protection regime of the Convention.
10. However, despite the fact that the aforementioned Protocol recognizes and
develops a set of ESCER in its text, 18 Article 19(6), concerning Means of
Protection, assigns jurisdiction to the Court to address potential violations only
with respect to two rights: the right to organize and join trade unions and the
right to education. This provision establishes that in the event that such rights
"are violated by an action directly attributable to a State party to this Protocol,
such a situation could give rise, through the participation of the InterAmerican Commission on Human Rights, and when appropriate of the InterAmerican Court of Human Rights, to the application of the system of individual
petitions regulated by Articles 44 to 51 and 61 to 69 of the American
Convention on Human Rights."
11. Therefore, in light of the treaty (composed of two instruments: the Convention
and its Additional Protocol), 19 the Court lacks jurisdiction to declare an
autonomous violation of the right to work.
12. I reiterate that asserting the lack of direct justiciability of ESCER before the
Court does not imply disregarding the existence or the immense importance
of such rights, the interdependent and indivisible nature they have in relation
to civil and political rights, nor does it mean that they lack protection or should
not be protected. It is the duty of the States to allow the autonomy of
individuals to be realized, which means that they should have access to
primary goods (wider than those defined in the realm of political philosophy
by John Rawls), 20 that make the development of their capabilities possible,
this includes access to economic, social, and cultural rights. 21
13. It is necessary, then, to distinguish between two -related- but distinct levels.
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 jurisdictionexercise their powers regarding the interpretation and justiciability of these
rights, in accordance with their Constitutions and laws.
14. Another, different 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. As explained, in light of the normative design of this 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. In this context, nothing prevents the court from
considering the economic, social, and cultural dimensions of the rights
recognized in the treaty norms and exercising its adjudicative jurisdiction
through related matters. The Court has used this approach in previous cases
18
The right to work, to fair and equitable working conditions, labor rights, the right to social security,
to health, to a healthy environment, to food, to education, to the benefits of culture, to the establishment
and protection of the family, to childhood, to the protection of the elderly, and to the protection of persons
with disabilities[sic].
19
According to Article 2(a) of the Vienna Convention on the Law of Treaties, a treaty might be
embodied in a single instrument or in two or more related instruments.
20
For RAWLS, primary goods are a set of goods necessary "for the elaboration and execution of a rational
life plan," such as liberty, opportunities, income, wealth, and self-respect, "A Theory of
Justice" (1995:393).
21
Pérez Goldberg, "Las mujeres privadas de libertad y el enfoque de capacidades" (2021:94-109).
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