Social rights and the rule of law - Maastricht University


Reference


Title:Social rights and the rule of law
Author(s):Herninga, A.W.
Type:article
Year:1997
Abstract:The author intends to show from different points of view the indivisibility of all human rights, civil and social; the first point of view will be the European Convention of Human Rights. The reason to start with a brief expos on the social dimensions of the Convention is that the case- law of the Court is the best illustration of the two points author has been making. 1. the feasibility to define individual and justiciable social rights; and 2. the indivisibility of the two sets of rights civil and social rights. Subsequently author will shift the perspective and analyse the Charter itself, but taking advantage of the approach resorted to by the Court. In that respect author will show that the Charter, as is the case with respect to the Convention, is based upon general principles, but at the same time that it is very well possible to deduce justiciable norms and more concrete obligations from these principles. And to go even further, this approach is what lawmaking is about. Thirdly author will discuss some arguments in the context of social rights, being that these rights cannot claim universal recognisance because they supposedly impose a specific type of economic order, which would make social rights not real rights, i.e. not rights anyway that are neutral and leave politics in general and budgetary politics and economics in particular to the elected politicians. Author will show that this view is also unfounded in the perspective of the Charter, which is not, nor does it claim to be, a treaty on economic policies leaving no room for manouvering to politicians. Instead the Charter is concerned with fundamental and elementary rules on equal treatment, equal respect and due attention for human dignity, limiting national politics but certainly not fully defining these national policies. It poses a progressive minimum.
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