considers an adequate methodology of analysis that takes account of the text of the provision but interprets it
in a manner consistent with developments seen in this area at the international level that are highly useful for
unraveling its scope and content.
240.
Thus, the Commission considers that any analysis of a specific case in the light of Article 26 of
the American Convention should be done on two levels. First, it is necessary to establish if the right with which
the case is concerned derives from “the economic, social, educational, scientific, and cultural standards set forth
in the Charter of the Organization of American States” to which Article 26 refers. In other words, Article 26 of
the American Convention recognizes the Charter of the OAS as a direct source of rights and ascribes the
Charter’s provisions in that regard the character of human rights. Given that the purpose of the Charter of the
OAS was not to identify individual rights, but to establish an international organization, auxiliary texts must be
relied on to identify the rights that arise from the provisions contained in that instrument.
241.
Having established that, it must then be determined whether the State breached the obligation
in terms of “progressively achieving” the full realization of that right or the general obligations to respect and
ensure it. On this second level of analysis, it is necessary to consider the nature and scope of the obligations
enforceable upon the State under Articles 1(1), 2, and 26 of the Convention, as well as the content of the right
concerned, as is done hereinbelow.
242.
Insofar as it is the provision that sets out the parameters of the general rules of interpretation
of the American Convention, Article 29 of the Convention is important for establishing the criteria by which to
derive specific rights from the OAS Charter, as well as to determine their content and the obligations of States
in relation thereto. Thus, according to that Article, no provision of the Convention shall be interpreted as
restricting or suppressing rights recognized by the domestic laws of the States or by any other treaty to which
one of said States is a party, or as excluding the effects that the American Declaration of the Rights and Duties
of Man and other international acts of the same nature may have. The provision thus recognizes the pro persona
principle in the inter-American system and offers a key tool for effective protection of all human rights
recognized both in the constitutions of the states parties, and in the inter-American and universal human rights
instruments that they have ratified.
243.
Based on a holistic interpretation, which Article 26 requires in light of the provisions
contained in article 29, the Commission considers it relevant to refer to the obligations that emerge from Article
26 of the American convention and may be the subject of pronouncements on the part of the organs of the interAmerican system in the framework of contentious cases. In that regard, in the instant case, the Commission
considers that the interpretation of Article 26 of the American convention should take into account the
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights ("Protocol Of San Salvador”),331 since it allows the scope of the State's obligation to be determined with
respect to the progressive realization of the right under examination. Article 1 of the Protocol provides that the
States Parties undertake to adopt the necessary measures, to the extent allowed by their 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 Protocol.332
244.
For its part, the International Covenant on Economic, Social and Cultural Rights333 contains at
334
its Article 2(1) similar provisions to Article 26 of the American Convention and Article 1 of the Protocol of
San Salvador. The Commission has previously relied on the observations of the Committee on Economic, Social
The Brazilian state acceded to the Protocol on August 21, 1996.
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. 134.
333 The State acceded to the that treaty on February 17, 1981.
334 According to that 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."
331
332
42
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