Human Rights Law Review 13:3 ß The Author [2013]. Published by Oxford University Press.

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Labour Rights in the European

Convention on Human Rights:
An Intellectual Justification for
an Integrated Approach to
Interpretation
Virginia Mantouvalou*

Abstract

Labour rights have been neglected in human rights law. Classified

usually as social rights, they have been excluded from key human
rights conventions. Recently, the European Court of Human Rights has
developed a technique, known as an ‘integrated approach to interpret-
ation’, because it integrates social and labour rights in the European
Convention on Human Rights. The first part of this article presents
case law and debates on the adoption of this technique, and also
discusses the example of Canada, where similar developments are

* Co-Director of the Institute for Human Rights and Lecturer in Law, University College London
([email protected]). This article is part of a project funded by the Arts and
Humanities Research Council, and I am grateful for this support. Earlier drafts were pre-
sented at Tel Aviv University in May 2011, the Industrial Law Society Annual Meeting at
Oxford University in September 2011, the ILO ‘Regulating Decent Work’ Conference in
Geneva in July 2011, the Institute for the Study of European Law of City University in May
2011, and the Centre for Transnational Legal Studies in London in December 2011. For in-
valuable feedback, I am grateful to the organisers of these workshops: Kevin Banks, David
Luban, Nicholas Hatzis, Judy Lichtenberg, Naomi Mezey, Guy Mundlak, Kerry Rittich, Hila
Shamir, Yofi Tirosh, to the students of Tel Aviv University and the Centre for Transnational
Legal Studies, and to all participants. I have also benefited from discussions with Einat
Albin, Harry Arthurs and James Nickel. Finally, thanks are due to Hugh Collins, Judy Fudge,
George Letsas, Valerio de Stefano and Charlie Webb for comments on an earlier version.

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Human Rights Law Review 13:3(2013), 529^555
530 HRLR 13 (2013), 529^555

taking place. It finds controversy in literature, and uncertainty in judi-

cial decision-making. The second part, therefore, develops a normative
justification for the integrated approach in interpreting labour rights.

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This is based on freedom, a key value underlying civil and political
rights. Negative accounts of freedom are inadequate, though, for
reasons that the article explains. Instead, it analyses positive freedom
in light of the theory of capabilities, which leads to the collapse of
sharp divisions between groups of rights. A positive account of freedom
as capability requires the protection of labour rights under the
European Convention on Human Rights, and leads to the development
of important principles on human rights at work.
Keywords: social rights ^ labour rights ^ capabilities theory ^ European
Convention on Human Rights

1. Introduction
In jurisdictions the world over, courts have engaged in the complex task of
exploring the relationship between civil and political rights, on the one hand,
and economic and social rights, on the other. This process has been taking
place in the context of the interpretation of justiciable civil and political rights
documents, as a response to individual petitions that questioned the dichotomy
between the two groups of entitlements. Courts and other monitoring bodies
have been faced with difficult questions of substance and competence: do
social rights impose duties similar to civil and political rights or are they
clearly distinguishable? Can judicial interpretation of a human rights docu-
ment extend to areas that the drafters never envisaged, and if so, in what
circumstances and to what extent? Viewed as social and collective rights, but
appearing also in traditional civil rights documents, labour rights have often
been at the forefront of academic debates.
The aim of this article is to give a principled justification for protecting
labour rights as a part of civil and political rights conventions. The main
focus of the analysis is on the European Convention on Human Rights (ECHR
or ‘the Convention’), which has given rise to controversial decisions in recent
years (section 2). The article explores an interpretive method that has come to
be known as ‘an integrated approach to interpretation’. It is an integrated
approach, because it integrates certain socio-economic rights into civil and
political rights documents. Even though the European Court of Human
Rights (ECtHR or ‘the Court’) has sometimes been willing to expand the scope
of civil and political rights in the area of labour rights, at other times there
has been uncertainty, which is evident both in the outcomes reached and the
reasoning. This article describes the process and suggests that the uncertainty
in these moral, legal and political questions is due to the fact that the inte-
grated approach has mainly rested on reliance on materials of labour rights
 Labour Rights in the European Convention on Human Rights 531

bodies, such as the International Labour Organisation (ILO), which provoked

much controversy among judges and academic scholars. The problem is also
evident in the context of the Canadian Charter of Rights and Freedoms,

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which has addressed similar issues as discussed in section 3.
What emerges from the developments and debates is that the work of bodies
like the ILO can help contextualise human rights questions in the employment
sphere. However, what is missing in the process of interpretation is a theoret-
ical justification. Where can we find such a justification for the integrated ap-
proach to interpretation in the area of labour rights? In order to address this
question, the article turns to human rights theory. Section 4 looks at the idea
of the indivisibility of rights, first, and the concept of freedom, second, as a jus-
tification. This section argues that liberty, which is a commonly articulated
basis of civil and political rights, is equally critical as a basis for social and
labour rights too. What is needed is a positive account of freedom, though,
which this article advances. This takes account of issues such as material re-
sources and availability of options, and is here analysed in light of the theory
of human capabilities. This analysis of freedom underlies all groups of rights,
leads to the collapse of sharp divisions between them, and requires the adop-
tion of the integrated approach to interpretation.

2. The European Convention on Human Rights

A definition of labour rights is necessary before moving on. Labour rights are
entitlements that relate specifically to the role of being a worker. They can in-
clude a right to work in a job freely chosen; a right to fair working conditions,
which may encompass issues as diverse as a just wage or protection of privacy;
a right to be protected from arbitrary and unjustified dismissal; a right to
belong to, and be represented by, a trade union; and a right to strike. Some of
these rights can only be exercised individually and others collectively. Each of
these rights may give rise to positive or negative duties. Even though differing
between themselves, all these entitlements should be examined together for
they arise in the employment context.
Labour rights have mostly been incorporated in social rights treaties,
but some of their aspects have been included in civil rights documents.
The European regional system of the Council of Europe provides an excellent
illustration of the question of the legal protection of labour rights. As is well
known, the Convention primarily concerns civil and political rights, and the
European Social Charter (ESC or ‘the Charter’) guarantees social and eco-
nomic rights. Most labour rights are protected in the ESC. The ECHR provides
for a right to individual petition to the ECtHR. The ESC is monitored by
the European Committee of Social Rights (ECSR or ‘the Committee’), which
issues periodic reports and hears collective complaints.
532 HRLR 13 (2013), 529^555

A. The ‘Exclusive Approach’

The ECtHR was traditionally reluctant to protect the alleged social components

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of the Convention. Even though in the early landmark case Airey v Ireland,1 it
held that there is no watertight division between the Convention and social
rights, its position was far from consistent. Francine van Volsem v Belgium2
involved the question whether cutting off, or the threat to cut off, the electri-
city from the applicant’s council flat, while she was depressive and with
chronic respiratory problems that made it difficult for her to find a job, while
she was also caring for her ill grandchild, constituted degrading and humiliat-
ing treatment. The Commission, examining the admissibility of the application,
held that, although in principle facts such as these might give rise to a breach
of Article 3 that prohibits inhuman and degrading treatment, the minimum
level of severity was not attained. The complaint was, therefore, declared inad-
missible. The judicial protection of a social minimum of decency under the
Convention was uncertain, and the decision was criticised by leading scholars,
like Antonio Cassese.3
Labour rights case law illustrates the problem. The Convention explicitly
protects two labour rights only: the right to form and join a trade union and
the prohibition of slavery, servitude, forced and compulsory labour. Yet in a
line of cases that were decided in the 1970s, 1980s and 1990s, looking at trade
union rights, the Court repeatedly ruled that when a right can be classified as
social and is protected in the ESC or in instruments of the ILO, it ought to be
excluded from the ECHR. When applicants alleged that Article 11 (the right to
form and join a trade union), encompasses a right to strike, for instance, the
claim was rejected.4 Similarly, the right to consultation and the right of a
union to be recognised for the purposes of collective bargaining were not
regarded as essential components of Article 11.5 The Commission and Court
created what Craig Scott called a ‘ceiling effect’;6 the ceiling being, in this con-
text, the ESC and the ILO.
This approach can also be called the ‘exclusive approach’, because the Court
excluded social and labour rights from the scope of the ECHR, for the reason
that they were protected in the ESC. Unsurprisingly, the jurisprudence where
the Court adopted this stance gave human rights a bad name in labour law
scholarship. Labour lawyers, like Keith Ewing, were sceptical about the effect
of the Convention on rights of the socio-economic sphere, and questioned the

1 A 32 (1995); 2 EHRR 305.

2 (1991) 1 Droit Social 88. Discussed by Pettiti,‘Pauvrete¤ et Convention Europe¤enne des Droits de
l’ Homme’ (1991) 1 Droit Social 84.
3 Cassese, ‘Can the Notion of Inhuman or Degrading Treatment Be Applied to Socio-Economic
Conditions?’ (1991) 2 European Journal of International Law 141.
4 Schmidt and Dahlstrom v Sweden A 21 (1976); 1 EHRR 632.
5 National Union of Belgian Police v Belgium A 19 (1975); 1 EHRR 578.
6 Scott, ‘Reaching Beyond (Without Abandoning) the Category of ‘‘Economic, Social and
Cultural Rights’’’ (1999) 21 Human Rights Quarterly 633 at 638^39.
 Labour Rights in the European Convention on Human Rights 533

role of human rights for labour law altogether.7 Tonia Novitz said that the
Court shows ‘a greater interest on the defence of individual autonomy than
collective solidarity’,8 and Lord Wedderburn described the case law as ‘individ-

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ual and formalistic’.9
That the decisions of the Court were criticised does not mean that they
cannot be explained. Two reasons may explain the exclusive approach: first,
the strict separation between civil and political rights and economic and
social rights that was prevalent in international human rights law in the
second half of the twentieth century; second, the fact that international
human rights law traditionally regulated the relationship between the state
and the individual, while the employment relationship is usually part of the
private sphere. Both these assumptions have been challenged in recent years.

