25.
In this regard, it should be recalled that the judgment indicates that the “Court
reaffirms its competence to examine and decide disputes relating to Article 26 of the American
Convention as an integral part of the rights listed in its text, regarding which Article 1(1)
establishes obligations of respect and guarantee,” 41 adding that “as indicated in previous
decisions,42 the considerations related to the possible occurrence of such violations must be
examined when analyzing the merits of the matter.”43
26.
Since the judgment provides no other reason that the one briefly expressed above as
justification for this decision, it obliges me, in order to substantiate this dissenting opinion, to
resort to the considerations concerning that substantive part where, as we shall see,44 it
provides arguments to support the said decision it has adopted.
27.
However, to do this, it is necessary to recall that, when alluding to the said Article 26,45
the judgment does so referring specifically to the right to work; in other words, it justifies the
application of the article with regard to that right. 46 Thus, the purpose of this opinion is to
present, once more, my position that the rights mentioned in Article 26, including the right to
work, are not justiciable before the Court – for the reasons described below – with some
exceptions that do not include the situation in the instant case.
28.
It is extremely important, therefore, to indicate at once that this opinion does not refer
to the existence of the right to work, or to the other economic, social and cultural rights. The
existence of those rights is not the purpose of this opinion. To the contrary, what I maintain
here, let me insist, is merely that the Court, contrary to what is indicated in the judgment,
lacks competence to examine violations of those rights under the provisions of Article 26, and
that the right referred to in the instant case is not included among the exceptions to this
general rule.
41
Footnote to para. 26 of the judgment: Cf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of
the Comptroller’s Office”) v. Peru. Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009.
Series C No. 198, paras. 16, 17 and 100; Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of August 31, 2017. Series C No. 340, paras. 142 and 154; Case of the Discharged Employees
of PetroPeru et al. v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 23, 2017.
Series C No. 344, para. 192; Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of
February 8, 2018. Series C No. 348, para. 220; Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs.
Judgment of March 8, 2018. Series C No. 349, para. 100; Case of Cuscul Pivaral et al. v. Guatemala. Preliminary
objection, merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359, paras. 75 to 97; Case of
Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6, 2019. Series C No.
375, paras. 34 to 37; Case of the National Association of Discharged and Retired Employees of the National Tax
Administration Superintendence (ANCEJUB-SUNAT) v. Peru. Preliminary objections, merits, reparations and costs.
Judgment of November 21, 2019. Series C No. 394, paras. 33 and 34; Case of Hernández v. Argentina. Preliminary
objection, merits, reparations and costs. Judgment of November 22, 2019. Series C No. 395, para. 62; Case of the
Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina. Merits, reparations and costs.
Judgment of February 6, 2020. Series C No. 400, para. 195; Case of Spoltore v. Argentina. Preliminary objection,
merits, reparations and costs. Judgment of June 9, 2020. Series C No. 404, para. 85, and Case of the Workers of the
Fireworks Factory of Santo Antônio de Jesus and their families v. Brazil. Preliminary objections, merits, reparations
and costs. Judgment of July 15, 2020. Series C No. 407, para. 23.
Footnote to para. 26: Cf. Case of Muelle Flores v. Peru, supra, para. 37, and Case of the Workers of the Fireworks
Factory of Santo Antônio de Jesus and their families v. Brazil.. Preliminary objections, merits, reparations and costs.
Judgment of July 15, 2020. Series C No. 407, para. 23.
42
43
Para. 26.
44
Infra, paras. 55 and ff.
45
Hereinafter, Article 26.
46
Paras. 104 and 105.
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