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Arenas Catalán and Leijten on social rights at the Staatsrechtconferentie

This year’s Staatsrechtconferentie (Constitutional Law Conference) was held at the University of Amsterdam on 13 December 2019 and dedicated to the topic of the Economic Constitution. Dr. Eduardo Arenas Catalán, lecturer at the Europa Institute, presented his paper Where do social rights begin? Dr. Ingrid Leijten, Assistant Professor at the Institute of Constitutional and Administrative Law, presented and discussed the papers of both Arenas Catalán and Dr. Katja Swider (University of East Anglia).

In his contribution, Arenas Catalán provided a critical assessment of the conceptual divide that separates and distinguishes civil from social rights. Arenas Catalán’s paper argues that progress in social rights is not sufficiently linked to equality of condition, and that social rights are limited to entitlements oriented to ensuring survival.

Noting the existence of an overlap between official definitions of social rights and recent jurisprudential developments in the area of civil rights, Arenas Catalán’s paper proposed to supplement the interpretation of human rights law with the principle of solidarity. The conceptual focus on solidarity would allow social rights to acquire a distinctive meaning, exclusive of their own. In this re-conceptualization, social rights would go beyond minimum survival entitlements and would gradually challenge aspects of the public and private divide. Viewed in this way social rights could address the pressing economic gap generated by privileged access to social services run on the basis of market principles vis-à-vis their public counterparts.

In the context of the institutions of the Council of Europe, Arenas Catalán’s paper envisioned that as a result of these conceptual shifts, a more balanced division of labour between the European Court of Human Rights and the European Committee of Social Rights would ensue. As a result, a more genuine discussion on social rights would become possible. At the same time, it argued, important legal techniques such as the margin of appreciation doctrine and the principle of effectiveness could be applied more consistently.

Reacting to Arenas Catalán’s paper, Leijten acknowledged the value of a contribution that rethinks important doctrinal categorizations. Yet, Leijten was cautious about the willingness and possibility of the European Court of Human Rights to opt for a stricter division of labour, where social rights would be considered beyond its competence on the basis of rationae materiae considerations. Moreover, Leijten argued that the role for social rights is limited, and that Arenas Catalán’s notion of a deeper egalitarianism and his critique of the institutional parallelisms generated by the public and private divide could be too political for effective legal operationalization in terms of rights, so that there is reason not to forego indivisible (minimum) protection at this moment.

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