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Dossier thématique. Modes de normativité et transformations normatives : de quelques cas relatifs aux droits et libertés
Partie II La variété des expressions normatives de la globalisation

Social Rights’ transformations in global context

Jérome Porta

Texte intégral

I. Introduction

  • 1 B. Frydman, « Comment penser le droit global ? », in J.-Y. Chérot et B. Frydman (dir.), La science (...)

1The circulation of rights, laws or legal models is an ancient idea. This idea is one means to describe the legal phenomena beyond the State to which the concepts of internationalization, transnationalism, or more recently the concept of globalization, attempt to reflect?1 The idea of the circulation or of transfer of legal models is to achieve a better grasp of one specific matter in these phenomena, that is, the “passage” of such legal references from one legal context to another. In fact, two categories of circulation are described in this way.

  • 2 On legal transfer, among a classical and critical literature, in particular, N. Rouland, Introducti (...)
  • 3 The genesis of the science of comparative law is closely linked to the unification of national legi (...)
  • 4 Do legal models circulate ? The comparative law practice has long been torn between favor and disad (...)
  • 5 Not. P. Legrand, 'The impossibility of legal transplants, Maastricht Journal of European and Compar (...)
  • 6 On the notion of legal acculturation, in J. Poirier (dir.), Ethnologie générale, Paris, Gallimard 1 (...)
  • 7 Muir Watt, Horatia. 2005. "Concurrence d'ordres juridiques et conflits de lois de droit privé." In (...)

2The first category is probably the most well-known. It covers the ways and modes of influence that exist between different State laws. The circulation of legal models thus corresponds to the traditional way of thematizing these plays of influence between national laws. This first category plays an important role with the rise of comparative law. The circulation of legal models is studied through the reception of codifications, with some competition between the French Civil Code and the German Civil Code, in diverse national contexts (Turkey, Japan, etc.).2 This category comforts the projects of the Société de legislation comparée (founded in 1869, the society of comparative legislation gathers academics, judges, lawyers, public notaries, and practitioners from France and abroad), an association which set out to overcome the diversity of national legislations by proposing one single legislation, as implied by the Société’s slogan, “ius unum, lex plurex”.3 The study of these legal transfers and their shortcomings leads to the presentation of the project of a global law sought by the Société. Subsequently, studies on the reception4 or transplantation5 of legal models develop, pointing to the irreducible diversity of the national legal phenomena, often seen through the angle of acculturation.6 These analyses have been mobilized to think and describe the process of harmonization of national laws at the international and European level. This link is obvious in the way the difficulties and shortcomings of European directives transposition in the national legal systems have been interpreted. Beyond these intuitional processes of legal harmonization, the idea of a circulation of legal models is nowadays more frequently described as the result of phenomena of regulatory competition between the different legal systems.7

  • 8 See Véronique Champeil-Desplats, Jérôme Porta et Laurent Thévenot, « Introduction : a cooperative a (...)

3This first understanding of legal transfers omits another category of circulation relating to globalized law: the same legal statement can be written on a great multitude and variety of media: declarations of rights, international conventions, ethics charters, technical standards, scoreboards, etc. These changes in medium and theses conversions from one normative setting8 to another imply complex hybridizations. International and European social law is a fertile area when it comes to the development of such normative hybrids.

  • 9 For a study on the formulation of such legal models in the European harmonization context, see J. P (...)

4The law of the International Labour Organization (ILO) and the conditions of its implementation demonstrate this phenomenon. Since its creation, the ILO’s mission has been to adopt international conventions on labor. These conventions lay down minimum standards that must be implemented and respected by their signatory States. These international conventions are formulated in very classical legal style. They are constituted in a range of deontic propositions that tends to create rights, obligations, rules or principal that the national autorities have to transpose in their owne systems. The purpose is to create legal models9 to promote the development of national labor law, and to specify the way in which they ought to be implemented. The Convention on forced labour, adopted in 1930, obliges the Member States who ratify it to exclude the use of forced or compulsory labor in all its forms on their territories, and to apply this prohibition. The convention also contains provisions for the possible exceptions that can be added along with the prohibition. In principle, the execution of that convention follows the traditional techniques of international law. The convention is mandatory for States that have ratified it. These States must modify and amend their laws to conform to this legal model. Moreover, the national legal systems may directly allow workers to invoke the convention’s provisions before the State’s courts when these workers fall victim to violations of the convention. However, this juridical implementation is not sufficient to guarantee the effectiveness of these conventions. The realization of the international standard is conditioned by each State ratification. Other ways to promote the ILO’s standard are complemented the intern and classical international instrument of the ILO’s system. The example of Convention no. 29 is particularly representative in this respect. The prohibition of forced labor is restated in many international texts which do not directly concern labor issues: international commercial agreements, ethics charters, standards, and so on. Their sources and natures are diverse. They can either be public as private regulations. The social responsibility of companies is a classic manifestation of that effect. Companies frequently adopt ethics charters that reference ILO standards. These companies thus participate in promoting these standards in the context of the United Nations Global Compact. Among the ten principles promoted by the Compact, four are relevant to labor (the freedom of association and the right of collective bargaining, the elimination of forced labor, the abolition of child labor, and the elimination of discrimination as regards employment). Companies’ social responsibility entails a specific form of hybridization for the “constitution” of transnational companies, mixing references to human rights and an incentive to communicate: the “Communication on Progress”, which is required annually.

5In the field of commercial exchanges, social clauses have similar features. These clauses are inserted into free trade agreements and reference several labor standards. These labor standards are often taken from the standards proposed by the ILO. The generalized system of preferences in place in the European Union is a clear example of this. A customs discount benefit on certain products is conditioned upon the respect of labor standards. There is a similar hybridization in the social policy governance in the frame of the European employment strategy or the European Semester. In these contexts, social rights are put in comparison with indicators.

6Thus, one may easily note a large variety of references to international labor standards set out by the ILO conventions, inserted into normative documents which are not specifically aimed at governing labor relations, but which seek to regulate the activities of transnational companies, commercial exchanges, the production of goods and services, and the framing of social policies. These hybridizations of labor law regulation and other forms of standards are generally justified by the shortcomings of the traditional legal formula when it comes to guaranteeing the rights it promotes. The recycling of rights from the ILO conventions in these sorts of instruments is intended to compensate for the lack of effectiveness of those legal regulations in the context of globalization. Thus, referring to labor standards in these normative documents is justified by strategic purposes. These hybridizations should reinforce the effectiveness of international labor law where the ILO mechanisms lack guarantees in terms of their effectiveness. But to describe and analyze this recycling of social rights in such normative setting only in the perspective of effectiveness, there is a risk to mist the possibility to think these normative displacements as such.

  • 10 Not. C. Thibierge, « Le droit souple. Réflexion sur les textures du droit », RTD civ., 2003, pp. 59 (...)

7What is the effect of the insertion of workers’ rights in a document that is not intended to regulate labor relations, but rather to regulate commercial exchanges, the production of goods and products, or to coordinate national public policies? This practice, which involves including labor rights in economic, technical or policy settings, does not receive any attention in its own right. Such practices are generally interpreted through the angle of the legal form that they intend to concretize. These practices are characterized under the traditional features connected with legal normativity and are only appreciated to the extent that they differ or not from the model represented by the legal normativity. This extension of legal analysis mostly ends up describing and criticizing these instruments only as questionings and categories of subjective rights: Are these rights subjected to efficient sanctioning? Can they be invoked before judges? This type of criticism on its own seems to refer to the idea of efficiency in its legal narrow sense. The different arguments invoked here are the same as those invoked to defend or criticize the use of soft law.10

8These concerns overlook a fundamental issue, namely, the change brought about by the transition from one normative form to another. These hybridizations do not merely entail a change in setting or medium. They imply a translation, or rather a transformation, of the social rights under the mode of normativity into which they are changed. In other words, the implementation of social rights into these different forms implies the adoption of specific modes of normativity. It is on these transformations that we must focus in order to understand the impact of hybridization on social rights. Indeed, this change in other form or medium implies an adaptation of labor standards to the regulation context in question. Depending on the mode of normativity adopted, the standards promoted have not the same meaning. To put this hypothesis, this analytical framework to the test, we will try to describe different cases of hybridization. We should then by comparison of transformations in diverse mode of normativity assess the heuristic value of this analytical framework. For comparability reasons, one choice shall be made among these hybridization cases. These operations may indeed occur in numerous areas. Some of them are aimed at influencing States, while others concern private actors more specifically (transnational compagnies, INGOs, etc.). To ensure the comparability of our study without prejudice to subsequent research, we will focus on those practices that involve the inclusion of workers’ rights in instruments aimed at regulating Trade relations (social clauses), the promotion of social policies (the European Social Charter), and coordination of national policies (the European Pillar of Social Rights). Each of these forms is intended to influence national laws and State policies. The comparison of these cases will allow us to reflect on the nature of the transformations involved following such a “circulation” of rights.

II. Labor standards in free trade agreements

9Social conditionality offers a privileged field for seeking to understand the transformation of social rights phenomena in the context of globalization. This form of conditionality is one of the classic mechanisms used to increase the efficacy of social standards through their inclusion in traditional free trade instruments. The expression “conditionality” is borrowed from the terminology of public international law. In this context, conditionality refers to a public international law mechanism which consists in submitting the advantage to the respect by the beneficiary State of a condition. The use of conditionality is widespread, especially in matters of investment, free trade agreements or and development aid. This technique has repercussions for State sovereignty. Indeed, the condition generally involves an intrusion of the State’s internal legislations: reforms and guarantees of the establishment or maintenance of certain laws. Nowadays, this technique is applied in the context of human rights and, more precisely, fundamental social rights. It is presented as a means of improving the efficacy of fundamental rights. It is also part of the unilateral instrumentation set up by the European Union in its relations with third States.

  • 11 ILO 2016

10Regarding social conditionality, this type of conditionality is opening up in several areas of international and European regulation: free trade agreements, the generalized system of preferences, and investment agreements.11 We will focus on this practice in free trade agreements.

A. The origin of a divorce

11The place held by social conditionality in free trade agreements finds its origin in the manner in which the “social clause” issue was presented at the international level. In the legal area, the social clause is the expression that prevailed to designate social conditionality in free trade agreements in the international labor law field. To understand the significance of the shift it imposes upon social rights, it may be useful to present the genesis of the division between the social and the economic at the international level. This relation between the social and the economic – or, more specifically, between labor and the economy, since the social issue will be analyzed specifically through the angle of labor here – dates back to the end of the Second World War.

