5.
This judgment dedicates a special section to “The Duty of Special Protection for Older
Persons,” 5 an issue that it transversally considers 6 and that, in general terms, states that “in
the case of people who are in a situation of vulnerability, such as the alleged victims in this
case, who are all older persons, a reinforced standard of expeditiousness can be required in
all judicial and administrative processes, including the execution of the judgments.” 7
6.
It is important to develop two aspects of this opinion: (i) visibilizing the rights of older
persons, especially those that the Court has evolved in its case law since 2018 and those
established in the Inter-American Convention on Protecting the Human Rights of Older
Persons of 2015 (hereinafter also “the IACPOP”) and (ii) in enriching other reflections that
have been offered on the issue, I will refer to wages as part of the right to work derived from
Article 25 of the Convention.
II. TO MAKE VISIBLE THE “INVISIBLE?”: OLDER PERSONS AS AN ESPECIALLY
VULNERABLE GROUP
A. “Age” as a category of special protection for older persons
7.
Domestic and international law has been particularly distinguished by the continual
evolution of the content of different rights that are recognized everywhere and particularly
where the regional human rights systems have an impact. Hand in hand with this continual
evolution of the substantive content of human rights has been the evolution of the groups of
persons to which these rights are directed.
8.
For example, we have seen this tendency embodied in the international instruments
that, in the historic moment of their adoption, identified only certain specially protected
groups. As an example, Article 1(1) of the American Convention in its clause on nondiscrimination (the article has also served as a reference point to identify especially vulnerable
groups), 8 lists as protected categories “race, color, sex, language, religion, political or other
opinion, national or social origin, economic status, birth, or any other social condition,” which
is the same formulation used in other international human rights treaties. 9
9.
However, these clauses were not sufficiently ample when other sectors of society
claimed rights and did not find in those formulations a category that protected them or that
granted them a differentiated focus with regard to their rights. Fortunately, some international
instruments contemplated “clauses that incorporate suspect categories.” The Convention
contemplates, in its Article 1(1), such a possibility with the phrase “or any other social
condition.” In the words of the Court: “when interpreting the phrase ‘any other social
condition’ of Article (1) of the Convention, the most favorable alternative for the safeguard of
the rights protected by the treaty must be chosen, according to the pro homine principle.” 10
Cf. Case of National Federation of Maritime and Port Workers (FEMAPOR) v. Peru. Preliminary Objections,
Merits and Reparations. Judgment of February 1, 2022, paras. 79-83.
6
Ibídem, paras. 4, 79-83 and 110.
7
Ibídem, para. 83. Se also, Case of Teachers of Chañaral and other municipalities v. Chile. Preliminary
Objection, Merits, Reparations and Costs. Judgment of November 10, 2021. Series C No. 443, para. 152.
8
In this regard, in Ximenes Lopes v. Brazil, the I/A Court stated that “103. […] any person who is in a
vulnerable condition is entitled to special protection, which must be provided by the States if they are to comply with
their general duties to respect and guarantee human rights. The Court reaffirms that not only should the States
refrain from violating such rights, but also adopt positive measures, to be determined according to the specific needs
of protection of the legal person, either because of his personal condition or the specific situation he is in […].”
9
For example, see Articles 2(1) of the International Covenant on Civil and Political Rights and 2(2) of the
International Covenant on Economic, Social and Cultural Rights.
10
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and
29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para.
5
2