63
f)
They request the Court to determine the contents of the article on
progressive development of economic, social and cultural rights and also to
establish parameters and criteria that instruct the States on how to comply
with their juridical obligations, as well as criteria to determine how regressive
measures violate their obligations under the Convention. Moreover, it would
be “very useful” if the Court would establish guidelines that allow the State to
adopt an integrated social security policy.
The arguments of the State
144.
With regard to Article 26 of the Convention, the State alleges that:
a)
It has not violated the progressive development of the retirement
pension of the alleged victims, because the pension they are receiving, as a
result of the judicial proceedings they filed, “is considerably higher than the
one to which they would be legally entitled, if their pensions had been
regulated by the regime that corresponded to them;” in other words, in
function of the salary of the employees of the public sector labor regime and
not to those of the private sector regime; and
b)
This article contains a generic declaration that cannot be interpreted
so extensively as to claim that it sustains that, under the Peruvian social
security and pension regime, payment of pensions is absolute and cannot be
limited by law.
Considerations of the Court
145.
Article 26 of the Convention states that:
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, 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.
146. The Inter-American Commission and the representatives of the alleged
victims and their next of kin alleged that Article 26 of the American Convention had
been violated because, by reducing the amount of the pensions of the alleged
victims, the State failed to comply with its obligation to progressively develop their
economic, social and cultural rights and, in particular, did not ensure the progressive
development of their right to a pension.
147. Economic, social and cultural rights have both an individual and a collective
dimension. This Court considers that their progressive development, about which
the United Nations Committee on Economic, Social and Cultural Rights has already
ruled158, should be measured in function of the growing coverage of economic, social
and cultural rights in general, and of the right to social security and to a pension in
particular, of the entire population, bearing in mind the imperatives of social equity,
158
U.N. Doc. E/1991/23, United Nations Committee on Economic, Social and Cultural Rights,
General Comment No. 3: The nature of States Parties obligations (paragraph 1 of article 2 of the
Covenant), adopted at the Fifth Session, 1990, point 9.
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