53.
Having established that, it must then be determined whether the State breached the obligation
in terms of “progressively achieving” the full realization of that right or the general obligations to respect and
ensure it. On this second level of analysis, it is necessary to consider the nature and scope of the obligations
enforceable upon the State under Articles 1(1), 2, and 26 of the Convention, as well as the content of the right
concerned, as is done hereinbelow.
54.
Insofar as it is the provision that sets out the parameters of the general rules of interpretation
of the American Convention, Article 29 of the Convention is important for establishing the criteria by which to
derive specific rights from the OAS Charter, as well as to determine their content and the obligations of States
in relation thereto. Thus, according to that Article, no provision of the Convention shall be interpreted as
restricting or suppressing rights recognized by the domestic laws of the States or by any other treaty to which
one of said States is a party, or as excluding the effects that the American Declaration of the Rights and Duties
of Man and other international acts of the same nature may have. The provision thus recognizes the pro persona
principle in the Inter-American system and offers a key tool for effective protection of all human rights
recognized both in the constitutions of the states parties, and in the Inter-American and universal human rights
instruments that they have ratified.
55.
Based on a holistic interpretation, which Article 26 requires in light of the provisions
contained in article 29, the Commission considers it relevant to refer to the obligations that emerge from Article
26 of the American convention and may be the subject of pronouncements on the part of the organs of the interAmerican system in the framework of contentious cases. In that regard, bearing in mind that the State is not a
party to the Additional Protocol to the American Convention on Economic, Social and Cultural Rights (Protocol
of San Salvador), in this case the International Covenant on Economic, Social and Cultural Rights is relevant,75
as it contains, at Article 2.1, 76 provisions similar to those of Article 26 of the American Convention. The
Commission has previously relied on the observations of the Committee on Economic, Social and Cultural
Rights on the concept of progressive realization and the scope of obligations arising therefrom. 77 Thus, it
underscores that this concept does not render the State's obligations insignificant; on the contrary, it must be
interpreted in the light of the overall objective of the treaty with a view to the full realization of the rights
involved.78
56.
In light of the foregoing, the Commission finds that Article 26 of the American Convention
imposes various obligations on States that go beyond a prohibition on regressiveness, which is a correlate of
the obligation of progressive realization and cannot be regarded as the only justiciable obligation in the interAmerican system under that provision. Thus, bearing in mind the interpretative framework provided by Article
29 of the American Convention, viewed from the perspective of Articles 1(1) and 2 of that instrument, Article
26 gives rise, at a minimum, to the following immediate and enforceable obligations: (i) general obligations to
respect and ensure rights; (ii) application of the principle of nondiscrimination to economic, social, and cultural
rights; (iii) obligations to take steps or adopt measures to achieve the realization of the rights contained in that
article; and (iv) to offer suitable and effective remedies for their protection. The appropriate methodologies or
sources of analysis for each of those obligations will have to be determined according to the particular
circumstances of each case.
57.
As regards the enforceable and immediate nature of the obligation to take steps or adopt
measures, the CESCR has indicated, for example, that the adoption of measures in itself, is not qualified or
limited by other considerations; therefore, while the full realization of rights may be achieved progressively,
steps towards that goal should be deliberate, concrete and targeted as clearly as possible towards meeting
75.
The Brazilian State acceded to the treaty on January 24, 1992.
76.
According to that provision, “Each State Party to the present Covenant undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures."
77.
IACHR, Report No. 38/09, Case 12.670, Admissibility and Merits, National Association of Ex-Employees of the Peruvian Social
Security Institute et al., Peru, March 27, 2009. par. 136.
78.
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), adopted at the Fifth Session, 1990, E/1991/23.
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