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

Date01 January 2016
AuthorAoife O'Reilly
e European Convention on Human Rights
and Socioeconomic Rights Claims: a Case
for theProtection of Basic Socioeconomic
Rightsthrough Article 3
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
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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2  
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
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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