La Carta Sociale Europea come "strumento vivente". Riflessioni sulla prassi interpretativa del Comitato europeo dei diritti sociali (original) (raw)

Jura Gentium, X, 2013, 1 , pp. 41-78

This paper sheds light on the European Social Charter, one of the most wideranging supranational treaty in the field of social and economic rights supported by a unique monitoring system, including also the opportunity of collective complains. Adopted in 1961 as complement of the European Convention of Human Rights, the Charter currently bounds forty three states of the Council of Europe and had experienced, since two decades, a slow but continuous process of relaunch, aimed at guaranteeing not just theoretical but real rights. The author focuses in particular on the interpretative practices developed by the European Committee of Social Rights, the statutory body composed by fifteen independent members designated for a period of six years, whose mission is to judge the conformity of national laws and practices with the Charter. The role of the Committee as principal interpreter of the Charter, the domains, the methods and the effects of its interpretative practice will be assessed. The author reconstructs in detail, from an original point of view inspired by Ferrajoli's theory of fundamental rights, the material content and the personal scope of the rights protected by the Charter, as well as the contest and the scope of State obligations to guarantee such rights in practice. The interpretative rules of the European Committee on Social Rights, which extended the personal scope of the Charter beyond its statutory boundaries and clarified the stringent and multiple responsibilities of the states, shows that controversies over effectiveness and justiciability of economic and social rights are of political nature. This is why the author argues, in conclusion, that jurists should play an active role in the struggles over such rights, currently menaced by austerity measures and by the neoliberal ideology which considers work, health, housing, welfare, education, and even human life as commodities and not as common goods.