The European Social Charter as a Means of Protecting Fundamental Economic and Social Rights in Europe: Relevant or Redundant?

Abstract

When the European Social Charter (ESC) was adopted by the Council of Europe (COE) in 1961, it was envisioned to provide the backbone and framework for the protection of fundamental economic and social rights in Europe. In the spirit of recognizing the indivisibility between civil and political rights and economic and social rights, the drafters of the ESC viewed it as the necessary counterpart to the rights protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted ten years earlier in 1950. However, in practice, the ESC has been largely marginalized in the protection of economic and social rights, and has failed to elevate its status to equal footing with the ECHR; as Philip Alston accurately describes it, the ESC turned out to be the “poor little step-sister” of the ECHR. While this hierarchy of rights is generally reflective of the situation around the world, it is interesting to note that in the context of Europe, the peripheral status of the ESC is not solely caused by the often-advanced arguments of the programmatic nature of such rights and the debate surrounding their justiciability. As this paper will demonstrate, economic and social rights are being promoted, protected and enforced in Europe, but not primarily under the rubric of the ESC. With Europe increasingly looking to formulate a common “European social policy” the question therefore remains, what is the role and relevance of the ESC?The purpose of this paper is to investigate the reasons for the marginalization of the ESC in the protection of economic and social rights in Europe. This paper will argue that there are a number of internal problems inherent with the structure of the ESC and external factors, including the extension of European Union law and institutions into the realm of economic and social rights and the widening jurisprudence of the European Court on Human Rights (ECtHR), which have largely usurped much of the ESC’s role. The result is a fragmented approach to the protection of economic and social rights in Europe. In light of this, the future of the ESC is not doomed. This paper will highlight the ESC’s comparative strengths and will argue that with reform and increased coordination with other institutions, it still has an important role within the European framework of economic and social rights.