40th anniversary of the European Social Charter
18 October 2001, Strasbourg, Human Rights building
Address by Mr Hans Christian Krüger, Council of Europe Deputy Secretary General
We are gathered here this evening to celebrate the 40th anniversary of the European Social Charter. This treaty was long disregarded but it has now been installed in its rightful place as one of the Council of Europe’s most important agreements and one of its main achievements in the protection of fundamental rights.
40 years ago, the opening of the Social Charter for signature went practically unnoticed. The world was going through a series of major international crises.
Today the Social Charter has a higher profile and it is our responsibility to ensure that this anniversary draws even more attention to it, despite the fact that the world is currently undergoing another dramatic crisis.
The Council of Europe has good reason to be proud of the progress it has made in the last ten years which virtually relaunched the European Social Charter. Over this period it has been able to flesh out and clarify the rights contained in the Charter while there has been a major increase in the number of states which have accepted the treaty. The inevitable result of this is an improvement in the economic and social rights of a larger number of European citizens. This consolidation and expansion of the Social Charter has now established it as a genuine counterpart to the European Convention on Human Rights.
Why have there been so many ratifications in so short a time? 20 in 1997, 30 today! It would be too simple to imagine that it is only because the Social Charter has recently managed to acquire the notoriety which it so sorely lacked in its first thirty years of existence. There are undoubtedly more deep-seated reasons than this. All we need to do is to look at the words and concepts that lie at the heart of the Charter: housing, health, education, working conditions, social protection and non-discrimination. These words and these real-life situations help us to understand its refound force of attraction: how much and how many men and women in Europe today need to be protected from violations of their most natural rights and human dignity.
Ratification of the Social Charter is not a panacea. It reflects the desire and the determination of European states – 30 today, 43 tomorrow – to create, preserve or restore the conditions in which it will be possible to promote the basic standards set out in the Charter.
We are all aware of the social dimensions of the conflicts, crises and difficulties that the world is currently undergoing. We all know how strongly guaranteeing fundamental rights in the social and economic field contributes not only to the protection of human rights as such, but also to democracy and the rule of law in general. This is why the Social Charter is one of the Council of Europe’s statutory goals, which derive from the ambitions of the founding fathers of our organisation. The Charter has been able to adapt to the new challenges of the Council of Europe’s enlargement: therefore it can truly be said to be a treaty for the 21st century.
Of course there is still a long way to go and other changes will be necessary if we wish to continue along the road enabling us to secure effective rights for all Europeans.
I would particularly like to congratulate and thank the governments who have taken part in the efforts to modernise the Social Charter over recent years and those who have agreed to be bound to the treaty and adopt the rights and values it articulates as their own. I would also like to thank the Parliamentary Assembly and the Committee of Ministers, as it was their commitment which made these reforms and this consolidation possible.
The work carried out by the Committees of the Social Charter should not be underestimated and I would like also to thank the members of these Committees for their contribution to the modernization of the Charter.
I would like to emphasise, on behalf of the Secretariat of the Council of Europe how ready and willing we are to go further still and put all our efforts into ensuring that the fundamental rights of all Europeans are effectively guaranteed
Address by Mr Wolf, Permanent representative of Liechtenstein and Chairman of the Committee of Ministers
For a long time the European Social Charter was the Council of Europe’s great unknown quantity. The fact that we are here today shows above all that it has broken free of the restricted circle in which it was formerly enclosed.
Celebrating this 40th anniversary in public is an important step forward, bringing the Charter out of obscurity.
In recent years the Charter has become much more accessible and the aim now is to raise its European profile.
The Committee of Ministers has played a major part in all these changes. In 1997, the Second Summit of Heads of State and Government called for the widest possible adherence by member States to the Charter. This meant two things – firstly that the number of States bound by the European Social Charter should increase and secondly that the States which had accepted the treaty should take more account of what it entailed in practice and, in some cases, rectify situations which were judged to be at variance with it.
Since 1997, the number of States that have ratified the Charter has increased from twenty to thirty and this number will continue to increase in future months and years. The number of signatory States has increased from thirty to forty. It will be forty-two following this evening’s proceedings and soon forty-three, in other words all of the Council of Europe member States will have acceded.
The Committee of Ministers has instigated many changes. Among them was the recent decision to increase the membership of the European Committee of Social Rights from nine to twelve and later to fifteen.
Should we go even further, taking up the Parliamentary Assembly’s ambitious proposal to establish a European Court of Social Rights or incorporate social rights into the European Convention on Human Rights? For the time being the Ministers’ Deputies have opted for caution, believing that the priority is the ratification and implementation of all the rights and new procedures established by the Revised Social Charter. We consider it preferable to implement fully what already exists before moving in the direction of new texts, new protocols or new treaties.
The Committee of Ministers knows that sometimes the supervisory bodies of the Social Charter harry States and push them into changes which they would not necessarily have been prepared to make of their own accord. But this is what makes the Council of Europe so unusual in the human rights field. The Council is not content to make statements and establish principles; it presses States to make genuine changes to abide by the rights established in its treaties.
