Abstract
Thus far, research into reservations to treaties has often overlooked reservations formulated to both European Social Charters (and its Protocols) and the relevant European Committee of Social Rights practices. There are several pressing reasons to further explore this gap in existing literature. First, an analysis of practices within the European Social Charters (and Protocols) will provide a fuller picture of the reservations and responses of treaty bodies. Second, in the context of previous landmark events it is worth noting the practices of another human rights treaty monitoring body that is often omitted from analyses. Third, the very fact that the formulation of reservations to treaties gives parties such far-reaching flexibility to shape their contractual obligations (à la carte) is surprising. An important outcome of the research is the finding that, despite the far-reaching flexibility present in the treaties analysed, both the States Parties and the European Committee of Social Rights generally treat them as conventional treaties to which the general rules on reservations apply. Consequently, there is no basis for assuming that the mere fact of adopting the à la carte system in a treaty with no reservation clause implies a formal prohibition of reservations or otherwise discourages their formulation.
Keywords
INTRODUCTION
In her 1999 article on reservation clauses in Council of Europe (CoE) treaties, Spiliopoulou Akermark notes that out of the vast quantity of literature on reservations, relatively little has been published on practices within the CoE. The author points out one reason for this: it was not until the late 1990s that documentation of reservations and objections began to be published on the CoE's website. 1 However, the exception to this rule concerned reservations and declarations formulated to the European Convention on Human Rights (ECHR) 2 and the practices of its two treaty bodies - the European Commission of Human Rights and the European Court of Human Rights. In the landmark Temeltasch 3 and Belilos 4 cases, the ECHR bodies explicitly gave themselves the power to assess reservations, including the power to invalidate those that they deemed inadmissible. Both these and other decisions and judgments of ECHR bodies regarding reservations and interpretative declarations have been subject to extensive comments and analysis in legal literature, 5 and since then it has been difficult to imagine researching and publishing on the issue of reservations to human rights treaties without reference to this practice. 6 Apart from this exception, 7 it is indeed true that it was only in the late 1990s that interest in reservations in the practice of the CoE treaties grew significantly. It is equally true that researching this topic is much easier today, as full documentation regarding all treaties within the CoE is available on its Treaty Office website. 8
In the same year that Spiliopoulou Akermark's article was published, Polakiewicz published his monograph on treaty-making within the CoE, and a significant part of it was devoted to reservations and declarations. 9 In 1997, the CoE's Ad Hoc Committee of Legal Advisers on Public International Law (CAHDI) established the Group of Specialists on Reservations to International Treaties, which later set up the European Observatory of Reservations to International Treaties, which also gained interest within legal scholarship. 10
In the following years, in addition to the undiminished interest in ECHR practices, 11 studies were undertaken on reservations and declarations formulated to other treaties adopted under the CoE framework. The legal character of ‘declarations’ formulated to the Framework Convention for the Protection of National Minorities 12 was examined in detail by Frowein and Bank back in 1999. 13 The position of the Advisory Committee towards these declarations was discussed by, inter alia, Hofmann. 14 A more recent example of the interest in the reservation system within the CoE's treaty is a case of the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (the so-called ‘Istanbul Convention’). 15 Both its reservation clauses (Article 78 and 79) and the practices of States and the treaty body were discussed in the literature. 16 Partly parallel to the doctrinal discussion was the ongoing work of the UN International Law Commission on the topic of reservations to treaties (1993–2011). 17 Titanic work was done by the Special Rapporteur Alain Pellet. In his seventeen reports on the subject, he also regularly referred to the practice within the CoE. First of all, he often referred to the practice within the ECHR 18 and the functioning of the above-mentioned Group of Specialists on Reservations to International Treaties. 19 He also occasionally referred to practices regarding specific issues, such as the modification of reservations, 20 or the question of succession of States with regard to reservations. 21 In the commentaries to the ILC 2011 Guide to practice on reservations to treaties 22 - the final product of the Commission's 18 years of work on reservations to treaties - there are also several references to the above-mentioned practice within the CoE. 23
One might conclude from this that, as far as a practice within the framework of the Council of Europe is concerned, all that remains is to examine newly lodged reservations and objections or the examination of clauses and reservations formulated to newly adopted treaties. However, this is not the case. What has been almost completely overlooked to date by those who were researching reservations practices within the CoE are the reservations formulated to both European Social Charters (and its Protocols) and the relevant European Committee of Social Rights' (ECSR) practices. Polakiewicz noted only that the à la carte system contained in these treaties, in providing the possibility of choosing the list of binding provisions and, by doing so, shaping a differentiated range of obligations for acceding States, is an alternative form to the reservation system. He added that ‘[u]nder such systems […], reservations may only be made in respect of provisions exceeding the minimum number of provisions the acceptance of which is required under the treaty’. 24 An à la carte approach in the ECS, as an example of a flexibility device, was also discussed by Gormley. 25 Pellet, in his reports, referred to both Charters in a similar manner. 26
Exploring this gap in the literature is critical to further understanding State's attitudes towards reservations for several reasons. First, an analysis of practices within the European Social Charters and its Protocols will provide a fuller picture of the reservations and responses of treaty bodies within the CoE. Second, in the context of the landmark events of the past, when not only the aforementioned ECHR bodies but also, inter alia, the UN Human Rights Committee adopted a progressive stance regarding reservations and its role in their assessment, 27 it is worth noting the practices of another human rights treaty monitoring body. Third, and finally, the very fact of the formulation of reservations to treaties giving parties far-reaching flexibility in shaping their contractual obligations (à la carte) is surprising. After all, it is quite commonly indicated that the reason for making reservations and one of the justifications for their admissibility is to increase flexibility and thus the number of States Parties to a given treaty. 28 European Social Charters, with this à la carte approach, already provide treaty flexibility. Nevertheless, this does not prevent several of their State Parties from further boosting their flexibility by also formulating reservations.
