analysis of the scope of the obligations of respect and guarantee in relation to the right to
health, as in the Judgment that give rise to this separate opinion. In addition, there are
some components of social rights that cannot be extended to standards of civil and political
rights. 96 As I have underlined, “the specificity could be lost of both civil and political rights
(that begin to cover everything) and of social rights (that are unable to project their
specificities).” 97
58.
Considering that, in its evolutive case law, the Inter-American Court has already
explicitly accepted the justiciability of Article 26 (see supra paras. 18 to 22), 98 in my
opinion, the Inter-American Court now needs to resolve several aspects of this article, which
poses the difficult future task of deciding three distinct questions relating to: (i) what rights
does it protect; (ii) what type of obligations arise from those rights, and (iii) what are the
implications of the principle of progressiveness. Evidently, my intention is not to try and
decide these questions in this individual opinion. My desire is merely to establish a basis
that could serve as a reflection for future developments of the case law of this InterAmerican Court.
59.
Different positions exist with regard to the rights protected by Article 26 of the
American Convention. Some people consider that this article constitutes a mere
programmatic norm, without any type of effectiveness in itself. We do not find this
conception adequate in view of the spirit of the Convention, which is inspired by the
absence of hierarchy among the rights, as revealed by its Preamble, and by the need for all
its provisions to have practical effects.
60.
In addition, the said argument would be an evident step backward from the
progressiveness that Article 26 itself expressly establishes for the States and that, of
necessity, also applies to the Inter-American Court itself, because inter-American case law
has already recognized the possibility of ruling on the contents of this article as indicated in
the preceding paragraph, and has also recognized the full validity of all the provisions of the
Pact of San Jose, precisely when deciding on the State’s argument concerning its lack of
competence ratione materiae in relation to Article 26 of the Pact of San José: 99
[…] the Court must take into account that the instruments accepting the optional clause concerning
obligatory jurisdiction (Article 62(1) of the Convention) suppose the acknowledgement by the States that
submit them of the Court’s right to decide any dispute relating to its jurisdiction. 100 In addition, the Court
has indicated previously that the broad terms used in the wording of the Convention indicate that the
Court exercises full jurisdiction over all its articles and provisions. 101 (Underlining added)
96
On this aspect, see Melish, Tara J. “The Inter-American Court of Human Rights: Beyond Progressivity,” in
Langford, Malcolm (ed.), Social Rights Jurisprudence: Emerging Trends in Comparative and International Law,
Cambridge University Press, 2008, chapter 19.
97
Parra Vera, Oscar, Justiciabilidad de los derechos económicos, sociales y culturales ante el Sistema
Interamericano, Mexico, CNDH, 2011, p. 60.
98
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”),
supra, paras. 92 to 106, particularly paras. 99 to 103; the last paragraph, in fine, indicates: “it should be stated
that regressiveness is justiciable when economic, social and cultural right are at issue.”
99
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”),
supra, para. 16.
100
Cf. Case of Ivcher Bronstein, supra, paras. 32 and 34; Case of Heliodoro Portugal, supra, para. 23, and
Case of García Prieto et al. v. El Salvador. Preliminary objection, merits, reparations and costs. Judgment of
November 20, 2007. Series C No. 168, para. 38.
101
Cf. Case of Velásquez Rodríguez, Preliminary objections, supra, para. 29, and Case of the 19 Tradesmen
v. Colombia. Preliminary objection. Judgment of June 12, 2002. Series C No. 93, para. 27.
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