Reinvigorating the European Social Charter

On May 13th, the European Committee of Social Rights published its decision on Amnesty International v Italy, a complaint submitted in 2019 following years of research. The committee unanimously found that Italy had breached the rights of Roma with continual forced evictions, segregated and sub-standard housing and unequal access to social housing. Such serious findings should lead to immediate changes at the national level to put an end to recurrent and indeed similar violations.

So it is concerning that such a groundbreaking decision, adopted last October and notified to the parties in mid-January—subject to confidentiality—was published only in May, in line with the committee’s rules of procedure. Delaying for several months the communication of such a decision ignores the plight of those whose rights have been violated, many of them children, and prolongs the injustice, often compounded in this case by difficulties in securing access to education and healthcare. The victims should be at the centre of the discussion in Vilnius and of any future reforms.

Automatic publication of decisions following their adoption by the European Committee of Social Rights would generate timely publicity and public debate within the member state involved, including the legislature and the executive, to kickstart implementation. The current process not only lacks transparency but also the urgency reasonably expected—not least by victims—from any redress mechanism. It also reinforces a sense of secondary status vis-à-vis the European Convention on Human Rights: the European Court of Human Rights publishes immediately its judgments on cases taken under the convention.

Further commitments

Also unlike the European Convention on Human Rights, Council of Europe member states can accede to the charter while declining to endorse particular provisions. This à la carte approach has led some states to cherry-pick which rights obligations they prefer and so to incoherent and uneven protection across Europe of social and economic rights. This reinforces their perceived low status compared with civil and political rights, contrary to the principles of universality, indivisibility and interdependence of all human rights. The high-level conference should promote commitments by member states to accept the maximum number of charter provisions.

Four members states—Liechtenstein, Monaco, San Marino and Switzerland—have still failed to ratify the charter at all, while another seven—Croatia, the Czech Republic, Denmark, Iceland, Luxembourg, Poland and the United Kingdom—have failed to ratify the revised charter. This 1996 instrument expands on and elaborates the rights set out in the 1961 treaty, including guarantees to protect housing, enhance workers’ rights and safeguard against poverty and social exclusion. Full ratification of the revised charter also allows a streamlining of the two treaties’ monitoring systems.

Those member states that have not yet done so should ratify the revised charter. In future, any state wishing to join the Council of Europe should be required to do so as a precondition, preferably accepting all provisions on ratification. Any reservations or derogations should be regularly reviewed.

Only 16 out of 42 states party to the charter have accepted the collective-complaints mechanism, which was introduced in an additional protocol in 1995. Big-state non-ratifiers include Germany and the UK. Again, this leaves a significant deficit in protection and accountability for most of Europe’s population—denied scope to pursue collective redress for social-rights violations—which member states must fill by agreeing to be subject to the procedure.

At the request of the complainant, or on its own initiative, the European Committee of Social Rights can, under its rule 36, prescribe immediate measures to ‘avoid irreparable injury or harm to the persons concerned’. Yet inaction by national authorities on these measures bears hardly any consequences, as we saw in our complaint against Italy. More transparency about this process and how states are encouraged to execute immediate measures would be helpful for all actors seeking social justice.

Role of civil society

The role of civil society in the charter system, notably through the collective-complaints mechanism but also through the submission of information to the committee’s regular monitoring, has been critical to its developing jurisprudence and therefore to the realisation of social and economic rights across Europe. In turn this has strengthened non-governmental organisations in this arena at national and regional levels.

The high-level conference should encourage state parties to recognise, under article 2 of the additional protocol, the right of national NGOs to lodge collective complaints—only Finland has done so. The NGOs that are often best placed to provide relevant evidence concerning potential human-rights violations in their own countries and represent the interests of victims are left unable to do so, unless they can collaborate with international NGOs such as Amnesty International, transnational trade-union organisations and others with the status to bring complaints. 

Civil society should also be allowed to engage in the implementation of committee decisions. To ensure the complaints procedure is more effective and transparent, NGOs should be able to communicate with the Committee of Ministers of the Council of Europe—its sovereign body representing the member states—on the effectiveness of the measures proposed by the responding government and by the Committee of Ministers to address the violations, in similar terms to the supervision of the execution of judgments of the European Court of Human Rights.

Effective participation of civil society in the charter processes also requires recognition of its capacity constraints, especially where research leading to a collective complaint is conducted on complex structural issues such as discrimination against minorities in vulnerable situations, including Roma or migrants. Speedier processing of complaints would reduce the burden on complainants to continue providing periodic updates on the changing situation of victims or on evolving policy and legal frameworks.

Still not a reality

Despite the contribution of social and economic rights to socio-political stability, their realisation is still not a reality for many across Europe. This is evidenced not just by the committee’s decisions and conclusions but also by many reports from two other arms of the Council of Europe, the Commissioner for Human Rights and the European Commission against Racism and Intolerance—even by the way the jurisprudence of the European Court of Human Rights increasingly impinges on social rights. This stems from states’ non-commitment to the charter, through opt-outs from relevant provisions and systematic non-compliance with existing obligations.

It is high time for the undermining of social rights to come to an end. There must be greater parity between the systems encompassing the European Social Charter and the European Convention on Human Rights. This entails strengthening the justiciability of social rights, via the collective-complaints mechanism and increased acceptance of the charter, while emphasising the significance of relevant rulings by the court.

The monitoring process by the Committee of Ministers should be an opportunity to publicise the measures needed to enforce the decisions of the European Committee of Social Rights— on which the Committee of Ministers can make a recommendation to a member state—and ensure discussion at the national level. Parliaments and regional and local authorities are all key to the effective implementation of such measures, and this also needs to be discussed in Vilnius. Human-rights accountability should not be seen as a burden but a means of better governance and policy-making.

Beyond the coming high-level conference, similar thematic events involving social-rights ministries—housing, health, social protection and so on—should also be convened periodically, to draw greater attention to the rights guaranteed under the charter. Discussions could focus on the shortcomings in protection of those rights and how effective implementation of the conclusions of the European Committee of Social Rights, and of other relevant Council of Europe bodies, could address them.

Socio-economic justice

All member states of the organisation are also members of the EU. To deliver greater socio-economic justice throughout Europe, the EU should ratify the revised charter and the additional protocol. It too should ensure that decisions of the European Committee of Social Rights are implemented via periodic follow-up with the relevant authorities, victims’ groups and others.

Synergies must be found between the EU and the Council of Europe when it comes to social-rights law. And the European Commission and the European Committee of Social Rights need to share information and collaborate accordingly.

At a time of growing inequality across Europe, often accompanied by an anti-rights agenda, Vilnius is a vital opportunity to reinvigorate the European Social Charter, building on its achievements over the past six decades. Member states must not just recommit to their existing obligations but also strengthen their accountability under this important mechanism to ensure social justice and the protection of social rights for hundreds of millions of rights holders.

This is the first of a series of articles on the European Social Charter in the run-up to the conference in Vilnius

Rita Patrício represents Amnesty International to the Council of Europe. She previously worked as a human-rights adviser to the Council of Europe Commissioner for Human Rights and the Portuguese mission to the United Nations in New York.

Iain Byrne is a law and policy adviser at Amnesty International and researcher in the economic and social justice team. He has been involved in strategic litigation before international human-rights bodies and courts including five collective complaints under the European Social Charter.