  • 12 The adopted ILO Constitution merely states in its Preamble that “the failure of any nation to adopt (...)

12At the beginning, such a division of the legal regulation fields did not seem to prevail at an international level. Since its creation in 1919, the international organization was confronted with the issue of the link between international trade and labor. The first project of the Constitution of the Organization planned to sanction States guilty of unfair competition based on oppressive labour conditions.12 This restrictive formulation was set aside by the founding fathers in favor of a more nuanced formulation. Still, the conception of a link between workers’ rights and international trade became clearer after the Second World War. Following President Roosevelt’s Four Freedoms speech in 1941, and the affirmation of the link between social justice and democracy, the Declaration of Philadelphia of May 10, 1944, was adopted and attached to the Constitution of the ILO. This second founding text of the organization restates the agreement on social justice, for which the Organization intends to act as the watchdog at an international level. While affirming several principles such as “labour is not a merchandise”, the declaration returns to the concern of understanding labor and trade in a linked manner. The organization declared itself to be “convinced that a larger and fuller utilization of the world’s resources, necessary to achieve the objectives enumerated in the Declaration, may be assured by an efficient action from an international and a national angle, and in particular through measures aiming to promote […] an international trade of higher and constant volume”. The organization promised to cooperate with international organizations.

  • 13 Ibid.
  • 14 Havana Charter, Art. 2
  • 15 Havana Charter, Art. 3
  • 16 Havana Charter, Art. 7

13In terms of international trade, the Havana Charter was drafted during the conference from November 21, 1947 to March 24, 1948. This Charter is an example of this attempt to conciliate the promotion of free trade with social justice ideals. The Charter aimed to open up access to the market and to favor the “reduction of customs rates and other hindrances on trades, in addition to the elimination of discrimination in free trade”.13 However, the Charter also presented social objectives. The prevention of unemployment was thus declared a “necessary condition” to achieve the Charter’s objectives, including in relation to the development of free exchange.14 Maintaining employment inside the country,15 or the respect of fair standards, “in particular regarding the production working on exportation sector”, failure to respect these standards creating “difficulties on international trades”.16

  • 17 ILO Declaration on Fundamental Principles and Rights at Work - Declaration adopted by the Internati (...)

14The creation of an International Trade Organization by the Havana Charter failed in the absence of a ratification. This failure marked the divorce between labor and trade at the international level. Based on this first attempt, the General Agreement on Tariffs and Trade (GATT), which led to the creation of the World Trade Organization (WTO) in 1994, was assigned other kinds of objectives. The status of labor standards changed into trade constraints. It is in this context of specialization that the social conditionality technique and the debate on the introduction of a social clause in international commercial trade become significant. To what extent is the obligation to respect labor law standards compatible with the WTO system? The debate regarding the introduction of a social clause in the WTO context attests to this tension. This contention exposes the constraints attached to the inclusion of social standards in the international trade context. The exposure of such tensions allows one to grasp the constraints that are attached to the insertion of such clauses in international trade regulations. Indeed, since the 1970s, the social clause has been a recurring issue mentioned in the WTO’s negotiations. The United States were the first to implement such clauses in their exchanges with their commercial partners. The nature of these clauses and their use partly explain the opposition from developing countries against a practice qualified as imperialistic, mistreating their sovereignty, and synonymous with protectionism in the context of American relations with their commercial partners. Thus, it comes as no surprise that the proposal to include such a clause in the WTO context, a proposition made by the United States and France, failed. Critics of this clause pointed to its counter-productive effects in the fight against poverty. Developing countries criticized the protectionist intent of clauses which were supposed to control and restrain their economic growth while insisting on the absence of a link between the violation of fundamental rights and international trade. The failure of this attempt was likely obvious during the Uruguay Round in 1994. However, the WTO conference in Singapore on December 13, 1996 still explicitly referred to the respect of labor standards, renewing the commitment “to observe fundamental labor standards which are internationally recognized.” Moreover, the conference recalls the ILO’s competency to “establish these standards and to manage them”, consolidating a specialization and a degree of role-sharing which the dispute on the social clause seemed to subvert. Thus, this promotion of labor standards shall be articulated with the values of free trade. The Singapore conference promotes this through “an increase of commercial trades and further liberalization of free trade”. The conference exposed the constraints to the inclusion of labor standards in international free trade regulations. As a gift to developing countries, among others, “the use of labour standards to protectionist ends” and the reassessment of “the comparative advantage of countries, in particular developing countries with low incomes” were rejected. As further proof of the low level of consensus with this reference, these references to labor standards later disappeared from ministerial declarations. The Doha Declaration of 2001 briefly mentioned the complementarity of the pending works in the ILO as regards the social aspect of globalization. In these works, the organization undertook a convergence towards the WTO’s standards, suggesting that “internationally recognized standards” be specified. Meanwhile, the ILO had adopted the Declaration on Fundamental Principles and Rights at Work,17 which was explicitly stated to be an extension of the Singapore Declaration. This Declaration then served as a template to social clauses to be implemented into bilateral agreements. The Declaration is revealing of the constraints attached to standards specific to free trade when it comes to the inclusion of international labor standards. The free trade agreements draw their legitimacy in part from the earnings every State is supposed to derive from their comparative advantages. The low cost of labor in developing countries is part of these advantages. Thus, the implementation of labor standards cannot increase the cost of labor without being qualified as protectionist in the international or European free trade context, and thus in conflict with the justification that is specific to free trade agreements. In a sense, these constraints require the imposition of labor standards, and only labor standards, in order to avoid illegitimate social dumping.

15This is the first aspect of the transformation involved in the process of inserting social rights into an instrument specific to free trade. The transition from one normative context to another implies a selection process, at a minimum. In a sense, all the rights and standards resulting from international labor regulation cannot be simply transformed in the free trade context. However, this transition also involves an alteration of fundamental social standards.

B. Selection

16In the present context, what are “the internationally recognized labour standards” under the meaning given in the Singapore Declaration? In other words, what are the standards selected for their compatibility? The selection exercised by the ILO in its Declaration of 1998 clearly aims to deals with these constraints. The Declaration on Fundamental Principles and Rights at Work sets out a drastic selection among the conventions adopted in the context of the ILO.

  • 18 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to (...)
  • 19 Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105).
  • 20 Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182).
  • 21 Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Conventio (...)

17Only eight conventions were selected. These conventions must be considered as mandatory for any State adhering to the ILO. They constitute a base frame of fundamental labor rights. The specificity of that base frame is its compatibility with the grammar of free trade agreements. What are these fundamental texts? The conventions cover four topics: freedom of association and the effective recognition of the right to collective bargaining;18 the elimination of all forms of forced or compulsory labor;19 the effective abolition of child labor;20 and the elimination of discrimination in respect of employment and occupation.21

  • 22 Social dimensions of free trade agreements / International Labour Organization; International Insti (...)
  • 23 Adopted in 1998, the Declaration creates an obligation for the Member States, whether or not they h (...)
  • 24 Ibid., spéc. p. 33-35.

18As a further sign of the relevance of the selection in the international trade context, the Declaration of 1998 accompanied the expansion of the regional and bilateral free trade agreement following the failure of multilateral negotiations within the WTO. The number of commercial agreements incorporating a social clause rose from four in 1995 to 58 in 2013 in the 248 commercial agreements in force and notified to the WTO.22 These social clauses referenced the Declaration widely, either by generally referring to “fundamental principles of labour rights”,23 or by referring more precisely to the rights guaranteed under the Declaration.24

  • 25 Not. B. Lassudrie-Duchêne et D. Ünal-Kesenci, L’avantage comparatif, notion fondamentale et controv (...)

19The reaction to the Declaration can be explained by the compatibility with the grammar typical of free trade agreement negotiations, and by the constraints attached to social regulations by the “comparative advantage” notion.25 In this context, the obligation to respect a regulation must not deprive a State of the benefit of a legitimate advantage regarding competition. Only unfair advantages constitute unfair competition and must be discarded.

  • 26 Ibid. spéc. p. 17.
  • 27 One may recall that this was the argument used to justify the introduction of a principle of equal (...)
  • 28 Social dimensions of free trade agreements, ibid.

20Historically, the first social clauses provide clear evidence of this concern. Through the nineteenth century, national commercial regulations excluded goods produced through penitentiary forced labor from the free movement of goods. Goods manufactures by prisoners were seen as a threat to the profits of national producers.26 In the 1930s, following the adoption of the ILO convention on forced labor, that exclusion was extended to forced labor more generally. The effective abolition of child labor and the elimination of discriminatory practices both follow a similar logic. Child employment and discrimination in employment might give an unfair advantage to a national economy to compete unfairly against the companies of a partner State.27 The recognition of the freedom of association and the right to collectively bargain might seem to come from a different reasoning. For the ILO, these are founding rights of labor law. Outside of those rights, it is difficult to claim the existence of a labor law in the State in question. The recognition of these rights is a condition precedent to the existence of other workers’ rights. Their affirmation may also be justified by the grammar behind free trade. In the end, the rights might be understood as procedural rights, their implementation being supposed to allow for an alignment of labor cost and the productivity and level of development of the national economy. In contrast, the reference to a minimum wage, or more generally to minimum working conditions, may be interpreted as freeing itself from free exchange reasonings. One example is the case of trade agreements concluded by the United States28 which make a relevant place to other logics This change in content is typical of a change in reasoning. Those protectionist tendencies appear to be significant of the construction of an integrated market and let more space for a more important promotion of social rights.

  • 29 ILO Declaration on Social Justice for a Fair Globalization, adopted in 2008 by the representatives (...)

21The transformation of workers’ rights in the free trade grammar of trade agreements is not a neutral operation. The criterion of legitimacy of comparative advantages requires a selection among workers’ rights. The inclusion of social standards has a “cost” in every sense of the word. Criticism of the Declaration of 1998 is proof of that cost. The criticisms were mostly focused on the shortcomings of the declaration: remuneration, time, and occupational health were not included in the declaration, even though they are the heart of the regulation promoted by the Organization. In this aspect, the ILO Declaration on Social Justice for a Fair Globalization of 200829 is significant. This declaration appears to be an attempt to distance itself from the restrictive definition of social justice promoted and defended by the ILO ten years earlier. This Decent Work Agenda aims to clarify the ILO’s objectives around four issues: employment, social protection and workers’ protection, social dialogue and the three-part system, and the respect of fundamental principles and rights. This reformulation of the ILO’s agenda opens its action to another area: States’ social policies. The key word becomes promotion, and its specific constraints become the key words related to the objective and its implementation. However, the respect of fundamental principles and rights targeted by the 2008 agenda remains under the constraint of free trade. Indeed, the last objective issued, which extends the 1998 Declaration, explicitly reveals its reasoning, adding a prevention to the respect of fundamental rights: “the violation of fundamental principles and rights cannot be invoked nor used as a legitimate comparative advantage, and labour standards cannot be used for protectionist commercial purposes”.

