THE ADJUDICATION OF HUMAN RIGHTS: PRACTICAL AND THEORETICAL CHALLENGES
Panel formed with individual proposals.
The purpose of this work is to analyze the role of constitutional justice in the provision of rights in Chile - in particular, its role in the adjudication of social rights: how the courts carry out this exercise and what risks this exercise may pose for the rule of law and democracy. From a material point of view: how do judges decide the adjudication of social rights? From a formal point of view: how can a court ruling alter the powers of other State bodies to adjudicate social rights? Finally, what risks does an active role of the courts represent for democracy and the rule of law in the creation, determination, or application of social rights in Chile? Our thesis is that the jurisprudential creation and enforceability of social rights of benefit erodes judicial independence and the separation of functions, lacks of a systematic look over the marginal effect of rulings, also weakens the collective action and the democratic system.
In recent years the rental market has experienced an exponential rise prices as a result of speculative processes. This has come into contradiction with the right to housing and states have adopted legislative measures to limit rents, limitations that have intensified by Covid-19. This paper deals with the weighting criteria used by the ECtHR in cases involving regulations that impose limits on private property in rental contracts. The starting point is that housing “in our modern societies is a central concern of social and economic policies“, then there is a legitimate State‘ interest to regulate the rental market. From here, the ECtHR has developed a wide jurisprudence to enforce “a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual‘s fundamental rights“. Within the framework of this weighting, this paper will expose the criteria exposed by the ECtHR to determine the legitimacy of the State limitations.
Judicial review of such state actions that affect socio economic well-being of citizens, must be sensitive to the needs of such citizens who are socio-economically vulnerable. For this, judicial review must be so oriented as to identify a minimum core of these rights exclusively for such vulnerable citizens. Such vulnerable citizens must have priority of access to the minimum core of these rights over the privileged classes. This identification must be in two forms. First, the courts must defer to the executive‘s decision regarding the allocation of its finite resources for those who need them the most. Second, the courts must interfere in such cases where the resources are not being spent on those who need them the most. Hence, the standard of judicial review must be relate to the content of the socio-economic right, instead of whether it is implemented by the legislature / executive or the judiciary.
Many people are suffering in Latin America as a result of a lack of access to health services and this has led to an increase in the judicialization process in the last decade. The objective of this paper is to evaluate the challenges raised by the Justiciability of the Right to Health in Mexico, Argentina, Brazil, and Colombia during the last 10 years. By using a qualitative approach with a documentary and comparative research design that combines a review of the existing literature and the use of semi-structured interviews with key stakeholders in the health and judicial sector this paper found that Courts should strengthen the monitoring and evaluation process of judgements in terms of variations of change and growth of principles, values and potential through formal deliberation. At the same time, Courts should be more strategic by adapting itself to the particular context in which they are operating. States should also reduce the high level of corruption in the health sector.