Protection Of Social Rights Research Articles

Políticas públicas e ativismo judicial: o dilema entre efetividade e limites de atuação

The current activist stance of the judiciary has generated repercussions in social relations, and specifically in relation to how to see the judicial function within the legal framework. Therefore, the present work perform a bibliographical and documentary research of the subject theme in order to analyze how the judicial activism has been seen by the doctrine and the existing dilemmas regarding the effectiveness of public policies and the limitations of judges facing the constitutional separation of powers and the economic and financial restrictions inherent in the theme. It is a relevant theme, owing to conflicts and debates that arise in society considering the guarantees provided by the Magna Carta and, in particular, the realization of social rights. In this respect, specific questions relating to the protection of social rights decided by the Judiciary and its implications for political arrangement-Brazilian institutional will be analyzed seeking to make notes on the limits of judicial activism in the protection of fundamental rights.

Social protection of foreign seasonal workers: from state to best practice

The employment of foreign seasonal workers is often advocated for filling labour shortages, but at the same time criticised for being prone to exploiting migrants as cheap labour without granting them sufficient protection. The question of social protection rights of seasonal workers thus seems to be a crucial aspect in determining the success of seasonal worker schemes. This article analyses seasonal worker regulations in Australia, New Zealand, Germany and France. First, the level of protection international law provisions have set in place is examined. Second, the social security and work-related rights the four countries grant their seasonal workers are reviewed. Third, this article draws upon soft law, and legally non-binding or not widely ratified provisions in order to determine elements of a comprehensive set of social protection rights for seasonal workers. In conclusion, the practice of making social security contributions for seasonal workers mandatory without at the same time enabling them to benefit from these contributions is criticised. Therefore, it is recommended that a best practice model should provide for equal treatment with nationals in the area of work-related rights but make social security contributions either optional or shorten the qualifying periods, thus enabling workers to benefit from these services.

O direito fundamental à água e sua intrincada satisfação no Direito colombiano

O objetivo deste artigo é determinar se a jurisprudência da Corte Constitucional colombiana acerca do caráter fundamental do direito à água e do dever de satisfazê-lo atribuído aos prestadores desse serviço é plausível. A estratégia para alcançar esse objetivo é uma análise da Sentença T-740 de 2011. Esta Sentença desafia a tendência presente no Direito Comparado que diminui a proteção dos direitos sociais, em razão do esforço dos juízes em levar a cabo uma harmonização entre os direitos sociais protegidos pela Constituição e os princípios reitores da globalização neoliberal. A jurisprudência constitucional colombiana não somente afirma o caráter fundamental do direito à água, como também atribui aos prestadores desse serviço, e não ao Estado, o dever de satisfazê-lo. Essa atribuição implica o fortalecimento dos direitos sociais frente às liberdades econômicas dos agentes do mercado que prestam o serviço de água.

Impact assessment of seasonal labor migration in Australia and New Zealand: A win–win situation?

The employment of foreign seasonal workers is often advocated as a win–win situation for both employers and workers, as labor shortages can be filled and at the same time foreign workers are able to access labor opportunities. However, these schemes are also being criticized for being prone to exploiting migrants as cheap labor without granting them sufficient rights. This article analyzes the impact of seasonal worker schemes in Australia and New Zealand, researching under what conditions these schemes constitute a win–win situation. This article will first outline the main features of the seasonal worker schemes in New Zealand and Australia. Subsequent sections will cover social protection rights, the characteristics of relevant agricultural industries and the interests of employers. The article concludes with an analysis of critical aspects that can be considered as good practice.

Social vulnerability and specificity of legal status of people suffering from rare diseases

The end of the 20th and beginning of the 21st century marks the concept of protection of the rights of minority groups which emphasized the need for providing special additional protection of fundamental human rights and freedoms. Marginalization, stigmatization, social exclusion and vulnerability as a sociological characteristics and discrimination as a legal characteristic are interrelated, conditional and interdependent characteristics of minority groups. In this paper applying sociological and comparative methods we discussed about social status of persons suffering from rare diseases as a minority social group. We indicate vulnerability as the basic sociological characteristic and points out the need for establishing special legal status of persons suffering from rare diseases. Vulnerability can be understand as so-called 'positive labeling' in sociological context in order to exercise the basic social human rights of the minority groups. Special legal status for people suffering from rare diseases means the establishment of mechanisms for additional protection of social rights. Legal 'invisibility' causes social 'invisibility' and vice versa social invisibility is the legal 'invisibility'. It is therefore necessary systemic and interdisciplinary action to regulate and to improve the social and legal status of individuals suffering from rare diseases.

