Introduction to the European Social Charter

September 19, 2009

Even though economic and social rights were present in the constitutions of France, Germany and Italy after the Second World War, it was decided not to include them in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This decision was defended by one of the key drafters, Pierre-Henri Teitgen, on the grounds that before attempting to introduce a common system of social protection, it was first and foremost necessary to ensure political democracy in Europe and the harmonization of the economies.[1] Nevertheless, the ESC was adopted in 1961 and these rights gained their recognition.

The Charter lists 19 economic and social rights and employs a formula of obligations on State Parties to move towards their progressive realization. It is divided into 5 parts and also consists of a preamble and an appendix. The preamble of the Charter, as that of the ECHR, declares the objective of the Council of Europe of achieving greater unity between the member states through “the maintenance and further realization of human rights and fundamental freedoms.” It further states the State Parties “are resolved to make every effort to improve the standard of living and to promote the social well-being of their populations by means of appropriate institutions and actions.”

In Part I of the Charter is to be found the list of 19 principles accepted as policy goals by the State Parties. Part II elaborates provisions, in the following order, on the right to work; the right to just conditions of work; the right to safe and healthy working conditions; the right to fair remuneration; the right to organize; the right to bargain collectively; the right of children and young persons to protection; the right of employed women to protection; the right to vocational guidance and training; the right to protection of health; the right to social security; the right to social and medical assistance; the right to benefit from social welfare services; the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement; the right of the family to social, legal and economic protection; the right to engage in a gainful occupation in the territory of other Parties; and the right of migrant workers and their families to protection and assistance.[2]

The undertakings of State Parties are elaborated in Part III of the Charter. The State Parties do not have to accept Part II of the Charter in its entirety upon ratification. However, they must accept ten or more articles, which must include the acceptance of five of the seven key articles, or 45 paragraphs of the Charter.

The supervision procedure of the implementation of the undertakings listed in the Charter is explained in Part IV. The Protocol of 1991 has modified some of the provisions of the Charter and has contributed to a notable improvement in the supervisory mechanism. The monitoring system consists of a reporting procedure, whereby the State Parties are under obligation to submit reports on a yearly basis on how they have implemented the provisions of the Charter both legally and in practice. The reports are examined by the European Committee of Social Rights (ECSR) which consists of thirteen independent and impartial members elected for a period of six years by the Committee of Ministers. The ECSR decides whether a State Party has implemented the provisions in law and practice and publishes its conclusions every year.

In case a State Party does not act upon the decision of the ECSR and amend the situation in order to comply with the Charter, a recommendation is given to the State by the Committee of Ministers. The work of the Committee of Ministers is prepared by governmental representatives of the State Parties, or Governmental Committee. It in turn receives assistance from observers from the European Trade Union Confederation (ETUC), the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the International Organization of Employers (IOE).

Part V of the Charter is dedicated to the final provisions on derogations, territorial application and restrictions. In the Appendix are included clarifications of some provisions of the Charter which were requested by governments in order to clearly define what their obligations entail. Some provisions in the Appendix clearly show the difference between the ECHR and the Charter. “Unlike the European Convention, the rights of the Charter do not apply to every person within the territory of the Contracting Parties.”[3] The scope of the Charter applies only to foreigners who are nationals of other State Parties.

[1] Quoted in Steiner and Alston (eds.) International Human Rights in Context, 794.
[2] Ghandhi, P. R. (ed.), International Human Rights Documents (Oxford: Oxford University Press, 2002)280-286.
[3] Lammy Betten and Nicholas Grief, EU Law and Human Rights (Essex: Addison Wesley Longman Limited, 1998), 47.

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