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)