SEPARATE OPINION OF
JUDGE EDUARDO FERRER MAC-GREGOR POISOT
CASE OF THE FORMER EMPLOYEES OF THE JUDICIARY V. GUATEMALA
JUDGMENT OF NOVEMBER 17, 2021
(Preliminary objections, Merits and Reparations)
I. INTRODUCTION: ANOTHER STEP FORWARD IN THE REAFFIRMATION OF
INTER-AMERICAN SOCIAL RIGHTS
1.
This judgment marks an important contribution to inter-American case law since
it is the first precedent, in a contentious case, in which the violation of the right to strike
and of the right to freedom to organize is declared autonomously. In this case, the InterAmerican Court of Human Rights (hereinafter “Inter-American Court” or “the Court”)
analyzes various aspects that have a significant impact on labor rights of individuals.
2.
I fully agree with the decision reached in the judgment, which declares the
responsibility of the State, inter alia, for the violation of the right to strike, freedom to
organize, the right to work and, specifically, job security, contained in Article 26 and the
right to freedom of association contemplated in Article 16, both of the American
Convention, in relation to the obligations to respect and guarantee rights and the duty
to adopt provisions of domestic law, referred to in Articles 1 and 2 of the same
instrument. 1
3.
In issue this separate opinion to highlight certain aspects of the right to strike as
one of the rights of particular importance in this case. I will emphasize, inter alia, the
special function of the right to strike as the main mechanism for the protection of the
labor rights of workers, as well as the recognition it has enjoyed both in inter-American
law and in international human rights law. In conclusion I will highlight novel aspects
that were not considered by the Inter-American Court when it issued its recent Advisory
Opinion No. 27 on the rights to freedom to organize, collective bargaining and right to
strike. 2
II. THE GRADUAL DEVELOPMENT OF THE CONTENT OF THE INDIVIDUAL AND
COLLECTIVE LABOR RIGHTS OF WORKERS IN THE JURISPRUDENCE OF THE
INTER-AMERICAN COURT
Cf. Case of Former Employees of the Judiciary v. Guatemala. Judgment of November 17, 2021.
Preliminary objections, merits and reparations. Series C No. 445, fourth operative paragraph.
1
2
Cf. 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 con
Articles 1.1 and 2 of the American Convention on Human Rights, of Articles 3, 6, 7 and 8 del 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.
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