Doc. 8433

2 June 1999

Additional protocol to the European Convention on Human Rights concerning fundamental social rights

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

I.       Introduction

1.        The Committee on Legal Affairs and Human Rights has been asked for an opinion on the Social, Health and Family Affairs Committee draft recommendation, presented by Ms Pulgar, for a protocol to the European Convention on Human Rights establishing a number of social rights. The draft recommendation asks the Committee of Ministers to draw up a protocol guaranteeing different categories of rights:

      —wo       rk-related rights and employment-related rights (here it draws a distinction between individual rights and collective rights);—

      —ri       ghts outside work.2.

2.        I had a lengthy exchange of views with Ms Pulgar and it was agreed that the Social, Health and Family Affairs Committee report would put forward a list of all the social rights which the rapporteur thought deserved to be guaranteed and, in a second part, a list of the rights which she wanted included in a protocol.

II. The distinction between civil and political rights and economic, social and cultural rights

3.        The distinction between civil and political rights and economic, social and cultural rights goes all the way back to the original concept of human rights. It is undoubtedly based on a hierarchy of rights which the drafters of the instruments securing human rights had in mind.

4.        The 1789 Declaration of the Rights of Man and the Citizen is concerned — except for the right of private property in Article 2 — with civil and political rights, guaranteeing four "natural and inalienable rights of man, that is to say, liberty, private property, the inviolability of the person and the right to resist oppression".

5.        The declaration emerged from a particular historical context and had an important symbolic component, signalling the end of absolute power and recognising the sovereignty of the people, of which the basic and paramount right to liberty was a part.

6.        However, the liberty thus proclaimed was not secured to all. Far from it: slavery was not abolished for another half century and more.

7.        The 1950 European Convention on Human Rights was likewise solely concerned with civil and political rights. It was not until adoption of the first protocol, in 1952, that enjoyment of possessions was added to it.

8.        The Council of Europe has two separate sets of rights-protection machinery, one for civil and political rights and the other for social rights, just as the United Nations has two covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The European Convention on Human Rights guarantees the former, the European Social Charter the latter. The Convention has judicial supervision machinery, the charter does not.

9.        The European Convention on Human Rights guarantees only individual rights, which may in some cases be exercised collectively (freedom of assembly and association, as secured by Article 11, for instance).

10.        It was not long before it was being argued in various quarters that human rights are indivisible and universal and that they form a whole. This is a position that takes changes in society into account. Once civil and political rights were perceived to have been achieved and to be reasonably safe, the view began to be taken that to those "core" rights must be added further rights.

11.        This view was confirmed at two recent colloquies held by the Council of Europe. The first, on “The Social Charter of the 21st Century”, took place from 14 to
16 May 1997. The general report on the proceedings stressed the indivisibility of human rights. The rapporteur identified three levels at which this indivisibility applied: in the overall body of human rights, incorporating economic and social rights on the one hand and civil and political rights on the other; in the indivisible nature of the relevant instruments and the need for economic and social rights to be enforceable; and, lastly, in the fact that human rights transcend national boundaries.

12.        However, he recognised that while it was easy to produce a set of agreed aims, it was much harder to agree on methods — to identify the practical obligations that states, employers and funding bodies would have to fulfil in order to achieve the desired result. For over-regulation or poor regulation in economic and social affairs has undesirable consequences.

13.        With regard to the enforceability of economic and social rights, the rapporteur acknowledged that appeal to the European Court of Human Rights was not an option for the time being, and referred to the protection mechanism under the Social Charter and its Additional Protocol providing for a system of collective complaints.

14.        Thus it is quite possible to agree on the need for all rights to be observed — in other words, on their indivisible nature — without going so far as to advocate a single mechanism for ensuring their observance.

15.        The colloquy from 2 to 4 September 1998, entitled “In our Hands: The Effectiveness of Human Rights Protection 50 Years after the Universal Declaration of Human Rights”, also tackled the unavoidable question of indivisibility. One of the discussion groups, chaired by Mr Aalt-Willem Heringa, considered what scope there was for merging human rights mechanisms at European level. While urging recognition of the need to enforce social rights to the greatest possible extent, the rapporteur accepted that to pursue this aim did not imply that all social rights could be fully enforced. Nonetheless, he pointed out that minimum standards could be set for the fulfilment of basic obligations, and cited the examples of banning forced labour and guaranteeing a minimum subsistence income.

16.        Lastly, the rapporteur considered the Social Charter to be an appropriate tool for protecting social rights, provided that its supervisory machinery was further improved. Looking ahead, he thought that a satisfactory long-term solution might be to give a single court jurisdiction for all Council of Europe agreements in the human rights field.

III.       Previous calls for inclusion of social rights in the Convention

17.        In 1978 the Parliamentary Assembly adopted Recommendation 838 (1978) on widening the scope of the European Convention on Human Rights.

18.        The then Legal Affairs Committee rapporteur, Mr Craig, set out the requirements which rights must meet in order to be included in the Convention (Doc 4213).

19.        The requirements were: that the rights must be fundamental ones and generally recognised and that they must be capable of sufficiently precise formulation to give rise to legal obligations on the part of the state rather than merely setting a general standard.

20.        In his explanatory memorandum the rapporteur reviewed rights connected with employment, rights connected with health, social security and social welfare, and educational and cultural rights and even offered formulations of them.

21.        Applying the criteria already referred to, he took the view that the following rights at least lent themselves to consideration for inclusion in the convention:

- the right to choose or accept paid work freely in the light of the individual's qualifications for the work concerned and of reasonable geographical and economic considerations;

- the right of access to free employment services, occupational guidance and occupational training;

- the right to an adequate standard of living in the event of involuntary unemployment;

- the right to a social security system.

