Edited by Adelle Blackett and Anne Trebilcock
Chapter 20: Constitutionalising labour in the Inter-American system on human rights
Article 26 of the American Convention on Human Rights requires member states to progressively implement the broad economic, social, and cultural (ESC) rights that are implicit in the Charter of the Organisation of American States (OAS). The Inter_American Court of Human Rights (IACHR) has identified these implicit OAS Charter ESC rights as extending to labour rights, and IACHR jurisprudence has held that ESC rights overlap with civil and political rights as a means to overcome that ESC rights were otherwise non-justiciable. The rights at this intersection include prohibitions on discrimination, as well as access to justice and due process in the labour context. One of the mechanisms that has emerged to assist in concretising ESC rights is the San Salvador Protocol, which includes labour rights and an extensive range of obligations, both positive and negative, immediate and incremental. Some labour rights, such as the right to associate—which has an independent explicit basis in the convention—and the right to work have received robust protection within the Inter-American system, but there has been much greater reluctance to push into areas such as a right to strike and in protecting cuts to salaries and pensions, even when these protections have a basis in normative texts within the system. This reluctance may signal that the progressive entrenchment of ESC rights in the Inter-American system operates only at general and abstract level, with little effect in concrete, individual cases.
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