The American Convention and the Protocol of San Salvador: Two Intertwined Treaties
| Author | Oswaldo R. Ruiz-Chiriboga |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.1177/016934411303100203 |
| Subject Matter | Part A: Article |
THE AMERICAN CONVENTION AND
THE PROTOCOL OF SAN SALVADOR:
TWO INTERTWINED TREATIES
NONENFORCEABILITY OF ECONOMIC, SOCIAL AND
CULTURAL RIGHTS IN THE INTERAMERICAN SYSTEM
O R. R-C*
Abstract
is article discusses the direct enforceability of economic, social, and cultural
(ESC) rights in the Inter-American System, also called ‘the direct approach’. It starts
by presenting two apparent con icts between certain provisions of the American
Convention on Human Rights (“the Convention”) and the Protocol of San Salvador
(“the Protocol”) related to the ESC rig hts recognised in Article26 of the Convention and
the mechanisms of protection of such r ights. e author concludes that ESC r ights were
never intended to be directly enforceable before the Inter-American System and the refore
the 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.
e recent decis ion of the Inter-American Court of Human Right s in Acevedo-Buendía
et al .v. Peru is also st udied. e Court decl ared that it has contentious jurisdiction over
alleged violations of ESC rig hts, but it took no notice of the Protocol. is article stresses
that every interpretation on ESC rights in the Inter-American System must not ignore
the Protocol of San Salvador.
Keywords: con icts of norms; economic, socia l and cultural rights; enforceabil ity of
rights; Inter-American Cour t; interpretation of treaties; Protocol of San Salvador
* Doctoral researcher, Human Rights Centre, Ghent Universit y; LLM in International Huma n
Rights and Criminal Just ice (Utrecht University); LLM in Internationa l Criminal Law (Granada
University); Postgraduate Degree in Legal Argumentation (Alicante University); Postgraduate
Degree in Human Rights (Andea n University Simón Bol ívar); Postgraduate Degree in Human
Rights and Demo cracy (Ponti cal Catholic University of Ecuador); former Senior Sta Att orney
of the Inter-America n Court of Human Rig hts. I am indebted to Álva ro Paúl Díaz and to the th ree
blind reviewers of t his journal for th eir helpful comments and e ditorial review. Of cou rse, I assume
personal respon sibility for any remaini ng errors. Email: Oswa ldo.RuizChiriboga@UGent .be; Blog
(on the Inter-American Cour t): http://corteidhblog.blogspot.com.
Oswaldo R. Ruiz-Chiriboga
160 Intersentia
1. INTRODUCTION
e Inter-American System (IAS) 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
Conventio n or ACHR),2 and the Additional P rotocol 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
e Declaration was adopted by the Organization of American States (OAS)
in 1948. is instrument set forth a series of fundamental human rights with no
distinction between civil and political rights, and ESC rights. e Convention was
adopted in 1969, in San José, Costa Rica. So far 23 of 35 OAS Member States have
rati ed it.4 While the Convention provided treaty-level protection to principles
previously contained in the Dec laration, it also reduced the entire topic of ESC rights
to a single provision: Art icle26. is article provides:
e States Parties undertake to adopt measures, both internally and through
international cooperation, especially those of an economic and technical nature,
with a view to achiev ing progressively, by legislation or other appropriate means,
the full realization of the rights implicit in the economic, social, educational,
scienti c, and cultural standards set forth in the Charter of the Organization of
American States […].
e Protocol wa s adopted in San Salvador, El Salvador, in 1988. So far 16 State Parties
in the Convention have rati ed the Protocol.5 is instrument protects a number
of ESC rights,6 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
1 Organizat ion of American States, America n Declaration of the Rights a nd Duties of Man, OAS
Res. XXX (1948), reprint ed in Basic Documents Per taining to Huma n Rights in the I nter-American
System, OAS Doc. OAS/Ser.L/V/I.4 rev. 13 (2010).
2 Organizat ion of American St ates, American Convention on Human Rights, 22 November 1969,
1144 U NTS 1 23.
3 Organization of American States, Additional Protocol to the American Convention on Human
Rights in t he Area of Economic, S ocial, and Cu ltural R ights “Protocol of Sa n Salvador”, 17November
1988, OAS Doc. OAS/Ser.L/V/I.4 rev. 13.
4 e Stat es that have rati ed the ACHR are: Argent ina, Barbados, Boliv ia, Brazil, Chile , Colombia,
Costa Rica, Dominica, Dom inican Republic, Ecuador, El Sa lvador, Grenada, Guatemala, Haiti,
Honduras, Jama ica, Mexico, Nica ragua, Pa nama, Parag uay, Peru, Surina me, and Uruguay. Trinida d
and Tobago and Venezuela were States Par ties to the Convention, but they l ater denounced it.
5 e States that have rati ed the Protocol are: Argentina, Bolivia, Brazil, Colombia, Costa Rica,
Ecuador, El Salvador, Guatemala, Hondura s, Mexico, Nicaragua, Panama, Parag uay, Peru,
Surinam, a nd Uruguay.
6 e rig hts protected are: right to work (Art .6); just, equitable and sati sfactory conditions of work
(Art.7); trade u nion rights (Art.8); right to s ocial securit y (Art.9); right to healt h (Art.10); right to
a healthy envi ronment (Art.11); right to food (Art.12); right to educ ation (Art.13); right to bene ts
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