22The transformation of social rights through their registration on a free trade document implies not only a selection, but an alteration of their normativity.

C. Alteration

23The inclusion of social rights in free trade instruments influences the content of the rights which may be considered. More fundamentally, that inclusion implies a modification of the normativity of these rights. The bilateral relations of the European Union and the third States may serve as an example.

  • 30 Assessment of labour provisions in trade and investment arrangements / International Labour Office. (...)
  • 31 Trade, Development and Cooperation Agreement (TDCA) with South Africa, JOCE n° L 311 du 04/12/1999  (...)
  • 32 Art. 86-2 of the agreement. However, the agreement calls for a broader dialogue, on “questions rela (...)
  • 33 Art. 72, b. of the CARIFORUM-EC Economic Partnership Agreement.
  • 34 Art. 13.4, EU – South Korea free trade agreement (FTA).
  • 35 Art. 13.16, EU – South Korea free trade agreement (FTA). The agreement also references the Decent W (...)
  • 36 Art. 13.15, EU – South Korea free trade agreement (FTA).

24As regards free trade agreements drawn up by the European Union, several generations of trade agreements can be identified.30 The first generation concerns the Euro-Mediterranean agreements drawn up between 1995 and 2002. Those agreements organize a gradual liberalization of the exchanges within the Mediterranean area. These agreements (Algeria, Morocco, Tunisia) address the issue of labor through the lens of a migration policy. This attention is mostly translated into a prohibition of discrimination on workers based on their nationalities. It was only in the second phase that respect of certain social rights was considered more broadly. This second generation of agreements (Chile, South Africa) explicitly refers to internationally recognized labor standards. The EU–South Africa agreement provides clear evidence of that evolution.31 However, the objective was to promote international cooperation. Article 86, titled “Social issues”, states that “The Parties consider that economic development must be accompanied by social progress. They recognize the responsibility to guarantee basic social rights, which specifically aim at the freedom of association of workers, the right to collective bargaining, the abolition of forced labour, the elimination of discrimination in respect of employment and occupation and the effective abolition of child labour. The pertinent standards of the ILO shall be the point of reference for the development of these rights32. The CARIFORUM 2008 agreement signals the start of a third generation of agreements. The agreement provides an explicit obligation for States parties to ensure respect of fundamental labor standards by investors, and the agreement refers to the ILO Declaration of 1998 to that end.33 In this respect, the European approach differs greatly from that of the United States. The European Union favors essentially politic and promotional methods of influence. The EU–South Korea free trade agreement of 2013 includes a social clause referring to the Declaration of 1998.34 However, this free trade agreement explicitly excludes the use of the dispute settlement procedure provided in the treaty regarding questions which are relevant to labor law commitments, for instance.35 Only the consultation between public powers and a group of experts providing opinions and recommendations is provided for in the agreement. This group of experts is only consulted by the parties to the agreement and does not issue any binding decision. The States only need to consider the group’s opinions and recommendations for the application of the commitments in the social field.36 Ultimately, there are no possible economic sanctions or suspensions.

25The CETA agreement between the EU and Canada (Comprehensive Economic and Trade Agreement is an exception for two reasons: firstly, the importance of the social rights stated in the agreement; and secondly, the mechanisms put in place. It is all the more revealing of the constraints linked to a translation of social rights into the free trade format.

  • 37 For a comparison of social clauses in North American agreements and European agreements, Social dim (...)
  • 38 Art. 23.2 CETA– Right to regulate and levels of protection. The EU’s history is a reminder that the (...)
  • 39 Art 23.4 CETA.
  • 40 The European Coal and Steel Community (ECSC) provided for instance a mechanism granting to the High (...)
  • 41 Art. 23.3 CETA.
  • 42 The occupational health issue has been dealt with separately and subjected to increased requirement (...)

26Indeed, within the CETA, the social clause is unusually important when compared to European practice in relation to free trade agreements. In some respects, the CETA is marked by the North American influence.37 It certainly reflects a concern for greater integration. This is apparent through the chapter dedicated to labor and through the measures to guarantee its execution. Firstly, the content of the CETA goes beyond the concerns generally attached to social clauses in free trade agreements. Chapter 23, titled “Trade and Labour”, aims to maintain the social legislation of States parties. Indeed, it is necessary to ensure the agreement is not used to call into question the level of labor protection which may be considered as an obstacle to trade between States parties.38 The agreement provides a non-regression clause39 to stop States from “weakening or reducing the levels of protection afforded in their labour law and standards” to stimulate trade or investments in their territory. The Comprehensive Economic and Trade Agreement (CETA) is closer to a regional integration agreement in this regard.40 The agreement also mentions ILO standards. However, not all ILO conventions hold the same normativity. The fundamental labor rights and principles from the 1998 Declaration must be respected, promoted, and applied.41 Only the labor rights which are compatible with the free trade format benefit from a similar normativity. Thus, the rights covered by the Decent Work Agenda do not have the same mandatory effect within the scope of the CETA. Every State “ensures” that their rights and practices in the labor field favor the objectives of the agenda. Unavoidably, labor standards become objectives. The provisions of the agreement are intended to promote labor rights.42

27Secondly, the procedures to control respect of those provisions appear to be strengthened in comparison to those generally provided for in trade agreements to guarantee social clauses.

28Labor standards are targeted by a specific dispute resolution procedure, exclusive of all other procedures provided for in the CETA, as well as of all judicial procedures. The logic unique to social clauses in free trade agreements remains.

29First, these disputes only involve the parties to the agreements, in other words the States themselves. The transformation of social rights in the free trade context excludes the invocation of those rights by workers or their representatives. There is a shift in the ownership of those rights in a sense.

  • 43 Art. 23.9 du CETA.
  • 44 Art. 23.9, al. 3 du CETA.
  • 45 Ibid.

30These resolution procedures consist of several steps. The first one is typical of the conventional logic inherent in such an agreement. Thus, the use of consultation procedures between the parties is favored.43 The first goal is to favor the exchange of information between the parties. A party can request “consultations with the other party regarding any matter” relative to the chapter covering labor. However, these procedures may entail the involvement of third parties, and in particular of the ILO, which “may contribute to the examination of the matter that arises”.44 This procedure may also be examined by the Committee on Trade and Sustainable Development, which shall “convene promptly and endeavor to resolve the matter”.45 The “dispute” is then requalified as a “matter”. This terminology implies a unilateral response to the party to whom it is addressed in a sense. Thus, the dispute may find a resolution at this stage of the procedure, with each party making “publicly available any solution or decision on a matter” relative to the dispute.

  • 46 Art. 23.3, al. 7 of the CETA.

31If the dispute persists, its resolution becomes closer to the judicial solution. Still, the dispute is treated more as a “matter” than as litigation: A State may request the formation of a group of labor law experts. However, this group is close to a jurisdiction is some respects. As is the case for magistrates, it is stipulated that the experts must be “independent, serve in their individual capacities and not take any instructions from any organization or government with regard to the matter at issue”.46 However, the range remains one of expertise. The group of experts may get information on the ILO conventions referred to by the CETA from the ILO. They may also “request and receive written submissions or any other information from persons with relevant information or specialized knowledge”. The intervention of potential third parties (stakeholders or members of civil society) seems to be more a matter of expertise, information gathering or competence, rather than of the defense of an opinion or a cause. The conflict of a dispute is thus defused in a way through its rewording as a question of expertise.

32In the absence of an agreement on the mission of the group of experts by the parties, Article 23.10 al. 8 provides terms of reference and mandates the group to deliver a report “that makes recommendations for the resolution of the matter”.

33Ultimately, this mode of dispute resolution must lead to a consensual solution between the “parties” concerned. Following the final report delivered by the group of experts, concluding that one of the parties has violated its obligations, the last phase of consultation begins. Indeed, Article 23.10 al. 12 provides that the parties “shall engage in discussions” and “shall endeavor, in the, within three months of the delivery of the final report, to identify appropriate measures or, if appropriate, to decide upon a mutually satisfactory action plan.” The resolution of the dispute draws on two different reasonings. Admittedly, the solutions adopted lead to publicity. However, in fine the procedure presents a degree of bilateralism typical of trade agreements: the defendant and the claimant inform their “labour or sustainable development advisory groups” of any action or measure they are likely to take. In the absence of an answer, the “matter” again becomes a “dispute”, a trade dispute. This explains the reciprocal measures of the parties and the fact that the claimant may take measures against the defendant. The infringement of labor rights and standards is thus only addressed to the extent that it causes an imbalance in the trade agreements between the parties. Such an imbalance must be remedied and compensated. The absence of some “parties” in the dispute is revealing here. Neither companies, workers, nor their professional organizations may be parties. At most, they may be informed of the procedure.

III. Promotion of social policies

34The European rights context provides a suitable ground for the study of social rights enrollment on supports aimed at the governing of social policies. It reveals the existence of other constraints for the transformation of social rights in the policies’ normativity. Occurrences of this programmatic social rights enrollment is central; it is reflected in the law of both the European Union and the Council of Europe.

35In European Union law, the recognition of fundamental social rights first emerged as an answer to the attempt to overcome the simple project of creating a unique market between Member States.

  • 47 On this aspect, see. J. Porta and C. Wolmark, Les droits sociaux fondamentaux à l'épreuve du plur (...)

36The development of a fundamental social rights category has provided justification before the market and economic freedoms established in the Treaties. Through the establishment of common social values, fundamental social rights needed to both justify the European legislator’s exercise of its power in establishing a social harmonization policy and facilitate social legislations of Member States before economic freedoms. It was in this context that this expression arose in the community semantic in the early ‘90s, first in the Community Charter of Fundamental Social Rights of Workers of 1989, before expanding47 notably in treaties outside of the Community through the International Labor organization and the revised European Social Charter of 1996. The project of a social Europe rested on texts that raised social rights to the rank of fundamental rights: the community charter of fundamental rights, and the charter of fundamental rights of the European union.

37Refences to texts of law of the Council of Europe, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, and especially the European Social Charter, have strengthened the elevation of social rights to the rank of being fundamental in the manner of civil and political rights in Union law and in the Court of Justice’s decisions.

