24 Nordisk Tidsskrift for Menneskerettigheter 1 (2006)

handle is hein.journals/norjhur24 and id is 1 raw text is: 










           A SECONDI VIEW FROM ELSEWHERE - THE EU
  DEBATE ON THE JUSTICIABILITY OF FUNDAMENTAL SOCIAL
  RIGHTS AND THE INTERNATIONAL JUSTICIABILITY DISCOURSE



                                 By SANNA HYTTINEN*



Abstract: Article II-112 (5) of the Treaty Establishing a Constitution for Europe strengthens
the rights andprinciples distinction included in the EU Charter ofFundamental Rights. Arti-
cle 11-112 (5) differentiates directly justiciable rights from principles that need additional
action in order to become 'judicially cognisable . Some commentators claim thatprinciples
are meant to refer mainly to social rights. This article discusses two problematicpresumpti-
ons behind this understanding ofthe distinction: the understanding ofthe legal nature ofsoci-
al rights and the concept ofjusticiability. In addition, few possible consequences of the dis-
tinction are discussed.
Keywords: justiciability, social rights, indivisibility, and EU Charter ofFundamental Rights



                                 A. INTRODUCTION

Ever since the birth of modern fundamental and human rights thinking, social rights have cau-
sed a lot of controversy.2 One of the recurrent questions has been whether these rights are jus-
ticiable or nor. During the 1990s, several developments increased our understanding ofthejus-

    1 The first view from elsewhere was presented by Matthew Craven in Matthew Craven: A
View from Elsewhere: Social Rights, International Covenant and the EU Charter of Fundamental
Rights in Cathryn Costello (ed.): Fundamental Social Rights. Current European Legal Protection &
the Challenge of the EU Charter of Fundamental Rights (Conference Proceedings September 2000,
Trinity College, Dublin, I.C.F.L. No. 28 2001), 77.
    * Sanna Hyttinen (b. 1971), LL.M (Turku), E.MA (Padova), Doctoral Candidate, Finnish Graduate
School in Human Rights Research, University of Turku. E-mail: sanna.hyttinen@utu.fi. An earlier versi-
on of the article was presented 6 June 2005, in Tromso, Norway at the Nordic Research Training Course
in Human Rights, Indigenous People's Law and Environmental Law. The author would like to thank the
participants of the seminar, especially the faculty members, professors John Borrows, Malgosia Fitz-
maurice and Martin Scheinin for their valuable comments. Special thanks are due also to the two anony-
mous referees and the language consultant of NJHR who all provided insightful comments. Furthermo-
re, the author greatly appreciates all the help that Mats Lindfelt has provided during the writing process.
    2 For a brief historical overview see for example Antero Jyrinki: Leonista Nizzaan: Eurooppalai-
sen perusoikeusajattelun historiallisia linj oj a in Liisa Nieminen (ed.): Perusoikeudet EU.ssa, (Hel-
sinki, Kauppakaari, Lakimiesliiton kustannus 2001) 3.

NORDISKTIDSSKRIFT FOR MENNESKERETTIGHETER- VOL. 24, NR 1, S. 1 14. ISSN 1503-6480
(C) UNIVERSITETSFORLAGET 2006

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