Contribution to the periodical review Lex Social
Rafael Benitez
Published on 14 May 2024
Social rights at a critical time
Social rights and the European Social Charter are part of the common vision of the Council of Europe. They are indispensable for everyone to lead a life of dignity and self-determination. Social rights are human rights, and all human rights are universal, indivisible, interdependent and interrelated. They often serve as a gateway to the enjoyment of other human rights, such as civil and political rights. Experience has shown that it is difficult for people to exercise political and civil rights if they are denied basic economic and social rights. People who are forced to spend all their time looking for ways to survive are prevented from participating in public life.
A comprehensive guarantee of social rights is a prerequisite for a strong and inclusive welfare state and for democratic security and sustainability. It not only protects the population from structural imbalances and socio-economic inequalities, but also helps to mitigate the social consequences of acute economic and health crises and to counteract disproportionate negative impacts on already disadvantaged groups.
Amidst Europe's apparent prosperity, there is a stark reality of poverty. Within our communities, many people - the elderly, people with disabilities, migrants, the homeless and others - live in conditions that are simply unacceptable. Despite the region's prosperity, these marginalised groups continue to face distressing circumstances that require urgent attention and redress.
The European Social Charter – the “sister” of the European Convention on Human Rights and the Social Constitution of Europe
The European Social Charter plays a central role in the European human rights architecture and is often referred to as Europe's social constitution. The Charter is not only a legal instrument, but also a testimony to our collective commitment to the protection and promotion of social human rights.
No other legal instrument at the pan-European level can offer such a broad and complete protection of social rights as the Charter, which also serves as a reference point in European Union law; most of the social rights in the EU Charter of Fundamental Rights are based on the relevant articles of the Charter.
In these times of unprecedented challenges, from the impact of a global pandemic to Russia's war against Ukraine, the economic crisis, climate change and other geopolitical tensions, the Charter is even more relevant. It serves as a beacon of hope in the midst of crises, a living, integrated system of guarantees whose implementation at the national level has the potential to reduce poverty and social exclusion, improve people's living conditions and promote greater opportunities for all, leaving no one behind.
The European Social Charter is based on a system of ratification which allows States, subject to certain limitations, to select the provisions which they are prepared to accept as binding international legal obligations. This system is provided for in Article A of the European Social Charter (Article 20 of the 1961 Charter).
It is in the spirit of the Charter that States progressively increase their commitments, tending towards acceptance of most - if not all - of the provisions of the Charter, as opposed to an à la carte stagnation. Article A of the European Social Charter (Article 20 of the 1961 Charter) allows States to notify the Secretary General of their acceptance of additional articles or paragraphs at any time after ratification.
42 of the 46 member states of the Council of Europe are parties to either the 1961 European Social Charter or the 1996 revised European Social Charter, including all member states of the European Union. The remaining four Council of Europe member states have signed but not yet ratified one of the two Council of Europe social rights treaties.
The 1991 Amending Protocol, which improves the Charter's monitoring mechanism, requires four more ratifications to enter into force. The Protocol confirms the political role of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe. It clarifies the respective roles of the two main treaty bodies, namely the European Committee of Social Rights (a restricted body composed of independent members which assesses from a legal point of view whether the situation in the States Parties is in conformity with the Charter in law and in practice) and the Committee of Governmental Experts (a body composed of representatives of each of the States Parties which prepares the work of the Committee of Ministers). The 1991 Protocol also strengthened the participation of the social partners and non-governmental organisations.
The collective complaints procedure was introduced by an Additional Protocol to the European Social Charter adopted in 1995. It entered into force on 1 July 1998. 16 Member States have agreed to be bound by the collective complaints procedure, either by ratifying the Additional Protocol or by declaring their acceptance under Article D.2 of the revised Charter. The collective complaints procedure provides a system for trade unions, employers' organisations and civil society organisations to initiate an examination of the situation in a particular state if they consider that the provisions of the Charter are not being respected. This is an important "good governance" tool in the pursuit of social justice and equality throughout Europe.
The texts of the European Social Charter include Treaty No. 035 - European Social Charter; Treaty No. 128 - Additional Protocol to the European Social Charter; Treaty No. 142 - Protocol amending the European Social Charter; Treaty No. 158 - Additional Protocol to the European Social Charter providing for a system of collective complaints; Treaty No. 163 - European Social Charter (revised).
Council of Europe Reykjavik Summit and its follow-up: High-Level Conference on the European Social Charter
The Reykjavik Declaration “United around our values” adopted by the Heads of State and Government at the Fourth Summit of the Council of Europe in May 2023, states that “Social justice is crucial for democratic stability and security and in this regard, we reaffirm our full commitment to the protection and implementation of social rights as guaranteed by the European Social Charter system.” They also stated that “We will consider the organisation of a high-level conference on the European Social Charter, as a step to take further commitments under the Charter where possible.”
The Reykjavik Declaration places emphasis on democratic sustainability and member States’ commitment to the Charter. The Declaration was preceded by a reform process aimed at improving the European Social Charter system and the effectiveness of social rights in Europe. Reform outcomes also pointed to encouraging the acceptance of additional commitments under the Charter (“further—or all—provisions and of the collective complaints procedure”). Implementation of the Committee of Ministers’ decisions on reform is underway.
Exchanges on reform postponed discussions on certain issues, such as the accession of the European Union to the Charter or the limitation of the personal scope in the Charter's annex, and identified other issues that could be revisited in the future.
In November 2023, Lithuania confirmed to the Committee of Ministers its readiness to host a high-level conference on the European Social Charter in Vilnius on 3-4 July 2024, under the Lithuanian Chairmanship of the of the Committee of Ministers.
The Conference should identify further steps to improve the protection of social rights and long-term measures to be taken by the Council of Europe in relation to the Charter. It will provide an opportunity for Ministers from Member States responsible for different aspects of social rights to meet and discuss, in an inclusive format, issues of particular importance for shaping the European social justice agenda with strong links to democratic sustainability in our continent.
The main outcomes of the High-Level Conference will be additional commitments to the Charter, a political declaration and proposals for further action.
To this end, the Conference aims to promote the acceptance by Member States of further commitments under the Charter and ultimately to encourage all States Parties to move to the revised Charter.
In the light of contemporary challenges to social rights, and taking into account the Council of Europe's human rights architecture, discussions will focus on the responses that need to be given to these challenges from a Charter perspective, including the possible consolidation of the various Charter instruments into a single treaty, thus reducing the complexity of the Charter system.
The Conference will also examine how, in the light of the reform texts adopted, the Charter bodies can concretely assist States and contribute to the effective implementation of the Charter. In this context, discussions will look at the importance of the enhanced dialogue as mandated by the Committee of Ministers in the reform process, and consider funding opportunities to assist States that request assistance in their efforts to improve the protection of social rights or to take action in response to Charter monitoring findings. From this perspective, the Council of Europe needs the necessary strategic partnerships to fulfil its mission, which is why it is of great importance to strengthen its relations with the European Union and to explore the feasibility of EU accession to the Charter.
Finally, the Conference is an ambitious step in reaffirming the need for social human rights, social cohesion and solidarity, and the importance of a common legal space in today's increasingly troubled Europe. It is hoped that it will be the first in a series of Council of Europe high-level ministerial conferences on social rights at a critical time for the European continent and beyond.