The role of the european committee for social rights (ECSR) in the european system for the protection of human rights. Interactions with ECHR Jurisprudence

• Author: Cristina Sâmboan
• Position: ARTIFEX University
• Pages: 228-233

THE ROLE OF THE EUROPEAN COMMITTEE FOR SOCIAL RIGHTS (ECSR) IN THE

EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS. INTERACTIONS

WITH ECHR JURISPRUDENCE

Assistant professor Cristina SÂMBOAN

1, PhD. student

Abstract

Upon its foundation in 1961, the Euro pean Committee for Social Rights (ECSR) was meant to be a counterpart

of the Europea n Court of Human Rights (ECHR) in the field of economic, socia l and cultur al rights, i.e. an

internatio nal body of control r egarding the manner in which states under stand to r espect human rights. But, given the

fastidious contents of ESCR and for political rea sons, ECSR has never enjoyed the same gua rantee mechanisms or level

of accessibility tha t have cha racterized ECHR. The aim of this study is to show that, in spite of such flaws, the ECSR

has pro ven its efficiency in the Europea n system for the protection of human rights. The an alysis of its decisions, as well

as their inter actions with the ECHR jurispr udence proves tha t the flexible and protectionist decisions of this

jurisdictiona l body command author ity a nd their coercive nature is recognized at nationa l level. Moreover, this body

has an important influence on ECHR. The jurisprudentia l interpreta tions of ECSR may also serve as r eference points

for nationa l users (lawyers, magistrates, organizations), which makes it even more necessary to know and understa nd it

at this level.

Keywords: economic, social a nd cultural r ights (ESCR), Europea n Court of Human Rights (ECtHR), European

Committee of Social Rights (ECSR), Europea n Social Cha rter (revised) (ESC (r)), collective claims (CC).

JEL Classification: K33

I. The European system of human rights

The European system of human rights gives rise, on a regional scale, to the UN dual and

asymmetric mechanism for human rights protection (different legal treatments of civil and political

rights – CPR – and ESCR, the first benefitting from enhanced warranties) in its specific manner, yet

characterised by an increased degree of judicial effectiveness and through a more coagulated

political will of the Member States to comply with their obligations2. Signed in Torino on 18

October 1961, the European Social Charter (ESC) was intended to be a social replica of the

European Convention of Human Rights. The latter, that had been entered into more than a decade

before3, is the first treaty agreed upon within the Council of Europe and had been conceived – in the

same spirit as the Universal Declaration of Human Rights – as a reply to war experience and as an

antidote to totalitarianism; protected rights have a civil and a political nature, and although they do

not come out in large numbers, the warranty system is however really impressive: for the first time

natural persons may have recourse to a genuine international jurisdictional instance to complain

against their own state for the breach of the obligations undertaken by the Convention and,

furthermore, in view of obtaining a “fair satisfaction”4 for the incurred prejudice. Moreover, the

1 Cristina Sâmboan - ARTIFEX University, cristina@samboan.ro

2Space pattern and the subject hereof do not allow a thorough analysis of th e efectivness of the onusian mechanisms of protection of

human rights. It is worth mentioning, however, that the duties of the two committees do not have a jurisdictional nature, their

decisions are not binding, and their enforcement is ensured rather by poli tical leverages (please see also Raluca Miga-Beteliu, Drept

Internaional. Introducere în dreptul internaional public, ALL B eck, Bucharest, 2003, p. 202, 224). For a more detailed analysis,

please see also Eliette Gondoin, ”L’efficacité du Pacte International relatif aux Droits Civils et P olitiques en droit interne face aux

mécanismes de droit international et au régionalisme de la protection des Droits de l’Homme”, available on: h ttp://m2bde.u-

paris10.fr/content/l%E2%80%99efficacit%C3%A9-du-pacte-international-relatif-aux-droits-civils-et-politiques-en-droit-interne

(accessed: 25.10.2013)

3Convention for the Protection of Human Rights and F undamental Freedoms was signed at Rome, on 4 November 1950, and entered

into force on 3 September 1953 (13 years prior to the enacting of ICPCR and ICESCR!)

4 Art. 41 of the Covenant.