43.
It should also be pointed out that the judgment merely affirmed that the Court recalled
that it had recognized and protected the right to work under Article 26 in several precedents,63
indicating the corresponding judgments in the respective footnote. 64
44.
However, the right to work is not “a right protected by Article 26 of the Convention” or
“a right recognized” by “Article 26”; rather, it is a right that would be derived “from the
economic, social, educational, scientific and cultural standards contained in the [OAS]
Charter”; in other words, it is a right that has its origin in the latter and not in the Convention.
45.
In summary, the Convention does not “make a direct referral to the economic, social,
educational, scientific, and cultural standards contained in the OAS Charter,” as the Court’s
case law indicates; rather, at the most and as indicated here textually, the rights in question
“may be derived interpretively from Article 26” and “their existence and recognition” would be
“implicit in the Charter.” Therefore, to determine those rights and consider them, in the terms
of the Convention, “recognized,” “established,” “guaranteed,” or “protected” in or by it – which
are the only rights the violation of which is justiciable before the Court – it would be necessary
to interpret the articles of the OAS Charter that are invoked, derive from them the
corresponding rights and consider them recognized by that treaty – but not expressly, rather
only implicitly – an intellectual exercise that is too far removed from the direct and clear
statements of the Convention with regard to the rights to which it refers to take them into
account to conclude that the latter are included in the Convention.
46.
By taking this position, the Court’s case law undoubtedly disregards the literal meaning
of Article 26 and, consequently, does not apply to it, harmoniously, the provisions of Article
31(1) of the Vienna Convention or, strictly speaking, make an interpretation of this article. It
would seem that, for the Court’s case law, the literal meaning of what was agreed has no
relevance and, therefore, it considers this a mere formality, which allows it to attribute to that
article a meaning and scope that is very far from what the States expressly agreed, as if, in
reality, they had wanted to agree something else, which, evidently, is totally illogical.
C.
Subjective method
47.
When trying to take into account the context of the terms of the Convention, it is
necessary to allude to the system established in the Convention in which this is inserted;
which means that:
a)
This system is composed of the duties and rights that it establishes, the organs
responsible for ensuring their respect and requiring compliance with them, and provisions
relating to the Convention.65
Art. 63(1): “If the Court finds that there has been a violation of a right or freedom protected by this Convention, the
Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall
also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right
or freedom be remedied and that fair compensation be paid to the injured party.”
63
Para. 104.
Cf. 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 145. Similarly: 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, and
Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series C
No. 348.
65
“Part III, “General and Transitory Provisions.”
64
14