justicability of economic, social and cultural rights in the inter

Justicability of Economic, Social and Cultural Rights in the Inter-AmericanSystem of Protection of Human Rights: Beyond Traditional Paradigmsand Notions

Tinta, Mónica Feria.

Human Rights Quarterly, Volume 29, Number 2, May 2007, pp. 431-459(Article)

Published by The Johns Hopkins University PressDOI: 10.1353/hrq.2007.0024

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 29 (2007) 431–459 © 2007 by The Johns Hopkins University Press

Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions

Mónica Feria Tinta*

ABSTRACT

The separation of human rights into two distinct sets remains the underlying paradigm of most legal thinking produced on the subject of economic, social, and cultural rights. From this perspective international law appears as a static, rigid system of watertight legal compartments: even when acknowledging some interrelatedness, the compartments remain the rule nevertheless. This

* Monica Feria practices public international law and is currently representing victims before the Inter-American Court on Human Rights. She litigated the Brothers Gómez Paquiyauri case and more recently the Miguel Castro Castro prison case on behalf of 800 victims. She holds a LL.M. (with merit) (London) and was awarded the Diplome of the Hague Academy of International Law (2000). Her subject paper for the Hague Diplome was the “Proliferation of International Tribunals and the Role of the Jurisprudence.” She received further training in international law at the UN International Law Commission Thirty-Sixth Seminar in interna-tional law—Fellowship Program in Geneva; at the Institute of Human Rights in Strasbourg; and at the Institute of Human Rights at the Abo Academy in Finland. She worked at the ICTY (Chambers) in 1999 and at the International Court of Justice in 2000. She formed part of the State Delegation of Comoros Islands (legal counsel) during the Rome Diplomatic Conference for the Establishment of an International Criminal Court. She was Visiting Scholar at the Lauterpacht Center for International Law at the University of Cambridge and taught Public International Law at LSE and at the South Bank University. Expert opinions provided in different international fora has included a joint Amicus Curiae with Professor John Dugard (former Special Rapporteur on Diplomatic Protection at the ILC) for the Appeals Court of Amsterdam, in the Bouterse case, and expert comments on behalf of the Redress Trust to the Final Report of the UN Independent Expert on the Right of Reparation for Victims of Serious Violations of Human Rights and Humanitarian Law, Cherif Bassiouni. She is the author of a number of articles in the areas of international human rights law, humanitarian law and international criminal law.

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article is written from a perspective that takes a different view. Artificial separations are just that: artificial. Rights in real life are interwoven and each, in its own right, pose challenges to the legal mind, to provide a remedy. Justiciability is no longer a matter of perfectly dissecting and distinguishing the inseparable but of finding the key relations between apparently separate notions. Remedies can take “a myriad of forms.” By looking into the practice of the Inter-American Court of Human Rights through the analysis of its case law, this article first provides a theoretical point of departure under general international law for understanding economic, social, and cultural rights as primary rules. It then analyses the current jurisprudence of the Court in its integrated approach to rights. It finally goes on to analyze the different manners in which this organ has been providing remedies for violations of these primary rules. From the implementation of interim measures in favor of HIV patients (right to health) to the development of doctrinal notions of the right to life including the right to a “dignified and decent existence” to its substantive approach to the interpretation of human rights under the American Convention, this article argues that the jurisprudence of the Inter-American Court of Human Rights—paradoxically coming from a poverty-stricken region—is contributing to a new era of effectively dealing with violations of economic, social, and cultural rights.

I. INTRodUCTIoN

Much of the doctrinaire debate about economic, social, and cultural rights throughout the second half of the last century sprang from a legal fiction: that of the separation of human rights into two distinct sets. Consequently, discussions and dominant legal thinking on the subject revolved around the topic of the legal nature of one set of rights—economic, social, and cultural rights—as compared to the other—civil and political rights.1 The terms of this doctrinaire debate were dictated by those who denied that economic, social, and cultural rights were “legal” rights, on the basis that they were not of “immediate application” but merely aspirations of “progressive realization” (subject to resources). Whereas civil and political rights were considered

1. E.W Vierdag, The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 NetherlaNds Y.B. INt’l l. 69 (1978); Marc Bossuyt, La distinction juridique entre les droits civil et politiques et les droits economiques, sociaux et culturels, 8 revue des droIts de l’homme 783, 789–91 (1975); G.J.H. van Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views, in the rIght to Food (Philip Alston & Katarina Tomasevski eds., 1984) reproduced in heNrY J. steINer & PhIlIP alstoN, INterNatIoNal humaN rIghts IN CoNtext 279–83 (1996). See also Philip Alston & Gerard Quinn, The Nature and Scope of State Obligations under the International Covenant on Economic, Social, and Cultural Rights, 9 hum. rts. Q. 156 (1987); Martin Scheinin, Economic and Social Rights as Legal Rights, in eCoNomIC soCIal aNd Cultural rIghts (Asbjørn Eide, Catarina Krause & Allan Rosas eds., 2001).

2007 Beyond Traditional Paradigms and Notions 433

“law” for their “immediate applicability” (requiring from the state negative action only—a “hands off” obligation), economic, social, and cultural rights were seen as “needs” requiring positive action and interventionist policies. At best, economic, social, and cultural rights were perceived as directives and not as giving rise to legally binding duties. Even in the event that one could consider that economic, social, and cultural rights entailed “obligations of some sort,” it was pointed out that those were “obligations of conduct” in contrast to civil and political rights which entailed essentially “obligations of result.”

Responses to such arguments did two things. On the one hand, they succeeded in quite successfully breaking the artificial watertight compart-mentalization of the nature of obligations assigned to each set of rights. These responses showed that all human rights entail positive and negative obligations on the part of states and that civil and political rights could entail obligations of conduct as much as economic and cultural rights may entail obligations of result. On the other hand, they did not succeed in breaking the terms of the discussion. By comparing and showing the similarities in both set of rights, the idea that there are indeed “two sets of rights” (beyond the legal fiction of it), was reinforced. The long term effect of addressing economic, social, and cultural rights in such a fashion had an unintended result: legal thinking on such rights remained predominantly within the realm of what may be called the “legal nature of economic, social, and cultural rights versus the legal nature of civil and political rights” paradigm. Thus, even those who argue that economic, social, and cultural rights are legal rights have been trapped in the above dichotomy or legal fiction, acknowledging to a certain extent that economic, social, and cultural rights have a somehow “handicapped” legal nature: that “they have problems of applicability.”

Martin Scheinin, for example, considers that “the problem relating to the legal nature of social and economic rights does not relate to their valid-ity but rather to their applicability.”2 Philip Alston points to the “vagueness of many of the rights as formulated in the Covenant [on Economic, Social and Cultural rights] and the resulting lack in the clarity as to their norma-tive implications,” as a key problem for the “underdeveloped justiciability” of such rights.3

The issue of justiciability, or the capability of rights to be vindicated before courts, had been an issue of major debate within the above-referred para-digm. Indeed, the paradigm led to a crucial final test: proving the existence of a legal entitlement to economic, social, and cultural rights by reference to their capability of being vindicated before courts (the existence of remedies

2. Scheinin, supra note 1, at 29, emphasis added. 3. Id. at 31, citing Philip Alston, No Right to Complain About Being Poor: The Need for

an Optional Protocol to the Economic Rights Covenant, in the Future oF humaN rIghts ProteCtIoN IN a ChaNgINg World 86 (Asbjørn Eide & Jan Helgesen eds., 1991).


becoming the point of reference to the existence of rights). Yet, as pointed out by Rosalyn Higgins, “to define a right by reference to the ability of the party upon whom the obligation lies—the state—to provide it immediately” or by the existence of course of action to bring a legal claim to vindicate it is not the test of existence of rights under international law.4 Higgins quite rightly stated: “Problems about delivery leave [one’s] right a right none the less.”5 Higgins added, “to the international lawyer, the existence of a right is tested by reference to the sources of international law” alone.6 Current academic writing clearly agrees with this view. However, it does recognize nevertheless an “underdeveloped justiciability” of economic, social, and cultural rights by reference to their legal nature itself for reasons of not containing precise enough language in their formulation in treaties or otherwise.

