23 March 1999
Additional protocol to the European Convention on Human Rights concerning fundamental social rights
Social, Health and Family Affairs Committee
(Rapporteur: Mrs Pilar PULGAR, Spain, Group of the European People’s Party)
The Assembly strongly reaffirms its commitment to the effective protection of all human rights, and its firm determination to strengthen, today more than ever, social rights.
Economic reforms and substantial social changes currently being carried out in most member states, as well as the dramatic social situation in some eastern Europe countries, make it essential to promote common social values and standards. If democracy is to be firmly rooted in Europe, it is necessary to guarantee greater effectiveness and greater enforceability of social rights.
No efficient protection is possible if social rights are not enforceable. Extending the sphere of jurisdiction of the European Court of Human Rights, to which complaints can be made by individuals, appears to be the most efficient means of improving the protection of European citizens, and of guaranteeing full respect of social rights by states.
A protocol to the European Convention on Human Rights, containing some social rights which are not already enshrined and protected by the Convention, would make it possible to safeguard the interests of the most vulnerable sectors of society.
Guaranteeing the enjoyment and effective exercise of fundamental social rights for everyone should be the challenge of the next millennium for the Council of Europe.
I. Draft recommendation
1. The Assembly strongly reaffirms its commitment to the effective protection of human rights. It observes that there can be no genuine democracy without recognition of all human rights, including social rights.
2. Economic and social rights are inherent aspects of human dignity and are clearly human rights, in the same way as are civil and political rights. These two categories of rights are interdependent and cannot be dealt with differently.
3. Most states are currently carrying out economic reforms and substantial social changes. The east and central European countries, in particular, are going through a difficult period of transition. The globalisation of the economy and of commercial and financial markets, as well as increasing pressure on society on the economic front and from the logic of competition, make it essential to promote common values and standards that can be respected by all European countries.
4. Economic progress is not necessarily concomitant with social progress, but there should be no economic progress without recognition of social progress and social rights. The future shape of society depends on this.
5. The member states of the Council of Europe must continue to co-operate to draw up common social standards, and all must accept similar social commitments. They must be firmly committed to guaranteeing the enjoyment and effective exercise of social rights for everyone. This objective must be an absolute priority for governments.
6. On the occasion of the 50th anniversary of the Universal Declaration of Human Rights, the Committee of Ministers adopted, on 10 December 1998, a declaration in which “the governments of member states of the Council of Europe [reaffirm] the need to reinforce the protection of fundamental social and economic rights (…) which form an integral part of human rights protection”.
7. The Assembly recalls that the European Social Charter is the benchmark for fundamental social rights and one of the keystones of the European social model.
8. The Assembly has been closely involved in promoting this instrument and, above all, in giving it fresh impetus, and in this connection recalls its Recommendation 1354 (1998). It especially welcomes the success of the campaign launched in January 1997 to promote ratification, and the entry into force of the 1995 Protocol providing for a system of collective complaints, and would like to see the European Social Charter and the revised Charter ratified by the largest possible number of states in time for the Council of Europe’s 50th anniversary in May 1999.
9. If democracy is to be firmly rooted in Europe, it is necessary to guarantee greater effectiveness and greater enforceability of social rights. Thought should be given to the reinforcement of existing international legal instruments.
10. In Recommendation 1354 (1998) the Assembly notes that the European Court of Human Rights is “a central authority for the protection of human and civil rights and human dignity” and asks that “the possibility of transferring individual rights from the Social Charter to the European Convention on Human Rights” be examined “in order to create the basis for stricter legal observance”.
11. Extending the sphere of jurisdiction of the European Court of Human Rights, to which complaints can be made by individuals, appears to be the most efficient means – complementary to the supervision machinery of the European Social Charter – of improving the protection of European citizens, and of guaranteeing full respect of social rights by states.
12. A protocol to the European Convention on Human Rights would make it possible to remedy deficiencies and would constitute an instrument for strengthening social cohesion, in particular with a view to putting an end to inequalities and safeguarding the interests of the most vulnerable sectors of society. The elaboration of such a protocol is, for the Council of Europe, the challenge of the next millennium.
