The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

THE EUROPEAN SOCIAL CHARTER AND ILLEGITIMACY

By Tom O'Connor, Solicitor

Undoubtedly this inactivity by the Committee of Ministers is one of the reasons why the European Social Charter has failed to acquire the same attention both of the general public and of legal commentators as has the European Convention on Human Rights. To see this "one has only to compare the scattered and repetitive literature concerning the Charter with the enormous quantity of books, monographs and articles produced in connection with the European Convention on Human Rights listed in a Bibliography published in 1969, with its two supplements of 1970 and 1972, which contain more than 120 pages of entries". 4 But what of the working of the European Social Charter? Briefly, it may be described as follows: 1. Every two years the Contracting States must submit detailed reports in a form to be determined by the Committee of Ministers (Art. 21). Generally these biennial reports detail the application of the Charter within the jurisdiction of each of the Contracting States and what progress, if any, has been made since the last report. 2. This report is then examined by an Independent Committee of Experts who are "of the highest integrity and of recognised competence in international social questions, nominated by the Contracting Parties". 3 These experts examine the reports and draw up their own conclusions. The conclusions could be said to be the most objective views and criticisms of the compliance or non compliance (as the case may be) by a Contracting State with the provisions of the Charter and consequently they warrant the most serious consideration by all parties concerned. 6 3. The Governmental reports and the conclusions of the Independent Committee of Experts are then sent to a Sub-Committee of the Governmental Social Committee (Art. 27) — in a sense, a Governmental Committee of Experts. As this Committee is composed of one representative from each of the Contracting Parties, it will obviously try and justify the action, or perhaps more appropriately the inaction of the relevant Contracting Parties in the light of criticism proferred by the Independent Committee of Experts. 4. The next stage is for the Parliamentary Assembly (composed of a certain number of representatives from each of the national parliaments of the Contracting States) to consider at its public hearings the reports and the conclusions of the two committees and to formulate its own opinion on same. Unfortunately the Assembly does not have the power to compel the Committee of Ministers to make a recommendation to a Contracting State; it can only urge them to do so. 5. It is with the Committee of Ministers (composed of the Foreign Ministers of each member State of the Council of Europe) that the final and most important stage lies and it is they who decide whether or not an appropriate recommendation is to be made. 7 Making such a recommendation clearly implies that the Contracting Party has failed to comply with one or more of the provisions of the Charter which it had previously undertaken to comply with. Although, as earlier pointed 5

Of the 85 Conventions and Charters drafted by the Council of Europe, the two most important and best known are the European Convention on Human Rights and the European Social Charter. However, because of the latter's framework and particularly its machinery for enforcing the obligations it has imposed on the Contracting States it could not be said to have the same individual appeal to the national members of those States. Unlike the European Convention on Human Rights there is neither an Independent Commission nor Court but most important there is no method by which an individual can bring an application to an independent body to compel his national State to abide by the provisions of die Charter. Yet "in spite of its flexibility, the European Social Charter is an international Treaty whose provisions are binding on those States which have ratified them. The provisions of Part IV of the Charter dealing with supervision of application are thus a king pin in the whole edifice of European Social Law founded upon the Charter. Supervision is arranged with the co- operation of a number of bodies; the committee of Independent Experts, with the participation of an International Labour Organization representative, the Government Committee on the Social Charter, the Consultative Assembly and the Committee of Ministers which may make any necessary recommendations to any of the Contracting Parties". 1 In order to grasp more fully the implications of the European Social Charter, it will be necessary to give at least some brief description of the functions performed by each of the above bodies. It is important to note that though the European Social Charter was signed on 16th October, 1961, it did not come into force until 26th February, 1965, as the required number of ratifications were not achieved until that date. As with the signing and ratifying of the European Convention on Human Rights, Ireland was one of the first countries to ratify the European Social Charter, thereby setting a precedent for its fellow European Countries. Bearing this point in mind it is indeed ironic that Ireland's first four biennial reports dealing with the situation of children born outside wedlock with regard to inheritance showed that we weré by far the worst country of the Contracting States in this sphere. The comments of the Independent Committee of Experts on these reports (see later in this article) were more severe than those pertaining to the reports submitted by any of the other Contracting States. Like the European Convention on Human Rights, the Committee of Ministers has a key role to play in the application of the European Social Charter.To this extent one could argue that politics enter into the application of both the Convention and the Charter, although this must -foe To a very limited extent with."regard to the former because of the independent role of the Commission and the Court. The argument is however very sustainable with regard to the European Social Charter evidenced by the fact that the Committee of Ministers have not yet made any Recommendation to a "defaulting" Contracting State despite strong views expressed by the Independent Committee of Experts 2 and the Parliamentary Assembly. 3