International courts must therefore exercise their powers in the framework
set by the applicable treaties. Such legal instruments are the foundation for
the court and set the boundaries for its work. From the democratic standpoint,
this is consistent with due respect for the domestic deliberative processes by
which a country decides to ratify a treaty, and with the type of interpretation
produced by international courts. Such hermeneutic exercise revolves around
the provisions of international law and are not based on a constitution.
3. Therefore, and in view of the fact that the Court in this case found violation
of the right to job stability as part of the right to work, based on the provisions
of Convention Article 26, it is worth asking whether the Count in fact has the
power to proceed in such a way.
4. The law of treaties tells us that it does not. Article 1(1) of the Convention is
clear, stating that the States Parties “undertake to respect the rights and
freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination...” The articles on the jurisdiction and functions of the Court
are also crystal-clear in stating that the Court is subject to the provisions of
the American Convention. Specifically, Article 62(3) says, “[t]he jurisdiction
of the Court shall comprise all cases concerning the interpretation and
application of the provisions of this Convention that are submitted to it [...]”
and, along the same lines, Article 63(1) says, “[i]f the Court finds that there
has been a violation of a right or freedom protected by this Convention, the
Court shall rule that the injured party be ensured the enjoyment of his right
or freedom that was violated.” 10
5. Chapter III of the Convention, “Economic, Social and Cultural Rights,” consists
of a single paragraph, Article 26, entitled “Progressive Development.” Under
the terms of this article, as the title suggests, “[t]he States Parties undertake
to adopt measures, both internally and through international cooperation,
especially those of an economic and technical nature, with a view to
achieving progressively, by legislation or other appropriate means, the full
realization of the rights implicit in the economic, social, educational, scientific,
and cultural standards set forth in the Charter of the Organization of American
States as amended by the Protocol of Buenos Aires.” 11.
6. Notwithstanding the following discussion, a reading of this article would
suggest that, unlike the case of the civil and political rights specified and
developed in Chapter II of the Convention, this text sets an obligation of
means for the States Parties, that is, to adopt the actions, measures or public
policies necessary to achieve “progressively” the full realization of the rights
provided in this article.
7. Indeed, under Article 76(1) and 77(1) of the Convention, the States Parties
agreed on mechanisms to modify the terms of the Convention by means of
either amendment or an additional protocol. It was under this latter article
that the “Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights” was adopted in 1988, for
the purpose of progressively drawing other rights and freedoms into the
protection system of the Convention. I will discuss this point below.
10
11
Emphasis added.
Emphasis added.