13. The Assembly notes that a certain number of social rights are already recognised and protected by the European Convention on Human Rights, in particular under Articles 4, 8, 11 and 14. However, these articles are of limited scope in relation to both violations of the principle of non-discrimination (Article 14) and the recognition of collective rights (Article 11).
14. The Assembly recommends that the Committee of Ministers invite member states of the Council of Europe:
i. to pledge, at all levels, to secure the recognition and immediate and practical implementation of social rights;
ii. to adopt legislation recognising and guaranteeing everyone the full benefit of minimum fundamental social rights;
iii. to sign and ratify the relevant international instruments, in particular the European Social Charter, the revised European Social Charter and the revised European Code of Social Security;
iv. to introduce immediately the legislation and regulations required for implementation of these instruments;
v. to reinforce national legal mechanisms and procedures whereby individuals can satisfactorily claim their social rights in their national courts.
15. The Assembly recommends that the Committee of Ministers:
i. 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. carry out a survey to ascertain which of the rights guaranteed by the European Social Charter and the revised European Social Charter could be considered enforceable and be added to the rights protected by the provisions of the European Convention on Human Rights;
iii. consult the European Court of Human Rights in order to ascertain which of the social rights could be considered as already guaranteed by the Convention, in the light of its case-law;
iv. draft an additional protocol to the European Convention on Human Rights, on the basis of the above-mentioned surveys, with a view to guaranteeing as a first stage some of the following rights:
a. Protection of basic needs
i. the right to housing;
ii. the right to basic social and medical assistance;
iii. the right to a minimum income;
b. Protection in the work environment
i. the right to fair remuneration;
ii. the right to receive regularly and on time wages, pensions and social allowances;
iii. the right to fair and satisfactory working conditions which preserve human dignity (including the right to reasonable working hours, to annual paid leave, to public holidays with pay and to a weekly rest period);
iv. the right to safe and healthy working conditions and to protection from unhealthy and dangerous work;
v. the right to appropriate vocational training;
vi. the right to specific protection in the event of termination of employment (minimum period of notice of dismissal, right of workers dismissed for reasons other than misconduct to minimum compensation, prohibition of dismissal and of termination of employment on arbitrary grounds);
vii. the right of employed women, whether salaried or self-employed, as mothers or pregnant women, to protection;
viii. prohibition of work by children who have not yet reached the school-leaving age;
ix the right to integration in the world of work of persons with disabilities;
x. the right to protection from sexual harassment in the workplace.
16. The Assembly, recognising that this is an ambitious and difficult undertaking, is of the opinion that a progressive approach is required, and that the legal enforceability of all these rights should constitute a long-term objective.
17. Moreover the Assembly takes note that the Committee of Ministers, in the Declaration on the occasion of the 50th Anniversary of the Universal Declaration of Human Rights, agreed to “finalise as soon as possible the text of a legally binding instrument providing for the prohibition of discrimination in all its forms”.
18. It recalls that it has repeatedly urged the Committee of Ministers to elaborate an additional protocol to the European Convention on Human Rights strengthening the non-discrimination clause of Article 14. It underlines that numerous social rights are related to equality. A draft protocol could therefore deal with a number of social rights, such as non-discrimination in respect of access to health care and social services, equal treatment at work and equal remuneration, in particular between men and woman, or non-discrimination in respect of access to social housing.
II. Explanatory memorandum, by Mrs Pulgar
1. Over the course of history, access to democracy and to civil and political rights in Europe has not gone hand in hand with recognition of economic and social rights. Europe first adopted instruments for safeguarding fundamental human rights, guaranteeing public freedoms. The most important of these is undeniably the Convention for the Protection of Human Rights and Fundamental Freedoms, which dates from 1950 and protects rights mainly in the civil and political spheres, and to which the forty member states of the Council of Europe are now parties.
