SECTION II. ECONOMIC, SOCIAL AND CULTURAL RIGHTS, AND PRISON SITUATION

CHAPTER VI

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

A. INTRODUCTION

1. 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."

2. 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," expressly recognizes:

the 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.

3. Along the same lines, the current President of the Inter-American Court of Human Rights, Professor Antonio A. Cançado Trindade, notes that:

The 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.[1]

4. 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.

B. LEGAL FRAMEWORK

5. 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,[2] 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 therein.

6. 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:

While 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.[3]

7. 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 today.

8. 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:

The 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.

9. 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 international treaties.[4]

10. 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.

C. OBSERVANCE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN PERU

11. 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.[5] 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.

12. 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.

1. Progress

14. 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 area.[6]

15. 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.

16. 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.

17. 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 environment.

18. 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).

19. Also of special note is that extreme poverty has been reduced in Peru.[7] Though it has been observed that this reduction shows signs of being precarious, as it is based in part on food grant programs,[8] 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.

20. 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 Peruvian State.

2. Problematic aspects

21. 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.

22. 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.

23. The Committee on Economic, Social and Cultural Rights has held in this respect that

Peru 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.

Given 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. [9] [10]

24. 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,[11] are examples of clear steps backwards in the area of labor rights.

25. Aspects worthy of special mention include the massive dismissals of workers, the increase in unemployment,[12] and what the Committee on Economic, Social and Cultural Rights of the United Nations has noted, when it stated that

The 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.[13]

26. 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...."

27. 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.[14] [15]

28. 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:

Every 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 physical benefit.

29. 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:

1. 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.

2. 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.

30. 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 Peruvian population.[16]

D. RECOMMENDATIONS

31. In keeping with the foregoing considerations, the Commission recommends to the Peruvian State:

1. 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.

2. That it accord due importance and respect to everything involving labor rights, in both legislation and public policy.

3 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.

4. 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.

Notes_________________

[1] 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.

[2] 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).

[3] IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, p. 23.

[4] See Chapter I, supra.

[5] 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, p. 121.

[6] 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 country."

[7] 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.

[8] It is noted that approximately 60% of the poorest homes receive some 20% of their income in donated food.

[9] 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).

[10] 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."

[11] See chapter on women's rights, supra.

[12] 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."

[13] UN, Committee on Economic, Social, and Cultural Rights, op. cit.

[14] See section on non-enforcement of judicial judgments, supra.

[15] 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."

[16] 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.