer, loc.cit. note 7; SalmOn, E., Los derechos econ6micos, sociales y culturales en el Sistema Interamericano: El articulo 26 de Ia Convenci6n Americana sabre Derechos Humanos y el camino hacia una lectura social de los derechos civiles y politicos [Economic, Social, and Cultural Rights in t")le Inter-American System: Article 26 of the American Convention on Human Rights and the Path to a Social Reading of Civil and Political Rights], GTZ, Lima, 2010; Salvioli, F., 'La protecci6n de los derechos econ6micos, sociales y culturales en el Sistema Interamericano de derechos humanos' [The Protection of Economic, Social, and Cultural Rights in the Inter-American System of Human Rights], Inter-American Institute of Human Rights Journal, Vol. 39, 2004, pp. 101-168; Ventura-Robles, M.E., 'Jurisprudencia de la Corte lnteramericana de Derechos Humanos en materia de derechos econ6micos, sociales y culturales' [Case-Law of the Inter-American Court of Human Rights on Economic, Social, and Cultural Rights], Inter-American Institute of Human Rights Journal, Vol. 40, 2005, pp. 87-131); and the reparation approach, which understands ESC rights as enforceable through the implementation of reparation measures ordered by the Court in contentious cases {Aguilar­Cavallo, loc.cit. note 8; Feria-Tinta, M., 'Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions', Human Rights Quarterly, Vol. 29, 2007, pp. 431-459).

Cavallaro, J. L. and Schaffer, E., 'Rejoinder: Justice before Justiciability: Inter-American Litigation and Social Change', New York University Journal of International Law and Politics, Vol. 39, 2006-200"pp.345-383,at362.

Burgorgue-Larsen, loc.cit. note 9; Krsticevic, V., 'La tutela de los derechos sociales en el Sistema Interamericano' [The Protection of Social Rights in the Inter-American SystemJ, in: Ely Yamin, A. (ed.), Los derechos econ6micos, sociales y culturales en America Latina [Economic, Social, and Cultural Rights in Latin-America], APRODEH, Mexico, 2006, pp. 171-191.

IACtHR, Acevedo Buendia et al. ("Discharged and Retired Employees of the Office of the Comptroller") v. Peru, 1 July 2009, Series C No. 198.

Intersentia

The Americon Convention and the Protocol of San Salvador I

the Court's jurisdiction ratione materiae concerning the_ applicants' claims under this provision, pointing out that the Court lacked competence in matters concerning the alleged violation to the right to social security, since this right is not enshrined in the Convention and it is not even one of the two rights that would be actionable before the lAS in accordance with Article 19(6) PSS. The Court asserted that the broad wording of the Convention indicates that according to Article 62(1) ACHR 13

it has full jurisdiction over all matters pertaining to its articles and provisions. The Court ignored completely the Protocol, focusing only on the Convention. This article questions the Court's decision. It argues that the Protocol should not be ignored. Every interpretation and application of ESC rights in the lAS must take into account both treaties, the Convention and the ProtocoJ.l4 Otherwise the analysis would he incomplete and will definitely contradict the State Parties' consent, undermining the

legitimacy of the Commission or the Court. The analysis will be divided in five sections. Section 1 will study the relationship

between the Protocol and the Convention. After outlining the relevant provisions of the Convention and the Protocol, Section 2 will identify two types of conflict of norms that seem to arise from the wording of these treaties: one related to the rights protected and the other one related to the jurisdiction of the lAS bodies. Section 3 will try to solve both conflicts by using the tools set forth in the Vienna Convention on the Law of Treaties (VCLT).lS In Section 4 the Court's decision in Acevedo-Buendia et al. v. Peru will be analysed taking into consideration how the conflicts were solved in the previous section. Finally, Section 5 will conclude that the Protocol is an integral part of the !AS that cannot and should not be ignored by the Commission or the Court.

2, THE RELATIONSHIP BETWEEN THE PROTOCOL AND THE CONVENTION

Supporters of the direct approach argue that the Protocol is an 'entirely separate treaty [whose] primary value [ ... ] in the individual petitions process [ ... ]lies in its fleshing-out, in binding treaty form, of the rights to which American States have previously committed in other less precisely-worded instruments, particularly the American Convention'.l6 This argument does not conform to theVCLT. Pursuant to Article 2(1)(a) VCLT, 'treaty' means 'an international agreement concluded between

13 Art. 62(1) ACHR provides that: 'A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention'.

14 I am not going to analyze the jurisdiction ratione materiae of the Commission to directly apply the ESC rights provisions of the American Declaration to individual petitions against OAS Member States that have not ratified the Convention.

15 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 16 Melish, 'Rethinking the Less as More Thesis', loc.dt. note 8, at pp. 225 and 234.

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States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation'. A treaty text, in the sense of the Vienna Convention, is not necessarily tantamount to one instrument. Linderfalk gives as an example the agreement concluded by Yugoslavia and Romania on 31 November 1963. The agreement contains a specific provision stating that a multiplicity of instruments shall constitute a single unit. Within the scope of the one single treaty, it is possible to count one Agreement, five Conventions, four of which with Annexes added, one Charter, two Protocols, both with Annexes and one with an Addendum, as well as two Echanges des Lettres.17

Linderfalk recognises that it is not always easy to determine whether two instruments shall be considered as integral parts of a single treaty, or whether they shall be considered as two separate treaties. In the agreement between Yugoslavia and Romania cited above it was easy to determine that all those instruments shall be considered a single treaty, because there is a provision that expressly states that. However, two international instruments are not necessarily to be considered as two separate treaties, just because it is not stated that they are to be considered as an integrated whole. 'The ultimate determining factors for the relationship between two instruments are the intentions of their parties'.18 Even though the Protocol of San Salvador does not contain a specific provision saying that it is an integral part of the Convention, that conclusion could be reached by its name and preamble.l9 The Protocol is not just another treaty in the lAS; it is an 'Additional Protocol to the American Convention', adopted only by the State Parties to the Convention. It also makes direct reference to Article 77(1) ACHR which allows State Parties to submit proposed protocols to the Convention. 20 This relationship was the understanding of the Court when it submitted to the OAS its observations on the Draft Protocol. According to the Court, if the idea was to include other rights in the protection regime of the Convention, it would need to be done through the adoption of an additional protocol and not through a separate convention.2I

t7

'" l9

20

"

164

Linderfalk, U., On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties, Springer, Dordrecht, 2007, at p. 104. Idem.

Gautier indicates that the title given to an instrument may in some cases clarify its nature, 'as an element, among others, indicating the intention of its authors' (Gautier, P., 'Article 2: Use of Terms', in: Corten, 0. and Klein, P. (eds.), The Vienna Convention on the Law of Treaties: A Commentary, Oxford University Press, New York, 2011, pp. 33-56, at p. 38).

Art. 77(1) ACHR provides: 'In accordance with Article 31, any State Party and the Commission may submit proposed protocols to this Convention for consideration by the States Parties at the General Assembly with a view to gradually including other rights and freedoms within its system of protection.' Art. 31 ACHR provides: 'Other rights and freedoms recognized in accordance with the procedures established in Articles 76 and 77 may be included in the system of protection of this Convention.'

IACtHR, Annual Report 1986, App. IV, 29 August 1986, OAS Doc. OEA/Ser.L/V/III.l5 doc. 13.

Intersentia

The Ame>ican Convention 'nd the Pmtocol of San Salvador I

In the European system of human rights, the European Convention of Human Rights and its Protocols have been read as a whole.22 This amounts to say that 'the European Convention and its protocols are to be considered as together forming the text of one single treaty'.''The very same conclusion could be applied in the lAS. The intention of the State Parties to the Convention was to adopt another instrument -the Protocol - for the purpose of incorporating other rights and freedoms into the protective system of the Convention and to enhance that system of protection.

Accordingly, when appliers, pursuant to Article 31 VCLT, interpret an ESC right provision, they must follow the general rule of interpretation embodied in Article 31 VCLT, which provides that '[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'. The first step, therefore, is to analyse the ordinary meaning of the relevant provision. If the ordinary meaning is either vague or ambiguous or leads to conflicting results, it must then be supplemented by additional means of interpretation, such as the context. Pursuant to Article 31(2) VCLT, the context for the purpose of the interpretation of a treaty shall comprise, inter alia, the 'text, including its preamble and annexes'. The 'text' of a treaty, pursuant to Article 2(1)(a) VCLT, consists of any and all instruments of which the treaty can be considered comprised. In the !AS the relevant 'text' on ESC rights is comprised not only by the American Convention, but also the Protocol of San Salvador. The Protocol is an integral part of the Convention and must be read together with it. The next section will further address this relationship.

