reasserted their competence to rule on possible violations of Article 26 of the American Convention in the
framework of the system of individual petitions and cases, this provision had made little progress in the
jurisprudence of the inter-American system relative to contentious cases. In its rulings on the matter, the Court
has emphasized the interdependence and indivisibility of economic, social, and cultural rights with civil and
political rights.82
59. Thus, the Commission considers that the analysis of a concrete case in the light of Article 26 of the American
Convention must be conducted at two levels. First of all, it is necessary to establish whether or not the right
being dealt with in the case stems from “the economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States,” as referred to in the text of Article 26. In other
words, Article 26 of the American Convention is the one that credits the Charter of the OAS as the direct source
of rights, assigning the nature of human rights to the provisions which on the matter can be drawn from said
treaty. Because the purpose of the OAS Charter was not to individualize rights but rather to establish an
international body, it is necessary to resort to ancillary texts to identify the rights stemming from the provisions
of said instrument.
60. At a second level of analysis, the nature and scope of the obligations enforceable upon the State under
Articles 1.1, 2, and 26 of the Convention must be taken into consideration, as well as the contents of law
involved, as below. The American Convention is relevant in order to establish the criteria that would make it
possible to derive specific rights from the OAS Charter, as well as to determine their content and the obligations
of the states in connection with them, to the extent that it establishes the parameters for the general rules to
interpret this treaty. In that regard, according to said article, the interpretation of the provisions of the
American Convention cannot restrict or eliminate rights recognized by the domestic legal system of the states
or by any other treaty to which they are a party, nor can it exclude the effects of the American Declaration on
the Rights and Duties of Man or other international acts of the same nature. The provision thus enshrines the
“pro persona” principle in the inter-American system and provides a key tool for the effective protection of all
human rights recognized in the constitutions of the states parties, as well as in the inter-American or universal
human rights instruments ratified by them.
61. On the basis of the comprehensive interpretation that Article 26 requires in the light of the provisions of
Article 29, the Commission deems it is relevant to refer to the obligations that can be drawn from Article 26 of
the American Convention and that can be the subject of rulings by the bodies of the inter-American system in
the framework of contentious cases. The Commission has already resorted to the rulings of the Committee on
Economic, Social, and Cultural Rights with respect to the notion of progressive realization of rights and the
scope of the obligations stemming from it;83 thus it underscores that said concept does not deprive the State’s
obligations of all meaningful content; on the contrary, it must be interpreted in the light of the treaty’s general
goal of achieving the full realization of the rights involved.84
62. In the light of what was previously described, it can be stated that the Commission understands that Article
26 of the American Convention imposes various obligations on the states, which are not confined to a
prohibition of regressivity, which is a correlate of the obligation of progressive realization, but it cannot be
construed to be the only justiciable obligation in the inter-American system under this norm. Thus the
Commission states that, bearing in mind the interpretive framework of Article 29 of the American Convention
and Article 26 seen in the light of Articles 1.1 and 2 of the same instrument, at least the following immediate
and enforceable obligations can be drawn: i) general obligations of respect and guarantee, ii) application of the
principle of nondiscrimination to economic, social, and cultural rights, iii) obligations to take steps or to adopt
measures to achieve the enjoyment of the rights incorporated into said article, and iv) offering suitable and
See, for example: I/A Court H.R. Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
August 31, 2017. Series C No. 340, para. 141; and Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”)
v. Peru (Preliminary Objection, Merits, Reparations, and Costs), Judgment of July 1, 2009, para. 101.
83 IACHR. Report No. 38/09. Case 12.670. Admissibility and Merits. The National Association of Ex-Employees of the Peruvian Social
Security Institute et al. Peru. March 27, 2009, para. 136.
84 United Nations Committee on Economic, Social and Cultural Rights, General comment No. 3: The nature of States parties’ obligations
(paragraph 1 of Article 2 of the Covenant), adopted at the Fifth Session, 1990, E/1991/23.
82
15