But are civil and political rights more precise in nature? For example, the prohibition of torture may be very precise in appearance: “do not torture”; but haven’t we achieved precision of what torture actually means through the construction of such provision in the constant jurisprudence of international courts? By depriving treaties on economic, social, and cultural rights of ju-dicial enforcement mechanisms have states not in fact deprived them of that “precision”? Have states not, in fact, deprived them from authoritative case law where the content of obligations and rights have been fully construed, as much as from judicial means to vindicate such rights? Indeed, warnings of the dangers of the inadequate attention given to economic, social, and cultural rights and the negative impact on the notion of indivisibility and interdependence of rights were made within United Nations fora as far back as the 1980s.7 Such inadequate attention came not only from states but also from nongovernmental (NGO) sectors. Promotion of economic, social, and cultural rights did not appear in the mandates of international NGOs (with the notable exception of the New York based Center for Economic and Social Rights)8 until very recently.9

4. Rosalyn Higgins, PRoblems and PRocess: inteRnational law and How we Use it 99–100 (1994).

5. Id. at 99. 6. Id. at 100. 7. See United Nations Secretary-General comments as quoted by Asbjørn Eide, The Right

to Food (Final Report), ¶ 39, U.N. Doc. E/CN.4/Sub.2/1987/23 (1987). 8. CESR was the first international human rights NGO to focus on violations of the rights

to health, housing, food, education, and work resulting from poverty and economic exploitation.

9. See, e.g., the case of Human Rights Watch which only recently started to address economic, social, and cultural rights in its reports. Today it can be read in its website: available at http://www.hrw.org/doc/?t=esc.

Since its formation in 1978, Human Rights Watch has focused mainly on upholding civil and political rights, but in recent years we have increasingly addressed economic, social and cultural rights as well. We focus particularly on situations in which our methodology of investigation and reporting is most effective, such as when arbitrary or discriminatory governmental conduct lies behind an economic, social and cultural rights violation.


Less well-equipped, but rights after all, economic, social, and cultural rights have found an alternative way to construe their provisions (other-wise done by judicial activity) in the work of Experts, Special Rapporteurs within the United Nations and publicists. Special Rapporteur Asbjørn Eide’s study on the normative content of the right to food back in 1987 became an important source of reference to construe not just the right to food but to address fundamental questions on economic, social, and cultural rights as a whole which are fully relevant today.10 The work of the Experts of the Committee on Economic, Social and Cultural Rights with their General Comments and constant monitoring of state practice has equally produced important authoritative means of construing obligations.

Where are we standing today then? After years of elaboration and clarification of legal notions around economic, social, and cultural rights, we are at the same point where everything started, albeit now in a more enlightened and conscious state.11 The reality of international law has shown that artificial separations of the two sets of rights do not occur in real cases. Just as a human being exists in reality as a “whole,” rights are intertwined and interwoven, existing as a living organism. Justiciability is no longer a matter of perfectly dissecting and distinguishing the inseparable: “here is the right to life and here the right to health” or “here is freedom from torture” and here “the right not to be starved.” Human rights are indeed indivisible. Thus when making them justiciable, Higgins’s lucid remark makes full sense: “remedies may take a myriad of forms.”12 Justiciability of rights is about re-instating rights; properly understanding that they only appear interrelated in real cases. The reality of international law shows that there is not room for “watertight compartments” notions under international law: concepts apply in unexpected circumstances and locations, and the discovery of how “one legal concept bears on another apparently unrelated matter” is one of the great excitements of this body of law.13

Surprising as it may appear, Latin America, a region where entire populations live below the poverty line, has been the region where crucial developments in that sense have taken place. The current work of judicial and quasi-judicial organs of human rights protection in the South American hemisphere took up the challenge to go beyond artificial separations of rights and placed in full light the original indivisible, interdependent, and inter-related character of human rights. These judicial and quasi-judicial bodies

10. See Eide, supra note 7. 11. As pointed out by Eide in his seminal report, the indivisibility and interdependence of the

two sets of human rights has been a fundamental tenet of the United Nations doctrine on human rights as reflected most notable in General Assembly Resolution 32/130. See id. ¶ 40.

12. hIggINs, supra note 4, at 99. 13. Id. at vi.


did so both through techniques of interpretation specific to human rights treaties in line with the Law of Treaties as well as by fully addressing the legal consequences of the violations derived from the State Responsibility doctrine. The result: economic, social, and cultural rights have been made justiciable through international judicial and quasi-judicial action in the inter-American system in a myriad of forms.

This article is not concerned with an account of the historical evolu-tion of economic, social, and cultural rights in the normative framework of regional organs in the inter-American system of protection of human rights. That subject is already covered by many publicists’ writings in the area.14 This article deals with something different. it examines the practice of the inter-American organs in settling human rights cases in order to formulate a legal analysis of the different forms in which economic, social, and cultural rights have been made justiciable by the inter-American Court of Human Rights and the inter-American Commission of Human Rights. As reflected in their case law, these organs have done so through their contentious procedures, under the American Convention on Human Rights and the American declaration on the Rights and duties of Man. Rather than pre-tending to be a full review of all cases where economic, social, and cultural rights have been addressed (a task that can possibly fill a book today), this article instead aims to provide a legal framework and tools of analysis to understand such developments within the inter-American system in light of general international law.

The article is divided into four sections. The preliminary section deals with the general question of whether the notion of “a victim of a human rights violation” is appropriate in the context of economic, social, and cultural rights. it is submitted that in accordance with general rules of international law on State Responsibility, the violation of economic, social, and cultural rights constitutes an injury under international law thereby creating a right to a remedy on the part of the injured party. States have a correlated duty to provide a reparation, just as in the case of any violation of other primary rules of international law.

Consistent with the fact that the victim or injured party does exist in the context of economic, social, and cultural rights, this article turns then to analyze the different mechanisms used by inter-American organs to pro-vide redress for violations of economic, social, and cultural rights. in cases before the inter-American Commission of Human Rights, which also applies

14. See, e.g., Mónica Pinto, Los derechos económicos, sociales y culturales y su protección en el sistema universal y en el sistema interamericano, 40 Revista instituto inteRameRicano de deRechos humanos 26–86 (2004). See also Manuel E. Ventura Robles, Jurisprudencia de la Corte Inter-Americana de Derechos Humanos en materia de derechos económi-cos, sociales y culturales, 40 Revista instituto inteRameRicano de deRechos humanos 87–131 (2004).


the American Declaration that contains primary rules on the protection of civil and political rights as well as economic, social, and cultural rights, remedies may be called as direct consequence of the violation of provisions directly mentioning economic, social, and cultural rights. In cases before the Inter-American Court of Human Rights (which asserts jurisdiction under the American Convention on Human Rights) redress for victims of economic, social, and cultural rights has required a dynamic interpretation of legal rights under the Convention that construes duties of states in a manner that integrates economic, social, and cultural rights with notions of rights already enshrined within the Convention.

Section two of this article discusses such jurisprudence. It is argued in that respect that the Inter-American organs have consistently developed jurisprudence following what may be called “the indivisibility and interde-pendence of rights approach. The right to life or right to humane treatment appears interwoven with the right to health, the right to livelihood, the right to food, or the right to education in its jurisprudencia constante. The right to existence of indigenous populations (with their own social and cultural specificities) has appeared in the interpretation of the right to life, the right to integrity, and the right to property, linked to the right to health, to education, and to the social and cultural rights of such populations. Article 1 of the American Convention, concerned with the obligation to respect and ensure rights within the Convention, has given rise to obligations to develop programs that address economic, social, and cultural rights. Freedom of association has been construed in cases involving workers by necessary reference to trade union rights. The right to life, in accordance with the jurisprudence of the Court, has been construed to include the notion of a “dignified and decent existence,” which necessarily encompasses ensuring basic economic, social, and cultural rights. Equal protection and non-discrimination have similarly been construed in light of economic, social, and cultural rights, including the just, equitable, and satisfactory conditions of work; the right to social security; the right to a healthy environment; and the right to have access to basic public services.

