Justiciabilidade dos direitos sociais na Corte Interamericana de Direitos Humanos : o novo caminho pós-caso Lagos del Campo versus Perú (2017-2023).

Abstract

This dissertation examines the position of the Inter-American Court of Human Rights (IACtHR) regarding the justiciability of social rights. In this sense, the general objective of this work is to examine, considering the change in the position of the Inter-American Court of Human Rights on economic, social, cultural and environmental rights (ESCER) in 2017, especially social rights, in the case of Lagos del Campo versus Perú, based on Article 26 of the American Convention on Human Rights (ACHR) and analyzing the judgments between the years 2017-2023, what were the decisions that involved the issue, the favorable and contrary grounds used in the judgments regarding the direct justiciability of social rights and how and if these grounds evolved in the other decisions on the subject. In view of this objective, the question is, considering the judgments between 2017-2023: which decisions involved the issue, the favorable and contrary grounds used in the judgments regarding the direct justiciability of social rights and how and if these grounds have evolved in the other decisions on the subject? In order to accomplish this task, a deductive method of approach is used, starting from a general premise, seeking to reach a particular conclusion, notably as a result of investigating the evolution of jurisprudence on the justiciability of social rights at the IACtHR. It also makes use of doctrine, case law and legislation. As for the method of procedure, the analytical method is adopted, in terms of understanding the analysis and research of case law; and, in terms of research technique, the indirect bibliographical method, in other words, bibliography of primary and secondary sources which deal with the subject of social rights. The research is justified as the expansion of the list of human rights enforceable by the IACtHR influences the implementation of these rights by member states. This aspect becomes even more significant given the limitations imposed by the Protocol of San Salvador, adopted on November 17, 1988, as an additional instrument to the ACHR. Although intended to protect social rights in the States Parties, this protocol restricts the possibility of submitting individual petitions only to cases of violations of the right to education and the right to freedom of association. In this way, understanding which decisions involved the issue, the grounds used in the judgments regarding the direct justiciability of social rights and how and if these grounds have evolved in other decisions on the subject, becomes essential to understanding the development of human rights in relation to ESCER, contributing to the improvement of discussions on social rights. In this context, the topic is relevant and closely linked to the Contemporary Constitutionalism research line of the Stricto Sensu Postgraduate Program in Law at the University of Santa Cruz do Sul, as well as being related to the subject “A efetividade dos direitos fundamentais sociais”, taught by Post-Doctoral Professor Rosana Helena Maas, as it covers the decisions and their foundations concerning social rights at the IACtHR. The study concludes that, including the case of Lagos del Campo versus Perú, the Inter-American Court handed down 27 judgments related to social rights in violation of Article 26 of the ACHR between 2017- 2023. In this respect, the Inter-American Court began to recognize violations of social rights directly, impacting the way these rights are safeguarded at the regional level in the Americas and improving the grounds used in cases following the leading case through the incorporation of other rights as justiciable before the Inter-American Court on the basis of article 26 of the ACHR. It can be seen that there was no substantial development in the arguments in favour of the justiciability of social rights used in the Lagos del Campo versus Perú case, but rather the reuse of these arguments to allow the direct judicialization of new social rights in subsequent cases. Therefore, it can be concluded that the hypothesis was fully confirmed, considering that in 2017, in the case of Lagos del Campo versus Perú, there was a paradigm shift that made Article 26 of the ACHR justiciable. Subsequently, the IACHR analyzed the cases of Poblete Vilches y otros versus Chile (2018) and Muelle Flores versus Perú (2019), which guaranteed the justiciability, respectively, of the right to health and the right to social security, through Article 26 of the ACHR, following the line of argument established in the case of Lagos del Campo versus Perú. It should be emphasized that the evolution of the grounds is due to the incorporation of other rights as justiciable before the Inter American Court, and not to the creation or intrinsic evolution of the arguments, along the lines of the proposed hypothesis.