45
the rules of interpretation established in Article 29 of the Convention; in particular, it prohibits
any restriction or exclusion of the rights established in the American Declaration and even
those recognized in the domestic sphere. Likewise, in line with a systematic, teleological and
evolutive interpretation, the Court has referred to the national and international corpus iuris in
this matter to give specific content to the scope of the rights protected by the Convention, in
order to determine the scope of the specific obligations related to each right.176
171. In this section, the Court will rule, for the first time, on the right to social security, specifically
the autonomous right to a pension, as an integral part of ESCER and to that end will proceed as
follows: a) the right to social security as an autonomous and justiciable right; b) the content of the
right to social security, and c) effects on the right to social security in the instant case.
i)
The right to social security as an autonomous and justiciable right
172. To identify those rights that can be derived interpretatively from Article 26, it is necessary to
consider that this refers directly to the economic, social, educational, scientific and cultural standards
set forth in the OAS Charter. From a reading of the latter instrument, the Court notes that it
recognizes social security in Article 3(j)177 stating that “Social justice and social security are the bases
of lasting peace.” Likewise, Article 45(b)178 of the OAS Charter establishes that “b) Work is a right
and a social duty, it gives dignity to the one who performs it, and it should be performed under
conditions, including a system of fair wages, 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.” Meanwhile, Article 45 of the Charter179 establishes that
“man can only achieve the full realization of his aspirations within a just social order.” Therefore, the
Member States agree to dedicate every effort to the application of certain principles and mechanisms,
including, “(h) the development of an efficient social security policy.” In Article 46 of the Charter the
States recognize that “to facilitate the process of Latin American regional integration, it is necessary
to harmonize the social legislation of the developing countries, especially in the labor and social security
fields, so that the rights of the workers shall be equally protected, and they agree to make the greatest
efforts possible to achieve this goal.”
173. Thus, the Court considers that the right to social security is referred to with a sufficient degree
of specificity in the OAS Charter to establish its existence and implicit recognition. In particular, from
the different references, the Court notes that the purpose of the right to social security is to ensure
life, health and a decent standard of living to everyone in their old age, or in the case of events that
deprive them of the possibility of working; that is, in relation to future events that could affect their
quality of life. Accordingly, the Court considers that the right to social security is a right protected by
Article 26 of the American Convention.
174. It is for this Court, then, to determine the scope of the right to social security, in particular the
right to a pension in the context of this case (supra para. 171), in light of the international corpus
iuris on the matter. The Court recalls that the obligations contained in Articles 1(1) and 2 of the
176
Cf. Case of Poblete Vilches et al. v. Chile, supra, para. 103, and Case of Cuscul Pivaral et al. v. Guatemala, supra, para.
73.
177
Article 3(j) of the OAS Charter indicates that “[s]ocial justice and social security are the bases of lasting peace.”
Article 45 of the OAS Charter establishes that “[t]he Member States, convinced that man can only achieve the full
realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate
every effort to the application of the following principles and mechanisms: (b) [w]ork is a right and a social duty, it gives
dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, 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
Article 45(h) of the OAS Charter refers to: “[d]evelopment of an efficient social security policy.”
178