of Article 23 of the Convention, the facts - as recorded in the Merits reportallowed for the observation that Mr. Mina Cuero claimed to have been
subjected to arbitrary treatment regarding his right to remain in his position
on a basis of equality. Subsequently, from the analysis of the evidence
received by the Court, it was possible to establish the effectiveness of that
allegation, which constituted a manifest violation of Article 23(1)(c) of the
Convention. Additionally, it is worth noting that the Court had already
interpreted that the guarantees contained in the mentioned treaty provision
are applicable to all individuals who hold public functions. Therefore, when the
tenure of a person in the exercise of such functions is arbitrarily affected, their
political rights are ignored. 13
II.
This Court’s lack of jurisdiction to declare the autonomous violation of
the right to work based on Article 26 of the Convention.
1.
In light of the previous reflections and those that will be presented below, it
is incorrect to assert, as stated in the judgment, that "the arbitrary separation
of Mr. Mina Cuero from his position as a police officer and the lack of access
to justice and effective judicial protection also constituted a violation of his
employment stability as part of the right to work of which he was the holder." 14
As expressed, the relevant provision, in this case, is that of access and tenure
in public functions under conditions of equality and not, additionally, Article
26 of the Convention - understood as establishing an autonomous right to
work - regarding which this Court lacks jurisdiction, as I will explain in the
following paragraphs.
2.
Indeed, on this occasion, as I expressed in my partially dissenting opinion in
the case of Guevara Díaz v. Costa Rica, I reiterate my position regarding the
lack of jurisdiction of this Court in matters of social, economic, cultural, and
environmental rights.
3.
As known, treaty law refers to the obligations that arise from the express
consent of States. If the wills of the States converge on a particular matter,
such consent must be expressed in the manner established by Article 2(a) of
the Vienna Convention on the Law of Treaties (hereinafter referred to as
VCLT). 15
4.
Under such international agreements, States may agree to the establishment
of courts to apply and interpret the provisions contained therein and, through
subsequent instruments, may extend the jurisdiction of such bodies.
Therefore, international courts must exercise their jurisdiction within the
framework established by the relevant treaties. Such legal instruments
constitute both the foundation and the limit of their actions. From a democratic
perspective, the above statement is consistent with the proper respect for
internal deliberative processes that take place in relation to the ratification of
a treaty and with the type of interpretation developed by international courts.
This hermeneutical work is carried out with regard to norms of international
law and is not of a constitutional nature.
5.
In light of these considerations, and given that in this case, the Court declares
13
Cf. Case of Moya Solís v. Peru. Preliminary objections, Merits, Reparations, and Costs. Judgment
of June 3, 2021. Series C No. 425, para. 109.
14
Cf. Paragraph 135.
15
"The term 'treaty' means an international agreement concluded in writing between States and
governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation may be."
4