as the health crisis caused by the COVID-19 pandemic continues to impact the
protection of a number of rights in this category. A growing number of the cases
brought before the IAHRS by the Commission openly assume Article 26 of the
Convention to be a primary source of autonomous ESCER obligations, which once
again demonstrates that ESCER justiciability is seen as a consolidated fact by interAmerican society. I would also emphasize that the eventual arrival of some of these
cases before the Court will reinforce the ongoing evolution of inter-American case law
on the matter.
88.
In addition to active participation in contentious cases, another notable form
of participation for individuals and civil society groups in the IAHRS is via amici curiae.
These contributions have been especially noteworthy in the Court's rulings on Article
26, in which a substantial part of this pluralistic group of interpreters of the
Convention can be seen supporting the direct justiciability of ESCER. In the case at
hand, for example, the Court was able to rely on valuable contributions by
researchers from the Practicum on the International Protection of Human Rights at
Boston College Law School, who highlighted that vulnerable groups have particular
needs that must be addressed by states to guarantee access to work without
discrimination, and that this compliance is immediately enforceable.63
89.
It should also be noted that in addition to considering the existing peculiarities
and dynamics of the IAHRS, the Court's actions take place as part of a dialogue with
the universal human rights protection system, and therefore, the Court cannot ignore
the reality of international ESCER protection and promotion mechanisms. As César
Rodríguez Garavito indicates, regardless of the peculiarities of Latin American legal
thought, which is based on the social reality in which it develops, “intellectual
isolation” by turning away from the legal world must not be the approach.64 The
dynamic seen in the UN system is precisely a movement toward the justiciability of
ESCER. The Inter-American Commission, for its part, has a broad agenda regarding
ESCER. At the beginning of this century, the Commission tried to promote defense of
these rights based on Article 26 of the Convention, as can be seen in the report on
the case of Miltón García Fajardo et al. regarding Nicaragua (2001).65 To go into
further depth in this area, in 2014, the Special Rapporteurship on Economic, Social,
Cultural, and Environmental Rights ("REDESCA") was created. It has contributed
greatly to furthering the discussion on protecting ESCR in the IAHRS and to drafting
standards for its organs on the scope of their protection.
90.
The Commission’s mandate in the IAHRS is one of the strongest indicators of
the existence of an open society of interpreters of the Convention, characterized by
dialogue between the recipients of the norms of the Convention, by pluralism, and
by democratic ideals, to the extent that this body develops its activities and
formulates its recommendations in direct contact with the other agents active in the
Latin American network. The work done by the Commission and its special
rapporteurs in gathering information on the situation of ESCER in the region is
commendable insofar as it helps elucidate the continent’s specific needs and
contributes to improving the mechanisms for protecting them.
91.
It is my contention that states’ involvement in the agenda of the Court and
the Commission and the participation of non-institutional actors work to refute
63
Amicus Curiae Practicum on the International Protection of Human Rights, Boston College Law
School, Case of Guevara Díaz v. Costa Rica, pg. 22.
GARAVITO, César Rodríguez. “Un nuevo mapa para el pensamiento jurídico latinoamericano.” In:
GARAVITO, César Rodríguez (ed.), El derecho en América Latina: Un mapa para el pensamiento jurídico
del siglo XXI, Buenos Aires: Siglo Veintiuno Editores, 2011. pg. 16
64
Cf. IACHR, Report 100/01, Case 11,381, Milton García Fajardo et al. regarding Nicaragua, October
11, 2001. (para. 95 and following).
65
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