144.
Article 26 of the American Convention establishes an obligation of the States parties to seek
to achieve the progressive development of the rights that said provision contains. Though both organs of the
inter-American system 287 have reaffirmed their competence to rule on possible violations of Article 26 of the
American Convention in the context of the system of individual petitions and cases, this provision had been
developed very little in the case-law of the inter-American system in contentious cases.
145.
The Commission recognizes that the interpretation of Article 26 of the Convention and the
determination of its specific scope and content may entail certain complexities. In this vein, the Commission
considers it necessary to develop some of its earlier pronouncements in this respect, specifically in terms of
what it considers to be an appropriate methodology of analysis that takes into account the text of the provision,
but that interprets it in a manner consistent with the developments in the area internationally, and that are
most useful for fleshing out their scope and content.
146.
Accordingly, the Commission considers that the analysis of a specific case in light of Article 26
of the American Convention should proceed on two levels. Initially, it is necessary to establish whether the right
in question in the case derives from “the economic, social, educational, scientific, and cultural standards set
forth in the Charter of the Organization of American States,” as indicated by the text of Article 26. In other
words, it is Article 26 of the ACHR that refers to the Charter of the OAS as the direct source of rights and
describing the relevant provisions of that treaty as human rights provisions. Given that the purpose of the OAS
Charter was not to individually identify rights but rather to constitute an international organization, one must
have recourse to auxiliary texts to identify the rights that stem from the Charter provisions.
147.
Once this is established, one must determine whether the state in question breached the
obligation to “achieve progressively” the full effectiveness of that right, or those general obligations to respect
and ensure it. At this second level of analysis, one must take into consideration the nature and scope of the
obligations that may be demanded of the state under Articles 1(1), 2 and 26 of the Convention, as well as the
contents of the right in question, as will be done below.
148.
To establish the criteria that make it possible to derive specific rights from the Charter of the
OAS, to determine their content and the obligations of the states in relation to them, Article 29 of the American
Convention becomes relevant insofar as it establishes the parameters of the general rules of interpretation of
that treaty. According to that article, the interpretation of the provisions of the American Convention may not
limit or suppress rights recognized by the domestic law of the states or by any treaty to which a state is a party,
nor exclude the effects of the American Declaration of the Rights and Duties of Man or other international
instruments of the same nature. The provision incorporates the pro homine principle in the inter-American
system and offers a crucial tool for the effective protection of all the human rights recognized in the
constitutions of the states party, and in the inter-American and universal human rights instruments they have
ratified.
149.
Based on the integral interpretation that Article 26 requires in light of the provisions of Article
29, the Commission considers it relevant to refer to the obligations that arise from Article 26 of the American
Convention and that may be the subject of a pronouncement by the organs of the inter-American system in the
context of contentious cases. In this respect, for the specific case the Commission considers that for the
interpretation of Article 26 of the American Convention one should consider the Additional Protocol to the
American Convention in the area of Economic, Social and Cultural Rights, the “Protocol of San Salvador,” 288 for
it allows one to determine the scope of the state obligation when it comes to progressive development of the
right in question. In its Article 1, the Protocol establishes that the states parties undertake to adopt the
See, for example, some admissibility reports in which a possible violation of Article 26 of the Convention has been admitted: Report
29/01. Case 12,249. Jorge Odir Miranda Cortez et al. El Salvador, March 7, 2001; and Report 70/04. Petition 667/01. Admissibility. Jesús
Manuel Naranjo Cárdenas et al. (Pensioners of the Venezuelan Aviation Company – VIASA. Venezuela, October 13, 2004. See also the ruling
on the merits concerning Article 26 in Report 38/09. Case 12,670. National Association of ex-Employees of the Peruvian Social Security
Institute et al. v. Peru. March 27, 2009. Along similar lines, the Court reaffirmed that competence in the 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.
288 The Ecuadorian State ratified that Protocol on March 25, 1993.
287
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