interpretation). Furthermore, the interpretation standards derived from Article 29 of the American
Convention should be used, where pertinent .15
II.
DIRECT JUSTICIABILITY OF ARTICLE 26 OF THE AMERICAN CONVENTION
ON HUMAN RIGHTS
B.1 Literal Interpretation
14.
Article 26 of the American Convention establishes the following:
CHAPTER III
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Article 26. Progressive development
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, as amended by the Protocol of Buenos Aires, subject to available
resources, by legislation or other appropriate means.
15.
In making a literal interpretation of Article 26, that is, an interpretation in good faith, based
on the ordinary meaning of the terms and derived from the literal meaning of some expressions or
words in the Convention and in other treaties, we must understand that this article establishes an
obligation to act, in other words, an obligation of conduct, not of result. The scope of that obligation
is to “adopt measures” in order to achieve “progressively the full realization of the rights derived
from the economic, social, educational, scientific and cultural standards, set forth in the [OAS]
Charter,” that is, of the rights that are derived from, or can be inferred from, the provisions of the
latter instrument, and only of that instrument. Moreover, the obligation to act, established in Article
26 is conditional – it is “subject to available resources,” which reinforces the idea that it is not an
obligation to produce a result. Although this implies that the progressive development of those
rights cannot be achieved within a short period of time, since this “requires a necessarily flexible
device reflecting the realities of the world and the difficulties involved for each country in ensuring
their realization,”16 it cannot imply inaction on the part of the State, in light of the undertaking to
“adopt measures” “by legislation or other appropriate means.”
Article 29 of the Convention establishes: “Standards of interpretation: 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; and, 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.”
16
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. 102, 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. 80. See also, 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,
para. 9.
15