3. THE ORDINARY MEANING OF THE CONVENTION AND THE PROTOCOL

Article 26 ACHR provides that State Parties undertake to adopt measures with a view to achieving progressively the full realisation of the rights implicit in the Charter. This Article is under Chapter III ('Economic, Social and Cultural Rights') of Part I of the Convention. Part I is entitled 'State Obligations and Rights Protected'. If one has to start from the assumption that the State Parties intended to use uniform terms in a uniform meaning throughout the Convention, 24 it could be deducted that the term 'rights' in Article 26 ACHR has the same meaning as the ones used by other

23

ECtHR, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985 (Appls.nos. 9214/80,9473/81, 9474/81), at para. 60; ECtHR, Case "relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium, 23 July 1968 (appls.nos. 1474/62, 1677/62, 1691/62, 1769/63 1994/63, 2126/64), at para. 7; ECtHR, Kjeldsen, Busk Madsen and Pedersen v. Denmark,

7 December 1976 (Appls.nos. 5095/71, 5920/72, 5926/72), at para. 52.

Linderfalk, op.cit. note 17, at p. 121. Haraszti, G., Some Fundamental Problems of the Law of Treaties, Akademiai Kiad6, Budapest, 1973,

atp. 108.

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Convention provisions. Hence, the ordinary meaning of the terms of Article 26 ACHR lead to the following conclusion: (Conclusion A) Article 26 ACHR contains rights.

Regarding the system of protection of the ESC rights contained in Article 26 ACHR, Article 42 ACHR provides that:

The State Parties shall transmit to the Commission a copy of each of the reports and studies that they submit annually to the Executive Committees of the Inter­American Economic and Social Council and the Inter-American Council for Education, Science, and Culture, in their respective fields, so that the Commission may watch over the promotion of the rights implicit in 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.

The term 'watch over' is not defined in Article 42 ACHR, but Article 41 ACHR includes a number of functions and powers of the Commission, including taking action on petitions and other communications. 25 Article 41 ACHR makes no distinction between the rights contained in Part I, Chapter II of the Convention ('Civil and Political Rights'), and the ones implicit in Article 26 ACHR, the lonely provision in Chapter III ('Economic, Social, and Cultural Rights'). No distinction could be found either in other provisions that describe the procedure to be followed in individual petitions or define the jurisdiction of the Commission and the Court.26 These norms

26

166

Art. 41 ACHR provides: 'The main function of the Commission shall be to promote respect for and defense of human rights. In the exercise of its mandate, it shall have the following functions and powers: a. to develop an awareness of human rights among the peoples of America; b. to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights; c. to prepare such studies or reports as it considers advisable in the performance of its duties; d. to request the governments of the member states to supply it with information on the measures adopted by them in matters ofhuman rights; e. to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory services they request; f. to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through 51 of this Convention; and g. to submit an annual report to the General Assembly of the Organization of American States.'

Art. 44 ACHR allows the lodging of petitions with the Commission 'containing denunciations or complaints of violation ofthis Convention by a State Party'; Article 45 ACHR stipulates that a State Party may submit communications alleging that another State Party 'has committed a violation of a human right set forth in this Convention'; Art. 47(b) ACHR mandates the Commission to consider inadmissible any petition or communication submitted if it 'does not state facts that tend to establish a violation of the rights guaranteed by this Convention'; Art. 48(l)(f) ACHR provides that when the Commission receives a petition or communication alleging violation of 'any of the rights protected by this Convention', it shall place itself at the disposal of the parties concerned with a view to 'reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention'; Art. 63(1) ACHR provides that if the Court 'finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated'; finally Art. 62(1) ACHR

Intersentia

The Amedcan Convention and the Pmtocol of San Salvador I

seem to suggest the following conclusion: (Co,;clusion B) the Commission may 'watch over' the promotion of ESC rights implicit in Article 26 ACHR by a number of measures, including taking action on individual petitions and submitting a case to the Court.

Conclusions (A) and (B) seem to supportthe position of the defenders of the direct approach when they argue that the literal interpretation of the Convention grants subject-matter jurisdiction to the Commission and the Court regarding individual petitions for alleged violations of any ESC right implicit in Article 26 ACHR. However, supporters of the direct approach pay little attention to the following provisions of the

Convention and the Protocol. Pursuant to Article 31 ACHR, '[o]ther rights and freedoms recognized in

accordance with the procedures established in Articles 76 and 77 may be included in the system of protection of this Convention'. Article 77(1) ACHR provides that 'any State Party and the Commission may submit proposed protocols to this Convention for consideration by the States Parties at the General Assembly with a view to gradually including other rights and freedoms within its system of protection'. The Preamble of the Protocol makes direct reference to these articles. 27

If the Protocol was adopted in order to include other rights and freedoms, then the rights and freedoms included by the PSS were not recognised in the Convention and they were not 'within its system of protection'. If those rights and freedoms were already in the Convention, the States Parties would have preferred to amend the Convention to complement or expand the scope of such rights.28 The sole idea of a 'protocol', pursuant to Article 77 ACHR, means inclusion. On the contrary, the ordinary meaning of the term 'amendment' denotes the improvement or revision of a text. Therefore, the literal reading of these norms may lead to the following conclusion: (Conclusion C) Article 26 ACHR does not contain the rights included by the Protocol.

Finally, Article 19(6) PSS clearly states that only two ESC rights are directly justiciable in the lAS: the right to unionisation and the right to education. No further interpretation is needed to conclude: (Conclusion D) with the exception of two rights,

ESC rights are not directly enforceable in the IAS. The literal interpretation of the relevant provisions of the Conventioa and the

Protocol seems to lead to two conflicting results: if Conclusion A (Article 26 ACHR

provides that a State Party may declare 'that it recognizes as binding, ipso facio, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention'.

27 The relevant section of the Preamble of the Protocol reads as follows: 'Considering that the American Convention on• Human Rights provides that draft additional protocols to that Convention may be submitted for consideration to the States Parties, meeting together on the occasion of the General Assembly of the Organization of American States, for the purpose of gradually incorporating other rights and freedoms into the protective system thereof, Have agreed upon the following Additional Protocol to the American Convention on Human Rights "Protocol of San Salvador"'.

28 Art. 76(1) ACHR provides that: 'Proposals to amend this Convention may be submitted to the General Assembly for the action it deems appropriate by any State Party directly, and by the Commission or the Court through the Secretary General.'

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contains rights) is true, Conclusion C (Article 26 ACHR does not contain the rights included by the Protocol) maybe false, or vice versa; and if Conclusion B (the Commission may 'watch over' the promotion of ESC rights implicit in Article 26 ACHR by a number of measures, including taking action on individual petitions and submitting a case to the Court) is true, Conclusion D (with the exception of two rights, ESC rights are not directly enforceable in the IAS) is false, or vice versa. It is important to emphasise that Conclusions A and C are related to the rights protected, while Conclusions B and D are related to the ratione materiae jurisdiction of the lAS bodies. This article will refer to the first conflict as <rights-based conflict', and the second one as 'jurisdiction-based conflict'. In the next section this article will offer some solutions to both conflicts.

4. SOLVING THE CONFLICTS

The first step to solve conflicts between norms is verifying whether the treaties have a conflict-resolving clause.29 Such a clause is present in the Convention and also in the Protocol. Pursuant to Article 29 ACHR:

No provision of this Convention shall be interpreted as:

a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;

c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

d. excluding or limiting the effect that the American Declaration of the Rights

and Duties of Man and other international acts of the same nature may have.

Article 4 PSS establishes that:

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168

A right which is recognized or in effect in a State by virtue of its internal legislation or international conventions may not be restricted or curtailed on the pretext that this Protocol does not recognize the right or recognizes it to a lesser degree.

Pursuant to Art. 30(2) VCLT 'When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail'. See also Sadat-Akhavi, S.A., Methods of Resolving Conflicts Between Treaties, Martinus Nijhoff, Leiden/Boston, 2003.