  • 48 In particular, “The elimination of discrimination on the grounds of sex" (ECJ 15 June 1978, Defrenn (...)
  • 49 ECJ 10 June 2010 INPS v. Bruno and Pettini, Cases C-395/08 and C-396/08, pts 31 and 32. The designa (...)
  • 50 Dealing with the fundamental right to annual paid leave under Article 31 of the Charter, ECJ, 6 Nov (...)
  • 51 Article 51(1) of the Charter of Fundamental Rights of the European Union, 2012/C 326/02: “(...) Con (...)
  • 52 ECJ 15 January 2014, Association de médiation sociale, Case C-176/12.

38However, this recognition is oddly marked by a division into two different categories, one of which borrows from the normative method of human rights, while the other refers to the programmatic normativity of public policies. This division into two categories is clear in the law of the Council of Europe. The recognition of the social through a constructive interpretation of the European Convention on Human Rights contrasts with the one taken within the European Social Charter. The law of the European Union recognizes an analogous division, which was first indicated in the Court of Justice rulings. It establishes a division between two categories of social rights. Some of them are fundamental rights established as general principles of law,48 while others are social principles of the Union.49 The Charter of Fundamental Rights of the European Union has not completely renounced such a division. Certainly, it removes the distinction between civil and political rights and social rights. However, it establishes a division between “freedom rights” on the one hand and principles on the other. Certain rights, including in relation to social matters,50 are accepted as “rights and freedoms” that need to be respected,51 whereas the others are only “principles” that need to be observed and are not completely justiciable.52

39The European Social Charter and the Community Charter of the Fundamental Social Rights of Workers are all examples of social rights established outside the normative framework of human rights.

  • 53 See D.ROMAN, “Droits des pauvres, pauvres droits ? Recherches sur la justiciabilité des droits soci (...)

40How can we account for this second mode of normativity in which social rights are transformed? In many cases, this one is ultimately disqualified. The analysis of these texts is characterized by legalism. Whether it is to suggest the progress they represent to guarantee social rights or to denounce the weakness of the protections they offer, the commentary on these texts draws its questions and sentences from the legal semantics of the welfare state. Only the deviation from the axiological and subjective model of human rights seems to count, whether in the opposition between "droit à" and "droit de", and "droit-liberté" and "droit-prestation", or in the plea in favor of their justiciability.53 In other words, these references to social rights are only thought of in terms of their legality, which is prejudiced as a prerequisite for their relevance.

41Furthermore, the descriptions of these supports are ultimately intended to only bring them back into the fold of the law or, on the contrary, to disqualify them on the grounds of their inadequacy for the human rights modality.

42This dual movement of extending legality and applying legal semantics obscures, for the most part, the specific normative form of these supports. Reading these texts from the perspective of such semantics leads to a focus only on the possibility of an axiological formulation of these statements and to their shaping of disputes being taken seriously only if they are based on the model of trial and justiciability, disqualifying the other types of tests permitted by their reference. In other words, such a reading fails to think about the very purpose of these supports, the promotion of social rights by the government of policies. It is through a different semantics that this promotional normativity can be grasped. Rather than assuming the extension of legality to these inclusions of social rights in instruments aimed at the government of policies, it is important to pay attention to the displacements that they operate.

43The European Social Charter provides a privileged basis for the analysis of such a transformation, inasmuch as this Council of Europe text deploys a highly promotional grammar. In the law of the Council of Europe, fundamental social rights were only recognized after the European Convention on Human Rights. The European Social Charter was conceived as a counterpart to the the European Convention on Human Rights for Economic and Social Rights. This 1961 text, revised in 1996, has a promotional and programmatic purpose that distinguishes it from the European Convention on Human Rights, which takes the classic form of rights and freedoms. The Social Charter system remains weakly constraining and highlights, in the law of the Council of Europe, the contrast between civil and political rights on the one hand and social rights within Council of Europe law on the other. In this case, Council of Europe Member States must adhere to a limited number of social rights out of the 31 articles of the Charter and not to all the provisions of the Charter. By these accessions, the States undertake to implement these social rights in their national law.

44This instrument thus provides a favorable environment for examining the transformations that such a use of social rights implies in order to promote the implementation of social policies. It modifies the formulation and the way in which dispute or litigation due to their violation are conceived.

A. From the right to the program

45The transformation, the shift from an axiological legal form to the instrumental form of policies, is manifested first and foremost by a set of reformulation operations. At first sight, the European Social Charter does not differ from other declarations of fundamental rights. The statements it contains adopt the classic style of legal statements. However, the context of these supports does not require a deontic reading, but rather a teleological one. The (re)formulation of rights is based on a programmatic approach.

46The European Social Charter is based on a specific category of government of national policies: the promotion of social rights. In this context, it operates a change from the legal form to that of the program. This passage is part of the structure of the Social Charter. The statement of social rights is formally separated into two successive parts. The first part is devoted to setting out the 31 social rights that the Charter seeks to promote.

1. Everyone shall have the opportunity to earn his living in an occupation freely entered upon.

2. All workers have the right to just conditions of work.

3. All workers have the right to safe and healthy working conditions. […]

  • 54 European Social Charter (revised) 1996.

47These statements adopt a style characteristic of the human rights statement. These statements have an axiological form. Article 1 of the Charter states that " Everyone shall have the opportunity to earn his living in an occupation freely entered upon ". Throughout this list of articles, it is thus "every person", "all workers", “employed women”, "children", "children and young personns", « Disabled persons », "nationals of one of the parties", "migrant workers", "workers' representatives in the company" who are granted various social rights. The generality of the categories of beneficiaries of these rights is thus directly inspired by the style of the major human rights declarations. This list even includes beneficiaries to whom the legal tradition commonly denies the status of legal subject and thus the right to be recognized as such. Thus, Article 16 provides that “the Family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development". Apart from this incongruity in convening the beneficiaries of social rights, the first part of the Charter mimics the formulation of human rights in every respect, stating each social right as if it necessarily implied the recognition of subjective rights. However, the sentence placed at the frontispiece of this enumeration immediately conjures up such an interpretation and lays down the principle of a completely different hermeneutics. The rights listed are recognized by the signatory governments "as an objective of a policy that they will pursue by all appropriate means".54 The rights set out in the Charter are thus to be interpreted as objectives to be achieved for public action.

48What does this teleological interpretation directive imply? The second part of the European Social Charter explains the operations involved in this transformation. It establishes a new formulation of the social rights of the first part, breaking down the objective into a list of results and means to be targeted by the signatory governments. The social right defined in the first part is thus taken up in the form of a program. This declination distributes the State's commitments into a range of goals, results to be achieved, and means to be implemented. Article 1, which stipulates that " Everyone shall have the opportunity to earn his living in an occupation freely entered upon ", is set out in the second part in a list of four commitments: "to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment", "protect effectively the right of the worker to earn his living [...]", "establish or maintain free employment services [...]”, and "provide or promote appropriate vocational guidance, training and rehabilitation". Hence, these commitments reinterpret the freedom of work. Having become a "policy objective", freedom of work is reformulated as a program of public action. This is the case for each of the social rights in the first part. Interpreted as setting an objective to be pursued by States, they are reformulated as an end and by all means agenda, an embryonic model of social policy.

  • 55 Art.2, Part 1 of the Charter
  • 56 Art. 4, Part 1 of the Charter
  • 57 Art. 10, Part 1 of the Charter.
  • 58 Art. 7, Part. 1 of the Charter.
  • 59 Art.1, §2, Part 2
  • 60 Art. 2, §1, Part 2
  • 61 Art /2, §1; art. 3 §4, Part 2
  • 62 Not. Art. 2, §5 and 6, Part 2.

49The change in style of the Charter from Part One to Part Two also reveals this transformation. The single verbal form declined under the 31 statements in the first part [being entitled] is replaced with a wide range of action verbs. In the second part, public action must therefore “accept”, "recognize", "protect", "establish or maintain", "provide or promote", "eliminate", "provide", " formulate, implement and periodically review", "ensure", "issue", "implement", "review", "enact", "promote", "permit", "prohibit", "limit", "regulate", and "encourage", etc. These different actions are introduced by the same programmatic formula "aimed at ensuring the effective application of the right […]". Only the right to trade union derogates from this formula since it is described as a freedom that must be "guaranteed or promoted". Another salient element of this style is the use of adjectives. This is not entirely absent from the first part, which is aimed at just55 conditions of work, a decent56 standard of living, appropriate57 facilities, special protection58, etc. However, this concern for context becomes much more prevalent in the second part and concerns less the adequacy of the right to the beneficiary's situation than the very context in which public action is carried out. Government commitments are thus adjusted for certain rights according to these circumstances. Thus, States must "protect effectively the right of workers to earn his living [...]"59. Similarly, "the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit"60. Progressiveness61 and possibility62 modulate the commitments made by States.

50The transformation from right to program influences the modality of disputes raised in the name of the Charter.

B. Disputes

51For its implementation, the European Social Charter system involves specific assessments. These tests do not follow the legal modalities of the trial, which the justiciability of social rights would imply. The dispute is not a legal one. The contemporary evolutions of the Social Charter towards a legal form only render this promotional grammar more singular, making this mode of normativity specific to politics.

1. A quasi-jurisdiction

  • 63 C. NIVARD, La justiciabilité des droits sociaux : étude de droit conventionnel européen, prec.

52The body in charge of monitoring the Charter, the European Committee of Social Rights, tends to be described as a quasi-jurisdiction. The descriptions of the authority in charge of interpreting the Social Charter and monitoring States' compliance with their commitments are compared to a court. The evolution of the institution gradually brings it closer to this model: the form of these decisions is clearly inspired by that of the European Court of Human Rights, the authority of the Committee's interpretations is recognized, and the justiciability of the articles of the Charter before the domestic judge is not excluded.63

  • 64 This intergovernmental nature of the SR committee has been subject to strong criticism. It weakens (...)
  • 65 Article 3 of the Turin Protocol 1991. However, the reference to the jurisdictional model is not abs (...)
  • 66 Art. 25 of the European Social Charter of 1961
  • 67 Change of denomination noted at the 158th session of the Committee of Experts held from 16 to 20 No (...)
  • 68 Article 26 of the 1961 European Social Charter, unchanged.

