claims of workers have been recognized within the framework of the Inter-American
Human Rights System.
26.
As I have already stated on other occasions, 48 the right to work has been a
fundamental component of the jurisprudential approach developed by the InterAmerican Court as of 2017 since the Case of Lagos del Campo v. Peru, 49 regarding
economic, social, cultural and environmental rights (hereinafter “ESCER”). This is the
context of the present case, where the judgment determined that the right to strike is
protected - along with other rights in favor of workers – under Article 26 of the American
Convention. 50 Since the Lagos del Campo case, the jurisprudence of the Inter-American
Court has been identifying the different ways in which the right to work is expressed,
such as “the right of employers and workers to associate freely for the defense and
promotion of their interests,” for example. 51
27.
In this sense, the present case is part of the development of social and labor
rights. The Court had not ruled on the right to strike in an autonomous manner. Hence,
the importance of the parameters developed in Advisory Opinion OC-27, which were of
fundamental importance for the analysis of this contentious case, for example, when the
Inter-American Court determined that the principle of legality did not materialize. 52
28.
However, the Court also analyzed other components of the right to strike that
had not previously been considered in Advisory Opinion OC-27, such as the excessive
duration and long delays in the prior procedures required to exercise the right to strike; 53
or that the requirement of a very high rate of participation to declare the strike legal
“makes a legal strike impossible in practice, so that its imposition implies an arbitrary
restriction of the right to strike, of freedom of association and of freedom to organize.” 54
29.
The Court’s contentious case law now has one more component to make
justiciable the rights of workers and their collective guarantee of defense of their
interests and rights. Although the right to strike has been one of the rights that has
achieved the least recognition in international law, the case under analysis constitutes
a valuable contribution to the materialization of this right.
48
In the Case of San Miguel Sosa et al., I stated that “[t]he case of San Miguel Sosa et al. v. Venezuela
complements the vision that the Inter-American Court has rapidly developed regarding social rights and their
direct justiciability before this judicial body. In this regard, the triad of labor-related cases, namely, Lagos
del Campo, Dismissed Workers of Petroperú et al. and now the case of San Miguel Sosa et al., allow us to
align a series of standards that should be taken into consideration in the exercise of conventionality control
by the domestic courts and to expand the current jurisprudential dialogue between the international or interAmerican sphere and the domestic courts of the States Parties to the American Convention.” Cf. Partially
dissenting opinion in the Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment
of February 8, 2018. Series C No. 348, para. 27.
49
50
Cf. Case of Lagos del Campo v. Peru, supra, paras. 153 and 154.
Cf. Case of Former Employees of the Judiciary v. Guatemala, supra, operative paragraph 4.
The Inter-American Court concluded that “the State is responsible for the violation of Articles 16(1)
and 26 in relation to Articles 1(1), 13 and 8 of the American Convention, to the detriment of Mr. Lagos del
Campo”. Cf. Case of Lagos del Campo v. Peru, supra, para. 158, 163 and sixth operative paragraph.
51
52
Cf. Case of the Former Employees of the Judiciary v. Guatemala, supra, para. 120.
53
Cf. Case of the Former Employees of the Judiciary v. Guatemala, supra, para. 121.
54
Case of the Former Employees of the Judiciary v. Guatemala, supra, para. 126.
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