expression of the right to access public office), with the objective that the work issues
are subsumed to the former, would result in an emptying of the content of Article 26,
but it would also create unresolvable practical problems when dealing with arbitrary
dismissals in the area of private labor relations, as happened in the emblematic Lagos
del Campo case of 2017, which opened the way for the interpretation of the direct and
autonomous justiciability of the right to work established in Article 26.
39.
In accordance with the Court’s case law, 68 the right to work under Article 26 is
much broader and protects arbitrary separations or dismissals. Thus, it would not be
possible to subsume the allegations of violations to the right to work into the content of
Article 23(1)(c), since the content of each right is distinct, the protection of the right to
work is broader as it includes the public and private areas, while the right to access to
public service (public service position) is limited to the former.
40.
A second aspect that differentiates Article 23(1)(c) from Article 26 requires
specifying the scope of protection with which it impacts on the content of that right.
While Article 23(1)(c) focuses on i) the possibility (access), ii) having achieved this
access, continuance in the position and iii) having achieved continuance in the position,
any separation must be for established grouds and in accordance with the guarantees of
due process; the right to work contained in Article 26 protects other components in
addition to work stability, such as salary, 69 freely accepting or deciding on a job, access
to a system of protection that ensures to each worker access to a job, the dignity of
work, the possibility of forming trade unions, 70 working conditions (decent, equitable,
satisfactory health and sanitary conditions) 71 or even the vocation to perform a job 72.
For example, the European Social Charter has a catalogue of broad contents that protect
the right to work. 73
41.
Thirdly, the focus of the right contained in Article 23(1)(c) is primarily to have an
impact on society; in other words, a citizen occupies a public service position to serve
society in that the presumed intent of that person is to access such position in order to
have an impact on the “design, implementation, development and execution of State
policies through public service.” On the other hand, the right to work is mainly focused
on its individual dimension (without ignoring its collective importance 74), since the
essence of this right -and of its facets- has the purpose that the worker through his or
her work achieves the conditions of a life with dignity or in the words of the UN
Cf. Case of Lagos del Campo v. Peru, op. cit., para. 145; Case of the Dismissed Employees of Petroperú
et al. v. Peru, op. cit., para. 192; Case of San Miguel Sosa et al. v. Venezuela, op. cit., paras. 219 and 220;
Case of Spoltore v. Argentina, op. cit., para. 82; Case of the Employees of the Fireworks Factory de Santo
Antônio de Jesus and their families v. Brazil, op. cit., para. 68; Case of Casa Nina v. Peru, op. cit., para. 104;
Case of the Buzos Miskitos (Lemoth Morris et al.) v. Honduras, op. cit., para. 68; Case of the Former Employees
of the Judiciary v. Guatemala, op. cit., paras. 128 to 133; Case of Palacio Urrutia et al. v. Ecuador, op. cit.,
para. 153; Case of the National Federation of Maritime and Port Workers (FEMAPOR) v. Peru, op. cit., para.
107; Case of Pavez Pavez v. Chile, op. cit., para. 87; Case of Guevara Díaz v. Costa Rica, op. cit., para. 58;
and Case of Benites Cabrera et al. v. Peru, op. cit., para. 110.
69
See: Case of the National Federation of Maritime and Port Workers (FEMAPOR) v. Peru. op. cit.
70
UN ESCR Committee, General Comment No. 18, right to work, E/C.12/GC/18 (2006), paras. 6, 7 and
12(c).
71
See: Case of Spoltore v. Argentina, op. cit.; Case of the Employees of the Fireworks Factory of
Santo Antonio de Jesús and their families v. Brazil, op. cit., and Case of the Buzos Miskitos v. Honduras, op.
cit.
72
See: Case of Pavez Pavez v. Chile, op. cit.
73
See: Provisions of the European Social Charter included in Articles 1 to 10, 19 to 22 and 24 to 29.
74
However, this “collective” facet, unlike the content of the right contained in Article 23, is mainly
focused on the defense of the interests of trade unions and associations of workers and not on society as a
whole.
68
12