Verpflichtungsgrad sozialer Menschenrechte. Handlungsspielräume der nationalen Sozialpolitik vor dem Hintergrund von Art. 9 UNO-Pakt I

Economic, social and cultural rights are legal rights, although their legal content may not be obvious. This article argues that even a rather blank formulated human right like the right to social security (Art. 9 ICESCR) contains precise legal duties of the state and individual rights; it follows a dogmatic approach to explore the legal potential of Art. 9 ICESCR for industrialized states. Social security is seen in the context of public international law. Especially the normative framework adopted by the International Labour Organisation (ILO) shapes the right to social security. Thus, legal duties emerge on two levels. On a first level, states are responsible for maintaining and progressively improving a system of social security. On a second level, their international duties are transformed in relationships towards individuals. In realizing their first-level-responsibility, states found a national system of social security that creates concrete legal relationships. Here, the right to social security underlies national law and may arise to a justiciable guarantee of acquired rights in national social security law. As an individual protection against interference in acquired rights, the right to social security becomes concrete in combination with the limiting clause (Art. 4 ICESCR) and the prohibition of discrimination. The comprehensive responsibility for social security and the individualized duties of non-interference and of non-discrimination form a normative framework for industrialized states which leaves the national legislation a certain margin of appreciation in reforming social security law, at least in some areas. Individual positions are directly protected by Art. 9 ICESCR and the national margin of appreciation is noticeable reduced by international law.