A Room with a View – The Protection of Social Rights in a European International and Supranational Perspective

This article examines the current framework for a recognition of social rights starting from the main relevant Council of Europe and European Union sources. Through a review of the main challenges faced by such a debated category of entitlements in the European context, we will discuss the actual effectiveness of their protection and the potential risks implied in skeptical positions towards supranational commitments perceived as exceedingly pervasive. References to selected case law from the European Court of Human Rights and the European Court of Justice will not only highlight the obstacles related to the enactment of social rights provisions, but also point out the presence of interpretive tools that may actively help in overcoming them.

An Empty Shell? The Protection of Social Rights of Third-Country Workers in the eu after the Single Permit Directive

This article critically assesses the effectiveness of third-country nationals’ social rights protection in the eu following the adoption of Directive 2011/98/eu (‘the Single Permit Directive’). This instrument establishes a single permit for work and residence and sets up a common set of rights for third-country workers legally residing in a Member State. This article argues that despite being an important instrument allowing for a better protection of social rights of third-country nationals, the directive still reveals significant inconsistencies. First, due to difficult negotiations at the Council, the final text of the directive maintains the fragmented approach to legal immigration, excluding several categories of third-country nationals from its personal scope. Second, it also allows Member States the opportunity to impose important restrictions on social rights while implementing the directive. Finally, these restrictions can have considerable implications for the integration of immigrants in the host Member State. Accordingly, the argument is advanced that in reality the protection of third-country workers’ social rights in the eu still largely depends on the Member States’ political will.

The European Committee of Social Rights in the system of International Human Rights Treaty Bodies

The aim of this article is to present the European Committee of Social Rights as a supervisory body in the system of international protection of human rights. To this end, the author elaborates upon the system of treaty bodies in the field of international protection of human rights, both at the universal level within the framework of the United Nations,as well as on the regional plain in respect of the treaty bodies within the Council of Europe’s system. The author pays particular attention to the treaty acquis of the Council of Europe on the protection of social rights and, as such, discusses the European Social Charter system. The author emphasizes the particular role of a specific organ, namely the European Committee of Social Rights, within this field. One of its most notable features is the mechanism of collective complaints (fr. reclamations collectives), which was introduced to the Charter’s supervisory system on the basis of the 1995 Additional Protocol. In the author’s opinion, on the basis of the competence of the European Committee of Social Rights to hear collective complaints, it is arguable that this body performs the function of a quasi-judicial organ in the monitoring process, which distinguishes it from other treaty bodies in the field of international protection of human rights.

Konstrukcja europejskiego systemu ochrony praw socjalnych: przypadek dyrektywy o transgranicznej opiece zdrowotnej

Starting from the idea that the protection of social rights represents a problematic issue in the history of the European social integration, the essay analyses contemporary changes in the EU approach to social rights and policies. It focuses on the Directive 2011/24/UE on cross-border health protection, considered as a potential turning point for the European welfare system.In particular, it is argued that, at their origins, the European Communities did not considered the protection of social rights as a priority, leaving upon the responsibility of Member States the functioning of the Welfare systems. Interest vested upon the construction of a single market, however, did not prevented the European institutions – and in particular the European Court of Justice – from recognising spheres of social protection to European citizens. As a consequence, the European social integration was traditionally characterised by its being considered instrumental to the economic integration and by its jurisprudential matrix. This historical evolution must now be framed in the contemporary context of global economic crisis, as this latter seems to trigger some of the fundamental criteria which, in the traditional Welfare systems, have accompanied the recognition and protection of social rights. On the basis of such premises, the essay analysis the main novelties introduced by the Directive 2011/24/UE on cross-border health protection. The Directive, in fact, is based on a new mechanism of health assistance at supranational level, characterised by three main features: the fulfilment of the rules and principles of the free circulation; the composed nature of the upcoming European Health System, resulting from the integration of the national health systems; the coordination of national administrations and the creation of European networks. Due to its innovative nature, this integrated model of cross-border health protection seems to offer new paths of development to the European social integration. It is in fact both compatible with the increased financial limits posed by the economic crisis and coherent with the respect of national specificities.