This article aims to address those three gaps and to ascertain the relationship between the existence of an à la carte system and the admissibility of reservations to a treaty containing such a system. The structure of the article is as follows. Section two will provide an overview of the à la carte system of treaties and its relation to reservations. Section three will focus on the practices of States concerning reservations and Section four will explore the positions taken by the European Committee of Social Rights. Section five will finally conclude.
THE À LA CARTE SYSTEM AND THE SILENCE ON RESERVATIONS
The ECHR and its Protocols, apart from the right to education (Article 2, Protocol No 1), 29 do not include economic and social rights. This gap was later addressed by several other treaties adopted within the CoE, with the 1961 European Social Charter (ESC), 30 which was supplemented in 1996 by a revised version (Revised European Social Charter - ESC(rev)) 31 as the best known examples. 32 There are also three protocols adopted to the ESC: the 1988 Additional Protocol to the European Social Charter (the “1988 Protocol”, which added four extra rights), 33 the 1991 Protocol amending the European Social Charter (the “1991 Protocol”, aimed at modifying and improving the monitoring system), 34 and the 1995 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (the “1995 Additional Protocol”), 35 of which only the first and the last one entered into force. 36 Dörr rightly observed that ‘the ESC regime has by now grown into a complicated system of two versions of the Charter, two additional protocols, and one amending protocol, all of which are binding for a different group of States’. 37 Leaving aside the confusion over their binding scope, those five treaties (and reservations formulated towards them) form the basis for further analysis.
None of these treaties contain a clause governing reservations. Under Article 20 of the ESC, each party to this treaty is obliged to be bound by at least five of the Articles 1, 5, 6, 12, 13, 16 and 19; and furthermore, the total number of articles and paragraphs of its Part II ‘is not less than 10 articles or 45 numbered paragraphs’. Article 5 of the 1988 Protocol requires parties to be bound by at least one out of four extra rights added by this treaty. Finally, Article A of the ESC(rev) is similarly worded to Article 20 of the ESC, as it requires a party: [T]o consider itself bound by at least six of the following nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; and to consider itself bound by an additional number of articles or numbered paragraphs of Part II of the Charter which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or sixty-three numbered paragraphs.
Analysis of the travaux préparatoires to the ESC 38 revealed that the à la carte approach was suggested by the United Kingdom, and then further developed by Belgium, which proposed draft provisions that later became Article 20 of the ESC. 39 The Belgian proposal was based on the 1952 International Labour Organisation (ILO) Social Security Convention No. 102 (Article 2). 40 The ILO had piloted a number of initiatives which had earned it a reputation as one of the international organisations with ‘the most developed and sophisticated flexibility thinking’, 41 with other treaty flexibility devices in addition to the à la carte approach. 42 It is worth mentioning that the ESC, the ESC(rev), and the 1988 Protocol are not the only treaties adopted within the CoE which contain an à la carte approach or other devices of treaty flexibility. An overview of these practices was presented in the literature as early as the 1970s. 43
The à la carte approach is commonly perceived as an alternative to reservations. 44 The basis for this system can be found in the 1969 Vienna Convention on the Law of Treaties (VCLT) under Article 17. 45 Article 17(1) contains an opt-out clause and Article 17(2) contains an opt-in clause, one form of which is the à la carte approach. The ILC Special Rapporteur Alain Pellet discussed both options in detail and their relationship to reservations. 46 His findings – that opt-out clauses are a form of reservations, but opt-in clauses are not – were contested in the literature. 47 Nevertheless, guideline 1.1.6 of the 2011 ILC Guide to practice confirms that a unilateral statement made under the opt-out clauses ‘constitutes a reservation expressly authorized by the treaty', and guideline 1.5.3 contains the opposite conclusion if the opt-in option is exercised. 48 Despite the reasoning of the Special Rapporteur and the ILC, there is substantial merit to the claims that neither opt-out nor opt-in clauses can be equated with reservations. In support of this position, analysed through the lens of the VCLT, it is important to distinguish the way in which provisions on reservations are included within the Treaty (under Article 2(1)(d) and Articles 19 to 23) with the provisions on opt-out and opt-in under Article 17. The drafters of the VCLT made a clear distinction between these two procedures. On the other hand, there are situations where the legal effect of the usage of the opt-out clause and the possibility to formulate reservations are the same. However, what unambiguously distinguishes the two situations is the possible reaction of another party to the treaty. In the case of an opt-out, there is no possibility of a legally binding reaction from other parties to the treaty. In contrast, in the case of reservations, the other parties have an open path to raise objections to the reservation with certain possible legal effects, namely through Article 20(4) of the VCLT.
