The Interlink between ESC/RESC and ECHR

1. The Interlink between ESC/RESC and ECHR Lund University, 12 February 2014 Ida Elisabeth Koch Guest Professor

2. 2 (overlapping)Issues 1. Interpretative principles of the ECSR resembles those of the ECtHR 2. Overlapping protection between ESC/RESC and ECHR

3. 1. Interpretative principles of the ECSR resembles those of the ECtHR

4. Complaint No. 8/2000 (forced labour) The Committee states in response that it takes into account of Article 4 para. 3 b) of the European Convention on Human Rights when interpreting Article 1 of the European Social Charter.

5. Complaint No 1/1998 (child labour) The aim and purpose of the Charter being a human rights instrument is to promote rights not merely theoretically, but also in fact. It this regard it considers that the satisfactory application of Article 7 cannot be ensured solely by the application of legislation if it is not effectively applied and rigorously supervised [....].

6. Complaint No. 13/2002 (education) As the European Court of Human Rights has repeatedly stressed in interpreting Article 14 the principle of equality that is reflected therein treating equals equally and unequal unequally.

7. Collective No 14 (2004) Health 27. The Charter was envisaged as a human rights instrument to complement the European Convention on Human Rights. It is a living instrument dedicated to certain values which inspired it: dignity, autonomy, equality and solidarity. The rights guaranteed are not ends in themselves but they complete the rights enshrined in the European Convention of Human Rights [emphasis added].

8. Collective Complaint No 14, 2004 28. Indeed, according to the Vienna Declaration of 1993, all human rights are “universal, indivisible and interdependent and interrelated” (para. 5). The Committee is therefore mindful of the complex interaction between both sets of rights [emphasis added].

9. ECSR and the ECtHR Both treaty bodies consider their treaties living instruments aiming at providing effective human rights protection, and they both apply a contextual integrated appproach including other human rights when relevant. Also, it seems as if the ECSR has really aimed at becoming the sister body of the ECtHR by referring to the ECHR when relevant, and that the Committee has subscribed to the interpretative principles developed over the years by the ECtHR.

10. Summing up. Interpretative Principles It has often been noticed that the Court reads the ECHR as a living instrument and that it has adopted an even very dynamic style of interpretation. The by now quite aged Convention is interpreted in the light of present-day conditions and limited emphasis is accordingly put on the preparatory works. It is also common knowledge that the Court applies a contextual style of interpretation in order to establish “harmony with the logic of the Convention” and that the Court reads the treaty in the light of its object and purpose. Also the principle of effectiveness is usually referred to when discussing the principles of interpretation of the Court indicating that the Court prefers a “practical and effective” solution to one which is “theoretical and illusory”. The ECSR has adopted these interpretative principles.

11. 2. Overlapping protection between ESC/RESC and ECHR Corporal Punishment Conscientious Objectors Labour Rights

12. Corporal punishment [better protection under ESC/RESC] ECtHR, no violation of Article 3 Costello Roberts v. the United Kingdom (1993) Campbell and Cosans v. the United Kingdom (1982) ECSR, violation of Article 17 (domestic legislation must ban corporal punishment), Collective Complaint No. 37/2006

13. 2. Overlapping protection between ESC/RESC and ECHR Corporal Punishment Conscientious Objectors Labour Rights

14. Conscientious Objectors (better protection under ESC/RESC) The ECHR, no violation of Article 4 about forced labour ( N.C. Van Buitenen v. the Netherlands and G. V. the Netherlands (1978) The ECSR, violation of Article 1 of the ESC/RESC about forced labour (Collective Complaint No. 8, 2001

15. Collective Complaint No 8, (2001) The Committee considers that these 18 additional month, during which the persons concerned are denied the right to earn their living in an ocupation freely entered upon, do not come within reasonable limits compared to the duration of military service. It therefore considers that this additional duration, because of its excessive character amounts to a disproportionate restriction on the right of the worker to earn his living in an occupation freely entered upon [....] emphasis added] Violation of ESC/RESC Article 1.