I have identified three main clusters of contentious cases relevant for this analysis: cases concerning children (with Article 19 of the American Convention cross-cutting all other rights), cases concerning indigenous populations, and cases concerning workers rights. Indeed, an integrated view of protection of rights in the Inter-American system has resulted from dealing increasingly with the rights of the most vulnerable and disadvantaged groups in Latin American society: street children, children in institutions, indigenous populations, displaced peoples, migrants, manual workers, and prison populations.

The article then discusses the justiciability of economic, social, and cultural rights through the implementation of reparation measures in conten-


tious cases before the Court. For some, this may reflect “judicial activism” or taking the role of policy making, particularly now that the Court is dealing more and more with claims concerning multiple victims.15 Such a view, however, has not adequately examined the jurisprudence in question in light of general rules of State Responsibility. It is submitted here that judgments of the Court in those cases have been made fully in accordance with the rules governing State Responsibility and reparation for wrongful acts under general international law, which includes adopting measures of satisfaction and guarantees of non-repetition to redress violations. It is under these two headings that the most fascinating measures of justiciability of economic, social, and cultural rights have been adopted in the jurisprudence of the Court.

Finally, the article looks at provisional measures of protection in the Inter-American system, as an innovative mechanism by which economic, social, and cultural rights have been enforced. It is discussed therein how the right to health (linked to the right to integrity and the right to life) has been implemented in cases of HIV patients or prisoners requiring treatment for multi-resistant tuberculosis.

II. IS THE NoTIoN of “A VIcTIM of A HUMAN RIGHTS VIoLATIoN” AppRopRIATE IN THE coNTExT of EcoNoMIc, SocIAL, ANd cULTURAL RIGHTS?

A. The Notion of Injured party under General International Law and the Notion of Victim in the context of Human Rights Law

There must be an international wrongful act—that is—a violation of a sub-stantive norm, for the right to reparation to exist under international law. That is, the violation of a substantive norm, or primary rule, of international law. Thus, under general international law, the right to reparation is a legal consequence of an international wrongful act attributable to the state.16

15. This view was expressed for example by Juan Carlos Gutierrez, Los derechos económicos, sociales y culturales en las sentencias de reparaciones emitidas por la Corte Interameri-cana de Derechos Humanos, Paper presented at the symposium “The Inter-American Court of Human Rights at 25 Years of Existence,” organized by the Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de Mexico (25–26 Oct. 2005).

16. For a sound source of the general principles governing State Responsibility, refer to the Draft Articles on Responsibility of States for International Wrongful Acts with their commentaries as adopted by the International Law Commission. For an excellent com-pilation of such work see James Crawford, The InTernaTIonal law CommIssIon’s arTICles on sTaTe responsIbIlITy (2002).


Wrongful conduct of the state may consist of acts or omissions.17 The right to reparation is a fundamental rule of international law, and forms part of customary international law.18

The holder of the right to reparation is logically the party that has been injured by the wrongful conduct.19 In accordance with the general rules of State Responsibility, such a party is the one “whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act.”20 In the area of human rights law, the injured party is the individual whose rights have been violated.21 This injured party is also referred to as “the victim.” Having defined in this manner the notion of victim, we will now discuss this notion in the context of economic, social, and cultural rights.

B. The Notion of Victim in the Context of Economic, Social, and Cultural Rights

The first issue is whether economic, social, and cultural rights are law at all. That is, are they legal obligations giving rise to legal consequences? This question takes us to the very debate of whether social, economic, and cultural rights are mere “programmatic” rights as opposed to “legal” rights. Whereas it is generally unquestionable that the violation of a civil and political right gives rise to a right to reparation, the issue of whether one could talk about “a violation” of an economic, social, and cultural right may still appear controversial. Indeed, it is often argued that such “rights” are actually “needs,” “wants” or “ political claims,” that they are not law but instead “politics” or policy that could only be promoted progressively. It is further argued that they are at best directive as opposed to binding, and that there are not judicial remedies to redress their lack of observance.22 This approach to economic, social, and cultural rights is unjustified. Indeed, as pointed out by van Hoof, there are four levels of obligations (respect, protect, ensure, and promote) which are as applicable to economic, social, and cultural rights just as they are applicable to civil and political rights.23

17. Id. art. 2, at 81. 18. Id. art. 31, ¶ 1, commentaries, at 201–06; art. 30, commentaries, at 196–200; 211–

41. 19. Id. at 254–60. 20. Id. at 254. 21. However, this does not affect the fact that any state party to a human rights conven-

tion may well be entitled to invoke the responsibility of another state for the breach of an obligation enshrined in that convention in detriment of individuals who are the beneficiaries of those rights.

22. For an interesting analysis of these views see van Hoof, supra note 1. 23. Id. at 106.


The Committee on Economic, Social and Cultural Rights has equally stressed the different levels of obligations that arise from the various rights enshrined in the Covenant on Economic Social and Cultural rights (respect, promote, and fulfill). At the level of “respect” there is the duty, for instance, on the part of the state not to interfere with the enjoyment of certain economic, social, and cultural rights. This would be relevant for the right of a people “not to be deprived of its own means of subsistence” or to dispose freely of its natural wealth and resources (Article 2, ICESCR). The obligation to respect the right to food, for instance, according to van Hoof, “implies that a government may not expropriate land from people for whom access to control over that land constitutes the only or main asset by which they satisfy their food needs, unless appropriate alternative measures are taken.”24 The obligation to “protect” the right to food would include, from this perspec-tive, the duty on the part of the state to prevent others from interfering by “depriving people [ . . . ] from their main resource base to satisfy their food needs, such as access to land, water, markets, or jobs.”25

In fact, as pointed out by the Committee on Economic Social and Cul-tural Rights, there are a number of provisions related to economic, social, and cultural rights that impose various obligations of immediate effect. For example, the obligation (“undertaking to guarantee”) to exercise that eco-nomic, social, and cultural right without discrimination or the obligation to “take steps” by all appropriate means, including the adoption of legislative measures in the field of economic, social, and cultural rights.26

The Committee has stated that the very raison d’etre of the Covenant on Economic, Social and Cultural rights is to establish clear obligations for states’ parties in respect of full realization of the rights in question. It has equally emphasized that a minimum core of obligations to ensure satisfac-tion of, at the very least, minimum essential levels of each of the rights, is incumbent upon each state party.27 The Committee has pointed out that “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant” (on Economic Social and Cultural rights).28 Indeed “a failure by a State party to comply with an ob-ligation contained in the Covenant is under international law, a violation of the Covenant.”29

24. Id. at 107. 25. Id. 26. See Committee on Economic, Social and Cultural Rights: Report on the Fifth Session,

Supp. No. 3, Gen. Comment No. 3, U.N. Doc. E/1991/23 (1990). 27. Id. ¶ 10. 28. Id. 29. The Limburg Principles on the Implementation of the International Covenant on Eco-

nomic, Social and Cultural Rights, ¶ 70, U.N. Doc. E/CN.4/1987/17 (1987).


