One of the main obligations in the field of cultural rights is the duty of states to take “deliberate, concrete, and oriented steps as clearly as possible” towards the satisfaction of the obligations derived from those rights as well as the progressive achievement of their full effectiveness.
Although there is a margin of discretion for the state to determine the nature of these measures, the fact is that if the Constitution establishes a reservation in law, then these measures must be given in formal and material law.
It can be considered that, in this precedent, the reservation of the law is used by the Supreme Court as a kind of “Trojan horse” to make effective the various principles of progressiveness. Finally, the Court was not content to observe the legal reforms but examined or compared the remaining administrative-fiscal support mechanisms for the cinema and, based on their ineffectiveness, declared the challenge unconstitutional. reform.
However, perhaps a better interpretation includes the recognition that the principle of reservation of law is more than a formalism or a simple prohibition to regulate certain issues in administrative regulations if their regulation is the exclusive responsibility of Congress.
In the case of human rights, this principle contains two limits on the discretion of the legislator to change the measures to protect those rights and a clear prohibition that the mechanisms for the effectiveness of rights are reduced to administrative regulations, whose permanence and operability remain at the discretion of the public administration.
This does not mean that the public administration is prohibited from identifying and operating measures aimed at protecting human rights; in fact, it is obliged to do so. However, this means that the legislator does not have the power to eliminate the mechanisms for the protection of those rights, pretending that the same or similar measures remain at the administrative level. This is what the reservation of human rights law demands.
Mechanisms for the satisfaction or effectiveness of the use of human rights, such as cultural rights, cannot be considered generous concessions under the discretion of the Federal Executive.
The reservation of law, understood in this way, is presented as a constitutional barrier against such concepts of authority. Therefore, this standard constitutes an important step to prevent the mechanisms for the protection of cultural rights from the mercy of political movements or the whims of the public administration; that is its legal relevance.
