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The Justiciability of Indivisible Rights

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By discussing the issue of justiciability as a general human rights issue the article seeks to get closer to an understanding of the legal implications of the notion of the indivisibility, interdependence and interrelation of all human rights – economic, social, cultural rights and civil and political rights. The article departs from the tripartite human rights obligation – to respect, to protect and to fulfil – and argues that the obligations to respect and to protect all human rights give rise only to few controversies as regards justiciability. The article goes on to underline that civil rights are fulfilled by means of social initiatives, and that civil rights in fact become social rights at the fulfilment level. The obligation to fulfil human rights marks the transition from a state governed by law paradigm to a welfare state paradigm, since not only social rights but also civil rights are resource demanding (and subject to progressive realization). Furthermore, since the obligation to fulfil human rights is usually worded with little precision, this obligation turns out to be the one that gives rise to most scepticism as regarding justiciability. The integrated human rights approach undertaken by the European Court of Human Rights and the Human Rights Committee disproves, however, the traditional understanding of social rights as non-justiciable at least when they appear as fulfilment elements in civil rights. This is one good reason to exploit the potential of the integrated approach even though it does not provide general conclusions on the justiciability issue. The study of the integrated approach gives a new perspective on the discussion of the remaining justiciability issue, i.e., fulfilment of social rights when they appear disconnected from civil rights. This latter subject is, however, far from being exhausted.

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/content/journals/10.1163/090273503322427182
2003-02-01
2016-12-03

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