I would like to say a few words about my own country, Liechtenstein, and confirm to you that changes are currently taking place which I am sure will lead, in the next few months, to progress towards ratification.
The Committee of Ministers welcomes the recent changes and is confident that the European Social Charter is now playing its rightful role, namely that of a major treaty for the protection of European citizens’ most fundamental human rights.
Interview with Mr. Evju, president of the European Committee of Social Rights
What is the place of the Charter in the Council of Europe?
The Charter's intended role, from the outset, was to complete the protection of all basic rights within Europe, complementing the Convention. Early expectations were not met, though, for both political and structural reasons. Politically, a number of the member states failed to ratify the Charter for many years, denying it the same broad base and political authority as the Convention. Structurally, the system established to monitor complaince was complex and slow and operated in virtual secrecy. The process of reform initiated in the early 1990s tackled all of these shortcomings: the original rights were updated and new rights were created in the Revised Charter; procedural reforms were introduced to clarify and accelerate the supervisory process; trade unions and INGOs were, for the first time, given direct access to the process in the form of collective complaints. All of these reforms have now taken effect and have radically transformed the Charter. The political implication of this is plain: all states of the Council now accept the importance of this treaty and all are embarked on the journey towards ratification. The Council of Europe as an organisation stands for the essence and objective of every claim that we call a human right - the dignity of the person. The Charter is central to this vocation.
What does the Charter mean for member States?
The Charter has always found champions among member states. Within the EU, for example, the references to the Charter which are to be found in the Treaties (Single European Act, Treaty of Amsterdam, EU Charter of Fundamental Rights) are there at the behest of states. The long line of countries from central and eastern Europe that have accepted the Charter or are close to doing so points not just to the importance of the instrument, but, crucially, to the substance of the rights it contains: equality, solidarity, fairness, adequate living standards etc. The same can be said of the supervisory process. States are mindful of their legal obligations under the Charter, and are required to take the necessary steps to fully comply with them. However, the real impetus for full compliance is not so much any sanction that may issue in the form of a recommendation of the Committee of Ministers, rather the simple fact that the rights concerned are truly vital. For example, the steps taken in Portugal to eradicate child labour, while prompted in part by the verdict of the ECSR that the situation fell short of the requirements of the Charter, are essentially driven by a shared conviction that children must be allowed to learn and grow. It is this which mobilises a broad coalition of agencies and other actors to effect long-lasting social change.
What is the relationship between the Council Of Europe Charter and the EU Charter of Fundamental Rights?
Until the EU Charter's status has been settled, there cannot be a definite answer to this question. For the moment, they enjoy very different formal standing. The ESC/RC is a binding international treaty, while the EU Charter, for the present, remains more of a political text. That said, the EU Charter has already been pleaded by lawyers before the Luxembourg Court on the question of the right to paid holidays for workers (BECTU case form UK). Looking at the text of the EU Charter, its arrangement of provisions by theme is very significant: it took 50 years to be able to combine all human rights in the same instrument. What is also significant, in political terms so far but perhaps in legal terms later on, is the clear influence of many ESC/RC provisions on many provisions of the EU Charter. Certain states have always been opposed to the idea that reasonable working time or paid holidays for workers were human rights, to give just two examples. Such views are no longer tenable.
I should also mention that the Council of Europe and the European Commission are currently running a joint programme for EU candidate states to assist them in the ratification and implementation of the ESC/RC. This is an important exercise in co-operation towards shared goals.
What about Russia?
Russia signed the RC one year ago and has been working ever since on ratification. There should be no underestimation of the efforts involved for this country. However, the political will to advance towards the RC is plain to see. The Council of Europe, in co-operation with the European Commission, is funding a series of technical initiaitives to prepare for ratification, in particular legal compatibility studies and selection of provisions for acceptance. It is difficult to make predictions as to the timing of the ratification by Russia, but I hope we are looking at a medium term perspective, rather than a long term perspective.
How can an ordinary member of the public find out about his rights under the Charter and what can he do to enforce them?
The first thing to do is to get a copy of the Charter and read through it (!). The Charter exists in many European languages, published by the Council of Europe. The meaning of each provision is fleshed out by the ECSR, which has the authority to interpret the Charter and assess national law and practice in light of this interpretation. Every year, we publish our assessment on a selection of Charter provisions. These conclusions are published in French and English and are immediately available on Internet. There is a series of publications on many different aspects of the Charter, including a short guide to the case law, which identifies the main issues under each provision. A database is under development that will allow all of our work of the last 30 years to be accessed according to various criteria. This will be an extremely valuable tool for all of us.
As for enforcement, the main arena remains national courts. Many states accord supremacy to international law, opening up the possibility for the national judge to draw on the ESC where appropriate. But other states do not have this tradition. At international level, the collective complaints process opens up a gateway to trade unions and NGOs at European level to "claim ownership" of the Charter by bringing complaints. They have the possibility to take "test cases" (Quakers), to raise new problems directly in Strasbourg and have an authoritative resolution of the issue within a brief period of time.