22.        He did not suggest including a right to education: adding rights in a further protocol when they were already to some extent covered ran the risk, he felt, of lowering the level of protection if states did not ratify the new instrument.

23.        Nor, for the same reason, did he suggest including trade union rights, which were already partly covered by Article 11 of the convention, guaranteeing freedom of assembly and association.

IV.       Developments in the last twenty years

24.        Since adoption of Recommendation 838 and the Craig report, which even then pointed out that there were differences according to economic and social development, the situation has changed considerably. All in all, the member states were then relatively homogeneous from the economic and social standpoint and the economic crisis had not yet struck, bringing its various consequences, notably unemployment, and the various attempts to remedy them.

25.        Twenty years on, member states' circumstances are highly diverse. It is widely accepted that full employment is now unattainable. This has led the most developed countries to separate the concept of work from that of a minimum living wage for all by introducing systems with a guaranteed minimum income. The view may consequently be taken that it is now more appropriate to guarantee a minimum wage than a right freely to choose one's work.

26.        Even the Social Charter does not ask member states to secure any such right. It asks them to do everything possible to attain full employment as a necessary but difficult objective.

V.       From the desirable to the possible

27.        The Social, Health and Family Affairs Committee report adopts a generous approach which is understandable from the social viewpoint. Clearly, guaranteed social rights are desirable. But it is for the Committee on Legal Affairs and Human Rights to consider which legal instruments can reasonably be utilised to enforce them. Most social rights are formulated as guarantees of specific positive interventions in favour of (groups of) individuals by governments as to, for example, housing, work or health. The classic Convention rights, however, have generally been formulated so as to guarantee to individuals freedom from government intervention which would, for example, curtail free speech. The mechanisms of the Convention have been construed to enforce such negative guarantees, not to enforce positive guarantees.

28.        The Craig report recognised this difference, but tried to lay down criteria for deciding which social rights could be included in the Convention. Are these criteria still valid?

i.       As regards the fundamentality of a right, the Craig report itself recognised the difficulty of defining what makes a right fundamental. It suggested using various kinds of evidence, such as the fact of a right's being recognised in national or international legal instruments. The rapporteur would seem to be making a similar suggestion in paragraph 15.1 of the draft recommendation with the recommendation that the Committee of Ministers "carry out a survey to ascertain which of the social rights guaranteed by the constitutions of member states, and considered as enforceable by national constitutional courts, might be added to the rights protected by the provisions of the European Convention on Human Rights".

ii.       As regards a right's universality, Mr Craig pointed out that social rights were eminently subjective in character, depending on economic developments and the social position, which varied greatly from country to country. He therefore interpreted universality as meaning that the right should be guaranteed to everyone, but this would mean excluding rights guaranteed to particular categories such as women, migrants or the disabled, to which might now be added minorities.

iii.       As regards being able to formulate the right with sufficient precision to give rise to legal obligations on the part of the state, he added that the right must be such that its infringement would affect the individual so that he could claim to be a "victim" within the meaning of Article 39 of the convention as amended by Protocol 11.

VI.       Conclusions

29.        In the light of all the above, I draw the following conclusions:

30.        One may share the Rapporteur’s view that social rights deserve the same recognition as civil and political rights — that is that human rights are indivisible. It is also acceptable to require, as she does, that economic change should be accompanied by the recognition of social rights, and it is certainly wrong to maintain that recognising social rights would hamper economic development. From both the economic and ethical standpoints, that view is mistaken. We need only look at the way anti-democratic parties exploit social difficulties — for which they blame democracy — to realise that such recognition is essential in democratic countries.

31.        However, recognising the indivisibility of human rights does not — for a number of reasons — mean that we should seek to make a single institution (namely the European Court of Human Rights) responsible for guaranteeing them all. On the one hand, imposing a further burden on the European Court of Human Rights at a time when it is just beginning to function and has many new members who need to familiarise themselves with new procedures and working methods could threaten its very existence.

32.        On the other hand, there is the question of how to make social rights enforceable in law. Before that can happen they must be secured in national legislation in such a way that they are enforceable in courts. Therefore, the first step is to ask the member states to make appropriate provision in their domestic law.

33.        At Council of Europe level, we must once again insist on the need to apply the Social Charter and use the new collective complaints procedure, which, as we have seen, was deemed an appropriate means of guaranteeing social rights.

34.        Building on the conclusions of the colloquy on “The Effectiveness of Human Rights Protection 50 Years after the Universal Declaration of Human Rights”, we might also consider making the "judicial authority of the Council of Europe" for which some people are calling — and on which Mr Schwimmer is due to report soon — also responsible for examining the compatibility of national legislation with the Charter.

35.        A further feasible option would be an arrangement whereby states that failed to bring their legislation into line with their commitments had to pay compensation.

36.        With regard to the possible inclusion of collective rights in the European Convention on Human Rights, it should be borne in mind that the Convention was intended for individuals, who have to prove that they have been the “victims” of a violation of their rights. To include collective rights would be to change the nature of the Convention, even though certain individual rights — such as freedom of assembly and association — are necessarily exercised collectively. Think, for example, of the problems that would be thrown up by introducing a right of appeal for national minorities as such.

37.        For the reasons set out above, the following amendments to the draft recommendation presented on behalf of the Social, Health and Family Affairs Committee are proposed:

Amendment A

In paragraph 15.i, delete the word "constitutional".

Amendment B

Replace paragraph 15.iii by the following text:

Amendment C

In paragraph 15.iv delete the words ", on the basis of the above-mentioned surveys, with a view to" and at the beginning of the paragraph insert the words

Reporting committee: Social, Health and Family Affairs Committee

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 7914 and Reference 2220 of 22 September 1997

Opinion approved by the committee on 25 May 1999

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge

1        See Doc 8357.