As mentioned earlier, the desire for greater flexibility is one of the reasons for making reservations. Focusing only on the absence or availability of flexibility devices for prospective State Parties, it could be argued that, in the case of their availability and in the absence of a clause explicitly allowing reservations, the formulation of reservations should be considered prohibited. This argumentation is reinforced by the Latin maxim expressio unius est exclusio alterius, which reads: when one or more of a specific class are expressly mentioned, others of the same class are excluded. And, in this case, this maxim can be re-written as: if the treaty-makers have provided for far-reaching flexibility and at the same time have been silent on the issue of reservations, they should be assumed to be prohibited lest they contribute to greater flexibility than had otherwise been intended. Indeed, with the à la carte approach, Parties to these treaties have a relatively high degree of freedom to shape the scope of their treaty obligations. It may be argued therefore that, in this situation, there is no longer any need (or room) for further unilateral modification of their treaty obligations.
However, unlike in the case of the ILO's conventions, where the position of this organisation was once summarised as ‘permissible flexibility and impermissible reservations’, 49 the drafters of the European Social Charters and the 1988 Protocol did not only decide to remain silent on reservations, but also, there were no similar statements on the impermissibility of reservations from within the CoE organs or the Social Charters’ treaty bodies. In consequence, and contrary to the claims that only inflexibility favours formulation of reservations, the State practice shows that availability of an à la carte approach does not prevent some State Parties from formulating reservations or declarations.
This practice also seems to be in line with the way the permissibility of reservations is regulated in the VCLT. The VCLT does not link the issue of flexibility, or lack thereof, to reservations. Article 19 simply states that if the treaty is silent on reservations, their formulation is possible, provided, however, that they do not contradict the object and purpose of the treaty. Nevertheless, it should be noted that, formally speaking, the VCLT, which came into force in January 1980, does not apply to treaties that had been adopted before that date – such as the ESC. However, it is considered to be applicable, to the extent that its provisions reflect customary law. In this context, one has to agree with Villiger, among others, who takes the view that, after the adoption of the VCLT, its provisions on reservations began to crystallise as customary norms, and that the subsequent work of the ILC merely confirmed ‘what would appear to be their meanwhile well-established nature also qua customary international law.’ 50
Given the doubts raised by some of the formulated reservations (which will be outlined below), one can only regret that the drafters of the Social Charters did not expressly prohibit reservations, even while providing an appropriate level of flexibility. It would seem that only an express prohibition of reservations in the treaty itself justifies an absolute prohibition of reservations. Otherwise, as the practice of the States and the treaty body discussed below shows, reservations are permissible and only subject to certain limitations common to other treaties, such as when they do not contradict the object and purpose or the prohibition of jus cogens norms. The above reasoning is confirmed by practices related to other treaties adopted within the CoE framework. For example, the 1992 European Charter for Regional or Minority Languages 51 also includes an à la carte system (Article 2), but at the same time also has a reservation clause. Under Article 21(1) there is a possibility to formulate reservations only to several directly mentioned provisions of this treaty and it is also expressly stated that ‘no other reservations may be made.’ It is worth noting that in the explanatory report to this agreement, referring to the reservation clause, mention is made of the far-reaching flexibility resulting from the à la carte system. Explaining the impossibility of reservations to one part of this treaty, it was pointed out that ‘in a text which already allowed the parties so much choice as to the undertakings they entered into, reservations would be inappropriate.’ 52 Nevertheless, this was also confirmed by the reservation clause included in the treaty.
THE PRACTICES OF STATES
Before summarising the practices of States concerning reservations 53 – and interpretative declarations 54 – it should be noted that under the heading ‘reservations and declarations’, the CoE's Treaty Office also publishes ‘declarations’ of States submitted on the basis of the above-mentioned provisions providing for an à la carte system or other opt-in systems. However, such an analysis is beyond the scope of this article and will not be addressed further. The same decision can be taken with regard to declarations on territorial application. Although some scholars equate them with reservations, 55 it is not a primary consideration for the majority of treaties. 56
Out of the five treaties concerned, States formulated reservations or interpretative declarations – or both – to four of them. Only the 1995 Protocol on collective complaints, so far, has not been met with reservations or interpretative declarations. Despite the fact that the ESC, the 1988 Protocol, and the ESC(rev) provide for substantial treaty flexibility, for eleven States the extent of this flexibility was not sufficient enough, as they decided to further boost their flexibility unilaterally, and formulated altogether 35 reservations, interpretative declarations, or other declarations. Even a cursory assessment of them shows that at least some of them require clarifications to their factual content and legal status, or bring some doubts as to their rationale and permissibility.