2. Economic and social rights have always met with a degree of resistance on the part of states. Consequently, it was only belatedly that the Council of Europe decided to develop social rights, arranging for these to be promoted in a sequence of instruments: the 1961 European Social Charter, , the 1996 revised European Social Charter, the 1964 European Code of Social Security, , and the 1990 revised European Code of Social Security.
3. The eve of the Council of Europe’s 50th anniversary1 is an appropriate time to raise the question of the effectiveness of human rights in Europe and to give new thought to possible ways of further improving guarantees of human rights.
4. The dichotomy between civil and political rights, on the one hand, and economic and social rights on the other, must be overcome. Distinguishing between different kinds of human rights must not conflict with their indivisibility. The aim of this report is not to compare and contrast different legal instruments which protect human rights, but to point out their complementarity, with the aim of improving protection of the individual.
5. Socio-economic turmoil in central and eastern European countries, unemployment, poverty, population ageing, the dismantling of social security schemes, economic restructuring, globalisation of trade, etc., have brought us to wonder whether each citizen benefits from an adequate protection in order to face these new challenges. In a world where the liberal economy is progressing, the social standards of the past need to be reinforced today.
6. This report is intended to show that there could be no true democracy without maintenance of a high level of human rights and without recognition of a minimum of social rights, and it calls upon the Council of Europe and its Parliamentary Assembly to embark on new initiatives.
B. Promoting the complementary nature of human rights
7. The idea of the unity and indivisibility of human rights, according to which both sets of rights – civil and political rights on the one hand and social and economic rights on the other – are interdependent, is a recurrent one in legal theory, one clearly expressed in the international human rights instruments. The principle of the equal validity of the fundamental rights of the human being is now broadly accepted.
8. Nevertheless, the concept of indivisibility needs to be supplemented by that of interdependence or interaction: one set of rights cannot be enjoyed unless the other is guaranteed. Thus it is clear that human rights are mutually complementary.
9. However, historically the promotion of economic and social rights both in national constitutions and in international instruments has been a late development, and has enjoyed less attention than civil and political rights which have alone been taken to symbolise the achievement of true democracy. The founding of the International Labour Organisation (ILO) and the adoption of the United Nations Covenant on Economic, Social and Cultural Rights were the first international steps in the acknowledgement of social rights.
10. The relevant rules and the machinery intended to ensure that they are complied with were developed at a later stage. The adoption of the European Social Charter, in 1961, came over ten years after that of the European Convention on Human Rights. It is nevertheless a unique text, a full and coherent one, devoted to fundamental social rights, which remains an incomparable standard-setting reference.
11. In Recommendation 1355 (1998) on fighting social exclusion and strengthening social cohesion in Europe, the Assembly calls for the promotion of “a Europe of social rights, these being fundamental rights on equal footing with civil and political rights”. Before that, in Recommendation 1290 (1996) on the follow-up to the Copenhagen Summit on social development, the Assembly took the view that “since Europe has made the most progress in human rights protection, it should ensure that this high level of protection is maintained for civil/political and social rights”.
C. Extending human rights protection as part of the strengthening of democratic institutions
12. In his motion for a recommendation (Doc. 7914), on which this report is based, Mr Bársony states his belief that “democratic stability and cohesion depend on the recognition of a minimum core of fundamental social rights”.
13. The heads of state and government of the member states, in the Final Declaration adopted at the Strasbourg Summit of 10 and 11 October 1997 underlined “the essential standard-setting role of the Council of Europe in the field of human rights”, as well as emphasising that the promotion of human rights contributes to stability in Europe and that social cohesion is an essential complement to the promotion of human rights and dignity. However, the Action Plan accompanying the Declaration merely notes the need to strengthen democratic stability, with an undertaking to “promote social standards as embodied in the Social Charter and in other Council of Europe instruments … “
14. This strategy comes within the framework of the traditional aim of the Council of Europe to strengthen democratic institutions and to protect fundamental freedoms. By harmonising their social commitments, member states help to consolidate democracy, human rights, economic stability and social justice.