(i) Civil/social
Being classified as social rights, labour rights were neglected in international
human rights law.10 In the context of the ILO, their monitoring was weak.11
Many liberal constitutions and human rights documents either did not protect
them at all, or did not protect them on an equal footing with civil and political
rights. There are, of course, certain examples of European national legal
orders that incorporate social and labour rights.12 In Italy, for instance, they
feature in a section of the Constitution;13 in Spain certain labour rights are
protected together with other civil and political rights, while other social and
labour rights are classified as principles of social policy;14 in Greece, social
and labour rights are protected together with civil and political rights.15 Yet
in many other jurisdictions at national level, in common law countries
mainly, and at international level, they were neglected. This was due to the

7 See, for instance, Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 Industrial Law
Journal 275.
8 Novitz, International and European Protection of the Right to Strike (Oxford: Oxford University
Press, 2003) at 238.
9 Wedderburn, ‘Freedom of Association or Right to Organise? The Common Law and
International Sources’, in Lord Wedderburn (ed.), Employment Rights in Britain and Europe
(London: Lawrence and Wishart, 1991) 138 at 144.
10 See, for instance, Macklem, ‘The Right to Bargain Collectively in International Law: Workers’
Right, Human Right, International Right?’, in Alston (ed.), Labour Rights as Human Rights
(Oxford: Oxford University Press, 2005) 61 at 83.
11 See, for instance, the discussion of recent developments in Alston, ‘‘‘Core Labour Standards’’
and the Transformation of the International Labour Rights Regime’ (2004) 15 European
Journal of International Law 457; see also Alston, ‘Labour Rights as Human Rights: The Not
So Happy State of the Art’, in Alston, ibid. at 1.
12 See Fabre, ‘Social Rights in European Constitutions’, in de Burca and de Witte (eds), Social
Rights in Europe (Oxford: Oxford University Press, 2005) 15.
13 Title III Constitution of the Italian Republic 1947.
14 Spanish Constitution 1978, Chapter 1 on Fundamental Rights and Chapter 3 on Social Policy
Principles.
15 Part II Greek Constitution 1975.
534 HRLR 13 (2013), 529^555

supposed sharp differences between the two groups of entitlements. On a view

commonly advanced in the second half of the twentieth century, civil and
political rights are negative, cost-free and have easily definable content. Social

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rights are positive, resource demanding and vague. For these reasons, these
should not even be seen as rights;16 or even if they are, a court is an inappropri-
ate forum to decide questions that are abstract and resource demanding.
These should better be left to the discretion of people’s elected representatives,
rather than the hands of unelected and unaccountable judges.17
The above assumptions have been put into question in recent years by
two lines of developments. First, in theory, the conceptual division between
the two groups of entitlements has been challenged. Scholars have shown
that civil, political, economic and social rights can give rise to positive and
resource demanding state obligations.18 They face similar interpretive chal-
lenges, which can be overcome by theoretical and judicial engagement
through interpretation. Second, in practice, social rights (including labour
rights) have been recognised as legal entitlements of a higher status than
ordinary legislation in several jurisdictions. Various countries, international
and regional organisations have incorporated them in human rights treaties
and constitutions, and made them enforceable through individual or collective
petitions. The South African Constitution of 1996 and the case law of the
Constitutional Court have come to be exemplary in these debates. At interna-
tional level social rights became enforceable through individual petition in
the United Nations (UN) and through collective complaints in the ESC. The
EU Charter of Fundamental Rights 2000, which became legally binding
through the Treaty of Lisbon, similarly incorporated both civil and political,
and socio-economic rights.19 The sharp line between civil and social rights
started to fade away in recent years, and the real question emerged: what is
the best way to give legal force to social rights?20

(ii) Public/private
There is a second reason why the applicability of human rights law tradition-
ally appeared very limited when it came to workplace relations. At its incep-
tion, international human rights law regulated the public sphere, namely the
way in which the state treats its people, and not the private sphere, namely

16 See, among others, Cranston, Human Rights Today (London: Ampersand Press, 1962) at 38^9.
17 Gearty, ‘Against Judicial Enforcement’, in Gearty and Mantouvalou (eds), Debating Social
Rights (Oxford: Hart Publishing, 2011) 54ff.
18 See Holmes and Sunstein,The Cost of Rights ^ Why Liberty Depends on Taxes (New York: Norton,
2000); and Fredman, Human Rights Transformed (Oxford: Oxford University Press, 2008).
19 For an overview of the issue in various national and supranational jurisdictions, see Langford
(ed.), Social Rights Jurisprudence ^ Emerging Trends in International and Comparative Law
(Cambridge: Cambridge University Press, 2008); and Barak-Erez and Gross (eds), Exploring
Social Rights (Oxford: Hart Publishing, 2007).
20 Mantouvalou, ‘In Support of Legalisation’, supra n 17 at 107ff.
 Labour Rights in the European Convention on Human Rights 535

how people treat each other. Private relations were (and still are) generally
regulated by private law. Labour law primarily involves the relationship be-
tween the employer and the worker who are most of the time private actors,

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and hence beyond the reach of human rights.
Yet human rights law has over recent years been found to give rise to posi-
tive state obligations to regulate private conduct in several jurisdictions, both
at international and at national level.21 Convention case law provides ample
evidence of positive state obligations. The Court has found in a number of
cases that the ECHR imposes duties to act on the state, when conduct of private
individuals is at stake. In Opuz v Turkey,22 for instance, it examined the severe
abuse to which a man subjected his wife. It ruled that Turkey violated its posi-
tive obligations under Articles 2 (the right to life), 3 (prohibition of torture
and inhuman treatment) and 14 (prohibition of discrimination) of the
Convention by failing to protect the applicant. Positive obligations can be
imposed when there is imbalance of power between private parties, and state
authorities know or ought to have known that one of the private actors
abused the position of power.
The imbalance of power between parties that requires positive intervention
is very familiar in labour law, where it is used to justify unionisation or legisla-
tive intervention.23 The existence of positive obligations, it ought to be
explained, does not mean that an individual who has a claim under the
Convention can turn against another individual directly. The horizontal effect
of the ECHR is indirect: it is the state that may be liable for failing to protect
individuals from abuse by other individuals.

21 See generally Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford
University Press, 2006); Kumm, ‘Who Is Afraid of the Total Constitution? Constitutional
Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law
Journal 341; Collins, ‘Utility and Rights in Common Law Reasoning: Rebalancing Private Law
through Constitutionalization’ (2007) 30 Dalhousie Law Journal 1; and Nolan, ‘Addressing
Economic and Social Rights Violations by Non-State Actors Through the Role of the State: A
Comparison of Regional Approaches to the ‘‘Obligation to Protect’’’ (2009) 9 Human Rights
Law Review 225.
22 Application No 33401/02, Merits, 9 June 2009. For analysis of positive obligations under
the ECHR, see Mowbray, The Development of Positive Obligations under the European
Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing,
2004).
23 There is much literature on the justification for labour law. For an introduction, see Collins,
Ewing and McColgan, Labour Law (Cambridge: Cambridge University Press, 2012) at Chapter
1. For discussion of other justifications, see Collins, ‘Labour Law as a Vocation’ (1989) 105
Law Quarterly Review 468; Collins, ‘Theories of Rights as Justifications for Labour Law’, in
Davidov and Langille (eds), The Idea of Labour Law (Oxford: Oxford University Press, 2011)
137; Davies, Perspectives on Labour Law, 2nd edn (Cambridge: Cambridge University Press,
2009); Davies, ‘Identifying ‘‘Exploitative Compromises’’: The Role of Labour Law in Resolving
Disputes Between Workers’ (2012) 65 Current Legal Problems 1; Mantouvalou, ‘A re Labour
Rights Human Rights?’ (2012) 3 European Labour Law Journal 151; and Mundlak, ‘Industrial
Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages’ (2008)
8 Theoretical Enquiries in Law 531.
536 HRLR 13 (2013), 529^555

Civil and political rights cannot be sharply separated from economic and
social rights. At the same time human rights law may be applicable to private
conduct. Did these two developments affect the exclusive stance of the Court,

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described earlier on?