Out of 27 State Parties to the ESC, six formulated reservations or interpretative declarations. After France's decision in the 1980s to withdraw its two reservations, 57 there are currently two ‘reservations’ and three ‘declarations.’ Two of them refer to Article 12(4) – the obligation to also ensure the right to social security to nationals of other contracting parties ‘by the conclusion of appropriate bilateral and multilateral agreements, or by other means’. By its ‘declaration’, France sought to clarify at the acceding stage that the implementation of the Charter's obligations in this area would be delayed. Norway supplemented its document of ratification with narrowly formulated reservations stipulating that when implementing this provision, it ‘will be permitted in the bilateral and multilateral agreements therein mentioned to stipulate, as a condition for granting equal treatment, that foreign seamen should be domiciled in the country to which the vessel belongs.’
Two other ‘declarations’ and one ‘reservation’ aimed to limit the right to bargain collectively under Article 6. Germany formulated a ‘declaration’, which seemed more akin to an interpretative declaration, and presented its view that several categories of workers in Germany (‘pensionable civil servants [Beamte], judges, and soldiers’), due to special terms of service and loyalty, should be excluded from the scope of this provision of the Charter. The ‘declaration’ submitted by the Netherlands goes along similar lines. However, it seems to actually be a de facto reservation, hidden in the ‘declarations’ with the choice of provisions which this State decided to comply with: ‘(…) the Netherlands considers itself bound by Articles 1, 2, 3, 4 and 5; Article 6, paragraphs 1, 2 and 3; Article 6, paragraph 4 (except for civil servants) (…).’ The added words ‘except for civil servants’ after Article 6(4) arguably constitute a reservation to this provision of the Charter. Portugal used ‘reservation’ to refer to its own limitation of the same provision of the ESC, referencing its constitution and the prohibition of lockouts in one of its provisions. Finally, Spain formulated a rather puzzling declaration – raising doubts as to its factual scope and legal character – which aimed to interpret and apply ‘Articles 5 and 6 of the European Social Charter, read with Article 31 and the Appendix to the Charter’ in accordance with several directly mentioned provisions of the Spanish Constitution.
In the case of the 1988 Protocol, out of 13 State Parties, France formulated a reservation and Italy a ‘declaration.’ France did not specify the provision(s) of the Protocol towards which its reservations should apply. However, a closer look at the content of the Protocol suggests that it is likely Article 4 (the right of elderly persons to social protection). 58 Italy's ‘declaration’ seems to be an interpretative declaration which also refers to Article 4, namely its paragraph 2(a), which Italy perceived ‘as having a programmatic character’.
The 1991 Protocol has not entered into force, so the ECSR is not in the position to assess possible declarations or reservations. So far, only Austria has submitted a ‘declaration,’ which – it seems – is based on the differences between different language versions of the Protocol, and as such can be described as a form of interpretative declaration. 59
The ESC(rev) has the largest number of State Parties to date: 36, 7 of which have formulated reservations and/or interpretative declarations. This time, again, most of the doubts are linked to the identically worded – when compared to the ESC – Article 6, which established the right to bargain collectively, including the right to strike under paragraph 4. Through its reservation, the Netherlands has excluded the application of the right to strike ‘to military personnel in active service and civil servants employed by the Ministry of Defence.’ Portugal, in a very concise manner, restricted the application of Article 6(4) to comply with ‘the prohibition of lockouts,’ as specified in its Constitution. Another State Party, Greece, in its very detailed reservation, and Germany, in one of its interpretative declarations, referred in this context to the internal regulations of the respective States.
