II. ECONOMIC, SOCIAL AND CULTURAL
SOCIAL AND CULTURAL RIGHTS
The American Convention notes in its preamble that "the ideal of
free men enjoying freedom from fear and want can be achieved only if conditions
are created whereby everyone may enjoy his economic, social, and cultural
rights, as well as his civil and political rights."
Certainly the requirements of the human right to a dignified life go
beyond the equally fundamental contents of the right to life (understood in its
strictest sense), the right to humane treatment, the right to personal liberty,
the rights related to the system of representative democracy, and all other
civil and political rights. In this
respect, the preamble of the Additional Protocol to the American Convention on
Economic, Social and Cultural Rights, "Protocol of San Salvador,"
close relationship that exists between economic, social and cultural rights, and
civil rights, and civil and political rights, in that the different categories
of rights constitute an indivisible whole based on the recognition of the
dignity of the human person, for which reason both require permanent protection
and promotion if they are to be fully realized, and the violation of some rights
in favor of the realization of others can never be justified.
Along the same lines, the current President of the Inter-American Court
of Human Rights, Professor Antonio A. Cançado Trindade, notes that:
denial or violation of economic, social, and cultural rights, materialized, for
example, in extreme poverty, affects human beings in all aspects of their lives
(including civil and political), clearly revealing the interrelation or
indivisibility of human rights. Extreme
poverty constitutes, ultimately, the denial of all human rights.
How can one speak of freedom of expression without the right to
education? How can one conceive of
the right to enter and leave the country (freedom of circulation) without the
right to housing? How can one
consider the right to free participation in public life, without the right to
adequate food? How can one speak of the right to legal assistance without also
taking into account the right to health? And
the examples multiply. Clearly, we
all experience the indivisibility of human rights in our everyday experience,
and that is a reality that cannot be left aside.
There is no place for compartmentalization, an integrated vision is
needed of all human rights.
In this chapter, the Commission analyzes the issue of economic, social
and cultural rights in Peru, whose observance, as will be seen, has seen
advances in recent years, in some respects, while in other respects there has
been backsliding and situations in which no progress has been made.
The American Declaration of the Rights and Duties of Man, which, as the
Inter-American Court of Human Rights has established, has full legal effect and
is binding on all member States of the OAS,
includes economic, social, and cultural rights at Articles VII, XI, XII, XIII,
XIV, XV, XVI, and XXII. In this
respect, it should be noted that Article XI of the Declaration (Right to
preservation of health and to well-being), for example, subjects the right to
the "extent permitted by public and community resources," while
Article VII (Right to protection for mothers and children) does not include that
condition, and so is of special importance as regards the rights protected
The American Convention, ratified by Peru in 1978, refers at Article 26
to the obligation of the States 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...." In this regard,
the IACHR reiterates that:
Article 26 does not enumerate specific measures of implementation, leaving the
State to determine the most appropriate administrative, social, legislative or
other steps to pursue, it expresses a legal obligation on the part of the State
to engage in such a process of determination and to adopt progressive measures
in this sphere. The principle of progressive development establishes that such
measures are to be undertaken in a manner which constantly and consistently
advances toward the full realization of these rights.
On this same subject, the Additional Protocol to the American Convention
on Economic, Social and Cultural Rights, "Protocol of San Salvador,"
enshrines the right to work, to social security, to health, to food, and
education, and affirms another series of rights which, as the Protocol notes in
its preamble, "are not derived from one's being a national of a certain
State, but are based upon attributes of the human person."
The Peruvian State signed this Protocol in 1988, and ratified it in 1995.
Accordingly, it entered into force recently, on November 16, 1999.
This makes it an important international instrument binding on Peru
The Republic of Peru is also a party to the International Covenant on
Economic, Social and Cultural Rights, adopted at the United Nations in 1966, and
ratified by Peru. That Covenant
establishes, at Article 11:
States Parties to the present Covenant recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions.
The States Parties will take appropriate steps to ensure the realization of this
right, recognizing to this effect the essential importance of international
co-operation based on free consent.
Peru's 1993 Constitution notes at its Article 55 that the treaties
entered into by Peru "are part of domestic law."
This provision, it must be granted, represented backward movement with
respect to the 1979 Constitution, which accorded constitutional rank to
These international instruments, along with the Peruvian Constitution,
are the main general body of law that governs economic, social, and cultural
rights in Peru. In addition to
those mentioned above, there are several special international instruments
related to the question under study, such as those entered into by the
International Labor Organization (ILO), for example, as well as the various
national laws on the subject.
The progressive nature that most international instruments confer on
state obligations related to economic, social, and cultural rights imposes on
states, with immediate effect, the general obligation to constantly seek to
attain the rights enshrined in the instruments, without any backsliding.
