On the need to fill in the reasoning gaps of the Lagos del Campo v. Peru judgment
Spanish version available here.
On August 31 2017 the Inter-American Court of Human Rights (IACtHR) issued a judgment in the Case of Lagos del Campo v. Peru, related to the dismissal of a worker as the result of critical statements he made to the director of his employer company during an interview. On challenging his dismissal, Mr. Lagos del Campo was given an unfavorable decision by the Peruvian courts: his reinstatement at work was denied as well as access to social security benefits. The IACtHR declared the rights to freedom of expression and to association had been violated, rights protected by Articles 13 and 16 of the American Convention on Human Rights (ACHR). The most innovative aspect of the judgement was the conclusion, signed by five of the seven judges, that Art. 26 of the ACHR had also been violated, specifically, the right to stability of employment.
Until August of 2017, the IACtHR had examined the violation of economic, social and cultural rights in an indirect manner or through the association with the provisions of the ACHR which define civil and political rights. For instance, the right to life (Art. 4) and personal integrity (Art. 5), in cases of negligence or inadequate medical treatment; and the right to property (Art. 21), in the face of arbitrary restrictions to access social security had all been dealt with as violations of civil and political rights. In 2003 the Court judged the Case of the “Five Pensioners” v. Peru and, based on reasoning largely criticized by the doctrine, discharged the arguments of the Inter-American Commission on Human Rights (IACHR) and the petitioners regarding the violation of Art. 26. This reasoning was based on the understanding that violations of said provision was limited to act by the state with general application affecting the whole population, or when the victims’ situation entail the general situation regarding the enjoyment of a given economic, social and cultural rights in a country. Between 2003 and 2009, the IACtHR avoided re-opening the discussion, arguing, in various cases, that the possible violations of Art. 26 of the ACHR were subsumed in other conventional rights, such as rights to life and personal integrity.
Although the justiciability of Art. 26 of the ACHR had been cited in separate votes of members of the IACtHR since the 1980s, Lagos del Campo is the first judgment where the majority of judges support this position. For many, this was a milestone in the international protection of economic, social and cultural rights (ESCR). Nevertheless, some believe that the reasoning behind the position of the majority lacks reasoning accuracy. Experts of the stature of Rodrigo Uprimny and two members of the IACtHR itself, Judges Vio Grossi and Sierra Porto, who cast dissenting votes, are some of those who maintain a critical position on how the Court has addressed the direct justiciability of ESCR. This essay comments on some aspects of the Lagos del Campo judgment under the premise that the questions raised by the dissenting votes must be answered. Among the issues addressed in said votes, this essay focuses on the following: 1) scope of Art. 26 of the ACHR; 2) supposed intention of states to restrict its justiciability; and 3) the main flaws in the reasoning behind the judgment.
Scope of Art. 26 of the ACHR
Sierra Porto and Vio Grossi maintain that, contrary to the civil and political rights enshrined in Art. 3 to 25 ACHR, Art. 26 does not contain a catalog of subjective rights, but rather the programmatic objective of progressive development. Sierra Porto adds that Art. 26 ACHR clearly establishes obligations to be implemented progressively, without any type of allusion to a catalog of subjective rights. In fact, the heading of the mentioned provision is limited to the expression “Progressive Development” and the body text contains wording that differs from the other articles of ACHR which protect civil and political rights.
A significant number of ESCR scholars takes a diametrically opposed position. By way of example, Tara Melish reminds us that articles 1.1 and 2 of the ACHR, which define general obligations to respect and ensure rights and to adopt legislative measures, do not differentiate between Chapter II, which contains the catalog of civil and political rights, and Chapter III, which contains the only article on ESCR in the ACHR. Both chapters can be found in Part I of the Convention under the heading “State Obligations and Rights Protected”. Melish maintains that the obligations to respect and ensure are not dependent on available resources and imply immediate obligations applicable both to civil and political rights as well as to ESCR. Therefore, it would not be accurate to state that Art. 26 establishes mere programmatic objectives, while Articles 3 to 25 ACHR contain subjective rights.
Víctor Abramovich and Julieta Rossi emphasize that, when referring to the “adoption of measures” to “give effect” to “rights”, Art. 26 displays a normative statement much closer to a collective right than to a programmatic objective. Based on this premise, neither the rigid interpretation of the provision nor its heading point to the conclusion indicated by Sierra Porto. In this sense, the literal interpretation suggested by the judge also omits the allusion to “Economic, Social, and Cultural Rights”, in the heading to Chapter III ACHR, where Art. 26 is to be found.
