4
consequently, as the most proficient entity of hemispheric scope that has been created to
safeguard human rights. Thus, it is necessary to persist in improving and consolidating it, without
subjecting it to risks that could affect this effort adversely.
b. The dissent
The partial dissent indicated in this opinion refers, as indicated, to the violation of two rights, the
right to job security and the right to freedom of association.
1. Right to job security
Regarding the right to job security, it must be indicated that my dissent in this matter does not
refer to the existence of this right, or to that of the other economic, social and cultural rights.
There is no doubt about this, because it is evident that they are embodied in the international law
applicable in the States of the Americas and, particularly with regard to the right to work, in the
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights, Protocol of San Salvador.
Rather, this opinion relates to the fact that, in the instant case, it was not a matter of determining
the existence of the right to job security as the judgment does,16 but whether its possible violation
by the State could be submitted to the consideration and decision of the Court. The disputed issue
related, therefore, to whether the right to job security could be heard by the Court; in other
words, whether the Court had competence, under the provisions of Article 26 of the Convention,
to rule on the possible violation of this right.
The thesis supported by this text is based on the fact that the Court lacks this competence; that
is, it asserts, contrary to the judgment, that the right to job security cannot be tried internationally
before the Court. And this, based on reasons that will be set forth below, grouped around the
provisions of the Convention; the provisions of its Article 26 in particular and, finally, some other
considerations with regard to the judgment.
2. Right to freedom of association
Regarding the right to freedom of association, it is sufficient to indicate that the mention made in
the judgment to Article 26 of the Convention in this regard seems unnecessary because, on the
one hand, the said right is expressly established in Article 16(1) of the Convention17 and, on the
other, its meaning and scope is repeated abundantly in the judgment.18 Accordingly, it can be
deduced that this right can be judicialized before the Court on those grounds and not on the basis
of the provisions of the said Article 26, which, incidentally, is alluded to very tangentially or
marginally in the judgment in relation to freedom of association, on a level with the InterAmerican Democratic Charter19 and the ILO Convention on Workers’ Representatives.20 In other
words, it is addressed more appropriately as a means of interpreting its provisions, together with
the context of the wording of the Convention,21 as regards the existence of the right to freedom
of association, but not to substantiate the Court’s competence to rule in that regard.
Paras. Nos. 141 to 150. Hereafter, each time a paragraph is cited, it will be indicated as “para.” or “paras” if
plural, and it shall be understood to correspond to the judgment.
16
“Freedom of Association. Everyone has the right to associate freely for ideological, religious, political, economic,
labor, social, cultural, sports, or other purposes.”
17
18
Paras 155 to 160.
19
Para. 158.
20
Para. 159.
Art. 31.3.c) of the Vienna Convention on the Law of Treaties: “General rule of interpretation.... There shall be
taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations
between the parties.”
21