The welfare state as a legal obligation

Abstract

The twentieth century should not only be remembered for the enormous massacres which it occasioned, but also for the revolution in the culture and protection of human rights which characterised its latter half. Human rights have been recognised as innate and state sovereignty in this field has become ever more limited as human rights protection, initially left to state constitutions, comes to be entrusted to international law and to the supranational authorities created by virtue of international law. If human rights are to be taken seriously, it is clear that the international control of the way states carry out their duties of protection and promotion in this field will become the big problem of the twenty-first century. It is also clear that the international community does not protect human rights as intensively as certain state constitutions do. However, the process of internationalisation of human rights does not authorise individual states to use their treaty commitments to reduce the level of human rights protection guaranteed in terms of their constitutions. Thus, European Law cannot reduce the level of protection which each state assures to its own citizens. This is particularly true in regard to the social entitlements guaranteed by the welfare state. If human rights are fundamental and inviolable, then the welfare state, which is an essential means for implementing these rights, cannot be altered for the worse.