-514.
The relevance of the Protocol stems from the fact that it is on the basis of this
agreement that the States of the region took the decision to define the ESCR with
which they are obliged to comply. They also established the content of those rights
clearly and precisely. For example, Article 10 of the Protocol establishes the right to
health as follows:
Article 10
Right to Health
1. Everyone shall have the right to health, understood to mean the enjoyment of the highest level
of physical, mental and social well-being.
2. In order to ensure the exercise of the right to health, the States Parties agree to recognize
health as a public good and, particularly, to adopt the following measures to ensure that right:
a. Primary health care, that is, essential health care made available to all individuals and families
in the community;
b. Extension of the benefits of health services to all individuals subject to the State's jurisdiction;
c. Universal immunization against the principal infectious diseases;
d. Prevention and treatment of endemic, occupational and other diseases;
e. Education of the population on the prevention and treatment of health problems, and
f. Satisfaction of the health needs of the highest risk groups and of those whose poverty makes
them the most vulnerable.
15.
However, the States took the sovereign decision to restrict which of the
economic, social and cultural rights established in the Protocol could be monitored by
the individual petition mechanism when establishing in Article 19(6) that:
Any instance in which the rights established in paragraph (a) of Article 8 and in Article 13 are
violated by action directly attributable to a State Party to this Protocol may give rise, through
participation of the Inter-American Commission on Human Rights and, when applicable, of the
Inter-American Court of Human Rights, to application of the system of individual petitions governed
by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights
(underlining added).
16.
Thus, by this provision, the States decided to limit the competence of the
Commission and of the Court to hear contentious cases that were not related to trade
union rights or the right to education. Indeed, in this case, the Court, exercising the
competence granted by this article, declared the violation of the right to education
established in Article 13 of the Protocol of San Salvador.16
17.
However, this limitation of competence should not be understood as
contradictory to Article 26 of the American Convention, bearing in mind that the said
article (19(6)) expresses the subsequent and more specific intention of the States with
regard to the competence of the Inter-American Court in relation to ESCR.
Furthermore, the American Convention should not be read alone, without taking into
account its Protocol, because they are complementary treaties that should be read and
interpreted together. Thus the Court may hear contentious cases in which the violation
of the obligation of progressive realization of the rights that could be derived from the
Charter is argued, based on Article 26 of the Convention, and also those cases in which
the violation of Articles 8(a) and 13 of the Protocol is alleged.
18.
It is also relevant to point out that the general obligation of the States Parties
arising from the Protocol are independent of the fact that the Court has competence to
declare violations within the framework of its contentious function. The States
established other mechanisms merely to ensure compliance with those rights, such as
those defined in the other paragraphs of Article 19 of the Protocol, such as the
16
Para. 291 of this Judgment. .
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