16.
Progressive realization means that the States parties have the specific and constant
obligation to advance as rapidly and efficiently as possible towards the full realization of ESCER.17
This should not be interpreted to mean that, during their implementation, those obligations are
divested of their specific content, or that the States can indefinitely postpone the adoption of
measures to realize the rights in question - particularly after nearly forty years since the InterAmerican Convention entered into force. Therefore, it is necessary to ensure the duty of nonretrogression regarding the rights achieved.
17.
In other words, in relation to the scope of Article 26, the Court has indicated that the main
obligation derived from this article is to adopt measures to achieve the progressive development of
economic, social and cultural rights.18 This entails “a duty – albeit conditioned– of non-retrogression,
which should not always be understood as a prohibition to adopt measures that restrict the exercise
of a right.”19
18.
Article 26 does not “recognize” rights, nor does it establish a specific catalogue of rights;
instead, it establishes the obligation of the States to progressively develop certain rights, precisely
because these have not been fully realized. In order to identify those rights that must be developed
progressively, Article 26 makes direct reference to the Charter of the Organization of American
States (hereinafter “Charter” or “OAS Charter”). However, from a reading of the Charter, we may
conclude that it, too, does not contain a clear and precise catalogue of subjective rights; therefore,
it is necessary to undertake interpretative work to conclude that a right is derived from the Charter.
It is important to stress that, if it is determined that a right is derived from the Charter, it must be
interpreted in conjunction with the provisions of Article 26 of the Convention and within the
established limits; in other words, the right in question could be directly justiciable, provided that
an analysis of progressivity is carried out.
19.
From a literal reading of Article 26, there are no valid arguments to affirm that it is possible
to submit to the Court a case concerning the alleged violation of a specific right in its individual
dimension, based on the reference in question, since the scope of the protection afforded by Article
26 differs from that of the civil and political rights enshrined in Articles 3 to 25. Indeed, the terms
used in drafting those articles, such as “every person”, “no one shall be,” “every citizen,” as well
as the clearer development of the content of each right, denotes the clear intention of the States
to protect these through the inter-American system in specific cases in which their violation is
Cf. U.N. Committee on Rights Economic, Social and Cultural, General Comment No. 14: The right to the highest
attainable standard of health, E/C.12/2000/4, August 11, 2000, para. 31, and Case of Poblete Vilches et al. v. Chile. Merits,
reparations and costs. Judgment of March 8, 2018. Series C No. 349, para. 104.
17
Cf. Case of “Five Pensioners” v Peru. Merits, reparations and costs. Judgment of February 28, 2003. Series C No. 98,
para. 147.
18
In this regard, the Court has endorsed the view expressed by the CESCR in the sense that “any deliberately
retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by
reference to the totality of the rights provided for in the [International] Covenant [on Economic, Social and Cultural Rights]
and in the context of the full use of the maximum available resources [to the State].” Cf. Case of Acevedo Buendía et al.
(“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru. Preliminary objection, merits, reparations and
costs. Judgment of July 1, 2009. Series C No. 198, para. 103; Committee on Economic, Social and Cultural Rights, General
Comment No. 3: The nature of States Parties’ obligations (Article 2, paragraph 1 of the Covenant), December 14, 1990,
U.N. Doc. E/1991/23.
Similarly, the Inter-American Commission has considered that in order to determine whether a retrogressive measure is
compatible with the American Convention, it is necessary to “determine if it is justified by strong reasons.” Cf. Case of
Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru. Preliminary objection,
merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 103, and Reports on Admissibility and
Merits No. 38/09, Case 12.670, National Association of Ex-Employees of the Peruvian Social Security Institute et al. v. Peru,
issued by the Inter-American Commission of Human Rights, on March 27, 2009, paras.140 to 147.
19