15. Social rights constitute a recognition of human dignity both at the workplace and elsewhere. They accompany individuals every day of their existence, from birth onwards, and even before (protection of motherhood), until the end of their lives (protection of the elderly), and they guarantee the protection of every individual against risks such as disease, disability, dependence, old age, unemployment and poverty. This is why they help to combat the undermining of the democratic foundations of our societies, as well as to strengthening democratic stability in Europe.
16. The seminar on “Promoting Social Rights in Europe – the European Social Charter, an element of democratic security”, which took place in Bucharest on 7 and 8 April 1998,2 gave an opportunity to the Social, Health and Family Affairs Committee to turn its thoughts to this matter. It was made clear then that democratic governments, essentially based upon civil and political rights, can be stable only if they are also based on social rights.
17. However objections are still raised to the recognition of social rights. Their disparagers traditionally put forward two sets of arguments, one economic, the other ideological.
1. Social rights and the ideological dimension
18. For a long time, the fragmentation of human rights and their artificial separation into civil and political rights and socio-economic rights was merely a reflection of the bi-polar world which was the legacy of the cold war, as well as of the ideological disputes between communism and capitalism.
19. Social rights were equated with communist ideology and viewed solely through the distorting mirror of collectivisation and central planning. They were regarded as having been laid down in the name of ideology, and not to guarantee the efficient functioning of the market economy nor to compensate gradually for the effects of the evolution of liberalism, as was the case for instance with the development of social rights in the West. In some people’s eyes, advocating social rights is tantamount to pleading the case for a broadly discredited doctrine and lending legitimacy in advance to a dangerous move back towards a past which nostalgics in some countries are now tending to idealise. The rejection of the whole past of the communist countries thus also leads to a rejection of their few positive elements.
20. Furthermore, at the same time, disaffection with social rights is visible in the western World and in the countries of central and eastern Europe which have been won over by liberalist logic of the dominance of the market and the globalisation of trade.
21. A parallel and radically contrasting phenomenon over recent years, thanks to the efforts of NGOs and associations, in particular, to combat poverty and exclusion, has been the development of global concepts, to which broad media coverage is now given, which amount to so many generous slogans, such as the right to housing, the right to a decent life, the right to employment, the right to a minimum wage and the right to equal opportunities.
2. Social rights and the economic factor
22. The social situation in Europe today is a difficult one: social exclusion, poverty, increasing inequalities both at work and elsewhere, new social needs, restructuring of social protection systems, reform of the economic structures of many countries, particularly those of central and eastern Europe, etc. Some states’ enthusiasm for the market economy has been accompanied by a decline in social guarantees.
23. It may be remembered here, for instance, that the Assembly, in Recommendation 1308 (1996) on the World Trade Organisation and social rights, made a very clear link between economic and social development, expressing the view that it would be vain to believe that development would be speeded up if social rights were put off until later, and that, quite the contrary, “ignoring social rights will inhibit economic development”. It expressed the view that “social rights are part and parcel of the rights of the individual and as such must be recognised regardless of a country’s stage of development”.
24. Yet the promotion of social rights inevitably comes up against economic and financial arithmetic, in the name of which it would be absolutely impossible to guarantee a minimum number of rights for each person.
25. For many governments, the social aim of guaranteeing protection to wage earners, retired persons, the unemployed, families, etc., especially through the setting up of insurance systems and the introduction of minimum incomes, is closely linked to economic performance and depends on the rate of economic growth.
26. Social rights are regarded as costly and come up against states’ argument of an absence or lack of funds and of the necessary basic infrastructure. Many states, particularly the countries of central and eastern Europe, claim that they do not have enough of the funds and equipment necessary to fulfil their social obligations. Yet some rights cost nothing to implement, and entail no specific budgetary implication for the state. Hesitation seems to derive more from a lack of political will than from a matter of budgetary feasibility.
