The Chilean Old-Age Pension System in Light of International Human Rights Law and the Inter-American Jurisprudence on the Right to Social Security

University essay from Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Abstract: In the early 1980s, during the darkest years of Pinochet’s dictatorship, an apparently innocuous but radical decision was made: to implement an old-age pension system based on individual accounts mandatorily administered by private for-profit entities called ‘pension fund administrators’ (‘AFPs’, by its acronym in Castilian), in which the workers’ social security regarding old-age pensions was in practice totally dependent on their individual saving capacity during their working life. This was a completely novel system at that time, even at the international level, and part of a package of reforms allegedly directed to refound and modernise the country, deeply transforming the functions of the State and the role of the private sector, and causing a multiplicity of consequences felt until today in all possible areas of society and where, of course, human rights are no exception. This thesis explores the main features of the Chilean old-age pension system that present human rights implications through an interdisciplinary methodology which primarily integrates the legal and jurisprudential analytical method as its preeminent tools, but that secondarily includes historical, sociological and economic approaches that enrich the discussion and allow the research to reach objective conclusions. The thesis commences explaining the history of Chilean social security system in general, and the old-age pension system in particular, from their early days at the beginning of the twentieth century to present day, putting special focus on the origins of the current system during the dictatorship to better understand its raison d'être. Then, reviews all the pertinent international and regional human rights instruments and documents regarding the right to social security, in order to accurately determine the applicable legal framework. Thirdly, analyses the most important case-law of the Inter-American Court of Human Rights on the right to social security. Here the attention is located on the fact that the Court since 2017 has begun directly and autonomously addressing violations on economic, social and cultural rights (including the right to social security), unlike its previous jurisprudence that addressed ESCE rights indirectly through other related civil and political rights (e.g., right to property, fair trial, etcetera). Subsequently, and immediately after explaining the constitutional and legal regulation of the old-age pension system in Chile, the thesis starts determining which aspects of the system present most human rights implications, with a gender perspective, and using as analytical parameters the main principles of the human right to social security, together with the previously defined legal and jurisprudential framework, and sociological and economic empiric material. This investigation concludes that Chile, through the non-reformation of the current old-age pension system, is violating the basic principles and norms of international human rights law that inspire and delineate the content of the human right to social security, e.g., the principles of universality, solidarity, non-discrimination, equal treatment, integrity, and adequacy, even touching the very right to a decent and dignified life. Finally, the thesis provides a non-exhaustive catalogue of recommendations directed to generate a social security system more in line with international human rights law.

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