far as human rights are concerned without relating its norms, consistent with the
practice of the organs of the OAS. 70
65.
The Court also reiterates that human rights treaties are living instruments, the
interpretation of which must evolve with the passage of time and contemporary conditions.
This evolutive interpretation is consistent with the general rules of treaty interpretation
established in Article 29 of the American Convention, and in the Vienna Convention.
Furthermore, the third paragraph of Article 31 of the Vienna Convention authorizes the use
of interpretative means such as agreements or the relevant rules or practice of international
law that States have expressed on the subject matter of the treaty, which are some of the
methods that relate to an evolving view of the Treaty. Thus, in order to determine the scope
of the rights derived from the economic, social and educational, scientific and cultural norms
contained in the OAS Charter, the Court makes reference to the relevant instruments of the
international corpus iuris. 71
66.
The Court also considers it pertinent to recall that there are two types of obligations
derived from the recognition of ESCER, which are protected by Article 26 of the Convention:
those that are immediately enforceable, and those of a progressive nature. Regarding the
former, (immediate obligations), the Court recalls that States must take effective measures
to ensure access, without discrimination, to the benefits recognized by ESCER and, in general,
move forward toward their full realization. With respect to the latter (progressive obligations),
this means that States Parties have the specific and continuous obligation to move as
expeditiously and effectively as possible towards the full realization of those rights, subject to
available resources, by legislation or other appropriate means. There is also an obligation of
non-retrogression regarding the realization of the rights attained. Accordingly, the
conventional obligations to respect and guarantee rights, as well as adoption of domestic legal
effects (Articles 1(1) and 2 of the American Convention), are essential to achieve their
effectiveness. 72
67.
Taking into account the foregoing, the instant case does not require an analysis of the
State’s conduct in relation to the “progressive” advancement of ESCER. Rather, the Court
must consider whether the State ensured the protection of the rights of the 42 victims in the
case, that is to say, whether it fulfilled its immediately enforceable obligations with respect to
the right to work and to just, equitable and satisfactory conditions that ensure the safety,
health and hygiene of the worker, and the right to health and social security, enshrined in
international law and in the applicable national legislation, which does not prevent the Court
from developing standards on the matter, as requested by the State and the representatives.
Therefore, it is incumbent upon this Court to rule on the conduct of the State with respect to
compliance with its obligations to guarantee the following: a) the right to work and to just,
equitable and satisfactory conditions that ensure the safety, health and hygiene of the worker;
b) the rights to health and social security; and c) the right to equality and non-discrimination.
C.2. Right to work and to just, equitable and satisfactory conditions that
ensure the safety, health and hygiene of the worker
70
Interpretation of the American Declaration of the Rights and Duties of Man, in the context of Article 64 of the
American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para. 43.
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process
of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 114, and Advisory Opinion OC-27/21,
supra, para. 51.
71
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 190, and Advisory Opinion OC-27/21, supra, para. 147.
72
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