27. In contrast, it is clear that the setting up of social insurance systems – covering disease, unemployment and retirement in particular – implies careful decisions on budget priorities. However, these rights with a higher collective cost bring benefits to the country and to the undertaking in the medium and long term, for they guarantee social justice and peace. What is more, if all states enter into similar social commitments, the social rules will, as a result, guarantee fair conditions of economic competition between undertakings and between states. In this context, the development of social rules helps to achieve sustainable economic development.
28. Finally, although certain rights entail a higher cost, it is scarcely disputable that the same applies to civil and political rights. The same arguments were previously employed against votes for women, the right to a fair trial … and, worse still, the abolition of the death penalty.
D. Promoting the enforceability of social rights
29. An effort must be made to make social rights credible and practical, as well as to guarantee their effectiveness and applicability for all. This does not mean merely ensuring that they are proclaimed and promoted, but it also means setting up protection machinery. All citizens must be able to exercise their rights in practice. Anyone whose fundamental rights have been violated must have access to a remedy before a court. A right without a remedy is not a right.
30. However, where social rights are concerned, it is vital to make a distinction. Certain rights, which appear in national constitutions or in international instruments, are tantamount to declarations, corresponding to the commitments entered into by society vis-ŕ-vis its individual members. These rights are general principles for action. They depend on policy and on the chosen political system. Other rights, in contrast, have immediately definable content. Only these latter may be regarded as “enforceable”.
1. The recognition of enforceable social rights at national level
31. Most European states have gradually recognised and developed a set of social rights in their constitutions and their national legislation. Many of these are guiding principles tantamount to pure declarations, and it is generally the legislative’s task to embody them. They have no effects unless legislative measures and regulations have been adopted. As far as implementation of the “right to work”, for example, is concerned, states are not obliged to provide work for everyone, but to take every useful measure to promote entrepreneurial freedom, to regulate dismissals and to combat unemployment. It is only against this background that rights may be regarded as enforceable, supervision being made a responsibility of the national courts, where they may be relied on directly.
32. Supreme courts, particularly constitutional courts, for their part, are made responsible for producing a careful definition of the shape and boundaries of these rights. Nevertheless, there are many means of enforcing one’s rights, varying according to each country’s legal and administrative system.
2. The promotion of social rights at international level: insufficient or non-existent judicial enforceability
33. If we leave aside general international instruments such as the 1948 Universal Declaration of Human Rights,3 and the 1966 United Nations International Covenant on Economic, Social and Cultural Rights,4 there are at least three levels of social standards in Europe:
34. Over 75 ILO conventions applying UN principles are relevant, although fragmentary. Only the most important will be mentioned below:
− the Forced Labour Convention (No. 29), of 1930, and the Abolition of Forced Labour Convention (No. 105), of 1957;
−. the Freedom of Association and Protection of the Right to Organise Convention (No. 87), of 1948;
−the Right to Organise and Collective Bargaining Convention (No. 98), of 1949;
−the Equal Remuneration Convention (No. 100), of 1951;
−the Discrimination (Employment and Occupation) Convention (No. 111), of 1958;
−the Minimum Age Convention (No. 138), of 1973.
35. After the second world war, Europe strove progressively to develop a core of social rights. While human rights and public freedoms were unanimously accepted, no common conception emerged as regards social rights. Yet, filling this gap was indispensable for the progress of political and economic integration.
36. As far as the Council of Europe is concerned, the main legal instruments are the European Social Charter, the revised European Social Charter, the European Code of Social Security and the revised European Code of Social Security. The feature common to all is that they are part of a developing and dynamic process of adaptation to meet the new economic and social challenges of Europe. The Assembly, for its part, has for many years been encouraging their promotion, especially by becoming closely involved in the “relaunch” process and in the campaign for ratification of the European Social Charter.