The case of Germany's reservations and declaration to the ESC(rev) is a very specific one, and as such requires a more detailed assessment. Germany signed the treaty in 2007, but only ratified it in 2021. Documents confirming ratification were supplemented with an exceptionally comprehensive package of reservations and interpretative declarations. Notable in the context of the latter is the fact that the accurate term ‘interpretative declaration’ was used, instead of ‘declaration’, as was common for other States’ practices in the past. Altogether, Germany formulated eight reservations, 60 and they are all drafted in a similar way, namely that ‘The Federal Republic of Germany is not bound by Article XY.’ However, such a sweeping list of reservations must be read in conjunction with the list of provisions of the ESC(rev), which Germany is bound by. The provisions listed in the reservations are identical to those which are not listed in the above-mentioned provisions. Failure to formulate reservations towards these provisions would not have changed the situation that Germany would be treated as not bound by those provisions. The reservations thus represent a superfluous form of additional safeguards. It is therefore more relevant to focus on Germany's interpretative declarations. All nine interpretive declarations formulated by Germany are carefully drafted, and precisely explain what their aims are. Reading them, it is clear that a very thorough analysis of the implications of the ratification of the Charter on national legislation was taken. Apart from the above-mentioned interpretative declaration to Article 6 of the ESC(rev), it also covers Article 2(2) (the obligation to provide for public holidays with pay), Article 3 (the right to safe and healthy working conditions), Article 4 (the right to a fair remuneration), 61 Article 7(5) (the obligation ‘to provide that the working hours of persons under 18 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training’), Article 12(2) (the obligation ‘to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security’), Article 19(11) (the obligation ‘to promote and facilitate the teaching of the national language of the receiving state or, if there are several, one of these languages, to migrant workers and members of their families’). In all cases, detailed justifications of the reasons behind declarations are based on the concise presentation of the current internal regulations and practices.
The remaining two reservations formulated to the ESC(rev) refer to Article 19(12) (the obligation ‘to promote and facilitate, as far as practicable, the teaching of the migrant worker's mother tongue to the children of the migrant worker’) and Article 2(6) (the obligation to ensure that workers will be sufficiently informed in a timely manner about contract and employment details). In the latter case, Portugal excluded minor contracts, defined as ‘with a duration not exceeding one month or to those with an ordinary working week not exceeding eight hours, and to those of a particular or occasional nature’. In the former case, the Netherlands declared that it was not going to be bound by this whole provision.
There are also three other declarations. Andorra, in very general terms, indicated that some provisions of the revised Charter would require some time for the full ratification. Sweden entered a very concise ‘declaration,’ which refers to the Charter's non-discrimination clause: ‘Sweden considers that preferential treatment shall not be considered as incompatible with Article E of the Charter.’ The legal character of this ‘declaration’ is not clear. It seems that it is possible that, depending on the factual application of this declaration in practice, it can be treated as a reservation. Nevertheless, further clarification is needed to make a full assessment. Finally, Ireland submitted a ‘declaration’ to Article 31 (the right to housing), stating that ‘is not in a position to accept the provisions of this article at this time’. However, bearing in mind that, in accordance with its own decision, Ireland is not bound by this provision (as it is not on the list of provisions Ireland elected to be bound by), it is a mere non-binding statement of its future intentions towards Article 31. As Article A(3) of the Charter provides for the possibility to extend the list of obligations under the Charter at any time in the future, this statement seems to be rather redundant.
PRACTICE OF THE ECSR
Introductory Remarks
The European Committee of Social Rights (formerly the Committee of Independent Experts) is composed of 15 independent members who conduct two procedures: examining national reports (based on Part IV of the ESC, Article 6 of the 1988 Protocol, and Article C of the ESC(rev)) and – under the 1995 Additional Protocol or declaration submitted under Article D(2) of the ESC(rev) – deciding on collective complaints which might be brought by NGOs and organisations of employers and workers. As a part of the first procedure, the Committee adopts its conclusions, and as a part of the second it adopts its decisions. 62
As the 1988 Protocol is open for ratification only for State Parties to the ESC, the ECSR has a chance to refer to and to assess all reservations, declarations, or interpretative declarations formulated to the ESC, the 1988 Protocol and the ESC(rev) when the examining national reports of those parties who have ratified or acceded to those treaties. The collective complaints procedure is open to 16 States – 13 State Parties of the 1995 Protocol and 3 States which accepted this procedure under Article D(2) of the ESC(rev). Among them are several States which have formulated reservations, declarations, or interpretative declarations to the above-mentioned treaties. However, only when the complaint is based on at least one provision, towards which these unilateral statements were formulated, does the ECSR have a chance to assess them. In such a case, this assessment must be precise and clear, as the outcome of the procedure is based on this assessment. In the case of national reports, the assessment, by its very nature, can be more general and abstract.
Examination of National Reports
An analysis of the ECSR's practice to date shows a lack of consistency in its approach to the reservations or declarations formulated by the State Parties to the European Social Charter and its Protocols. Three types of ECSR responses can be identified:
Tacit acceptance of a reservation or declaration by the fact that the Committee waived its assessment of how the provision covered by the reservation/declaration was implemented; Implicit rejection of a reservation or declaration by assessing the manner in which the provision covered by the reservation/declaration has been implemented and assuming that the State concerned is in breach of its treaty obligations; and The absence of reference to a reservation or declaration made or merely noting them without any assessment.