Intersentia

The American Convention and the Protocol of San Salvador I

1hese two norms, however, are not applicable to both conflicts analysed here. Article 4 PSS assumes that a right must be recognised in other international conventions and this is precisely the fact that is in dispute in the 'rights-based conflict': whether or not the Protocol is including rights that were not in the Convention. On the other hand, Article 4 PSS indicates that a 'right' may not be restricted, but it does not grant jurisdiction to the Commission or the Court to declare a violation of the provision that recognises that right. Similarly, Article 4 PSS cannot be interpreted as if it is prohibiting the use of Article 19(6) PSS 'as a pretext to limit or restrict the adjudicability of the rights consecrated in Convention Article 26'30 Accepting that Article 4 PSS 'cancels' the purpose of Article 19(6) PSS would mean that the States had two contradictory aims when they adopted the Protocol: (i) not to limit the jurisdiction of the lAS bodies (Article 4 PSS), and (ii) to limit the jurisdiction of the lAS bodies (Article 19(6) PSS). This is a false conflict, since another interpretation, more natural and :fitted to the

ordinary meaning of the terms is possible. Article 4 PSS commands that a right or its scope cannot be limited on the pretext of the Protocol, but it is silent in respect to the jurisdiction of the lAS bodies. The specific provision or lex specialis that expressly deals with jurisdictional issues is Article 19 PSS, which in its paragraph 6 limits the jurisdiction ratione materiae of the Commission and the Court.

This conclusion cannot be overthrown by the pro homineprinciple or the principle of the most favourable rule for protection of human rights, that has been developed under Article 29 ACHR, 31 according to which the Court must turn to the broader standard

or more extensive interpretation when it comes to recognise the rights protected and, inversely, to the narrow standard or interpretation when it comes to set restrictions, limitations, or suspensions of the exercise of rights. 32 The Court has rightly concluded that the pro homine principle cannot be used as a basis for granting jurisdiction when the literal meaning of a norm does not. 33 Similarly, Article 31(1) VCLT states that '[a]

30 Melish, 'Rethinking the Less as More Thesis', loc.cit. note 8, at p. 232.

31 IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights) (Advisory Opinion), 13 November 1985 (Series A No. 5), at para. 52. See also IACtHR, Ricardo Canese v. Paraguay, 31 August 2004 (Series CNo. 111), at paras. 180-181; and IACtHR, Mapiripdn Massacre v. Colombia, 15 September 2005 (Series C No. 134), at para. 106.

32 For the application of the pro homine principle, see Amaya-Villareal, A., :El principia pro homine: Interpretaci6n extensiva vs. el consentimiento del Estado' [The Pro Hoinine Principle: Extensive Interpretation v. the State's Consent], Revista Colombiana de Derecho Internacional, Vol. 5, 2005, pp. 337-380.

33 In the case Gonzdlez et al. v. Mexico, the applicants requested the Court to declare a violation of Art. 9 of the Convention on the Prevention, Punishment and Eradication of Violence against Women, "Convention ofBelCm do Pan'i" (9 June 1994, 33ILM 1534), despite the fact that Art. 12 only grants jurisdiction to the lAS bodies to declare a violation of Art. 7 of this Convention. According to the applicants, the Court had jurisdiction, 'taking into account the "direct relationship" of Article 9 with Article 7 of that Convention, based on a "pro personae interpretation" of Article 12 and on the principle of effectiveness'. The Court ruled that 'the systematic and teleological criteria are insufficient to give them preference over what is clearly indicated by the literal meaning of Article 12 of the Convention of BelCm do Pari, which establishes that the petition system shall

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I Oswaldo R. Ruiz-Chidboga

treaty shall be interpreted in good faith in accordance with the ordinary me'anini to be given to the terms of the treaty in their context and in the light of its and purpose'. It is evident from reading this text that the object and purpose is considered independently of other means of interpretation. The object and ourn,,o. is always used in relation to 'the ordinary meaning'; it is always a second step in interpretation process. According to Linderfalk, what Article 31(1) VCLT says

is not that the terms of a treaty shall be interpreted in the light of its object purpose. What the provision says is that a treaty shall be interpreted «in accordance with the ordinary meaning to be given to the terms of the treaty[ ... ] in the light of its object and purpose". 34

If the ordinary meaning of a provision is clear in not granting jurisdiction to the lAS bodies, the object and purpose of the Convention cannot be used to overthrown that result. Consequently, there is no conflict-resolving clause in the Convention or in the Protocol that could be applied to both conflicts we are analysing here. The interpreter must therefore turn to other tools offered in the VCLT to solve the conflicts.

4.1. RIGHTS-BASED CONFLICT: WHETHER THE PROTOCOL IS INCLUDING RIGHTS THAT THE CONVENTION DOES NOT PROTECT

As seen above, Article 26 ACHR does not recognise directly any right; it makes a referral to the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the OAS Charter. Supporters of the direct approach have inferred virtually all internationally recognised ESC rights through different interpretations of the Charter's provisions. The wording of the Charter is so broad

that its interpreters have read in it whatever they have wanted to read. For instance, the right to health has been inferred from Article 34(i) of the Charter, which declares that one of the goals of the OAS Member States is the 'protection of man's potential through the extension and application of modern medical science'. Since the 'medical science' is related to the right to health, this has been enough to infer this right from the Charter to 'fill' Article 26 ACHR.35 This extreme position has been criticised by Abramovich and Rossi, who warned about the 'temptation' to introduce through Article 26 ACHR 'a complete catalogue of social rights that States obviously did

170

relate exclusively to possible violations of Article 7 of the Convention. In this regard, the Court underscores that the principle of the most favourable interpretation cannot be used as a basis for an inexistent normative principle' {IACtHR, Gonzdlez et al. {'Cotton Field) v. Mexico, 16 November 2009 (Series C No. 205), at paras. 78-79).

Linderfalk, op.cit. note 17, at. p. 203 (emphasis in the original).

Courtis, loc.cit. note 8; Melish, 'La protecciOn de los derechos econ6micos, sociales y culturales', loc. cit. note 8; Parra Vera, 'Notas sobre acceso ala justicia y derechos sociales', loc.cit. note 8.

Intersentia

The Amedcan Convention and the Protocol of San Salvador I

intend to incorporate in the Convention's system, designed primarily for the ·ot<,cti.on of civil and political rights'. 36

problem continues wh~n supporters of the di~ect approach try to gi~e

content to the relevant ESC right that has been mferred. The textual basrs b the Charter is in most cases insufficient to determine what the ESC right

~n,<i.<it>ny commands, permits, or prohibits, or the specific obligations that must been by the States. To give content to the identified right, interpreters seek other Usually these sources are the American Declaration and the Protocol, but

authors37 also include the International Covenant on Economic, Social, and JUltura1 Rights; the Convention on the Rights of the Child; the Convention on the oliJniJ1ation of All Forms of Discrimination Against Women; general observatwns of

Committee on Economic, Social, and Cultural Rights; UN Special Rapporteurs' ten,ort:s: and UN specialised agencies' guidelines and principles, among others. .

The question that arises here is whether these source~ are clarifyi.ng ~he meanmg Charter's provisions or including new meanings, nghts, or obligations that are

in the Charter. The difference is not futile. Interpretation is the clarification of an : unclear text of a treaty rather than a device for altering the text of a treaty. According

the International Court of justice: '[i]t is the duty of the Court to interpret the . not to revise them'. 38 The text of the treaty is the base but also the limit to its interpreters' activity. If the process of interpretation has followed the applicable ;nternational rules and its results could still be attributed to the text, there would be a 1

genuine interpretation. On the contrary, if the result modifies the text of a norm or if b < • t t' , 39 it includes a new norm, there would e an extreme non-mterpre a ton.

Thus, it is not enough just to infer a right by its name from the Charter, it is also necessary that the Charter provides a minimum content for that right. This minimum content could then be clarified- to a certain extent- by other international

36 Abramovich, and Rossi, loc.cit. note 8, at p. 37 (author's translation; the original in Span~sh re~~s: 'un catalogo complete de derechos sociales que evidentemente los Estados no tuvieron mtennon de incorporar en el sistema de la Convenci6n, diseiiado principalmente para la tutela de derechos civiles y poHticos'). . .

37 CEJIL, La protecci6n de los derechos econ6micos, sociales y culturales, op.;it. note 8; Courtls, loc.nt. note 8.

38 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (~e.cond Phase), ~dvisor~ Opinion, 18 July 1950, ICJ Reports 1950, at p. 229. See also the Separate Opmton of Judge Vm-Gr~ss1 of the Inter-American Court in the case Blanco-Romero et al. v. Venezuela (Order Monitor~ng Compliallce), 22 November 2011, at p. 4: 'the Court is called on to apply and interpret t~e ~onventmn and not to amend it, a function which is the exclusive responsibility of the States Parttes .