B. The ‘Integrated Approach’

Perhaps due to the developments sketched above, among other reasons, the
case law of the Court took a turn in recent years when it employed an inter-
pretive method, which came to be known as an ‘integrated approach’ to inter-
pretation.24 It is an integrated approach, because it integrates certain
socio-economic rights into a civil and political rights document. This inte-
grated approach characterises the work of the ILO more generally and has
also been described as a ‘holistic approach’.25 Applied to the ECHR, it means
that certain social and labour components are essential elements of the
Convention, and should therefore be protected as such.
In the area of labour rights under the Convention, the adoption of the
integrated approach is found in two key fields: on the one hand, we have a
line of cases that look at collective labour rights under Article 11; on the
other, there is case law that involves access to work and decent working condi-
tions under Articles 8 (the right to private life) and 4 (prohibition of slavery,
servitude, forced and compulsory labour).
In a series of cases, the Court took cognisance of social and labour rights
materials of other international bodies that illuminated the scope of the
Convention. The first labour rights case where the Court adopted the inte-
grated approach was Wilson, National Union of Journalists and Others v United
Kingdom,26 a collective labour law case that ruled that the UK was in breach
of Article 11. In Sidabras and Dziautas v Lithuania,27 the Court read a social
right, the right to work, into Article 8 of the ECHR that protects the right to pri-
vate life. In these two cases, the Court took note of ESC and ILO materials.
Siliadin v France28 held that lack of criminalisation of extremely harsh working

24 The term was used by Scheinin, ‘Economic and Social Rights as Legal Rights’, in Eide, Krause
and Rosas (eds), Economic, Social and Cultural Rights (Dordrecht: Martinus Nijhoff, 2002) 32.
25 Leary, ‘The Paradox of Workers’ Rights as Human Rights’, in Compa and Diamond (eds),
Human Rights, Labor Rights and International Trade (Philadelphia: University of Pennsylvania
Press, 1996) 22 at 40.
26 2002-V; 35 EHRR 523. For analysis, see Ewing, ‘The Implications of Wilson and Palmer’ (2003)
32 Industrial Law Journal 1.
27 2004-VIII; 42 EHRR 104. For analysis, see Mantouvalou, ‘Work and Private Life: Sidabras and
Dziautas v Lithuania’ (2005) 30 European Law Review 573.
28 2005-VII; 43 EHRR 287. See Mantouvalou, ‘Servitude and Forced Labour in the 21st Century:
The Human Rights of Domestic Workers’ (2006) 35 Industrial Law Journal 395; and Cullen,
‘Siliadin v France: Positive Obligations Under Article 4 of the European Convention on
Human Rights’ (2006) 6 Human Rights Law Review 585.
 Labour Rights in the European Convention on Human Rights 537

conditions, such as those faced by the applicant migrant domestic worker,

amounted to a breach of Article 4. In ruling this, the Court relied on several
ILO materials. In Rantsev v Cyprus and Russia,29 where the Court was asked to

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examine the alleged violation of Article 4 (among other provisions), it was
satisfied that the provision covers human trafficking. The Court took note of
international conventions on human trafficking in support of its decision.
Unsurprisingly, this interpretive technique made the Court much more open
to labour rights than it had been in the past, bringing civil and social rights a
step closer.
However, reliance on materials of other bodies was strongly questioned in
the Grand Chamber case Demir and Baykara v Turkey.30 The facts were as fol-
lows: Tum Bel Sen, a civil servants’ trade union, had been recognised for the
purposes of collective bargaining and had also concluded collective agree-
ments. Following litigation, Turkish courts found that these agreements
should be annulled, because civil servants’ unions should not have been recog-
nised as having a right to conclude them in the first place. In examining the
complaint, the Court made mention of several ILO and other relevant docu-
ments, at which point Turkey raised an objection: how can it be legitimate for
the Court to use ILO Conventions even though Turkey had not signed and rati-
fied some of them? How could the ECtHR impose on it international obligations
that Turkey had never agreed to undertake?
The Grand Chamber of the Court was clear: ‘the Court has never considered
the provisions of the Convention as the sole framework of reference’ for its in-
terpretation.31 According to the rules of interpretation found in the Vienna
Convention on the Law of Treaties 1969, a treaty ought to be interpreted ac-
cording to its object and purpose. The object and purpose of a document that
protects human rights is, according to a well-established principle of the
Court, to make these rights ‘practical and effective, not theoretical and illu-
sory’.32 The interpretation of the Convention must also take account of other
rules of international law,33 and read it as a ‘living’ document according to
‘present-day conditions’.34 Several materials can serve to elucidate the content
of the Convention, both from other international organisations and from the
Council of Europe itself. In addition, when taking note of the relevant mater-
ials, the Court stressed that it never distinguishes between documents
that the Respondent State has signed and ratified and those that it has not.35

29 Rantsev v Cyprus and Russia Application No 25965/04, Merits, 10 January 2010; noted in
Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking
as Slavery’ (2010) 10 Human Rights Law Review 546.
30 48 EHRR 54.
31 Ibid. at para 65.
32 Ibid. at para 66.
33 Ibid. at para 67.
34 Ibid. at para 68.
35 Ibid. at para 78.
538 HRLR 13 (2013), 529^555

Not only that, but at times it has paid attention to materials that are not, at the
time, legally binding, such as the EU Charter of Fundamental Rights.36

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(i) Optimism
The integrated approach to interpretation can be better understood if it is set
against the background of the idea of cross-fertilization,37 which is said to
take place when a monitoring body is willing to refer to other bodies’ jurispru-
dence. Looking at the Convention system in particular, Judge Rozakis sug-
gested that it is ‘in constant dialogue with other legal systems’:38 namely the
European legal order, the international legal order and other national legal
orders.39 The ECtHR and its judges ‘do not operate in the splendid isolation of
an ivory tower built with materials originating solely from the ECHR’s inter-
pretative inventions or those of the States party to the Convention’. Materials
of other bodies have gained weight in the case law and ‘[t]his is a good sign
for the founders of a court of law protecting values which by their nature are
inherently indivisible and global’.40
By taking note of social and labour rights materials, the Court benefits from
their expertise in the labour law field. The legitimacy of its decisions may also
be enhanced when they are based on consensus of more than one supra-
national bodies on issues that have proved to be controversial. Labour rights
are definitely one such issue, so making mention of other bodies’ position has
positive effects.
The reliance of the ECtHR on expert bodies in the above line of cases revived
the interest of labour law scholars, who had been disappointed by early ECHR
case law. Ewing said that Wilson is a decision that would ‘restore confidence
in Article 11 of the Convention’.41 More recently, Ewing and Hendy charac-
terised Demir and Baykara an ‘epoch making’ judgment,42 and said that in
this decision ‘human rights have established their superiority over economic
irrationalism and ‘‘competitiveness’’ in the battle for the soul of labour law,
and in which public law has triumphed over private law and public lawyers
over private lawyers’.43 Siliadin was also welcomed for opening up the

36 Ibid. at para 80. For analysis against the background of Strasbourg’s methods of interpretation
more generally, see Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International
Lawyer’ (2010) 21 European Journal of International Law 509 at 521^3.
37 Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997^1998)
107 Yale Law Journal 273 at 323.
38 Rozakis, ‘The European Judge as a Comparatist’ (2005) 80 Tulane Law Review 257 at 268.
39 Ibid. at 269^70.
40 Ibid. at 278^9.
41 Ewing, supra n 26 at 5.
42 Ewing and Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law
Journal 2 at 47.
43 Ibid. at 47^8.
 Labour Rights in the European Convention on Human Rights 539

Convention to claims of grave labour abuse, raising awareness and leading to

legislative reform.44 Countouris and Freedland examined the compatibility
of UK law on strikes with ECHR principles.45 Finally, Collins suggested that ‘it

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is important to appreciate that recent years have revealed a profound reorien-
tation in the ECHR’s interpretation of Convention rights in the context of
the workplace and employment relations’.46 Human rights law scholars too
explored how far this interpretive method could go in rights at work and
other social rights.47
These developments were significant, both for providing broader protection
to social and labour rights, which are monitored weakly in Europe and inter-
nationally, and for questioning the traditional division between civil, and
social and labour rights.

