5
emphasizes that “in a context in which a legally recognized pension is not paid, the rights to
[Art. 26 of the American Convention], personal integrity [Art. 5(1) of the American
Convention] and human dignity [Art. 11(1) of the American Convention] are interrelated and,
at times, the violation of one directly affects the other, a situation that is accentuated in the
case of older persons.”24
10.
In this regard, in its judgment the Inter-American Court concluded that “[t]he failure
to implement the right to social security for more than 27 years seriously prejudiced the quality
of life and the health care coverage of Mr. Muelle, a person in a situation requiring special
protection because he was an older person with a disability. The violation caused by the failure
to pay the pension exceeded a reasonable time because, since this was the victim’s only
income, the prolonged absence of the payment inevitably resulted in financial hardship that
affected his ability to pay for his basic necessities and, consequently, affected his mental and
moral integrity, as well as his dignity.”25
11.
Based on this brief introduction, I am issuing this opinion to examine in more detail
some aspects of this judgment that are relevant for the future of the inter-American system:
I. The right to social security as an autonomous right and its importance for international law
(paras. 12-35). II. The failure to execute judgments on the social rights and the impact on
older persons (paras. 36-57), and III. The importance of the Case of Muelle Flores for interAmerican case law: the obligation of “exceptional due diligence” (paras. 58-68).
I. THE RIGHT TO SOCIAL SECURITY AS AN AUTONOMOUS RIGHT
AND ITS IMPORTANCE FOR INTERNATIONAL LAW
a) Universal system
12.
The right to social security was established in the universal system of human rights,
by Article 22 of the Universal Declaration of Human Rights.26 However, this right was defined
more specifically in 1966 in the International Covenant on Economic, Social and Cultural
Rights. Article 9 of that treaty stipulated that “The States Parties to the present Covenant
recognize the right of everyone to social security, including social insurance.” In particular,
the content of this right was developed by the CESCR, in General Comment No. 19 on the
right to social security.27
13.
In this regard it is important to stress the standards that have been incorporated into
inter-American case law with regard to social security and which are consistent with the
content developed by the CESCR. First, the right to social security can be conceptualized as
2019. Series C No. 375, paras. 204 to 206.
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 204.
24
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 207
25
Adopted and proclaimed by Assembly General Resolution 217 A (III) on 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.”
26
The Inter-American Court has reflected the content developed by the CESCR in General Comment No. 19 in
the instant case.
27