Justiciability Of Social Rights Research Articles

МІЖНАРОДНО-ПРАВОВІГАРАНТІЇСОЦІАЛЬНИХПРАВ: ПИТАННЯПІДСУДНОСТІ

The purpose of the article is to analyze doctrinal ideas about the nature of human rights, which promoted the idea of the principled unity of rights reflected in international legal provisions, that are strengthening the normative and institutional guarantees of judicial protection of social rights, as well as identifying problematic aspects of the justiciability of such rights is within the focus of the paper. The methodological basis of the research is the general scientific dialectical method of learning social phenomena in their interconnection and development. The formation of guarantees of social rights enshrined in international legal acts, the development of human rights ideology, legally expressed in the principle of the principle of unity of all rights, and judicial protection problematic are studied. It has been proved that the consequence of the international consensus that all human rights are universal, indivisible, interdependent, interrelated, and complementary was the shift of emphasis from discussions about the nature of rights to the types of correlative obligations of the state, aiming at strengthening the guarantees of social rights. It is noted that conventional understanding of the fundamentals of all rights integrates the issue of social rights into the discussions of human dignity, individual autonomy and freedom, which are traditional for civil and political rights. It is concluded that recognition of the principled unity and equal importance of rights transfers the discussion about justiciability of social rights from the presence or absence of sufficient grounds for judicial protection to proper and effective means of dispute resolution. It is stated that effectiveness of the national judiciary as an element of the system of guarantees depends on the ability to provide protection against the devaluation of social rights and the emasculation of their essential content by public regulatory decisions. It is also emphasized that judicious balancing of private and public interests in accordance with correlative positive obligations supports confidence in the judiciary in particular and the state in general.

Principio de Condicionalidad y tutela de los derechos sociales dentro del Ordenamiento Eurounitario. Fundamentos filosóficos de una metamorfosis constitucional

El objeto de la presente investigación se coloca en el contexto caracterizado por la crisis económica global iniciada en 2008. La finalidad principal consiste en analizar el problema del condicionamiento financiero de las políticas sociales redistributivas y del trabajo en el ordenamiento de la Unión Europea: sus efectos en la justiciabilidad de los derechos sociales frente a la Corte de justicia de la Unión Europea y los fundamentos filosóficos de la metamorfosis producida.

NUEVOS HORIZONTES DE LA JUSTICIABILIDAD DE LOS DERECHOS SOCIALES CONTRA EL LEGISLADOR. LA COACCIÓN INDIRECTA

Este ensayo pretende proporcionar argumentos iusteóricos que permitan ampliar la justiciabilidad de los derechos sociales con respecto al legislador: en concreto, en el caso de omisiones totales y, sobre todo, de recortes presupuestarios generalizados en el Estado social. En primer lugar, ilustraremos los presupuestos histórico-conceptuales de la tesis según la cual las violaciones legislativas de estos derechos solo son controlables parcialmente por los jueces. En segundo lugar, nos ocuparemos de los argumentos contrarios más comunes a la justiciabilidad de los derechos sociales y, específicamente, de una cierta concepción de la separación de poderes, en nombre de la cual una plena garantía jurisdiccional de los derechos sociales llevaría inexorablemente a los jueces a sustituir al legislador. La crítica de esta concepción permitirá, por último, reconstruir de manera diferente las obligaciones legislativas en materia de justicia social y proponer instrumentos procesales concretos para su protección, sin transformar por ello a los jueces en órganosde decisión colectiva.

사회권의 재판규범성 : 자유권·사회권 이분론을 넘어

사회권의 재판규범성 : 자유권·사회권 이분론을 넘어

Derechos Sociales Y Justiciabilidad En La Teoría Constitucional De Inicios Del Siglo XXI

This article aims to incorporate a proposal of an “evolved” understanding of social rights from the postulates of neoconstitutional paradigm, current in our times. This will be done through the analysis of the arguments against the justiciability of social rights put forward from the positivist paradigm, whose strength will be tested against theoretical arguments of the neoconstitutional paradigm. We conclude that facing this change of paradigm, the positivist arguments have remained obsolete, generating the necessity of a change of perspective in the theory of the social rights.

