This paper seeks to examine, from a human rights perspective, the degree of protection of the right to strike under Article 11 ECHR.
Chapter One examines whether Article 11 ECHR offers any possibility for reading into its provisions a general right to strike. It will scrutinise the initial reluctance of the ECtHR to proceed to such an interpretation, and thus to adequately safeguard the right at issue.
Chapter Two discusses the course through which the initial despair preceded the subsequent hope of the Demir and Baykara judgement while considering the case’s impacts on the protection of the right to strike.
Chapter Three critically examines the decision in the RMT v. UK case, in which the ECtHR appeared to misplace any optimism its previous jurisprudence had generated. It will focus on the UK’s problematic pre-industrial notices which are necessary for the workers in escaping tortious liability, and on the classification, by the Court, of a secondary action as an ‘‘accessory’’, rather than a core aspect of trade unions’ activity.
Chapter Four at first refers to the importance of the right to strike as a human right. It is argued that its enhanced protection can result in the promotion of human rights for both those taking part in the industrial action and those who are not formally engaged in the dispute. Finally, it discusses why the ECHR constitutes the 'safest' route through which individuals and trade unions can challenge breaches vis a vis the right to strike.
Table of Contents
1. The European Court of Human Rights and the Interpretation of Article 11 ECHR: The Court’s Initial Reluctance
1.1. The Court’s 'Restrictive' approach towards the Interpretation of Article 11 ECHR
2. The Case of Demir and Baykara v. Turkey: The 'U-Turn' in the Court’s Jurisprudence
2.1 The Implications of the Judgment in Demir and Baykara v. Turkey on the Right to Strike
3. The Case of RMT v. United Kingdom: The 'Hangover' of the European Court of Human Rights?
4. The Importance of the Right to Strike as a Human Right and its Future Protection under the ECHR: An Enhanced or a Superficial Protection?
4.1. The current developments and the increasing ‘‘hostility’’ towards labour rights: The ECtHR as the guardian of the right to strike?
Objectives and Research Themes
This paper examines the legal protection afforded to the right to strike under Article 11 of the European Convention on Human Rights (ECHR). It investigates whether the European Court of Human Rights (ECtHR) provides an adequate framework for safeguarding this right, particularly in light of shifting judicial interpretations and external political pressures.
- The historical evolution of the ECtHR's interpretation of Article 11 ECHR.
- The impact of landmark rulings like Demir and Baykara v. Turkey.
- The critical analysis of the RMT v. United Kingdom decision and its implications.
- The intersection of labour rights and human rights within the context of European austerity policies.
Excerpt from the Book
The Case of Demir and Baykara v. Turkey: The 'U-Turn' in the Court’s Jurisprudence
As Ewing put it, due to the outcomes of the Court’s early case-law in respect to the right to strike, there were few who could have been assured of the Strasbourg complaint succeeding. Nonetheless, even as late as in 2002 the Court seemed to adopt a considerable different attitude in the case of UNISON. There, it was acknowledged for the first time –even though the Court reiterated the mantra that recourse to strike action was simply an important, rather than an essential means to preserve worker’s rights– that any constraint on the right to strike ‘‘must be regarded as a restriction on the applicant’s power to protect [the member’s] interests and therefore discloses a restriction…under the first paragraph of Article 11’’.
Albeit the statutory restriction in question was found to be justified under Article 11(2), because it pursued a legitimate aim –necessary in a democratic society–, this shift in jurisprudence constituted a noteworthy development. UNISON’s approach was also adopted in subsequent cases, and as Ewing mentions the right to strike within the context of the Convention emerged as having a bizarre ‘‘twilight status’’: whilst it was not formally recognised, at the same time, the Court was prepared to recognise the unlawfulness of restrictions on the right regarding Article 11(1), which had to be justified under the ambit of Article 11(2).