53It would be wrong, however, to analyze the Committee as a judge in its own right. The figure of expertise remains highly present, as a sign of its role in policy governance. The Committee is more like a committee of experts than a full-fledged court. The composition of the proceedings is most emblematic in this respect. The 15 members of the Committee are elected by the Committee of Ministers64 on the basis of their "recognized competence in social and international matters".65 At present, the Committee is almost exclusively composed of professors, lecturers, and legal researchers. The Norwegian expert is a magistrate as well as the French expert, from the Council of State. The change of appointment of the "committee of experts"66 to the current "European Committee of Social Rights" has not really modified the Committee.67 The qualification of the members of the Committee not as magistrates but as experts is in harmony with the missions assigned to the Committee in the context of monitoring States' compliance with their commitments. The predominant position of the expert in the European Committee of Social Rights is also reflected in the advisory role in the work played by a representative of the International Labor Organization.68

54The contentious nature of the control procedures put in place remains limited, which distinguishes them from the judicial model. This non-contentious nature is evident in the reporting procedure which leads the Committee to annually examine the reports submitted to it by governments on the application of the provisions of the Charter. The introduction of a collective complaints’ procedure has partially changed the nature of this control.

2. The reporting system

  • 69 Community Charter of the Fundamental Social Rights of Workers, pt. 29-30.
  • 70 See " Form for reports to be submitted in pursuance of the Revised European Social Charter", as ado (...)
  • 71 For example, art. 1, §1 of the European Social Charter

55There is a mode of judgment common to governments of policies through fundamental social rights: the reporting system. There is a constant feature of regulation of the promotion of social rights, whether within the UN, the ILO, or the European Union. For example, the Community Charter of the Fundamental Social Rights of Workers only provided for the preparation, each year, of "a report on the application of the Charter by the Member States and by the European Community", which was subsequently transmitted to the Council, Parliament, and the Economic and Social Council.69 The testing of national practices thus takes a specific form, that of a "report". The drafting of the report by the national government and the evaluation of its behavior based on it constitutes one of the constants of this reporting system. The State's behavior is "judged" according to the description it gives of its own situation. The system set up for the European Social Charter is a typical example here. It is based on a self-description procedure in the form of a report prepared by each government. States are required to prepare an annual report on the national situation in light of the commitments they have taken under the Charter. This report gives rise to an evaluation by the European Committee of Social Rights, which adopts "conclusions" on this basis. These reports are standardized and must therefore be entrenched on the basis of a form.70 This form provides information on the nature of the control carried out by the European Committee of Social Rights. States are obligated to transmit information by articles. For each commitment, the State specifies three types of information. It describes the appropriate "general legal framework". This description covers both the different sources of social law (legislative texts, regulations, and collective agreements, including jurisprudence). The directive is sometimes more specific. Thus, under Article 1 § 1 of Part II of the Charter, a provision which commits States "to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment", the State must also describe its "national employment policy". Beyond this formal description of positive law, the State is thus invited to provide a justification. It is asked to "specify the nature, reasons and scope of any reform". However, the Committee does not limit itself to assessing the description of the legislative and political framework put in place by the State and its justifications. Its examination also applies to the implementation of national legislation, with the State being required to indicate the measures taken to this end. The indication of these requested elements reflects the concern for a concrete assessment of the state of national law. It is not only administrative acts in the legal sense that are required, but, more broadly, "programs, action plans, projects, etc.”. This requirement corresponds to the nature of the commitment made by the State. It is not simply a question of implementing into its legislation the "social rights" contained in the Charter, but of "ensuring their effective exercise"71. However, to do so, it is not enough to prepare national law for this exercise; these rights must be put into policies to achieve effective results.

  • 72 The stylized formula is in the form
  • 73 Art. 15§1 of the European Social Charter
  • 74 “Total number of disabled persons, number of disabled persons under 18 years of age, number of disa (...)
  • 75 F. OST and M. van de KERCHOVE, Jalons pour une théorie critique du droit, Brussels, Publications F (...)

56In this respect, the drafting of national reports reveals the purpose and nature of the control exercised. It not only concerns national law, but also the "situation" of the beneficiaries of social rights within the State. Hence, the national government is requested to "provide figures, statistics or any other relevant information if possible".72 This requirement for statistical proof of the results achieved in guaranteeing social law is sometimes subject to an important specification. Thus, regarding the commitment to "take the necessary measures to provide guidance, education and vocational training for people with disabilities"73, the form specifies the type of figures expected.74 The assessment of the State's compliance with these obligations is not limited to a formal judgment of conformity commonly required in legal transactions75 but involves an effectivity judgment.

57The distinction between evaluation and sanction in the reporting system of the European Social Charter still refers to the order of expertise. The decision of the European Committee of Social Rights does not terminate the evaluation procedure within the reporting system. The conclusions of the European Committee of Social Rights have a declaratory value and do not automatically imply the imposition of a sanction. This is the responsibility of a "political" body, the Committee of Ministers of the Council of Europe. Following a finding of non-compliance, the Committee of Ministers may make a recommendation to the Member State concerned. This political decision, adopted by a two-third majority of government representatives, has no other effect. The reporting system does not end with this decision, since in subsequent reports, the State will have to describe the measures taken following the conclusion of non-compliance. The reporting system is thus based on a sharing between expertise and politics, which transcends the trial test. However, the influence of the jurisdictional model on the work of the ECSR is expressed in the authority now given to its decision. The finding of a violation of the Charter falls within its sole competence and can no longer be challenged by the Committee of Ministers.

58Alongside this reporting procedure, the European Social Charter has also established a quasi-jurisdictional control procedure. However, it remains fundamentally embedded in the grammar of policies, in other words, in a mode of normativity by objective.

3. The collective reclamation

59The introduction of the Charter's reclamation procedure, adopted in 1995, marked an important step towards the jurisdiction of the European Committee of Social Rights. It only renders the distance between this modality of the dispute and that of a trial before a court on behalf of fundamental rights, such as it could appear before the European Court of Human Rights, all the more sensitive.

  • 76 The recognition of representativeness is outside the competence of States. According to the SR Comm (...)
  • 77 Art. 1, b of the Additional Protocol to the European Social Charter providing a collective system o (...)
  • 78 Art.3 of the Protocol, prev.

60First, this procedure does not allow for individual requests; it is collective. A worker could not bring a complaint before the European Committee of Social Rights alleging a violation of his/her rights under the Charter. Only collective organizations may file a complaint. They may be representative76 European or national professional organizations. Certain international NGOs are also admissible before the Committee, if they have consultative status within the Council of Europe and are registered for this purpose by the Governmental Committee.77 INGOs identified in this way are not generally entitled to submit complaints. They may only refer to the Committee "in areas for which they have been recognized as particularly qualified".78 This collective dimension of the complaint’s procedure has several important implications for the aspect of the dispute that may be brought before the Committee. On the one hand, the organization, whether professional or non-governmental, brings an action before the Committee in relation to an infringement of a right of which it is not, generally, a direct victim. On the other hand, the dispute is of an objective nature. The aim is not to have the infringement of rights recognized or remedied, but only to restore a state of law that respects the commitments made by the State. The issue of the quasi-jurisdictional procedure is not the restoration of individual interest. This reflexive device takes as its object the policy itself, the selection of subjects whose actions are admissible is another sign of orientation. These subjects are much more appropriately classified as "stakeholders".

  • 79 ECSR, 10 March 1999 International Commission of Jurists v. Portugal, claim No. 1/1998.
  • 80 On the role of the judgment of effectiveness in law, see, F. Ost and M. van de Kerchove, Jalons pou (...)
  • 81 ECSR, 5 December 2007, International Movement ATD Fourth World v. France, Complaint No. 33/2006, § (...)

61Secondly, the programmatic vocation of the Charter has a decisive influence on the evaluation of national laws by the European Committee of Social Rights. Since the social rights recognized by the Charter are objectives that the Charter translates into commitments, respect for social rights is assessed as an outcome to be achieved. It is not enough for national law simply to be in conformity or compatible with the Charter. The Committee extends its examination to all national law and to the effective implementation of State measures: implementation methods, the monitoring of their application, and results obtained. The mere conformity of national texts with the Charter is not enough; the Committee ensures that the Charter is implemented. A decision by the European Committee of Social Rights dated 10 March 1999 against Portugal on the fight against child labor can be taken as an example of this.79 In the present case, the criticism related not to the absence of national legislation, but its lack of effectiveness. Having referred the matter to the Committee, the International Commission of Jurists alleged that, despite the legislation adopted by the Portuguese authorities, "a large number of children under 15 years of age continue to work illegally in many sectors of the economy, particularly in the north of the country". After observing that "children under the age of fifteen actually work in Portugal" in violation of Portuguese law, the European Committee of Social Rights ruled in favor of the applicants and considered that Portugal's situation was not in conformity with Article 7(1) of the Charter. Thus, the European Committee of Social Rights assessment of national law is less akin to a judgment of conformity or compatibility, as is customary in law, than to a judgment of effectiveness.80 The Committee consistently states that "the object and purpose of the Charter, as an instrument for the protection of human rights, is to protect rights that are not theoretical but effective". From this constant principle, inspired by the decisions of the European Court of Human Rights, the Committee had in this case characteristically concluded that "the satisfactory application of Article 7 cannot be achieved solely by the effect of the legislation if its application is not effective and strictly controlled". The Committee sets out in detail the obligations that States must fulfil in order for national law to comply with the Social Charter. The definition of these obligations is thus similar to a public action program: The State must "implement means (normative, financial, operational), likely to permit real progress towards the achievement of the objectives assigned by the Charter". It must then put in place modalities for evaluating these actions aimed at giving concrete expression to the fundamental right: "to keep statistics worthy of the name in order to compare needs, means and results", "carry out regular verification of the effectiveness of the strategies adopted".81

  • 82 Ibid.
  • 83 Article I, paragraph 1 provides for such tolerance for the implementation of the right to fair work (...)
  • 84 ECSR, 16 Nov. 2010, CFE-CGC v. France, Rec. No. 9/2000, § 40.
  • 85 ECSR, 4 November 2003, Autism Europe v. France, Recl. No. 13/2002, §53

62The margin of appreciation granted to States still reflects the teleological nature of the evaluation of national law. In particular, "when the realization of any of the rights in question is exceptionally complex and particularly costly, the State party must endeavor to achieve the objectives of the Charter within a reasonable time frame, at the cost of measurable progress, making the best use of the resources it can mobilize". Furthermore, national authorities have the possibility of providing progressive compliance with the provisions of the Charter.82 That is, as the Committee's assessment is not a judgment of the conformity of national legislation, but of the effectiveness of the States’ action, the requirement to respect the Charter is profoundly modified. Hence, the Committee can explicitly provide that the States' commitments "shall be considered as fulfilled as soon as these provisions are applied to the vast majority of the workers concerned".83 However, the Committee has limited the scope of this tolerance. It "cannot lead to a situation in which a large number of persons, constituting a given category, would be deliberately excluded from the application of a rule of law".84 States must also ensure that this tolerance does not impact the categories of people "whose vulnerability is greater".85

63The shaping of fundamental social rights for the promotion of social policy within the Member States implies their inclusion in a specific normative mode. This is first noticeable in both the wording and the disputes. The inclusion of social rights in an instrument aimed at the government of policies is first and foremost accompanied by a reformulation of standards. The axiological statements of fundamental rights are taken up in the form of a program, i.e., a set of means and actions oriented towards a goal. This mode of normativity is also based on specific dispute modalities. The legal model of the "trial" remains an important reference for the construction of disputes in such a context. The attraction of this model is manifested in the doctrinal interpretation of the developments of the European Committee of Social Rights as a quasi-jurisdiction. Nevertheless, the specificities of procedural evaluations remain strongly marked by the normativity of policies: the figure of the expert, the test is less that of a judgment than an evaluation of social policies, the importance of judging effectiveness, and so on. All these elements constitute a promotional grammar imposing a series of transformations on social rights. In contrast, the coordination regime on which the European foundation of social rights is based calls for a transformation of a completely different nature of social rights.

