11.
Consequently, in light of the treaty (comprised of two instruments: the
Convention and its Additional Protocol),7 the Court lacks jurisdiction to declare the
autonomous violation of the right to work.
12.
Holding that ESCER are not directly justiciable before the Court does not mean
ignoring their existence, the enormous importance of these rights, their
independence and indivisible nature with respect to civil and political rights, or that
they lack of protection or should not be protected. States have a duty to enable
updates to the autonomy of persons, meaning that persons should be able to access
the primary goods (broader than ones defined in the scope of political philosopher
John Rawls) 8 that make it possible to develop their capacities—that is, access
economic, social, and cultural rights.9
13.
It is therefore necessary to distinguish between two spheres that are related
but different. One is the national sphere, in which, through democratic procedures,
citizens decide to translate ESCER into their respective legal system, also
incorporating international law on this matter, as happens in the vast majority of
member states of the inter-American human rights system. In this context, it is the
national courts that, within the scope of their competences, exercise their authorities
regarding the interpretation and justiciability of ESCER, in accordance with their
constitutions and laws.10
14.
The international sphere is different. As an international court, the Court’s role
is to decide whether or not the state whose responsibility is claimed has violated one
or more of the rights established in the treaty. As explained, in light of its normative
design and in accordance with Article 26, the Court is empowered to find a state
internationally responsible if it has failed to comply with the obligations of progressive
development and nonregression, not of ESCER considered individually.
15.
In this context, nothing prevents the Court from considering the economic,
social, and cultural dimensions of the rights recognized under the Convention and
from exercising its adjudicative competence by way of connectivity. This is how the
Court proceeded in cases prior to the sentence issued in the case of Lagos del Campo
v. Peru (2017) as in, for example, the cases of Ximenes Lopes v. Brazil (2006);11
Gonzáles Lluy et al. v. Ecuador 12 (2015); and Chinchilla Sandoval v. Guatemala
(2016)13 and that constitutes the correct doctrine to follow. Subsequent to Lagos del
Pursuant to article 2(a) of the Vienna Convention on the Law of Treaties, a treaty may be
embodied in a single instrument or in two or more related instruments.
7
For Rawls, primary goods include a set of goods necessary for developing and executing a rational
life project. They Include freedom, opportunities, income, wealth, and self-respect. Cf. RAWLS, John: Teoría
de la Justicia, Fondo de Cultura Económica, Mexico (1995), pg. 393.
8
Cfr. PÉREZ GOLDBERG, Patricia: Las mujeres privadas de libertad y el enfoque de capacidades, Der
Ediciones, Santiago (2021), pp. 94-109.
9
Paragraphs 69 to 72 of the judgment include examples of notable case law developments on
protecting the right to work of persons with disabilities in Colombia, Mexico, Brazil, and Ecuador.
10
Mr. Ximenes Lopes died in a psychiatric establishment, approximately two hours after being
medicated by the clinical director of the hospital, and without receiving care from any doctor. He was not
given adequate care, and due to this lack of care, he was at the mercy of all manner of aggressions and
accidents, endangering his life. The Court found the state responsible for violating the rights to life and
personal integrity.
11
In this case—involving a girl who was infected with HIV when receiving a blood transfusion—the
Court protected the victim's right to health by way of connection to the rights to life and personal integrity,
by declaring a violation of " the obligation to monitor and supervise the provision of health care services,
within the framework of the right to personal integrity and of the obligation not to endanger life."
12
The victim was a woman deprived of liberty with a physical disability who was not given adequate
health care for the multiple illnesses she suffered from and who ended up dying in prison. This lack of
health care led the Court to find a violation of the right to life and personal integrity.
13
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