implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the
Organization of American States,” as referred by Article 26. That is, Article 26 of the ACHR is the article that
identifies the Charter of the OAS as the direct source of these rights, assigning the provisions in that treaty
applicable to these issues the character of human rights. As the objective of the Charter of the OAS was not to
identify rights but to establish an international organization, outside texts must be used to identify the rights
derived from the provisions of that instrument, including, fundamentally, the American Declaration, as well as
other relevant provisions of international law.
123.
In application of these parameters in this case: The Commission and the Court have clearly
established that the right to health is one of the rights derived from the economic and social provisions
mentioned in Article 26 of the Convention, for which reason it is not necessary to recapitulate that analysis.119
124.
With this established, it must then be determined whether the State in question failed to
comply with the obligation to “achiev[e] progressively” the full effectiveness of that right or the general
obligations to respect and guarantee it. This second level of analysis must take into consideration the nature
and scope of the State’s obligations under articles 1(1), 2, and 26 of the Convention, as well as the obligations
contained in the right in question, an analysis that will be conducted later.
125.
Based on this, it can be concluded that the Commission understands that Article 26 of the
American Convention imposes a series of obligations on States beyond simply limiting regression—this is part
of the obligation of progressiveness, but cannot be understood as the only legally actionable obligation in the
inter-American system. Thus, the Commission finds that, taking into account the interpretive framework of
Article 29 of the American Convention, Article 26 analyzed in view of articles 1(1) and 2 of the Convention
entails, at a minimum, the following immediate and enforceable obligations: (i) general obligations to respect
and guarantee, (ii) application of the principle of nondiscrimination to economic, social, and cultural rights;
(iii) obligations to take steps or adopt measures to make it possible to enjoy the rights included in that article;
and (iv) obligations to provide suitable and effective remedies for protecting those rights. The methodologies
or sources of analysis that are pertinent to each of these obligations must be established based on the specific
circumstances of each case.
126.
Regarding the immediate and enforceable components of the obligation to take steps or adopt
measures, the CESCR has indicated, for example, that the adoption of measures in itself is not limited or
conditioned on other considerations; thus while the full realization of the relevant rights may be achieved
progressively, steps towards that goal should be deliberate, concrete and targeted as clearly as possible
towards meeting the obligations. The State also has basic obligations to meet the minimum standards for these
rights. These obligations are not subject to steady development but rather must be provided immediately.120
127.
Regarding its content on the right to health, in harmony with the body of international law on
the right to health identified by the Court,121 the Committee on Economic, Social and Cultural Rights has found
that all health services, goods, and facilities must meet requirements of availability, accessibility, acceptability,
and quality.122 Both the Commission and the Court have taken these concepts into account and incorporated
them into their analysis of multiple cases.123
See, inter alia, Inter-American Court. Case of Poblete Vilches et al. v. Chile. Merits, Reparations, and Costs. Judgment of March 8, 2018.
Series C No. 349. Para. 110; Inter-American Court. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objections, Merits, Reparations
and Costs. Judgment dated August 23, 2018. Series C No. 359. Para. 99.
120 United Nations Committee on Economic, Social, and Cultural Rights, General Comment 3: The nature of States parties’ obligations (art.
2, para. 1, of the Covenant), 1990. In this sense, see: IACHR. Report on Poverty and Human Rights in the Americas, OEA/Ser.L/V/II.164 Doc.
147 (September 7, 2017) paras. 236 and 237.
121 Inter-American Court. Case of Poblete Vilches et al. v. Chile. Merits, Reparations, and Costs. Judgment of March 8, 2018. Series C No. 349.
Para. 114 and following.
122 UN, Committee on Economic, Social and Cultural Rights. General Comment 14, E/C.12/2000/4, August 11, 2000, para. 12.
123 IACHR. Report 2/16. Case 12,484. Merits. Cuscul Pivaral et al. Guatemala, April 13, 2016, para. 106; Inter-American Court. Case of
Poblete Vilches et al. v. Chile. Merits, Reparations, and Costs. Judgment of March 8, 2018. Series C No. 349, para. 120.
119
23