The European Social Charter

1. The European Social Charter Lund University, 11 February 2014 Ida Elisabeth Koch Guest Professor

2. The reasoning behind the originally limited span of the ECHR was explained in the following way by Teitgen, who was rapporteur for the committee who prepared the first draft to the ECHR: It [the committee] considered that, for the moment, it is preferable to limit the collective guarantee to those rights and essential freedoms which are practised, after long usage and experience, in all the democratic countries. While they are the first triumph of democratic regimes, they are also the necessary condition under which they operate. Certainly, professional freedoms and social rights, which have themselves an intrinsic value, must also, in the future, be defined and protected. Everyone will, however, understand that it is necessary to begin at the beginning and to guarantee political democracy in the European Union and then to coordinate our economies, before undertaking the generalisation of social democracy [emphasis added]. Council of Europe, Cons. Ass., First Session, Reports, 1949, p. 1144.

3. Complaint No. 14, 2003 by the International Federation of Human Rights Leagues (FIDH) v. France, Decision of 8 September 2004, paras 27-29 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. 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. Thus, the Charter must be interpreted so as to give life and meaning to fundamental social rights. It follows inter alia that restrictions on rights are to be read restrictively, i. e. understood in such a manner as to preserve intact the essence of the right and to achieve the overall purpose of the Charter.

4. The European Convention on Human Rights and Fundamental Freedoms (ECHR), 1950 The European Social Charter (ESC), 1961 The Revised European Social Charter (RESC), 1996

5. Ratifications ESC (1961) 10 ratifications RESC (1996) 33 ratifications Protocol on Collective Complaints Mechanism (1995) 15 ratifications

6. RESC, Part 1. The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised (emphasis added).

7. Overview of rights covered by the RESC Right to work Freedom of association Right to collective bargaining Right to health Right to social security Right to housing Right to education

8. RESC Part lll, Article A, Undertakings (á la Carte) 1. Subject to the provisions of Article B below, each of the Parties undertakes: a. to consider Part I of this Charter as a declaration of the aims which it will pursue by all appropriate means, as stated in the introductory paragraph of that part; b. to consider itself bound by at least six of the following nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; c. to consider itself bound by an additional number of articles or numbered paragraphs of Part II of the Charter which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or sixty-three numbered paragraphs.

9. AppendixScope of the revised European Social Charter in terms of persons protected 147. The scope ratione personae of the Charter has been defined in the appendix according to which the Charter includes foreigners "only in so far as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned".

10. Justiciability The notion of ’justiciability’ is commonly used in the discussion of the normative character of socio-economic rights in particular with regard to the question whether or not these rights can be enforced by judicial or quasi-judicial bodies. It does not have an unambiguous meaning and it does not appear in ordinary dictionaries over the English language.

11. COE treaty based monitoring systems The European Committee for Social Rights Reporting system Collective Complaints European Court of Human Rights Individual Complaints

12. ESC-Monitoringsystem