Therefore, a worsening in the effective observance of economic, social, and
cultural rights may constitute a violation, among other provisions, of Article
26 of the American Convention.
In this respect, the IACHR notes that the Peruvian Constitution of 1993
eliminated some major provisions on economic and social rights that had been in
the 1979 Constitution, such as the right to attain a standard of living that
allows the person to ensure his or her well-being, and the well-being of his or
her family (Article 2(15)), the right to food (Article 18), and several issues
related to the right to work.
13. Based on the foregoing, and even when, as illustrated infra, general indicators on development show that in general terms Peru has been progressive in respect of economic, social and cultural rights, the Commission should note that Peru's elimination of these rights from the Constitution represents backsliding.
The indicators prepared annually by the United Nations Development
Program and the World Bank show, in general, that in recent years, and at least
in some sectors, the general observance of economic, social, and cultural rights
in Peru have been improving progressively.
This shows that the Peruvian State has made important efforts in this
Without claiming to undertake an exhaustive analysis, the Commission
would like to present examples of this assertion with specific data.
In this respect, a comparative review of the Human Development Index
(HDI) of the United Nations Development Program (UNDP), from 1993 to 1997,
indicates that during this period Peru increased its level of development, and
that Peru had come to occupy a better position in relation to other countries.
In effect, the Human Development Index is used by the UNDP to try to
measure the integral development of countries, by obtaining the average of three
specific indices: life expectancy,
educational coverage, and income. These
indices indicate that Peru ranked 91st in 1993, of the 174 countries of the
world studied by UNDP, with a human development index of 0.694, while in 1997 it
was ranked 80th, with HDI of 0.739.
Furthermore, the comparison of the development indices prepared annually
by the World Bank in its World Development Report also indicate overall
progress. Those indices cover the
study of 180 member countries of the World Bank, and measure various sectors of
the economic and social area, such as population, price indices, economic
variables, public services, indices on poverty, education, health, and
The IACHR is of the view that such indices constitute important
illustrative elements that should be taken into account in studying the question
of development. A comparison of
these World Bank indices for the period 1993 to 1998 shows that average life
expectancy has increased (from 67 to 69 years), that child malnutrition has
declined (from 11% to 8%), along with infant mortality (from 52 per 1,000 live
births to 40 per 1,000 live births), that access to drinking water has expanded
in urban areas (from 76% to 91%), and that inflation has been reduced sharply
(from 49% to 9%, annual rate).
Also of special note is that extreme poverty has been reduced in Peru.
Though it has been observed that this reduction shows signs of being precarious,
as it is based in part on food grant programs,
the IACHR must note that this state policy appears to be a positive step, in
relation to the fundamental human right to food, to health, and to life.
In its observations to the draft of this report, the State noted the
existence and importance of the Program to Formalize Informal Property
(COFOPRI), related to the right to property.
Peru explained in this regard that in 1996, the Commission to Formalize
Informal Property was created to try to remedy the situation of more than six
million persons who possess informal dwellings yet no title to the property.
It noted that as of April 2000, COFOPRI has formalized and the Urban
Property Registry has entered an additional 823,066 property titles that yield
benefits to the interested persons in the way of juridical security, family
inheritance, elimination of conflicts, and incentives to invest.
The IACHR considers this to be a positive initiative on the part of the
The IACHR is of the view that one of the major challenges the Peruvian
State faces in the area of economic, social, and cultural rights is to have the
effects of the country's economic growth of recent years, and the strides
forward in the development indices, translate in the near future into
improvements in the quality of life and in access to work, to health, to food,
to education, and to all the other essential rights of the Peruvian people.
In effect, in Peru there are profound differences in the effective
enjoyment of economic, social, and cultural rights as between the rural and
urban populations, and there is a profoundly unequal distribution of wealth as
between the richest and poorest sectors in the country.
The Committee on Economic, Social and Cultural Rights has held in this
is made up of three distinct societies, living almost independently one of the
others, divided along ethnic, economic, social, cultural and linguistic lines.
At the bottom of the pyramid live the bulk of the population, namely the
indigenous Indians of the Alto Plano or the mountains and the Amazonian Jungle. Most of them
do not speak Spanish, but Quechua or Airmara; they are extremely isolated and
marginalized. They are thus not in a position to exercise effectively their
economic, social and cultural rights.
the situation described above, the Committee, although aware of the high cost of
rebuilding the infrastructure destroyed during many years of internal violence,
is of the opinion that the greatest obstacles to the fulfillment of the
economic, social and cultural rights are, inter
alia: (a) the failure to address the persistent and serious problems of
poverty; 60% of Peruvians live beneath the poverty line and do not enjoy proper
health and educational facilities; (b)
gross inequality in the distribution of wealth among the population; (c) the
failure to implement agrarian reforms; (d)
the lack of proper health services and the drastic reduction of public
expenditures in the field of health; (e) the impoverishment of state schools
over the past decade, coupled with a decline in teachers' salaries and the
consequent deterioration in educational standards accompanied by the increasing
poverty of families; and (f) the acute forms of discrimination that particularly
afflict women, indigenous people and other minority groups, and the existence of
great inequalities permeating Peruvian society. 