(ii) Dilemma and disappointment again

But the optimism about the potential of the adoption of the integrated
approach was not bound to last long. In another judgment, Sorensen and
Rasmussen v Denmark,48 it became clear that mere reliance upon materials of
other international organisations was not a panacea. The case involved the
right not to associate, which the Court has found to be a component of
Article 11 of the Convention. Relying heavily on materials of the ECSR, the
Grand Chamber examined the compatibility of ‘closed shop’ agreements with
the ECHR.49 The majority held that agreements which impose an obligation
on employees to be members of a particular trade union with which the em-
ployer has agreed to negotiate, violate the Convention. In terms of the reason-
ing that relies on materials of expert bodies, the Sorensen and Rasmussen case
raised the following issue: at the same time that the ECSR holds that closed
shops breach the ESC, the ILO leaves discretion to member states; it does not
find that compulsory union membership is contrary to ILO documents. The
integrated approach, which had relied on experts’ opinions up to that point,
was faced with a dilemma. What should the ECtHR do when expert bodies do
not agree?

44 Mantouvalou, ‘Modern Slavery: The UK Response’ (2010) 39 Industrial Law Journal 425.
45 Countouris and Freedland,‘Injunctions, Cyanamid, and the Corrosion of the Right to Strike in
the UK’ (2011) 1 European Labour Law Journal 489.
46 Collins, ‘The Protection of Civil Liberties in the Workplace’ (2006) 69 Modern Law Review 619
at 627.
47 O’Cinneide, ‘A Modest Proposal: Destitution, State Responsibility and the European
Convention on Human Rights’ (2008) European Human Rights Law Review 583; and
O’Connell, ‘The Right to Work in the ECHR’ (2012) 2 European Human Rights Law Review 176.
48 2006-I; 46 EHRR 572.
49 This question had been examined in past case law. For analysis of the issue see Mantouvalou,
‘Is There a Human Right not to Be a Trade Union Member?’, in Novitz and Fenwick (eds),
Human Rights at Work ^ Perspectives on Law and Regulation (Oxford: Hart Publishing,
2010) 439.
540 HRLR 13 (2013), 529^555

The case Palomo Sanchez v Spain50 can further illustrate the point that ma-
terials of expert bodies do not play a decisive role in the determination of
whether there is a breach of the Convention. The question was whether the

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dismissal of employees for publishing offensive materials in a trade union
newsletter violated freedom of expression (Article 10) read together with
Article 11. The Grand Chamber took note of Recommendation 143 of the ILO
and other relevant materials examining the special role of freedom of expres-
sion in the trade union context. However, the majority rejected the claim of
the applicants on the basis of the specific facts of the case, rather than the
issue of principle. Domestic courts did not reach an unreasonable decision, as
the Court said.51 A powerful dissent disagreed with the approach of the major-
ity for not being appreciative of the specific context.52 Even though the major-
ity mentioned international legal materials of the ILO and the judgment of
the Inter-American Court of Human Rights, it gave them insufficient attention,
in the view of the dissenting judges, who said that the majority was mistaken
in balancing the conflicting interests.
Judge Rozakis also stressed that use of materials of other bodies alone does
not answer the most difficult moral, legal and political questions that the
Court must address. He admitted that ‘to be fair in regard to the way in which
the ECtHR assesses the value of these documents, reference to one of them
does not automatically lead it to rely solely or exclusively on it in reaching its
decisions; the ECtHR is free to consider all the material before it, in full know-
ledge of its legal value and validity, and to decide accordingly.’53
The Court’s uncertainty on the relationship between the Convention and
social rights became even more striking in another (non-labour rights) Grand
Chamber case, N v United Kingdom.54 This judgment dealt with the issue of
medical asylum. In developing its reasoning in a striking passage of the major-
ity opinion, the Court said: ‘[a]lthough many of the rights it contains have im-
plications of a social or economic nature, the Convention is essentially
directed at the protection of civil and political rights.’55 This statement marks
a retrograde step in the protection of socio-economic aspects of the rights pro-
tected under the ECHR, and was strongly criticised by Judges Tulkens, Bonello
and Spielmann.56

50 Application Nos 28955/06, 28957/06, 28959/06 and 28964/06, Merits, 12 September 2011.
51 Ibid. at 74.
52 See dissenting Opinion of Judges Tulkens, Tho¤r Bjo«rgvinsson, Joc› iene, Popovic¤ and Vuc› inic¤.
53 Rozakis, supra n 38 at 275.
54 47 EHRR 885.
55 Ibid. at para 44.
56 Ibid. at Dissenting Opinion, para 6. For analysis of the judgment, see Mantouvalou, ‘N v UK:
No Duty to Rescue the Nearby Needy?’ (2009) 72 Modern Law Review 815.
 Labour Rights in the European Convention on Human Rights 541

Sorensen and Rasmussen, Palomo Sanchez and N v United Kingdom revealed

weaknesses: first, reliance on the views of expert bodies cannot do all the
work, not least because experts may disagree; second, and more generally,

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there is uncertainty as to the social aspects of the Convention, as well as to
how much attention has to be paid to ILO and ESC materials. The ILO, the
ECSR or other international bodies cannot replace the Court’s duty to reason
morally and legally, in the same way that our moral thinking and reasoning
cannot be done by others.

3. Canada
The raising of questions concerning the protection of social rights in the con-
text of civil and political rights documents is not a development unique to
Strasbourg jurisprudence. The example of Canada has raised dramatic contro-
versy in academic literature, with important implications for workers’ rights.
The Canadian Charter of Rights and Freedoms follows the model of the
ECHR: it does not explicitly protect social rights. Section 2(d) of the Charter
protects workers’ freedom of association. For many years, the Supreme Court
of Canada excluded collective bargaining and the right to strike from the
scope of freedom of association. In jurisprudence known as the Labour Trilogy,
the Court examined three separate claims: one regarding Alberta statutes
that did not permit many categories of public servants to go on strike and
required compulsory arbitration instead;57 the second involving federal legisla-
tion on public sector wage control that impaired the power to bargain collect-
ively for two years;58 and the third one involving a provincial statute that
banned temporarily a lawful strike in the dairy industry.59 The Court refused
to recognise that the Charter protects the right to collective bargaining and
the right to strike. In the Alberta Reference case, Justice Le Dain stated that
‘modern rights to bargain collectively and to strike, involving correlative
duties or obligations resting on an employer, are not fundamental rights or
freedoms. They are the creation of legislation, involving a balance of competing
interests in a field which has been recognized by the courts as requiring a spe-
cialized expertise.’60 For this reason, it was ruled to be compatible with the
role of the Court to interpret the Charter in light of ‘modern rights’ that were
not explicitly mentioned in the provision in question.
Labour law scholars criticised the Labour Trilogy. Arthurs said that in this
line of cases the ‘score was management three, labour nil ’,61 expressing

57 Reference Re Public Service Employee Relations Act (Alberta) [1987] 1 SCR 313.
58 Public Service Alliance of Canada v Canada [1987] 1 SCR 424.
59 Retail, Wholesale and Department Store Union, Locals 544, 496, 635 and 955 v Government of
Saskatchewan [1987] 1 SCR 460.
60 See supra n 57 at para 144.
61 Arthurs, ‘Labour and the ‘‘Real’’ Constitution’ (2007) 48 Cahiers de Droit 43 at 47^8.
542 HRLR 13 (2013), 529^555

pessimism about the role of constitutional rights and constitutional courts for
the protection of workers. Christian and Ewing examined the developments in
relation to the ECHR and the UK experience, and said that ‘incorporation of

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the European Convention as an equivalent document into domestic [UK] law
will offer little protection from government attacks and may indeed create an-
other platform for further restrictions on the unions’.62 As the Canadian devel-
opments occurred before the incorporation of the ECHR into UK law, they
suggested that if incorporation took place, an effort should be made to protect
trade unions from the human rights document itself, as it could have a harm-
ful effect on the interests of workers.
However, in 2007, in the case B.C. Health Services63 the Supreme Court of
Canada ruled that Section 2(d) of the Canadian Charter includes a right of
unions to engage in collective bargaining, and imposes on employers a duty
to consult and negotiate in good faith. In doing so, it relied on Canada’s under-
takings in international law, paying special attention to materials of the ILO,
such as Convention No 87 on Freedom of Association and Protection of the
Right to Organise 1948, the ILO Declaration of Fundamental Principles and
Rights at Work, as well as reports and observations of the Committee of
Experts and the Committee on Freedom of Association. It also discussed other
international human rights documents, as well as the surrounding academic
literature. The Court said that international materials can assist it in the inter-
pretation of the Charter,64 that the Charter should be interpreted as providing
protection at least equal to that in international treaties that Canada has rati-
fied,65 and that ‘these documents reflect not only international consensus, but
also principles that Canada has committed itself to uphold’.66 Several
Canadian scholars generally embraced this development for recognising fun-
damental labour rights in the Charter.67
However, the reasoning of the Canadian Supreme Court, which took note of
ILO materials, was also seriously questioned. In a series of articles, Brian

