9
70. In its individual dimension, labor-related freedom of association is not exhausted by the theoretical
recognition of the right to form trade unions, but also corresponds, inseparably, to the right to use any
appropriate means to exercise this freedom. When the Convention proclaims that freedom of association
includes the right to freely associate “for [… any] other purpose,” it is emphasizing that the freedom to
associate and to pursue certain collective goals are indivisible, so that a limitation of the possibilities of
association represents directly, and to the same extent, a limitation of the right of the collectivity to
achieve its proposed purposes. Hence the importance of adapting to the Convention the legal regime
applicable to trade unions and the State’s actions, or those that occur with it tolerance, that could render
this right inoperative in the practice.
71. In its social dimension, freedom of association is a mechanism that allows the members of a labor
collectivity or group to achieve certain objectives together and to obtain benefits for themselves.
72. The two above-mentioned dimensions of freedom of association must be guaranteed
simultaneously, respecting the restrictions allowed in paragraph 2 of Article 16 of the Convention.45
24.
In the same case, the Inter-American Court referred, for the first time, to the Protocol of
San Salvador and to Convention No. 87 of the International Labour Organization, which in their
Articles 8(1)(a) and 11, respectively, include the obligation of the State to allow labor unions,
federations and confederations to function freely. 46
25.
In the case of Cantoral Huamaní and García Santa Cruz, the Inter-American Court
considered that Article 16 of the Pact of San José had been violated, because the execution of the
victims had an intimidating and frightening effect on the workers members of the Peruvian mining
unions. Those executions not only restricted the freedom of a specific group to associate freely
without fear, but they affected the freedom of the miners to exercise this right.47 In this case, the
Inter-American Court made a distinction between the two types of obligations (negative and
positive) that are present in Article 16, considering that:
144. Article 16(1) of the Convention establishes that those who are subject to the jurisdiction of the
States Parties have the right to associate freely with other persons, without the intervention of the public
authorities limiting or obstructing the exercise of this right. In addition, they have the right and the
freedom to associate in order to seek together a lawful purpose, without pressure or interference that can
alter or denature this purpose. In addition to these negative obligations, freedom of association also gives
rise to positive obligations, such as to prevent attacks on it, to protect those who exercise it, and to
investigate violations. These positive obligations must be adopted, even in the sphere of relations between
individuals, if the case merits it. As it has determined in other cases, the Court considers that the sphere
of protection of Article 16(1) includes the exercise of the right to organize trade unions.48
26.
Also, in Advisory Opinion No. 22 on the Entitlement of Legal Entities to Hold Rights under
the Inter-American Human Rights System, the Inter-American Court considered that “when
Article 8(1)(a) indicates that ‘as an extension of that right [of the workers], the States Parties
shall permit trade unions, federations and confederations to function freely, and trade unions to
associate and form national federations and confederations and international trade union
organizations,’ what the provision does is give a broader scope to the right of the workers than
the mere fact of being able to organize unions and join the one they choose. The Inter-American
Court achieved this by specifying the minimum means by which the States should guarantee the
exercise of this right. Consequently, the right that the provision recognizes in favor of the workers
establishes a framework under which more specific rights are generated for labor or trade unions,
federations and confederations as autonomous subjects of rights, the purpose of which is to allow
them to be interlocutors for their members and, through this function, facilitating a more
extensive protection and the effective enjoyment of this right of the workers.”49
45
Case of Huilca Tecse v. Peru, supra, paras. 70, 71 and 72.
46
Case of Huilca Tecse v. Peru, supra, para.74.
47
Case of Cantoral Huamaní and García Santa Cruz v. Peru, supra, para. 148.
48
Case of Cantoral Huamaní and García Santa Cruz v. Peru, supra, para. 144.
49
Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System (Interpretation and