Prohibition of Retrogression : Effectiveness of Social Rights in the Finnish System of Constitutional Review

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http://urn.fi/URN:NBN:fi:hulib-201510133673
Title: Prohibition of Retrogression : Effectiveness of Social Rights in the Finnish System of Constitutional Review
Author: Kirvesniemi, Laura
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingfors universitet
Date: 2015
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201510133673
http://hdl.handle.net/10138/157497
Thesis level: master's thesis
Discipline: Valtiosääntöoikeus
Constitutional law
Statsförfattningsrätt
Abstract: This thesis seeks to define the normative nature and content of the prohibition of retrogression under the rules of international law, as applicable in Finland. Further, this thesis seeks to examine the effectiveness of the implementation and protection of social rights in Finland; in particular, the operation of the prohibition of retrogression in the Finnish system of constitutional review and human rights impact assessment. Under article 2(1) of the International Covenant on Economic, Social and Cultural Rights and article 12(3) of the European Social Charter, state parties are under an obligation to progressively realise a higher level of social rights. The mirror principle of this requirement is the prohibition of retrogression, according to which a state cannot take any unnecessarily regressive steps in the realisation of social rights. Since the start of the European economic crisis in 2009, several European states have resorted to measures that have had a negative impact on the level of social rights in those states. Consequently, various supranational and national judicial organs have been required to examine the justifiability of those measures, thus clarifying the content of the prohibition of retrogression. From these decisions and statements it is possible to derive certain criteria for assessing compliance with the prohibition of retrogression: the regressive measure has to be temporary, it has to be necessary and proportionate, it cannot be discriminatory and the minimum core content of each respective rights has to be protected. The effectiveness of social rights can be seen as a tool for promoting equality, justice and democracy in society, as the effective enjoyment of social rights increases the participation of vulnerable groups within it. Therefore, compliance with the prohibition of retrogression is particularly crucial at times of economic recession in order to protect the rights of these most vulnerable groups. The effectiveness of social rights can be argued to consist of an effective monitoring system within a particular state, effective remedies for an individual, and the commitment of all public authorities to conduct a systematic human rights impact assessment on different levels of decision-making. It is argued that through these mechanisms, compliance with the prohibition of retrogression could be sufficiently guaranteed. In Finland, the monitoring of the realisation of social rights is based on the competence of the Parliamentary Ombudsman, the Chancellor of Justice of the Government and various administrative authorities. Additionally, the supranational supervisory mechanisms, in particular the collective complaint procedure under the Additional Protocol to the European Social Charter, complement the domestic system of monitoring. Reviewing the constitutionality of new legislation has, however, traditionally fallen under the competence of the Constitutional Law Committee of the Parliament. The prohibition of retrogression is mainly of relevance in the ex ante constitutional review by the Constitutional Law Committee of the Parliament. In certain individual cases the prohibition can also be of relevance within the courts. This kind of ex post review by courts could, however, take place mainly through a human rights friendly interpretation or through the enforcement of subjective social rights. Due to the nature of the prohibition of retrogression, the norm should primarily be taken into account by the legislature before any decisions on potentially regressive measures have been made. The operation of the prohibition of retrogression in the Finnish system of constitutional review and human rights impact assessment can be seen as partly ineffective due to the fact that the budgetary decision-making is not subject to systematic human rights impact assessment. This means that while resource allocations in budget decisions may have a regressive impact on social rights, the requirements of the prohibition of retrogression are not being reviewed in this context. This cannot be seen as justifiable, considering that the prohibition of retrogression requires a state to conduct a sufficient analysis on the potential impacts on social rights and to explore alternative options in order to avoid negative impacts on the rights of the most vulnerable groups in the society.


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