62 Christian and Ewing, ‘Labouring Under the Canadian Constitution’ (1988) 17 Industrial Law
Journal 73 at 90.
63 B.C. Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia 2007
SCC 27, [2007] 2 SCR 391.
64 Ibid. at para 69.
65 Ibid. at para 70.
66 Ibid. at para 71.
67 See, for instance, Blackett, ‘Mutual Promise: International Labour Law and B.C. Health
Services’ (2009) 48 Supreme Court Law Review 365; see also Brunelle, ‘La Liberte¤
d’Association Se Porte Mieux: Un Commentaire de l’A rre“t Health Services’ (2009) Confe¤ rence
des juristes de l’E¤tat 2009: XVIIIe Confe¤ rence 237. For further (not un-critical) discussion, see
Fudge, ‘The Supreme Court of Canada and the Right to Bargain Collectively: The
Implications of the Health Services and Support Case in Canada and Beyond’ (2008) 37
Industrial Law Journal 25; and Etherington, ‘The B.C. Health Services and Support Decision: The
Constitutionalization of a Right to Bargain Collectively in Canada: Where Did It Come from
and Where Will It Lead?’ (2009) 30 Comparative Labor Law and Policy Journal 715.
 Labour Rights in the European Convention on Human Rights 543

Langille challenged the Court’s reasoning for several reasons.68 Langille was
particularly critical of the Court’s reliance upon ILO jurisprudence, namely
the adoption of an integrated approach to the interpretation of the Canadian

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Charter. His criticism was based on questions such as these: why did
the Court take note of opinions of ILO bodies, which are not judicial bodies
and do not have the power to issue authoritative interpretations of ILO
Conventions? Why did it rely on the ILO Declaration of Fundamental
Principles and Rights at Work, without explaining that it is merely a
Declaration, and not a binding Convention? How did the Court take note of
Convention 98 that has not been signed by Canadaçan objection that echoes
the position of Turkey in the Demir and Baykara case?
The criticism of the use of international labour law materials in the inter-
pretation of the Charter did not remain unanswered.69 However, the stance of
the Canadian Supreme Court led to even greater controversy in 2011, in the
Fraser judgment.70 The case examined Ontario legislation, which involved agri-
cultural workers. The legislation did not recognise a mechanism through
which trade unions or other representatives could obtain collective bargaining
rights. The effect was that agricultural workers were treated differently to
other groups of workers in Canada. Fraser weakened the duty recognised in
B.C. Health Services from an obligation of the employer to bargain in good
faith, to an obligation to good faith consideration of workers’ representations.
Leaving the substantive outcome of the case on the side (the weak protection
of a traditionally vulnerable group of workers, which Abella J emphasised),71
the relationship between the Canadian Charter and international labour law
came again to the forefront of the debate. The majority of the Court ruled that
ILO treaties which Canada has ratified are relevant to the interpretation of con-
stitutional guarantees: ‘Charter rights must be interpreted in light of Canadian
values and Canada’s international and human rights commitments.’72
Justice Rothstein, however, citing Langille’s arguments, stressed that Canada
has not ratified Convention 98 of the ILO, which cannot therefore be used as
authority.73

68 Langille, ‘Can we Rely on the ILO?’ (2008) 13 Canadian Labour & Employment Law Journal
363; and Langille, ‘The Freedom of Association Mess: How we Got Into it and How we Can
Get Out of it’ (2009) 54 McGill Law Journal 177. For further critical discussion, but from
a different perspective to Langille, see Tucker, ‘The Constitutional Right to Bargain
Collectively: The Ironies of Labour History in the Supreme Court of Canada’ (2008)
61 Labour/Le Travail 151.
69 See Adams, ‘The Supreme Court, Collective Bargaining and International Law: A Reply to
Brian Langille’s ‘‘Can we Rely on the ILO?’’’ (2008) 14 Canadian Labour and Employment Law
Journal 317.
70 Ontario (Attorney General) v Fraser 2011 SCC 20, [2011] 2 SCR 3.
71 Ibid. at Dissenting Opinion of Abella J, paras 348^50.
72 Ibid. at para 92; see also para 93.
73 Ibid. at para 248 (per Rothstein J).
544 HRLR 13 (2013), 529^555

Academic scholarship from both ends of the debate’s spectrum has been
critical of Fraser, both for its outcome and the reasoning.74 Scholars that were
in favour of the integrated approach in the interpretation of the Canadian

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Charter expressed scepticism particularly because of the lack of consistency
in engaging with ILO jurisprudence. Fudge said that it ‘serves as a reminder
that judicial decisions are pulled by gravitational forces, but unlike tides,
these forces are not natural, but political’,75 and criticised the Court for being
‘selective in how it uses the ILO’s commentary on freedom of association and
how it refers to ILO supervisory body decisions without clearly identifying
the basis for the selection’.76 Big questions remained open, such as whether
the right to strike is protected under Section 2(d) of the Canadian Charter,
which is the clear position of the ILO jurisprudence on Convention 87.77 The
stance of the Canadian Supreme Court in its reliance on ILO materials was
characterised as ‘unpredictable’.78 On the other hand, Langille who had been
critical of the interpretation of the Charter in light of ILO materials remained
highly sceptical. In a co-authored piece on the Fraser judgment, he criticised
afresh the Court for using human rights documents rather than developing
legal arguments, treating the relevant texts as ‘Holy Scripture’.79 On his view,
what the Court ought to do is to develop reasoning on the basis of legal argu-
ments and not on the basis of ILO documents.
Bogg and Ewing, in turn, used a metaphor to illustrate the role and import-
ance of ILO materials in the interpretation of labour rights, and the danger of
ignoring the ILO’s approach. They said:
Let us imagine a legal universe where Freedom of Association, as pro-
tected by the Canadian Charter, floats perilously free in its application
to labour relations from its corresponding elaborative standards as speci-
fied in ILO Convention 87 and the associated Committee jurisprudence.
The risk involved in such a delinking is that there would be everything
to play for in filling up content-less principles with whichever interpret-
ive theory seems to suit a particular interlocutor. Perhaps we are seeing
the effect of this asserted evacuation of normative content at the

74 For analysis of the background and implications of the judgment, as well as forceful criti-
cisms, see Bogg and Ewing, ‘A (Muted) Voice at Work? Collective Bargaining in the Supreme
Court of Canada’ (2011^2012) 33 Comparative Labor Law and Policy Journal 379; and Fudge,
‘Constitutional Rights, Collective Bargaining and the Supreme Court of Canada: Retreat and
Reversal in the Fraser case’ (2012) 41 Industrial Law Journal 1.
75 Fudge, supra n 67 at 29.
76 Ibid. at 26.
77 Gernigon, Odero and Guido, ‘ILO Principles Concerning Collective Bargaining’ (2000) 139
International Labour Review 33.
78 Fudge, supra n 67 at 26.
79 Langille and Oliphant, ‘From the Frying Pan Into the Fire: Fraser and the Shift from
International Law to International ‘‘Thought’’ in Charter Cases’, Labour Law Research
Network, April 2012, available at: http://www.labourlawresearch.net/Portals/0/Langille.pdf
at 2 [last accessed 24 January 2013].
 Labour Rights in the European Convention on Human Rights 545

international level in recent work in labour law theory. If adopted

in other jurisdictions, this approach risks dragging down standards at
national level (as is obvious in Fraser), with the possible risk that stand-

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ards will be dragged down at international level as well, as international
agencies contemplate what is possible rather than desirable.80
As in the European example, the legal protection of labour rights as human
rights, and the role of materials of expert bodies in the interpretation
of human rights charters and constitutions, remained highly contested and,
for the time being, unresolved in Canada too.

4. Justification
The developments in the context of the ECHR and in Canada and the sur-
rounding literature show that use of experts’ materials is important. It provides
a deeper understanding of the labour law context and a certain degree of
inspiration for the interpretation of human rights at work. Yet, the inconsist-
ency in the way that courts use them and the controversy in academic litera-
ture, which has been illustrated above, shows that the integrated approach is
in need of a deeper justification.81 Where could we find such a justification?
This section turns to human rights theory to look for a justification by, first,
presenting the idea of indivisibility of rights. It then explores the value of
freedom as a justification. It argues that a positive account of freedom as
capability breaks down traditional dichotomies between civil and social
rights, and requires the adoption of an integrated approach to interpretation.