The direct justiciability of Art. 26 ACHR had already been considered in judgments obiter dicta of the IACtHR and in reports on the fund of the Inter-American Commission (IACHR). In its judgement on the case Acevedo Buendía (“Discharged and Retired Employees of the Comptroller”) v. Peru in July 2009, the IACtHR declared that Art. 26 had not been violated, but maintained that the prohibition of regressivity is a justiciable obligation. On this occasion the Court analyzed in detail the groundwork laid for Art. 26 and attempted to determine its normative statement in the light of other provisions of the ACHR, following historical and systematic interpretation methods.
In his dissenting vote in the case of Lagos del Campo, Sierra Porto acknowledges that the IACtHR is competent to supervise the prohibition of regressivity of social rights in the light of Art. 26 ACHR. Nevertheless, he does not agree with the criterion of the majority in relation to the determination of the catalog of rights deriving from Art. 26. Although the judge concedes that it would be possible to derive said catalog from the social norms and values found in the Charter of the OAS, he roundly rejects the reference to the American Declaration of the Rights and Duties of Man made by the majority position.
In March 2009 the IACHR published an in-depth report on various cases related to the amendment of the public pension system in Peru. On this occasion the IACHR underlined the fact that “the right to a pension, as an integral part of the right to social security, also comes within the scope of Article 26 of the American Convention, which refers to the economic, social, educational, scientific, and cultural standards set forth in the Charter of the OAS.” Similarly, the IACHR interpreted the reference of Art. 26 ACHR to the Charter of the OAS in the sense of including standards not only of the Charter, but also of the American Declaration, taking into account the intrinsic relation between both instruments. The judgment in Lagos del Campo adopted a similar reasoning which concerned the methodology to define the catalog of rights addressed by Art. 26.
2. Supposed intention of States to restrict the justiciability of Art. 26 ACHR
In addition to not sharing the view that Art. 26 entails subjective rights, Sierra Porto maintains that its direct justiciability has never been endorsed by the member states of the OAS. In this regard it should be noted that the Additional Protocol on Economic, Social and Cultural Rights (Protocol of San Salvador), of 1988, was an opportunity for these states to clarify any possible ambiguity of Art. 26 ACHR. However, instead of clarifying the question, the intention of the states of the Americas was recorded in Art. 19.6 of the Protocol, which expressly limit contentious jurisdiction of the organs of the IAHRS to those rights stipulated in Art. 8 (Trade Union Rights) and 13 (Right to Education), without making any mention of Art. 26 or any other provision of the ACHR. For Sierra Porto, this does not mean that the organs of the IAHRS should refrain from supervising obligations in the field of ESCR, but rather that direct justiciability, via the case system, is limited to articles 8 and 13 of the Protocol. The other provisions of the Protocol and Art. 26 ACHR would be subject to scrutiny via the monitoring mechanisms described in Art. 19.7 of the Protocol:
Neither should the American Convention be read in isolation without taking the Protocol into consideration since they are complementary treaties which must be read and interpreted together. In this regard the various proposals for reform of the Inter-American Human Rights System, which claim to include the justiciability of economic, social and cultural rights, make it clear that we are faced with a contraction of the Convention contrary to the intention of the States, to the express intention of not making economic, social and cultural rights justiciable, except for those expressly identified in Art. 19.6 of the Protocol […]. Taking the above into account, he considered it inconceivable that a judgment which declares the violation of an economic, social or cultural right in the Inter-American system should not make any reference to the Protocol and its scope.
In our opinion, the argument of Sierra Porto assigns excessive importance to the intentions of States as the sole source of international obligations. This position goes back to the time of Jeremy Bentham, John Austin and other leading philosophers of legal positivism for whom the basis of authority in Law is the sovereign will which creates ius positum. Not even Hans Kelsen, the most notorious representative of the legal positivism, was so categorical on the relation between the authority in Law and the sovereign will. In fact, for the author of Pure Theory of Law, Law is the basis for the authority of the state and sovereignty, and not the other way round.
This distinction is important because the criterion of integration between domestic and Inter-American Law, contained in Art. 29.b) and d) of the ACHR, and in current hermeneutics in the field of human rights, is based on the pro homine principle. Art. 29 of the ACHR prohibits the use of the Convention’s provisions to limit the scope of a fundamental right protected in the laws of the states, or in other treaties to which they may be party. A contrario sensu, neither the Protocol of San Salvador nor any other international treaty may impose a restrictive interpretation of the ACHR.
