them. The State also has basic obligations to satisfy essential rights that are not subject to progressive
realization but are of immediate effect.79
58.
In addition, the IACHR considers that in light of the duty to ensure rights established in Article
1(1) of the American Convention and the interpretation of that provision by the organs of the Inter-American
system, states parties have a duty to take reasonable steps to prevent the infringement of the rights contained
in Article 26 in the context of business activities. The foregoing includes adopting a legal framework that
assures protection for those rights and provides effective access to remedies for victims of such violations.
Among the measures for ensuring an adequate legal framework, the State should require business entities
under its jurisdiction to exercise human rights due diligence in order to identify, prevent and mitigate the risks
of violations of rights in the context of their activities.80
59.
Finally, the organs of the Inter-American system have stressed the duty of states to adopt
measures to ensure real equality among people and combat historical or de facto discrimination against a
variety of social groups. The Commission has indicated that the implementation of positive measures is
necessary to ensure that people linked to groups that suffer structural inequalities or have been victims of
historical exclusion can exercise their rights.81 In the same vein, the Court has written that States are obliged
“to adopt positive measures to reverse or change discriminatory situations that exist in their societies and that
prejudice a specific group of people. This includes the special obligation of protection that the State must
exercise with regard to acts and practices of third parties who, with its tolerance or acquiescence, create,
maintain or promote discriminatory situations.”82
60.
In applying the above parameters to the instant case, the Commission notes, to begin with,
that Article 45 of the Charter of the OAS references the rights to health and social security: Article 34(i) of that
instrument also highlights the role of the state in the “[p]rotection of man's potential through the extension and
application of modern medical science,” emphasizing the importance of the guarantee of health to an
individual's integral development. Articles XI of the American Declaration and 12 of the ICESCR also recognize
that right. As for the right to social security, that derives from Article 45, paragraphs (b) and (h) of the OAS
Charter, which respectively establish the right to protection against unexpected or social risks in relation to
work and to development of an efficient social security policy. In turn, more broadly, Article 46 refers to the
task of harmonizing standards on social security at the regional level. For its part, the American Declaration
enshrines that same right at its Article XVI, as does the ICESCR, at Article 9. As the Commission has noted, it
may be necessary to resort to other international instruments to show the derivation of a right based on a
public policy measure or objective included in an economic, social, cultural, educational, or scientific provision
contained in the Charter of the OAS.83
61.
Based on the above, the Commission considers that the rights to health and social security are
among the economic and social standards mentioned in Article 26 of the American Convention and, therefore,
states parties are under the obligation to seek their progressive development and to respect, ensure, and adopt
the necessary measures for the realization of those rights.
79.
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 that connection, see:IACHR, Report on Poverty and Human Rights in the Americas,
OEA/Ser.L/V/II.164 Doc. 147 (September 7, 2017), pars. 236 and 237.
80.
Committee on Economic, Social and Cultural Rights, General Comment 24, E/C.12/GC/24, August 10, 2017.
81.
IACHR, Access to Justice for Women Victims of Violence in the Americas, January 20, 2007, pars. 100 and 101. IACHR,
Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women
with the Principles of Equality and Non-Discrimination, 1999 annual report, April 13, 2000, Chapter VI.
82.
I/A Court H.R., Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, par. 104.
83.
Of particular importance are the American Declaration of the Rights and Duties of Man, the International Covenant on
Economic, Social and Cultural Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (Protocol of San Salvador), as well as other treaties, including the Convention on the Rights of the Child, the
Convention on the Elimination of All Forms of Discrimination against Women, and the Conventions of the International Labour
Organization.
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