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IV.4 Argentina and the new human rights agenda in the democratic era

Since 1983, during its more than thirty-five years of continued democracy, the country has not only extensively addressed the question of impunity for gross human rights violations committed during the 1970s and 1980s, it has also focused on many other relevant issues such as the rights of women, children, older persons, migrants, indigenous peoples, LGBTI individuals, and persons with mental health problems. Argentina also adopted measures to guarantee economic, social and cultural rights. The promotion and protection of human rights became a State policy, both internally and abroad.

At the domestic level, as mentioned before, the Argentine National Constitution was amended in 1994. Since then, a series of international human rights instruments have acquired constitutional hierarchy and thus have complemented the rights guaranteed in the first part of the Constitution. These instruments are: the American Declaration on the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Civil and Political Rights and its optional protocol; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Prevention and Punishment of the Crime of Genocide; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention on the Elimination of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment; and the Convention on the Rights of the Child.[1]

The amended Constitution provides for the possibility of giving constitutional status to other international instruments with the approval of a two-thirds majority of Congress. On this basis, three additional instruments have acquired constitutional status to date: the International Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity,[2] the Interamerican Convention for the Protection of All Persons against Enforced Disappearances,[3] and the International Convention on the Rights of Persons with Disabilities.[4]

Many progressive laws have also been adopted in the last few years to incorporate the highest standards of human rights protection. The following are some examples.

In 2004, the new law on Migration[5] was adopted, among other things, to enable citizens of MERCOSUR countries and migrants from the rest of the world to be able to obtain their residency. In addition, in 2007, Argentina ratified the Convention on the Protection of the Rights of All Migrant Workers and Their Families. As a consequence, the level of protection for migrants is one of the most extensive both in the Latin American region and even at the universal level, at a time when there is a general tendency in Western countries to limit the rights of migrants.

In 2010, Argentina adopted the historic Law on Equal Marriage (Law No. 26,618), allowing same-sex couples to get married and to have the exact same rights as heterosexual couples. As mentioned before, this law was the first law of its kind adopted in Latin America and the tenth in the world. In recent years, many countries of the region, namely Chile, Colombia, Brazil and Ecuador, have followed Argentina’s lead and have —with different levels of recognition— protected LGBTI couples.

In 2012, the adoption of Law No. 26,743 on Gender Identity represented another significant step towards full respect for the rights of trans persons. This law was the first in the world to require only the self-perception of gender as a condition for being identified as that gender in legal documents. In other countries, surgery is required prior to legal recognition. The tendency, as we saw before, is fortunately changing in different countries. As a consequence, Argentina has also been at the forefront in terms of the protection of rights of LGBTI persons in the international community.

Argentina has also taken steps to guarantee economic, social and cultural rights. In a developing country, which has suffered cyclical and severe economic crises for several decades and the world biggest default on a foreign debt in 2001, the fight against poverty is key. In 2009, the Argentine Government created a Universal Allowance per Child, which benefits families with children from the time they are born until they are 18 years old. Since 2011, by Decree 446/2011, there has also been a Universal Allowance for Pregnant Women who, inter alia, are unemployed, work on an informal basis, or work as housemaids.

Since 2005, Argentina has also had a national plan against discrimination, which has allowed the identification of all groups that suffer discrimination and the adoption of measures to protect them. Argentina developed a national action plan on human rights for the period 2017-2020. The key issues of the plan are: inclusion, non-discrimination and equality; public safety and non-violence; memory, truth, justice and reparation policies; universal access to rights and civic culture; and commitment to human rights.

Moreover, the first specific plan to prevent and eradicate violence against women (2017-2019) was adopted. It is worth mentioning that in the last few years, the rights of women—which had already been protected by the ratification of universal and regional conventions and have a national State institution with competence in the field—have had an important influence on the national political agenda and public opinion.

During 2017 and 2018, the Argentine Government launched two additional action plans: one to reduce pregnancy in adolescents, and another to accompany children up to four years of age while their mothers work. Moreover, in 2017, the Parliament adopted the Law on gender equality representation in political spaces, which will have an impact on the composition of political parties and Congress.

Politicians from different parties have added their voices to those of new social groups and organizations, which are taking on a leading role in demanding an end to violence against women and in promoting the right of women to free, legal and safe abortion. The Administration of President Macri allowed discussion on the legalization of abortion in Parliament during 2018 but, after a successful adoption in the Chamber of Deputies, the draft bill did not pass in the Senate. Nevertheless, only two years later, President Alberto Fernandez decided to re-introduce the issue in Parliament and this time it was adopted on 30 December 2020.

Argentina has also recognized the rights of indigenous peoples in the reform of the National Constitution (Article 75, para 17). It has also enacted a series of specific laws and measures on the rights of indigenous peoples and created the National Institute for Indigenous Issues.[6] It has also been dealing with a series of cases on the rights of indigenous peoples to their ancestral lands in the Inter-American system. There are still challenges involved in effectively protecting the rights of indigenous peoples and it would be desirable to reinforce existing policies both at the national and provincial levels in this regard.

At the international level, the country supported the international decades dedicated to indigenous peoples at the UN level, as well as the Expert Mechanism on the rights of indigenous peoples created by the Human Rights Council. Nevertheless, Argentina had problems in negotiations during the Human Rights Council when a draft declaration on the rights of indigenous peoples was put to a vote in 2006. Unfortunately, issues such as the scope of the terms self-determination and territories forced Argentina to abstain in the adoption of the instrument in the Council. Negotiations were re-opened at the GA level, when the declaration was finally endorsed with some changes, and Argentina changed its position and voted in favor.[7]

  1. See Argentine National Constitution, Article 75 (22).
  2. See Law No. 25,778.
  3. See Law No. 24,820.
  4. See Law No. 27,044.
  5. See Law No. 25,871 and Decree No. 616/2010.
  6. Ministry of Justice and Human Rights of Argentina, “Normativa sobre Pueblos Indígenas y sus comunidades”, available at: https://bit.ly/32GJs7l.
  7. See High Commissioner for Human Rights, “Las cuestiones indígenas. Los derechos humanos y las cuestiones indígenas. Informe del Grupo de Trabajo establecido de conformidad a la resolución 1995/32 de la Comisión de Derechos Humanos, available at: https://bit.ly/3fCLuwC. See also, United Nations High Commisioner for Human Rights, Declaración sobre los derechos de los pueblos indígenas, available at: https://bit.ly/39EREZc.

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