As formulated by Kelsen, the pro homine principle has been consolidated as a sort of Grundprinzip, which directs and confers the basis for authority to a legal system. To summarize, this is a hermeneutic criterion which, in a hypothetical case of antinomy, must give preference to the rule or principle which preserves the widest protection possible to the human rights in question. The IACtHR has incorporated this corollary, amongst others, in the doctrine of conventionality control, according to which it is the responsibility of the authorities of a country to obviate the legal effects of a provision in its laws that is incompatible with an international obligation in the field of human rights.
Judge Sierra Porto refutes the way the majority position in the judgement on Lagos del Campo uses the pro homine principle. For the judge this principle “should be applied when the Court is faced with two possible interpretations that are both valid and correct”, which, he emphasizes, does not occur in relation to the normative statement which is deduced from Art. 26 of the ACHR. Although the explanation of Sierra Porto is persuasive, we do not share the conclusion that there is a single valid and possible interpretation of the scope of Art. 26 for the reasons given in the previous section. Having said that, the use of the Protocol of San Salvador as presumed evidence that the OAS member states have decided to reject the justiciability of Art. 26 of the ACHR is incompatible with the hermeneutic criterion provided in Art. 29 of said treaty.
3. The main shortcomings in argumentation in the Lagos del Campo judgment
Having refuted some of the arguments of Judge Sierra Porto, we will now address the aspects of his dissenting vote which, in our opinion, represent a clear victory over the arguments of the majority position.
Lack of transparency in the application of the iura novit curia principle
Based on this principle, it is the responsibility of the contending parties to prove the alleged facts and that of the judge to make his or her own assessment of the applicable Law. As the IACtHR indicated in its judgement, the iura novit curia principle is backed up in international jurisprudence and allows “the possible violation of articles of the Convention that have not been alleged in the briefs submitted to it, in the understanding that the parties have had the opportunity to express their respective positions in relation to the facts that substantiate them…”
On previous occasions, the petitioners had alleged a violation of Art. 26 and the State was able to dispute the respective pleas of fact and of law. In the case Gonzales Lluy v. Ecuador, for example, when judgment was passed in September 2015, the petitioners had alleged a violation of the right to health and requested that the IACtHR declare the violation of Art. 26. Christian Courtis, one of the experts who appeared during the hearing, emphasized that the alleged violations to the health of the victim should be addressed within the framework of Art. 26 of the ACHR. However, the Court did not shared this opinion and examined the allegations of the parties based exclusively on other articles of the ACHR which protect civil and political rights. The intention of some judges, above all Ferrer Mac-Gregor, can be deduced from the reasoned and dissenting votes in this case to establish direct justiciability of Art. 26 of the ACHR. The separate votes of the above judge and of Judge Sierra Porto reflect the differences of opinion which re-appeared in the judgment in Lagos del Campo.
During the proceedings in the case of Lagos del Campo, neither the IACHR nor the representatives of the victim alleged a possible violation of the right to stability of employment or another right contained in Art. 26 ACHR. Nevertheless, the IACtHR applied the iura novit curia principle based on the following arguments:
[…] the facts corresponding to the dismissal of Mr. Lagos del Campo have constantly been aired before the domestic judicial instances, and also in the proceedings before the Inter-American System […]. Moreover, the argument on the right to work was repeatedly substantiated by the petitioner as of the initial procedural stages before the Commission. In this regard, the parties have had abundant possibilities of referring to the scope of the rights involved in the facts analyzed.
Despite the statements made in this paragraph, in our opinion it was not clear that the factual frame of reference for the case could define a legal analysis of the right to stability of employment according to Art. 26 ACHR. So much so that the IACtHR uses the terms “right to work” and “stability of employment” without distinction, based on the fact that, in the first stage of proceedings before the IACHR, “the petitioners presented the argument of a supposed violation of the right to work.” We find the statement of Judge Sierra Porto more transparent, in the sense that the principle referred to “should not be used to surprise a State with a violation that it had no way of anticipating and that it was unable to contest, not even at the time of the facts.”
Among the reasons why the IACtHR affirms that an analysis of the factual framework for the case according to Art. 26 ACHR was obvious for the Peruvian State, it asserts that “[…]both the 1979 and the 1993 Constitution of Peru, and labor laws at the time of the facts, explicitly recognized the right to job security.”
