commitment by the States to adopt provisions or measures that will
progressively achieve the effective exercise of the rights derived from the
relevant provisions of the OAS Charter, “[subject to available resources],”
which is consistent with the progressive nature of the obligation, and “by
legislation or other appropriate means.” In other words, each State Party is
committed to work on formulating definitions and moving decisively ahead
in these areas, following domestic deliberative procedures.
16. The Court is therefore empowered to hear and decry any failures to abide by
this commitment (an obligation of progressivity with no regressivity) to
rights that, by interpretation, can be inferred from the Charter, but not as a
way to autonomously determine international responsibility of the States for
individual violations of these rights.
17. It should also be understood that Article 26 makes mention only of the OAS
Charter, but not of the American Declaration, and therefore the Charter
should be the source of its analysis to interpret which ESCERs may be implicit
therein, for the purpose of supervising observation of this State obligation.
18. A reading of the Charter does not provide a simple menu of rights, nor does
it define the content of rights; instead, it sets objectives and goals to be met
on the subject. It does make explicit reference to the right to work, however,
in contrast to the other ESCERs. It does not develop the scope of the right,
or for example, state whether the right to work includes job stability. Even
beyond these difficulties of interpretation, it is clear that Article 26 authorizes
the Court to provide only the general supervision outlined previously and,
going into more detail, the Protocol of San Salvador opens the way for the
Court to hold contentious jurisdiction only over two ESCERs. This judgment
opted to simply ignore the existence of Article 19 of the Protocol, but this
omission does not repeal the article. So long as it remains in force, this article
will reveal the express will of the States.
19. Along these same lines, an understanding of Article 26 of the Convention as
covering all the ESCERs contained in the OAS Charter would ignore the
commitment assumed by the States Parties and would produce uncertainty
about the body of rights enforceable before the Court, producing at least two
consequences. First, if the States do not know which specific rights they
could breach by their actions, they cannot prevent or domestically redress
any such violations. Second, any line of argument that ignores the express
text of the treaty (the Convention and its Protocol) undermines the
legitimacy of the Court’s decisions, as it reflects a low standard of reasoning,
which subsequently makes it difficult to examine the conduct of domestic
authorities by a more stringent standard.
20. This is why it is necessary to distinguish two different arenas of adjudication,
which are related but separate. One is in the domestic sphere, where citizens
avail themselves of democratic proceedings to build ESCERs into their
national legal system, also incorporating international law on the subject, as
in the great majority of the Member States of the inter-American human
rights system. In such a context, the domestic courts, within their own
jurisdictions, exercise their authority for the interpretation and enforcement
of these rights, in keeping with their Constitution and laws.
21. The other jurisdiction—different but complementary—is the international
system. The Court, in the international jurisdiction, is called upon to decide
whether a State, whose responsibility is under challenge, has violated one
or more of the rights set forth in the Convention. In light of the normative