First Response: Tacit Acceptance of the Reservation or Declaration
Regarding the first type of response, the first example of this is how the Committee responded to the reservation formulated by France to Article 2(4) and 13(2) of the ESC. The ECSR first commented on these two provisions in 1986, after France had already withdrawn its reservations to these provisions of the ESC. An analysis of the Committee's statements 63 indicates that, in its previous conclusions to France's national reports, the Committee had not analysed whether France was complying with these obligations and, therefore, it seems that it considered that the reservations in force prevented it from doing so. After the withdrawal of reservations, the ECSR started to treat these provisions as ‘newly accepted / recently accepted provisions.’ In the context of Article 12(4), while considering the French reports, the ESRC expressed its views in 1979 in its conclusions to the second report: ‘The committee wished to point out that, according to Article 12, paragraph 4, equality of treatment must be accorded to the nationals of the other Contracting Parties either by means of bilateral of multilateral agreements or by “other means,” including unilateral measures’. 64 However, due to the fact that neither have the relevant agreements been concluded by France, nor have unilateral actions been taken towards all State Parties to the ESC regarding all forms of the benefits, in most of its conclusions the Committee found a lack of compliance – most recently in 2017. 65
The ECSR treated the Netherlands’ reservation to Article 19(2) of the ESC(rev) (teaching the mother tongue to the children of migrant workers) in the same way, with an aim to exclude this provision in full. There are no mentions of how the Netherlands implemented Article 19(2) of the ESC(rev). It seems that the ECSR tacitly accepted the fact that the Netherlands is not bound by this provision.
Second Response: Implicit Rejection of a Reservation or Declaration
For the second type of response, in 1969, the ECSR had already dealt with the ‘declaration’ concerning Article 6 (collective bargaining), which was submitted by Germany, and which can be perceived as an interpretative declaration. The ECSR referred to this when discussing Germany's first report. At the outset the Committee noted that: With particular reference to the position of German public servants with regard to the right to strike, the Committee recorded that according to the first German Report “public servants have not the right to strike.” The Committee was bound to hold that such a state of affairs was incompatible with the Charter.
The Committee then directly addressed the declaration: (…) [T]he Permanent Representative of the Federal Republic of Germany to the Council of Europe sent a declaration to the Secretary General according to which civil servants (Beamte), judges and members of the armed forces entitled to a pension do not enjoy the right to strike for reasons of public order and state security. Nevertheless in the Committee's opinion, that declaration is not sufficient to exclude a whole category of persons covered by the Charter from the benefit of such fundamental provisions as Articles 5 and 6.
66
This position towards the denial of the right to strike for public servants in Germany was also repeated in conclusions concerning further reports submitted by this State,
67
and consequently, a negative assessment of this declaration and the opinion that it does not have any legal effect. The same position was also taken in the newest conclusions on Germany's report, adopted in 2019: The Committee concludes that the situation in Germany is not in conformity with Article 6§4 of the 1961 Charter on the grounds that: (…) the denial of the right to strike to civil servants as a whole, regardless of whether they exercise public authority, constitutes an excessive restriction to the right to strike.
68
Likewise, the Committee referred to the reservations to Article 6(4) in both Charters, formulated by the Netherlands.
69
With regard to the reservation to Article 6(4) of the ESC, the Committee has consistently treated it as a reservation: ‘[a]s far as civil servants were concerned, the committee had to take into account the fact that the Netherlands had, by a reservation made at the time of ratification, excluded this category of persons from the scope of paragraph 4 of Article 6 of the Charter.’
70
In 1989, the ECSR stated: ‘the Committee wished to make it clear that it was not within its competence to suggest that a government withdraws a reservation formulated at the time of ratifying the Social Charter.’
71
Two years later, the ECSR expressed its satisfaction with the fact that the Netherlands had declared its plans to withdraw this reservation.
72
However, noting the lack of progress in this process on a few other occasions,
73
in 1998 the ESCR observed: The Committee notes with regret from the present report that there were no developments during the reference period. It underlines that in view of the fundamental importance of this provision and of the fact that the large majority of the Contracting Parties grant the right to strike also to civil servants, lifting the reservation would represent significant progress.
74
In subsequent reports, the Committee monitored whether anything had changed in this regard. In 2010, after the Netherlands ratified the ESC(rev) with a different reservation to a similarly worded provision, the ECSR observed: The Committee notes that the reservation made when the Dutch Government ratified the 1961 Charter regarding the right to strike for public servants/public sector employees was not made when it ratified the Revised Charter. The report confirms that public sector employees have the right to strike. The revised version of the Military Personnel Act 1931 (Bulletin of Acts and Decrees, 2007, 480) came into effect on 1 January 2008 and gave defence personnel (military personnel on active service and civil servants employed in the Ministry of Defence) the right to collective action (section 12i of the Act). The amended legislation stipulates the restrictions on the right to collective action taking into account the special demands and obligations that are placed on the armed forces because of the nature of their task and that are less common, or non-existent, in other organisations. Participation in strikes or collective action is not permitted where this might disrupt or hinder the operational deployment of the armed forces.
