12.2.Principles and rules for the application and interpretation of international labour standards

• American Convention on Human Rights (OAS, 1969) Recognizes the right of all persons to associate freely for labor purposes (Article 16(1)).

Additional protocol to the American convention on human rights in the area of economic, social and cultural rights "Protocol of San Salvador" (OAS, 1988)

Includes in the protection regime of the American Convention the right of every person: 1) to freely elected or accepted work (Article 6); 2) to just, equitable, and satisfactory conditions of work and in particular to minimum remuneration, promotion or advancement, job stability, occupational safety and health, maximum working hours, rest, and paid vacation (Article 8); (1.a.) to organize trade unions and to join the trade union of their choice for the protection and promotion of their interests, and, as a projection of this right, the right of trade unions to form and join national federations and confederations and to form and join international trade union organizations of their choice, and the right to strike.

The human rights to freely chosen or accepted work, to just, fair and favorable conditions of work, to freedom of association and to social security are part of the essential content of the right to life with dignity. In this regard, the Inter-American Court of Human Rights established that: The fundamental right to life includes not only the right of every human being not to be arbitrarily deprived of life, but also the right not to be denied access to the conditions which would guarantee a dignified existence.54

12.2. Principles and rules for the application and interpretation of international labor standards

As international treaties adopted within the framework  of an international  organization,  the provisions of the Vienna Convention on the Law of Treaties of 1969 (Vienna Convention) apply to international labour conventions (Article 5). The Vienna Convention establishes rules for the observance and interpretation of international treaties.

54. Inter-American Court of Human Rights. Decision: Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Fondo. November 19, 1999.

RULES OF THE VIENNA CONVENTION ON THE LAW OF TREATIES

Rules for the enforcement of international treaties (Article 27 of the Vienna Convention)

Rule 1: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty

This rule reflects the negative dimension of the principle of the primacy of international law over national law at the international level. Under this rule, a State party to an ILO Convention may not invoke provisions of its domestic law to breach the international obligations contained in the Convention.

Rule 2: Every treaty in force is binding upon the parties to it and must be performed by them in good faith (“Pacta sunt servanda”) (Article 26 of the Vienna Convention) This rule reflects the positive dimension of the principle of primacy of international law. Under this rule, States have an obligation to bring their domestic legal system into line with the international obligations they undertook by ratifying the ILO Convention. This obligation in turn implies obligations to:55

I)Adopt the necessary measures – legislative, executive, judicial and/ or of any other nature – to give effect to the international obligations arising from the ratified ILO Convention, filling any gaps or deficiencies in domestic law;

II) Repeal national legal provisions that are incompatible with the international obligations derived from the ratified ILO Convention in order to harmonize national law with the Convention; and

III) To refrain from promulgating domestic regulations that are contrary to the international obligations assumed by the ratification of the ILO

Convention. Under the obligation to comply in good faith with international treaties, it can be argued that States must adopt provisions of domestic law in accordance with the interpretation of the provisions of the international treaties by the monitoring bodies of the international human rights protection systems. With regard to the ILO Conventions, therefore, provisions of domestic law should be adopted in accordance with the interpretation of their provisions by the ILO supervisory bodies.

Rules for the interpretation of international treaties (Articles 31 and 32 of the Vienna Convention)

•General rule of interpretation

The general rule of interpretation of the Vienna Convention provides that a treaty shall be interpreted in good faith in accordance with the ordinary

55. SALMÓN, Elizabeth. Course on international law. Lima: Fondo Editorial de la Pontifica Universidad Católica del Perú, 2014, pp. 282-284. The author refers to international law treaties of international law in general.

meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. • Supplementary means of interpretation

The Vienna Convention accepts the possibility of resorting to supplementary means of interpretation, in particular to the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of the general rule of interpretation or to determine the meaning when the interpretation given in accordance with the general rule leaves the meaning ambiguous or obscure or leads to a manifestly absurd or unreasonable result. The Inter-American Court of Human Rights used the rules of interpretation of the Vienna Convention in the Advisory Opinion on entitlement of rights to legal persons, where it interpreted Article 8 of the Protocol of San Salvador on trade union rights.56

As international human rights treaties, the International Labour Conventions must also be applied and interpreted in accordance with the principles and rules recognized in international human rights law. A relevant reference in relation to these criteria is the jurisprudence of the Inter-American Court of Human Rights which has established and highlighted principles and rules of application and interpretation with reference to the American Convention on Human Rights and which can be taken into account with reference to the ILO Conventions.

PRINCIPLES AND RULES OF THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Principles and rules for the observance of international human rights treaties

• Obligation to respect the exercise of human rights57

This obligation presupposes that States and all their agents refrain from acting in such a way that the exercise of State power results in the violation of human rights.