16. 2. Overlapping protection between ESC/RESC and ECHR Corporal Punishment Conscientious Objectors Labour Rights

17. ESC/RESC Article 5Freedom of assembly and association With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.

18. Freedom of assembly and association, ECHR Article 11 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

19. ECSR, Conclusions Article 5, 1970 The Committee also noted that [….] Article 5 does not rule on the admissibility of union security clauses or practices. The Committee considered, however, that any form of compulsory unionism imposed by law must be considered incompatible with the obligation arising under this Article of the Charter [emphasis added].

20. ECtHR Young, James and Webster (1981) However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union. In the Court’s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 [.… ]. For this reason alone, there has been an interference with that freedom as regards each of the three applicants [emphasis added].

21. ECSR, Conclusions, 1981 In accordance with the statement of the European Court of Human Rights in the above-mentioned case [.…] it should be underlined that also as regards Article 5 of the Charter, to interpret this provision “as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee.

22. Summing up ECSR: ESC/RESC prohibits closed shop agreements. Later case law from ECtHR in line with interpretation of ESC/RESC Most recently Sørensen and Rasmusen v. Denmark (2006) gives up the distinction between the positive and the negative In conclusion, taking all the circumstances of the case into account and balancing the competing interests at issue, the Court finds that the respondent State has failed to protect the applicants’ negative right to trade union freedom. Accordingly, there has been a violation of Article 11 of the Convention [….] (para. 75-77) [emphasis added].

23. ESC/RESC Article 6 (1–3) runs as follows: With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1) to promote joint consultation between workers and employers; 2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;

24. The development of the ECtHR’s interpretation of Article 11 in the light of ESC/RESC Article 6 Hence, since 1975 the Court has executed a volte-face in its interpretation of Article 11 of the ECHR. In National Union of Belgian Police and Swedish Drivers’ Union from 1975 and 1976 the Court refused to accept that a right to consultation and to collective bargaining formed part of Article 11 by arguing that the ESC did not provide a ‘real right’ to collective bargaining, and that the ESC allows for reservation with respect to Article 6. Thus, if one were to assume that Article 11 of the ECHR provided a ‘real right’ to consultation and to collective bargaining, this right would be more far-reaching than the right undertaken under Article 6 of the ESC, and the adoption of the latter in 1961 would have amounted to a retrograde step. In the Gustafsson case it seems, however, it seems as if the Court now recognises that the ESC does in fact encompass a right to collective bargaining, and in Wilson, National Union of Journalists & Others the Court goes even further. Thus, the Court seeks inspiration from Article 6 of the ESC [….] in its reinterpretation of Article 11 of the ECHR as now encompassing additional elements of a right to collective bargaining. The development illustrates an initial, although cautious, endeavour to perform an integrated interpretation of the two conventions, and provides the basis for an assumption that the last word has not yet been said with respect to a possible recognition of the right to collective bargaining under Article 11 of the ECHR [emphasis added].

25. Tüm Haber Sen, ECtHR 2006 Although Turkey had not accepted Article 5 of the ESC/RESC the Court found it relevant to refer to this provision as well. According to the ECSR Article 5 of the ESC affords all workers the right to form trade unions and applies to civil servants as well. It argued as follows: The Court can only subscribe to this interpretation by a particularly well-qualified committee. It also notes that Article 5 of the European Social Charter sets out conditions for the possibility of forming trade union organisations for members of the police and the armed forces. By converse implication this Article must be considered as applying without restriction to other categories of State employees. Accordingly, the Court found a violation of Article 11, which is hardly surprising. What is remarkable on the face of it, however, is that the Court applies Article 5 of the ESC/RESC although Turkey had not accepted that provision.

26. Closing remark On the other hand, one can argue that it would be even more remarkable if the Court interpreted Article 11 differently depending on whether or not the Contracting State in question had accepted Article 5 of the ESC/RESC. It is an unavoidable consequence of the integrated approach, and Article 5 of the ESC/RESC has in a way become part of ECHR Article 11.