In order for a case to be litigated by a federal court in the United States, all of the following conditions must be met: In Table 2 (below), we can see that 7.6% of judges, when asked about the nature of human rights, agreed that these were “unenforceable values”. For 34.3 per cent of human rights, human rights are “enforceable principles in the absence of a specific rule”, while 54.3 per cent consider them to be “fully enforceable rules”. It is important to note that nearly 7 per cent of judges understood human rights simply as values that have no legal significance despite all legal and political efforts to uphold these rights. This opinion is not so different from the 34.3% of judges who consider these principles to be “complementary” and can only be applied in the absence of a specific rule. For this group of judges, any deliberation under a more specific rule, even if conflictual, would preclude the application of human rights law. However, the majority of responses showed a strong conception of human rights, with more than 50% of judges considering human rights to be fully enforceable rules. Many questioned whether it was constitutionally acceptable for a court to judge the progressive realization of economic rights, which would require the action of multiple mechanisms. Since the responsibility for making and enforcing laws rests with the legislature or the executive, the judicial enforcement of property rights could be misinterpreted as a denigration of the separation of powers system. On the other hand, judicial review requires courts to assess the compatibility of legislation and state action with constitutional ideals, aspirations and obligations. The guarantee of the fundamental rights of the individual to housing, food and basic economic stability, which are fundamental to the realization of his or her human dignity, falls within these constitutional limits. Regardless, U.S. courts often gag themselves by denying their power to constitutionalize socio-economic rights.

Where rights are justiciable, courts can ensure that the state is held accountable for its actions in accordance with international, regional and national human rights obligations. It also means that civil society can campaign, advocate for accountability and change, and mobilize more effectively. The third variable, knowledge of the United Nations and OAS human rights protection systems, shows what has already been stated: the greater the knowledge of international human rights protection systems, the more likely it is that the above-mentioned instruments will be used. Labour obligations for economic rights must be treated in the same way as for civil and political rights. These include the granting of freedoms, the imposition of obligations on third parties and the obligation of the State to act or achieve a certain result (International Commission of Jurists, 2008). The enforcement of economic rights is crucial to alleviating widespread and damaging economic crises at home and abroad. Pronouncing judgments that guarantee the effective implementation of different generations of human rights – including the defence of these rights in a democratic state with limited financial resources – raises important questions that need to be considered and discussed by the executors of the law. Laws must be based on the principle of legitimacy, which is based on the confidence that all reasonable people are able to determine their merits in a legal action.

Legislation is legitimized by this public approval and the consent of reasonable citizens. The state cannot ask its members to accept and participate in its democratic system if it does not behave in a way that adequately supports each individual as a valuable contribution to social, political and economic life. This can be achieved through the constitutionalization of social rights. To collect the data, 225 of the 244 registered courts of first instance4 were visited between January and May 2004 and almost 40 per cent of the courts did not complete the questionnaire. The main reasons for the failure of these courts to provide information were: (1) unfounded refusal by the judge; (2) a refusal by the judge on the ground that human rights are not part of his work; (3) the judge`s refusal to see the researcher. Despite the almost non-existent absence of this subject in universities, judges were asked about their interest in human rights research, given the importance of the subject. Their responses are presented in Figure 2 (right). An analysis of the graph shows that 42 judges (40%) have never dealt with human rights. This information shows that four out of 10 judges have not received formal instruction on the systematic investigation of fundamental human rights issues.

Whatever the solution, the implementation of economic rights remains important, both to ensure adequate and equal implementation of the civil and political rights of the individual and to ensure an equitable standard of living. By following, respecting and adhering to the goals of economic justice, government action to protect human dignity shifts from desirable to productive. The enforcement of economic rights through the courts forces us to ask ourselves whether the rights correspond to democratic needs or values. Choosing the latter option could mean defending the legal need to ignore social realities or deliberately remain abstract so that individuals can decide whether democracy should work itself or maintain a more robust structure to ensure that rights – as operationalized – meet the requirements. In order to examine the conception and implementation of human rights by judges, it is important to take into account the type of court of first instance in which the judge operates, since the type of cases he deals with is directly related to the application of some of the above-mentioned instruments.

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