With respect to specific points, the IACHR observes with concern that
important aspects related to the right to work have worsened in Peru.
In terms of the law, the fact that under the 1993 Constitution labor
rights generally lost the constitutional rank they had enjoyed in the 1979
Constitution, and the fact that women's rights related to maternity were lost,
are examples of clear steps backwards in the area of labor rights.
Aspects worthy of special mention include the massive dismissals of
workers, the increase in unemployment,
and what the Committee on Economic, Social and Cultural Rights of the United
Nations has noted, when it stated that
Committee is concerned that many workers do not earn the minimum wage fixed by
law. It is also concerned that the minimum wage is lower than the cost of the
basic shopping basket, as the Peruvian delegation itself recognized.
The Commission attributes special relevance to these aspects, as the
right to work is a very important right that affects the enjoyment of many other
rights. In this respect, it should
be noted that the right to work is the first of the rights referred to in the
Protocol of San Salvador. This
instrument, at its Articles 6 and 7, provides that the States undertake to
"adopt measures that will make the right to work fully effective," and
that they should guarantee, in their legislations, in particular,
"remuneration which guarantees, as a minimum, to all workers dignified and
decent living conditions for them and their families...."
The Inter-American Commission has been receiving several complaints with respect to the problems that arise in Peru in
relation to the right to social security. During
its on-site visit to Peru, the IACHR met with several groups of pensioners who
informed it about the precarious situation in which they were living.
In addition, the Commission was informed that by Legislative Decree No.
817, the Peruvian State did not
recognize the principle of equalization of pensions, enshrined in Decree-Law No.
20,530. It is noted that the new Decree established new criteria,
with retroactive effect, and proceed to declare illegal pensions that had been
granted under the previous system, directly or indirectly affecting thousands of
people. In addition, the Commission
learned that by Decree Law No. 25,967, the rights of thousands of pensioners
subject to the pension regime administered by the Peruvian Social Security
Institute were also repudiated retroactively.
In this respect, the Commission was informed that although the
Constitutional Court declared Decree Laws Nos. 817 and 25,967 unconstitutional,
the State promulgated new laws, similar in content, and that in the few cases in
which the pensioners have succeeded in suing and winning at trial, the State has
not complied with the final and firm judgments issued against it.
The Commission considers that the situation of Peruvian pensioners is an
extremely important aspect to which the Peruvian State should give careful
consideration, bearing in mind, to this end, that the American Declaration of
the Rights and Duties of Man, at its Article XVI, enshrines the principle that:
person has the right to leisure time, to wholesome recreation, and to the
opportunity for advantageous use of his free time to his spiritual, cultural and
Similarly, the Additional Protocol to the American Convention on
Economic, Social and Cultural Rights, "Protocol of San Salvador,"
which, as indicated supra has just
entered into force, and which establishes very important rights and correlate
obligations on the States parties, states as follows at Article 9:
Everyone shall have the right to social security protecting him from the
consequences of old age and of disability which prevents him, physically or
mentally, from securing the means for a dignified and decent existence.
In the event of the death of a beneficiary, social security benefits
shall be applied to his dependents.
In the case of persons who are employed, the right to social security
shall cover at least medical care and an allowance or retirement benefit in the
case of work accidents or occupational disease and, in the case of women, paid
maternity leave before and after childbirth.
As regards the right to health, the IACHR has received complaints that
indicate that the Peruvian State has changed the rules on the subject and has
worsened the conditions for the effective enjoyment of this right by the
In keeping with the foregoing considerations, the Commission recommends
to the Peruvian State:
That it accord due priority in its macroeconomic policy to solving the
persistent and grave problems of poverty, as well as the striking inequalities
in Peruvian society, as these factors have a great impact on the effective
enjoyment of economic, social, and cultural rights.
That it accord due importance and respect to everything involving labor
rights, in both legislation and public policy.
That it take the steps needed to guarantee enforcement of the minimum
wage laws, and the minimum wage should be sufficient to cover the cost of the
basic family market basket.
That it take steps to guarantee respect for acquired rights in the
context of pension plans, and that the amount of the pensions set be sufficient
to cover at least the cost of the basic family market basket.
5. That due importance be accorded to ensuring that changes in the health system not entail any detriment to the right to health of all Peruvians.