However, the fact that Peruvian legislation takes into account the right to stability of employment does not establish any element of certainty in the definition of the actual expectations of the petitioners in the written submissions to the IACHR. The note quoted in the previous paragraph rather indicates the intention of the IACtHR to seize the opportunity, in any case, to re-open the discussion on the direct justiciability of Art. 26 of the ACHR. As though this discussion did not have enough facets and, even with the mild disagreement of the two judges, the Court selected a leading case where the allegations in fact and in law aimed to demonstrate the arbitrary restriction (in the case of the petitioners) or justified restriction (in the case of the State) of the right to freedom of expression of a worker dismissed in retaliation for having expressed a critical opinion of the director of his company.
Criteria of interpretation incompatible with each other
The IACtHR starts the section of the judgment regarding Art. 26 of the ACHR by stating that it has the authority to interpret its own competence. It then alludes to the criterion of progressive interpretation and underlines the fact that the right to stability of employment has been established progressively, both at the domestic level in the countries of the region, as well at the supranational level, via conventions of the International Labor Organization (ILO), declarations of the UN Committee on Economic, Social and Cultural Rights (CESCR), social charters of regional human rights systems, as well as other instruments and precedents.
Although the judgment only mentions expressly the progressive method of interpretation, its ratio decidendi and the reference to the landmark case of Acevedo Buendía implies acceptance, tacit at least, of the systematic and historical methods of interpretation. As has been indicated, judgment in the Acevedo Buendía case uses the historical interpretation, based on the preparatory works of the American Convention, as well as a systematic interpretation based on harmonization of Art. 26 with other articles of the convention.
The Lagos del Campo judgment avoids any mention of the preparatory works laid by the Inter-American Specialized Conference, and emphasizes that the justiciability of Art. 26 ACHR derives from the fact that, in recent decades, the “right to work” has been recognized as an autonomous right for a series of domestic laws, landmark cases and international instruments. This line of argument is inconsistent for at least two reasons. First of all, because the systematic criterion and, in particular, the historical criterion of interpretation presuppose a positive premise in the sense that Art. 26 of the ACHR intends an unvarying normative statement that makes up to a concrete legal rule. In using the progressive method of interpretation, the IACtHR introduced a negative premise, according to which the normative statement of Art. 26 has been modified over time due to developments in legislation and jurisprudence, both domestic and international.
The use of the progressive criterion in the Lago del Campo case would not be so problematic if the IACtHR had based its judgment on precedents and instruments that were not in force in July 2009, when the case of Acevedo Buendía was limited to the historical and systematic methods of interpretation. Given that the international and domestic precedents quoted in Lagos del Campo all predate July 2009, the IACtHR commits an error in its reasoning due to the association made between the following premises:
Art. 26 was always justiciable, since the very adoption of the ACHR
the scope of Art. 26 has evolved and currently it can be said that it is justiciable
Secondly, as the IACtHR expressly distanced itself from the historical and systematic methods applied in the Acevedo Buendía case, comparative law, international jurisprudence and legislation of the contending country are still a useful tool to define the scope of a right enshrined in a certain international treaty. Nevertheless, such elements cannot themselves extend the contentious jurisdiction of a supranational organ of human rights. The judgment in Lagos del Campo quotes a long list of regional instruments and of the Universal Human Rights System, under the label of corpus iuris, and emphasizes that the current and previous Constitutions of the defending State, as well as its ordinary law, establish the right to stability of employment. The above is to substantiate that such social right is enshrined in Art. 26 of the ACHR, at least in relation to the Peruvian State.
It is not judicious to base an argument in a decisive manner on what the Court calls “a vast corpus iuris” in order to justify the inclusion of the right to stability of employment in the catalog of rights enshrined in Art. 26 of the ACHR and to predict its justiciability. On this point Judge Sierra Porto appears to be right once again in observing that the discussion on the scope of the right to stability of employment in comparative law, international conventions and precedents does not resolve the discussion whatsoever as to whether this right is protected under Art. 26 of the ACHR and whether the organs of the IAHRS can declare a violation of this provision within the scope of its contentious jurisprudence.
Lack of a specific approach to reparations for the violation of stability of employment
On declaring for the first time the violation of stability of employment as an autonomous right, the IACtHR had the opportunity to determine specific measures of reparations that are consistent with its findings. In previous cases the IACtHR had analyzed the situation of public officials who had been dismissed arbitrarily, and without due legal protection. In the case of the Dismissed Congressional Employees v. Peru, for example, the Court examined the arbitrary dismissal of hundreds of workers in the public sector based on different provisions of the ACHR other than Art. 26. Nevertheless, in determining reparations, the IACtHR ordered that the dismissals be reviewed based on an internal arbitral mechanism that, ultimately, gave rise to the reinstatement for some victims and payment of non-accrued wages and benefits from the date of dismissal for other victims who could not be reintegrated in their work.
