The European Social Charter has often been the poor relation of the European Convention on Human Rights. That may be changing.
The system associated with the European Social Charter (ESC), an instrument of the Council of Europe (CoE), is at a critical juncture. Sixty-three years after the adoption of the original charter in 1961, almost 30 years since the 1996 revised charter, updated and expanded, and 25 years after the establishment of a mechanism for collective complaints, the system is finally coming into its own.
The ESC has often been referred to as the ‘social constitution’ of Europe. Social rights, the charter and its associated enforcement mechanisms have however historically been marginalised within the 46-member-state CoE. The organisation’s strong—indeed near-exclusive—focus on the predominantly civil and political rights in the European Convention on Human Rights (ECHR) and on the work of the European Court of Human Rights has left the charter system neglected, short of resources and state engagement.
Given the ‘social rights gap’ which the ESC fills in European human-rights law, this has been bad news for the protection of those rights in Europe. The ECHR does include aspects related to social rights, such as the rights to education, family and private life and property. But the court has been very slow to engage with these elements in its jurisprudence—particularly where states have failed to take positive measures vital to ensuring social rights-related protections.
The European Union’s 2017 European Pillar of Social Rights does not confer rights that are legally binding under international law. And though the provisions set out in chapter IV of the EU Charter of Fundamental Rights, on ‘solidarity’, clearly draw on ESC standards, it remains unclear whether these are enforceable rights or merely ‘principles’.
In contrast, the ESC, in both its 1961 and 1996 iterations, sets out a wide range of fundamental social rights related to employment, housing, health, education, social protection and welfare. These rights are more detailed and extensive than in equivalent United Nations treaties, including the International Covenant on Economic, Social and Cultural Rights (to which a complaints mechanism was only attached in 2008). They are legally binding under international law and are applied and monitored by the European Committee of Social Rights, through its reporting and collective-complaints processes.
Since 1998, the committee has determined more than 190 collective complaints—far more social-rights complaints than any comparable international or regional court or quasi-judicial body. As part of its reporting process, it has carried out many thousands of detailed reviews of state efforts (or failures) to implement charter rights in law and in practice. Yet far from this ‘sister instrument’ of the ECHR being accorded the attention and respect that would be expected, the charter (and its associated organs) has frequently been treated as a very distant cousin of the CoE human-rights ‘family’—rarely invited to family events and ignored even when present.
Tide turning
Very positively though, the tide is turning. In September 2022 the CoE’s Committee of Ministers, representing the member states, adopted a package of reforms to the reporting process. The run-in to these reforms saw significant state-party focus on the ESC and generated interest in and energy around the system.
There has also been substantial and consistent growth in attention to the system from other stakeholders over the last decade: social partners, international and national non-governmental organisations, UN human-rights actors and others. Among other things, this has been reflected in an ever-growing number of collective complaints being lodged and ‘parallel reports’ submitted, as part of the state reporting process. Awareness of the charter is steadily rising in civil society and among academics and policy-makers (albeit much remains to be done in this area).
The ‘unloved distant cousin’ is now also being embraced by the CoE at the highest political level. In May 2023 the charter was accorded a key place in the Reykjavik Declaration, which emerged from the 4th Summit of Heads of State and Government of the CoE. In what is effectively a roadmap for the organisation in the coming years, the leaders stated that ‘[s]ocial justice is crucial for democratic stability and security’ and reaffirmed their ‘full commitment to the protection and implementation of social rights as guaranteed by the European Social Charter system’.
Last month the Committee of Ministers adopted a decision ‘underlining the importance of the European Social Charter and its monitoring procedures for the protection of social and economic rights of citizens across Europe’—a far stronger statement of support than has emerged from other ministerial sessions. These signs of political recognition have been complemented by an increase in resources for the ESC system.
Nor is the growing profile limited to the CoE context. The La Hulpe Declaration on the future of the European Pillar of Social Rights, adopted in April under the Belgian EU presidency, includes a commitment to building on the ESC in pursuit of a social Europe, affirming that ‘in promoting social rights, the EU should further enhance the cooperation with the CoE and promote the European Social Charter’. This is a far cry from the declaration emerging from the 2021 EU Social Summit in Porto, which made no reference to the ESC when addressing the implementation of the pillar.
Vital link
The vital link between democratic sustainability and security and social rights has become ever clearer amid rising populism across Europe. The European Parliament elections signalled a solid shift to the far right across much of Europe—undoubtedly at least partly rooted in widespread public concern about falling standards of living. Governments can and should embrace the charter as a crucial tool to inform and recalibrate their work, ensuring that democracy and governance are not undermined by inadequate protection of social rights.
The ESC provides a fundamental framework for decision-making on law, policy and resources focused on housing, health, work and social protection. It mandates putting the needs of those at the sharp end of social and economic inequality front and centre. The coming high-level conference in Vilnius on the charter is a key opportunity for states to demonstrate commitment to those rights that are directly linked to the survival, development, wellbeing and flourishing of people in Europe, as well as to the system that protects them.
The people of Europe deserve no less.
This is the second of a series of articles on the European Social Charter in the run-up to the conference in Vilnius
Aoife Nolan is president of the Council of Europe European Committee of Social Rights, the leading European monitoring mechanism on social and economic rights. She is professor of international human-rights law and director of the Human Rights Law Centre at the University of Nottingham.