14
violations of the economic, social and cultural rights, specifically those established in the Protocol
of San Salvador, can be submitted to the consideration and decision of the Court.
2. Similarly, the statement that “Article 26 [...] it is subject to the general obligations contained
in Articles 1(1) and 2 in Chapter I (entitled “General Obligations”), as also are Articles 3 to 25
that appear in Chapter II (entitled “Civil and Political Rights”), 62 does not mean that the rights
derived from the OAS Charter may be judicialized before the Court. It merely signifies, as stated
previously, that all human rights, including the economic, social and cultural rights to which
Chapter III of the Convention alludes, should be respected and ensured, because this is required
by the said Articles 1 and 2.
3. Furthermore, the allusion to Articles “6 of the International Covenant on Economic, Social and
Cultural Rights,” “23 of the Universal Declaration of Human Rights,” “7 and 8 of the Social Charter
of the Americas,” “6 and 7 of the Additional Protocol to the American Convention in the Area of
Economic, Social and Cultural Rights,” “11 of the Convention on the Elimination of All Forms of
Discrimination against Women,” “32.1 of the Convention on the Rights of the Child,” “1 of the
European Social Charter” and “15 of the African Charter on Human and Peoples’ Rights,”63 does
not provide grounds to affirm that the violation of the right to work and more specifically, of the
right to job security, can be examined and decided by the Court pursuant to Article 26 of the
Convention.
4. The same is true in the case of the references to the Committee on Economic, Social and
Cultural Rights, in its General Comment No. 18 on the right to work,64 and to Convention 158 of
the International Labour Organization on termination of employment (1982).65 The said provisions
do not refer to this and it is not in their remit, either because they are treaties that have no
relationship to the possibility of judicializing the economic, social and cultural rights, or because
they are resolutions of international organizations that are not binding for the States; that is, they
are merely resolutions that either reflect political aspirations that they be incorporated into law,
which may be very legitimate, or they do not interpret a treaty of any kind.
5. The statement that “the American Declaration constitutes, as applicable and in relation to the
OAS Charter, a source of international obligations”66 and the reference to the provisions of Article
29(d) of the Convention,67 do not contradict the indisputable fact in international law that the
American Declaration is a declarative legal decision of an international organization or institution
and, consequently, even though it is not established among the sources of international law
stipulated in Article 38 of the Statute of the International Court of Justice 68 – the only provision
that does this – it is a subsidiary means of international law; that is, it serves “for the
determination of rules of law” established by an autonomous source of international law. Thus,
the said Declaration is a “source of international obligations” to the extent that it interprets rights
or obligations established in any autonomous source of international law.
62
Para. 142.
63
Para. 145.
64
Para. 147.
65
Para. 148
66
Para. 144
“No provision of this Convention shall be interpreted as: […] (d) excluding or limiting the effect that the American
Declaration of the Rights and Duties of Man and other international acts of the same nature may have.”
67
“1. The Court, whose function is to decide in accordance with international law such disputes as are submitted
to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general
principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules
of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo if the parties agree thereto.”
68