These violations clearly cause an injury to individuals and constitute a breach of a primary rule under international law. It follows, then, that the legal consequence is the duty to provide reparation to the injured party. Thus, the notion of victim applies in this area of the law as in any area of international law. Tied to this notion, however, is the very issue of remedies. And it is in this area (the area of justiciability), where there appears to exist a crucial test of the possibility to treat economic, social, and cultural rights on the same footing with other types of primary rules. In that respect, the Committee has pointed out that each state party to the Covenant undertakes in Article 2.3 (a) of the Covenant “that any person whose rights or freedoms as [therein] recognized are violated shall have an effective remedy.” Moreover, in General Comment 3 (1990) the Committee cited a number of rights whose implementation is immediate: Article 3 (equal rights of men and women); Article 7 paragraph (a)(i) (fair wages, non discrimination against women); Article 8 (right to form trade unions, right to strike); Article 10 paragraph 3 (protection of children and young persons from economic exploitation, harmful employment); Article 13 paragraph 2(a) (Primary education shall be compulsory and available free to all); Article 13 paragraph 3 and 4 (respect the liberty of parents to choose their children’s schools); and paragraph 15 paragraph 3 (non-interference with the establishment of educational institu-tions). According to the Committee, “there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions.”30 It further pointed out:

It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the re-spective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capac-ity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.31

Remedies in this sense can be not only judicial but also administrative.32 With respect to the right to food, it is important to note that the Committee has pointed out the following:

30. General Comment No. 9, Report of the Committee on Economic, Social and Cultural Rights,, 19th Sess., ¶ 10, U.N. Doc. E/C.12/1998/24 (1998).

31. Id. 32. Id. ¶ 9.


Any person or group who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition.33

The same has been stated with respect to the right to health.34 In fact, this statement would be consistent with the general rules of international law with regard to any violation of a primary rule, including those concerning economic, social, and cultural rights. In addition, it should be considered that economic, social, and cultural rights often appear to be justiciable through the justiciability of some civil and political rights. The most obvious examples are the right to life and the right protecting the dignity of persons. The Committee itself has highlighted, in the case of the right to food, that this right “is indivisibly linked to the inherent dignity of the human person.”35 It is submitted that the same principle applies to all economic, social, and cultural rights.

In conclusion, it is justified to say that, as highlighted in the Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights:

[I]t is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.36 . . .

As in the case with civil and political rights, both individuals and groups can be victims of violations of economics, social and cultural rights.37

The practice of the regional organs of protection of human rights in the Inter-American system has brought this statement into real application.

33. General Comment No. 12, Report on the Committee on Economic, Social and Cultural Rights, 20th Sess., ¶ 32, U.N. Doc. E/2000/22 (1999), The Right to adequate Food, (art. 11 of the International Covenant on Economic, Social and Cultural Rights).

34. General Comment No. 14, Report on the Committee on Economic, Social and Cultural Rights, 22d Sess., ¶ 59, U.N. Doc. E/C.12/2000/4 (2000), The Right to the highest at-tainable standard of health (art. 12 of the International Covenant on Economic, Social and Cultural Rights).

35. General Comment No. 12, supra note 33, ¶ 4. 36. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20

hum. rts. Q. 691, ¶ 4 (1998). 37. Id. ¶ 20.


III. THE INdIVISIBILITY ANd INTERdEPENdENCE of RIGHTS IN THE JURISPRUdENCE of THE INTER-AMERICAN SYSTEM: THE JUSTICIABILITY of ECoNoMIC, SoCIAL, ANd CULTURAL RIGHTS THRoUGH THE dYNAMIC INTERPRETATIoN of RIGHTS UNdER THE AMERICAN CoNVENTIoN

The Inter-American Court has made economic, social, and cultural rights justiciable by its use of principles of interpretation of the American Con-vention. The Court has highlighted principles of general international law that are fully relevant as tools in the protection of human rights and for the Court’s jurisdictional functions. Thus, when interpreting a treaty, “not only the agreements and instruments formally related to it should be taken into consideration (Article 31.2 of the Vienna Convention), but also the system within which it is (inscribed) (Article 31.3).”38

Taking into account the entire prevailing system relevant to the exami-nation of the American Convention has meant, in that respect, to take into account not only regional instruments that further shed light on the obliga-tions of state parties of the American Convention (such as the American Declaration of the Rights and Duties of Man—which contains economic, social, and cultural rights as well as civil and political rights in one single instrument; the Charter of the OAS—which contains reference to economic, social, educational, scientific, and cultural standards for the Organization of American States; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”39 and other regional treaties); but also other conventions and international standards that also constitute the system of law in which the American Convention is inscribed.

The Court has indicated that this focus is particularly important for inter-national human rights law, which has advanced substantially by the evolving interpretation of international protection instruments. It pointed out:

This evolutive interpretation is consequent with the general rules of the inter-pretation of treaties embodied in the 1969 Vienna Convention. Both this Court . . . and the European Court . . . have indicated that human rights treaties are

38. The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law. Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser A) No. 16, ¶ 113 (1 Oct. 1999), cited in Villagrán Morales et al case, Inter-Am. Ct. H.R. (ser C), No. 63., ¶ 192 (19 Nov. 1999).

39. Protocol of San Salvador, entered into force 16 Nov. 1999. It consists of twenty-two articles on economic, social and cultural rights which complement the American Con-vention. As of May 2001 the following countries had ratified it: Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico Panama, Paraguay, Peru, Suriname, and Uruguay.


living instruments, the interpretation of which must evolve over time in view of existing circumstances.40

Moreover, the American Convention also contains Article 26 in which states undertake to adopt measures to reach full realization of the rights implicit in the economic, social, education, scientific, and cultural stan-dards. Those standards are provided for in the Charter of the Organization of American States. In addition, a specific rule of interpretation (Article 29) of the American Convention prohibits interpretations that “[exclude or limit] the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.”41 Article 29 also prohibits interpretations that permits “any State party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in [the American Convention] or to restrict them to a greater extent than is provided for [t]herein.”42

An important set of cases which made economic, social, and cultural rights justiciable by these means of interpretation, involves Article 19 (Rights of the Child) of the American Convention. Indeed, in the Villagrán Morales et al case,43 a case concerning street children and the first international case directly concerning the rights of the child in the jurisprudence of the Court, the tribunal used the entire prevailing system for the protection of children in force at the time of the events in order to assess the scope of the duties of the defendant state under the American Convention with regard to children.44

In this first historic decision concerning children’s rights, the Inter-Ameri-can Court examined facts reflecting the drama of children living in the streets

40. The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, supra note 38, ¶ 193.

41. Article 29 of the American Convention reads:Restrictions Regarding InterpretationArticle 29No provision of this Convention shall be interpreted as:(a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;(b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;(c)precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or (d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.

See American Convention on Human Rights, 1969, in BasIC doCumeNts oN humaN rIghts 507 (3d ed. 1992).

42. Id. 43. The Villagrán Morales et al case, supra note 38. 44. Id. ¶ 192. The Inter American Court referred to this principle of evolutive interpretation

in its construction of Article 19 of the Convention in its first decision concerning Article 19.


of Guatemala. These children “fought to survive alone and [were] fearful of a society that did not include them.”45 Further, the children were subject to unspeakable systematic violence perpetrated with impunity, including torture and willful killing, at the hands of state agents. As in all of the contentious cases concerning Article 19 to come to the attention of the Court, the case in question raised gross violations of the right to life. The children had been executed with extreme cruelty and their remains were left in the woods by their assailants, showing signs of having been tortured and being bitten by wild beasts. The Street children case compelled the Court to reflect on the meaning and scope of the right to life (and the duties of the state) of victim-ized children who had been, even prior to their killings, already “deprived of creating and developing a project of life and even to seek out a meaning for their own existence.”46

The Inter-American Court established the content and scope of the general provision in Article 19 of the American Convention in light of the various provisions of the Convention on the Rights of the Child detailing the behavior the state should have observed towards street children. The Court’s point of departure was the understanding that both the American Conven-tion and the Convention on the Rights of the Child formed part of a very comprehensive international corpus juris for the protection of the child. It referred mainly to Articles 2, 3, 6, 20, 27, and 37 of the Convention on the Rights of the Child. In the view of the Inter-American Court, these provisions “define the scope of the ‘measures of protection’ referred to in Article 19 of the American Convention, from different angles.”47

Among them, we should emphasize those that refer to non-discrimina-tion, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an ad-equate standard of living, and the social rehabilitation of all children who are abandoned or exploited. It is clear to the Court that the acts perpetrated against the victims in this case, in which state agents were involved, violate these provisions.48

Perhaps the most sweeping aspect of the Court’s decision in the Villagrán Morales et al case was the reasoning related to the protection of the right to life of these children. As applied to this case, the notion of the right to life emerged both from the analysis of the legal obligations of the defendant state under Article 4 (right to life) and Article 19 (rights of the child). It was clear that the deprivation of life of the children was the actual responsibility of the state of Guatemala. The Court noted the principle held by the UN Human

45. Id. ¶ 184. 46. See id. Joint Concurring Opinion of Judges A.A. Cançado Trindade & A. Abreu-Burelli,

¶ 3. 47. Id. ¶ 196. 48. Id.


