A justiciabilidade do direito à previdência social na corte interamericana de direitos humanos: Ponderações sobre o argumento econômico no âmbito regional e efetivação dos direitos humanos sociais previdenciários

Abstract

This dissertation is under the remit of the Fundamental Rights and Guarantees field, in the Society, Sustainability and Fundamental Rights research line. There is a vast amount of epistemology concerning social rights in national and foreign literature, as well as on the use of economic arguments in social security decisions in Brazilian national jurisdiction. Likewise, there are several works published on economic, social, cultural and environmental rights in the Inter-American System of Human Rights (SIDH). However, there is no research systematizing the cases and the conventionality block built by the Inter-American Court of Human Rights (IDH Court) concerning social security human rights. Thus, the reason for the present undertaking is to fill a gap within the national doctrine on cases concerning social security rights in the SIDH. The aim is to answer whether the Inter-American Court of Human Rights, when applying article 26 of the CADH (progressive development), uses economic arguments related to the sustainability of national social security systems to the detriment to the establishing of social security human rights. In order to do so, our starting point is the study of four Peruvian cases, which directly involved the social security law. The group includes the case of Five Pensioners versus Peru, judged on 28th February 2003; the case of Acevedo Buendía and others versus Peru, judged on 1st July 2009; the case of Muelle Flores versus Peru, judged on 6th March 2019; and the case of ANCEJUB-SUNAT versus Peru, judged on 21st November 2019. The results of the research suggest that in the IDH Court, until the present moment, there does not exist a jurisprudence focused on the use of economic arguments linked to the sustainability of national social security systems in detriment to the establishing of social security human rights. The decisions analyzed adopt a model in the treatment of social rights, which is more focused on accountability for non-compliance with immediately enforceable obligations, instead of progressive aspects which demand the analysis of the passage of time and economic resources.