Judicial Enforcement of Economic, Social and Cultural Right

Economic, social and cultural right (“social right”) have historically been viewed as distinct in natyre and scope from civil and political right. Rather than being viewed as judicially enforceable rights of immeadiate application, such rights have widely been considered non-justiciable programmatic goals to be archieved progressively within available resources, through political processes. The purpose of this paper is to provide the legal and analytical tools to understand why this dichotomy is false. The paper will consider the international normative framework for the legal protection of social rights, the specific content of state obligations under treaties dealing with such rights, how the international social rights monitoring system functions, and the various obstacles and opportunities currently facing the judicial enforceability of social rights. In every society there is violation which implies its citizen not get proper social right, economical right and cultural right. Proper implementation and adoption of judicial enforcement can reduce this violation rate and established social peace. Step mentioned in the above might not perfect but it might be small starting and ensure social, culture & economical right for the people living in the society.

The Concept, the Comprehensiveness and the Protection of Social Rights in Brazil and Some Characteristics of These Rights in South America

The Concept, the Comprehensiveness and the Protection of Social Rights in Brazil and Some Characteristics of These Rights in South America

Un aperçu de la protection des droits sociaux au Japon

Social rights have been recognized in international law as well as through various domestic laws. However, in comparison to civil and political rights, they are still considered as •half-rights”. Such a differentiated treatment tends to be criticized, by both social movements and doctrinal works, partially followed by international and national jurisprudence. This paper written by Professor Hiroshi Sasanuma, translated into French, offers one among the very few doctrinal works dealing in Japan with the protection of social rights and give a contrasted analysis of the question. If some Japanese legal scholars strongly advocate the indivisibility of human rights, the judiciary still remains hesitant to this regard and judicial decisions are slow to strengthen the •justiciability”, the effectiveness and the opposability of social rights.

European ‘Social States’ and the USA

Constitutional protection of social rights – Differences between European and American legal cultures – National solidarity and market relationships – New Deal and the creation of the American Welfare State – Functions of the American State – The reflection of profound political, moral and societal choices – The concept of Sozialstaat – Positive obligations and negative freedoms – European Social Model – Social services and competition rules – The concept of solidarity and the deregulatory effect of EU law – EU citizenship – Locating of social rights in market integration

Expectativas de equidad y ciudadanía social: Desafíos de legitimación e integración de la democracia chilena.

One of the most important challenges of the current democratic order in Chile refers to the need to satisfy the citizenship’s expectations of equity and fairness. These expectations are fundamentally related with the demand for protection of social rights. The existing institutional framework has not been able to respond adequately to these expectations as a result of the emphasis that public administration has placed on economic growth and rights associated with free entrepreneurship according to individual efforts and abilities. The political system’s requirement for legitimacy requires, however, an adequate response to these yet unanswered expectations. Being able to comply and satisfy them not only fosters the material integration of the population, but also contributes to the generation of symbolic mechanisms of social integration, from which subjects can recognize themselves as members of a community of equals.

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.

Access to Medical Treatment for People Living with HIV/AIDS: Success Without Victory in Chile

Access to health and courts of law have been frequent bedfellows. Experiences from around the world, of which those from South Africa and India are best known, illustrate how courts of law have been instrumental in enforcing the legal protection of social rights. Civil society organizations resort to the judiciary to secure the satisfaction of their rights while often times the executive and legislative branches simply neglect to act, in spite of a country’s international human rights obligations. This paper explores how social rights may be enforced even when courts rule against rights-based claims. Through litigation, civil society groups may push the political process to respond to claims of marginalized groups, and to respond and discuss how to satisfy the demands that cannot always be claimed in court. By looking at the case of public interest litigation in Chile, we discuss how public interest litigation have advanced some of the social justice goals that advocates promote even though courts have failed to respond to such claims.

