The European Convention on Human Rights and Socioeconomic Rights Claims: a Case for the Protection of Basic Socioeconomic Rights through Article 3

• Date: 01 January 2016
• Author: Aoife O'Reilly

1

e European Convention on Human Rights

and Socioeconomic Rights Claims: a Case

for theProtection of Basic Socioeconomic

Rightsthrough Article 3

AOIFE O’REILLY

Introduction

e European Convention on Human Rights [hereinaer ECHR] is a seminal

instrument of civil and political rights protection. Designed to guard against a

reoccurrence of WWII atrocities,1 it is clear from the Travaux Préparatoires that a

conscious decision was made to omit socioeconomic rights,2 despite their inclusion

in the Universal Declaration of Human Rights.3 However, whether the draers

succeeded in depriving socioeconomic rights of ECHR protection was brought

into question in Airey v Ireland,4 where the European Court of Human Rights

[hereinaer E CtHR] held that “no water-tight division” between the two rights

categories existed.5 e judgment did not refer to the European Social Charter

[hereinaer ESC], which the Council of Europe [hereinaer CoE] had deliberately

created to aord a lesser protection to socioeconomic rights.6 While the ESC’s

enforcement mechanisms have improved in recent years, the continued absence of

an individual petition procedure has fuelled attempts to present the ECHR as an

alternative socioeconomic rights guardian,7 with arts 2, 3, 6, 8 and 14 all postulated

as potential avenues for such protection.8

is article focuses solely on protection possibilities provided by art. 3, which

concisely states: “[n]o one shall be subjected to torture or to inhuman or degrading

1 ornton, Seasca Bliain Faoi Bhláth: Socio-Economic Rights and the European Convention on Human

Rights http://www.academia.edu/4392847/Seasca_Bliain_Faoi_Bhl%C3%A1th_60_Years_A-

Growing_Socio-Economic_Rights_and_the_European_Convention_on_Human_Rights [Accessed

20 March 2016]

2 ibid, p. 6

3 Ellie Palmer, “Protecting Socio-economic Rights rough the European Convention on Human

Rights: Trends and Developments in the European Court of Human Rights” (2009) 2(4) Erasmus

Law Review 397, p. 398

4 Airey v Ireland, no. 6289/73, [1979] E.C.H.R. 3

5 ibid, para. 26

6 E. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford: Hart

Publishing, 2009), p. 50

7 E. Brems, “Indirect Protection of Social Rights by the European Court of Human Rights” in

Exploring Social Rights: Between eory and Practice (Oxford: Hart Publishing, 2007), p. 164

8 Palmer, supra note 3

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treatment or punishment.” It is contended that there is considerable scope for the

ECtHR to safeguard basic socioeconomic rights through art. 3, as socioeconomic

deprivation can undoubtedly generate inhuman and degrading living conditions.

Section 1 commences with a general analysis of art. 3, while section 2 examines

the positive obligations doctrine and its impact on socioeconomic rights eorts.

Section 3 investigates ECHR jurisprudence involving implied rights to basic

subsistence and health care under art. 3, while section 4 addresses potential

issues with deriving socioeconomic rights from art. 3. is article will conclude

in section 5 that there are strong reasons for acknowledging a minimum level

of socioeconomic rights within the ambit of art. 3,9 and various improvements

to ECtHR practices will be advocated for, to ensure that socioeconomic rights

protection is eective rather than merely illusory.

Article 3 Overview

Article 3 is phrased in short, simplistic terms, but as Addo and Grief point out,

its “brevity … masks the volume and variety as well as the complexity of the

issues engendered by its terms.”10 Initially intended to guard against the types of

barbarism perpetrated by the Nazis,11 it is framed in unqualied terms, precluding

any possibility that interference could be excused by appeals to the public interest

or other justications.12 As the ECtHR explained in Ireland v United Kingdom13:

[t]he Convention prohibits in absolute terms torture and inhuman or

degrading treatment or punishment, irrespective of the victim’s conduct.

Unlike most of the substantive clauses of the Convention … Article 3 makes

no provision for exceptions and … there can be no derogation therefrom even

in the event of a public emergency threatening the life of the nation.14

Interpretation Issues

Article 3 has proved problematic due to its ambivalent wording. Torture has been

the subject of numerous interpretations in international and domestic law,15 and

9 R. O’Connell, “Social and Economic Rights in the Strasbourg Convention” in European Public

Law Series/Bibliothèque de Droit Public Européen: Rule of Law and Fundamental Rights of

Citizens: e European and American Conventions on Human Rights http://papers.ssrn.com/sol3/

papers.cfm?abstract_id=1368722 [Accessed 20 March 2016]

10 Michael Addo and Nicholas Grief, “Does Article 3 of the European Convention on Human Rights

Enshrine Absolute Rights?” (1998) 9(3) E.J.I.L. 510, p. 510

11 M. Janis, R. Kay and A. Bradley, European Human Rights Law, 3rd edn (Oxford: Oxford

University Press, 2008), p. 169

12 D. Harris and M. O’Boyle, Harris, O’Boyle & Warbrick: Law of the European Convention on

Human Rights, 3rd edn (Oxford: Oxford University Press, 2014), p. 235

13 Ireland v United Kingdom, no. 5310/71, [1978] E.C.H.R. 1 [hereinaer Ireland]

14 ibid, para. 163

15 J. Parry, Understanding Torture: Law, Violence, and Political Identity (Ann Arbor: University of

Michigan Press, 2010)

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