progressive development, which require States to advance as efficiently and expeditiously as
possible towards the full realization of those rights. 18 Aside from my deliberations on the regulatory
content derived from Article 26, which I believe is limited to the obligation of progressivity, I find it
highly problematic that many of the benefits derived from ESCER are consolidated through
jurisprudence as immediately enforceable obligations.
5.
In the judgment, prior to the analysis of the violations of Article 26 of the Convention, the
Court points out that in this specific case it is exclusively appropriate to study the violation of the
obligations of immediate enforceability with respect to the right to work in just, equitable and
satisfactory conditions that ensure the safety, health and hygiene of the worker, with health and
social security, which does not prevent the development of standards in this area. However, in
elaborating on this aspect of the decision, the Court reiterates its case law on the aforementioned
rights without making any distinction between the obligations of immediate enforceability and those
of progressive development, and without specifying the criterion that differentiates one from the
other from the point of view of their content.
6.
That said, it could be argued that the immediately enforceable obligations referred to in the
decision are those associated with the regulation, supervision and oversight of a dangerous activity
carried out by individuals - which is how I believe it should be understood- either in terms of the
right to work (occupational risks) or social security (labor contracting modalities). Otherwise, the
central element of the notion of progressive development obligations, associated with the fact that
the benefits derived from ESCER must be guaranteed to the extent of the resources available in
each of the member States of the Convention, becomes blurred. In the judgment, the Court
identifies as obligations derived from the right to health the provision of specific services for the
treatment of certain conditions or the implementation of care centers with particular facilities in a
specific region. 19 Although these elements are absolutely reasonable in light of the circumstances
of this case, it would be wrong to conclude that the materialization of these benefits should be
considered as an obligation of immediate enforceability derived from the ESCER.
7.
All of the above without mentioning that the analysis carried out in relation to the right to
life could have subsumed, by way of connection, precisely those contents that can be considered
immediately enforceable, all reiterated with the same elements when analyzing the violation of the
right to work in just, equitable and satisfactory conditions that ensure the safety, health and hygiene
of the worker, as well as health and social security. 20
Humberto Antonio Sierra Porto
Judge
Pablo Saavedra Alessandri
Secretary
18
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.
Cf. Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras. Merits, reparations and costs. Judgment of August
31, 2021. Paras. 95-96.
19
20
Cf. Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras. Merits, reparations and costs. Judgment of August
31, 2021. Paras. 78.
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