THE QUESTION OF THE JUSTICIABILITY OF SOCIAL RIGHTS

The most important question regarding the justiciability of constitutional rights in Latin America by means of the amparo action refers to the justiciability of economic, social and cultural rights. In some countries many of those rights are not declared in the constitutions, consequently lacking of constitutional judicial protection because not having constitutional rank. In other countries, as is the case of Colombia and Chile, many of those social rights are not considered as “fundamental rights” that are in general, the only ones that can be protected by means of the tutela and protection actions.

Yet even in countries that do not establish any distinction regarding the protected rights, the question of the justiciability of those economic, social and cultural rights continues to be an important issue, particularly because in some cases some sort of additional legislation is required for their full enforcement.

These rights, particularly the social rights, generally imply the obligation for the State to provide or render services or to accomplish activities, for which public expenses must be allocated regarding each service, depending on the political decisions of the government. Consequently, it has been sustained that the provisions establishing such rights can only be enforceable after the sanctioning by Congress of legislation providing the scope of their enjoyment as well as of the State's obligations, and after the adoption of specific public policies by the Executive.