3
and laws of Peru (noting regional tendencies), and the vast international corpus iuris on the
matter that has been reflected, for example, in the United Nations 17 Goals for 2030.14
5.
Third, the Inter-American Court applied the protection of Article 16 in relation to Article
26 of the Pact of San José, due to the violation of the right to the freedom of association of labor.
This is of vital importance, bearing in mind that it also constitutes the first occasion on which the
Inter-American Court addresses the protection of freedom of association exclusively with regard
to labor matters and not, as in previous cases, only “labor union” matters. Specifically, it is this
new aspect of inter-American case law that I find it pertinent to develop in this opinion.
6.
In the instant case, the Inter-American Court addressed the rights that were violated
comprehensively and collectively, declaring the direct violation of Article 26 of the American
Convention. And this contrasted with its previous case law that did this by connectivity with the
civil and political rights. Consequently, I concur, in essence, with all the violations declared in the
judgment. However, owing to the importance of the decision as regard the full justiciability of the
ESCER, I consider it opportune to establish some elements of the right to freedom of association
in labor mattes for the defense and promotion of workers’ interests under Articles 26 and 16 of
the American Convention. And, I do so to highlight how different international instruments can
act in synergy to delimit the scope of the protection of inter-American social rights through the
Pact of San José.
7.
Taking the foregoing into account, I will now elaborate on: I. The justiciability of the right
to work using Article 26 of the American Convention and the application of the iura novit curia
principle; II. The right to freedom of association in the case law of the Inter-American Court.;
III. The right to the freedom of association of labor for the protection and promotion of workers’
interests as part of the right to work, and IV. Conclusions.
I. THE JUSTICIABILITY OF THE RIGHT TO WORK USING ARTICLE 26 OF THE AMERICAN
CONVENTION AND THE APPLICATION OF THE IURA NOVIT CURIA PRINCIPLE
8.
As mentioned, in this case the Inter-American Court declared, for the first time, that
Article 26 of the American Convention had been violated in relation to the right to job security15
and the right to freedom of association;16 in both cases invoking the iura novit curia principle. In
this regard, the Inter-American Court has established an important precedent for the justiciability
of the social rights under the inter-American system, by opening up the possibility that rights
which were not expressly established in Article 19(6) of the Protocol of San Salvador17 — such
as the right to work and its different facets – can be protected directly by the American
Convention.
9.
In the judgment, the Inter-American Court reinforces the principles of interdependence
and indivisibility between the economic, social, cultural and environmental rights and the civil
and political rights. And, it does so based on its belief that human rights should be understood
Particularly, in the judgment, the Inter-American Court also considered that “[…], the United Nations General
Assembly adopted Agenda 2030, which includes 17 Sustainable Development Goals and 169 targets to benefit people,
the planet and prosperity. In particular, Goal 8 promotes sustained, inclusive and sustainable economic growth, full and
productive employment and decent work for all. Targets 8.5 and 8.8 are addressed at protecting workers’ rights and
promoting a safe and secure working environment,” Case of Lagos del Campo v. Peru, supra, footnote 216.
14
15
Cf. Case of Lagos del Campo v. Peru, supra, paras. 133 to 154.
16
Cf. Case of Lagos del Campo v. Peru, supra, paras. 155 to 163.
Article 19. Means of Protection […] 6. Any instance in which the rights established in paragraph (a) of Article 8
and in Article 13 are violated by action directly attributable to a State Party to this Protocol may give rise, through
participation of the Inter-American Commission on Human Rights and, when applicable, of the Inter-American Court of
Human Rights, to application of the system of individual petitions governed by Article 44 through 51 and 61 through 69
of the American Convention on Human Rights.
17