4
nature), progressive development means that the States Parties have the specific and
constant obligation to advance as rapidly and efficiently as possible towards the full realization
of this right,17 subject to available resources, by legislation or other appropriate means. 18 In
addition, there is an obligation of non-retrogression vis-a-vis the rights achieved.19
Consequently, the obligations of respect and guarantee established in the Convention, as well
as the domestic legal effects (Articles 1(1) and 2 of the American Convention), are essential
to achieve its effectiveness.
8.
As the judgment indicates, in each case examined, it is necessary to determine which
type of obligations are involved in relation to the right to social security.20 The Inter-American
Court noted that this case did not relate to the obligations of progressive development derived
from Article 26 of the American Convention, but rather to the failure to implement the right
to a pension as an integral part of the right to social security of Mr. Muelle Flores owing to the
failure to execute and comply with the judgments handed down in his favor in the domestic
sphere in the context of the privatization of the State company following his retirement. 21
9.
In addition, the judgment addresses relevant aspects of the issue of older persons as
a group in a situation of special vulnerability in relation to the enjoyment of the social rights,22
as well as the particular impact – material and emotional – on older persons of the failure to
execute domestic judgments that protect the right to social security. 23 The judgment
Cf. UN, Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States
Parties’ Obligations (Art. 2, Para. 1, of the Covenant), December 14, 1990, UN Doc. E/1991/23, para. 9, and
Committee on Economic, Social and Cultural Rights, General Comment No. 19, The right to social security (Article 9),
February 4, 2008, paras. 40 and 41.
17
Article 26 of the Convention establishes: “Article 26. Progressive Development. The States Parties undertake
to adopt measures, both internally and through international cooperation, especially those of an economic and
technical nature, with a view to achieving progressively, subject to available resources, by legislation or other
appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural
standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos
Aires.”
18
Cf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru.
Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, paras. 102 and
103; and Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 104. See also: “Working Group to Examine the National Reports envisioned in the Protocol of San
Salvador.” Initially, the Working Group prepared the document “Progress indicators for measuring rights under the
Protocol of San Salvador,” OEA/Ser.L/XXV.2.1; GT/PSS/doc.2/11 rev.2, of December 16, 2011, based on the
guidelines and criteria presented by the Inter-American Commission on Human Rights. Following consultations with
the States and civil society, these were adopted by the Forty-second General Assembly held in Cochabamba, Bolivia
in June 2012 (AG/RES. 2713 (XLII-O/12). On that occasion, the rights to social security, health and education were
addressed. Subsequently, a second group of rights was addressed and the Working Group issued the “Progress
indicators for measuring rights contemplated in the Protocol of San Salvador – second group of rights,”
OEA/Ser.L/XXV.2.1 GT/PSS/doc.9/13, adopted by the OAS General Assembly in Resolution AG/RES. 2823 (XLIVO/14), at the second plenary session on June 4, 2014. Finally, in 2015, the Working Group combined the two groups
of rights and published the document “Progress indicators for measuring rights contemplated in the Protocol of San
Salvador,” OEA/Ser.D/XXVI.11 (2015). On that occasions, they addressed the right to work and trade union rights,
the right to adequate food, a healthy environment, and the benefits of culture. Cf. UN, Committee on Economic,
Social and Cultural Rights, General Comment No. 19, The right to social security (Art. 9 of the Covenant), February
4, 2008, para. 42.
19
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, paras. 190, 191 and 202.
20
Mr. Muelle Flores acquired his right to a pension under a State-administered contribution regime; in other
words, he acquired the right to receive a pension having made contributions for several years. The legitimacy of his
incorporation into this regime was confirmed by the domestic courts.
21
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 207.
22
23
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,