2
3.
The judgment reiterates that Article 26 of the American Convention protects the rights
implicit in the economic, social, educational, scientific and cultural standards set forth in the
Charter of the Organization of American States (hereinafter “the OAS Charter”). In this case,
the Inter-American Court identified various provisions of the OAS Charter 4 from which it is
possible to derive the right to social security. It considered 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 it can be noted 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. On this basis,
the judgment concluded that the right to social security was a right protected by Article 26 of
the American Convention.5
4.
Having determined that the right to social security is protected under Article 26 of the
Pact of San José, the Inter-American Court proceeded to delimit this right with greater
precision giving special consideration to the American Declaration of the Rights and Duties of
Man because “the Member States of the Organization have signaled their agreement that the
Declaration contains and defines the fundamental human rights referred to in the Charter.
Thus, the Charter of the Organization cannot be interpreted and applied as far as human rights
are concerned without relating its norms, consistent with the practice of the organs of the
OAS, to the corresponding provisions of the Declaration.”6
5.
Thus, Article XVI (“Right to social security”) of the American Declaration of the Rights
and Duties of Man states clearly that “Every person has the right to social security which will
protect him from the consequences of unemployment, old age, and any disabilities arising
from causes beyond his control that make it physically or mentally impossible for him to earn
a living.”7 To establish the content of the right and the corresponding obligations with greater
precision, the Inter-American Court noted that the right to social security had been developed
extensively in international law: in Article 9 of the Protocol of San Salvador, and in Articles 22
and 25 of the Universal Declaration of Human Rights, as well as within the mandate of the
International Labour Organization (ILO) and by the Committee on Economic, Social and
Cultural Rights (hereinafter “the CESCR”) in application of Article 9 of the International
See Articles 3(j), 45(b) and (h), and 46 of the OAS Charter. Article 3(j) indicates that “[s]ocial justice and
social security are bases of lasting peace.” Article 45(b) establishes that: “(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.” In addition, Article 45
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: (h) [d]evelopment of an efficient social security policy.”
Meanwhile, Article 46 recognizes 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.” Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment
of March 6, 2019. Series C No. 375, paras. 172 and 173.
4
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March
6, 2019. Series C No. 375, para. 173.
5
Cf. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article
64 of the American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para.
43, 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. 101.
6
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 179.
7