Should Social Rights Be Included in Interpretations of the Convention by the European Court of Human Rights?
| Author | Maija Dahlberg |
| DOI | 10.1177/138826271401600304 |
| Published date | 01 September 2014 |
| Date | 01 September 2014 |
| Subject Matter | Article |
252 Intersentia
SHOULD SOCIAL RIGHTS BE INCLUDED IN
INTERPRETATIONS OF THE CONVENTION BY
THE EUROPEAN COURT OF HUMAN RIGHTS?
M D*
Abstract
e European Cour t of Human Rights frequently incorporates socio-economic rights
in its applications of the Convention as a result of its broad interpretations of civil
and political rights, while at the same time emph asising that the Convention does not
actually entail socio-economic rights. is article analyses the arguments conc erning
the inclusion of social rights in the Court’s interpretation of the provisions of the
Convention. Analysis is through use of a case law study which examines how the
Court legitimises the inclu sion of social rights in its interpretation s of the Convention
despite their absence from the text of the Convention itself. Existing social rights
arguments are categorised under the Convention rights provisions, revealing the
extent to which including social rights within the interpretations of the Convention
provisions has become established practice.
Keywords: argumentation; interpretation; legitimacy; social rights; the European
Convention on Human Rights; the Europe an Court of Human Rights
1. INTRODUCTION
e European Convention on Fundamental Rights and Freedoms (hereina er, the
Convention) was dra ed in the a ermath of the Second World War when rights
were considered from a rather narrow perspective. e Convention secures civil
and political rights, but economic and social rights are not included within it. e
Council of Europe’s legal system protects economic and social rights through the
* Maija Dahlberg (née Pitkänen) is a PhD c andidate and lecturer in Constitutional Law at the
University of Eastern Finland Law School. Address: Joensuu Campus, P.O. Box 111, FI-80101
Joensuu, Finland; e-mail: maija.dahlberg@uef. ; tel. +358503753556. She wishes to extend her
sincere than ks to Prof. Jaakko Husa, P rof. Toomas Kotkas , judge, docent, LLD Mirja mi Paso, and
the anonymous reviewers for the va luable comments and guidance t hey gave. All mistakes and
omissions remai n her own responsibility.
Should Social R ights Be Included in Inter pretations of the Convention
by the European C ourt of Human Rig hts?
European Jour nal of Social Sec urity, Volume 16 (2014), No. 3 253
other Convention, namely the European Social Charter.1 e European Court of
Human Rights (hereina er, the Court or the ECtHR) has frequently, however, taken
socio-economic rights into account when interpreting the Convention. e rights-
extending interpretation methods make this possible. For example, by applying the
principle of e ectivenes s and the ‘living in strument’ interpretation, as well a s through
the method of positive obligations, weight may be put on socio-economic rights even
though the text of t he Convention does not include them.
But the question can be pos ed: Since economic and social rights were not initi ally
included in the Convention, is it legitimate for the C ourt to include them? It has been
argued that the development of economic and social norms and procedures should
go hand-in-hand with legitimacy-enhancing strategies. is point of view stresses,
on the one hand, the need to restra in over-anxious human rights interpretations and,
on the other hand, that to avoid sticking to the dra ers’ intentions.2 Accordingly,
legitimate interpretations ca n be found somewhere in between.
It has been claimed that the Court has gone too far with regard to incorporating
socio-economic rights within the Convention.3 It has been taken for granted that,
nowadays, the Court’s jurisdiction also entails socio-economic rights, even though
there is a lack of clear de nition of them by the Court.4 Yet, at the same time, it has
been observed that the Court handles socio-economic rights in negative terms: the
Court has stated se veral times what the Convention does not provide e.g. the right to
housing.5
e Court frequently de facto incorporates socio-economic rights within the
Convention through a broad interpretation of civil and political rights while, at the
same time, emphasisi ng that the Convention does not entail socio-economic rights .6
e aim of this article is to analyse the arguments concerning social rights in the
Court’s interpretation of the Convention’s provisions. is analysis is performed
through a case law study which includes 87 judgments of the Court. In addition,
the article examines the question of how the Court legitimises its interpretations
concerning social rights when the text of the Convention does not include social
rights.
In this article socio-economic rights or social rights are understood broadly.
7
Socio-economic rights cover all the rights which are protected in the European
1 European Soc ial Charter (revi sed), CETS No. 163, came into force on 1July 1999.
2 Shany (2011: 80).
3 Bossuyt (20 07).
4 Clements and Simmon s (2008: 426) (‘the Cou rt’s starti ng point is now an unequivo cal accepta nce of
the view that t he Convention protects a core ir reducible set of such rights.’). See a lso Gerards (2014:
104) and Leijten (2014: 115).
5 See e.g. M.S.S. v. Belgium an d Greece, 30696/09, 21Januar y 2011, GC, para. 249; See more, Leijte n
(2014: 114).
6 Bossuyt (2013: 35).
7 In this ar ticle the concepts of ‘so cio-economic right s’, ‘social rights’ and ‘ec onomic and social r ights’
are used intercha ngeably.
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