Rights Committee: “The deprivation of life by the authorities of the State is a matter of utmost gravity.”49 The Court highlighted that such deprivation of life is even graver in cases concerning children.50 But the analysis of the Court went further. It reflected upon the very scope of the right to life in the face of the reality experienced by these minors in the streets of Guatemala City. Both the systematic nature of the persecution, torture, and killings of these children by state agents, as well as the denial of a dignified existence to these children under the jurisdiction of the state of Guatemala, were examined by the Court. From this analysis, the right to life included the notion of the right to a dignified existence (present as a notion in different articles of the Protocol of San Salvador). The Court acknowledged:

The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.51

As a consequence, the Court concluded that the violation of Article 4 by the state entailed a double transgression, to the detriment of the victims (street children):

First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the “full and harmonious development of their personality,” even though every child has the right to harbor a project of life that should be tended and encouraged by the public authorities so that it may develop this project for its personal benefit and that of the society to which it belongs. Second, they violate their physical, mental and moral integrity and even their lives.52

In order to ensure the right to life of these children, their basic economic, social, and educational needs would have to be met, thus the right to harbor a project of life would be ensured. The particular gravity of the violation of Article 4 stemmed further from the fact that the conduct of the state not only violated the express provision of Article 4 of the American Convention, “but also numerous international instruments, that devolve to the State the

49. Id. ¶ 145, referring to the United Nations Human Rights Committee, General Comments 6/1982, ¶ 3; General Comment 14/1984, ¶ 1.

50. Id. ¶ 146. 51. Id. ¶ 144. 52. Id. footnote omitted, ¶ 191.


obligation to adopt special measures of protection and assistance for the children within its jurisdiction.”53

The notion of “a decent life,” which forms a unity with the notion of “a dignified existence,” was again referred to by the Court in its Advisory Opin-ion on Juridical Condition and Human Rights of the Child.54 In accordance with the Court’s legal pronouncement of the notion of a “decent life” as applied to children, the right includes conditions of life which ensure dignity, the right to receive the highest priority and the best effort from states, the right to education, and the right to health. The Court referred to Article 13 (right to education), Article 15 (right to the formation and the protection of families), and Article 16 (rights of children) of the Protocol of San Salvador in its interpretation of Article 19.

With regard to children separated from their families this meant the state had “obligations to provide the measures required for life to develop under decent conditions.55 The Court placed particular importance on the right to education since “[it] contributes to the possibility of enjoying a dignified life and to the prevention of unfavorable situations for the minor and for society itself.”56 “It is mainly through education that the vulnerabil-ity of children is gradually overcome,” held the Court.57 This right would encompass not only the right to receive education (free and compulsory at least in the elementary stages) on the basis of equal opportunities but also the right to play and have recreation. The Court also held that the state had positive obligations “to take positive steps to ensure protection of children against mistreatment, whether in their relations with public officials, or in relations among individuals or with non-state entities.”58

In another contentious case concerning Paraguay, the Court had the opportunity to examine more closely the duties of a state towards children held in an institution and construe the right to integrity (Article 5) to impose positive duties on the part of the state. The Instituto del Menor Panchito López case59 was a paradigmatic case, one that exposed the extreme flagrant violations of entire populations of children under detention faced in Latin America on an everyday basis. The Court’s examination of these facts had as its axis Article 19 of the American Convention. Rather than analyzing

53. Id. ¶ 146. 54. Int-Am. Ct H. R., Series A: No 17; Advisory Opinion OC-17/2002 (28 Aug. 2002),

requested by the Inter-American Commission On Human Rights. 55. Id. at 80. In its Opinion 5 the Court held in that respect that “to care for children, the

State must resort to institutions with adequate staff, appropriate facilities, suitable means, and proven experience in such tasks.” Id. at 79.

56. Id. at 84. 57. Id. at 87. 58. Id. Opinion 8, at 80. 59. Int-Am. Ct H. R., Series C: Decisions and Judgments No. 112; Case of the Juvenile

Reeducation Institute v. Paraguay (2 Sept. 2004) (available in Spanish only) [hereinafter Instituto del Menor Panchito López case).


the violation of the article in a separate form, it was used to cross-cut all other obligations of the state towards these individuals. It highlighted that children have the same rights as all human beings, but also special rights derived from their condition, which are accompanied by specific duties of the state. It held that the protection measures contained in Article 19 exceed the strict area of civil and political rights. The actions a state is called upon to implement to fulfill its obligations under Article 19 include economic, social, and cultural aspects that form part of the right to life and the right to integrity of the children.60

The Court considered that at no time did there exist in the living condi-tions for the internees of institutions that fostered the development of these children but rather, they were forced to live in degrading conditions, on a permanent basis, which subjected them to an ongoing climate of violence, insecurity, abuse, corruption, mistrust, and promiscuity.61 It was demon-strated, moreover, that the state failed to give the children access to the regular medical supervision essential for their normal development and for their future. In addition, there was no access to education available to the children—something that the state is obliged to provide. Such violations had even more serious consequences in the case in question because, as the Court noted, these children came from marginal sectors of society. Their lack of access to education limited their chances of playing a role in society upon release and of developing a project of life.62

As a consequence, the Court held Paraguay responsible for violations of Article 4(1), 5(1), 5(2), and 5(6) in relation to Article 1(1) of the American Convention. The Court also held that country responsible for violations of Articles 19, 2, 8 (1), and 25 of the Convention. In addition to ordering repa-ration measures directly concerned with the nearly 300 victims affected by these violations, the Court also ordered the state of Paraguay to formulate a state policy of short, medium, and long term implementation, with respect to children in conflict with the law, fully consistent with the international duties of Paraguay in order to bring its practices into conformity with duties under the American Convention on Human Rights.63

The right to education was again at the center of the interpretation of the American Convention provisions in the case of Girls Yean and Bosico v. Dominican Republic case.64 The case concerned two minors of Haitian descent born in the Dominican Republic, who had been denied birth cer-tificates in the Dominican Republic and the right to nationality. As a result,

60. Id. ¶ 149. 61. Id. ¶ 170. 62. Id. ¶ 174. 63. Id. Point 11, at 153. 64. Int-Am. Ct H. R., Caso de las NiZas Yean y Bosico v. República Dominicana (8 Sept.

2005) (available in Spanish only).


they could not be admitted into school and had to live outside any juridical recognition. The case raised, for the first time, violations of Article 3 (right to juridical personality). It also raised violations of Article 20 (right to national-ity) and Article 24 (equality before the law), among other violations. With respect to the right to education, the Court held that the duty of special protection for children laid down in Article 19 of the American Convention interpreted in light of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights and in relation to the duty of progressive development contained in Article 26 of the Convention, requiring that the state must provide education free of charge to all minors, (without discrimination) in an atmosphere and under conditions favorable to their full intellectual development.65 By being denied juridical personality, Dilcia and Violeta Bosico had been denied the right to education, among other rights.

