In response to the increase in poverty and inequality in Latin America, social assistance programmes for the direct support of poor households were introduced in the 1990s. Social assistance in this region is considered to be the primary instrument of social protection against poverty due to the low level of coverage of the working population through social security systems and the large differences in the access to basic services. In fact, a significant proportion of workers and their families are engaged in marginal and informal employment and have no access whatsoever to social benefits.
The development of social assistance schemes is an important issue in the current social law of Latin America states and has become even more important in the context of the corona pandemic. The focus is on the realisation of what is the central goal of any social benefit system: to provide the individual with the necessary means to secure his or her existence. In fact, through international human rights conventions, all compliant states have committed themselves to the provision of basic social services that ensure a minimum subsistence level and a decent life. Even though these services differ in the various national legal systems of the region, many Latin American countries have expanded their social assistance policies since 2010 und have developed non-contributory schemes to provide services to ensure a decent standard of living for their nationals.
However, the structure of the current social assistance schemes exhibits obstacles with a view to the procedural mechanisms for the enforcement of social benefits. The special rules on accessibility, procedure and representation in judicial enforcement may present barriers to effective legal protection. It is also controversial to what extent the traditional procedural mechanisms are appropriate for the enforcement of social benefits and whether the absence of concrete procedural instruments causes difficulties for the beneficiaries.In particular the question whether benefits to ensure a minimum subsistence level are legally enforceable has only been researched to a limited extent for this region. Therefore, this dissertation focuses on the analysis of the legal claim to a minimum subsistence level in Latin America.
First of all, it clarifies historically and theoretically what is meant by the term “minimum subsistence level” in order to illustrate its significance as an instrument of social protection and to provide a dogmatic basis for the investigation. Subsequently, the legal framework at international and regional level that obliges states to guarantee a minimum subsistence level are explained as well as the way in which the Inter-American Court of Human Rights has understood this concept and the rights linked to it.
In addition, the foundations of the social protection systems in Latin America are elaborated, including the concept of social protection, the role of social assistance programs and the institutional structure. Furthermore, the existing social benefits in the Latin American legal systems to ensure a minimum subsistence level are presented and classified on a theoretical basis, whereby only tax-funded social benefits and nationally guaranteed benefits are considered. For this purpose, the dissertation uses the ten Latin American countries with the highest economic performance based on GDP, namely: Chile, Panama, Argentina, Uruguay, Mexico, Brazil, Costa Rica, Dominican Republic, Colombia and Peru.
The last part addresses the question whether these benefits are legally enforceable. Firstly, a review of the instruments for the legal protection of subsistence benefits as well as the causes for its limited enforcement is given. In this context, an evaluation of the argumentation lines of court rulings in regard to subsistence benefits is also carried out. On the basis of the case law in four countries where cases have been submitted to the competent courts and leaving aside social benefits on access to health services, a systematization of the enforceable claims is undertaken. The concluding analysis is intended to determine whether procedural means of enforcing these claims exist and, thus, whether there is a legal claim to a minimum subsistence level.
