18.Arguing cases before international human rights protection systems

18.Arguing cases before international human rights protection systems

Trade unions can also use international labour standards and the pronouncements of the ILO supervisory bodies in the pleadings of cases to be submitted to the other systems of international human rights protection, such as the universal system of the United Nations or the regional systems, including the interAmerican human rights system.

There is an intrinsic complementarity and mutual reinforcement between the ILO and the inter-American human rights system. The organs of the interAmerican system base their decisions on labour and trade union matters on the principles and decisions of the ILO supervisory bodies. The validity of the interpretation made by the ILO supervisory bodies is accepted and recognized by the inter-American human rights system. In this regard, the Inter-American Court states that "In order to reach conclusions on whether the State violated the right to freedom of association, the Court takes particular account of the statements contained in the Commission's application, the evidence in the file and the recommendations of the ILO Committee on Freedom of Association.”73 The principles and decisions of the ILO supervisory bodies have been incorporated into the inter-American standards established by the InterAmerican Court of Human Rights in its contentious jurisdiction and non-contentious or consultative jurisdiction. The inter-American standards "strengthen the validity of the human rights guaranteed by the American Convention in all the States of the hemisphere, since the international protection of human rights finds direct application in the domestic sphere.”74 The incorporation of inter-American standards into domestic law is related to the obligation of "control of conventionality", by virtue of which the organs of the State and, in particular, the domestic judges must verify the compatibility of the norms and acts that they must analyze with respect to the American Convention and with the interpretation that the Inter-American Court makes of it,75 in its role as final interpreter. The following are some examples of judgments of the Inter-American Court of Human Rights where international labour standards and principles established by the ILO supervisory bodies have been used.

73. Inter-American Court of Human Rights. Case of Baena Ricardo v. Panama. Sentence February 2, 2001, paragraph 171. 74. Inter-American Court of Human Rights. Annual Report 2010, p. 55. 75. Inter-American Court of Human Rights. Advisory Opinion OC-21/14, August 19, 2014.

EXAMPLES OF THE USE OF INTERNATIONAL LABOUR STANDARDS AND THE RULINGS OF ILO SUPERVISORY BODIES TO SUPPORT CASES BEFORE INTERNATIONAL JUDICIAL BODIES

Employment stability case

• Inter-American Court. Case of Baena Ricardo et al. v. Panama

In this judgment in respect of Panama, the Court considered that the dismissal, on the basis of a law specially promulgated for this purpose, of 270 public service workers who had taken part in a strike was contrary to the principle of freedom of association recognized by Article 16 of the

American Convention on Human Rights. In accordance with the principle of full reparation recognized by international law, the dismissed employees were then required to be reinstated and be paid the remuneration that they had not received during the time that had elapsed. In order to give greater weight to its argument, the Court relied both on the recommendations of the ILO Committee on Freedom of Association, which had ruled on this particular case, and on the observations of the ILO Committee of Experts.

The sentence (February 2, 2001) is available at this link: http://www.corteidh.or.cr/docs/casos/articulos/Seriec_72_esp.pdf

Source: BEAUDONNET, Xavier (Editor). Derecho internacional del trabajo y derecho interno. Manual de formación para jueces, juristas y docentes en derecho. Turin: International Training Centre of the ILO. 2010.

Cases of extrajudicial execution or forced disappearance of trade unionists • Inter-American Court. Case of Lagos del Campo v. Peru

Based on the pronouncements of the Committee on Freedom of

Association, the Inter-American Court states that recognition of freedom of expression is a conditio sine qua non for the full development of trade unions. It points out that the protection of the right of association in labour matters not only protects trade unions, their members, and their representatives, but also extends to organizations which, being of a different nature from trade unions, pursue purposes of representing the interests of workers, and that the protection of labour stability must be strengthened for the elected representatives of workers. The ruling (August 31, 2017) is available at this link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf

Case on freedom of expression and freedom of association • Inter-American Court. Case of Lagos del Campo v. Peru

Based on the pronouncements of the Committee on Freedom of

Association, the Inter-American Court states that recognition of freedom of expression is a conditio sine qua non for the full development of trade unions. It points out that the protection of the right of association in labour matters not only protects trade unions, their members, and their representatives, but also extends to organizations which, being of

a different nature from trade unions, pursue purposes of representing the interests of workers, and that the protection of labour stability must be strengthened for the elected representatives of workers. The ruling (August 31, 2017) is available at this link: http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf

Case on the ownership of rights by trade unions

• Inter-American Court. Advisory Opinion on the Ownership of Rights by

Legal Entities in the Inter-American Human Rights System.

The Court establishes that States have the obligation to guarantee the rights of trade union organizations contained in Article 8(1)(a) of the Protocol of

San Salvador and that such obligation includes: a) positive obligations: to allow and encourage the creation of conditions in which such rights can be effectively realized, and b) negative obligations: to refrain from creating barriers such as legal or political ones that tend to prevent trade unions, federations, and confederations from enjoying the possibility of free functioning and, in addition, trade unions from associating.

The Advisory Opinion (26 February 2016) is available here: http://www.corteidh.or.cr/docs/opiniones/seriea_22_esp.pdf