The integrated approach to rights has also been at issue in cases con-cerning indigenous groups. The case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua66 and the case of Comunidad Yakye Axa v. Para-guay67 belong to developing jurisprudence on indigenous communities in the Inter-American system. These claims had at their center the right of survival of entire groups of indigenous peoples fighting for their access to land and basic rights. The Court construed Article 4 (right to life) and Article 21 (right to property) in light of the economic, social, and cultural rights of these communities. In examining the situation of the Comunidad Yakye Axa, the Court noted:

[W]here the Community is situated today is a strip of land that the authorities say is a public thoroughfare and that in that place they are not permitted to grow things, or keep animals for the purpose of hunting. So, the Community is forbidden to hunt, or obtain firewood and water from its land. It is for that reason that many of the boys and girls cannot continue with their studies. Many boys and girls lose that school year due to those conditions, because they do not have food, they do not have water, especially in periods of drought, and because they are ill.68

It also noted the testimony of an expert witness who described the situ-ation of the Comunidad Yakye Axa as follows:

What we have determined is that the Community is the victim of parasites and has been rendered anaemic, and that can be seen at a simple glance as I said at

65. Id. ¶ 185. 66. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. C.H.R., Ser. C No.

79 (31 Aug. 2001). 67. Inter-Am Ct H. R., Series C No. 125, Caso Comunidad indígena Yakye Axa vs Paraguay

(17 June 2005) (available in Spanish only). 68. Id. ¶ 67. (Author’s translation.)


the start. When you arrive in the Community what you notice is the discoloured hair of the children and their distended bellies,—that is what strikes you most of all. If you ask them . . . their age . . . you realise that they are not the size that you would imagine a child of eight or ten years of age should be. And this is a disease that, in Castilian Spanish is known as . . . malign tropical anaemia, which is caused by a lack of proteins, and this lack of proteins causes the discoloura-tion of the hair, the distension of the belly, and other types of consequences that are not as visible, such as for example intellectual underdevelopment. . . . The outcome for these youngsters [is that] it is no longer possible for them to have a level of intellectual development that could have been provided for them by a good diet from their early childhood.69

By means of a dynamic interpretation of Articles 4 and 21 of the American Convention, among other rights, the Court addressed complex issues concern-ing the economic, social, and cultural rights of this indigenous group. On the other hand, in the case of Moiwana Village v. Suriname,70 the Court dealt with protecting the rights of an indigenous community forcibly evicted from its land by state agents during the internal conflict in the 1980s. The agents had razed the village to the ground forcing the survivors to live landless and displaced. In its examination of the case, the Court acknowledged:

The N’djuka community’s relationship to its traditional land is of vital spiritual, cultural and material importance. In order for the culture to maintain is integrity and identity, its members must have access to their homeland. Land rights in the N’djuka society exist on several levels ranging from rights of the entire ethnic community to those of the individual. Larger territorial land rights are vested in the entire people, according to N’djuka custom; community members consider such rights to exist in perpetuity and to be unalienable.71

The Court examined the economic and moral distress of this community under Article 5 (humane treatment) of the Convention and it found that be-ing unable to practice their customary means of subsistence and livelihood, having suffered deprivation and poverty, and having lived the moral suffer-ing of not being able to bury their loved ones under their traditional rules, amounted to a breach of Article 5 in detriment of the said community. Its analysis of Article 22 (freedom of movement) in conjunction with Article 21 was of utmost importance for providing justice to this group. The Court concluded that they indeed had the right to use and enjoy their territory and they had the right to return to their land.72

69. Id. ¶ 68. (Author’s translation.) 70. Int-Am Ct. H.R., Series C No. 124, Case of Moiwana Village v. Suriname (15 June

2005). 71. Id. ¶ 86(6). 72. Id. ¶ 120 of the judgment reads:

[T]he State has failed to both established conditions, as well as provide the means that would allow the Moiwana community members to return voluntarily, in safety and with dignity, to their


The cases Five Pensioners v. Peru,73 Baena Ricardo et al case (270 workers v. Panama),74 and Acevedo Jaramillo et al v. Peru75 belong to a cluster of cases concerning rights of workers. The dispute in the Five Pen-sioners case concerned five old-age pensioners from the public sector who had been enjoying, in accordance with Peruvian legislation up to 1992, a pension system that progressively equalized their pensions with the salary of a person occupying the same position or similar function in the public organ where they had worked.76 In 1992, however, the payments had been abruptly discontinued without any notice and subsequently reduced by approximately 78 percent.77 By October 1992, a Decree Law modified the pension system in which they were placed, denying any equalization to individuals in the position of the victims. Different recourses and judicial orders in favor of the victims were not implemented. As noted by the Inter-American Commission as a consequence, the victims were left “in a ‘state of total legal uncertainty in view of the State’s declared intention not to comply definitively with the judgments delivered by its highest courts.’”78 The predicament of the pensioners under that situation was reflected in the testimony of one of them:

The reduction of his pension produced serious financial consequences because he had to sell his car, ask his friends for loans and, finally, he even had to sell his house and move to an apartment. He reduced his expenses, bought less food and medicines, it affected his children’s schooling . . ., the pension he received was less than the amount he paid to . . . the school attended by his children. This situation not only affected him financially, but also psychologi-cally and socially. As regards the repercussions on his health, the witness had a heart attack and was hospitalized for two months.79

traditional lands, in relation to which they have a special dependency and attachment and there is objectively no guarantee that their human rights, particularly their right to life and to personal integrity, will be secure. By not providing such elements—including foremost an effective criminal investigation to end the reign of impunity for the 1986 attack—Suriname has failed to ensure the rights of the Moiwana survivors to move freely within the State and to choose their place of residence. Furthermore, the State has effectively deprived those community members still exiled in French Guiana of their right to enter their country and to remain there.

73. Five Pensioners v. Peru, Inter-Am C.H.R., Series C No. 98 (28 Feb. 2003). 74. Baena Ricardo et al. Case, Inter-Am C.H.R., Series C No 72 (2 Feb. 2001) 75. Case of Acevedo-Jaramillo et al. v. Peru, Inter-Am C.H.R., Series C No. 144 (7 Feb.

2006) (available in Spanish only). 76. Under the pension system chosen by the victims, governed by Decree Law No. 20530,

the state recognized the victims right to a retirement pension, progressively equalized with the salary “of the active public servants in the respective categories” who occupied the same position or a similar function to that occupied by the pensioner when they ceased to work for the Superintendency of Banks and Insurance. See Five Pensioners v. Peru, supra note 73, Proven Facts, ¶ 88(d).

77. Id. ¶ 88(e). 78. Id. ¶ 122(f). 79. Id. ¶ 83(a) (Statement by Carlos Torres Benvenuto).


Article 21 (right to property) of the American Convention was examined under a markedly new light. It was argued in favor of the pensioners that the right to receive a retirement pension calculated in accordance with Decree Law No 20530 and its related norms was “an asset that formed part of the patrimony” of the alleged victims and therefore its protection fell under the scope of Article 21 of the American Convention. The pensioners, as a result, had acquired rights that had been infringed upon in a substantial way. The state on its part justified its decision to reduce pensions in the instant case by reference to “an evident state of necessity.”80 They placed excessive burdens in the context of an already existing budget crisis which was impossible to manage in any other way.81 The pensioners of the case occupied managerial positions. They had been white collar employees. The state somehow hinted at the more urgent budgetary needs that it faced as the basis for its decision to modify the pensions systems in that sector. The case not only posed a most interesting question concerning social security entitlements, but also raised issues of legal certainty, due process, and judicial protection.