Spanish

This paper analyzes the theoretical debate about the justiciability of the Human Rights of Second generation, particularly on social rights. It is here sustained that this justiciability is still pending due to the classic conception of Human Rights as basic fundamental liberties expressed in the traditional classification of Human Rights in generations. In fact, this classification allows the overvaluation of civil and politics rights over social rights. In return, this article advocates a change of paradigm to overcome this classification that translates into division, by prioritizing the interdependence and indivisibility of human rights based on the justiciability of social rights.

Breves notas sobre a justiciabilidade dos direitos sociais: perspetiva de direito constitucional angolano

Breves notas sobre a justiciabilidade dos direitos sociais: perspetiva de direito constitucional angolano

Social rights in the age of proportionality: Global economic crisis and constitutional litigation

Insisting on defining a minimum core content as a prerequisite for the justiciability of social rights is an updated aspiration, which risks the very enforceability of these rights amidst global economic crisis, at the very hour when they are needed the most. Proportionality not only creates the context for litigation, enhancing the justiciability of social rights, but also renders their content concrete by promoting a dialogue between the judge and the lawmaker which enhances their content and upgrades them to a shared narrative with civil and political rights, that of the proportionality idiolect. This paper aims to explore the application of proportionality from the aspect of social rights and also to explore social rights in the light of proportionality review, demonstrating the way in which proportionality allows the construction of the content of social rights on the basis of balancing conflicting interests, primarily by setting a series of ground rules for the lawmaker.

Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?

The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly “a better means”) of realizing rights such as the right to health care, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profiles of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medications or medical treatments by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible.

Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded

The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly “a better means”) of realizing rights such as the right to healthcare, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profile of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medication or medical treatment by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible.

Sovereign Debt and Social Rights-Legal Reflections on a Difficult Relationship

The relationship between the sovereign debt of developing countries and the protection of social rights in those countries has received a lot of attention from an economic, political and moral perspective, but relatively little has been written about the legal side of this relationship. This article addresses the underlying issues from three different angles. First of all, it analyses what is and could be the role of international social rights obligations in the context of debt repayment policies and decisions, and how conflicts between social rights protection and contractual repayment obligations can and should be resolved under international law. A second issue is what the protection of social rights in national constitutions might add to the discussion, particularly with regard to the justiciability of social rights. Thirdly, it will be examined whether and how social rights can be used as a defence in proceedings for debt repayment.

The Influence of the Rulings of the Constitutional Court on the Development of Health Law in Lithuania

This article highlights some recent developments in the constitutional doctrine of the right to health care in Lithuania, and more in particular the impact of the decisions of the Constitutional Court of Lithuania on the development of health law. The right to health care, enshrined in the Constitution, is both an obligation of the state and an individual right. The Constitutional Court has developed a doctrine of the right to health care, as well a doctrine of certain other constitutional social rights, which is based on the understanding of the close interrelation between the different constitutional rights, the principle of indivisibility and equal importance of these rights, and the presumption of justiciability of social rights. The analysis is based on the jurisprudence of the Constitutional Court. Two cases on the disputes of the legal regulation concerning the pharmaceutical activities are presented in more detail.

Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution

The purpose of this article is to bring to international attention and defend the African National Congress's decision to attempt to include certain social rights in a new South African constitution. The authors hope to engender international academic and political debate concerning the limits and possibilities of entrenching social rights in a new South African constitution, as well as to offer thoughts that might be of broader relevance to other societies adopting or renewing their constitutions. Part I outlines two types of arguments against the constitutional justiciability of social rights. Part II addresses the legitimacy of social rights and contends that the exclusion of justiciable social rights from a South African constitution would threaten the realization of social justice in South Africa because of law's constitutive influence on society's and individuals' self-understandings. In Part III, the authors scrutinize and find wanting claims of institutional incompetence, notably claims which deny the capability of courts to impose positive obligations on governments and claims which allege that social rights are too imprecise for adjudication. Part IV discusses the "interdependence" of civil and political rights with social rights and argues that such interdependence helps to challenge further claims that judicial bodies can neither legitimately nor competently scrutinize social rights as a matter of constitutional review. Part V then shifts from international law to comparative constitutional law and invokes emergent jurisprudence of the Supreme Court of India, which is infused with the principle of interdependence, to tell a story of the rhetorical possibilities of constitutionalized social rights. Part VI offers some concrete textual and institutional strategies to minimize the antidemocratic potential of judicial review.