alleged, but not in relation to their progressive development or non-retrogression, unlike what is
stipulated in Article 26. The obligation established in this article implies that the Court can directly
supervise compliance with the obligation of progressive development and the consequent duty of
non-retrogression of the rights that could be derived from the Charter. Accordingly, it is important
to note that this facet of the principle of progressive development is justiciable when economic,
social, cultural and environmental rights are involved. An interpretation to the contrary would imply
expanding the scope of the protection afforded by Article 26, which is not the task of this Court,
but of the States. In doing so, the Court would be overstepping the limits of its jurisdiction.
B.2 Internal context-systematic interpretation
20.
The Court has held that norms should be interpreted as part of a whole, whose meaning and
scope must be defined on the basis of the legal system to which they belong.20 In this regard, the
Court has considered that in interpreting a treaty it is not only necessary to take into account all
its provisions, but also any agreement or instruments formally related thereto (Article 31,
subparagraph 2 of the Vienna Convention), as well as the system within which it is inserted (Article
31, subparagraph 3), that is, the Inter-American System for the Protection of Human Rights.21
21.
As to the rest of the provisions of the Convention, the Court has indicated that Article 26 is
embodied in Chapter III of the Convention, entitled “Economic, Social and Cultural Rights”, but is
also included in Part I of that instrument, entitled “State Obligations and Rights Protected;”
therefore, it is subject to the general obligations contained in Articles 1(1) and 2 of Chapter I
(entitled “General Obligations”), as well as Articles 3 to 25 included in Chapter II (entitled “Civil
and Political Rights”). Accordingly, the Court has considered that the general obligations of “respect”
and “guarantee,” together with the obligation to “adopt” in Article 2 of the Convention, applies to
all rights, whether civil, political, economic, social, cultural or environmental.22
22.
This does not imply an interpretation of the direct enforceability of a particular right, in its
individual dimension, nor does it grant the Court competence for its judicialization. What the
preceding paragraph establishes is simply that the provisions of Articles 1(1) and 2 of the
Convention also apply to the obligation of progressive development of rights; that is, to the
progressive aspect of the rights that could be derived from the OAS Charter, which implies the
adoption of measures, either legislative or other types of measures, to achieve the progressive
development of ESCER. The manner in which the violation of these rights operates in conjunction
with the obligations to guarantee and respect, must be analyzed by this Court in each specific case.
23.
Furthermore, a systematic interpretation of Article 26 of the Convention cannot ignore the
Protocol of San Salvador adopted on November 17, 1988, and in force since November 16, 1999.23
With regard to the nature of protocols, it should be recalled that in international public law these
Cf. Case of González et al (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations and costs. Judgment
of November 16, 2009. Series C No. 205, para. 43, and Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection,
merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359, para. 82.
20
Cf. The Right to Information on Consular Assistance in the framework of the Guarantees of Due Process of Law.
Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 113, and Case of Cuscul Pivaral et al. v. Guatemala.
Preliminary objection, merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359, para. 82.
22
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. 100, and Case of
Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of August 23, 2018.
Series C No. 359, para. 83.
21
To date, 16 States have ratified the Protocol of San Salvador, namely: Argentina, Bolivia, Brazil, Colombia, Costa
Rica, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, El Salvador, Guatemala, Surinam and Uruguay.
23