83.
From this point of view, in awareness of the need to guarantee access to
justice as regards ESCER, in recent decades, states have extensively developed the
jurisdictional protection of these rights and have set up mechanisms that even allow
for direct justiciability in terms of constitutional enforcement.
84.
An example is the Supreme Court of Justice of the Nation of Mexico,59 which,
within the scope of its constitutional mandate, has the power to declare a violation
of ESCER through an amparo ruling, something that became possible thanks to the
Mexican constitutional reform of 2011. In the same sense, when analyzing how the
Federal Supreme Court of Brazil has ruled, it is observed that typical constitutional
review has proven to be an authentic vehicle for promoting ESCER, and the case law
emerging from this jurisdictional action gives life to these rights.
85.
The recent development of the structuring processes within the Brazilian
constitutional jurisdiction is also an unequivocal example of developing a shared
language formed from recognition of the justiciability of ESCER. In its findings on
breach of constitutional provision 347, the Supreme Court of Brazil found that the
prison system was in violation, with mass violation of the fundamental rights of
prisoners.60 And this year, the same court began hearing a Claim of Failure to Observe
Constitutional Provisions 760, which requests a finding of unconstitutionality with
respect to protection of the environment, specifically in the struggle against
deforestation of the Amazon, with opinions issued that are based on, among other
things, judgments issued by this Court.61 All of this demonstrates that the Court's
rulings on ESCER today have the status of super-precedents that enter into direct
dialogue with national legal systems and cannot be simply abandoned. Brazil is not
alone in this. Among other Latin American nations, Colombia is a living laboratory of
landmark decisions that have led to the development of a doctrine of findings of
unconstitutionality to deal with coordination failures that endanger the realization of
the various ESCER.
86.
In cases brought before the Court, individuals and civil society groups—whose
opportunities for active participation in the IAHRS were positively expanded by the
2000 and 2009 reforms of the Court's Rules of Procedure—also often make valuable
contributions. to interpretation of the Convention, as reflected in the debates on
Article 26. In the context of their participation in the IAHRS as petitioners, for
example, they have submitted a notable number of petitions to the Commission and
pleadings, motions, and evidence briefs to the Court alleging violations of Article 26
of the Convention in recent years.62
87.
Through its system for processing individual petitions, the IAHRS receives
endless petitions related to the violation of ESCER, and they are only more frequent
The Court recently published a teaching manual on the justiciability of ESCER. It illustrates the
dialogues between the IAHRS and domestic courts on the protection of these rights.
59
Cf. Supreme Federal Tribunal. ADPF 347-MC, Rapporteur Judge Marco Aurélio. Handed down on
September 09, 2015.
60
Cf. Supreme Federal Tribunal. ADPF 760, Rapporteur Judge Cármen Lúcia. Handed down on March
31, 2022.
61
It is therefore essential to note that it has been almost 20 years since the petitioners have invoked
such a provision in defense of ESCER. Cf. Case of the "Five Pensioners" v. Peru. Merits, Reparations, and
Costs. Judgment of February 28, 2003. Series C No. 98; Case of the "Juvenile Reeducation Institute” v.
Paraguay. Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 2, 2004. Series
C No. 112, Case of Yean and Bosico Children v. Dominican Republic. Interpretation of Judgment of
Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 23, 2006. Series C No.
156; Case of Acevedo Jaramillo et al. v. Peru. Interpretation of Judgment of Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 24, 2006. Series C No. 157; Case of the Kichwa Indigenous
People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June 27, 2012. Series C No. 245,
and Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of November 24, 2006. Series C No. 158.
62
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