necessary measures, to the extent allowed by available resources, and taking into account their degree of
development, for the purpose of achieving progressively the full observance of the rights recognized in the
instrument. 289
150.
The International Covenant on Economic, Social and Cultural Rights 290 provides, at Article
provisions similar to those of Article 26 of the American Convention and those of Article 1 of the
Protocol of San Salvador. The Commission has already looked at the pronouncements of the Committee on
Economic, Social and Cultural Rights in terms of the notion of progressivity and the scope of the obligations
that stem from it. 292 And it has underscored that this concept does not empty the state obligations of any
significant content; to the contrary, one should interpret it in light of the general objective of the treaty with a
view to giving full effective to the rights involved. 293
2(1) 291,
151.
In light of what is described above, it can be said that the Commission understands that Article
26 of the American Convention imposes various obligations on the States that are not limited to a prohibition
on regressivity, which is a correlate of the obligation of progressivity, but it cannot be understood as the sole
justiciable obligation in the inter-American system under this provision. Accordingly, the Commission affirms
that bearing in mind the interpretative framework of Article 29 of the American Convention, Article 26 seen in
light of Articles 1(1) and 2 of the same instrument, one can discern at least the following immediate and
enforceable obligations: (i) general obligations to respect and ensure the rights provided for in the Convention;
(ii) application of the principle of non-discrimination to economic, social, and cultural rights, (iii) obligations
to take steps or adopt measures to achieve the enjoyment of the rights incorporated in that article, and (iv)
offer suitable and effective remedies for their protection. The methodologies or sources of analysis that are
relevant for each of these obligations should be established according to the circumstances particular to each
case.
152.
As regards the enforceable and immediate components of the obligation to take steps or adopt
measures, the Committee on ESC Rights has indicated, for example, that the adoption of measures alone is not
limited or conditioned on other considerations; accordingly, while achieving the effective realization of the
rights may be gradual, the adoption of measures for those purposes should be deliberate, specific, and geared
as clearly as possible to their attainment. The State also has basic obligations that must satisfy essential levels
of those rights, which are not subject to progressive development but are immediate. 294
153.
Specifically in terms of the right to health, with respect to the first level of analysis, Article 45
of the OAS Charter enshrines it. Article 34(i) of the Charter also underscores the role of the state in the
“protection of man’s potential through the extension and application of modern medical science,” thereby
emphasizing the importance of guaranteeing health for the integral development of the person. In addition,
Article XI of the American Declaration establishes: that “Every person has the right to the preservation of his
health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent
permitted by public and community resources.” Article 10 of the Protocol of San Salvador notes that every
person has the right to health, understood as the enjoyment of the highest level of physical, mental, and social
well-being, and indicates that health is a public good.
IACHR. Report No. 38/09. Case 12,670. Admissibility and Merits. Ex-Employees of the Peruvian Social Institute, et al. Peru. March 27,
2009. Para. 134.
290 The Brazilian State acceded to that treaty on January 24, 1992.
291 According to this 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.”
292 IACHR. Report No. 38/09. Case 12,670. Admissibility and Merits. Ex-Employees of the Peruvian Social Institute, et al. Peru. March 27,
2009. Para. 136.
293 Committee on Economic, Social and Cultural Rights of the United Nations, General Comment 3: The Nature of States parties obligations
(Article 2(1) of the Covenant), 1990.
294 Committee on Economic, Social and Cultural Rights of the United Nations, General Comment 3: The nature of States parties obligations
(Article 2(1) of the Covenant), 1990. Along these lines see: IACHR. Report on Poverty and Human Rights in the Americas
OEA/Ser.L/V/II.164 Doc. 147 (September 7, 2017) paras. 236 and 237.
289
27