Based on documentary analysis and through interviews with human rights activists and researchers from Latin American think tanks, this project seeks to investigate the response of Latin American constitutional courts in the context of the COVID-19 pandemic. We start from a framework with three minimum parameters for the courts to act: (i) as institutional mediators, (ii) in the mitigation and effective remediation of social vulnerabilities, and (iii) in the epistemic reinforcement and deference to science in political decision-making. Comparing a sample of decisions from Colombia, Argentina, Brazil, and Mexico, we dialogue with the growing literature on decision-making and symbolic effects in the field of social rights.
This working paper aims to discuss recent Brazilian Supreme Court decisions related to the federation’s institutional design and political conflicts during the pandemic of Covid-19. The Brazilian federative design intensified previous conflicts since authorities disagreed with each other about which measures should be taken to tackle the pandemic. Thus, the Supreme Court was provoked to mediate these struggles, building a jurisprudence that brought changes to this topic. As the Federal Government failed to coordinate effective actions to fight against the pandemic, the Court confirmed a shared responsibility between federal entities to protect the right to health. In that sense, I suggest that those recent decisions have direct and symbolic effects on the Federation’s institutional design, such as the strengthening of the federation units and the growing presence of states and municipalities consortia – to coordinate those actions during the pandemic.
The paper intends to study the developments of the jurisprudence of the IACHR and the Colombian Constitutional Court related to the right to health and migration. States must guarantee equal treatment to all persons, and take positive action on those in a situation of vulnerability or risk. Therefore, in the current context, States should take positive action to prevent historically violated groups from being discriminated against in access to health. In Colombia, foreigners in general – including migrants – who are irregularly staying in Colombia must regularize their situation to join the health system in Colombia. That obligation must be analyzed in front of the state duty of solidarity enshrined in Law 1751 of 2015, which states that everyone has the right to receive emergency care without prior payment being required, and the Decree 866 of 2017, which regulates the initial emergency care provided to nationals of the border countries, in Colombian territory.
The mobilizations of the courts in the search for the effectiveness of human rights coexist with the challenges of implementing the decisions. In Brazil, the right to early childhood education in daycare has had a historical density of judicialization. Connecting this context to the Covid-19 crisis, we propose to analyze to what extent the right to daycare, demanded mainly in terms of access, is now being demanded under other dimensions, arising from the intensification of pre-existing inequalities amidst the health crisis. Demands related to the maintenance of presential classes, distance learning, and assistance with school meals place the judicialization of this right beyond the school space and explore its fundamentality in multiple ways. The paper intends to explore the profiles of the lawsuits regarding daycare centers in the pandemic period within the STF, their possible effects, and the articulation of these issues with the racial, gender, and economic problem in Brazil.
The Brazilian Supreme Court played a fundamental role during the first year of the pandemic crisis. Its judicial action is concentrated in a set of five fronts of action: policies relating to labor laws; Non-compliance with financial rules; incarcerated people; Bolsonaro’s policies on safety measures and Separation of Powers and Federalism. The impressions on the court's decision-making process and on constitutional interpretation suggest: 1) This period exacerbated the monocratic decisions of the justices, weakening the role of the plenary; 2) The judicialization of the pandemic is not being done only by opposition parties, but also by the Government; 3) “exceptional”, “urgent” are terms used by justices to describe the Brazilian situation and to review the political performance of the government; 4) The justices appear to have formed a coalition against Bolsonaro´s policies regarding individual rights.
Filed by the Indigenous Peoples of Brazil Articulation (Articulação dos Povos Indígenas do Brasil), the Supreme Court determined, within the scope of case No. ADPF-709, (Arguição de Descumprimento de Preceito Fundamental nº 709), a series of measures for the federal government in order to contain the contagion and mortality from Covid-19 among indigenous peoples. The present article aims to analyze the degree of implementation of such measures, specifically those regarding the establishment of sanitary barriers on indigenous lands. For this purpose, a documentary and media analysis will be conducted, based on the following sources of research: (i) information brought to the case files by the actors participating in the litigation and (ii) news websites of indigenous organizations and non-governmental organizations operating in the field. Therefore, the research intends to investigate to what extent the injunction decision was complied with and the barriers effectively implemented