This post is part of a symposium on movement lawyering in times of rising authoritarianism, run in collaboration with the Global Network of Movement Lawyers and Movement Law Lab). (Available also in Espanol and Português).
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Since Javier Milei came to power in December 2023, his government has combined what is now a familiar repertoire for extreme right-wing governments of the “anarcho-libertarian” variety: it has sought to dismantle all vestiges of the welfare State and social protection, while engaging in an authoritarian denial of any dissent and targeting existing rights as part of left-wing ideologies that must be eradicated.
These policies have already had a significant impact, particularly among the most vulnerable groups in Argentina, with the poverty rate recently surpassing 50%. In this brief post, we explain the most significant dimensions of Milei’s program and consider the extent to which existing law can provide protection from this onslaught.
Shrinking the Social State
The authoritarian-neoliberal tandem, discussed by Felipe Mesel and Meena Jagannath at the outset of this symposium, has perhaps nowhere been more evident than Argentina over the past year. Milei’s government has pursued a relentless slashing of social policies, especially with the reduction of the public budget. The adjustment has been accompanied by the elimination of several national ministries (from the 17 national ministries to 7), and the consolidation of several others into the elephantine Ministry of Human Capital (combining Labor, Social Development, Education, Culture, the Social Security agency and fourteen other departments, which include decentralized agencies and public companies).
These closures and consolidations have primarily targeted the social functions of the state. For instance, one of the government’s first actions was to close the Ministry of Women, Gender and Diversity, created in 2019. For the first time since 1983, the year democracy returned in Argentina, there is no specific state agency or body for the protection of women and LGBTI+, as other state agencies related to sexual minorities and gender policies have also been abolished. Thus, the new government disarmed tools of accompaniment, protection, and custody built over decades and to which the Argentine State had committed itself internationally.
Another fundamental aspect of Milei’s political agenda involves the stigmatization and persecution of social organizations and human rights movements. Government officials and the president himself label these organizations as “managers of poverty”—indeed, Milei has claimed that they “steal” people’s incomes to feed “spoils of war of left-wing organizations”—and therefore must be eradicated. In this way, the government has eliminated several networks that allowed the implementation of policies at the territorial level, and in addition, since the beginning of the year, it has withheld 5 million kilos of food that were previously delivered to 40 community kitchens managed by social organizations. (This particular point is currently in dispute before the national courts.)
In addition to directly attacking existing social policies, the government has also pursued a disarticulation of memory, truth and justice policies related to the last military dictatorship. The government eliminated the team that worked with the archives of the armed forces, stopped recording trials against humanity, suspended reparations, paralyzed preservation works at memory sites, and carried out massive layoffs of workers at memory sites. Milei’s government has also sought to rehabilitate the image of Argentina’s last and bloodiest dictatorship — a dictatorship that killed and disappeared 30,000 people — through official speeches that vindicate the clandestine and illegal repression, the praise of military leaders, and prison visits by government officials to repressors convicted of torture and murder. The primary aim of these actions is to cast the pursuit of memory, truth and justice as an excess (with the perpetrators portrayed as victims) and to revive the idea that people who were tortured and disappeared “must have done something” to deserve it.
It is not surprising, in this regard, that the reduction of rights has been accompanied by the persecution and repression of those who take to the streets to protest. Just five days after taking office, the government published an “anti-piquetes” (anti-protest) protocol that severely restricts the right to protest. Under this protocol, any demonstration that involves street or road blockades constitutes a crime, which allows security forces to disperse the protest. The protocol also contains provisions to collect information and then criminalize, persecute and stigmatize the leaders and participants of public demonstrations and the political, social, and union organizations involved. According to data produced up to June of this year, the activation of the protocol has significantly increased the use of police force (pepper spray, batons, tonfas, hydrant trucks, etc.), with 665 people suffering injuries of varying severity in repressive episodes in the City of Buenos Aires. And more than 100 people have been arrested in the context of social protest throughout the country. In some cases, the government has justified the state violence by speaking of “terrorism” and “coup d’état.”
Finally, Milei’s government has promoted a remarkable change in foreign policy, with profound impacts on Argentina’s human rights tradition. The government has distanced itself from positions built transnationally by democratic political parties over the last four decades, in a deliberate attempt to prevent any possible coordination with the Latin American region. At the same time, the government has openly embraced an extreme right-wing global agenda, and Milei has sought to deepen connection and the global far-right through participation in events with Spain’s far-right party Vox, CPAC USA, and CPAC Brazil.
Can the Law Protect Us?
After this brief characterization of Milei’s nascent attempt to transform the state since his assumption of office (a more comprehensive account can be found here), it is worth asking: to what extent does the law provide us with protection? This question is particularly salient given the government’s aversion to carrying out policies through written regulations. Instead, many of its policies are expressed through public speeches and/or on social media platforms, where its views are often disseminated by cyber accounts strongly linked to the government (“trolls”). Likewise, most of the measures that are written have infralegal status (decrees of necessity and urgency, resolutions, protocols, etc.), which makes it difficult to formally question them.
Human rights organizations have law as our field of action. In the current framework, our historical strategies and capacity to use the law are confronted with new challenges and when we go to courts, many problems arise.
The first problem we face is related to jurisdiction. To give an illustrative example: here at CELS — a human rights organization based in Argentina and founded in 1979 by the families of people who had been detained and disappeared — we have spent six months litigating which court has jurisdiction to analyze a law that makes it a crime to block a street during a demonstration. Just a few days after the measure was announced, we filed the first legal action requesting the nullity and unconstitutionality of such a resolution. Since then, however, the action has been passed through countless judges without any of them taking the case and addressing it seriously.
Unlike other countries, in Argentina we don’t have a “concentrated control of constitutionality,” in which a constitutional court directly oversees the constitutionality of legislations and decrees. Instead, to challenge a law, it is necessary to initiate a process (“a case”), on which the court system can rule. In response to our cases against presidential decrees that repeal or substitute other pre-existing laws, the courts have held that they can only analyze these decrees on a case-by-case basis, identifying a person directly affected by that law. Under this logic, no one in Argentina has the legitimacy to discuss general legal norms; and the government continues to use trickery to make judicial control of many of its measures infeasible.
In addition, the government has proposed two candidates for the Supreme Court with worrisome profiles. One of the candidates is under scrutiny for his failure to investigate and his delays in handling corruption cases. The other has openly spoken out against the right to the legal termination of pregnancy (which has been legal in Argentina since 2020) and rejects the constitutional hierarchy of the international human rights treaties included in the 1994 reform. His appointment to the Court would create a significant obstacle to the effective protection of human rights in Argentina. Moreover, the nomination of two male candidates to a Court exclusively composed of men is contrary to the Convention on the Elimination of All Forms of Discrimination against Women, to which Argentina adheres.
In this fragile scenario, where the infringement of rights prevails and where justice institutions fail to provide effective responses, fighting through the courts must be understood as a defensive strategy. It must aim to ensure the compliance with basic rights that cannot be denied. And even where legal claims are unlikely to prevail, bringing such claims is often necessary to shed light on government actions, and ultimately, hinder human rights setbacks.
Furthermore, the law, and specifically popular advocacy, must function as a guarantee to generate resistance. It has to play the role of collaborating and being part of collective processes with other social actors to bring certainty about the uncertainties that the government brings, and to dismantle government discourses that seek to infringe basic and fundamental rights—discourses that lack foundations or evidence, and that threaten the population and generate a feeling of vulnerability and helplessness. In these unstable and dangerous times, popular lawyers must not only provide support and assistance to individuals, but act as a primary restraint on subjugation and provide tools to social movements to offer and exert resistance.
