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5.
I would also underscore the innovative treatment that this judgment has accorded to the
different issues examined, such as the freedoms of expression and association, and access to
justice, in order to guarantee workers’ rights – particularly, in a case originated in the private
sector – and thus effective judicial protection for such rights, the lack of which also violated the
obligation to ensure the substantive rights analyzed in the judgment.
6.
But, above all, I consider that it is especially relevant to emphasize the historic decision
taken by the Court when declaring the justiciability of the ESCER under Article 26 in relation to
the obligations contained in Articles 1(1) and 2 of the American Convention. As mentioned in
paragraph 154 of the judgment, this precedent develops and substantiates the first precedent on
this issue and thus opens the way to the interpretation of other rights derived from Article 26 of
the Convention. Although the American Convention, which this Court has jurisdiction to interpret,
was adopted in 1969, the possibility contained in its text that it be interpreted in an evolutive
manner with regard to the economic and social norms, and regarding the educational, scientific,
cultural and environmental standards set forth in the OAS Charter in light of Article 29 of the
Convention was of great relevance for the Court, finally, to take this step forward in the
consolidation of the interdependence and comprehensiveness of human rights.
7.
It is essential to stress the importance of this precedent because it goes beyond the interAmerican system. It provides an excellent example of judicial dialogue in which judicial decisions
in the domestic sphere that have already recognized the justiciability of the ESCER2 add to such
decisions in the international sphere. In taking this decision, the Inter-American Court reveals
that it heeds the domestic and constitutional jurisdictions and raises this necessary recognition
to the sphere of international human rights law.
8.
I will now develop the following additional points to be considered: Iura novit curia and
the right to work protected by Articles 26 and 25 of the Convention.
II.
Iura novit curia
9.
I would like to emphasize a point that, in my opinion, is crucial as regards the application
of the iuria novit curia principle in this specific case, regarding which I differ on its need in this
case. I have joined the majority of my colleagues who decided to use the iuria novit curia principle
to examine the matter. I decided to vote with them because I accepted the argument and
considered that labor rights had been violated, and even because I believe that it was not even
necessary to apply this principle, In the instant case, it was not necessary to apply the principle
to examine and declare that the right to work had been violated, because the victim himself had
already claimed violation of the right to work and to job security without having indicated the
specific article of the American Convention that had been violated.
10.
The Latin phrase “iura novit curia” signifies “the Court knows the law.” In other words, the
party who resorts to the courts with a petition and submits the facts – just the facts – has the
legitimate expectation that the judge or court will examine the matter and apply the law. It follows
the same legal logic as another similar principle “mihi factum, dabo tibi ius” (give me the facts, I
will give you law). These principles are coherent with the broad judicial protection that is especially
valid and applicable by a human rights court.
For example, in the 1980s, the Supreme Court of India was a pioneer in interpreting the right to life broadly to
include a series of economic and social rights. The South African Constitutional Court, in the paradigmatic 2000 case of
Grootboom, examined the situation of a group of individuals who, evicted from informal housing, went to live in tents in
a sporting stadium. The court considered that their right to adequate housing had been violated and required various
government bodies to take effective measures in their favor. In our hemisphere, the Constitutional Court of Colombia has
developed the doctrine of the unconstitutional situation to respond to violations of economic and social rights.
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