the allegations made in this regard. In addition, the rule in question fully
captured, and in all its extremes, the factual situation submitted to the court,
which -without prejudice to what will be said below in relation to the court's
lack of jurisdiction- made it unnecessary and impertinent to invoke the iura
novit curia principle to also declare, on the basis of identical facts, the violation
of Article 26 of the Convention.
8. In summary, in the instant case, the exceptional circumstances that justify
the application of the iura novit curia principle did not exist, and therefore it
was not appropriate for the Court to declare the violation of the victim's right
to job security. It is evident that it was not possible for the State to foresee
or dispute such an extreme, neither from the point of view of the facts nor of
the law, which entailed an impact on the due process that every Court is
obliged to guarantee.
II.
The Court's lack of jurisdiction to declare the autonomous violation of
the right to job security based on Article 26 of the Convention.
In order to explain the lack of jurisdiction of this Court in the terms indicated, I will
begin by referring to the preparatory work of the Convention, insofar as it sheds light
on the scope of the aforementioned provision. Next, I will refer to the origin and
content of the Protocol of San Salvador (hereinafter "the Protocol") and, finally, I will
explain the reasons that contest the majority's decision in the instant case.
A. Preparatory work for the Convention
1. In 1959, during the Fifth Meeting of Consultation of Ministers of Foreign Affairs
of the Organization of American States (hereinafter OAS), the decision was
made to encourage the preparation of a Convention on Human Rights, and
the Inter-American Council of Jurists was entrusted with preparing a draft 6 to
that effect. 7 To this end, the Council took into consideration the experiences
of the European and Universal Human Rights Systems. The subject of
economic, social, and cultural rights was incorporated in Chapter II of the
project (entitled "Economic, Social, and Cultural Rights") in the following
terms:
Article 21.
1. States recognize the right of all their inhabitants to enjoy economic, social, and cultural
rights.
2. At the same time they recognize that the exercise of such rights may be subject to limitations
imposed by law only to the extent compatible with the nature of such rights and for the
exclusive purpose of promoting the general welfare of a democratic society. 8
2. In addition to this general clause, Chapter II of the draft provided for a series
of other articles 9 specifically protecting a set of economic, social, and cultural
rights, namely: the right of peoples to self-determination of political,
economic, social, and cultural statutes (Article 20), the right to work (Articles
22 and 23), the right to unionize (Article 24), the right to social security
6
Approved on September 8, 1959, by Resolution No. XX of the Inter-American Council of Jurists; Doc.
CIJ-41, 1959.
7
Cf. Inter-American Yearbook of Human Rights 1968, OAS, Washington D.C., 1973, p. 97.
8
Cf. Draft Convention on Human Rights, approved by the Fourth Meeting of the Inter-American Council of
Jurists, Final Act, Santiago, Chile, September, 1959 Doc. CIJ-43, in: Inter-American Yearbook of Human
Rights, 1968, OAS, Washington D.C., 1973, pp. 244.
9
Cf. Draft Convention on Human Rights, approved by the Fourth Meeting of the Inter-American Council of
Jurists, Final Act, Santiago, Chile, September, 1959 Doc. CIJ-43, in: Inter-American Yearbook of Human
Rights, 1968, OAS, Washington D.C., 1973, pp. 244-249.
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