The General Observations of the ICESCR Committee on the jurisprudence of the Chilean Supreme Court on social rights

Abstract

The ICESCR Committee has issued 25 General Comments interpreting the International Covenant on Economic, Social and Cultural Rights, which are considered as soft law of international social rights law. Although the Committee issues guidelines for the justiciability of social rights, it also advances in the creation of policies and even in the recognition of rights that are not explicit in the Covenant. These General Comments are being widely used in Latin American constitutional case law on social rights and now also in Chile. In the period 2015-2022, the Supreme Court of Chile has cited to these documents in six judgments, in five of which such citation allowed it to recognize or create benefit rights not recognized in the Political Constitution or in the national laws regulating social benefits in the respective areas. Thus, based on General Comment No. 15, the Court recognized a directly justiciable “right to water,” an innovation not present in the Chilean Constitution; and, based on General Comment No. 12, it upheld the financing of gender reassignment surgery, thus imposing a health benefit that did not exist in the mandatory health plans applicable to the case.

Considering doctrine on the nature of social rights, their national and international protection and the legal value of soft law, we will examine the case law of the Supreme Court on the matter and note some of the problems arising from the use of General Comments in the manner described above. We will conclude that the use in domestic law of this type of international instruments to generate social benefits is questionable, given the nature of soft law —in particular, its origin as a non-authentic interpretation of the ICESCR, and its non-binding nature at the international level—, the probable activist bias of the aforementioned international Committee, and, from a doctrinal point of view, the nature of social rights, which imposes that their development depends on policy decisions adopted by the political-representative authorities. Considering this nature, and since the competences of judges and the value of international human rights law in Chile are regulated by the Constitution, the direct imposition in our country, by judicial sentence, of social policies or new socioeconomic rights created or suggested by international organizations challenges the Chilean constitutional identity, its subsidiary design and the separation of powers.

Summary 1. PRESENTATION OF THE TOPIC. 2. SOCIAL RIGHTS AND THE CONTROVERSY ABOUT THEIR BINDING NATURE. 3. BUT WHAT ABOUT THE CONTENTS OF POLICIES THAT THE JUDGE WILL GRANT? 4. THE GENERAL COMMENTS OF THE ICESCR COMMITTEE. 5. THE OBSERVATIONS OF THE ICESCR COMMITTEE ON THE JURISPRUDENCE OF THE CHILEAN SUPREME COURT. 6. THE THEORETICAL PROBLEMS RAISED BY THE USE OF THESE GENERAL OBSERVATIONS IN THE JURISPRUDENCE OF THE CHILEAN SUPREME COURT. 7. CONCLUSIONS