Inter-American Court recognizes the direct enforceability of ESCR

Lagos del Campo vs Peru, Case No. 12.795, Judgment of 31 August 2017 (Preliminary Objections, Merits, Reparations and Costs)

Alfredo Lagos del Campo was fired from his job on July 1, 1989. Mr. Lagos del Campo had previously been a union leader but, at the time of his dismissal, he was the President of the Electoral Committee, an elected representative of the company’s Industrial Community (a type of employee organization in Peru created through law). Mr. Lagos del Campo gave an interview for a magazine stating he had publicly denounced actions by his employer who he believed was pressuring workers using extortion and coercive tactics. Mr. Lagos del Campo was fired shortly after the interview in response to his statements.

Mr. Lagos del Campo filed a claim in the Labor Court in Lima, claiming that his dismissal was motivated by his work with the Industrial Community rather than insubordination, and therefore such action violated his right to freedom of expression, was an illegal interference with union and labor activity, and directly violated his right to work. The Labor Court agreed that his dismissal was illegal, but the Court of Appeals reversed the decision. Mr. Lagos del Campo spent the next several decades trying to appeal in a variety of forums, though for a time the courts were nonfunctional due to unrest.

Finally, Mr. Lagos del Campo was represented before the Inter-American Commission for Human Rights (IACHR) by the Pro Human Rights Association (APRODEH). The IACHR submitted the case to the Inter-American Court of Human Rights. The Court found that Mr. Lagos del Campo clearly acted in a union representative capacity, and his statements were made in the context of a labor dispute regarding labor conditions. By not protecting Mr. Lagos del Campos’ rights, the State impacted his ability to represent workers, and deprived workers of their representative. The State thus violated Mr. Lagos del Campo’s rights to freedom of expression and association under the American Convention on Human Rights.

Mr. Lagos del Campo’s arbitrary and unjustified firing also deprived him of his right to work and to job security. The Court made clear that the State obligations with respect to the right to work included the provision of effective legal mechanisms through which worker claims of unjustified firings in the private sector could be brought and, if credited, remedied through reinstatement and other measures.

The Court also reiterated the existing interdependence and indivisibility between civil and political rights, and economic, social and cultural rights, stating that they must be understood comprehensively and in a manner that recognizes that there is no hierarchy within the rights framework.

This first judgment of the Inter-American Court of Human Rights recognizing the direct enforceability of ESCR is a landmark case within the Inter-American regional human rights system, and also strengthens global recognition of ESCR more broadly. The Court had previously applied a vague ‘duty of progressive realization’ to independent ESCR claims under Article 26 of the American Convention on Human Rights, which led the Court to reject all such claims argued before it as ‘non-justiciable’, and therefore privileged the assessment of certain human rights over others. This decision demonstrates a significant shift by the Court in its determination of State responsibility for ESCR violations.

The petitioner’s representatives, APRODEH, commented: “[F]rom the beginning [this] represented an unprecedented case: it was the first time that the Court was going to pronounce on the right to freedom of expression in a labor context. Also, labor representation was going to be analyzed beyond the union. Subsequently, the Inter-American Court, in issuing its judgment – in contrast to the former criterion of mere progressive development of ESCR – achieves the justiciability of labor stability and freedom of association.”

While historically there has been much debate regarding the direct enforceability of ESCR as autonomous rights, the sheer number of judicial decisions focused on ESCR across the world has confirmed that such claims can be argued before and decided by courts in practice. By overcoming politically constructed categories of human rights that historically led to different legal assessment standards, the case advances a consolidated vision of an integrated approach to human rights protection.

For their contributions, special thanks to ESCR-Net members: APRODEH, Professor Lucy Williams [Program on Human Rights and the Global Economy at Northeastern University (PHRGE)] and Professor Tara J. Melish, University at Buffalo School of Law.

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