75
Third Response: Absence of Reference to a Reservation or Declaration
In the third and final category of responses, an example concerns Portugal's reservation to Article 2(6) of the ESC(rev), which exempts it from the obligatory information on employment contracts, contracts concerning occasional, or short-term employment. The ECSR on two occasions within the reporting procedure had a chance to address the reservation formulated to Article 2(6) of the ESC(rev) but so far has remained silent on this issue. 76 The same has been true concerning the reservation formulated by Greece to Article 6 of the ESC(rev).
There are several States which have submitted ‘declarations’ (including Spain, Italy, Andorra, Sweden) of different scopes (and, sometimes, a doubtful character) to the Charters or the Protocols. This includes, for example, Spain's declaration with references to several provisions of the Spanish Constitution. 77 However, to date, there have been no references to them in the ECSR's conclusions to these States’ reports. Sometimes, of course, this is hardly surprising given the specific content of the ‘declaration.’ This is the case of France's ‘declaration’ concerning Article 12(4) (social security of persons moving between States), which – as has been mentioned before – had aimed to make it clear from the beginning that the implementation of the Charter's obligations in this area would be delayed.
The only example so far of merely noting reservations or declarations without any assessment occurred when the ECSR reacted to the reservations formulated by Portugal to Article 6(4) of both Charters, in which Portugal refers to the prohibition of lockouts, derived directly from its Constitution. In its conclusions to Portugal's first report under the ESC, the ECSR only noted the formulation of the reservation concerning lockouts and cited it. 78 This reservation was also noted in the footnote in the conclusions – adopted several years later – to further Portugal's report. 79 However, its content did not affect the overall assessment of the implementation of this provision by Portugal. There are no references to these reservations in the other conclusions, so, consequently, it can be observed that the Committee did not undertake assessment of the reservation, but limited itself to only noting it.
Dealing with Collective Complaints
In the context of collective complaints, attention must be focused on the reservation made by Norway, and the Committee's subsequent assessment of this reservation. Norway has only formulated one reservation, which was against Article 12(4) of the ESC (social security of persons moving between States). Norway has been bound by the ESC since 1965. Since 1998, it has also been bound by the 1995 Protocol on Collective Complaints. The narrowly worded reservation by Norway (in which it reserved the right to stipulate in future international agreements ‘as a condition for granting equal treatment, that foreign seamen should be domiciled in the country to which the vessel belongs’) was not directly discussed in the reporting procedure. Equal treatment in the context of vessels and their staff has been discussed relatively recently, in the conclusions to Norway's 14th and 15th reports, but the Committee addressed this issue in isolation from Norway's reservation. 80
However, direct reference to Norway's reservation was made within the collective complaints procedure in the case of Fellesforbundet for Sjøfolk (FFFS) v Norway. The claimant in this case – FFFS – alleged that Norway had breached Article 12 of the ESC ‘on the grounds that prior to 1994, Spanish seamen working on ships under Norwegian jurisdiction were excluded from the social security system and in particular from the old age and disability pension schemes’. Norway objected by claiming, inter alia, that its ‘reservation means that Norway had not accepted the entirety of Article 12 of the 1961 Charter.’
81
In this context, the ECSR was compelled to directly address this reservation. Its assessment of this reservation is worth citing in full, as it summarised the ECSR's general position on reservations: The Committee recalls that despite the 1961 Charter containing no reservation clause, the Committee has in the past accepted that reservations may be made under the Charter, subject to certain conditions; in particular that the minimum number of provisions foreseen under Article 20 of the 1961 Charter, are accepted (…). It also considers that in accordance with a general principle of international law, as codified in the 1969 Vienna Convention of the Law on Treaties Article 19(c), reservations must not infringe the object and purpose of the Charter, and should not be too general in nature. It finds that Norway's reservation met these conditions, it is precise and limited in scope. Further Norway's acceptance of provisions remained above the minimum. Therefore, as a consequence of its reservation, whilst Norway was bound by the 1961 Charter it was not obliged to grant under the 1961 Charter, social security rights to foreign seamen not domiciled in Norway.
82
Such a detailed assessment of Norway's objection was necessary due to the specificity of the procedure under which it was made. This situation is different compared with the consideration of reports from States where the monitoring body analyses many different issues related to the implementation of a given treaty by the State being monitored. In the case of dealing with complaints, the ECSR (similarly to other bodies which also have judicial or quasi-judicial functions) has no other option but to address and assess the statements attached to the decision to ratify or accede to the given treaty, as this is a part of its admissibility decision.
What to Expect in the Future
As far as the ESC(rev) is concerned, the vast package of reservations and declarations submitted by Germany is still awaiting reaction from the ECSR as part of the procedure of the examination of national reports. The ESC(rev) entered into force with regard to Germany only in 2021, so, in accordance with Article 21 of the ESC, read in conjunction with Article C of the ESC(rev), one can expect the first report from this State in 2023.
Several collective complaints are pending (including nine against France 83 ); however, none of them relates to articles towards which States have formulated reservations or declarations. However, it cannot be ruled out that there will be new collective complaints which will also be based on the provisions covered by the reservations/declarations.
