76.
National courts have consolidated this understanding and public policies have
been built around this approach to ESCER. There is, therefore, a heavy burden on
any potential reversal of the Court's case law—rhetorical in nature, but also politicalinstitutional.
77.
In fact, the Court’s case law on ESCER has taken root so deeply in states’
interpretations that I think it is possible to argue that the justiciability of ESCER has
become an indelible element of the shared language of interpreters of the
Convention.
78.
In the process toward the consolidation of the direct justiciability of ESCER,
concern arose as to how this evolution would be received by the states. In particular,
there was concern that states might resist the direct justiciability of ESCER, which
could give rise to tensions that impact the Court's perceived legitimacy.
79.
In some cases, during the process of consolidating this understanding,
preliminary objections were raised regarding the Court's jurisdiction to analyze
ESCER based on Article 26 of the treaty. However, this debate ended some time ago
in a majority of states that accept the direct justiciability of ESCER, which
demonstrates their commitment to working together with the IAHRS bodies for their
effective realization.
80.
In the current dynamic, cooperation between states and inter-American
bodies is constant, as national governments appoint members of the composition of
inter-American entities, send representatives to hearings before the Commission and
the Court, prepare periodic and thematic reports on the protection of human rights
in their territories, and receive inter-American delegations to carry out evaluations
and investigations.
81.
Preliminary objections challenging the Court's competence to enforce Article
26 are, in line with the formation of this authentic culture of the justiciability of
ESCER, increasingly infrequent.56 There are even situations in which states
spontaneously accept their international responsibility for direct violations of Article
26 of the Convention, which they would never have done if there were even the
slightest doubt about its immediate applicability.57 In this sense, Costa Rica's move
in the case at hand of forthrightly acknowledging the violation of Mr. Guevara Díaz's
right to work based on Article 26 is especially salutary and relevant, as is the similar
acknowledgment made by Honduras last year.
82.
In 2007, in its report on access to justice as a guarantee of economic, social
and cultural rights, the Commission pointed out the importance of states’ duty to
provide effective mechanisms for access to justice in cases of judicialization of ESCER
claims.58 This duty derives precisely from the indivisibility, interdependence, and
interrelation of civil and political rights and economic, social and cultural rights, such
that, as stated in the 1997 Maastricht Guidelines on Violations of Economic, Social,
and Cultural Rights, states have the same responsibility for the violations of any other
group.
It is noteworthy that, even in when more ESCER were added to the list given in Article 26, the
respondent state did not raise this preliminary objection. Cf. Case of the Indigenous Communities of the
Lhaka Honhat (Our Land) Association v. Argentina. Merits, Reparations, and Costs. Judgment of February
6, 2020. Series C No. 400.
56
Cf. Case of the Miskito Divers (Lemoth Morris et al) v. Honduras. Judgment of August 31, 2021.
Series C No. 432.
57
Cf. IACHR. Access to Justice as a Guarantee of Economic, Social and Cultural Rights. A review of
the standards adopted by the IAHRS. OEA/Ser.L/V/II.129 Doc. 4, September 7, 2007.
58
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