Economic, social and cultural rights

from programmaticity to juridicity

Abstract

This bibliographic review article addresses the division of human rights into two international treaties (International Covenant on Civil and Political Rights - ICCPR and International Covenant on Economic, Social and Cultural Rights - ICESCR) as the origin of the theorization of constitutional norms of programmatic effectiveness; a conception that for a long time prevailed in Brazilian constitutional doctrine as justification for the lack of perception of economic, social, and cultural rights as having the same importance as civil and political rights, thus allowing their secondary status to the detriment of a large segment of society. It also addresses the context of resource scarcity as another practical factor that has hindered the realization of social rights, insofar as it has been a generic argument for the State's failure to meet demands related to social rights of a service-oriented nature. This is a historical investigation, involving the collection of bibliographic data and qualitative and dialectical treatment. It is concluded that the thesis of the programmatic nature of constitutional norms has been overcome in light of the postulates of Contemporary Constitutionalism; in addition to the need for careful observation regarding the use of resource scarcity as a generic justification for omissions that violate fundamental rights; circumstances that allow judicial intervention in the realization of fundamental social rights without thereby constituting an invasion of constitutional competences (principle of separation of powers).