Incorporation of Economic, Social and Cultural Rights into

the Argentine Constitution

CELS, Program on Economic, Social and Cultural Rights

www.cels.org.ar

Part I: Economic, social, and cultural rights in the Argentine Constitution

Part I: Economic, social, and cultural rights in the Argentine Constitution

Art. 14 bis (1957) Right to work, favorable work conditions, unions,

social security

Art. 42 (1994) Right to consumer protection including health and

safety

Part I: Economic, social, and cultural rights in the Argentine Constitution

Art. 43 (1994) Right to a legal remedy in case of a violation of

constitutional rights

Art. 75 §22 (1994) Constitutional hierarchy of international human

rights instruments

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Effects of constitutional recognition:

Negative duties of the State

Positive duties of the State

Procedural safeguards

Citizen empowerment to demand enforcement

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Scope of the State’s duties must be concretized through judicial enforcement.

Two stages of judicial enforcement of ESC rights in Argentina:

1994-2004: Ambivalent enforcement

2004-present: Protectionist stance

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

First Stage “Chocobar” (1996)

Right to pension conditioned on availability of State funds

“Bengalensis” (2000) Right to health imposes a positive obligation on the

State to provide medication “Campodonico” (2000)

Fulfillment of right to health is responsibility of national government

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Second Stage

“Aquino” (2004) Injured worker has a right to obtain full restitution

through legal action

“Sanchez” (2005) Right to “adjustable” pensions includes proportionality

with workers’ salaries and must accord with other essential rights

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Second Stage “Badaro” (2006)

Legislature’s power to choose the method to fulfill the right to “adjustable” pensions must be in accordance with the right to an adequate standard of living

“Reyes Aguilera” (2007) Right to disability benefits is part of the right to social

security, and may not be conditioned on the fulfillment of unreasonable requirements that contravene human rights

Part II: Judicial enforceability of economic, social and cultural rights in Argentine courts

Second Stage “Matanza Riachuelo River Basin” (2008)

National, provincial, and local governments all have a duty to protect the environment, as well as the health and standard of living of residents.

Part III: International guidance in the interpretation of economic, social and cultural rights provisions

Part III: International Guidance

International committees charged with implementation of human rights treaties produce interpretive materials:

Consultative opinions Reports General Comments

These may help courts in their determination of whether a human rights violation has occurred

Part III: International Guidance

Proliferation of interpretive materials in the last few years

1994: few available 2011: extensive jurisprudence

Other factors affecting use of materials:

Ideological stance of the court Reservations, understandings, declarations Constitutional text

Part IV: Lessons from CELS’ experience with the enforcement of economic, social and cultural rights

Part IV: Lessons from CELS’ Experience

CELS’ main tool: strategic litigation

exposing systematic human rights violations

formulating or challenging public policy

generating visibility

enforcing the limits of government power

compelling government actors to take action to address a problem

Part IV: Lessons from CELS’ Experience

Legal foundation: 1994 constitutional reform

The incorporation of international human rights instruments into the Constitution

The creation of the amparo colectivo (similar to class action suits)

Part IV: Lessons from CELS’ Experience

Prerequisites for litigation

Support of social groups whose rights are at stake (e.g., mobilization and public activism)

Rigorous study of human rights standards

Analysis of all potentially viable legal strategies

Consideration/analysis of potential policy impact

Part IV: Lessons from CELS’ Experience

The link between litigation and public policy

Conveys public demands that need to be addressed through policy

Expedites decision-making processes that shape public policy

Challenges policy implementation

Influences policy development

Part IV: Lessons from CELS’ Experience

The link between litigation and public policy

Allows the human rights community to sit at the table with political actors on an even playing field in the design and implementation of public policy

Provides decision makers with a broader spectrum of voices and information to consider in the design or implementation of a policy

Part IV: Lessons from CELS’ Experience

Consider whether the appeal should be collective or individual

Consider other possible strategies

For more in-depth information, refer to The struggle for right: Strategic litigation and human rights. (CELS, 2008)