37. The European Social Charter is the main reference for member states in the social sphere. It is a particularly dynamic instrument of social policy which has helped to harmonise member states’ legislation. It has benefited from a series of improvements, particularly through the addition of new protocols. One, the 1991 Turin Protocol, revised the supervisory machinery, and the other, dating from 1995, came into force on 1 July 1998 and establishes a system for collective complaints. 5This system, which has not yet been tested, represents major progress in monitoring the effectiveness of the Charter, by enabling the social partners and NGOs to participate in the process. Nevertheless, this system is open only to a limited number of applicants, and under no circumstances does it apply to individuals.
38. Regarding the rights enshrined in the European Social Charter, there is no possibility of individual appeal for the time being.
39. Within the European Union, there is no single complete text in the social rights field, particularly that of worker protection, but the consolidated treaties of the European Union recognise the Union’s competence in relation to social rights (Articles 117, 118, 118A and 118B). The European Parliament has on many occasions expressed a desire for a list of fundamental rights to be included in the Treaty (see, inter alia, its resolution adopting the Declaration of fundamental rights and freedoms, of 12 April 1989, its resolution on the Constitution of the European Union, of 10 February 1994, and its resolution on the IGC, of 13 March 1996). However, an Agreement on Social Policy was integrated into Title XI of the Treaty of Amsterdam, under which certain rights (the right of association and the right to strike) are excluded from Community competence. There is also a Community Charter of the fundamental social rights of workers, dating from 1989, which has now been signed by all fifteen member states.6
40. The proclamation of a set of social rights is one thing, while their effective application is another. In this context, it has to be said that the existing legal instruments – European Social Charter, ILO conventions, etc. – are not completely binding. None of the rights which they recognise may be relied on in a court. While they frequently make provision for supervisory machinery to ensure that these rights are suitably applied at national level, they do not encompass any judicial system and make no provision for citizens to claim a violation of their rights and to obtain any kind of compensation. Nor do they provide for any machinery to impose significant penalties, particularly financial ones, on the offending state.
41. Although these instruments are incomparable tools for the promotion of social rights and serve as a model and a legal reference for states, their scope is necessarily limited, and their supervisory machinery is inadequate. Thus we touch here on the crucial issue of the effectiveness and efficiency of such legal instruments, the supervision of which is their weak spot.
42. Now that most European states are undertaking fundamental reforms of their social policy, their social protection systems and their labour standards, an urgent need is arising to ensure that all such reforms fully meet a high level of human rights protection. Thus a single list of effective social rights at European level ought to be drawn up, accompanied by an efficient supervisory system, under which judicial remedies are available in particular to individuals, accompanied by a system of penalties.
43. This is why, in its latest recommendation, No. 1354 (1998) on the future of the European Social Charter, the Assembly emphasised the need to examine “the possibility of transferring individual rights from the Social Charter to the European Convention on Human Rights”, and asked the Committee of Ministers to pronounce, in a medium-term programme, on “the possible introduction of a procedure for the lodging of a complaint by either an individual and/or a government by further studying whether this could be best achieved [within the framework of a European Court of Social Rights] or by integrating some fundamental social rights into the system of the European Convention on Human Rights”.
44. This report is a study of the second of these alternatives and is not intended to pre-judge in any way the validity of the first option, 7 which could be the subject of a subsequent report of the Social, Health and Family Affairs Committee.
E. Defining the content of a protocol to the European Convention on Human Rights
45. The machinery for supervising the existing international instruments in the field of social rights, including the European Social Charter, has severe limitations and contains numerous shortcomings. It is certainly desirable to consider an improvement of their procedures, but it is equally urgent to decide on new approaches and to give thought, inter alia, to a strengthened supervisory and penalty system to deal with violations of social rights or with failures to respect them.
46. In this context, it is necessary to consider whether certain social rights, as they appear in the aforementioned instruments, could be better protected within the framework of the European Convention on Human Rights; this requires consideration to be given to extending the jurisdiction of the European Court of Human Rights to include the sphere of economic and social rights.
47. The entry into force and implementation of Protocol No. 11, and particularly the setting up of a Single Court, will mark the completion of the restructuring of the Court to make the procedure more professional and more rigorous.
