21.
Another different, though complementary, level, is the international one. As an
international court, the role of the Court at this level is to determine whether
the State, whose responsibility is claimed, has violated one or more of the rights
established in the Treaty. In light of the normative design thereof, and in
accordance with Article 26, the Court is empowered to establish the
international responsibility of the State if it has failed to comply with the
obligations of progressive development and non-regression, not of the ESCER
considered individually.
22.
This assertion is in line with what has already been expressed in previous
opinions, in that the correct doctrine that the Court should follow is, precisely,
to consider the economic, social, cultural, and environmental dimensions of the
rights recognized in the conventional rules, and to exercise its adjudicative
jurisdiction by way of their relationship, when a relationship to this effect can
indeed be established.
23.
This approach affects the legal certainty that an international court should
guarantee and the legitimacy of its decisions, since the argument provided
simply ignores a rule that does not grant the Court jurisdiction to address
potential violations of ESCER.
24.
The reasoning of a court judgment should allow the reader to reproduce and
understand the reasoning used by the Court to arrive at a specific decision. The
determination to uphold the justiciability of an ESCER cannot be built on the
basis of ignoring the jurisdictional rules set forth in the Treaty and its additional
Protocol.
25.
Unfortunately, and as Medina and David have expressed, "the position of the
majority undermines the effectiveness not only of the Protocol of San Salvador
but also of Article 26 itself," 58 a treaty provision that has a specific content that
the Court can and must develop in the cases it is called upon to hear.
26.
This should not lead to confusion between the normative repertoires available,
on the one hand, to national courts and, on the other, to an international court
such as the Inter-American Court of Human Rights. There is no rule in the
Treaty that empowers it to declare an autonomous violation of the right to work.
Patricia Pérez Goldberg
Judge
Pablo Saavedra Alessandri
Secretary
Cf. MEDINA and DAVID ”The American Convention on Human Rights” (2022:28). Translation provided by
the author.
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