Cançado Trindade, Antonio A., "La
Justiciabilidad de los derechos económicos, sociales y culturales en el
plano institucional," published in Revista
Lección y Ensayos, 1997-98, Universidad
de Buenos Aires, School of Law and Social Sciences, Abeledo-Perrot,
Buenos Aires, 1998, p. 80.
See Inter-American Court of Human Rights, 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, Inter-American Court of Human Rights (Ser. A) No. 10 (1989).
IACHR, Report on the Situation of Human Rights in Ecuador,
OEA/Ser.L/V/II.96, Doc. 10 rev. 1, p. 23.
See Chapter I, supra.
See Committee on Economic, Social and Cultural Rights, of the United
Nations, General Comment No. 3, adopted at the Fifth Session, 1990,
E/1991/23; Limburg Principles, Human Rights Quarterly, Vol. 9, No. 2, 1987,
In its observations on the draft version of this report, the State noted
that, "throughout the decade, the Government of Peru had proclaimed
wealth creation and the generation of productive employment as fundamental
objectives, to which major governmental activities have been and continue to
be geared. The war on poverty
is not only an ethical imperative; it is also an economic necessity, since
growth that benefits only a small percentage of the population will not be
sustainable in the long run. For
that reason, the Government continues to pursue a policy focusing on the
individual and the creation of opportunities for people to raise their
standard of living. This is
precisely why the Public Sector Budget for 2000
-- in keeping with the trend of the past few years to increase budget
allocations for the social sector -- allocates 45% of its resources to
social expenditure: specifically, to the health and education sectors, and
the war on poverty. Above all,
it is the caliber of the social expenditure that has made it possible to
reduce extreme poverty in the country from 26% to 14%.
This is how progress is being made toward the Government’s goal,
set in July 1995, of reducing extreme poverty in Peru by 50% in 2000.
Over the decade, the State invested almost eight billion dollars in
infrastructure in a number of sectors- energy, transportation and
communication, sanitation, health and education- as well as three billion
dollars in social programs in the war on poverty throughout the
The poor are understood to be those who do not earn enough to cover the
costs of the basic market basket, which includes foods and other essential
goods and services. The
extremely poor are understood to be those persons whose income does not
allow them to even cover the cost of food that meets the minimum nutritional
requirements. It is estimated
that today approximately 50% of Peruvians live in poverty and approximately
14.7% survive in extreme poverty.
It is noted that approximately 60% of the poorest homes receive some 20% of
their income in donated food.
UN, Committee on Economic, Social and Cultural Rights, Concluding
observations of the Committee on Economic, Social and Cultural Rights: Peru.
16/05/97. E/C.12/1/Add.14. (Concluding Observations/Comments).
In its observations to the draft of this report, the State noted that
"public spending on education has been increasing in real terms
steadily since 1990. From 1990
to 1999, it rose 113%." It also noted that "the Peruvian
Government has been working in support of the rights of women, children, and
other Peruvians who suffer discrimination," acknowledging that these
population groups have been undergoing development at a disadvantage."
See chapter on women's rights, supra.
In its observations on the draft of this report, the State mentioned various
laws and programs promoted by the Government for the purpose of promoting
"massive access to work" and to create new job opportunities.
The programs mentioned by Peru in this vein include the "Sistema
de Información Laboral- Proempleo," the "Programa
de Capacitación Laboral Juvenil-Projoven," the "Programa
Femenino de Consolidación de Empleo-Profece," the Programas
de Capacitación para el Trabajo," and a self-employment and
microenterprise program known as "Prodame."
UN, Committee on Economic, Social, and Cultural Rights, op. cit.
See section on non-enforcement of judicial judgments, supra.
In its observations to the draft of this report, the State argued that
"the acts of incorporation or re-incorporation contrary to Article 14
of Decree-Law No. 20,530, are void as they violate an imperative norm, thus
it cannot be said that the pensions that derive from such acts are
‘acquired rights' or lawfully obtained.
The acts performed in violation of imperative norms are legally void,
and, therefore, give rise to no rights.
In view of the foregoing considerations, the Office of Provisional
Standards (ONP) acts pursuant to the law on judicially seeking or
administratively declaring the nullity of the acts of reincorporation into
the regime of Decree-Law No. 20,530, in violation of Article 14."
It added that "there is no retroactive application of the
highest-level pension," and that "the Office of Provisional
Standards (ONP) has been applying and respecting the judgments handed down
by the Constitutional Court."
 In its observations to the draft of this report, the State indicated that on January 30, 1999, the Law Creating Social Security for Health (ESSALUD) was promulgated; it is an agency under the Labor and Social Promotion Sector, which provides certain coverage to the insured and those covered along with them. The State also provided general information on its general health policies.