Later, in the case Canales Huapaya et al. v. Peru, also related to the arbitrary dismissal of workers of the Peruvian Congress in the first half of the 1990s, the IACtHR directly ordered the payment of compensation due to the impossibility of reinstating all the social benefits lost. In contrast, in the Lagos del Campo case, the IACtHR limited itself to determining general means of compensation for material and immaterial damages, without carrying out any sort of analysis of the restoration of the social benefits of the victim or, alternatively, converting it into additional compensation.
The judgment in Lagos del Campo has been labelled as pioneering, historical, groundbreaking in the international protection of ESCR, among other hyperboles contained in the concurring votes of Judges Ferrer Mac-Gregor and Caldas, in a press release of the Special Rapporteurship on Economic, Social, Cultural and Environmental Rights of the IACHR and in academic studies which praise the decision. However, it is very probable that the victim in the case would have preferred a judgment with less of a pioneering nature and be able to count on reparation measures more consistent with the personal and family hardships caused by his arbitrary dismissal.
Final considerations – the need for a new leading case
Since publication of the judgment in Lagos del Campo, various experts have written essays, some critical and others in favor of the reasoning on the justiciability of Art. 26 of the ACHR. Among the essays adopting a positive approach, the allegory made by Oscar Parra, one of the greatest experts on the IAHRS’ parameters in the ESCR field, is specially remarkable. When explaining the evolution of justiciability for such rights in the jurisprudence of the IACtHR, Parra has recourse to the famous parable of Ronald Dworkin, for whom judicial authority is a writer trying to give continuity to a novel. That is how a judge writes the Law, with a commitment to honor the history transcribed in the constitution, statutes, bills, and jurisprudence, but with a certain freedom of interpretation to create his or her own paragraphs, pages and chapters.
In his version of Dworkin’s parable, Parra concludes that the judgment in Lagos del Campo is the product of successive separate votes which added small extracts to the novel on the justiciability of ESCR at the IAHRS. If this novel were read solely based on the separate votes of some judges who have promoted direct justiciability of Art. 26 of the ACHR, we would be looking at a very elaborate work. Nevertheless, if the chapters of the novel are composed of judgments on the merits in the cases of the Five Pensioners, Acevedo Buendía et al., and Lagos del Campo, the most exact allegory would be that of a book whose first chapter was written by a hack writer, the second by Octavio Paz and the third by Paulo Coelho.
A fourth chapter of the book was written in November 2017, entitled “judgment in the Case of the Dismissed Employees of Petroperú et al. v. Peru.” Despite the editorial warnings of Judges Vio Grossi and Sierra Porto, Petroperú et al. is a copy of the chapters of Lagos del Campo. So that the readers of the novel on the justiciability of economic, social and cultural rights at the IAHRS can regain their taste for the work, the judgment in Lagos del Campo must be seen not as a leading, but as a misleading case; and the story of the violation of Art. 26 of the ACHR must be rewritten in later chapters.
*Director of the Human Rights and Natural Resources Program at the Due Process of Law Foundation (DPLF).
 IACtHR, Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. Advisory Opinion OC-4/84 of January 19, 1984. Series A, no 4. Concurring opinion of Judge Rodolfo Piza Escalante.
 IACtHR, Case of Lagos del Campo v. Peru. Judgement of August 31, 2017, Partially Dissenting Vote of Judge Humberto Antonio Sierra Porto, paras. 18 and 20.
 Ibid, para. 25.
 IACtHR, Case of Lagos del Campo v. Peru. Judgement of August 31, 2017, para. 139.
 Ibid, para. 137.
 IACtHR, Case of Lagos del Campo v. Peru. Judgement of August 31, 2017, Partially Dissenting Vote of Judge Humberto Antonio Sierra Porto, para. 28.
 Ibid, para. 138.
 In contrast to the case of Acevedo Buendía, where the judgment describes in detail the history to the negotiations of the wording of Art. 26 ACHR, the sole references to the groundwork done in the case of Lagos del Campo appear in the supporting vote of Judge Ferrer Mac-Gregor and, to a greater extent, in the dissenting vote of Judge Vio Grossi; but this is not the case in the body of the judgment.