10.
Since the Judgment issued in the case of Lagos del Campo v. Peru, this Court has adopted
an important jurisprudential stance in interpreting the direct justiciability of Article 26 of the
Convention in its individual dimension and establishing, for the first time, a conviction in a specific
case, for the violation of that article (job stability), due to the dismissal of Mr. Lagos del Campo, a
workers’ representative, as a result of his comments made during an interview, published in a
magazine, against the company for which he worked. This jurisprudential stance has been reiterated
in subsequent judgments by this Court, where the majority of its Members considered that the
direct justiciability of certain economic social and cultural rights (the right to work and the right to
health) in their individual dimension, was possible under Article 26 of the Convention.
11.
However, I consider it appropriate to depart from the case law criterion adopted until now,
because I believe that the previous interpretation expands the Court’s jurisdiction, disregarding the
will of the States, which is expressed not only in the manner in which Article 26 of the American
Convention was drafted, but also in the jurisdiction established in Article 19(6) of the Protocol of
San Salvador. The latter clearly stipulated the economic, social, cultural and environmental rights
that could be examined under the inter-American protection system.
12.
This analysis does not deny the interdependence and indivisibility of civil, political, economic,
social, cultural and environmental rights, nor does it disregard the obligations derived from the
Protocol of San Salvador, for those countries that ratified it. And it does not imply that the Court
considers that ESCER, in their individual dimension, should not be protected or be directly justiciable
through other channels, such as the domestic courts, for example, or even before the InterAmerican Court, provided that their justiciability is accomplished in connection with rights
recognized in the Convention, as the Court has done on several previous occasions. The purpose of
this partially dissenting opinion is to analyze the jurisdiction of the American Convention in relation
to these issues and the manner in which justiciability is achieved in the inter-American system,
which is different from the manner in which it operates in the domestic systems of each State.
13.
A correct interpretation of Article 26 of the Convention and its relationship with Articles 1(1),
2, 62 and 63 of the American Convention should be aimed at determining the competence of the
Court in relation to that article and the scope of the State’s obligations derived therefrom. For this,
we must refer to the Vienna Convention on the Law of Treaties (hereinafter “Vienna Convention”),
which establishes the general and customary rules of interpretation of international treaties, and
requires the simultaneous and joint application of good faith, the ordinary meaning and context of
the terms used in the treaty in question, as well as the object and purpose of the treaty. Thus, in
line with its constant case law, the Court must utilize the methods stipulated in Articles 31 and 32
of the Vienna Convention to make such interpretation14 (literal, systematic and teleological
Cf. Gender identity, and equality and non-discrimination with regard to same-sex couples. State obligations in relation
to change of name, gender identity, and rights deriving from a relationship between same-sex couples (interpretation and
scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1 of the American Convention on Human Rights).
Advisory Opinion OC-24/17 of November 24, 2017. Series A No. 24, para. 55; Environment and human rights (State
obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal
integrity - interpretation and scope of Articles 4(1) and 5(1), in relation to Articles 1(1) and 2 of the American Convention
on Human Rights). Advisory Opinion OC-23/17 of November 15, 2017. Series A No. 23, para. 40; Case of the Workers of
Hacienda Brazil Verde v. Brazil. Preliminary objections, Merits, reparations and costs. Judgment of October 20, 2016. Series
C No. 318, para. 246; Case of Artavia Murillo et al. ("In-vitro fertilization ") v. Costa Rica. Preliminary objections, Merits,
reparations and costs. Judgment of November 28, 2012. Series C No. 257, para. 173, and Case of González et al. (“Cotton
Field”) v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of November 16, 2009. Series C No. 205,
para. 32.
14