3
Covenant on Economic, Social and Cultural Rights (hereinafter “the ICESCR”). 8 Lastly, the
Inter-American Court determined that the right to social security was also established in
Articles 10 and 11 of the 1993 Constitution of Peru. 9
6.
It is important to point out that, when using the sources, principles and criteria of the
international corpus iuris as special norms that are applicable when determining the content
of the right to social security in order to supplement the provisions of the American
Convention, the Inter-American Court is not assuming a jurisdiction over some treaties that it
does not have, nor is it granting Convention status to norms contained in other national and
international instruments related to ESCER. 10 On the contrary, the Court is making an
interpretation pursuant to the standards established in Article 29 of the Pact of San José, 11 in
order to update the meaning of the rights derived from the OAS Charter that are recognized
by Article 26 of the American Convention.12 The consistent practice of the Inter-American
Court has been13 that, when determining the compatibility of a State’s acts and omissions or
of its laws with the American Convention, it is able to interpret the corresponding obligations
and rights in light of other pertinent treaties and norms.14
7.
Following this jurisprudential line,15 the Inter-American Court considered that the
nature and scope of the obligations derived from the protection of social security include
aspects that are immediately enforceable, as well as aspects that are of a progressive nature.
The judgment recalls that, regarding the former (the obligations that are immediately
enforceable), the States must take effective measures to ensure access, without
discrimination, to the benefits recognized by the right to social security and equal rights of
men and women, among other matters.16 Regarding the latter (obligations of a progressive
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, paras. 181, 183 and 184.
8
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 182.
9
Cf. Case of the Pacheco Tineo Family v. Bolivia, supra, para. 143, and Case of Cuscul Pivaral et al. v.
Guatemala, supra, para. 101.
10
Article 29 of the American Convention (which establishes the pro personae principle), explicitly refers to the
general rules of international law for its interpretation and application. Cf. Case of Muelle Flores v. Peru. Preliminary
objections, merits, reparations and costs. Judgment of March 6, 2019. Series C No. 375, para. 174; Case of the
Pacheco Tineo family v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of November 25,
2013. Series C No. 272, para. 143, and Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits,
reparations and costs. Judgment of August 23, 2018. Series C No. 359, para. 100.
11
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 175.
12
Cf. Case of Poblete Vilches et al. v. Chile, supra, para. 103; Case of Lagos del Campo v. Peru, supra, para.
145; Case of I.V. v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of November 30, 2016.
Series C No. 329, para. 168; Case of the Pacheco Tineo family v. Bolivia, para. 129; Case of Atala Riffo and daughters
v. Chile. Merits, reparations and costs. Judgment of February 24, 2012. Series C No. 239, para. 83; Case of Gelman
v. Uruguay. Merits and reparations. Judgment of February 24, 2011. Series C No. 221, para. 78 and 121, and Case
of Cuscul Pivaral et al. v. Guatemala, supra, para. 100.
13
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 174.
14
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 104, and Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and
costs. Judgment of August 23, 2018. Series C No. 359, para. 98.
15
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. 3, and
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. 40.
16