BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

As a legacy of the German legal system, the prohibition of retrogression 30 was conceived on the basis of an extensive interpretation of the right to property (Article 14 of the Grundgesetz ), according to which social legal benefits recognized or conferred by law and, of a patrimonial character, being incorporated to the legal patrimony of the holder. In the Brazilian case, the constitutional plan does not contain the necessary legal treatment on the subject of limits and limits to the limits of fundamental rights, presenting only the provision of legal reserves and the stony clauses. Sarlet, 31 however, using the majority doctrine, argues that the legal system sheltered the prohibition of retrocession, as an implicit, not express, principle. This is because the canon of progressivity in economic, social, and cultural rights was recommended to countries by the United Nations’ International Covenant on Economic, Social and Cultural Rights 32,33 adopted in 1966, and by the American Convention on Human Rights, 34 commonly known as the Pact of San José. In the wake of the Covenants, Bühring 35 sustains that the principle of the prohibition of retrocession is directly related to the protection, promotion and progressive realization 30 Acording to Sarlet: “The Federal Constitutional Court has accepted this view, considering that the protection by means of the guarantee of property is presupposed by the circumstance that the holder of the right is assigned a legal position equivalent to that of private property and that, in the case of a any compensation, there would be a frontal collision with the principle of the rule of law, which, especially by including in the scope of protection of the guarantee of the ownership of economic rights in the sphere of social security, ended up leading to an extension of the concept of property in force in law private, from which the constitutional concept of property came to be almost completely disassociated.” (SARLET, 2008, p. 18). 31 SARLET, I. W.: A eficácia dos direitos fundamentais: uma teoria geral dos direitos fundamentais na perspectiva constitucional. 12nd. edition. Revised, updated and expanded. Porto Alegre: Livraria do Advogado, 2015. 32 ICESCR (UnitedNations International Covenant on Economic, Social andCultural Rights) – “ Article 2-1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.” (BRAZIL. Decree No. 591 of July 6, 1992). 33 ICESCR (United Nations International Covenant on Economic, Social and Cultural Rights) – “ Article 4 – The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” (BRAZIL. Decree No. 591 of July 6, 1992). 34 American Convention on Human Rights. Article 26: “Progressive Development – The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.” (BRAZIL. Decree n. 678, dated November 6, 1992). 35 BÜHRING, M. A.: Direito Social: proibição de retrocesso e dever de progressão. In: Revista Direito &

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