This obligation binds all agents of the State, including the security forces and, in addition, legislators in case they intend to adopt rules whose regulation, for example, criminalizes social protest or penalizes conduct that responds to the legitimate exercise of freedom of expression and assembly, essential for the exercise of trade union freedom.

56. Inter-American Court of Human Rights. Advisory Opinion OC-22/2016 on whether legal persons are entitled to rights. Paragraph 31. 57. Inter-American Court of Human Rights. Advisory Opinion OC-6/86, of 9 May 1986, on the expression “laws” in Article 30 of the American Convention; Case of Velásquez Rodríguez vs Honduras. Sentence of 26 June 1987. In SALMÓN, Elizabeth, 2019, pp. 54-55., Elizabeth, 2019, pp. 54-55.

This obligation implies the duty of States not to criminalize the carrying out of activities in defense of labour and trade union human rights, nor the membership in trade union entities.

• Obligation to guarantee the exercise of human rights58

This obligation implies the duty of States to organize the entire governmental apparatus and, in general, all structures through which public power is exercised, in such a way that they are capable of publicly ensuring the free and full exercise of human rights.

This obligation does not end with the existence of a normative order aimed at making it possible to comply with this obligation, but rather entails the need for government conduct that ensures the existence, in reality, of an effective guarantee of the free and full exercise of human rights.

It imposes a duty on States to adopt all necessary measures to remove obstacles that may restrict the enjoyment of rights.

Unlike the obligation to respect, the obligation to guarantee is not satisfied with the absence of human rights violations, but requires the

State to take concrete actions (legislation, public policies) that ensure the full enjoyment and exercise of human rights.

This obligation also implies the duty of States to take all appropriate measures, including affirmative action, to ensure that persons in vulnerable situations have the capacity to effectively exercise their human rights, such as women, youth, people of African descent and indigenous peoples, LGBTI people, among others.

• Prohibition of non-discrimination in respect of and guarantee of the exercise of human rights.

This prohibition implies the obligation of States to ensure that everyone can exercise their human rights without discrimination on the grounds of race, color, sex, gender identity, sexual orientation, age, religion, political or other opinion.

States have the obligation to take positive measures to reverse or change discriminatory situations, which implies a special duty of protection for certain groups of people, seeking to create adequate conditions for them to enjoy and exercise their human rights.

•Obligation to adopt provisions of domestic law necessary for the realization of human rights On the scope of this obligation, see section 13.1.

58. Inter-American Court of Human Rights. Case of Velásquez Rodríguez vs Honduras. Sentence of 29 July 1988, paragraphs 166 and 167; Advisory Opinion OC-11/90 August 10, 1980 on Exceptions to the exhaustion of domestic remedies (art. 46.1, 46.2.a, and 46.2.b of the American Convention). In SALMÓN, Elizabeth, 2019, pp. 55-56.

Principles and rules for the interpretation of international human rights treaties

• Pro Person Interpretation Rule

By virtue of this rule the provisions of an ILO Convention should always be interpreted in the most favorable way for the individuals or groups covered and protected by the Convention and any provisions restricting rights should always be given the most restrictive interpretation. The Inter-American Court noted that "the balance of interpretation is obtained by directing it in the sense most favourable to the recipient of international protection, provided that this does not imply an alteration to the system.”59

This rule has its equivalent in the principle of labour law: in dubio pro operario [if in doubt, for the worker], consisting of the "criterion to be used by the judge or the interpreter to choose among several possible meanings of a rule, that which is most favourable to the worker.”60 Both rules bind the interpreter to interpret the right broadly and to interpret possible restrictions or limitations restrictively.

• Dynamic or evolutionary rule of interpretation

By virtue of this principle, the provisions of an ILO Convention should be interpreted in accordance with the law in force at the time of interpretation.

An example of the application of this principle can be found in Convention 102 on Social Security (Minimum Standards) which has some provisions whose language is gender-biased. Under this principle, Convention 102 should be interpreted in the light of developments in international law and in particular international law on gender equality.

• Rule of interpretation according to the corpus iuris of international human rights law

By virtue of this rule the provisions of an ILO Convention should be interpreted in the context of the evolution of fundamental human rights in contemporary international law,61 in the light of the corpus iuris of existing international human rights law (where the inclusion of fundamental principles and rights at work as defined by the ILO and its supervisory bodies can be argued).

59. Inter-American Court of Human Rights. Advisory Opinion OC-3/83 September 8, 1983. Restrictions to the death penalty (Articles 4.2 and 4.4, American Convention on Human Rights, paragraph 26). 60. PLÁ RODRÍGUEZ, Américo. Los principios del derecho del trabajo. Montevideo: Fundación de Cultura Universitaria. 2015, 4ta Edition, p. 91. 61. Inter-American Court of Human Rights. Advisory Opinion OC-16/99 October 1, 1999. The right to information on consular assis-tance in the framework of the guarantees of the due process of law, paragraph 115.