and Cultural Rights on the concept of progressive realization and the scope of obligations arising therefrom.335
In that regard, the Committee has explained that the notion of progressive realization,
should not be misinterpreted as depriving the obligation of all meaningful content. It is on the
one hand a necessary flexibility device, reflecting the realities of the real world and the
difficulties involved for any country in ensuring full realization of economic, social and cultural
rights. On the other hand, the phrase must be read in the light of the overall objective, indeed
the raison d'être, of the Covenant which is to establish clear obligations for States parties in
respect of the full realization of the rights in question. It thus imposes an obligation to move
as expeditiously and effectively as possible towards that goal.336
245.
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 simply a
correlate of the obligation of progressive realization and cannot be regarded as the only justiciable obligation
in the inter-American 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.
246.
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
them. The State also has basic obligations to satisfy essential rights that are not subject to progressive
realization but are of immediate effect.337
247.
Finally, the organs of the inter-American system have emphasized the duty of the states to
adopt measures to ensure real equality among persons and to fight historical and de facto discrimination
directed against a variety of social groups. The Commission has noted that implementing positive measures is
necessary to ensure the exercise of the rights of persons associated with groups that suffer structural
inequalities or have been victims of historical processes of exclusion.338 Along the same lines, the Court has
established that the states are obligated to adopt positive measures to turn back or change discriminatory
situations in their societies, to the detriment of a given group of persons. This implies the special duty of
protection that the State should exercise with respect to actions and practices of third persons who, with the
tolerance or acquiescence of the State, create, maintain, or favor discriminatory situations.339
2.
Analysis of the instant case
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.
336 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.
337 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.
338 IACHR, Access to Justice for Women Victims of Violence in the Americas, January 20, 2007, paras. 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, Annual Report, 1999, April 13, 2000, Chapter VI.
339 I/A Court HR. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, September 17, 2003. Series A No.
18, para. 104.
335
43
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