39 Malarino, E., 'Activismo judicial, punitivizaci6n y nacionaliza~i6n. :e~denci.a~ antide~o.c~aticas Y antiliberales de la Corte Interamericana de Derechos Humanos [Judicial Activism, Pumhv1sm and Supranationalisation: Antidemocratic and Antiliberal Tendencies of the Inter-American Court of Human Rights], in: Elsner, G. (ed.), Sistema Interamericano de Protecci6n de los.Derechos Huma.nos Y Derecho Penal Jnternacional [Inter-American System of Human Rights ProtectiOn and InternatiOnal Criminal Law], Konrad Adenauer Stiftung, Montevideo, 2011, pp. 25-62, at pp. 33-34.

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I Oswaldo R. Ruiz-Chiriboga

instruments Defi · th . . · nmg e entire content and scope of a right by m mstruments would · . bl I eans of mvana y resu tin a modification of the Charter

Some scholar 40 h . ·

D I . s argue t at smce the Court declared that th

ec aratlon <cant . d d fi e Charter' 41 th . a;ns an e nes the fundamental human rights referred to in

II ' b e m erence shall take into consideration the American lJecJaratiori

as we . A ramovich and Ro . h . h I the 'shortcut' of a r ssi ave ng t y responded that it is necessary to Article 26 ACHR pp; mg directly to the American Declaration. The fact is had wanted to km e;. a referral to the Charter, not to the Declaration. If

rna e are erral to the Declaration they ld h d also suggests that the content of Article 26 AC~R flwotu h alvekone so-'2 LeBlanc th I t A re ec s t e ac of enthusi

e n er- merican States at that time£ t k' asm view, this article 'fails to recognize that :r ~ I~t; clear stand on ESC rights. In his Declaration as human rights and i.t uc ~tg share ~roclatmed tn the American . , recogntzes t e nghts as b · nl . ~ the economic, social and cultural standards elaborated in th:Ir;A~ zhtmpl~c:; th~n:~~~:~~~ ~~:en ~hough it is true that the Declaration should serve to i:t:t:~te £ C arter, when It comes to interpret Article 26 ACHR it b orgotten that this provision d t h , cannot e

Charter and this o f man a est at the first step is to infer the rights from the

Reg~rding the !:r:;go~~:;mot be replacedd by a direct appeal to the Declaration. covenants an soft law standard t 'fill . ' h

inferred into Article 26 ACHR .t. . s 0

m t e rights the Court have no . . . . ' i IS important to recall that: (I) the Commission and

UN treaty bodies, ~~::~t::I::v:: global treaties; (2) the General Observations of the

observations, are not legally bin;in~~ ::~n~~v:~~a:~:mm~~ications and concluding by definition not bindin Gi . . . gm mes and prmc1ples are global covenants and no!~bin:;g ent~re meamng to an ESC right by application of result in a modification of ng ms ~uments or recommendations would not only

soft law at the regionallev~ea~~a:::~:~:ould also be prematurely hardening global outside the region. The OAS States 'd.d g the JUnsdictwn of the lAS over treaties

a local enforcement mechanism for thi ~o~ ~educe the [American Convention] to delegate to the Court the task of ad f e g ~ a Covenants, and they did not simply corpus of soft law texts'.44 op mg w atever standards it chooses from a future

CEJIL, La protecci6n de los derechos econ6m · . note 8; SalmOn, op.cit. note 9. teas, soctales y culturales, op.cit. note 8; Urquilla, loc.cit.

1l IACtHR, Interpretation of the American Declaratio . Framework of Article 64 or the A . C . n of the Rtghts and Duties of Man within the

'J mencan onventton on H R · h (Ad . 1989, (Series A No. 10), at para.

43. uman tg ts visoryOpinion), 14 July

42 Abramovich, and Rossi, loc.cit. note 8, at p. 47. LeBlanc, L., 'The Economic, Social and Cultural . h Its Background', Netherlands Quarter! ifH Rig. ~s Protocol to the American Convention and (emphasis in the original). yo uman Rtg ts, Vol. 10,1992, PP· 130-154, at pp.l37-138

Neuman, G., 'Import, Export, and Regional Cons t . Rights', European Journal oflnternation l L V I en m the Inter-American Court of Human

a aw, o .19,No.1,2008,pp.l01-123,atp.ll5.

172 Intersentia

The American Convention and the Protocol of San Salvador I Regarding the use of the Protocol to give content to the rights inferred from the · a distinction should be made between the States that have ratified it and

that have not. For those States that have not ratified the Protocol, its provisions binding.45 The meaning and scope of the rights recognised in the Protocol

imposed on them. Inferring an ESC right just by its name from the Charter

endowing it entirely with content obtained from the Protocol would simply

>rrnmvettt the consent of the Stales that have not ratified it, imposing on them they did not assume and, as mentioned before, it would also mean a

fio<iification of the Charter. For those States that have ratified the Protocol, even though they agreed on the

'c.o!lte:ntoft:heri!~ht' and the scope of the obligations arising from it, they also stipulated :-:,\, .. tic he IAS bodies have no jurisdiction over any breach of the Protocol, except those (irttentiOJoed in Article 19(6) PSS. Taking the Protocol's provisions that are useful to

give full content to the ESC rights inferred to fill Article 26 ACHR, disregarding at the time the provisions that are not 'useful', would mean treating the Protocol as if

it were a menu, where the interpreter/diner chooses the provision/dish that better fits his or her interests. It would also mean that there are two rights to food, two rights to health, two rights to work, and so on, arising from the same source - the Protocol -but with different protection mechanisms. In the following section, this article will discuss in depth the jurisdictional issues, but for now it can be stressed that this kind

of interpretation would undermine the IAS cohesion. Summarising, Article 26 ACHR makes a referral to the OAS Charter and

the Charter alone. Interpreters should not avoid this step by appealing to other international instruments, including the American Declaration. Interpretation is a tool for clarifying norms rather than altering norms; therefore, it is not enough to infer just the name of an ESC right from the Charter, it is also necessary that the

Charter provides some content to that right. Such minimum content could then be clarified - to a certain extent - using other international instruments, including the Declaration. Giving full content to an ESC right using instruments different from the Charter would imply a modification of the Charter, and depending on the case,

it would also enforce global covenants locally, harden global soft-law, circumvent the

will of OAS Member States, and undermine the cohesion of the lAS. It can be argued that some civil and political rights are also so vaguely defined to

the extent that the !AS bodies had had to 'fill' the right almost. completely by using other international treaties. That is the case, for instance, of the rights of the child. Article 19 ACHR provides that '[e]very minor child has the right to the measures of protectiori required by his condition as a minor on the part of his family, society, and the state'. The Court has borrowed global and European standards as a means of

Art. 34 VCLT provides that: 'A treaty does not create either obligations or rights for a third State

without its consent.'

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I o,waldo R. Ruiz-Chiriboga

providing specificity to this right. 46 However, this position has been criticised in the following terms:

The rapid incorporation of blocks of global hard and soft law into the regional convention spares the Court considerable effort in working out and justifying the consequences of Article 19, and demands major improvements in the conditions suffered by impoverished children in the Americas. In part. this advance may be supported on the ground that all parties to the American Convention have also ratified the Convention on the Rights of the Child. However, that consensual argument would not extend further to the incorporation of non-binding elaborations of CRC provisions or to other soft law instruments concerning children. The formulations contained in soft law might turn out to coincide with the most convincing suprapositive analysis of children's human rights, but the bare appearance of a proposition in a UN resolution or an expert body's recommendation does not ipso facto carry conclusive normative force.47

Therefore, the conclusion should not be that ESC rights must be 'filled' entirely by standards borrowed from European or global treaties or soft-law, just like some civil and political rights have been. Quite the opposite, the Court should be very careful when it borrows foreign standards to provide specificity to any right, but especially ESC rights that are not expressly defined in the Convention, or even worse, not defined in the Charter.

It is not the purpose of this piece to discover which ESC rights could be inferred from the Charter, but the ordinary reading of Article 26 ACHR clearly indicates that it contains 'rights'. What then is the Protocol including? The only logical conclusion that can be derived from both, the Convention and the Protocol, is that the latter is (1) including rights that cannot be inferred from the Charter, whether because they can only be inferred by their name but with no content, or cannot be inferred at all, and (2) giving a broader content to the rights that can be inferred from the Charter. If this position is correct, the rights-based conflict is not a conflict at all. The Protocol is in fact including- pursuant to Article 77 ACHR- some rights that previously were not in the Convention, but it is also complementing and expanding the rights that previously could be inferred to fill in Article 26 ACHR. As a result, Conclusions A and C mentioned above are not excluding; they can be read together: Article 26 ACHR, as far as it refers to the Charter, contains some rights that were expanded by the Protocol, which at the same time included other rights that were not protected by Article 26 ACHR.