CONCLUSION
Despite the far-reaching flexibility in shaping the obligations of States ratifying or otherwise acceding to both European Social Charters and to the 1988 Protocol, many States Parties have not only taken advantage of this flexibility but are also unilaterally boosting the scope of this flexibility. They do so by making reservations, declarations, or both to provisions they have chosen to be bound by. Such a practice had already taken place several decades ago, after the adoption of the ESC. However, it still continues, a striking example being the exceptionally comprehensive package of reservations and interpretative declarations submitted to the ESC(rev) in 2021 by Germany.
The ECSR, acting by means of its two procedures, has the opportunity to address some of these reservations and declarations. When considering the States’ reports, it can always refer to the reservations or declarations, and when considering collective complaints it can refer to them only if the allegations concern a provision covered by a reservation or declaration. In the latter – much rarer – case, the Committee expresses its opinion very precisely, making de facto a full assessment of the legal character and admissibility of a given reservation/declaration – for example, an assessment of Norway's reservation to Article 12(4) of the ESC in its admissibility decision in the case of Fellesforbundet for Sjøfolk (FFFS) v Norway. In the case of examining the reports of States, the ECSR has much more freedom, and consequently, over the years, it has adopted various approaches. Sometimes the Committee limits itself to noting the fact in question, such as with Portugal's reservations to Articles 6(4) of both Charters; in other cases it remains silent, which may be interpreted as tacit acceptance of the reservation, such as with the Netherlands’ reservation to Article 19(20) of the ESC(rev). In other cases, the Committee may add its (negative) assessment of the reservation in question while refusing to recognise its legal effects, with Germany's reservation to Article 6 of the ESC for example, and in others it quite explicitly calls upon the State to withdraw its reservation, as it did with the Netherlands’ reservation to Article 6(4) of the ESC.
In the already cited case Fellesforbundet for Sjøfolk (FFFS) v Norway, the ECSR formulated precise conditions that a reservation must meet to be considered admissible:
Reservations may only be formulated when the acceptance of the provisions under the à la carte system remains above the minimum; in other words, the minimum number of provisions required under the relevant provisions of the Charters and the 1988 Protocols are accepted without reservations. This condition is specific only to the ESC system, that is to say, based on the à la carte system; Reservations must not infringe the object and purpose of the given treaty. This uncontroversial condition derives from Article 19(c) of the VCLT and is not only at the centre of the VCLT, it is also a notion which most of the debates on the permissibility of reservations have focused on;
84
Reservations should not be too general in nature. This requirement refers directly to one of the conditions regulated in Article 57(1) of the ECHR and further developed in the case law of the European Court of Human Rights.
In view of the States’ practices, the ECSR has been forced to face reservations and declarations. Despite its initially rather reserved stance in dealing with the reports of the States, it eventually developed its approach to reservations and declarations, and clearly asserted its competence in this regard. The Committee based the conditions for admissibility of reservations on the peculiarities of the à la carte system, the test of compliance with the object and purpose as codified in the VCLT, and the prohibition of general reservations, derived from the ECHR. Such positions must be generally met with an approval. Some doubts can only be raised with regard to the recourse to the test of compatibility with the object and purpose of the treaty. When the reserving State has complied with the first condition by adhering to the minimum number of provisions required under the à la carte approach, it can hardly be argued that the submitted reservation to one or more of the other – assumedly (by the drafters of the treaty) ‘voluntary’ – provisions can contradict the object and purpose of the treaty. The very design of à la carte systems makes it difficult to simply automatically apply a test of compliance with the object and purpose of the treaty. With such a degree of freedom to choose which provisions a party wishes to be bound by, it is difficult to unequivocally identify the core provisions of such a treaty which are usually pointed to as reflecting its object and purpose.
Nevertheless, it must be acknowledged that the Committee joins those human rights monitoring and adjudication bodies that take a clear and progressive stance on reservations and declarations. This practice was acknowledged by the ILC in its 2011 Guide to Practice on Reservations to Treaties, when it noted that a ‘treaty monitoring body may, for the purpose of discharging the functions entrusted to it, assess the permissibility of reservations formulated by a State’ 85 and, further, ‘States and international organizations that have formulated reservations to a treaty establishing a treaty monitoring body shall give consideration to that body's assessment of the permissibility of the reservations.’ 86
An important outcome of the above is the finding that, despite the far-reaching flexibility present in the European Social Charters and their Protocols, both the State Parties and the European Committee of Social Rights generally treat them as conventional treaties to which the general rules on reservations apply. Consequently, there is no basis for assuming that the mere fact of adopting the à la carte system in a treaty with no reservation clause implies a prohibition of reservations or otherwise discourages their formulation. For this to be the case, the drafters of the treaty in question should include a clause directly prohibiting reservations, as is the case, for example, with the 1992 European Charter for Regional or Minority Languages.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