IV. Coordination

64The recognition of social rights within the European Union has also been embodied in similar instruments of social policy governments. The first of its kind was the 1989 Community Charter of the Fundamental Social Rights of Workers, which had only limited sustainability. Its mission was essentially promotional. The European Social Rights Pillar provides a recent example of such a registration. However, it falls under a different mode of normativity, that of coordination, and is based on transformations of social rights that deviate from the promotional mode.

  • 86 P. Gruny and L. Harribey, "Le socle européen des droits sociaux : première ébauche d'un Code de (...)
  • 87 Communication from the Commission, “Monitoring the implementation of the European Pillar of Social (...)
  • 88 S. LAULOM, « L’espoir d’une revitalisation du projet d’Europe sociale », Revue droit du travail Dal (...)
  • 89 K. CHATZILAOU, « Vers un socle européen des droits sociaux : quelles inspirations ? », Revue droit (...)

65The foundation was jointly proclaimed by the European Parliament, the Council and the Commission at the Social Summit in Gothenburg on November 17, 2017. This proclamation follows the announcement by the President of the European Commission, Jean-Claude Juncker, of the relaunch of a Social Europe, which has been significantly mute for a decade. The foundation is the cornerstone of this recovery. It sets out 20 principles of social law. The legality of the Pillar was questioned straight away. A simple "frame of reference",86 the European Social Rights Pillar of does not present the classic characteristics of legal normativity. This seems to be largely denied by the promoters of the text. In particular, the implementation of the foundation is not accompanied by the recognition of new social skills. It is presented as "a shared political commitment and responsibility".87 It has also been qualified as an “unidentified legal object”,88 if not an illusory instrument,89 because of its difference from the traditional legal form. These ways of interpreting and assessing the Pillar are based on an inclination. Here again, they consist in extending the legal analysis to normative objects that do not correspond to the traditional legal form. Here, the Pillar is reduced to the model of a declaration of rights. Under such an extension of the right, the Pillar only appears as a misunderstanding. On the contrary, it is important to analyses the changes at work due to the inclusion of social rights under such an instrument. The purpose of the pillar is to prepare the transformation of these rights in indicators and then to acclimate for a specific assessment, the comparison of national performances.

A. From the right to the indicator

66In the context of European Union law, the European Social Rights Pillar also illustrates the reformulation required to acclimate social rights for public action governance. At first glance, the wording of the Pillar seems very similar to other declarations, such as the Charter of Fundamental Rights of the European Union. It contains a list of axiological statements that seem to be aimed at recognizing subjective rights.

  • 90 Art. 1 of the European Pillar of Social Rights.
  • 91 Art. 2 of the European Pillar of Social Rights.
  • 92 Art. 4, para.3 of the European Pillar of Social Rights.
  • 93 Art.6, para. 1 of the European Pillar of Social Rights.

67Referred to as a "principle", these statements are a priori modelled on the models of human rights stylistics: "everyone has the right to quality and inclusive education [...]"90, "women and men have the right to equal pay for work of equal value [...]"91, “People unemployed have the right to personalised, continuous and consistent support [...]"92, "workers have the right to a fair wage [...]"93, and so on. The beneficiaries covered by these provisions are, like the European Social Charter and any legal declaration, of the general subject classes: all people, women and men, workers, parents, and social partners. However, other formulas deviate from this model and include a more programmatic meaning. Principle 5, "secure and adaptable employment", does not only affirm the " right to fair and equal treatment regarding working conditions, access to social protection and training ". Recommendations are attached. Hence, The transition towards open-ended forms of employment shall be fostered " or " Innovative forms of work that ensure quality working conditions shall be fostered ". The foundation combines axiologically-sounding statements and others with a programmatic focus. This hybridization of wording styles, both axiological and programmatic, affects the formulation of social rights in the coordination of the social policies of the Member States and the European legislator.

  • 94 Council Decision 2010/707/EU of 21 October 2010 on guidelines for the employment policies of the Me (...)
  • 95 Council Decision 2015/1848/EU of 5 October 2015 on guidelines for the employment policies of the Me (...)
  • 96 Council Decision 2018/1215/ EU of 16 July 2018 on guidelines for the employment policies of the Mem (...)

68The plan that orders the Pillar further underscores this process. The principles are distributed across three chapters: "Equal opportunities and access to the labor market", "Fair working conditions", and "Social protection and inclusion". This structure is neither that of the Charter of Fundamental Rights of the Union nor that of the competences of the European legislator in social matters but is similar to the one to which the Committee refers in the context of policy coordination. It covers, in part, the sequencing of the guidelines established in the context of the coordinated employment strategy. These guidelines were put in place as part of the Europe 2020 strategy in 2010.94 They remained unchanged until 2014 and were reviewed in 2015.95 The proclamation of the European social Rights Pillar was the occasion for a new adaptation of the guidelines in 2018.96 While the content of the guidelines is enriched to better correspond to the guarantees targeted by the foundation, such as the reference to social dialogue, the guidelines remain unchanged in their order: "Guideline No. 5: Boosting the demand for labour ", "Guideline No. 6: Enhancing labour supply and improving access to employment, skills and competences ", "Guideline No. 7: Enhancing the functioning of labour markets and the effectiveness of social dialogue ", and "Guideline No. 8: Promoting equal opportunities for all, fostering social inclusion and combatting poverty ". The absence of a reorganization of these guidelines – particularly through a reference to social dialogue – testifies to the proximity between the Pillar and these social policy orientations. The three chapters of the Pillar already responded to the logic underlying the guidelines, that of market regulation. In this respect, the deposit of social rights within the Pillar has an interpretative effect, immediately assigning a regulatory function to social rights.

  • 97 " Commission staff working document - Social Scoreboard Accompanying the document, Communication fr (...)

69This first adjustment of social rights, as a political vocation for the support, is joined by a second reformulation. This makes it possible to adapt the rights to coordination by setting them into indicators. The European pillar is indeed concretized by a social scoreboard that build an equivalence between the legal form statements of the pillar and the statistical form indicator of the board. This use of indicators further accentuates the interpretative effect of the Pillar. For the Commission, the aim of the Pillar is " o serve as a compass for a process leading to renewed socio-economic convergence and to drive reforms at national level "97. In this context, the "monitoring of the implementation" of the pillar is grounded on a "scoreboard of key indicators". This list of indicators, presented as a benchmark instrument, gives the Pillar a performativity that would otherwise not be possible if the 20 principles were simply listed. Indeed, this table of indicators is partly used in the context of the European semester, a procedure aimed at strengthening economic convergence within the eurozone. The indicators thus appear as the statistical equivalent of the Pillar, making it possible to monitor the progress made by Member States in implementing its principles. The comparison of the Pillar and the indicators shows the type of reformulation required to calculate social rights.

  • 98 Art. 8 of the European Pillar of Social Rights.
  • 99 Art. 1 of the European Pillar of Social Rights.
  • 100 " Commission staff working document - Social Scoreboard Accompanying the document, Communication fr (...)

70Although it is not necessarily useful for the demonstration, three aspects of this reformulation need to be highlighted in order to capture the changes that suggests by this construction of an equivalence between rights and indicators. First, this construction of equivalence is only partial. The social scoreboard clearly reflects the three-part plan of the European Pillar of Social Rights. However, it modifies the categorization of the data. The foundation identifies three chapters: "Equal opportunities and access to the labor market", "Fair working conditions", and "Social protection and inclusion". This structure is relevant of the changes impose to the meaning of social rights in this context: market access, quality of work, and social rights outside work. There was already a certain idea of social rights and their relationship to work. Some elements of this classification revealed an interpretation of certain social rights. Collective rights (social dialogue, collective negotiation, information consultation, and collective action)98 are assigned to the search for "fair working conditions", erasing the democratization issues that these rights entail. Similarly, the right to education, training and lifelong learning99 is based solely on the market dimension of "equal opportunities and access to the labor market". The structure of the scoreboard further highlights the interpretative effect of the pillar. While the first chapter remains unchanged, the second is entitled "Dynamic labor markets and fair working conditions" and the third "Public support / social security and inclusion". The explanation on each of these subdivisions further highlights the changes impose to pass from the pillar to the indicators. Under the heading of "fair working conditions", the Pillar aims to examine " whether markets work efficiently and freely to help relocation and job search in a competitive economy ". It is obvious from the outset that the indicators selected to measure the policies put in place, on behalf of the Pillar, make a choice within the Pillar. The indicators summarize the "structure of the labor force" (employment rate, unemployment rate, activity rate, etc.), "labor market dynamics" (activation measures, Employment in current job by duration, Transition rates from temporary to permanent contracts), and "income, including employment-related" (household disposable income, hourly compensation of employees and poverty risk rate). Based on these three main divisions, the social scoreboard identifies twelve areas "on which societal progress could be measured ",100 each of which corresponds to one or more indicators.

  • 101 "Joint Employment Report of the Commission and the Council accompanying the Commission Communicatio (...)
  • 102 Ibid. spec. p. 26, note 13.