A. Indivisibility
The integrated approach to interpretation has also been described in literature
as the ‘permeability thesis’. In a series of articles on the relation between
civil, political and socio-economic rights, Craig Scott was the first scholar to
coin the term and explore the idea. Referring to the International Covenant of
Civil and Political Rights 1966 and the International Covenant on Economic,
Social and Cultural Rights 1966, Scott urged the UN Human Rights
Committee to ‘break down the artificial separation of the two leading universal
human rights instruments by means of a permeability presumption’.82

80 Bogg and Ewing, supra n 74 at 416.

81 For an argument that the ECHR must be interpreted in light of its underlying values more
generally, see Letsas, A Theory of Interpretation of the European Convention on Human Rights
(Oxford: Oxford University Press, 2007).
82 Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial
Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal
769 at 778.
546 HRLR 13 (2013), 529^555

Permeability was more specifically described as ‘the openness of a treaty deal-

ing with one category of human rights to having its norms used as vehicles
for the direct or indirect protection of norms of another treaty dealing with

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a different category of human rights’.83 The permeability of human rights
norms was said to be ‘one means of giving legal effect to the abstract doctrine
of interdependence’.84
The slogan of indivisibility, interdependence and interrelatedness to which
Scott and others refer,85 is usually taken from a variety of international
human rights instruments of a non-binding nature, such as the 1993 Vienna
Declaration and Programme for Action. This stated that ‘all human rights are
universal, indivisible, interdependent and interrelated. The international com-
munity must treat human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis’ and went on to stress that ‘it is
the duty of States, regardless of their political, economic and cultural systems,
to promote and protect all human rights and fundamental freedoms’.86
The Vienna Declaration and other documents incorporating similar statements
suggest that the international community cannot and should not only strive
for the realization of some human rights; it should attempt to protect all
human rights. On the integrated approach to interpretation, the idea of indivis-
ibility suggests that the protection of certain rights might simply not be
possible, if we draw a sharp dividing line between civil and social rights, be-
cause all rights are closely linked.
The links between rights have been examined in theoretical scholarship
from a variety of different perspectives. Henry Shue suggested that rights
are very closely linked. He said that ‘[a]ny form of malnutrition, or fever due
to exposure, that causes severe and irreversible brain damage, for example,
can effectively prevent the exercise of any right requiring clear thought’.87
Amartya Sen argued that there are strong connections between economic
need and political freedom. ‘[F]amines have never afflicted any country that is
independent, that goes to elections regularly, that has opposition parties to
voice criticisms, that permits newspapers to report freely and to question the
wisdom of government policies without extensive censorship.’ Sen also said
that ‘[p]olitical rights, including freedom of expression and discussion, are not
only pivotal in inducing political responses to economic needs, they are also
central to the conceptualisation of economic needs themselves’.88

83 Ibid. at 771.
84 Ibid.
85 See, for instance, Koch, ‘The Justiciability of Indivisibility Rights’ (2003) 72 Nordic Journal of
International Law 3.
86 Vienna Declaration and Programme for Action, 12 July 1993, A/CONF.157/23, at para 5.
87 Shue, Basic Rights (Princeton: Princeton University Press, 1996) at 24^5.
88 Sen, ‘Freedoms and Needs’, The New Republic, 10 and 17 January 1994, 31 at 32; see also Sen,
Development as Freedom (Oxford: Oxford University Press, 1999) Chapter 6.
 Labour Rights in the European Convention on Human Rights 547

Indivisibility statements have been scrutinised by James Nickel, who pressed

for conceptual clarity. Nickel warned that we should guard against the
view that links between all rights are very strong.89 Exploring linkage argu-

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ments, he said: ‘Supporting relations have different strengths. Strong support-
ing relations can be defined in terms of logical or practical inconsistency.
An assisting right strongly supports the assisted right when and only when it
is inconsistentçlogically or as a practical matterçfor a person to endorse
the implementation of the assisted right without endorsing the simultaneous
implementation of the assisting right.’90 Weak supporting relations, though,
do not mean that the supporting right is not to be protected as an aspect of
the right that is explicitly protected in a document. A weak supporting relation,
in Nickel’s words, ‘provides a reason for having [the supporting right] but not
a full justification.’91 Nickel’s suggestion about the idea of indivisibility urges
us to consider the integrated approach and examine carefully if the right that
is derived from the Convention has sufficiently strong links with the ‘anchor
right’,92 which is explicitly mentioned.
The statement that human rights are indivisible tells us that all human
rights must be protected, but it does not necessarily require that a particular
body, such as the ECtHR or the Canadian Supreme Court, which interprets a
particular document, such as the ECHR or the Canadian Charter, protect all
rights. The answer to this question cannot be a conceptual exercise; it has to
involve the values underlying the Convention93 and the interests supporting
the right to work and rights at work. This justification can be found in the
idea of freedom.

B. Positive Freedom94
Few would contest that liberty is a foundational value of at least civil and polit-
ical rights that are also called ‘liberty rights’.95 For some libertarian thinkers,
liberty requires state abstention from interference, and not positive action.
The fewer restraints the state imposes on individual action, the freer people
are. On this view, rights based on freedom are negative in the sense that they
impose on state authorities a duty not to act. For a laissez-faire liberal, state

89 Nickel, ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human

Rights’ (2008) 30 Human Rights Quarterly 984.
90 Ibid. at 988.
91 Ibid. at 999.
92 I am grateful to James Nickel for suggesting the term ‘anchor right’.
93 See generally, Letsas, supra n 81 at 99.
94 The words ‘freedom’ and ‘liberty’ are used interchangeably here.
95 Moller Okin, ‘Liberty and Welfare: Some Issues in Human Rights Theory’, in Pennock and
Chapman (eds), Human Rights, NOMOS XXIII (New York: Atherton Press, 1981) 232.
548 HRLR 13 (2013), 529^555

intervention cripples freedom, rather than promoting it.96 For some, this distin-
guishes the basis of human rights from the basis of labour rights, which
may be grounded on equality,97 social inclusion,98 democratic theory99 or

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citizenship.100 If negative freedom formed the basis of human rights law,
it would not ground positive state obligations. Bogg and Ewing explained, for
instance, that a libertarian account of negative freedom underlies the opinion
of Rothstein J in Fraser that argued for very minimal protection of trade
union rights.101
However, there is a better account of freedom than that espoused by Justice
Rothstein in Fraser: positive freedom, which recognises that people are not
free, if the options open to them are very limited and unappealing. That there
is more to the value of liberty than the imposition of normative constraints
on state action has been analysed in theoretical scholarship that shows that
people are not free if their basic needs are not satisfied. Waldron has argued,
for instance, that ‘[t]here is no prospect of an individual living the sort of au-
tonomous life we have in mind when we talk about liberty if he is in a state of
abject and desperate need. His autonomy would be one of lethargy rather
than agency, or, at best, action under the impulse of necessity rather than
action governed by autonomous deliberation’.102 Cohen also famously exam-
ined the relationship between freedom and material resources in his essay
‘Freedom and Money’.103 He argued that lack of money leads to lack of freedom
(and not just lack of ability to act). This is because our property rules set nor-
mative constraints on the freedom of those who are not property-owners.
Someone who has no money, but wants to travel by train to visit her family,
will not be allowed to get on that train with no ticket, to use one of Cohen’s
examples. With no money, we are unfree. This point is also brilliantly illu-
strated in Waldron’s piece ‘Homelessness and the Issue of Freedom’,104 which
analyses the grave restrictions that property rules set on those who are home-
less. To the argument that a homeless person is as free as the rest of us to do

96 Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton: Princeton University

Press, 1990) at 4.
97 On equality as a justification of trade union protection, see White, ‘Trade Unionism in a
Liberal State’, in Gutmann (ed.), Freedom of Association (Princeton: Princeton University
Press, 1998) 330 at 337.
98 On social inclusion as a justification of anti-discrimination legislation, see Collins,
‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16.
99 Bogg, Democratic Aspects of Trade Union Recognition (Oxford: Hart Publishing, 2009).
100 Schultz, ‘Life’s Work’ (2000) 100 Columbia Law Review 1881; Forbath, ‘Caste, Class and Equal
Citizenship’ (1999) 98 Michigan Law Review 1; and Mundlak, supra n 23.
101 Bogg and Ewing, supra n 74 at 394.
102 Waldron, ‘Liberal Rights: Two Sides of the Coin’, in Waldron, Liberal Rights: Collected Papers
(Cambridge: Cambridge University Press, 1993) 7 at 7^8.
103 Cohen, ‘Freedom and Money’, available at: http://www.howardism.org/appendix/Cohen.pdf
[last accessed 24 January 2013]; see also Cohen, ‘Capitalism, Freedom and the Proletariat’, in
Ryan (ed.),The Idea of Freedom (Oxford: Oxford University Press, 1979) 9. For a classical account
of positive freedom, see Berlin, Two Concepts of Liberty (Oxford: Clarendon Press, 1958).
104 Waldron, supra n 102 at 309.
 Labour Rights in the European Convention on Human Rights 549

whatever she wishes,Waldron responds that this is incorrect, because someone

who is homeless cannot do anything in any place that is not public. The home-
less person cannot act in private (as she does not have a home), and there

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are certain activities that are prohibited in public space. In this way, freedom
to act is gravely restricted. The satisfaction of a basic need, like access to hous-
ing, is essential for someone’s freedom.
A positive account of freedom can serve as a justification of all groups of
rights. What is the relationship between positive freedom and the integrated
approach?

