Zbornik PFZ, 65, (2) 309-326 (2015) 309 ENLARGING THE SCOPE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: HISTORY, PHILOSOPHICAL ROOTS AND PRACTICAL OUTCOMES Elena Sychenko, LL. M. * UDK: 341.231.14(4):340.112 Pregledni znanstveni rad Primljeno: ožujak 2015. The history of the development of the European Convention on Human Rights represents a unique experience of widening the scope of protection of an interna- tional instrument from classical political and civil rights to certain social and economic rights. With a particular focus upon the protection of labour rights under the European Convention, the author researches the roots of expansion of the Convention, analyzing the process of drafting and the capabilities theory of A. Sen, and the application of Convention as a “living instrument”. The paper traces how the judgments of the European Court in social matters contribute to the development of the relevant legislation of the states and establish enforceable standards of human rights protection. Keywords: European Court of Human Rights, European Convention on Hu- man Rights, labour rights, “living instrument” 1. HISTORY OF THE DRAFTING OF THE ECHR The history of the development of the European Convention on Human Rights represents a unique experience of widening the scope of protection of an international instrument from classical political and civil rights to certa- in social and economic rights. The reasons and the ways of broadening the Convention’s authority will be discussed in the present paper focusing on the history of the drafting of the Convention and on the integration of new rights into the original text. * Elena Sychenko, LL. M., Senior Lecturer, State Institute of Economics, Finance and Law, Leningrad region, Russia; home address: ul. K. Marksa, 36a, 21 Gatchina, Leningrad region, Russia; [email protected] 310 E. Sychenko: Enlarging the Scope of the European Convention on Human Rights: History... It is commonly said that the Convention was deemed to be the instrument of protection from totalitarianism as it was drafted shortly after the fall of Nazi Germany in the atmosphere of the post-war enlargement of totalitarian Soviet countries.1 Since the Nuremberg judgments had established a new concept of international responsibility and consequently a new concept of national sovereignty, it was considered necessary to establish effective international guarantees of human rights.2 Human rights, listed solemnly in the Universal Declaration of Human Rights in 1948, lacked a mechanism of protection. In the course of 1949 it had be- come rather evident for the international community that the International Covenant, which was supposed to represent the international guarantee of human rights, would be very long in coming (in that time it was not yet clear that the rights would be divided into two documents3). The adoption of the Convention by the countries of the Council of Europe was a way of implemen- ting the Universal Declaration of Human Rights. Ten founding countries which created the Council of Europe in 1949 evi- dently represented a more homogenous group of countries than the members of the UN and could easier reach a consensus on the matter of human rights protection, particularly taking into account that the political and civil rights concerned were already fixed in their domestic legislations. The drafting of the Convention began shortly after the creation of the Council of Europe in 1949. It was not an easy process as even in this “ho- mogenous” circle of countries there were different views on the due scope of the future convention, the mechanism of protection, and on the possibility of restriction of national sovereignty. The main points of dispute were the follow- ing: 1. the definition of rights; 2. the list of rights; 3. the process of supervision and the right to individual petition. A discussion of these controversial points 1 As Winston Churchill put it in his speech on the First Session of the Consultative Assembly of the Council of Europe in Strasbourg on 12.08.1949 “we have to… protect ourselves against any risk of being overrun, crushed by whatever form of totalitarian tyranny.” Cited from: Voices of Europe: A Selection of Speeches Delivered Before the Parliamentary Assembly of the Council of Europe, 1949-96, Council of Europe, Strasbourg, 1997, p. 11. 2 Gordon L. Weil, The European convention on human rights: background, development and prospects, A.W. Sythoff, Leyden, 1963, p. 22. 3 For example, USSR and Syria opposed the idea of placing economic, social, and cultural rights in a separate instrument. See Daniel J. Whelan, Indivisible Human Rights: A History, University of Pennsylvania Press, Pennsylvania, 2011, p. 75 Zbornik PFZ, 65, (2) 309-326 (2015) 311 might contribute to our understanding of the roots of the future expansion of the Convention and, therefore, deserves to be presented in more detail. 