46

47

174

Ib<liiez-Rivas, J.M., 'Los derechos de los niiios, niiias y adolescentes en la jurisprudenda de Ia Corte lnteramericana de Derechos Humanos' [The Rights of Boys, Girls, and Adolescents in the Jurisprudence of the Inter-American Court of Human RightsJ, Inter-American Institute of Human Rights Journal, Vol. 51, 2010, pp. 13-54. Neuman, loc.cit. note 44, at p. 114.

Intersentia

The American Convention and the Protocol of San Salvador I

The aforementioned position is supported by the Commission's reports submitted to the OAS General Assembly" and by the Commission's submission of the Draft ProtocoL49 The Commission used a series of guidelines to determine the ESC rights to be included in the Protocol, as well as the institutional mechanisms to be established.

In its annual report 1983-1984 it asserted:

the rights incorporated into the Charter are considered in the context of the standards of international law applicable to relations among the American states, for which reason they do not constitute a base of standards that makes possible their international protection. In other words, that instrument does not recognize human rights, compliance with which may be claimed agaiust a state, but rather it establishes objectives of economic and social development to be reached by the states through internal effort and international cooperation. Therefore, they cannot be treated jointly with the purely instrumental elements such as improvement of the administrative apparatus of the state, international trade, economic integration, tax reforms, and so forth. The list of those rights, moreover, is incomplete. 50

'Jbe Commission also noted that the draft Protocol contained three sets of ESC rights: (1) rights that 'should merely be reaffirmed in the Additional Protocol', since they were 'adequately covered' in other instruments, either universal or regional, including the OAS Charter; (2) other internationally recognized rights that 'should be elaborated and developed'; and (3) rights that were based solely on national legislations. 51

The Commission did not state what ESC rights were in each of the three categories mentioned above, but it is clear that the Protocol was intended to include, elaborate and develop the ESC rights contained in the Charter - and by inference in Article 26 ACHR. Hence, it is not possible to say, as some commenters do, that all of the rights protected in the Protocol are likewise protected by Article 26 ACHR.52

Lastly, one question remains: is it possible that the Protocol is not including some rights contained in the Charter? So far this article has explained that not all the rights included by the Protocol were previously recognised in the Charter - and therefore in Article 26 ACHR - or were recognised in a lesser extent. That is to say that the right X was recognised in the Charter, and the Protocol elaborated or developed it, and the right y was not recognised in the Charter, but it was included by the ProtocoL Yet, there

48 IAComHR, Annual Report 1983-1984, Chapter V(II), 24 September 1984, OAS Doc. OEA/Ser.L/V/ II.63 Doc. 10, and IAComHR, Annual Report 1984-1985, Chapter V(II), 1 OCtober 1985, OAS Doc.

OEA/Ser.J)V/II.66 Doc. 10 rev. 1. 49 By means of Resolution 778 (XV-0/85) the OAS General Assembly requested the Commission to

submit a Draft Additional Protocol to the Convention with regard to ESC rights. In its Annual Report 1985-1986 the Commission submitted the draft to the General Assembly (see, IAComHR, Annual Report 1985-1986, Chapter V(II), 26 September 1986, OAS Doc. OEA/Ser.UV/ll.68 Doc. 8 rev. 1).

so IAComHR, Annual report 1983-1984, op.cit. note 48 (emphasis added), 51 Idem. 52 Melish, 'Rethinking the Less as More Thesis', loc.cit. note 8, at p. 233.

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Oswaldo R. Ruiz-Chiriboga

is another possibility: that the ri ht Z w . was not mentioned by the p g I as previOusly recognised in the Ch t b th rotoco . According t ar er,

e e case of the right t d . o some commentators 53 th A

1

.

1

o ecent housmg Th" . h . , at r iC e 34(k) of the Ch t h. . . iS ng t, ill their view is ar er, w Kh mdic t h ' guarant<,ed 1

,

States is to provide 'adeq t h . a es t at one of the goals of the OAS p ua e ousmg [, 11 ···. rotocol makes no menti f h. . or a sectors of the population' H . ht. . on o t iS nght The q t" . . owever

ng Js illcluded in the system f . . ues JOn Js, consequently wheth , by th Ch o protectiOn ass urn. th h , er e arter is enough to c "d . . , illg att econtentofthis ~ onsi ent illcluded in A t" I nght :giv.en·

w answer this question it sh ld b r Jc e 26 ACHR, which is ... of th · ou e noted that e mam purposes is 'to identify th . on matters of interpretation o was once unclear which ESC rights coul~ illlention of the parties to a treaty'S4 rt.e made Jt clear that the rights . be mcluded m Article 26 ACHR th S il. Th S protected ill the IAS h , e tales

e tales also left the d are t ose set forth in th p f oor open for th · 1 · e rotocol o those recognised in the Protocol A ~~ ~nc usion of other rights or the expansio . and the Commission may submit fo~ t~e 1 e 22 PSS establishes that any State Par n amendments to include th consideratiOn of the State Partie ty expand rights or freedoms ;e::~!:~~on ~:other rights or freedoms or los :::~sed Commission or the Court, are the onesi:hat ~ProtocoL Then, the State Parties, not~~: and to what extent Wheth S ecide which ESC rights will b h · er a tate has t"fi d e protected t at the list of rights the State Pa f ra i e the Protocol does not change th c byth IAS" riestotheACHRc "d b e.act . . e Is the one established in the Prot I onsi er ymajorityto be protected JOin the Protocol, or even a part of it . oco . Each sovereign State may decide to to not be a party at all, but this has n~ Sillce Article 20 PSS allows reservations 55 or States should be respected by the i t mfluence on the fact that the list fixed by th a broader inference into A t" I 2 n erpreter, and not overlooked by blind! I . e Th r IC e 6 ACHR. y app ymg

e absence of the right t d h o ecentho s · h t at the States did not consent in protec~i~ng m t e Protocol is a clear demonstration the illterpretation of the Charter any . h g It. Furthermore, accepting that through by Article. 26 ACHR, opens the door;~; e::ot recognised in the Protocol is protected CommissiOn or the Court that c ld . rem ely broad discretion on the part ofth legal · ou circumvent th e certamty and question the 1egitimac of h . e consent of the States, undermine task, not the Commission's or the Court's ~ dt ; mterpreters. Again, it is the States'

Although the established proced , o. eode which rights shall be protected.

c_ontent (Articles 22 PSS, and 76-77 ~~~to mclude more rights or to expand their time and effort from governments ci .I R} could require a considerable amount of

, VI society, and the IAS bodies th , ese procedures

54

c . ourtis, lac. cit. note 8· Melish 'R th. k Marceau G 'C fl. ' ' e m ing the Less as More Th · , z ' ., on tcts of Norms ad C fl. ests, oc.cit.noteB. WTO Agreement and MEA n on tcts of Jurisdictions· Th R 1 . 1131, at p 1086 sand Othec Tceaties',Jou;nal of"' ld The d eahonship Between the Art. 20 ~SS pr~vides· 'Th S or a e, Vol. 35,2001, pp. 1081-

. · e tates Parties m h accessiOn, make reservati ay, at t e time of a ro 1 . <esecvations ace not inco~;::~~en;i~~ ';;,:':~fe:~ific rvisions o~~hi;;;o:~cno~~;:~v:~~:~~~~:u~~

an purpose of the Protocol.'

176 Intersentia

The American Convention aud the Protocol of San Salvador I re

1

ne,,ntto be followed to avoid all the mentioned inconveniences and to reach the necessary to strengthen the system of protection. Fortunately, the Commission

itb.e p•os:;ibilityto submit proposed amendments to include the recognition of other or freedoms in the Protocol. Perhaps the efforts of civil society should focus in

au1

esting the Commission to make use of this prerogative rather than requesting it

irledare a violation of Article 26 ACHR in individual petitions. In conclusion, for the States that have ratified the Protocol, inferences to fill in

26 ACHR are no longer needed. The rights they decided to provide through

i"reatvcJe"vel protection are those listed in the Protocol, with the scope they agreed rights to have. For the States that have not ratified the ProtocoL inferences to

in Article 26 ACHR can still take place, but they cannot go beyond the rights

<te•cog:nH;eo in the Protocol. It will be absurd if a State that did not ratify the Protocol obliged to protect more rights than a State that did ratify it. As the former President

the Inter-American Court, judge Cant;ado Trindade sums up, Article 26 ACHR is regrettable historical anachronism, a provision of bad design and formulation, the

result of ideological antagonism at the time of its sluggish writing. 56

It simply cannot

provide what the supporters of the direct approach look for.

