47
addition, Article 31, paragraph 3 of the Vienna Convention authorizes relevant agreements regarding
the interpretation of a treaty or the application of its provisions or relevant rules of international law
that States have expressed on treaty matters, which are some of the methods related to an evolving
vision of the Treaty. Thus, in order to determine the scope of the right to social security, particularly
the right to a pension in the context of a contributory State pension system, implicit in the economic,
social, educational, scientific and cultural standards set forth in the OAS Charter, the Court will refer
to the relevant instruments of the international corpus iuris.
177. This Court will now examine the scope and content of this right for the purposes of this case.
ii)
The content of the right to social security
178. As noted previously, Article 45(b) of the OAS Charter expressly states that work should be
performed under conditions that ensure life, health and a decent standard of living for the worker and
his family, both during his working years and in his old age, or when any circumstance deprives him
of the possibility of working.
179. Likewise, Article XVI186 of the American Declaration specifies the right to social security, stating
that “every person has the right to social security which will protect him from the consequences of
unemployment, old age, and any disabilities arising from causes beyond his control that make it
physically or mentally impossible for him to earn a living.”
180. Similarly, Article 9 of the Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights or "Protocol of San Salvador" (hereinafter "Protocol
of San Salvador),187 establishes that “1) Everyone shall have the right to social security protecting
him from the consequences of old age and of disability which prevents him, physically or mentally,
from securing the means for a dignified and decent existence. In the event of the death of a
beneficiary, social security benefits shall be applied to his dependents. 2) In the case of persons who
are employed, the right to social security shall cover at least medical care and an allowance or
retirement benefit in the case of work accidents or occupational disease and, in the case of women,
paid maternity leave before and after childbirth.”
181. In the universal sphere, Article 22 of the Universal Declaration of Human Rights 188 establishes
that “[e]veryone, as a member of society, has the right to social security and is entitled to the
realization, through national effort and international co-operation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights indispensable
for his dignity and the free development of his personality.” Similarly, Article 25 provides that
“everyone has the right to an adequate standard of living […] and to security in the event of
186
Approved at the Ninth Pan American Conference held in Bogotá, Colombia, 1948.
187
Adopted in San Salvador, El Salvador, on November 17, 1988, confirmed at the Eighteenth Regular Session of the
General Assembly. It entered into force on November 16, 1999. Peru signed it on November 17, 1988 and ratified it on May
17, 1995. Article 9 establishes that: “1) Everyone shall have the right to social security protecting him from the consequences
of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent
existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents. 2) In the case
of persons who are employed, the right to social security shall cover at least medical care and an allowance or retirement
benefit in the case of work accidents or occupational disease and, in the case of women, paid maternity leave before and after
childbirth.”
Adopted and proclaimed by the Resolution of General Assembly 217 A (iii) of December 10, 1948, in Paris. Article 25
establishes that: “(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of
his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his
control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.”
188