71The implementation of indicators provides an interpretation of the European Social Rights Pillar. This interpretative effect partly responds to technical constraints. The Pillar makes it possible to monitor the situation of States only "in measurable dimensions of the Pillar".101 The choice of indicators can thus give rise to technical disputes. Thus, the indicators "participants in active labour market policies per 100 persons wanting to work" and "compensation of employees per hour worked, in euro" are no longer included among the key indicators. They have been replaced with other indicators: "long-term unemployment rate" and " net earnings of a full-time single worker without children earning an average wage". This substitution corresponds to "technical concerns".102 The difficulties of aggregating national figures at a European level are not unrelated to this. However, the preference given to an indicator is obviously neither purely technical nor purely natural. It always involves some form of interpretation.

  • 103 Not., G. ; RAVEAUD, « Au cœur de la stratégie européenne pour l’emploi, le taux d’emploi », Educa (...)

72The question of employment can be taken as an illustration of the movements involved in the setting of indicators.103 This interpretation by the indicators results in leaving part of the quality of employment in the shadow in order to focus on the stream of the labor markets. Several elements are significant. Some "rights" recognized by the Pillar have no statistical translation within the scoreboard. Neither " Social dialogue and involvement of workers" (pt. 08), nor "work-life balance", nor even the rights attached to a " Healthy, safe and well-adapted work environment and data protection " (pt. 10), are subject to indicators. In terms of job quality, only the duration of employment and the transition from fixed term to permanent employment are taken into account. The quality of labor related to work performance within a work organization is maintained in the background to ensure that work performed in the market prevails. Similarly, equal opportunities (pt. 3) prohibiting distinctions based on " gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation" is reduced by the scoreboard to the sole criteria of gender, age and socio-economic and cultural status (indicator " Variation in performance explained by students' socio-economic status"). From one medium to another, the concept of equal treatment is profoundly transformed. Thus, far from being neutral, the use of indicators leads to an interpretation of the Pillar.

  • 104 Employment Performance Monitor (EPM).
  • 105 Social Protection Performance Monitor (SSPM).
  • 106 Macro Imbalance Procedure (MIP).

73The social scoreboard establishes a hierarchy between indicators that further accentuates the interpretative effect of the indicator method. Thus, only the first indicators in each domain are identified as "key indicators". This qualification does not fail to influence the expected performance of the indicator. The scoreboard established to monitor the European social rights pillar is not the only statistical tool used to oversee Member States' social policies. It is in addition to an already extensive network of scoreboards integrated into the existing European action. The portfolio of European social indicators set up in the early 2000s, as part of the open method of coordination, has served as a basis for the development of employment scoreboards (the employment performance scoreboard104 used to assess States' employment performance under the 2020 Strategy) and social protection scoreboards (the social protection performance scoreboard105). In addition to these tables, there is also the scoreboard set up in the context of macroeconomic imbalance procedures.106 The European pillar aims to strengthen the articulation between the various policies underlined in these tables and, in particular, connects the Union's social policies and the macroeconomic governance of the eurozone. The scoreboard of the European pillar must therefore be taken into account in the context of the "European Semester". These are the "key indicators" of the Pillar that are made common to the two coordination areas: the 2020 strategy and the macroeconomic imbalance procedure of the European Semester. From this perspective, the European platform reveals one of these functions. Its purpose is not only to promote the social policies of the EU and the Member States, but also to lay the foundations, through the scoreboard, of an articulation between the coordination of economic policies within the framework of the European Semester, the social policies of Europe 2020, and the promotion of social rights. This is an instrument of communication between the macroeconomic regulation of the Euro, social policies, and the social harmonization of law.

74The inclusion of fundamental social rights in instruments designed to govern States’ social policies influences the shape that disputes raised in the name of fundamental social rights may have.

B. Benchmark and performance comparisons

75The dispute takes the form of a benchmark in the context of the European Pillar. The translation of the European Pillar of Social Rights into a scoreboard of indicators has been designed to facilitate such a test. In this respect, the expected use of the Pillar is dual.

76The scoreboard must first allow for the deployment of a reflexivity of Member States' social policies. As soon as these are made commensurable by the set of indicators, European citizens have an opportunity to assess the comparative performance of their national policies. The publication of indicators and their wide accessibility is thus intended to strengthen a form of citizen control over national policies by providing them with both a measurement and a comparison tool.

77This first form of reflexivity is combined with a second.

78The monitoring of the implementation of the European Pillar of Social Rights is based on the annual procedure of the European semester for the coordination of the economic and budgetary policies of the Member States. The scoreboard set up to monitor the Pillar is taken into account as part of the European semester. It forms the basis for the drafting of the joint employment record presented annually by the European Commission. The key indicators of the scoreboard are then placed in competition between the States. These indicators are analyzed using a common method. For each indicator, the relative performance of the State is established according to the latter’s situation and the assessments recorded are compared to those of other States. These levels and variations are then classified according to the EU average. By combining these two elements, each indicator allows for a qualification of the situation of the States according to a scale of seven categories: "best elements", "better than average", "good, but to be monitored", "around the average", "low, but improving," "to be monitored", and "critical situations". This comparison of States' performance in accordance with the indicators is not only intended to place States in competition with each other. It should also make it possible to identify the "challenges" that the State must meet within the framework of the European Semester. As a basis for the recommendations made by each country, in the context of the eurozone's economic policy, it is evaluated using a reporting system that assesses the progress made by the State in response to these recommendations. These recommendations come in the context of the economic and monetary Union and the procedure concerning macroeconomic imbalances. They reinstate the social dimension less as an objective to be pursued than as an index of the balances of each State. The nature of the recommendations responds to this change.

  • 107 " on the 2018 National Reform Programme of France and delivering a Council opinion on the 2018 Stab (...)

79The Council's recommendations addressed to France for 2018 illustrate this singularity. On this basis, it is recommended that France, in particular, "gradually standardize the rules of the various pension systems to strengthen the equity and sustainability of these systems" or endeavor "to ensure that changes in the minimum wage are compatible with job creation and competitiveness".107

V. Conclusion

80What lessons have been learned from the study of these different cases of "transformation" of social rights under modes of normativity other than those of human rights? Several kinds of teaching present themselves.

81First, they encourage prudence in legal analysis. The inclusion of social rights in instruments that are not intended to recognize such rights is generally questioned solely on the basis of its difference from the normative mode, which is characteristic of human rights. It is then a question of whether or not to qualify them as legal. The notion of soft law then serves to extend the possibility of interpretation based on the mode of legal normativity, without justifying the criterion of such an extension. Such an approach presents the attractiveness of giving arguments in favor of the justiciability of the social rights registered under these instruments before national judges. From a practical point of view, there is no doubt that this is a step forward for the protection of workers. However, such an understanding of the inclusion of social rights in these instruments obscures much of the transformations it involves. It is probably important not to reduce the variety of forms in which social rights are included under a single mode of normativity. On the contrary, from one medium to another, different modes, based on different forms (objective, program, indicators, standard, imperative, principle...), are at stake. Yet why should this discontinuity in the modes of normativity be considered?

82That is the second lesson. Thinking in term of transformation, i.e., the operations of the change of form implied by the inclusion of these "social rights" in various instruments, enables us to take a set of operations and changes seriously. Depending on the modes of normativity, these transformations can indeed manifest themselves in different ways. They are also deployed unevenly according to the mode of normativity concerned. There is no perfect equivalence regarding the types of transformation. From one mode of normativity to another, comparability is only partial. However, based on the characteristics of the mode of normativity of human rights, these transformations can be approached according to three aspects: formulation, dispute, and realization. The fact that one of these aspects is not deployed in certain modes is revealing.

83First, the operation of including social rights results in a reformulation of social rights. It may, at a minimum, concern a selection corresponding in the constraints inherent in the normative form, as illustrated by social conditionality. More fundamentally, the change in form may imply a reinterpretation of social rights by setting indicators, objectives, programs, etc.

84Second, the modality of the dispute may not be the same. The legal modality has a clear attraction on the modes of normativity being studied. The evolution of the European committee of Social Rights into a quasi-jurisdiction or the attempt to set up independent authorities to settle disputes between States concerning the implementation of social clauses demonstrates this. However, again, by measuring only the deviation from the trial model, there is a real risk that the dispute modalities specific to each normativity will not be taken seriously. It is necessary to pay attention to the wording of the dispute or test: complaint, question, complaint, report, etc.

85The alleged damages due to the violation of social rights do not take the same form. Moreover, they do not involve the same supervisory authorities, the same categories of judgment, or the same "appointment" of the parties involved in the dispute. Regarding the judgment, it is remarkable that the classic categories of the legal normative mode – conformity or compatibility with social rights in the form of a principle or axiological rule – are confronted, for example, during a judgment on the effectiveness of public action in the European Social Charter system. Such an assessment does not imply the same "evidence" or the same procedures for consolidating the current state of affairs or the situation to be measured in the context of the dispute. The place of statistics in the Social Charter system contrasts with the measures of conformity of national law commonly applied by national courts. From this perspective, it is necessary to distinguish this regime from the objectification evidence used by the indicator in the context of the open method of coordination. The legitimacy of "supervisory authorities" also varies according to the disputes in question: political, expert, representative, etc. The cases studied demonstrate the complexity of the arrangements. Similarly, the "nominees" can be very diverse. They are not necessarily the parties to the trial, those whose rights have been violated in the same way as the trial. On the contrary, disputes can involve a wide variety of "nominees": committed "governments", "stakeholders", "companies", “trade unions”, and so on.

86Third, restoring order can take a wide variety of modality. It will not be the restoration and reparation of the damage suffered by the party in the violation of the right. Some forms can be classic, such as the modification of the positive law of the State. Such remediations depend on how the impairment is assessed. Restoring order does not imply the same achievements. These seem to depend on how the violation was objectified, the “evidence” rule, in other words, how the situation to be assessed could have been made real for the dispute. The realization of a right, a social condition, an objective or program, an indicator does not require the same. The multiplicity of these achievements in accordance with the modes of normativity sheds light on the challenges that need to be taken seriously in the transformation of social rights.

87There is one last and more prospective lesson to be considered here. By paying attention to transformation, it is possible to re-examine the conflicts developed from the implementation of fundamental social rights in the context of the Europeanization and globalization of rights. On the one hand, conflicts of value can result in reformulation. The transition from right to indicator has an interpretative effect that can alter the values consolidated by the recognition of the fundamental right. From the European pillar to the scoreboard of indicators, if the reference to employment remains, the quality of employment seems to be eroded. However, attention to transformations reveals yet another category of conflict. Depending on the modes of normativity that support them, social rights do not keep their promise in the same way, neither in the same meaning. The "realization" to be expected is not the same. This pluralism reflects a fragmentation of social realities that can no longer be granted by reference to social rights alone.