4.2. JURISDICTION-BASED CONFLICT: WHETHER THE COMMISSION AND THE COURT HAVE JURISDICTION

RATIONEMATERIAE

The second conflict of norms is related to the jurisdiction of the lAS bodies. As seen above, the literal interpretation of the relevant provisions of the Convention and the Protocol lead to two conflicting conclusions: Conclusion B (the Commission may 'watch over' the promotion of ESC rights implicit in Article 26 ACHR by a number of measures, including taking action on individual petitions and submitting a case to the Court) and Conclusion D (with the exception of two rights, ESC rights are not

directly justiciable in the IAS). The question here is whether Article 26 ACHR contains

justiciable rights through individual petitions. Supporters of the direct approach and also the Court in Acevedo Buendia et

al. rightly argue that there is nothing in the wording of the Convention indicating explicitly that the rights inferred to fill in Article 26 ACHR are not covered by the individual petitions mechanism of protection. Nevertheless, this is not enough to conclude that the States indented to protect ESC rights by that mechanism. The general principle reg~rding the international tribunals' jurisdiction in cont~ntious matters is that it is based in the consent of States.57 Therefore, the purpose of the interpretation

56

,

Can,ado Tcindade, A.A., El ejeccido de [a Junci6n judidal internacional. Memoria; de la Co<ie Intemmeriwna de Derechos Humanos [The Practice of the Iutecnational judicial Functiono Memocies of the lntec-Amecican Comt of Human Rights], Del Rey, Belo Hocizonte, 2011, at p. 170.

Amecasiughe, C., 7hefurisdiction of International Tribunals, Kluwec Law International, The Hague,

2003, at p. 70.

177

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I Oswaldo R. Ruiz-Chiriboga

~f the Convention and the Protocol in this respect must be to discover what the States Intended when they adopted such instruments.

Ventura-Rob!es58 and Mejia-Rivera59 affirmed that two of the three drafts of the Amencan ConventiOn (the ones presented by the Inter-American Council nfr,__._,

and by the Uruguay) did not conceive of ESC rights as directly enforceable before the Commission and the Court. The remaining draft (the one presented by Chile) extended to ahmit:d number of ESC rights (property rights, the right to social security, the nght to umomse, and some educational rights) the application of the civil and political rights' contentious proceedings before the Commission and Court. In short not even the most progressive draft envisaged all ESC rights as fully enforceable, and that draft was not even accepted by the other States.

The travaux preparatoires also shows that Article 26 ACHR and Article 42 ACHR were once together. Article 42 ACHR used to be Article 27 of the Draft American Convention and it used to have the title 'Control of Compliance with the Obi' · '60Th 1gat10ns. e purpose of draft Article 27 was to verify if the State Parties were fulfilling their obligations under Article 26. The mechanism chosen to that effect was the submission of periodic reports and not the system of individual petitions. 61 Draft Article 27 was relocated to become the current Article 42 ACHR, because it deals with functions and powers of the Commission. This article now has no title, and it is in Section 2 'Functions' of Chapter VII, devoted to the Commission. However, the connection between Article 26 ACHR and Article 42 ACHR is undeniable since they make the same referral to the OAS Charter. It seems then that Article 42 ACHR was the mechanism chosen by the OAS Member States to monitor the fulfilment of the ESC rights implicit in Article 26 ACHR, and not the system of individual petitions.

LeBlanc's analysis of the travaux pn!paratoires affirms that draft Article 27 (current Article 42 ACHR) was criticised by several States and 'seemed to be strongly supported by none'. 62 In his view, this Article was more controversial than Article 26 ACHR. He asserts that the criticisms focused on two issues. First, some questions were raised about the usefulness of the reporting mechanism, because the OAS Member States were already reporting on ESC matters to other OAS bodies. The second criticism questioned whether or not the Commission was the competent body to supervise the implementation of ESC rights. In his view,

59

81

62

178

Ventura Robles, loc.cit. note 9.

~ejia Rivera, J., ~ntilisis de la protecci6n de los derechos econ6micos, sociales y culturales en el S1stema Int~ramencano de_Derec~os Humanos desde la Teorfa y la Filosofia delDerecho [Analysis of t~e ProtectiOn of Econom~c, Sonal, and Cultural Rights in the Inter-American System of Human Rights from the Perspective of Legal Theory and Legal Philosophy], Universidad Carlos III de Madrid, Madrid, 2009.

Author's transl_atio_n: n:e. origi~al in Spanish states: 'Control del Cumplimiento de las Obligaciones' (see, IIHR, La ;ust1cmbthdad dtrecta de los derechos econ6micos, sociales y culturales, op.cit. note 8, at p. 135.).

IIHR, La justiciabilidad directa de los derechos econ6micos, sociales y culturales, op.cit. B; Mejia Rivera, op.cit. note 59.

LeBlanc, loc.cit. note 43, at p. 138.

Intersentia

The American Convention and the Protocol of San Salvador I

Even the Chilean government, the strongest supporter of [ESC] rights throughout

h negotiations on the Convention, questioned whether the [CommiSSion], t e h · "conceived of, as it is, as being a juridical and quasi-judicial organ, is t e appropnate

"th 'ht 63 body to receive regular reports on ose ng s.

'The Jack of support of the States for draft Article 27 is more evident by the changes they made to it. For instance, current Article 42 ACHR, unhke draft ~rticle 27, does

t thorise the Commission to make 'appropriate recommendations, and the word ~m •· . d , ·f 'was substituted by the words 'watch over'. In LeBlanc s view, the alteratiOns rna e veny [hC .. ] b the State delegates 'suggest that they deliberately wanted to deny t e ommission a~y significant role in this field in the future'.64 Similarly, Cavallaro and Schaffer state

that '[t]he failure to provide specific protection for these nghts appear,' to be n~!:n oversight, but rather a conscious effort to weaken state obl~gatmns m th1s respect.

The aim of excluding the Commission succeeded m the years that followed

h doption of the American Convention. In its annual report 1983-1984, the t e a ' b' d 'th Commission recognised that the Jack of precision of Article 26 ACHR com me WI

the undeniable difficulty involved in the consideration of economic, social, and cult~ral rights, have brought about the inoperability, in practice, of Article 42 of the Amencan Convention'66 It also noted that the solution adopted by the OAS Member States to the protection of ESC rights, which is reflected in Article 42 ACHR, 'has, in practice, meant postponing the treatment of this matter'.67 A few years later, the Commission

cognised that the mechanism of protection of ESC rights in the lAS was the one ::tablished in Article 42 ACHR, which was inadequate and had not been applicable

in the years in which the Convention had been in force.68 The_ ~ommiss~~n never suggested that ESC rights could be protected by the system of individual petitions:

Even some academic papers published before the ConventiOn entered mto

force stated that it was unlikely that the Commission could or would interpret Article 41(b) ACHR _ which allows it to make recommendations to the States - as

authorising it to make very specific recommendations in this field. A Sta:e Party to.the Convention 'could in such an event cite the language of Article 42, whiCh authonzes

the [C]ommission only to watch over the promotion of these rights'69 If such an interpretation of Article 41(b) was considered problematic,. even more problematiC is interpreting Article 41(f) _ which authorises the CommlSSI_on to take actmn on

individual petitions - as applicable instead of Article 42 ACHR.

63

65

67

68

69

Ibidem, '\-t p. 139.

Idem. Cavallaro, and Schaffer, loc.cit. note 7, at p. 268.

IAComHR, op.cit. note 48.

Idem. IAComHR, op.cit. note 49. . , LeBlanc, L.J., 'Economic, Social, and Cultural Rights and the Interamencan System, Journal of Interamerican Studies and World Affairs, Voll9, 1977, pp. 61-82, at P· 78.