In its analysis of Article 21, the Inter-American Court examined two fundamental questions. The Court first addressed the question of whether the right to a pension can be considered an acquired right and if so, what that meant. Second, the Court addressed the question of what parameters should be taken into consideration to quantify the right to a pension and whether it is possible to cap a pension. It referred to the meaning of acquired rights as “being understood to be ‘those that have entered into our ownership, that are part of it, and of which the entity from which we have received them cannot deprive us.’”82 The Court found that the pensioners were entitled under Peruvian law to a pension (a right that was “acquired” and that had been incorporated into the patrimony of the plaintiffs) and that they had been deprived from it in an arbitrary manner without any legal proceeding or any decision having been issued that authorized the reduction. The Court stated in that sense:

Although the right to an equalized pension is an acquired right [in the instant case], in accordance with Article 21 of the Convention, States may restrict the enjoyment of the right to property for reasons of public utility and social inter-est. In the case of the patrimonial effects of pensions (the pension amount), States may reduce these only by the appropriate legal procedure and for the said reasons. Moreover, Article 5 of the Additional Protocol to the American Convention in the area of Economic, Social and Cultural Rights . . . allows States to establish restrictions and limitations on the enjoyment and exercise of economic, social and cultural rights “by means of laws promulgated in order to

80. Id. ¶ 92(f). 81. Id. ¶ 98. 82. Id. ¶ 116.


preserve the general welfare in a democratic society only to the extent that they are not incompatible with the purpose and reason underlying those rights.” In any case, if the restriction or limitation affects the right to property, this should also be established in accordance with the parameters established in Article 21 of the American Convention.83

The Court found that in the instant case no such appropriate legal procedure had taken place. It found violations of Article 21 in conjunction with Article 1 (obligation to respect rights), Article 25 (judicial protection), and Article 2 (domestic legal effects). It did not find violation of Article 26 (progressive development) also raised by the Commission. The Commission had argued that “[t]he essential content of the right to social security is to ensure to all persons a protection against the consequences of ageing or of any other contingency beyond their control that implies a deprivation of the essential means of support to lead a dignified and decorous life”84 and that the reduction of the pensions of the victims in the instant case amounted to applying “regressive policies, aimed at reducing the degree of enjoyment of economic, social and cultural rights” which violated the principles of progressive development.85 For the Court, however, the “pro-gressive development” requirement of Article 26 could only be measured against the treatment afforded to the general population in a country. The case in question, brought on behalf of five victims only, could not serve as a basis to judge the progressive development of economic, social, and cultural rights in Peru.86

The case of the Five Pensioners is instructive in many respects. It is an example of how concepts in international law apply in unexpected circum-stances and locations (e.g., how the right to social security can relate to the right to property). And the discovery of how one legal concept bears on another apparently unrelated matter is indeed the constant, in any real life situation the practitioner of international law is confronted with this on an everyday basis. Seen as a whole, the rights at stake in the Five Pensioners teach a small lesson with respect to “nature of obligations.” The violations came as a result of “intervention” of the state amounting to an infringement of the right of the pensioners. The state arbitrarily reduced their pensions. The duty of the state at that point was “not to interfere.” As a result, Article 21 was linked with Article 1 (obligation to respect rights). However, the case

83. Id. ¶ 143 (c). 84. Id. ¶ 143(a). 85. Id. ¶ 147. 86. Article 2 reads:

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provision the State parties undertake to adopt in accordance with their constitutional processes and the provisions of this Convention, such legislative and other measures as may be necessary to give effect to those rights or freedoms.


also had other dimensions: there also existed positive duties which were highlighted by the Court in its analysis of Article 2.87 The Court has estab-lished that the general duty under Article 2 entails two things: “On the one hand derogation of rules and practice of any kind that imply the violation of guarantees in the Convention. On the other hand, the issuance of rules and the development of practices leading to an effective enforcement of the said guarantees.”88 In the instant case, the state also had the positive duty to make effective the right to property of the victims.

In Baena Ricardo et al, the Court looked at freedom of association, among other rights, by necessary reference to labor union freedom. The Court held:

156. . . . In labour union matters, freedom of association consists basically of the ability to constitute labour union organisations, and to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right. On the other hand, under such freedom it is possible to assume that each person may determine, without any pressure, whether or not she or he wishes to form part of the association. This matter, therefore, is about the basic right to constitute a group for the pursuit of a lawful goal, without pressure or interfer-ence that may alter or denature its objective.

157. The Preamble of the ILO Constitution includes the “recognition of the principle of freedom of association” as an indispensable requirement for the attainment of “universal and lasting peace.” [footnote omitted]

158. This Court feels that, in trade union matters, freedom of association is of the utmost importance for the defence of the legitimate interests of the workers and falls under the corpus juris of human rights.89

Two hundred seventy workers in the public sector that had been arbi-trarily dismissed (the majority trade union leaders) on the basis of a Decree Law (Law 25),with retroactive effect, that gave ample powers to their public employers for a massive dismissal on account of their participation in a national work stoppage and other labor rights activities (which included a demonstration for labor rights) that were seen by the state as “endangering democracy.”

The case also raised important issues of due process and judicial pro-tection. The legality of the state actions—passing a law that “legalized” the dismissals—and whose retroactive force appeared to be in accordance with a provision of the Constitution of Panama that allowed ex post facto laws

87. Five Pensioners v. Peru, supra note 73, ¶ 165. 88. Baena Ricardo et al. Case, Inter-Am C.H.R., Series C No. 72, ¶¶ 156–58 (2 Feb.

2001). 89. Id.


for reason of “public order” or “social interest”—did not preclude the Court from pointing at the essentially arbitrary nature of the actions of the state in the said case. What was at stake for the Court was the protection of the workers from such arbitrariness which “had serious social and economic consequences for the persons dismissed and their relatives and dependants.”90 The Court held that “[t]he principle of legality must govern the actions of public administration.”

The definition of an act as an unlawful act, and the determination of its legal effects must precede the conduct of the subject being regarded as a violator. Otherwise, individuals would not be able to orient their behaviour according to a valid and true legal order.91

Moreover, the Court interpreted the principle of due process as appli-cable to any act of omission on the part of the state bodies whether of a punitive, administrative, or of a judicial nature. In this case, the Court found the law applied against the workers violated Article 9 of the Convention (freedom from ex post facto laws), thus the workers had been deprived of due process guarantees. The Court found that both the dismissals and Law 25 (passed with the purpose to repress labor rights) were acts that interfered with the freedom of association (which subsumed labor union rights) of the victims, “doubtlessly limiting the possibilities for action of the trade union organisations in the cited sector.”92 The Court held that massive dismissal of trade union leaders and workers in the instant case seriously violated principles of the right to unionize and to collective negotiation,93 seriously affecting the organization and the activity of the labor unions that held the workers together in Panama.94 The Court went on to addressing then the unfair dismissal of workers and provided for reparation measures.

In both cases discussed, the Court resolved disputes related to crucial issues on labor regimes applied to workers in Peru and Panama, and in so doing had to revise complex national legislation related to the matter. In Baena Ricardo et al case, the Court reviewed over 500 hundred pieces of evidence, in the Five Pensioners case it had to grasp complex issues of the social security and pension system in Peru. Reference to International Labour Organisation jurisprudence can be found in its reasoning when construing the content of labor rights: the Court relied on in the entire legal system prevailing at the time.95 The Court was equal to the task. Most importantly,

90. Id. ¶ 134. 91. Id. ¶ 106. 92. Id. ¶ 160. 93. Id. ¶ 162. 94. Id. ¶ 166. 95. In the Baena Ricardo et al case, the Commission alleged the applicability of the Addi-

tional Protocol to the American Convention on Human Rights in the Area of Economic,


the Court held that individuals (including illegally dismissed workers, pen-sioners who relied on their pension to support their families) have the right to a legal order (right to the law or derecho al Derecho) which effectively protects the rights inherent to the human person.96

In some cases before the Inter-American system, however, there is no need to go through all the contentious procedure system in order to get redress. In José Pereira v. Brazil,97 a case which concerned a minor who had been subjected to forced labor in Brazil, redress was obtained via a friendly settlement mechanism at the Commission’s stage of the proceedings. The case was paradigmatic of the social and economic conditions lived by thousands of sem terra (landless rural poor) in Brazil. Although the state was not responsible for the actual direct violations against the victim, it was responsible for failing to prevent and punish slave labor.98 As part of the settlement, the state of Brazil undertook to create a National Commission for the Eradication of Slave Labor, to make legislative changes, to provide funds and human resources of organs in charge of the prosecution of such practice and to implement measures to raise awareness and opposition to slave labor, including a national campaign through written press, radio, and TV spots.99

Social and Cultural Rights based on the argument that through the application of Law 25 the state affected the exercise of the right to organize and join trade unions freely (one of whose expressions is the right to strike which is guaranteed by Article 8 of the said Protocol). The Court referred to its competence to apply human rights treaties other than the American Convention in construing the provisions of American Convention only, except for cases where another international instrument ratified by the states granted it the competence to hear cases of violations to the rights protected by the same instru-ment (some regional instruments do). In the case at stake Panama had signed the San Salvador Protocol by 1988 and as a result, the Court pointed out that, at the time of the events it had the duty not to act against the object and the purpose of the Protocol of San Salvador. Id. ¶¶ 95–99.

