4
rendered to the State. Even when the Court did not find, in the case in point, the
non-compliance with Article 26 of the American Convention- a conclusion that I
agree on with- such plea determined new reflections of the Tribunal about the
progressive development of such rights and its own competence to examine the
matter.
16. I recognize that the competence of the Court has been very limited, up to the
present, in reference to the rights of this nature. This treatment does not only
derive from an "explicit" restricted actionability according to the Inter-American
corpus juris, which is widely known, but from the characteristics of the cases
brought to the Court's attention and that constitute, obviously, the framework
within which the Tribunal acts to examine the Convention and the Protocol of San
Salvador.
17. The Court cannot hear cases whose flow before a court is made by means of an
application. Even then, the Tribunal has examined issues that relate to social
rights or are forthwith identified with such rights, by means of the analysis of
violations of rights embodied in the American Convention, particularly the ones
related to property, the protection of integrity (designed in health issues) or the
special measures for the protection of children.
18. In the case under study, the Tribunal has made progress, as far as it deemed
practicable, in the considerations related to the Economic, Social and Cultural
Rights. Of course, it reasserted its competence-which must be well-establishedto rule over possible non-compliance with Article 26. This issue is within the
realm of matters concerning the interpretation and application of the American
Convention, whose knowledge and solution is of the Tribunal’s concern.
19. By entering into this realm, the Court recalled several steps in the Inter-American
regulation of the matter, taking into account the regulatory procedure that led to
the framing of Article 26 and its location in the Convention, under the category of
"protected rights". It does not deal only with, then, descriptive expression that
induce public policies, but with legal methods that determine the meaning and
content of such policies, with provisions in which such policies are expressed and
with the acts in which they are implemented.
20. The Court quotes, moreover, the opinion of the Inter-American Commission on
Human Rights, the European Court of Human Rights and the Committee for the
International Covenant of Economic, Social and Cultural Rights, which have
explored the assessment of the progressive development of this kind of rights
and the indicators that would allow establishing and appraising, reasonably, the
progress as well as the regression.
21. The Court understands that the observance of Article 26 -imperative rule, not
just a political suggestion- is subject to a claim or demand before the instances
called to rule upon this aspect, within the framework of the domestic law or in
the foreign realm, according to the constitutional decisions and the international
commitments assumed by the State. The assessment has two dimensions: the
observation of the progressive development, which makes the best effort to
achieve it, and the denial of the regression, which is contrary to the principles
and the corpus juris of the human rights and that it also must be assessed by the
corresponding venues.