argumentative basis of what would become the main line of argument for the direct
justiciability of ESCER under Article 26.
25.
The years 2015 and 2016 were key for developing the Court's understanding
of the direct justiciability of ESCER, as demonstrated by the judgments and valuable
argumentative contributions made by judges in their separate opinions in the cases
of Canales Huapaya et al. v. Peru (2015), Gonzales Lluy v. Ecuador (2015), Chinchilla
Sandoval et al. v. Guatemala (2016), Case of the Hacienda Brasil Verde Workers v.
Brazil (2016), Yarce et al. v. Colombia (2016) and I.V. v. Bolivia (2016).
26.
This fertile ground—greatly facilitated by the Court's findings in the case of
Acevedo Buendía et al. v. Peru (2009)—set the backdrop for the Court to declare a
violation of Article 26 of the Convention. Additionally, the case of Lagos del Campo
v. Peru (2017),26 regarding a petitioner fired for statements denouncing irregularities
within the company in that capacity as a representative of the workers, the Court
concluded that not only had the state acted in violation of the rights to freedom of
expression, judicial guarantees, and freedom of association, it had also committed
an autonomous violation of the right to work pursuant to Article 26 of the Convention.
27.
The analysis of the argument presented by the Court in the case of Lagos del
Campo v. Perú illustrated the successive protection of ESCER by the Court, taking as
its starting point a series of prior cases in which the Court had “repeatedly maintained
the interdependence and indivisibility of civil and political rights and economic, social
and cultural rights, because they should all be understood integrally as human rights,
without any specific hierarchy, and be enforceable in all cases before the competent
authorities.”27
28.
Although it neither started nor finished the debate over the direct justiciability
of ESCER before the Court,28 the precedent set in the case of Lagos del Campo v.
Peru has been reiterated in subsequent decisions of the Court to the point that today,
they largely amount to a paradigmatic jurisprudential truth that remains valid: the
immediate enforceability and full justiciability of ESCER go hand in hand with the
effectiveness of civil and political rights.
29.
It should also be recalled that, in addition to applying Article 26 two cases
related to the right to work29—a process already begun in the 2017 judgment—other
ESCER have been recognized as cases on different subjects have been right before
the Court. In the case of Poblete Vilches v. Chile (2018),30 for example, the Court
recognized an autonomous violation of the right to health, previously considered as
falling under articles 4 and 5 of the Convention.31 For its part, the right to social
Cf. Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of August 31, 2017. Series C No. 340.
26
27
Ibidem, para. 141.
Still seen in the most recent case before the Court, Case of the national Federation of Maritime
and Port Workers (FEMAPOR) v. Peru. Preliminary Objections, Merits, and Reparations. Judgment dated
February 1, 2022. Series C No. 448.
28
Cf. Case of Dismissed Employees of Petroperú et al. v. Peru. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 23, 2017. Series C No. 344; Case of Spoltore v. Argentina.
Preliminary Objections, Merits, Reparations, and Costs. Judgment June 9, 2020. Series C No. 404, and
Case of the Employees of the Fireworks Factory of Santo Antonio de Jesus v. Brazil. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of July 15, 2020. Series C No. 407.
29
Cf. Case of Poblete Vilches et al. v. Chile. Merits, Reparations, and Costs. Judgment of March 8,
2018. Series C No. 349. Para. 118-124.
30
Cf., subsequently, Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of August 23, 2018. Series C No. 359, para. 103-107.
31
6