Netherlands Quarterly of Human Rights, Vol. 31/2 (2013) 179

I o,waldo R. Ruiz-Chiriboga

The solution that the Commission recommended to the OAS General As:sernhlv overcome the inoperability of Article 42 ACHR and other ESC rights-related was, inter alia) the designation of an institution responsible for the protection promotion of ESC rights by the adoption of a new treaty that establishes the tu11ctiior and methods of control to be used by the aforementioned institution. This new had to face the dilemma of 'having an international instrument that is from a legal point of view but lacking in force for want of ratifications, or pn,pa1ril a Protocol that will be acceptable to the states in its legal pronouncements but lack practical effectiveness'. 70 The Commission considered that the institution should be in charge of the protection and promotion of ESC rights had to be Commission itself, and the dilemma should be faced by keeping the system mrcep<)f but also granting individuals direct access to the Commission in the case A,,, __ ._ •

ESC rights.71 The Commission was starting from the basis that ESC rights were sheltered by the system of individual petitions, which was reserved only for civil political rights. What the Commission was looking for is that certain ESC could be also covered by the system of individual petitions, whereas the rernainir rights continued to be protected by the system of periodic reportsn

In its annual report 1985-1986, the Commission considered that the m:;tltutioni means for the protection and promotion of ESC rights was a 'delicate matter', potential difficulties that such matter could pose could be overcome by a '""''"'"· flexible and effective system'.73 Such a system was described in Article 21 of the Protocol, where three rights (trade union rights, the right to strike, and of education) enjoyed the same system of protection that was established and political rights. The other ESC rights were protected only by the mechanism periodic reports. 74

The position of the Court was very similar. In its annual report 1985, the presented its observations to the Draft Protocol. It considered that:

71

n

73

"

180

IAComHR, op.cit. note 48. Idem.

The Commission stated: 'For some rights, the existing civil and political rights system be applicable. That would be the case when a violation occurred because of direct the government, that is when the violation might be imputed directly and immediately to government, and changing the situation would depend on it. The nature of other economic, and cultural rights would require as a control mechanism the use of periodic and obligatoqmlJort submitted by these countries to the agency responsible for protecting and promoting mc»engu so that they could be taken into consideration by that agency when it issued its opinion matter. This system is appropriate for those rights whose full effectiveness takes time make it possible to evaluate the progress achieved. Specific results would therefore be ev;alu;ated relation to economic, social and cultural rights, thus avoiding having the institution '"Por"iblf for their protection and promotion making determinations about development policies and themselves' (IAComHR, op.cit. note 48). IAComHR, op.cit. note 49. Idem.

The American Convention and the Protocol of San Salvador I the so called economic, social and cultural rights, there are also some

icaJrno'nagct or can act as subjective rights jurisdictionally enforceable, bu~ there are

that, without ceasing to be fundamental rights of the human bemg, are by nature or by each country's conditions of economic and social developmen:,

on the establishment of a complex institutional and economiC

;;stJructur·e, for which reason it would not be reasonable in the present state of the of development of the peoples of the Americas to recognize that those

be immediately and fully enforceable per se [ ... ]. those rights to which the specific system of protection established by the

Arner·ica.n Convention is applicable should be incorporated into the mechanisms arJd ]prc>cedures provided for by the Convention through an Additional Protocol.

to say, those rights that may become jurisdictionally enforceable, ~s .h••P>•ens, for example, with the right of parents to choose the education of their

dhilclren and right to trade union freedom [ .. .]. the economic, social and cultural rights that are not enforceable throughthe

;'·SIJecihc mechanisms of the Convention, thought could be given to the advisab11lty an Inter-American Convention not connected to the mechanisms ofthe

o:t si;goJOJfmScagn jose, in the style of and with guarantees similar to those established in,

!fc>re:xam]Jle, the United Nations International Covenant on EconomiC, Soctal and ~ _,. •• _, 1 Rights. Moreover, in those mechanisms of protection parallel to those of

American Convention, not only should the Inter-American Commtsswn on :'.flunJan Rights play a preponderant roll, through a system of reports similar to that ; e,;lal>lisl\ed in the aforementioned International Covenant, but so should the Court

itself, through the exercise of its advisory jurisdiction.75

annual report 1986, the Court reiterated its conclusions submitted in its previous but it included the right to strike in the list of enforceable rights

76 In short,

Court only three ESC rights (the right of parents to choose the education of children, the right to trade union freedom, and the right to strike) were to be

lforceab]le thr<JU[~b the system ofindividual petitions, the other ESC nghts were only system of periodic reports and through the advisory JUnsdiCtion

Court, and not through its contentious jurisdiction. The position of the Court

I>Vi•om:l~ started by considering the rights contained in Articl~ 26 ACHR as non­

ifo1:ce;1ble directly through the system of individual petitions. The Protocol of San Salvador was approved almost in the same terms proposed

Commission.'? The States, however, considered that the right to strike should covered by the system of individual petitions. They also included more details

IACtHR, Annual Report 1985, App. III, 15 August 1985, OAS Doc. OEA/Ser.LIV/Ill.l2 doc. 13

(emphasis added). IACtHR, Annual Report 1986, App. IV, 29 August 1986, OAS Doc. OEA/Ser.L/V/IIL15 .doc. 13.

IIHR, La justiciabilidad directa de los derechos econ6micos, sociales y culturales, op.ctt. note 8, at

p. 165.

<e.tloedlan<h Quarterly of Human Rights, Vol. 31/2 (2013) 181

Oswaldo R. RuiZ-Chiriboga

on how the system of periodic reports should work. The discussions of the States therefore, started from the fact that ESC rights were not enforceable directly, and tha; the system of reports stipulated in Article 42 ACHR had to be improved. As Cavallaro and Schaffer rightly pointed out, 'the background understanding of the drafters regarding ESC rights and the American Convention was that those rights could not be litigated through article 26 of the Convention'.78

Taking the above considerations into account, the jurisdiction-based conflict is not a real conflict either. The American Convention was never intended to protect ESC rights by the system of individual petitions. The mechanism chosen by the States was the system of periodic reports enshrined in Article 42 ACHR. This mechanism is not an additional protection to ESC rights, as some commenters suggest;79 it is the only mechanism provided by the Convention. Article 41 ACHR is not applicable to ESC rights. Otherwise, why would the States decide to incorporate a specific provision related to ESC rights (Art. 42 ACHR) when the Commission's faculties and competence were already defined in Article 41 ACHR? The only logical answer is that Article 42 ACHR is lex specialis regarding ESC rights protection. The Protocol of San Salvador came to improve that mechanism, which was ineffective in practice, and also granted direct enforceability to two ESC rights (the right to unionisation and the right to education).

This solution is the one that best gives effect to both treaties, the Convention and the Protocol; best respects the consent of the Inter-American States; and best adheres to the ordinary meaning to be given to the terms of both treaties in their context.

5. THE COURT'S DECISION IN ACEVEDO-BUEND!A ET AL. VPERU

The facts of Acevedo-Buendia et al. 80 are related to the government's failure to comply with the judgments of the Constitutional Court of Peru delivered on 21 October 1997 and 26 january 2001. This judgement ordered the Office ofthe Comptroller General of the Republic (OCGR) to comply with the payment to 273 members of the Association of Discharged or Retired Employees of the OCGR of the salaries and wages, benefits, and bonuses received by the active employees of that office performing functions identical, similar, or equivalent to those that the discharged or retired employees performed.

The Commission requested the Court to declare that Peru was responsible for the violation of the rights enshrined in Articles 21 (right to property) and 25 (right to judicial protection) of the Convention. The representatives of the employees requested

78

79

80

182

Cavallaro and Schaffer, lac. cit. note 10, at p. 363.

IIHR, Lajusticiabilidad directa de los derechos econ6micos, sociales y culturales, op.cit. note 8. IACtHR, Acevedo Buendia et al., supra note 12.

