11
declaring, for the first time, a violation of Article 26 of the American Convention. 54 In that
case, the Inter-American Court declared that Peru was responsible for violating the right to
job security of Alfredo Lagos del Campo because, following his arbitrary dismissal from the
company in which he worked, the State failed to take adequate measures to protect his right.55
This decision launched a new era in the direct and autonomous protection of the ESCER before
the Inter-American Court.
29.
As has been its practice in the case of the right to work56 or the right to health,57 in the
Muelle Flores case, the Inter-American Court has considered that the right to social security
may be derived fully from the referral made in Article 26 of the American Convention to the
economic, social, educational, scientific and cultural standards set forth in the OAS Charter.
In this regard, the Inter-American Court analyzed a series of provisions of the OAS Charter in
order to determine that the right to social security is a human right that is justiciable under
Article 26, to then establish its content and the corresponding State obligations with greater
precision based on the American Declaration of the Rights and Duties of Man, the international
corpus iuris and domestic constitutional provisions.58
30.
Even though the Inter-American Court had ruled on social security (pensions), in the
cases of the Five Pensioners and Acevedo Buendía, there are evident differences between
those judgments and the case of Muelle Flores. For example, in its first approach from the
perspective of the older person, the Inter-American Court established that social security “is
a right that seeks to protect the individual from future contingencies that, should they occur,
would have harmful consequences for that person; therefore, measures must be taken to
protect them. The right to social security seeks to protect the individual from situations that
will occur when they reach a certain age and are physically or mentally unable to obtain the
necessary means of subsistence for an adequate living standard, which may, in turn, deprive
them of their ability to fully exercise all their other rights. This aspect also relates to one of
the constituent elements of the right, because social security must be implemented in a way
that guarantees conditions that ensure life, health and a decent economic status.”59
31.
Another differentiating aspect relates to the fact that the Inter-American Court can now
examine in greater detail the obligations that a specific right entails. The Court determined
that, pursuant to the general obligations of respect and guarantee contained in Articles 1(1)
and 2 of the Pact of San José, both the obligations of an immediate nature (such as nondiscrimination), and also those that require time to implement them (such as the obligations
of a progressive nature – and consequently that of non-retrogression) are applicable to social
security. Evidently, in each case examined the Court must determine the type of obligations
Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August
31, 2017. Series C No. 340, para. 154 and fifth operative paragraph.
54
Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August
31, 2017. Series C No. 340, para. 151.
55
Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August
31, 2017. Series C No. 340, paras. 142 and 145; Case of the Dismissed Employees of Petroperú et al. v. Peru.
Preliminary objections, merits, reparations and costs. Judgment of November 23, 2017. Series C No. 344, para. 192;
and Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series
C No. 348, para. 220.
56
Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 100; and Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of August
23, 2018. Series C No. 359, paras. 75 to 97.
57
58
See supra, paras. 3 to 5 of this opinion.
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 183.
59