1.1. The dispute on the definition of rights According to the Papers of the First Session of the Committee of Ministers4 held in Strasbourg in 1949, the proposal to define each right was opposed by some representatives who argued that the rights mentioned were already “abundantly dealt with”.5 Based primarily on their experience in drawing up constitutions for ex-colonies, the British favoured a precise definition of the rights to be included. The French representative M. Teitgen thought that mere enumeration, a statement of principles such as in the Universal Declaration of Human Rights, would be easily enough enforced by the European Court.6 The final text of the Convention does not contain a fixed definition of rights, leaving to the Court the power of interpretation, which with the years has become the driving force of the Convention’s evolution. It may be presu- med that the power of interpretation granted to the Court was not intentional. It seems more probable that the rights were not defined as their meanings were already very familiar to the legal systems of European states and were “already protected thoroughly”.7 As the former Vice-President of the European Commi- ssion of human rights J. A. Frowein noted, “the countries did not expect that the European Convention would go further than their internal system”.8 1.2. Dispute on the list of rights It is remarkable to note that as early as in the preparatory stages of draft- ing there were ideas of creation of a “complete code of all the freedoms and fundamental rights, and all the so-called social freedoms and rights”.9 The 4 Papers of the First Session of the Committee of Ministers, Strasbourg, 1949, available at: http://www.coe.int/t/dgal/dit/ilcd/archives/selection/cm/1949Aug.pdf (accessed 01.11.2014). 5 See the opinion of the French representative M. Schuman. Ibid., p. 34. 6 Gordon L. Weil, op. cit. (fn. 2), p. 28. 7 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights, Oxford University Press, New York, 2010, p. 114. 8 Jochen Frowein, The transformation of the constitutional law through the ECHR, Israel Law Review, Vol. 41, No. 3, 2008, p. 490. 9 These words were said by Pierre-Henri Teitgen while presenting the Draft of the Convention on 19.08.1949, cited from Ed Bates, op. cit. (fn. 7), p. 59. 312 E. Sychenko: Enlarging the Scope of the European Convention on Human Rights: History... Convention was perceived by some members of the drafting committee as a “guarantee for further development of social justice in Europe”10 although it was initially aimed at protecting only basic civil and political rights. The idea to include economic or social rights was in the air, but was re- jected. One of the fathers of the Convention, Sir David Maxwell-Fyfe, found these rights to be “too controversial and difficult for enforcement even in the changing state of social and international development in Europe”; in his view their inclusion could jeopardize the acceptance of the Convention.11 The ap- proach of the drafters to social rights was vividly expressed by Teitgen: “Cer- tainly, ‘professional’ freedoms and ‘social’ rights, which have in themselves a fundamental value, must also, in the future, be defined and protected; but everyone will understand that it is necessary to begin at the beginning and to guarantee political democracy in the European Union, and then to co-ordinate our economies, before undertaking the generalisation of social democracy.”12 It is curious to note that Teitgen was in fact one of the judges of the ECtHR in 1978 considering the case Tyre v. United Kingdom, where the approach to the Convention as to a living instrument was formulated for the first time.13 This approach later permitted to significantly widen the scope of rights, guaranteed by the Convention, including also “professional and social rights” mentioned by Teitgen during the drafting process. 1.3. Dispute on establishment of a process of supervision and the right to individual petition The structure and powers of the bodies and the issue of supervision were further points of controversy. The authors of the Convention completely ove- restimated the willingness of certain States to create a human rights instru- ment that threatened their sovereignty; in 1949-1950 the governments of cer- 10 Words of the Socialist representative cited in Gordon L. Weil, op. cit. (fn. 2), p. 12. 11 See Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights: Preparatory Commission of the Council of Europe, Committee of Ministers, Consulta- tive Assembly, 11 May-8 September 1949, Council of Europe, Brill, Strasbourg, 1975, p. 116. 12 Cited from Ed Bates, op. cit. (fn. 7), p. 65 13 ECtHR, Tyrer v. United Kingdom, 5856/72, 25.04.1978, para 31.