and dismissal procedures. 55 In the words of the Court “the access in equal conditions would constitute an
insufficient guarantee if it were not accompanied by the effective protection of the continuance of what is
accessed.” 56 It also pointed out that:
(…) the right to have access to public service in general conditions of equality protects the
access to a direct form of participation in the design, implementation, development, and
execution of the state’s political guidelines through public service. Therefore, it is necessary
that the State generate the optimal conditions and mechanisms in order for those political
rights to be exercised effectively, respecting the principle of equality and nondiscrimination. 57
44.
As for Article 26 of the American Convention, it establishes an obligation inherent to states
parties to ensure the progressive development of the rights contained in this norm. Both bodies of the InterAmerican System 58 have confirmed their competence to rule on possible violations of Article 26 of the
American Convention in the framework of the system of individual petitions and cases. 59
45.
The Commission recognizes that Article 26 of the Convention and the concrete determination
of its scope and content may entail certain interpretive complexities. Thus the Commission deems that the
review of a concrete case in the light of Article 26 of the American Convention must be carried out at two levels.
First, it must be established whether or not the right being dealt with in the case stems from “the economic,
social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American
States,” as instructed by the text of Article 26. That is, Article 26 of the American Convention is the one that
identifies the OAS Charter as a direct source of rights, assigning a human rights character to the provisions on
the matter that can emanate from this treaty. Since the purpose of the OAS Charter was not to individualize
rights without establishing an international body, it is necessary to resort to auxiliary texts to identify the rights
stemming from the provisions of said instrument, including basically the American Declaration and other
relevant norms of the international corpus juris.
46.
When applying the above parameters to the present case, the Commission and the Court
already established that the right to work is one of the rights stemming from the economic and social norms
mentioned in Article 26 of the Convention, as a result of which it is not necessary to recapitulate said analysis. 60
47.
Once this has been established, it must be determined whether or not the state concerned
failed to fulfill the obligation of “progressively achieving” the full realization of said right or those general
obligations to respect and guarantee it. At the second level, the nature and scope of the obligations requiring
I/A Court H.R. Case of Reverón Trujillo V. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of June 30, 2009.
Series C No. 197. Para. 138. Quoting. Pastukhov v. Belarus (814/1998), ICCPR, A/58/40 vol. II (5 August 2003) 69
(CCPR/C/78/D/814/1998) at paras. 7.3 and 9; Adrien Mundyo Busyo, Thomas Osthudi Wongodi, René Sibu Matubuka et al. v. Democratic
Republic of the Congo (933/2000), ICCPR, A/58/40 vol. II (31 July 2003) 224 (CCPR/C/78/D/933/2000) at para. 5.2.
56 I/A Court H.R. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of June 30, 2009.
Series C No. 197. Para. 138.
57 I/A Court H.R. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of June 30, 2009.
Series C No. 197. Para. 139. Quoting. Cf. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
June 23, 2005. Series C No. 127, para. 195.
58 See, for example, forms of admissibility where the possible violation of Article 26 of the Convention has been admitted: Report 29/01.
Case of 12.249. Jorge Odir Miranda Cortez et al. El Salvador, March 7, 2001; and Report 70/04. Petition 667/01. Admissibility. Jesús Manuel
Naranjo Cárdenas et al. (Pensioners of the Venezuelan Aviation Company VIASA). Venezuela, October 13, 2004. See also the ruling on the
merits in connection with Article 26 in Report 38/09. Case of 12.670. National Association of Ex-Employees of the Peruvian Social Security
Institute et al. v. Peru. March 27, 2009. Likewise, the Court upheld said jurisdiction in the Case of Acevedo Buendía et al. (“Discharged and
Retired Employees of the Comptroller’s Office”) v. Peru (Preliminary Objection, Merits, Reparations, and Costs), Judgment of July 1, 2009;
I/A Court H.R. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 23,
2018. Series C No. 359. Paras. 74-97.
55
I/A Court H.R. Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 31, 2017.
Series C No. 340. Para. 146; I/A Court H.R. Case of Discharged Workers of Petroperú et al. V. Peru. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 23, 2017. Series C No. 344. Para. 192; and I/A Court H.R. Case of San Miguel Sosa et al. v.
Venezuela. Merits, Reparations, and Costs. Judgment of February 8, 2018. Series C No. 348. Para. 220.
60