The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

THE EUROPEAN SOCIAL CHARTER AND ILLEGITIMACY

Tom O'Connor, Solicitor

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".

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

and the Parliamentary Assembly.

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".

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".

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.

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.

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