C. Capabilities, Labour Rights and the Integrated Approach

This section will argue that a positive account of freedom both permits and
demands the adoption of an integrated approach to interpretation. It will do
so by examining the relationship between capabilities, as an account of posi-
tive freedom, and labour rights.
One of the key reasons why most people work is because of the income they
gain through work. Having a job brings tangible benefits. Money is normally
not valued as such, but because it gives access to goods that are essential for
the satisfaction of basic needs, which are in turn essential for freedom.
Without the money that individuals earn through paid work, they would be
less free or completely unfree (unless they have some other source of income).
Work and freedom are connected in this way: without work, most people
cannot earn money, which is essential for freedom.
Work, though, does not only bring tangible benefits. It also brings intangible
benefits.105 Someone’s job is an important element of who someone is. This
is why one of the questions that we ask people that we meet is what job they
do. Work is a central element of a person’s identity, not only because of
the value of work for people’s self-perception, but for the social status that it con-
fers, and for socialisation. The workplace is where many people develop friend-
ships and other social relations. In addition, having a job is psychologically
beneficial because it makes people feel valued in society. ‘Work is a site of deep
self-formation that offers rich opportunities for human flourishing (or devasta-
tion),’ in the words of Schultz.106 Work is crucial for self-fulfilment and as a
source of income, for socialisation of the person and for societal well-being.107
These intangible benefits of work can be captured particularly well by elem-
ents of an account of positive freedom put forward by Amartya Sen, and

105 Collins, Employment Law (Oxford: Oxford University Press, 2010) at 21^2; see also the excel-
lent analysis by Schultz, supra n 100 at 1928ff.
106 Schultz, supra n 100 at 1883.
107 For analysis, see Stiglitz, ‘Employment, Social Justice and Societal Well-being’ (2002) 141
International Labour Review 9; and Mundlak, ‘The Right to Work ^ The Value of Work’, in
Barak-Erez and Gross (eds), Exploring Social Rights (Oxford: Hart Publishing, 2007) 341.
550 HRLR 13 (2013), 529^555

further developed by Martha Nussbaum and others. This account of freedom

underlies all human rights and justifies an integrated interpretation of labour
rights under the ECHR. The theory of capabilities is concerned with actual free-

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dom that cannot only be measured in terms of income that people have.
It moves from the importance of resources to the actual opportunities that a
person has to function in ways that she deems valuable. In this way, it pays
special attention to choice.108 According to the capabilities theory, a state does
not treat its people as truly human if it does not attend to their basic capabil-
ities. More precisely, state authorities have an absolute obligation to make
people capable to pursue a series of valuable functions. A ‘functioning is an
achievement, whereas a capability is the ability to achieve’.109
Capabilities theory has been used to support an account of labour rights as
negative rights by Brian Langille, who suggested that on this view ‘[r]emoving
barriers to help is a core concern’.110 However, freedom as capability is not
only about removing barriers: quite to the contrary. This is because, in Sen’s
words, ‘[c]apabilities . . . are notions of freedom, in the positive sense: what
real opportunities you have regarding the life you may lead.’111 The fact that
we refer to real opportunities should not be underestimated, and is developed
further by Nussbaum.
The theory of capabilities, as elaborated by Nussbaum, has as its aim ‘to pro-
vide the philosophical underpinning for an account of basic constitutional
principles that should be respected and implemented by the governments of
all nations, as a bare minimum of what respect for human dignity requires’.112
This theory provides, in fact, criticism to accounts of rights that are about the
removal of barriers against state action: ‘The Capabilities Approach . . .’,
Nussbaum says,‘insists that all entitlements involve an affirmative task for gov-
ernment: it must actively support people’s capabilities, not just fail to set up
obstacles. In the absence of action, rights are mere words on paper.’113 This
feature of the theory also explains why it has been used as a justification for
the legalisation of social rights.114 The theory of capability rejects libertarian
accounts of negative freedom.

108 See Sen, The Idea of Justice (Oxford: Oxford University Press, 2009) at 253ff.
109 Sen, ‘The Standard of Living: Lives and Capabilities’, in Hawthorn (ed.), The Standard of Living
(Cambridge: Cambridge University Press, 1987) 20 at 36.
110 Langille,‘Core Labour Rights ^ The True Story’ (2005) 16 European Journal of International Law
409 at 434. For criticism of this view, see Fudge, ‘The New Discourse of Labour Rights: From
Social to Fundamental Rights’ (2007) 29 Comparative Labor Law and Policy Journal 29 at 58.
111 Sen, supra n 109 at 36.
112 Nussbaum,Women and Human Development (Oxford: Oxford University Press, 2000) at 5.
113 Nussbaum, Creating Capabilities ^ The Human Development Approach (Oxford: Oxford
University Press, 2011) 65. For a forceful argument that capabilities theory involves positive
state duties, see West, ‘Rights, Capabilities and the Good Society’ (2001) 69 Fordham Law
Review 1901 at 1906^12.
114 Deakin,‘Social Rights in a Globalized Economy’, in Alston (ed.), Labour Rights as Human Rights
(Oxford: Oxford University Press, 2005) 25, at 57^60; and Deakin and Wilkinson, The Law of
the Labour Market (Oxford: Oxford University Press, 2005) at 342ff.
 Labour Rights in the European Convention on Human Rights 551

At the same time, Nussbaum’s catalogue with the key capabilities, which a
state that treats its citizens with dignity ought to promote, shows how the div-
ision of rights in categories, which we find in international law, collapses. This

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point is crucial for the adoption of an integrated approach. Nussbaum’s list
includes a capability to life of normal length; to bodily health and bodily integ-
rity; senses, imagination and thought; emotions; practical reason; concern for
other species; play; control over one’s political and material environment.115
On her theory, human dignity demands ‘that citizens be placed above an
ample (specified) threshold of capability, in all . . . of those areas’.116 No division
between civil and social rights exists here. Nussbaum, in fact, explicitly rejects
this division, because ‘[a]ll entitlements require affirmative government
action, including expenditure, and thus all, to some degree, are economic and
social rights’.117 This theory reminds that links between all rights are complex,
which is a point that traditional divisions in categories fail to capture. On the
other hand, the integrated approach to interpretation provides an opportunity
to address the problem. Capabilities theory, as an underlying justification
of human rights, requires an integrated approach to the interpretation of docu-
ments, which are based on a false dichotomy and a poor understanding of
freedom.
Which capabilities are important for the present analysis? And what
concrete principles can we derive? The section that follows makes mention of
some of these, referring back to case law discussed earlier on.

(i) Coercion
Accounts of positive freedom pay attention to choice. Can we talk about a
meaningful choice to act in a certain way, if we have no more than one option
available? Resources, earned through work, are crucial for someone’s ability to
have options. On a negative understanding of freedom, it might be hard to see
how people in the position of Siliadin (the domestic worker) or Rantseva (the
victim of human trafficking) were unfree. A libertarian analysis would suggest
that they both worked in extremely poor conditions, but they were not coerced
to do that. They were not held in chains. Insofar as the employer imposed no
physical constraints on them, they had a choiceçor so the libertarian argu-
ment would go. This position is reflected in jurisprudence from the US, in the
interpretation of the notion of ‘involuntary servitude’ of the 13th Amendment,
where it was said that ‘the most ardent believer in civil rights might not think
that cause would be advanced by permitting the awful machinery of the crim-
inal law to be brought into play [against employers] whenever an employee

115 Nussbaum, supra n 112 at 78^80; see also Nussbaum, ‘Capabilities and Human Rights’ (1997)
66 Fordham Law Review 273 at 287.
116 Nussbaum, supra n 113 at 36.
117 Ibid. at 67.
552 HRLR 13 (2013), 529^555

asserts that his will to quit has been subdued by a threat which seriously
affects his future welfare but as to which he still has a choice, however
painful’.118

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On positive accounts of freedom, this interpretation of choice is inadequate,
for choice is so limited, the alternatives that individuals in the position of the
applicants have are so poor, that the claim that they are free is very question-
able. As the concern is about how to make people free, great socio-economic
deprivation coupled by immigration rules, as in the case of Siliadin and
Rantseva, limits choice to such a degree that their situation has rightly been
presented as ‘modern slavery’.

