European Social Charter and European Convention on Human Rights
As stated in the United Nations’ Vienna Declaration of 1993, “All human rights are universal, indivisible and interdependent and interrelated”.
The unity and indivisibility of fundamental rights, including civil and political rights on the one hand and social and economic rights on the other hand, has been recognised since the adoption in 1948 of the United Nations’ Universal Declaration of Human Rights.
When it came to giving binding legal force to the rights in the Universal Declaration, the Council of Europe adopted two separate treaties, at an interval of about 10 years :
- The European Convention on Human Rights (“the Convention”), guaranteeing civil and political rights, was adopted in 1950;
- The European Social Charter (designed in its revised version as “the Charter”), guaranteeing social and economic rights, in 1961.
As a result, the development of the normative systems relating to these rights has followed a different tempo and brought to some substantial differences in the relevant monitoring mechanisms.
The evolution of the Charter and the Convention within the Council of Europe: a comparative overview
Despite these differences, the abovementioned systems are complementary and interdependent and many of the rights protected under the Convention and its Protocols are also regulated, sometimes with greater detail, under the 1961 Charter, its Additional Protocol of 1988 and the Revised Charter, adopted in 1996.
This is the case as regards trade unions’ rights, which are generically protected as a freedom of assembly and association under Article 11 of the Convention, but find a more specific identification of positive obligations to be fulfilled under Articles 5, 6 of the 1961 Charter and Revised Charter and Article 28 of the Revised Charter.
The rights to life and to protection from inhuman or degrading treatment, covered by Articles 2 and 3 of the Convention are also taken into account in several provisions of the 1961 Charter and Revised Charter, dealing for example with concrete measures to be implemented in the working place to preserve the life and health of workers, including in relation to maternity or in respect of young or disabled workers (Articles 3, 7, 8, 15), the protection of women against domestic violence (Article 16), the right to emergency social and medical assistance to anybody in need (Article 13), as well as in relation to sexual or moral harassment (Article 26 of the Revised Charter); more generally, any other right dealing with the protection of human dignity (for example, Articles 26, 30, 31 of the Revised Charter).
The protection of health and of the environment, which under the case-law developed under the Convention has been covered mainly under Articles 2 and 3 or Article 8, has a specific protection under Article 11 of the 1961 Charter and Revised Charter. In the same framework, Article 13 sets criteria for the concrete measures needed to ensure an effective medical assistance.
The prohibition of slavery and forced labour, set forth by Article 4 of the Convention, is also covered by Article 1 of the 1961 Charter and Revised Charter. The procedural rights relating to liberty and security, to fair trial and to the lawfulness of sanctions, covered by Articles 5, 6 and 7 of the Convention, are taken into account by Article 17 as regards the treatment of young offenders and by Article 19 as regards the expulsion of migrant workers. More generally, the requirements of a fair trial and of the effectiveness of remedies, set forth by Articles 6 and 13 of the Convention, are also applicable to any provision of the Charter’s normative system where the availability and effectiveness of remedies is monitored.
Several aspects falling under Article 8 of the Convention (respect for private and family life) form the object of specific rights and concrete positive obligations under the 1961 Charter and Revised Charter, for example as regards the workers’ right to privacy under Article 1, the status of children born outside wedlock under Article 17, or the placement of children under Article 16.
The right to education, set forth by Article 2 of Protocol No. 2 to the Convention is developed in detail in Articles 7, 9, 10, 15, 19 of the 1961 Charter and Revised Charter.
Certain aspects relating to the rights covered by Articles 9 and 10 of the Convention (freedom of thought, conscience and religion, freedom of expression) are taken into account in the Charter’s normative system for example with regard to the right to be informed on health risks, workers’ rights to information or migrant workers’ rights to education in their own language (1961 Charter, Additional Protocol to the 1961 Charter and Revised Charter).
While the Convention protects under its Article 12 the right to marry and under Article 5, Protocol No. 7, the equality between spouses, the rights and obligations of spouses are covered by Article 16 of the 1961 Charter and Revised Charter.
Certain rights related to freedom of movement and expulsion from the territory of a State (Articles 2, 3 and 4 of Protocol No. 4 to the Convention, Article 1 of Protocol No. 7 to the Convention) are covered by Articles 18 and 19 of the 1961 Charter and Revised Charter.
The prohibition of discrimination is set forth by Article 14 of the Convention and in its Protocol No. 12. In this respect, specific provisions of the 1961 Charter and Revised Charter explicit protection against discrimination based on property status (Article 13), disability (Article 15), nationality (Article 19), sex and age (Article 1 of the Additional Protocol of 1988 to the 1961 Charter and Article 20 of the Revised Charter), as well as family status (Article 27 of the Revised Charter). The prohibition of discrimination is specifically ensured by virtue of Article E of the Revised Charter.
Some further connections exist in respect of the right to protection of property, covered by Article 1 of Protocol No. 1 to the Convention and by many provisions of the 1961 Charter and Revised Charter dealing for example with salary, benefits, etc. (Articles 4 and 12 of the 1961 and Revised Charter), as well as with housing evictions (Article 31 of the Revised Charter).
The connections between the Convention and Charter normative systems are taken into account by the European Court of Human Rights and the European Committee of Social Rights in their assessment of the cases submitted to them and the criteria applied are very similar: both the Court and the Committee assess the implementation in practice of the protected rights and check that the restrictions are provided by law and necessary in a democratic society.
Through their ever-developing case-law, the European Court of Human Rights and the European Committee of Social Rights ensure that all human rights – be them civil and political rights or social and economic rights – are effectively protected in a complementary and progressive way.