Intersentia

The Amecican Convention and the Pwtocol of San Salvador I the Court to also declare that the State was responsible for the violation of the right to social security protected, in their view, by Article 26 ACHR. Peru objected to the

jurisdiction ratione materiae pointing out that the Court lacked competence in matters concerning the alleged violation to the right to social security, since such a right is not included in the American Convention and it is not even one of the two rights that would be actionable before the lAS in accordance with Article 19(6) of the

protocol. The Court asserted that the broad wording of the Convention indicates that

according to Article 62(1) ACHR, it has 'full jurisdiction over all matters pertaining to its articles and provisions'. 81 Since Peru is a State Party to the Convention and has acknowledged the adversarial jurisdiction of the Court, the latter was 'competent to decide whether the State has failed to complywith or violated any of the rights enshrined in the Convention, even the aspect concerning article 26 thereof'. 82 The Court noted that the violation of the Protocol 'has not been alleged in the case at hand','

3 and

therefore it considered it 'unnecessary' to decide whether it has jurisdiction over said

treaty.•• It rejected the preliminary objection raised by the State.85

On the merits, the Court ruled that Peru violated the rights of the workers to judicial protection (Article 25 ACHR) and to property (Article 21 ACHR), but it did not find grounds 'to additionally declare the non-compliance with Article 26 of said treaty'.86 However, it made an historical and systematic interpretation of this provision. 87 According to the historical interpretation, the Tribunal noted that the

content of Article 26 ACHR was:

81

84

85

86

the subject-matter of an intense debate in the preparatory works of the Convention, as a result of the States Parties' interest to assign a 'direct reference' to economic, social and cultural 'rights'; 'a provision establishing certain legal mandatory nature [ ... ] in its compliance and application' as well as 'the [respective] mechanisms [for its] promotion and protection', since the Preliminary Draft of the treaty prepared by the Inter-American Commission made reference to such mechanisms in two Articles that, according to some of the States, only 'contemplated, in a merely declarative text, the conclusions reached in the Buenos Aires Conference'. The review of said preparatory works of the Convention also proves that the main observations, upon which the approval of the Convention was based, placed a special emPhasis on 'granting the economic, social and cultural rights the maximum prote:tion compatible

Ibidem, at para. 16.

Ibidem, at para. 17.

Ibidem, at para. 18.

Idem.

Ibidem, at para. 19. Ibidem, at para. 106. Burgorgue-Larsen, lac. cU. note 9, at p. 633.

Netherlands Quarterly of Human Rights, Vol. 31/2 (2013) 183

I Oswaldo R. Ruiz-Chi>iboga

with the peculiar conditions to most of the American States'. In this way, as part of the debate in the preparatory works, it was also proposed 'to materialize the exercise of [said rights] by means of the activity of the courts'.88

Regarding the systematic interpretation, the Court noted:

even though Article 26 is embodied in chapter III of the Convention, entitled 'Economic, Social and Cultural Rights', it is also positioned in Part I of said instrument, entitled 'State Obligations and Rights Protected' and, therefore, is subject to the general obligations contained in Articles 1(1) and 2 mentioned in chapter I (entitled 'General Obligations'), as well as Articles 3 to 25 mentioned in chapter II (entitled 'Civil and Political Rights') 8 '

The explanation of the Court is insufficient and even misleading. First, the Court made

no effort to clarify whether the right to social security is one of the rights implicit in the Charter that can be inferred to fill in Article 26 ACHR. It only mentioned that the commitment requested from the States by this provision consisted in the adoption of measures 'with a view to achieving progressively the full realisation of certain economic, social and cultural rights'90 Which are those rights, or at least why the right to social security is one of those rights, are questions that the Court did not answer.

Second, the historic interpretation of the Court is incomplete. The Court put forward the points of view of only those States which tried to materialise the exercise of ESC rights by means of the activity of the Court. No mention was made of the countries which opposed the enforceability of ESC rights and, more importantly, as Burgorgue-Larsen recalls:

nothing was said about the process which ultimately gave rise to the drafting of Article 26 as such. Nor was anything said about the scope the different States were prepared to confer on this article. Does this mean that the article was the result of a compromise, or did it represent those States which were in favour of giving economic and social rights such an important place? Clearly, the silences of the Court were part of its strategy to reach its objective, come what may, namely conferring the widest scope possible on Article 26. But Brazil and Guatemala aside, the preparatory works show just how reluctant the majority of States were to recognize that what was to become Article 26 should be actionable91

Third, the systemic interpretation of the Court is also incomplete. It only stated that Article 26 ACHR is embodied in Part I, Chapter III of the Convention, entitled

88

89

90

91

184

IACtHR, Acevedo Buendia et al., supra note 12, at para. 99.

Ibidem, at para. 100.

Ibidem, at para. 105.

Burgorgue-Larsen, foe. cit. note 9, at p. 633.

Intersentia

The Amedcan Convention and the Pwtocol of San Salvadm I

'State Obligations and Rights Protected', but it did not study other provisions of the Convention, such as Article 42 ACHR, which as explained earlier, may lead to the conclusion that the mechanism chosen by the States to protect ESC rights was the system of periodic reports and not the system of individual petitions. Moreover, the Court completely ignored the Protocol. As seen above, the Protocol is a fundamental piece of the agreement of the States. How can the Court interpret what the intention of the State Parties was if it ignores a fundamental expression of such intention?

The Court explained that it was not going to analyse the Protocol because the Commission and the representatives of the victims did not base their arguments on it. The fact that the applicants did not make any allegation based on the Protocol is understandable because the Protocol would have undermined their position, since the right to social security is not an enforceable right according to Article 19(6) PSS. The strategy they used is the one recommended by the supporters of the direct approach:

while litigants should never plead direct violations of the Protocol's substantive norms outside articles S.l.a and 13, they can use the Protocol's extensive catalogue of social rights as interpretive tools when invoking the broadly overlapping, but more vaguely-defined rights subject to the Commission and Court's contentious

jurisdiction through Convention article 26.92

However, Peru brought the Protocol into play in its submissions. As a matter of fact, the government's defence was strongly based on the Protocol. But the Court remained silent, and the silence of the Court on this matter simply belies the judgment and its

conclusions. There are pending cases before the Court at this moment where new allegations on

the direct enforceability of Article 26 ACHR have been made. It is hoped the Court will refine its arguments regarding its jurisdiction, or better yet, reconsiders its previous judgment in Acevedo-Buendia et al. by reading the Protocol and the Convention as

they really are: two intertwined treaties.

6. CONCLUSIONS

The American Convention and the Protocol of San Salvador are to be considered as together forming the text of one single treaty. The Protocol should not be ignored because it is a fundamental expression of the consent of the State Parties.

For the ~tate Parties, it is no longer necessary to discover which are the ESC rights implicit in the OAS Charter in order to include them in Article 26 ACHR. The States made it clear that the rights they are willing to protect are the ones listed in the Protocol. The States also made the scope of such rights clear. Including more

92 Melish, 'Rethinking the Less as More Thesis', loc.cit. note 8, at p. 235.

Netherlands Quarterly of Human Rights, Vol. 31/2 (2013) 185

rights, different from the ones recognised in the Protocol, would mean overlooking the States' consent.

For the States that are parties in the Convention but not the Protocol, it is still necessary to discover which rights are implicit in the OAS Charter in order to include

them in Article 26 ACHR .. However, the process of 'extraction' of such rights from the Charter is limited by the following considerations. First, Article 26 ACHR makes a referral to the OAS Charter and the Charter alone. Interpreters should not avoid this step by appealing to other international instruments, including the American Declaration. Second, due to the fact that interpretation is a tool for clarifying norms rather than altering norms, it is not enough to infer just the name of an ESC right from the Charter. It is also necessary that the Charter provides some content to that right. Third, if the Charter provides minimum content, it could then be clarified -to a certain extent - using other international instruments, including the Declaration. And, finally, if the Charter does not provide minimum content, the relevant right cannot be included in Article 26 ACHR. Giving full content to an ESC right using instruments different from the Charter would signify a modification of the Charter and, depending on the case, would also enforce global covenants locally, harden global soft-law, circumvent the will of the States and undermine the cohesion of the IAS.

The applicable mechanism to monitor the compliance of the State Parties to the Convention of their ESC rights-related obligations is the system of periodic reports set out in Article 42 ACHR. This provision is not a supplement or an addition to Article 41 ACHR. It is the only mechanism regarding the ESC rights implicit in Article 26 ACHR.

Article 42 ACHR is not applicable to the States that have ratified the Protocol. Instead Article 19 PSS is applicable. The latter provision improved the mechanism of periodic reports and granted jurisdiction ratione materiae to the Commission and the Court regarding individual petitions in cases of alleged violations of the rights to unionisation and education.

The Court's judgment in the case Acevedo-Buendia et al. v. Peru is far from being conclusive. The Court's reasoning in this case was incomplete, mainly because it totally ignored the Protocol, but also because it did not consider all the relevant provisions of the Convention. Furthermore, its analysis of the preparatory works only focused on the States that supported the enforceability of ESC rights. This is a single judgment that by no means could be considered jurisprudence constante. The Court should clarify, or better yet modify, its previous judgment in the next case in which it is requested to rule on Article 26 ACHR.

186 Intersentia