(ii) Relational element

A positive analysis of freedom as capability is not individualistic. It views the
ability to relate to others as central. Robin West has emphasised the import-
ance of this aspect of capabilities theory, which takes rights’ theory beyond
traditional individualistic interpretations, which are sometimes overempha-
sised in other accounts of human rights.119
The relational aspect of capabilities theory for the interpretation of labour
rights sheds light on several issues that have already been explored in the
case law. First, Nussbaum’s ‘capability to affiliation’ is useful here. It was earlier
said that one of the reasons why work is valuable is because people develop im-
portant relations at work. In Nussbaum’s analysis, ‘being able to work as a
human being, exercising practical reason and entering into meaningful rela-
tionships of human recognition with other workers’ is a central capability,120
while ‘[m]aking employment options available without considering workplace
relations would not be adequate’.121 The ECtHR has upheld this principle. In
cases such as Niemietz v Germany, where the question was whether the right
to private life extends to the workplace, the Court said insightfully: ‘it is, after
all, in the course of their working lives that the majority of people have a sig-
nificant, if not the greatest, opportunity of developing relationships with the
outside world.’122 The Sidabras and Dziautas judgment also highlighted how
the implications of unemployment and the resulting social isolation can affect
a person’s private life as such.
The ability to develop interpersonal relations outside work has not always
been given sufficient attention in Strasbourg case law, on the other hand.
Dismissal for reasons involving the person’s private life has sometimes been
upheld as compatible with the Convention, without adequate analysis of the

118 United States v Shackney 333 F.2d (1964) 475 at 486.

119 West, supra n 113 at 1912^13.
120 Nussbaum, supra n 112 at 79^80.
121 Nussbaum, supra n 113 at 39.
122 A 251-B (1992); 16 EHRR 97, at para 29.
 Labour Rights in the European Convention on Human Rights 553

social isolation to which it leads. In the case Pay v United Kingdom,123 for
instance, the applicant was dismissed from his job because he engaged in sado-
masochistic activities outside the workplace and working time, in his private

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life. The Court held that his dismissal was not in breach of the Convention.
In doing so, it paid little attention to the importance of having attachments
and developing relationships that a person values, but that the employer
might find inappropriate or immoral. The ECtHR did not give weight to the
fact that someone’s dismissal does not only signify loss of income (because
work is important not only for the income it brings), but also loss of the ability
to develop relationships with others in the workplace. The relational aspect of
freedom was neglected in this case that failed to capture the links between dis-
missal and freedom.124
The relational element also supports the right to form and join a trade
union, which has been explored in cases, such as Wilson and Palmer. People
form groups with others so as to pursue common aims that they deem valu-
able. If there are impediments to this right (in this case, financial incentives
for non-union members), the right to associate is clearly jeopardised. The
ability to relate to others is an important function of freedom of association,
including unionisation, which the case law of courts should reflect.

(iii) Voice
In the labour law context a further question naturally arises: does the account
of freedom presented here support any other aspect of trade union rights or
does it merely require the protection of a right to form and join an association?
Positive freedom justifies not just forming associations, but also the protec-
tion of a voice at work, which has to be effective. One of Nussbaum’s central
capabilities is the capability to control one’s environment.125 In labour law, for
a voice at work to be meaningful, it has to encompass collective bargaining.
Bogg and Ewing explained how trade union activity may be protected, in a
scale ranging from weak to strong protection, as follows: first, a right to make
representations to the employer, second, the right to consultation, and third,
the right to negotiate.126 For workers to have a voice at work, strong protection
of collective bargaining is essential, and a ‘thick’conception of freedom of asso-
ciation is required, which ‘encompasses special constitutional ‘‘activity-rights’’

123 Pay v United Kingdom Application No 32792/05, Admissibility, 16 September 2008. For
analysis, see Mantouvalou and Collins, ‘Private Life and Dismissal: Pay v UK’ (2009)
38 Industrial Law Journal 133.
124 More recent case law has been more elaborate: see Obst v Germany Application No 425/03;
Schuth v Germany Application No 1620/03, Merits, 23 September 2010.
125 See also Kolben, ‘A Development Approach to Trade and Labour Regimes’ (2010) 45 Wake
Forest Law Review 355 at 369.
126 Bogg and Ewing, supra n 74 at 385.
554 HRLR 13 (2013), 529^555

for trade unions’.127 Otherwise, the voice at work will be muted, as they convin-
cingly argued discussing the Fraser case of the Canadian Supreme Court.128
The right to strike must also be given special status, for without the ability

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to resort to strike collective bargaining becomes ‘collective begging’.129 The
right to strike is an essential means that workers have to control the environ-
ment, and to resist the power of the employer to abuse the inequality inherent
in the employment relation. Recent Strasbourg case law that views the right
to strike as an essential component of the right to associate also reflects
this view.130 Looking at the right to strike as a human right has important
implications.131 First of all, it becomes an individual right instead of a right
that belongs to trade unions. Moreover, its nature changes, for it no longer
depends on collective bargaining. ‘The human rights lawyer will see the right
to strike as having a wider purpose than the labour lawyer, as relating not
only to the exercise of power in the workplace but also the exercise of power
in the wider political community.’132 Third, a right to strike as a human right
imposes a duty upon the state to protect individuals from dismissal for its
exercise.
A positive account of freedom as capability, to conclude this section, re-
quires the protection of civil and political, and economic and social rights,
and can shed light on important principles that are relevant to the protection
of labour rights through civil rights documents. Even though it is not the
only possible justification for an integrated approach to interpretation,133 it is
fundamental to realise that it is a significant one. Capabilities theory leads to
a better understanding of the notion of freedom and emphasises the collapse
of artificial divisions of rights that traditionally placed emphasis on some elem-
ents of individual well-being (free expression, for instance), neglecting some
others (like the right to work). It also captures the importance of non-material
benefits of work, and therefore requires a more complete protection of
work-related rights. In addition, the understanding of freedom as capability
enriches the content of human rights by moving their content beyond indi-
vidualism. Finally, the interpretation of rights in light of this theory is based
on values that underlie the Convention, and recognises aspects of them
that have been neglected this far. In this way, it creates what Nussbaum calls
‘capability security’,134 ensuring that key human capabilities are recognised as

127 Ibid. at 390.

128 Ibid.
129 Ewing and Hendy, supra n 42 at 13.
130 See the analysis in Countouris and Freedland, supra n 45.
131 Ewing, ‘Laws Against Strikes Revisited’, in Barnard, Deakin and Morris (eds), The Future of
Labour Law (Oxford: Hart Publishing, 2004) 41 at 48^50.
132 Ibid. at 49.
133 Other possible justifications can include values such as citizenship or equality: see supra nn
97 to 101.
134 Nussbaum, supra n 113 at 43.
 Labour Rights in the European Convention on Human Rights 555

having an important role, and are not left to the whim of those that have the
political, legal or economic power to neglect them.

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5. Conclusion
This article discussed the controversial issue of the legal protection of labour
rights under the ECHR. It focused on a particular interpretive technique that
has emerged in jurisprudence, the integrated approach to interpretation,
which reads certain social and labour rights into a traditional civil and polit-
ical rights document. It accepted that by using materials of expert labour
bodies, the European Court of Human Rights can contextualise human rights
in the employment relation. However, resting on the belief that legal rights
should be read in their best light and in accordance with present day condi-
tions, this article argued that a deeper justification for the integrated approach
is both possible and necessary. In order to find such a justification, it explored
positive accounts of freedom. It argued that accounts of freedom that pay at-
tention to choice and resources, but also more social and relational elements,
can serve as a foundation of these documents and a justification for the adop-
tion of an integrated approach to interpretation. What emerged is that a posi-
tive account of freedom, analysed in terms of human capabilities, demands
the adoption of an integrated approach to the interpretation of the ECHR.
As a matter of human rights theory, to conclude, a principled justification
for the integrated approach to interpretation is essential for a process that
at this point is faced with uncertainty. In the current climate of academic con-
troversy, this analysis serves as a starting point to move beyond questions
of expertise in the labour and social rights context, and helps break down
artificial dichotomies between rights that today seem obsolete. It helps link
the various different debates on the character of labour rights as human
rights, which we find in labour law scholarship. It connects human rights law
to the underlying normative principles.135 Crucially, what this analysis shows
is that workers have human rights, which the law, read in its best light, recog-
nises and protects.

135 For a discussion on labour rights as human rights, see Mantouvalou, supra n 23.