Undoubtedly, this approach appeared much more promising than the one that was embraced in earlier cases, like in Schmidt and Dahlström. Such a view can also be supported by the Grand Chamber’s wording in the subsequent ruling of Wilson and Palmer. The case did not concern the right to strike; still, it is important for a different aspect. The ECtHR acknowledged that the right in question is an essential alternative to force an employer to bargain collectively. In other words, it was accepted that the right to strike is an important feature of the entitlement to collective bargaining. This interrelationship was demonstrated a few months later, in one of the most significant decisions of the Court in the area of labour rights.
Summary of Chapters
1. The European Court of Human Rights and the Interpretation of Article 11 ECHR: The Court’s Initial Reluctance: This chapter analyzes the historical, restrictive interpretation by the ECtHR regarding the inclusion of the right to strike within Article 11.
1.1. The Court’s 'Restrictive' approach towards the Interpretation of Article 11 ECHR: This section details the Court’s early tendency to view the ECHR purely as an instrument for civil and political rights, excluding socio-economic entitlements.
2. The Case of Demir and Baykara v. Turkey: The 'U-Turn' in the Court’s Jurisprudence: This chapter highlights the landmark shift where the ECtHR began recognizing collective bargaining and the right to strike as inherent features of Article 11.
2.1 The Implications of the Judgment in Demir and Baykara v. Turkey on the Right to Strike: This section evaluates how the 'evolutive' interpretation established in this case paved the way for broader labor rights protection.
3. The Case of RMT v. United Kingdom: The 'Hangover' of the European Court of Human Rights?: This chapter critically examines the RMT decision, which is argued to have retreated from the optimistic stance previously established.
4. The Importance of the Right to Strike as a Human Right and its Future Protection under the ECHR: An Enhanced or a Superficial Protection?: This chapter explores the theoretical importance of the right to strike as a fundamental human right necessary to preserve democratic working conditions.
4.1. The current developments and the increasing ‘‘hostility’’ towards labour rights: The ECtHR as the guardian of the right to strike?: This section discusses the challenges posed by austerity and economic policies to the ongoing protection of labor rights.
Keywords
European Convention on Human Rights, Article 11 ECHR, Right to Strike, Collective Bargaining, Demir and Baykara, RMT v. United Kingdom, Labour Rights, Human Rights, Strasbourg Court, Jurisprudence, Evolutive Interpretation, Trade Unions, Austerity, Solidarity Action, Industrial Relations.
Frequently Asked Questions
What is the primary objective of this work?
The work aims to systematically analyze the degree of protection for the right to strike under Article 11 of the ECHR, assessing the transition from judicial reluctance to a more engaged "evolutive" interpretation.
What are the central thematic fields covered?
The paper covers human rights law, labour law, international legal standards, and the judicial philosophy of the European Court of Human Rights.
What is the core research question?
The study asks whether the ECtHR effectively safeguards the right to strike or if recent rulings, such as the RMT case, demonstrate a retreat into a superficial level of protection.
Which scientific methods are employed?
The paper employs a legal-analytical method, examining case-law, international instruments, and scholarly debate regarding the interpretation of the European Convention on Human Rights.
What is covered in the main body of the work?
The body analyzes the Court's development through distinct phases: initial reluctance, the "U-turn" marked by the Demir and Baykara case, and the recent "hangover" period signaled by the RMT case.
Which keywords best characterize this study?
Key terms include ECHR, Right to Strike, Article 11, Collective Bargaining, Judicial Activism, and Labour Rights protection.
Why does the author use the term 'hangover' regarding the RMT case?
The term suggests that in the RMT judgment, the Court seemed to "forget" or contradict its earlier promising jurisprudence on labor rights, much like a person experiencing a memory lapse.
How does the author view the influence of austerity policies on the right to strike?
The author argues that austerity measures create a hostile political environment that jeopardizes the effective exercise of labor rights and pressures the ECtHR to potentially moderate its support for collective action.
- Quote paper
- Charalampos Stylogiannis (Author), 2016, The Right to Strike under the European Court of Human Rights, Munich, GRIN Verlag, https://www.grin.com/document/350499
