the Convention refers is to the “enjoyment” of both types of human rights and not that
they should be subject to the same rules for their exercise and international monitoring.
52. It is also necessary to bear in mind that, regarding what Article 31(2) of the Vienna
Convention considers as context, there is no “agreement relating to the [Convention]
which was made between all the parties in connection with the conclusion of the treaty”
or “any instrument which was made by one or more parties in connection with the
conclusion of the” Convention and “accepted by the other parties as an instrument
related to” it.
53. Nor does there exist, together with the context, as established by Article 31(3) of the
Vienna Convention, “any subsequent agreement between the parties regarding the
interpretation” of the Convention “or the application of its provisions” or “any
subsequent practice in the application of the treaty, which establishes the agreement
of the parties regarding its interpretation,” except for the Protocol of San Salvador.
54. Consequently, it is not acceptable that, in the absence of what is known in legal doctrine
as the “authentic interpretation,” the meaning and scope of the Convention are
determined by the Court unrelated, and even in contradiction, to what was agreed by
its States Parties. The Convention, as every treaty, does not exist outside of what the
latter expressly agreed.
55. In support of its decision, the judgment mentions Article XIV of the American
Declaration of the Rights and Duties of Man, Article 29(d) of the Convention, and
General Comment No. 18 on the right to work of the United Nations Committee on
Economic, Social and Cultural Rights. Regarding the first, it should be pointed out that,
logically, it does not establish the justiciability before the Court of the right to work
because, at the date of the Declaration, the Court did not exist.
56. Regarding the second, it is necessary to insist that it refers to the interpretation of the
Convention that could limit or exclude the enjoyment and exercise or the effects of
human rights recognized in the Convention, which is not the case of the rights derived
from the OAS Charter. Moreover, neither does it refer to the justiciability of the right
to work.
57. Lastly, regarding the reference to the United Nations Committee on Economic, Social
and Cultural Rights, this is a body composed of 18 independent experts. In other words,
it is not formed of State representatives and, moreover, it oversees the application of
the International Covenant on Economic, Social and Cultural Rights by its States
parties. Consequently, it bears no relationship to the Convention and thus it cannot
possibly establish the justiciability before the Court of the right to work and, evidently,
does not do so. In addition, it should be added that the comments of the said
Committee constitute an aspiration, which is entirely legitimate, of change or
development of the relevant international law.
58. Therefore, it is irrefutable that none of the texts cited – let me repeat, none – involves
or establishes that presumed violations of the right to work, or of any of the other
economic, social and cultural rights derived from the economic, social, educational,
scientific, and cultural standards set forth in the OAS Charter can be submitted to the
Court for it to rule on them.
59. It is necessary to add to the foregoing that nor do the references in the judgment to
the domestic law of the State74 justify its thesis that they provide authorization to have
recourse to the Court for violations of the rights mentioned above. The Court’s
74
Para. 105.