Social rights in Europe

Socio-economic rights relate to things like adequate housing, the highest attainable standard of health, social security, education, water and food. They’re of fundamental importance to humans in the here and now. If you don't enjoy a right to food, you won't live long.

The development of international human rights laws in the mid 20th century shows the extent to which economic and social rights have historically been marginalised.

The Universal Declaration of Human Rights of 1948 includes civil, economic, social, cultural and political rights. By the time we get to 1966, when we have these two very important core human rights treaties at the UN level, we see that civil and political rights are in one treaty, with economic, social and cultural rights in another.

This happened not because of an in-depth and thoughtful engagement around rights and the obligations that they impose. While some of that did occur, the separation of rights largely reflects the polarisation of international negotiation around human rights during the Cold War and the separation of the world into capitalist and communist blocs. Each bloc stressed the importance of different sets of rights. This resulted in an international covenant on economic, social and cultural rights with much weaker implementation mechanisms than the International Covenant on Civil and Political Rights. It didn’t have a complaints mechanism; it didn't even have a treaty monitoring body for a long time after it was adopted. Combined with these inherent weaknesses was a strong perception that economic and social rights weren't capable of judicial enforcement, only imposed positive obligations, and were aspirational because no state could afford to uphold them.

Postwar Europe saw the development of the so-called European social model, with high economic and social rights protection compared to other parts of the world. However, when we look at supranational protections, the European Social Charter of 1961 has a much weaker implementation process than the European Convention on Human Rights.

Do socio-economic rights require States to break the bank? No. Do they require States to give up all their resources towards achieving these rights, leaving no money for anything else? Again, no.

This is a common misperception about rights. Look at the language of the key umbrella provision setting out the duties of States under the International Covenant on Economic, Social and Cultural Rights. It says that each State party to the Covenant undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to progressively achieving the full realisation of the rights recognised in the present covenant.

Leaving aside the technical language, this is a highly pragmatic provision. States are required to use the resources available to them. States aren't expected to go beyond the resources that they can access. That doesn't mean that States can say, ok, we've decided to spend such and such on health, so we've used our maximum available resources. Using maximum available resources means that States have to look at things like tax revenue and macroeconomic policy to get a sense of whether or not they are leveraging as many resources as possible for economic and social rights. However, there is no requirement that States have to go beyond what is possible in terms of the resources available to them.

Economic policy and human rights are currently very separate areas. Economists work in one watertight silo, and to a large degree, human rights actors work in another. This separation is problematic because economic policy has huge potential implications for human rights. One example is the human rights catastrophe caused by fiscal austerity in the wake of the financial and economic crises of the late 2000s.

Furthermore, human rights can serve as a framework for shaping what economic policy can do and critiquing it. At the moment, however, what we're seeing is economic policy that is largely blind to, or dismissive of, human rights. Where that is the case, economic policy isn't going to engage with the concerns of human rights in a meaningful way.

When we think about economic and social rights enforcement in Europe, our attention naturally turns to the European Committee of Social Rights. This is a body of independent experts on social rights issues that monitors the implementation of the European Social Charter, an international multilateral treaty that 42 out of 47 Council of Europe Member States have ratified.

In ratifying the Charter, States agreed to be bound by a set number of provisions and provide information to the committee in periodic reports. The committee then tells the States whether they’re in compliance or not.

Very importantly and excitingly, since 1995, we've had a collective complaints mechanism. Now, if you're based in one of the states that have agreed to be bound by this collective complaint process, then complaints can be brought by a range of different employer organisations, trade unions and non-governmental organisations – both national and international - directly to the European Committee of Social Rights. And we've seen wide-ranging decisions on things like migration, austerity, labour rights, disabled people's rights, education rights — really the whole range of socio-economic rights.

The European Committee of Social Rights has considered a range of different issues. A particularly strong element of its case law focused on the rights of Roma, particularly in the context of housing. The Committee has looked at issues around housing segregation, forced evictions and denial of services in areas where Roma, gens du voyage, and other travellers live across Europe.

The European Social Charter, both in its older version from 1961 and the newer version of 1996, sets out a whole range of rights for people based in the countries that have signed up to the Charter. These include labour rights, the right to strike, collective bargaining, equal pay and so on. They also include social rights – the rights of disabled and older people, the rights of children to social, legal and economic protection, the right to protection from poverty, etc.

While there's no question that the European Social Charter is potentially important to Europeans, it suffers from its very low profile. Relatively few States have signed up to the complaints mechanism. The bias towards civil and political rights means that the European Social Charter has received far less attention than it should, given the importance of social rights to Europeans. This bias has also resulted in limited resourcing for the implementation machinery associated with the European Social Charter.

Having a supranational entity dealing with economic and social rights is particularly important in the European context, where social rights have rarely been the subject of intense, extensive consideration or adjudication at the national level. The European Social Charter provides important case law and tools to those seeking to advance economic and social rights at the European level. Like other supranational bodies, the Charter suffers from limited implementation mechanisms. But ultimately, when we look at COVID and consider the extent to which economic and social rights are receiving far more attention these days, it seems likely that the European Social Charter will be of growing importance in the context of social rights enjoyment across Europe.