48. Having steadily developed wide case-law based on certain provisions of the Convention, the European Court of Human Rights has on several occasions entered the territory of social rights, demonstrating its attachment to the values of the protection of families, children and migrants.
49. So the European Convention on Human Rights certainly does contain provisions affording social protection. The relevant articles of the Convention are:
Article 4 (prohibition of slavery and of forced or compulsory labour);
Article 8 (right to a normal family life);
Article 11 (freedom of association, freedom to form and join trade unions);
Article 14 (non-discrimination).
The Court has also applied the judicial guarantees for which Article 6 provides (right to an effective and fair remedy) to social rights.
50. However, an extension of its jurisdiction makes necessary the preparation, within the framework of a protocol to the European Convention on Human Rights, of a list of the social rights on which applicants may rely in the Court. This list would constitute a higher standard, binding on all the states.
51. A protocol of this kind could include some of the rights laid down in the 1961 European Social Charter and in the revised European Social Charter, so that those rights capable of being enforceable are made enforceable in European law. In practice, not all the rights covered by these texts are positive ones capable of giving rise to practical application or of leading to the imposition of penalties by a court, their very formulation making them not directly applicable as such.
52. Reference may also be made to the provisions of the Community treaties and to the 1989 Community Charter for the fundamental social rights, as well as to provisions included in the above-mentioned United Nations covenants and treaties.
53. So care must clearly be taken not to include in a protocol of this kind general principles such as the right to work, the right to social protection, the right to housing, the right to a decent life, the right to sufficient remuneration, the right to protection against poverty and social exclusion, and so on. On the contrary, the rights of which protection is to be ensured must be as tangible and enforceable as possible, and be defined precisely enough to be relied upon by applicants to the Court.
54. Furthermore, it would be appropriate to make a record of the rights which appear in member states’ national constitutions, and that are considered by national constitutional courts as enforceable.
55. Pending the elaboration of a detailed study on that basis, a number of proposals may already be put forward. These are neither arbitrarily chosen nor ideologically influenced, but based on observation and objective criteria.
56. The Parliamentary Assembly has devoted many years to thinking of the wellbeing of vulnerable groups in society, and adopted a large number of recommendations and resolutions on this subject.8 These texts serve as a source of inspiration for this document.
57. Finally, for many years the Parliamentary Assembly and its Social, Health and Family Affairs Committee participated in the supervisory machinery of the European Social Charter. National reports submitted by contracting states, as well as the critical analysis made by the Committee of Independent Experts and the Parliamentary Assembly, revealed weaknesses – often common to several countries – in the implementation of certain rights by the states. This experience reinforces our conclusions.
58. In the light of the above, some of the following social rights could be included in a protocol, to supplement those which already appear in the Convention:
a. Protection of basic needs
— the right to housing;— the right to basic social and medical assistance;— the right to a minimum income.
b. Protection in the work environment
— the right to fair remuneration;
— the right to receive regularly and on time wages, pensions and social allowances;
— the right to fair and satisfactory working conditions which preserve human dignity (including the right to reasonable working hours, to annual paid leave, to public holidays with pay and to a weekly rest period);
— the right to safe and healthy working conditions and to protection from unhealthy and dangerous work;
— the right to appropriate vocational training;
— the right to specific protection in the event of termination of employment (minimum period of notice of dismissal, right of workers dismissed not for reasons of misconduct to minimum compensation, prohibition of dismissal and of termination of employment on arbitrary grounds);
— the right of employed women, whether salaried or self-employed, as mothers or pregnant women, to protection;
— prohibition of work by children who have not yet reached the school-leaving age;
— the right to integration into the world of work of persons with disabilities;
— the right to protection from sexual harassment in the workplace.
59. The Court will be responsible, within the framework of its case-law, for interpreting these rights and specifying their scope, which it will have to do with varying degrees of flexibility, taking particularly into consideration the specific situation of each state.
