Convention on the Elimination of All Forms of Discrimination Against Persons with
Disabilities15
15.
The processing of the case before the Court culminated in acknowledgment
by the state of Costa Rica—during the public hearing held on March 24, 2022, and in
its final arguments—of its international responsibility for the violation of the
aforementioned articles of the Convention to the detriment of Mr. Guevara Díaz,
pursuant to the terms of the Report on the Merits of the Commission.16 This full
acknowledgment of responsibility was welcomed by the Court as a valuable
contribution to the processing of the case and to the validity of the principles inspiring
the Convention.17 I would note that the state acknowledgment is extremely healthy
and, in some sense, a part of reparations, to the extent that it embodies the respect
for the victim’s feelings in the search for justice and protection.
16.
Lastly, the Court reiterated its jurisdiction to hear disputes relating to Article
26 of the Convention and its applicability to cases on the right to work. It applied this
right to this specific case, together with the right to equal protection (Article 24), and
concluded that the petitioner had suffered discrimination in access to work and job
security.18
17.
Although the Court unanimously recognized the violation of Article 24 of the
Convention, there was disagreement as to whether Article 26 had been violated. As
I indicated in the preliminary considerations of this opinion, this respectful
disagreement, with the potential to be projected forward into a series of future cases
on ESCER, whether decided in terms of individual or collective rights violations, was
the motivation for this concurring opinion. My view is that the direct justiciability of
ESCER must be addressed from an approach that centers the coherence and integrity
of the IAHRS.
II.
Direct justiciability of ESCER as an element of the IAHRS
18.
The bringing of cases before this Court that either directly or indirectly have
to do with ESCER has made it possible to progressively improve understanding of the
scope of state obligations to respect, promote, and guarantee these rights, as well
as set the parameters for analyzing state conduct that interferes with its area of
protection. The development of the Court’s case law has led to valuable internal and
external debates, with laudable positions taken by different actors seeking to add to
the understanding of the best way to promote, protect, and monitor ESCER on the
American continent.
19.
Given the existence of a single article of a peculiar nature, the Court has had
to exercise its hermeneutics within the possibilities of each era in which it has taken
action. Even so, reconstructing the history of the case law surrounding the
justiciability of ESCER enables us to observe that their protection has been central to
the Court’s work since the beginning.
20.
Interdependence with civil and political rights initially enabled the Court to
address ESCER with regard to their relationship to the rights guaranteed in Chapter
II of the Convention, including in cases where ESCER were central. For example, in
Brief with pleadings, motions and evidence. Case 12,861. Guevara Díaz v. Costa Rica. Pg. 22
(folio. 82)
15
16
Final arguments of the state, pg. 13-19.
17
Judgment, para. 22.
18
Judgment, para. 82.
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