Social Citizenship: The Neglected Aspect of Israeli Constitutional Law

The legal protection afforded to social citizenship in Israel should be assessed within the more general framework of the recognition and protection of human rights in Israeli constitutional law. For more than forty years after its establishment as a state, Israel lacked constitutional provisions for the protection of human rights, due to social and political disagreements concerning the contents of a future constitution. A political compromise struck in 1950 promised the gradual formulation of Israel’s constitution through a process of enacting basic laws that eventually would be consolidated into a full constitution. But until 1992 the existing basic laws had dealt only with the institutional aspects of this constitution and did not include a bill of rights. Thus Israeli constitutional jurisprudence on human rights was based on an unwritten, or judicial, bill of rights developed by the Supreme Court. The rulings that recognised this bill of rights articulated the rights as deriving from the general principles of the Israeli legal system as well as being inspired by the Israeli Declaration of Independence. This method enabled the recognition of a wide range of constitutional rights but, at the same time, judicial review was limited to administrative actions and could not be applied to primary legislation. With regard to the latter, the unwritten bill of rights was regarded as having only interpretative force. The Supreme Court case law that set forth the judicial bill of rights dealt mostly with civil and political rights. The Court played an important role in the recognition of these rights, especially in the early days of the state when, under the Zionist collectivist ideology, the tradition of liberalism was not well-entrenched, on the one hand, while the legislative and executive protection of social rights was broad, on the other hand. Thus judicial recognition of civil and political rights played a crucial role, given the lack of constitutional or statutory text protecting these rights; social rights, in contrast, were mostly maintained not through a rights mechanism but, rather, by way of the legislation and practices that established them.

Israeli Administrative Law at the Crossroads: Between the English Model and the American Model

Administrative law in Israel is at the crossroads. Historically, Israeli administrative law was born from English administrative law and like its English counterpart was developed against the background of two significant factors: the relative dearth of constitutional law concerning the protection of human rights on the one hand, and the power of the central government on the other. These two factors had traditionally contributed to the centrality of administrative law that underwent a radical change. First, constitutional law is now an independent source for the recognition and enforcement of human rights following the enactment of new basic laws on human rights—Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Second, privatization has changed completely the scope and pattern of activities conducted by administrative agencies in both countries.This Article discusses the developments in Israeli administrative law as a result of these changes. In this context, it also evaluates the potential recourse to American administrative law, which has grown in the context of a well developed constitutional law and a relatively low level of government activity in the economic sphere.The Article argues that the main focus of administrative law—in contrast to constitutional law—should be on the protection of interests (that are not considered human rights), on distributive justice, on procedural justice (in the context of bureaucratic decision-making) and on a broader scope of review (not limited to the protection of human rights), with a special emphasis on the executive branch. In the context of adapting to privatization, it also argues that administrative law should strengthen its focus on the challenge of regulation, on the protection of social rights and on the duties of “mixed” bodies, which are, in many cases, the product of privatization.

L'adh�sion de l'Union europ�enne � la Charte sociale europ�enne r�vis�e

This paper examines the main questions raised by the accession of the European Union to the Revised European Social Charter, under the new architecture of the Union provided by the Treaty establishing a European Constitution. The paper is divided in five parts. The historical background is recalled (I.). The paper then puts forward the recent developments which may give to the scenario of this accession a renewed credency (II.). The question of the external powers of the Union is then detailed (III.). The paper turns, next, to the consequences which would result from the accession of the Union to the Revised European Social Charter, focusing on the status that this instrument would acquire in the legal order of the Union (IV.). Finally, the technical adaptations required for such an accession are examined, as should be contained in the protocol providing for the accession, in particular in order to take into account the principle of autonomy of the legal order of the European Union: the paper proposes a list of the amendments which should be made to 1961 European Social Charter, the 1996 Revised European Social Charter, and the 1995 Additional Protocol providing for a system of collective complaints, in order for the accession of the Union to be compatible with the requirements identified by the European Court of Justice (V.). Altogether, the paper seeks to demonstrate that although the accession of the European Union to the Revised European Social Charter does raise delicate technical and constitutional issues, none of the existing obstacles is insuperable, and they may be overcome if the political will exists to move towards a more coherent and complete protection of social rights in the European Union.

European Norms on the Protection of Human Rights: On the Development of Russian Human Rights Legislation

AbstractThis article examines the problems concerning the observance by the Russian Federation of European conventions, in particular the European Convention on Human Rights and the European Convention for the Prevention of Torture. In recent years, there has been a signifi cant breakthrough in the development of Russian legislation in light of human rights' principles and standards laid down by the Council of Europe. At the same time, the implementation of European standards in the law enforcement area has been carried out at a distinctly slow pace, particularly in relation to the criminal–executive system (where the first tentative steps towards the reform of penitentiary institutions have only been recently taken), the rights of migrants and refugees, the protection of the rights of armed forces personnel, and human rights in Chechnya. This article analyses the problems involved in the legal and judicial protection of human rights in Russia as well as issues concerning the restriction of citizens' rights in special circumstances (such as war or a state of emergency) and the protection of social rights. Lastly, the creation of a unifi ed legal space for human rights in the Russian Federation will also be discussed.