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Sacha Garben

Fundamental rights have been, and continue to be, pivotal in defining the relationship between the international, European Union (EU) and national legal orders. However, the position of fundamental social rights in this respect has remained slightly overlooked. This is all the more remarkable considering that over the past decade, a number of high-profile frictions have appeared between national, EU and international social rights, particularly concerning the European Court of Justice's case law in the Viking and Laval cases and as regards the austerity measures taken in the context of the eurozone crisis. The present article maps these frictions, considers to what extent they constitute problematic conflicts that challenge the international rule of law, and discusses the possibilities for resolving them. It is contended that it should not be necessary for the EU to accede to the European Social Charter or International Labour Organization Conventions, which would pose problems for the autonomy of the EU legal order. Instead, it is argued first that most problems can be avoided by underlining the individual and collective responsibility of the Member States more strongly; and second that the role of the judiciary, and of fundamental rights more generally, should be reconsidered with care to allow sufficient space for the democratic process to define the appropriate level of social protection in relation to other societal values and rights, including economic ones.