41.
Much earlier compositions of this Court even demonstrated that they
understood the artificiality of dividing rights into categories based on positive versus
negative characteristics, as made clear in the opinion of judges Cançado Trindade
and Abreu Burelli in the case of Street Children v. Guatemala (1999):
The right to life implies not only the negative obligation not to deprive anyone
of life arbitrarily, but also the positive obligation to take all necessary
measures to secure that that basic right is not violated. Such interpretation of
the right to life, so as to comprise positive measures of protection on the part of the
state, finds support nowadays in international case-law as well as doctrine. (...) The
arbitrary deprivation of life is not limited, thus, to the illicit act of homicide; it extends
itself likewise to the deprivation of the right to live with dignity. This outlook
conceptualizes the right to life as belonging, at the same time, to the domain
of civil and political rights, as well as economic, social and cultural rights, thus
illustrating the interrelation and indivisibility of all human rights. 39
42.
Again in the always vital and inspiring words of the renowned Judge Cançado
Trindade:
(...) all human rights, even economic, social and cultural rights, are promptly and
immediately demandable and justiciable, once the interrelation and indivisibility
of all human rights are affirmed at both the doctrinal and the operational levels – in
other words, both in legal writings and in hermeneutics and the application of human
rights.40
43.
The case of Mr. Guevara is emblematic in this respect because not only does
it reveal the equivalence of the cost of the different generations of rights, it elucidates
the inseparability of the right to equal protection and the right to work. The right to
equal protection of a victim of discrimination in public service is only fully guaranteed
when the right to work, in its positive dimension, is also covered by judicial
protection. It takes on a special dimension as a place for the political participation of
citizens, as I will develop later.
44.
In line with this, subparagraph 1 of Article 27 of the Convention on the Rights
of Persons with Disabilities establishes the following:
“States Parties recognize the right of persons with disabilities to work, on an equal
basis with others; this includes the right to the opportunity to gain a living by work
freely chosen or accepted in a labour market and work environment that is open,
inclusive and accessible to persons with disabilities. States Parties shall safeguard and
promote the realization of the right to work, including for those who acquire a disability
during the course of employment, by taking appropriate steps, including through
legislation (…)”
45.
There is, therefore, an indissoluble connection—especially in terms of the
guarantee of the rights of persons with disabilities—between protection of the right
to equality and the promotion of the right to work. There is no isonomy without
positive state benefits associated with building an inclusive work environment.
46.
Therefore, protecting a person with a disability who has been subjected to
discrimination solely on the basis of Article 24 of the Convention is insufficient or, at
a minimum, indifferent to a whole range of actions that must be adopted to protect
and fully realize the right to work and the special right to inclusion. Therefore, with
Cf. Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of
November 19, 1999. Series C No. 63, opinion of judges Cançado Trindade and Abreu Burelli, para. 2-4.
39
Case of the Dismissed Congressional Employees (Aguado - Alfaro et al.) v. Peru. Preliminary
Objections, Merits, Reparations, and Costs. Judgment of November 24, 2006. Series C No. 158, opinion
of Judge Cançado Trindade, para. 7.
40
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