60. Lastly, the protocol will have to lay down the procedures for any individual or collective remedy, and to provide for the conditions in which these are to be exercised. It is also desirable for the state to have access to a remedy. The procedure must preserve the right to a remedy of associations, NGOs and trade unions. Finally, the protocol may specifically mention the Rules of Court, where procedural guarantees are concerned.
61. Moreover, current efforts by the Committee of Ministers in the field of non- discrimination to extend the scope of Article 14 of the European Convention on Human Rights should be followed carefully. In the Declaration it adopted on the occasion of the 50th Anniversary of the Universal Declaration of Human Rights, the Committee of Ministers agreed to “finalise as soon as possible the text of a legally binding instrument providing for the prohibition of discrimination in all its forms”.
62. The Assembly has in the past repeatedly urged the Committee of Ministers to elaborate an additional protocol to the European Convention on Human Rights strengthening the non-discrimination clause of Article 14. Such a draft protocol could therefore deal with a number of social rights, such as non-discrimination in respect of access to health care and social services, equal treatment at work and equal remuneration, or non-discrimination in respect of access to social housing.
Reporting committee: Social, Health and Family Affairs Committee.
Budgetary implications for the Assembly: none.
Reference to committee: Doc.7914 and Reference No. 2220 of 22 September 1997.
Draft resolution unanimously adopted by the committee on 3 March 1999.
Members of the committee: Cox (Chairman), Weyts, Ragnarsdóttir, Gross (Vice-Chairmen), Albrink, Alís Font, Arnau, Belohorská, Biga-Friganović, Björnemalm, Böhmer (Alternate: Adam), MM. Christodoulides, Chyzh, Dees, Dhaille, Duivesteijn, Evin, Flynn (Alternate: Vis), Gatterer, Gibuła, Gregory, Gusenbauer, Haack, Hancock, Hegyi, Hřegh, Horniková, Jirousová, Kalos, Kulbaka, Laternser, Lotz, Luhtanen, Lupu, Markovska, Marmazov, Martelli (Alternate: Polenta), Mattéi, Možgan (Alternate: Mozetič), Mularoni, Näslund, Nestor, Niza, Paegle, Poças Santos, Poptodorova, Mrs Pozza Tasca, Pulgar, Raškinis, Regenwetter, Rizzi, Sharapov, Silay, Sincai, Skoularikis, Stefani,. Surján, Tahir, Valkeniers, Vella, Vermot-Mangold, Volodin, Voronin, Wojcik, Yürür.
N.B. The names of those members present at the meeting are printed in italics.
1 The 50th Anniversary of the Universal Declaration of Human Rights will also be celebrated on 10 December 1998.
2 The report of this seminar (AS-Soc (1998) 11) is available on request from the secretariat of the committee.
3 Articles 22 to 25 : right to social security, right to work, right to rest and leisure, right to an adequate standard of living, etc.
4 It came into force in January 1976. An optional protocol laying down the procedure under which individuals may claim to be victims of a violation of their rights to a United Nations body of experts has been in preparation for several years.
5 For a detailed examination, see the report by Mr Haack on the future of the European Social Charter (Doc.7980), submitted to the Assembly in January 1998.
6 Useful reference documents are the report of Ms Oomen-Ruijten on transnational trade union rights in the European Union, adopted by the European Parliament in June 1998 (A4-0095/98), and the annual report on respect for human rights in the European Union (1996), by Ms Pailler, adopted in January 1998 (A4-0034/98).
7 The idea of creating a “European Social Court” had already been raised in the past by the Parliamentary Assembly in Recommendation 839 (1978), but was rejected by governments by lack of consensus. This option thus maintains its intrinsic value, even if its implementation is not a topical question.
8 Among those adopted on the initiative of the Social, Health and Family Affairs Committee, we could quote Resolution 1056 on social policies in central and eastern European countries, Recommendation 1196 on minimum levels of resources, Recommendation 1254 on the welfare rights of the elderly, Recommendation 1336 on combating child labour, Recommendation 1340 on the rights of prisoners and their family, and Recommendation. 1355 on fighting social exclusion.