Incorporation of Economic, Social and Cultural Rights into the Argentine Constitution CELS, Program on Economic, Social and Cultural Rights

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

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: : 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)