Is there a fragmentation of Economic and Social Rights between the Council of Europe and the European Union? Why does it matter?

Résumé du document

After World War Two, there was all over the world and especially in Europe, new hopes for international and regional law. The Declaration of Philadelphia in 1944 which is still the foundation of the International Labour Organisation (ILO), as well as the Council of Europe (CoE) in 1948, the Declaration of San Francisco in 1945 (and obviously the UN Charter in 1948) or the European Coal and Steel Community (ECSC) in 1951 reflected the need of creating new models of international organisations. Those new institutions were built and legitimized by international law and a common target. Somehow, those communities of States were safeguards for peace and stability, economic growth and social progress. This dynamic is obviously clear in Europe after centuries of wars.

This is in this politico-legal context that economic and social rights emerged on a global scale. How to define Economic, Social (and sometimes Cultural Rights) ? The core of the definition of Economic and Social Rights (ESR) is that those rights are legitimized by socio-economic conditions of the individuals in a society. Yes, free will, opinion or human dignity rights are essential in our modern societies but they might be not enough to guarantee social and political cohesion within democratic civilizations. ESR conceptions are often "basics Human Rights" implications and they are "programmatic". Although, Economic and Social Rights are often recognised too vague and hard to implement, the two regional courts and organisations I choose for this essay; attempted to escape those prejudices and preconceptions and proposed in their own ways, solutions when Judges or Lawmakers are dealing with ESR.

Extraits

[...] Is there a fragmentation of Economic and Social Rights between the Council of Europe and the European Union? Why does it matter? INTRODUCTION After World War Two, there was all over the world and especially in Europe, new hopes for international and regional law. The Declaration of Philadelphia in 1944[1] which is still the foundation of the International Labour Organisation as well as the Council of Europe (CoE) in 1948, the Declaration of San Francisco in 1945 (and obviously the UN Charter in 1948) or the European Coal and Steel Community (ECSC) in 1951 reflected the need of creating new models of international organisations. [...]

[...] A “charter” is legally less powerful are often is more considered as a guidelines, a framework of good practices. A “charter” can be binding only, and if only it is connected to a more powerful legislation. We shall now talk about the “Justiciability” and its interactions with human rights and the Council of Europe. In a nutshell, the Justiciability relies on the capacity for the judge to intervene strongly in a debate, even if, its role can be controversial. The translation into the Strasbourg's jurisprudence is consequential. The approach chosen by the Court is very interesting. [...]

[...] Economic and Social Rights are fundamental in our modern societies. Regional organisation like the EU and the Council of Europe with their different pasts and behaviours had seen the necessity of those rights but still it hurdles for putting those rights at the centre of the discussions remain still difficult to resolve. It will still take time to create a strong European Economic and Social Rights. Nowadays, considering ESR more like frameworks and guidelines would be the more appropriate to evaluate them properly. [...]

[...] With different histories, outcomes, actors commitments, structures and politico- legal powers how can be observe the fragmentation of economic and social rights between the Council of Europe (and mostly the European Court of Human Rights) and the European Union ? Firstly, we will explore the concept of fragmentation. After this theoretical background we are going to analyse how the Council of Europe and especially the European Court of Human Right are dealing with Economic and Social Rights. That would lead us eventually, to a comparison with the European Union law and how this complex regional organisation is dealing with socio-economic issues (and therefore, ESR). [...]

[...] 5755 (Working Time directive) (1996) C-438/05 International Transport Workers' Federation et Finnish Seamen's Union contre Viking Line ABP v. OÜ Viking Line Eesti Ibid. footnote number 1 C-341/05 Case C-341/05 Laval un Partneri Ltd V Svenska Byggnadsarbetareförbundet and Others (2007) Derruine Olivier , De la proposition Bolkestein à la directive services Courrier hebdomadaire du CRISP /17-18 1962-1963, p. 63. http://www.germanlawjournal.com/pdfs/Vol10No08/PDF_Vol_10_No_08_1277- 1286_Lisbon%20Special_Wohlfahrt.pdf FOUNDATION ROBERT SCHUMAN (2011), Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011” in European Issues number 218, 7/11/2011. [...]