B. Protocol of San Salvador
1. This Protocol is the primary inter-American instrument for the protection,
guarantee, and promotion of economic, social, and cultural rights. This
international treaty recognizes a series of state obligations (obligation to
adopt measures, to adopt provisions of domestic law, non-discrimination,
non-admission of restrictions) and rights (right to work, right to fair,
equitable, and satisfactory work conditions, trade union rights, right to social
security, right to health, right to a healthy environment, among others).
2. When addressing the content of this protocol, it is necessary to make two
clarifications. On the one hand, regarding the justiciability of the rights
contemplated in the Protocol of San Salvador, according to Article 19, the
Protocol only contemplates the possibility that, in event of violation of the
rights set out in Article 8(a) (right to organize and join trade unions) and
Article 13 (right to education), appeals can be brought to the Inter-American
Commission and, eventually, to the Inter-American Court through the system
of individual petitions.
3. Moreover, Article 19 of the Protocol of San Salvador provides that the States
Parties undertake to submit, in accordance with the provisions of said article
and the corresponding standards to be developed to that effect by the General
Assembly of the OAS, periodic reports on the progressive measures they have
taken to ensure due respect for the rights set forth in this Protocol. These
periodic reports are currently analyzed by the Working Group on the Protocol
of San Salvador (hereinafter "WGPSS"), constituted in accordance with the
parameters established by the General Assembly of the OAS. 36
4. The WGPSS is the body in charge of defining the indicators to be included in
the reports of the States Parties, providing technical cooperation, as well as
analyzing and monitoring compliance with the obligations contained in the
Protocol of San Salvador. To this end, it uses the what are called "progress
indicators for measuring rights under the Protocol of San Salvador," 37 which
make it possible to measure compliance with the rights contemplated in the
Protocol and thus recognize the principle of progressivity of economic, social,
and cultural rights. In the words of the WGPSS:
The main objectives of the following indicators are to help states parties by providing them
with useful tools to review the status of the rights contained in the Protocol, identify
outstanding issues and agendas based on a participatory dialogue with civil society, and devise
strategies for the progressive realization of the rights contained in the Protocol. The aim is to
encourage states to undertake a process of evaluating and measuring fulfillment of social rights
that goes beyond mere reporting to become a useful instrument for the design and continuous
evaluation of public policies within states, with a view to ensuring comprehensive fulfillment of
economic, social, and cultural rights. As the standards say, they “[a]re not intended to record
complaints but progress." 38
Cf. AG/RES. 2262 (XXXVII-O/07) of June 5, 2007.
Cf. Progress indicators for the measurement of rights contemplated in the Protocol of San Salvador.
OEA/Ser.D/XXVI.11 2015.
38
Cf. Progress indicators for the measurement of rights contemplated in the Protocol of San Salvador.
OEA/Ser.L/XXV.2.1OAS/Ser.L/XXV.2.1 and GT/PSS/doc.2/11 rev.2 of December 16, 2011, para. 9.
36
37
9