justifies the application of the article with regard to that right. 46 Thus, the purpose of
this opinion is to present, once more, my position that the rights mentioned in Article
26, including the right to work, are not justiciable before the Court – for the reasons
described below – with some exceptions that do not include the situation in the instant
case.
28. It is extremely important, therefore, to indicate at once that this opinion does not refer
to the existence of the right to work, or to the other economic, social and cultural rights.
The existence of those rights is not the purpose of this opinion. To the contrary, what
I maintain here, let me insist, is merely that the Court, contrary to what is indicated in
the judgment, lacks competence to examine violations of those rights under the
provisions of Article 26, and that the right referred to in the instant case is not included
among the exceptions to this general rule.
29. However, this does not mean that violations of those rights cannot be litigated before
the corresponding domestic jurisdictions. This will depend on what the respective
internal laws establish, a matter that, in any case, falls outside the purpose of this text
and that is part of the internal, domestic or exclusive jurisdiction of the States Parties
to the Convention.47 Nevertheless, it is feasible that, in the future, all or some of the
States Parties to the Convention might agree on protocols that establish the
justiciability before the Court of possible violations of other economic, social and
cultural rights than those established in the Protocol of San Salvador.
30. Consequently, this opinion holds that it is necessary to distinguish between human
rights in general, which must be respected in all circumstances based on the provisions
of international law, and those that, in addition, may be justiciable before an
international jurisdiction. In this regard, it is worth pointing out that there are only
three international human rights courts; namely, the Inter-American Court of Human
Rights, the European Court of Human Rights and the African Court of Human and
Peoples’ Rights. Also, not all the States of the respective regions have accepted the
jurisdiction of the corresponding court. Also, not all the regions of the world have an
international human rights jurisdiction, nor has a universal court of human rights been
created.
31. Therefore, the fact that a State has not accepted to be subject to an international
human rights jurisdiction does not mean that such rights do not exist and,
consequently, cannot possibly be violated. If this happens, international society can
use diplomatic or political measures to achieve the restoration of respect for the said
rights, even though such measures may be too weak for this purpose. Thus, one thing
is the international recognition of such rights, and another is the international
instrument used to achieve the restoration of their effectiveness in situations in which
they are violated.
III.
INTERPRETATION OF ARTICLE 26
32. Therefore, based on the foregoing – in particular, as regards the interpretation of
treaties48 – Article 26 should be interpreted in keeping with the methods indicated
above. This article establishes:
“Progressive Development. The States Parties undertake to adopt measures, both
internally and through international cooperation, especially those of an economic
and technical nature, with a view to achieving progressively, by legislation or other
46
47
48
Paras. 104 and 105.
Supra, footnote 23.
Supra, II, c.