The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights

The system of collective complaints established by a Protocolto the European Social Charter has now been in force for a decade.The Protocol gives the European Committee on Social Rights (ECSR)the competence to examine complaints by social partner organisationsand non-governmental organisations (NGOs). The procedural aspectsof the system have been criticised, particularly the lack ofremedial powers and the significant role played by the Committeeof Ministers. Nonetheless, it is important to examine the practiceof the ECSR in deciding collective complaints, which revealsthat the ECSR has developed considerable economic and socialrights jurisprudence. It has articulated and elaborated on thevalues underlying the Charter. It has also employed techniquesof reasoning drawn in part from the European Court of HumanRights. The collective complaints system can therefore be regardedas a quasi-judicial process—the first in internationallaw specifically for economic and social rights.     

Charter rights & health care funding: a typology of Canadian health rights litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.