Diversity of social rights in Europe(S) : rights of the poor, poor rights

Abstract

A mainstream view of the rule of the law has denied for a long time that social rights are “real” rights. Referred to as “the rights of the poor”, Social and Economic Rights have been often thought as “poor rights”. Lawyers and judges often distinguish between social and civil rights, albeit human rights have been affirmed, since 1948, to be indivisible and interdependent. The distinction between civic and political rights on the one hand, and economic and social rights, on the other hand, often results in casting aside the social rights and prevent them from being justiciable. However, the academic debate about judicial enforcement of social rights is undergoing changes. The divide between the fundamental rights tends to be questioned by social movements which do not hesitate anymore to take legal actions and claim those social rights (the right to housing, to food, to health care…), as well as by a number of academic researchers who try to rethink the universality and indivisibility of human rights. That trend is followed by judges, international ones as well as national ones, who help with such decisions to strengthen the justiciability, effectiveness and opposability of social rights. The subject of the following contributions is this current trend of justiciability and enforcement of social rights in Europe. This working paper draws attention to and scrutinize the academic debate and the jurisdictional answers concerning the nature and regime of social rights through the use of comparative and international law. Rights are studied in UK (W. Baugniet), Belarus, Ukraine and Russia (U. Belavusau), Spain (M. E. Blas López), Italy, (G. Boni), Germany and Switzerland (C. Fercot), Norway & Scandinavia (T. Harbo), Poland (A.M. Jaroń), Portugal (B. Mestre) and the European Convention of Human Rights (C. Marzo). The Varieties of Social Rights in Europe is evident and reading the following pages will give an impressive example of the diversity of European legal systems.