the nature and scope of the obligations that a State can be required to meet under Articles 1.1, 2, and 26 of the
Convention, as well as the content of the right concerned, as we shall do below.
108.
To establish the criteria needed to derive specific rights from the OAS Charter, determine their
contents and States' obligations with respect to them, Article 29 of the American Convention, which establishes
parameters regarding general rules for interpreting the Convention, proves helpful as a guideline. Thus, based
on that Article, interpretation of the provisions of the American Convention may not restrict or suppress rights
recognized by virtue of the domestic laws of States or by virtue of any other treaty to which a State is party, nor
may it exclude the effects of the American Declaration of the Rights and Duties of Man and other international
acts of the same nature. In this manner, the provision embraces the "pro homine" principle in the interAmerican system and provides a key tool for the effective protection of all the human rights recognized in the
Constitutions of the States Parties and in inter-American or universal human rights instruments they have
ratified.
109.
Based on the comprehensive interpretation called for in Article 26 in light of the provisions of
Article 29, the Commission deems it pertinent to refer to the obligations that transpire from Article 26 of the
American Convention and that can be the subject of pronouncements by the organs of the inter-American
system in connection with contentious cases. In the specific case addressed here, the Commission considers
that, in interpreting Article 26 of the American Convention account should be taken of the above-mentioned
Article 1 of the "Protocol of San Salvador” because it makes it possible to determine the scope of the State's
obligation with respect to the progressive development of law under review.
110.
For its part, the International Covenant on Economic, Social and Cultural Rights132 contains, in
Article 2.1133 similar provisions to those of Article 26 of the American Convention and those of Article 1 of the
Protocol of San Salvador. The Commission has already referred to pronouncements of the Committee on
Economic, Social and Cultural Rights regarding the notion of progressiveness and the scope of the obligations
it gives rise to.134 Thus, it stresses that said concept does not render state obligations essentially meaningless;
on the contrary, it should be interpreted in the light of the general purpose of the treaty with a view to ensuring
the full realization of the rights involved.135
111.
In light of the above, it is fair to assert that the Commission understands that Article 26 of the
American Convention imposes a number of obligations on States that are not restricted to a ban on regression,
which correlates with the obligation to be progressive, but cannot be construed to be the only obligation under
this provision that is actionable (justiciable) in the inter-American system, Thus, the Commission affirms that,
bearing in mind the interpretative framework set forth in Article 29 of the American Convention, Article 26,
when seen in conjunction with Articles 1.1 and 2 of the same instrument, gives rise to at least the following
immediate and enforceable obligations: i) general obligations to respect and guarantee; ii)application of the
non-discrimination principle to economic, social, and cultural rights; iii) obligations to take steps or adopt
measures to achieve enjoyment of the rights included in said Article; and iv) to provide suitable and effective
resources for their protection. The methodologies or analytical sources that may prove to be pertinent for each
of these obligations should be established according to the circumstances of each particular case.
112.
Referring to the enforceable and immediate components of the obligation to take steps or
adopt measures, the CESCR has indicated, for example, that the adoption of measures, in and of itself, is not
limited or conditioned by other considerations; for that reason, although achieving the full realization of rights
may be gradual, the adoption of measures or arrangements to that end must be deliberate, concrete, and geared
The Brazilian State acceded to said Treaty on January 24, 1992.
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."
134 IACHR. Report No. 38/09. Case 12.670. Admissibility and Merits. National Association of Former Employees of the Peruvian Social
Security Institute et al. Peru. March 27, 2009. par. 136.
135 United Nations Committee on Economic, Social and Cultural Rights, , General Comment No. 3: The Nature of States Parties' Obligations
((Art. 2, Para. 1, of the Covenant) 1990.
132
133