Comparative Constitutional Rights Chart

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the Argentine Constitution of 1994

 

        Argentina's Constitution, first drafted in 1853, has been one of the most stable in the world, undergoing little change since a number of major amendments made in 1860.  Miller, at vii.  The Constitution of 1853 remained at least nominally in force under a number of military regimes that seized power over the course of the 20th century, the only exception being the Peronist Constitution in force between 1949 and 1956.  Id. at ix.  The Constitution of 1853 and the 1860 amendments were modelled upon the U.S. Constitution, and contained relatively sparsely worded protections of key civil and political rights.  Also following the U.S. model, a federal system and a tripartite federal government were established.  As indicated in the relevant Chart entries, an amendment in 1957 and the extensive amendments of 1994 introduced a greater emphasis on economic and social rights.

        From the mid 1970s to early 1980s, the Argentine military committed widespread and gross violations of human rights in a campaign to destroy support for leftist political views.  Domestic prosecution of military leaders and officers was mostly unsucessful in the face of ongoing obstruction from the military.  In late 1993, President Menem and former President Alfonsin, who led the first civilian government after the end of military rule in 1982, completed secretive negotiations to support a convention for broad amendment of the constitution.  The major changes were adopted in August 1994, upon completion of the convention's deliberations.

        Among the 1994 amendments was an extremely unusual provision that purported to incorporate a number of ratified human rights treaties and other human rights instruments into the Argentine Constitution.  This provision, in Article 75(22), specified ten instruments and a procedure for elevation of other instruments to constitutional status.  These are: 

  1. American Declaration of the Rights and Duties of Man
  2. Universal Declaration of Human Rights
  3. American Convention on Human Rights
  4. International Covenant on Economic, Social and Cultural Rights
  5. International Covenant on Civil and Political Rights and its Optional Protocol
  6. Convention on the Prevention and Punishment of the Crime of Genocide
  7. International Convention on the Elimination of all Forms of Racial Discrimination
  8. Convention on the Elimination of all Forms of Discrimination against Woman
  9. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
  10. Convention on the Rights of the Child

         Recent scholarship has indicated that this groundbreaking provision was adopted without careful study by the constitutional convention, or a full understanding of its sweeping implications.  See Levin, at 314-23.  As a result, in the drafting of the provision it seems there was little participation and support from human rights organizations and other sectors of Argentine civil society.  As of 1999, the Argentine courts were moving very slowly to implement the constitutionalization of these human rights instruments, in part because of a lack of education among judges regarding principles of international law.  Id. at 324-29; but see id. at 337-42.  In light of these considerations, the Chart entries for the Argentine Constitution focus upon the rights protections included in the text of the Constituion itself.  It must be borne in mind, however, that under Article 75(22) the extensive provisions of the human rights instruments listed above may be expected to have an increasingly direct and pervasive influence on the content and defense of constitutional rights in Argentina.

        For information on recent amendments and other important development regarding the Argentins Constitution, see the updated analysis provided by the International Constitutional Law comparative constitutional law web site.

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