16.
Therefore, the Court is empowered to hear and reproach possible breaches of
this commitment (obligation of progressivity and non-regression) of the rights
that, interpretatively, could be derived from the aforementioned Charter, not
to establish autonomously the international responsibility of States for
individual violations of such rights.
17.
It should also be borne in mind that Article 26 only mentions the OAS Charter
and not the American Declaration, so it is this first instrument that must be
taken into account to determine which ESCER could be interpretatively derived
therefrom in order to supervise observance of the aforementioned duty of the
State.
18.
However, as can be seen from reading the Charter, it does not provide a catalog
of rights nor does it define their content; rather, it formulates objectives, i.e.,
goals to be achieved in this area. The right to work, and unlike other ESCER,
contains express reference. However, its scope is not fully developed; for
example, it is not stated whether or not the right to work includes job stability.
Beyond these interpretative difficulties, the fact is that Article 26 only empowers
the Court to carry out the general supervision already explained and, moreover,
the Protocol provides the Court with the opportunity to exercise its contentious
jurisdiction only with respect to two ESCER. The instant judgment simply
chooses to ignore the existence of Article 19 of the Protocol, but this omission
does not operate to repeal the rule. As long as it remains in force, this provision
reflects the expression of the will of the States.
19.
In line with the above, conceiving Article 26 of the Convention as a rule referring
to all ESCER that would be included in the Charter of the OAS disregards the
commitment adopted by the States Parties and generates uncertainty with
respect to the catalog of rights justiciable before the Court, which has at least
two consequences. The first is that, by not knowing the specific rights that could
be affected by their actions, States Parties cannot prevent or remedy possible
violations domestically. The second is that a rationale that ignores the express
text of the Treaty (the Convention and its Protocol) affects the legitimacy of the
Tribunal's decisions, since it reflects a low standard of reasoning, which
subsequently makes it difficult to examine the conduct of the domestic
authorities in the light of a more demanding standard.
20.
It is therefore necessary to distinguish two distinct, related, but different levels
of adjudication. One is at the national level, where, through democratic
procedures, citizens decide to translate ESCER into their respective legal
systems, also incorporating international law on this matter, as is the case in
the vast majority of member states of the Inter-American Human Rights
System. In this context, it is the national courts that -within the scope of their
authority- exercise their powers regarding the interpretation and justiciability
of these rights, in accordance with their Constitutions and laws.
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