96. Five Pensioners Case, supra note 73, Concurring Opinion of Judge A.A. Cançado Trin-dade, ¶ 22.

97. José Pereira v. Brazil, Case 11.289, Report No. 95.03, Inter-Am. C.H.R. OEA/Ser.L/V/II.118 Doc.70 rev.2 at 602 (2003).

98. Seasonal agricultural workers were recruited with fraudulent promises by private parties only to be deprived of their liberty in agricultural sites by pure violence and a scheme of indebtedness similar to those of colonial times. No minimum wages or working conditions applied and they worked in the fields under the supervision of armed men. See id. ¶ 14–16.

99. Id. ¶ 24. A number of cases concerning indigenous populations have also found in friendly settlements a way to address the violations. Indeed, friendly settlements may count as a procedural mechanism in its own right as a way to make economic, social, and cultural rights justiciable.


IV. JUSTICIABILITY of ECoNoMIC, SoCIAL, ANd CULTURAL RIGHTS IN THE INTER-AMERICAN SYSTEM THRoUGH “WIPING UP THE CoNSEQUENCES of THE VIoLATIoNS”

The approach taken by the Court in the interpretation of rights of the American Convention has given rise to orders of reparation that often involve imple-mentation of measures that vindicate the economic, social, and cultural rights of victims. As it has been pointed out by Judge Cançado Trindade in his Concurring Opinion in the Five Pensioners case, “[i]n providing for reparations and referring to ‘the injured party’ (la parte lesionada/a parte prejudicada/ la partie lésée)—Article 63 (1)) in the Convention refers to the victims.”100 The precedent established in the Aloeboetoe et al case,101 where the Court ordered a number of measures of reparation, including reopening a school and making operational the medical dispensary already in place in the locality of the victims has been followed by other landmark decisions. For example, in Baena Ricardo et al, reparation measures included essentially wide reaching restitutive measures: the state of Panama was obliged to pay 270 workers’ unpaid salaries and other labor rights accrued over ten years that the matter had remained unresolved, reinstate the 270 workers or pay the indemnity that corresponds to the termination of employment in conformity to the internal labor law, and provide pension or retirement payment as ap-plicable to the beneficiaries of victims who may have passed away.102 Was in ordering these measures the Court stepping into a non-go area? Panama clearly challenged the powers of the Court to follow-up compliance with the judgement. After all, paying back what it owed to hundreds of workers was an issue of national importance. Panama may have made good use of an argument put forward by Katarina Tomasevski (who had argued in favor of judicial restraint along the following lines):

[C]ourts are not empowered nor are lawyers equipped to address inherently political decisions, such as budgetary priorities, or areas such as health or edu-cation where the executive has the professional expertise lacking to the courts. . . . [I]n dealing with such matters the courts are not institutionally equipped to make the wide ranging factual and political inquiries necessary for determining what the minimum standards should be nor for deciding how public revenues should most effectively be spent.103

100. Five Pensioners Case, supra note 73, Concurring Opinion of Judge A.A. Cançado Trin-dade, ¶ 22.

101. Case of Aloeboetoe et al. v. Suriname, Reparations, Inter-Am Ct H.R. (ser C) No. 15, at 24 (10 Sept. 1993).

102. See Baena Ricardo et al case, supra note 88.103. See Katarina Tomasevski, Human Rights and Poverty Reduction, Strengthening Pro-

Poor Law: Legal Enforcement of Economic and Social Rights 8 (Jan. 2005), available at http://www.odi.org.uk/rights/Meeting%20Series/EcoSocRights.pdf (emphasis added).


Yet Tomasevski also stated that “courts are required to uphold the rule of law.” Indeed, courts must uphold the rule of law and order the party who has violated rights to wipe up the consequences of such violations. A Court may not be institutionally equipped to do everything, but it can rely on other mechanisms to provide justice. In Baena et al, the Inter-American Court of Human Rights gave the task to settle the amount owed to each worker to the national courts themselves in accordance with labor law in the country, under the proviso that the Court would supervise compliance with the judgement. In Instituto de Rehabilitación del Menor Panchito López, the Court required—as guarantee of non-repetition—that within a time limit of six months and in consultation to organizations of the civil society in Paraguay, the state worked a policy of short-, medium-, and long-application with respect to children in conflict with the law, consistent with its interna-tional obligations.104 The Court provided in that sense the key aspects that such program should contemplate.105 Sometimes complex technical ques-tions may escape mere legal knowledge: in such cases the Court has found innovative ways to settle a case. In the case of Cesti-Hurtado v. Peru,106 the Inter-American Court referred the reparation award to arbitration as it needed specific expertise in economic matters.

In a recent case concerning a massacre in Guatemala, which affected hundreds of displaced victims of the internal war, the Court ordered repa-ration measures that included measures of satisfaction such as establishing development programs (on health, education, and infrastructure) in the affected communities. Such programs included providing such communi-ties with medical care, educational programs in the native language of the victims (maya achí), and essential services such as access to drinkable water.107 In the case in question, the Court gave a five-year period for the full-implementation of the reparation program. It also established that the state would report each year on the developments in the implementation of the measures ordered.108

104. See Instituto del Menor Panchito López, supra note 59, ¶ 316. 105. Id. ¶ 317.106. Case of Cesti Hurtado v. Peru, Reparations, Inter-Am Ct. H.R. (ser. C) No. 78, ¶ 46 (31

May 2001).107. See Caso Masacre Plan de Sánchez v. Guatemala, Reparaciones, Inter-Am Ct. H.R. (ser

C) No. 116, ¶ 110 (19 Nov. 2004). 108. Id. ¶ 111.


V. JUSTICIABILITY of ECoNoMIC, SoCIAL, ANd CULTURAL RIGHTS IN THE INTER-AMERICAN SYSTEM THRoUGH PRoVISIoNAL MEASURES of PRoTECTIoN

The right to health has been implemented even through interim measures of protection in the Inter-American system. In Odir Miranda et al,109 which concerned twenty-seven persons who were carriers of HIV/Aids, the Inter-American Commission on Human Rights ordered the state of El Salvador to provide anti-retroviral treatment and medication necessary to avoid the death of the victims. In another case concerning a survivor of torture, the mere request of provisional measures at the Commission’s stage in individual petition procedure ensured that a victim could have access to treatment for multi-resistant tuberculosis which required administration of drugs only available through the state health system.110

VI. CoNCLUSIoN

The practice of the Inter-American organs proves that economic, social, and cultural rights are as justiciable as any civil and political right. Indeed, the jurisprudence of the Inter-American Court on Human Rights shows that the only adequate way to redress human rights violations is to look at rights in an integrated manner, taking full account of the fact that human rights are indivisible, interdependent, and interrelated. At twenty-five years of existence, the Inter-American Court has ensured that the socially excluded, the street children, the uprooted populations (and their moral suffering), the dismissed worker, the evicted populations from ancestral lands, the economically marginalized, and the “handicapped” of our modern societies do have the right to a legal order.

109. Jorge Odir Miranda Cortez et al v. El Salvador, Case 12.249, Report No. 29/01, OEA/Ser.L/II.111 Doc. 20 rev. at 284 (2000).

110. See Provisional Measures request in the case of Máximo Aparco Huincho v. Perú before the Inter-American Commission on Human Rights (on file with the author) in the mat-ter of Juarez Cruzatt and others v. Perú (Caso del Penal Miguel Castro Castro v. Peru) (at the time of drafting this article, pending before the Inter-American Court of Human Rights).

justicability of economic, social and cultural rights in the inter

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