comes to adopting protection measures and lending support during proceedings and
thereafter, to achieve the rehabilitation and reintegration of the victim.126.
2.
Relevant consideration regarding the right to education and health in sexual violence
contexts.
103.
Article 26 of the American Convention establishes an obligation on the part of the States
Parties of the Organization of American to realize progressive development of the rights set forth in the OAS
Charter. For its part, Article 1 of the Additional Protocol to the American Convention on Human Rights in the
Area of Economic Social and Cultural Rights "Protocol of San Salvador" 127 provides that state 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.128
104.
Although both organs of the inter-American human rights system 129 have reaffirmed their
competence to pronounce on possible violations of Article 26 of the American Convention within the
framework of the individual petitions and cases system, that provision has barely been expounded in interAmerican jurisprudence with respect to contentious cases. However, by virtue of Article 19.6130 of the Protocol
of San Salvador, both the Inter-American Court and the IACHR have competence to decide in contentious cases
relating to facts covered by Article 13 of that treaty, which recognizes the right to education.131
105.
The Commission acknowledges that there may be certain difficulties with interpreting Article
26 of the Convention and determining its specific scope and content. Accordingly, the Commission deems it
necessary to expand on some of its previous pronouncements on the subject, specifically with regard to an
appropriate methodology for analysis that takes the text of the provision into account but interprets it in a
manner consistent with developments in international jurisprudence that turn out to be very useful for
deciphering its scope and content.
106.
Thus, the Commission considers that any analysis of a concrete case in light of Article 26 of
the American Convention needs to be conducted at two levels: First, it is necessary to establish whether the
law relevant to the case at hand is derived from "the economic, social, educational, scientific, and cultural
standards set forth in the Charter of the Organization of American States," as indicated in the text of Article 26.
That is to say, it is Article 26 of the American Convention on Human Rights that points to the OAS Charter as
the direct source of rights, characterizing as human rights such provisions in the treaty as may be discerned
therein. Given that the purpose of the OAS Charter was not to single out rights but to establish an international
organization, it is necessary to resort to ancillary texts to discern the rights that may transpire from the
provisions of the Charter.
107.
Once that has been established, it is a matter of determining whether the State in question
fulfilled its obligation to "progressively achieve" the full realization of such and such a right or those general
obligations to respect and guarantee it. At this second level of analysis, it is necessary to take into consideration
I/A Court H.R. Case of V.R.P., V.P.C. et al v. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of March 8, 2018.
Series C No. 350, par. 157.
127 The Ecuadorian State ratified the Protocol on March 25, 1993.
128 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. 134.
129 See, for instance, some admissibility reports acknowledging possible violation of Article 26 of the Convention. 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 pronouncement on
the merits regarding Article 26 in Report 38/09. Case 12.670. National Association of Former Employees of the Peruvian Social Security
Institute et al. Peru. Friday, March 27, 2009. In the same vein, the Court reaffirmed said competence in the Case of Acevedo Buendía et al.
(“Discharged and Retired Employees of the Office of the Comptroller) v. Peru (Preliminary Objections, Merits, Reparations and Costs),
Judgment of July 1, 2009.
130 Article 19.6 of the Protocol allows application of the individual petitions system regulated by Articles 44-51 and 61-69 of the American
Convention on Human Rights in the event of a violation of Articles 8.1 (Trade Union Rights) and 13 (Right to Education) of the Protocol.
131 I/A Court HR. Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 15,
2005. Series C No. 298, par. 234.
126