my observations regarding Advisory Opinion 27/21 on ‘‘Rights to freedom to organize,
collective bargaining, and strike, and their relation to other rights, with a gender perspective:’’
The emergence of the new technologies and services reveals unprecedented obligations and
challenges for States and for their legislative and judicial functions to adapt their constitutional
and legal systems, as well as to reformulate their practices in the face of the new conditions of
the labor market, particularly with respect to the changes brought about by the irruption of new
technologies. Undoubtedly, work through the new technologies – such as the digital platforms
that underpin communications and transportation services, the online purchase and sale of food
and goods in general- may represent advantages in terms of access to diversified and innovative
sources of employment, but at the same time, it implies a series of modifications to traditional
labor relations in terms of time, schedules, modalities of remuneration and union association
and, in some cases, the use of new knowledge and technological skills not known a short time
ago. However, this unprecedented and diverse employment model also entails major risks for
the enjoyment of labor rights, especially if we consider that Latin America and the Caribbean
have high unemployment rates. This leads people to adopt and submit - not voluntarily - to
precarious forms of employment, and relationships between workers and employers with
unfamiliar forms or as yet undefined contours in terms of their legal and jurisdictional
guarantees. These issues must be addressed immediately and with concern, if we truly hope to
address the claims of thousands of new workers in these very new circumstances, especially if
we seriously consider that in 2020 the region had an unemployment rate of 10.6% according to
data from the International Labor Organization. This means that more than 30 million people
were jobless,7 without taking into account the updated figures on the loss of employment
sources, the tremendous deregulation of labor, structural adjustment policies, and the uncertain,
if not poorly managed and unresolved, health crisis of COVID -19 and its devastating effects on
the economies, families and individuals of our continent. 8
5.
Having reflected on what the future holds and whether our legal institutions as they are
traditionally conceived can really address this type of problem, I would now like to consider
whether the principle of attribution of responsibility in Public International Law can remain
untouched, set in stone. The Western world attributes the ‘‘awakening’’ of humanity and the
ensuing creation of an international system of protection of human rights to the consequences
of the world wars. I believe that this vision is somewhat limited, since humanity and especially
the native peoples and social movements of Latin America have long been advocating not
only for the internationalization, but also for the guarantee of social and economic rights.
Nevertheless, the traditional Western image of the Second World War as a turning point is
helpful to show it is possible to transform the international system. With this transformation,
the idea that only states were the international actors fell away, and the individual came to
be seen as the consignee or beneficiary of international norms and the subject of rights.
However, this vision still does not include other actors that today wield as much or more
power than many States: transnational corporations. Thus, the classical theory of human
rights does not accept any link other than that between the individual and the State. In other
words, since the very emergence of the State as a major actor in international society, the
protection of fundamental human rights has traditionally been applicable to its sphere of
responsibility. Consequently, in modern society, States are involved in both the protection
and the violation of human rights. We see from the examples cited above that this is not
entirely consistent with reality. 9 The judgment in this case, the most recent development of
International Labour Organization. 2020 Labor Outlook. Latin America and the Caribbean, 2019, page 6.
Rights to freedom to organize, collective bargaining, and strike, and their relation to other rights, with a gender
perspective (interpretation and scope of Articles 13, 15, 16, 24, 25 and 26, in relation to Articles 1(1) and 2 of the
American Convention on Human Rights, of Articles 3, 6, 7 and 8 of the Protocol of San Salvador, of Articles 2, 3, 4,
5 and 6 of the Convention of Belem do Pará, of Articles 34, 44 and 45 of the Charter of the Organization of American
States, and of Articles II, IV, XIV, XXI and XXII of the American Declaration of the Rights and Duties of Man). Advisory
Opinion OC-27/21 of May 5, 2021. Series A No. 27.
9
There are those who consider that transnational corporations entail ‘‘a drastically different level of work’’ and
therefore require a new body of law which they call ‘‘transnational law.’’ However, the discussion here is rather
7
8
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