6
This is because, in that opinion, the Inter-American Court considered that “[t]he Member States
have understood that the Declaration contains and defines those essential human rights referred
to in the Charter […].” Thus, the Inter-American Court observed that the right to work is found
in Article XIV of the American Declaration.29 The third relevant aspect consists in the national
and international corpus iuris that protects the right to work as an autonomous right,30 and the
Inter-American Court took this into consideration when taking its decision in the instant case.
Lastly, the fourth relevant aspect refers to the development of the right to job security under the
laws of Peru, in the Constitutions (of 1979 and 1993) and the labor legislation.31
12.
In addition, in the judgment, the Inter-American Court used three of the paragraphs of
Article 29 (b, c and d) of the American Convention.32 In other words, the Inter-American Court
granted a broader protection derived from the recognition of the right to work in both the law
and the Constitution of Peru, as well as the rights recognized in any treaty to which the State
was a party, and the effects produce by the American Declaration of the Rights and Duties of
Man. In this case, their effect was to delimit the rights that were expressed in the provisions of
the OAS Charter. It should be stressed that the said three paragraphs do not have, prima facie,
to be concurrent to makes the social rights justiciable. In other words, perhaps the right is not
expressly recognized in domestic law, but it is to be found in an international treaty to which the
State is a party. Or, inversely, perhaps the right is not expressly contemplated in the international
treaties to which the State is a party, but it is established in domestic law.
13.
Furthermore, it is necessary to take into consideration the effects of the American
Declaration of the Rights and Duties of Man, by the derivation of rights via Article 26, which
delimits more clearly the list of rights that are contained in the OAS Charter. Thus, depending on
the case and the right analyzed, the Inter-America Court must verify the rules of interpretation
that should be applied to provide greater protection to the victim and to assess whether or not
the social rights that have been alleged have been violated.
14.
Complementing this analysis, the Inter-American Court concluded a series of obligations
that, in principle, result in the following duties: “(a) to adopt the appropriate measures for the
due regulation and monitoring [of the right to work]; (b) to protect workers against unjustified
dismissal through its competent organs; (c) in case of unjustified dismissal, to rectify the situation
(either by reinstatement or, if appropriate, by compensation and other social benefits established
in domestic law). Consequently, (d) the State should provide effective grievance mechanisms in
cases of unjustified dismissal, to ensure access to justice and the effective judicial protection of
such rights.”33 In other words, the Inter-American Court identified specific obligations in relation
to the right to work (job security).
15.
Regarding the violation of the right to job security as part of the right to work, the InterAmerican Court concluded that:
Case of Lagos del Campo v. Peru, supra, para. 144. In addition, it is worth underlining the fourth paragraph of
the Preamble to the American Convention which states: “Considering that these principles [rights] have been set forth in
the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the
Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments,
worldwide as well as regional in scope.”
29
30
Case of Lagos del Campo v. Peru, supra, para. 145.
31
Case of Lagos del Campo v. Peru, supra, para. 138.
“Article 29. Restrictions regarding Interpretation. No provision of this Convention shall be interpreted as: “[…] (b)
restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue
of another convention to which one of the said states is a party; (c) precluding other rights or guarantees that are inherent in
the human personality or derived from representative democracy as a form of government; or (d) excluding or limiting the
effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may
have.”
32
33
Case of Lagos del Campo v. Peru, supra, para. 149.