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Notes

1 B. Frydman, « Comment penser le droit global ? », in J.-Y. Chérot et B. Frydman (dir.), La science du droit dans la globalisation, Bruylant, 2012, 17-48.

2 On legal transfer, among a classical and critical literature, in particular, N. Rouland, Introduction historique au droit, PUF, 1998, spéc. p. 411 et ss. ; E. Agostini, La circulation des modèles juridiques, RIDC 1990, p. 461 ; voir également J. Gaudemet, Les transferts de droit, L’année sociologique, 1976, p. 29.

3 The genesis of the science of comparative law is closely linked to the unification of national legislations. The Society of comparative legislation’s slogan, “Lex plurex, ius unum”, created in 1869, provides clear evidence of that fact. The slogan reflects the ambivalent concept of the unity of law for comparative practice : on the basis of the science of comparative law and its link to the project of unification of law, cf. J. Porta, La réalisation du droit communautaire – Essai sur le gouvernement de la diversité, LGDJ 2008, spéc. pp. 214-248.

4 Do legal models circulate ? The comparative law practice has long been torn between favor and disadvantage with regards to such a proposal, with some drawing arguments from concomitance and others emphasizing reception issues. The question is an old one. ZAJTAY I., « La réception des droits étrangers et le droit comparé », RIDC, 1957, p. 686, A. C. Papachristos, La réception des droits privés étrangers, comme phénomène de sociologie juridique, LGDJ, 1975, p. 51.

5 Not. P. Legrand, 'The impossibility of legal transplants, Maastricht Journal of European and Comparative Law, 1997, vol. 2, p. 111.

6 On the notion of legal acculturation, in J. Poirier (dir.), Ethnologie générale, Paris, Gallimard 1968, p 1180-1246; N. Rouland, Anthropologie juridique, PUF 1988, p. 425

7 Muir Watt, Horatia. 2005. "Concurrence d'ordres juridiques et conflits de lois de droit privé." In Le droit international privé : esprit et méthodes. Mélanges en l'honneur de Paul Lagarde, 615-633. Paris : Dalloz ;

8 See Véronique Champeil-Desplats, Jérôme Porta et Laurent Thévenot, « Introduction : a cooperative and transversal research experience between law and the social sciences », La Revue des droits de l’homme [En ligne], 16 | 2019, mis en ligne le 05 juillet 2019, URL : http://journals.openedition.org/revdh/7132.

9 For a study on the formulation of such legal models in the European harmonization context, see J. Porta, La réalisation du droit communautaire, préc., spéc. pp. 462-617.

10 Not. C. Thibierge, « Le droit souple. Réflexion sur les textures du droit », RTD civ., 2003, pp. 599 et s. ; Etude annuelle 2013 du Conseil d'Etat - Le droit souple, La Documentation française, 2013

297 p, spéc. p. 23-32

11 ILO 2016

12 The adopted ILO Constitution merely states in its Preamble that “the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries”, implicitly making trade competition between States an obstacle to improving working conditions.

13 Ibid.

14 Havana Charter, Art. 2

15 Havana Charter, Art. 3

16 Havana Charter, Art. 7

17 ILO Declaration on Fundamental Principles and Rights at Work - Declaration adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998 (Annex revised 15 June 2010)

18 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

19 Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105).

20 Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182).

21 Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

22 Social dimensions of free trade agreements / International Labour Organization; International Institute for Labour Studies. - Geneva: ILO, 2013. Revised edition 2015.

23 Adopted in 1998, the Declaration creates an obligation for the Member States, whether or not they have ratified the relevant conventions. The Member States must respect and promote the fundamental principles and rights. These rights are classified into four categories : freedom of association and the effective recognition of the right to collective bargaining ; the elimination of all forms of forced labour, the effective abolition of child labour ; and the elimination of discrimination in respect of employment and occupation.

24 Ibid., spéc. p. 33-35.

25 Not. B. Lassudrie-Duchêne et D. Ünal-Kesenci, L’avantage comparatif, notion fondamentale et controversée, in. CEPII, L'économie mondiale 2002, Éditions La Découverte, collection Repères, Paris, 2001, p. 90-104.

26 Ibid. spéc. p. 17.

27 One may recall that this was the argument used to justify the introduction of a principle of equal treatment between women and men in the ECSC Treaty, and in the EEC Treaty later on. France feared the competition, for instance as regards female workers in States located in the South of Europe and considered as more unequal.

28 Social dimensions of free trade agreements, ibid.

29 ILO Declaration on Social Justice for a Fair Globalization, adopted in 2008 by the representatives of governments, employers and workers from all ILO member States, the Declaration expresses the contemporary vision of the ILO’s mandate in the era of globalization.

30 Assessment of labour provisions in trade and investment arrangements / International Labour Office. – Geneva: ILO, 2016, .

31 Trade, Development and Cooperation Agreement (TDCA) with South Africa, JOCE n° L 311 du 04/12/1999 p. 3 – 415.

32 Art. 86-2 of the agreement. However, the agreement calls for a broader dialogue, on “questions relating to the social problems of post-apartheid society, poverty alleviation, unemployment, gender equality, violence against women, children's rights, labour relations, public health, safety at work and population” (art. 86-1).

33 Art. 72, b. of the CARIFORUM-EC Economic Partnership Agreement.

34 Art. 13.4, EU – South Korea free trade agreement (FTA).

35 Art. 13.16, EU – South Korea free trade agreement (FTA). The agreement also references the Decent Work Agenda.

36 Art. 13.15, EU – South Korea free trade agreement (FTA).

37 For a comparison of social clauses in North American agreements and European agreements, Social dimensions of free trade agreements, op. cit.

38 Art. 23.2 CETA– Right to regulate and levels of protection. The EU’s history is a reminder that there is in this type of clauses no guarantee of success.

39 Art 23.4 CETA.

40 The European Coal and Steel Community (ECSC) provided for instance a mechanism granting to the High Authority the power to react in the event of an abnormal reduction of wages in one of the Member States to avoid dumping and unfair competition (art 68 ECSC).

41 Art. 23.3 CETA.

42 The occupational health issue has been dealt with separately and subjected to increased requirements.

43 Art. 23.9 du CETA.

44 Art. 23.9, al. 3 du CETA.

45 Ibid.

46 Art. 23.3, al. 7 of the CETA.

47 On this aspect, see. J. Porta and C. Wolmark, Les droits sociaux fondamentaux à l'épreuve du pluralisme, in. A droit ouvert, Mélanges en l'honneur d'Antoine Lyon-Caen, 2018, p. 788.

48 In particular, “The elimination of discrimination on the grounds of sex" (ECJ 15 June 1978, Defrenne / Sabena, case 149/77), "the principle of non-discrimination on the basis of age" (ECJ, 22 November 2005, Mangold, case C-144/04), "the right to take collective action" (ECJ, 18 December 2007, Laval un Partneri, case C-341/05).

49 ECJ 10 June 2010 INPS v. Bruno and Pettini, Cases C-395/08 and C-396/08, pts 31 and 32. The designation is not entirely fixed, the Court sometimes opts for a periphrasis “as a particularly important principle of Community social law” (ECJ, 26 June 2001, Bectu, case 173/99).

50 Dealing with the fundamental right to annual paid leave under Article 31 of the Charter, ECJ, 6 November 2018, StadtWuppertal v. Maria Elisabeth Bauer aff. C569/16 ; ECJ 6 November 2018, Volker Willmeroth als inhaber der TWI Technische Wartnung und Instandsetzung Volker Willmeroth e. Mr. Kreuziger C :Martina Broβonn aff. C-570/16.

51 Article 51(1) of the Charter of Fundamental Rights of the European Union, 2012/C 326/02: “(...) Consequently, they respect rights, observe the principles and promote the application thereof (…)”.

52 ECJ 15 January 2014, Association de médiation sociale, Case C-176/12.

53 See D.ROMAN, “Droits des pauvres, pauvres droits ? Recherches sur la justiciabilité des droits sociaux”, Research Report, 2010 ; Thematic Dossier, La Revue des droits de l’homme, 1, 2012, URL : http://journals.openedition.org/revdh/104 ; C. NIVARD, La justiciabilité des droits sociaux : étude de droit conventionnel européen, Bruylant, 2012, which defends the registration of theses rights in the legal form of human rights to guarantee their justiciability before national courts.

54 European Social Charter (revised) 1996.

55 Art.2, Part 1 of the Charter

56 Art. 4, Part 1 of the Charter

57 Art. 10, Part 1 of the Charter.

58 Art. 7, Part. 1 of the Charter.

59 Art.1, §2, Part 2

60 Art. 2, §1, Part 2

61 Art /2, §1; art. 3 §4, Part 2

62 Not. Art. 2, §5 and 6, Part 2.

63 C. NIVARD, La justiciabilité des droits sociaux : étude de droit conventionnel européen, prec.

64 This intergovernmental nature of the SR committee has been subject to strong criticism. It weakens the legitimacy of this body. Therefore, the Protocol amending the European Social Charter of 1991 (hereinafter Turin Protocol of 1991) provides for the election of the committee's experts by the Parliamentary Assembly. The reform is still awaiting to enter into force.

65 Article 3 of the Turin Protocol 1991. However, the reference to the jurisdictional model is not absent from the constitution of the committee. Thus, the members of the committee take an oath, like judges, to exercise their " their duties in conformity with the requirements of independence, impartiality and availability inherent in their office ". They also undertake to keep "secret the Committee's deliberations" (art. 5 of the the European Committee of Social Rights’ Rules of procedure ).

66 Art. 25 of the European Social Charter of 1961

67 Change of denomination noted at the 158th session of the Committee of Experts held from 16 to 20 November 1998, see Conclusions XIV-2, p. 23

68 Article 26 of the 1961 European Social Charter, unchanged.

69 Community Charter of the Fundamental Social Rights of Workers, pt. 29-30.

70 See " Form for reports to be submitted in pursuance of the Revised European Social Charter", as adopted by the Committee of Ministers on 26 March 2008

71 For example, art. 1, §1 of the European Social Charter

72 The stylized formula is in the form

73 Art. 15§1 of the European Social Charter

74 “Total number of disabled persons, number of disabled persons under 18 years of age, number of disabled persons in normal school life, in special education and in vocational training courses, including higher education, number of integration and special education classes, initial and in-service teacher training", Form, above, p. 33

75 F. OST and M. van de KERCHOVE, Jalons pour une théorie critique du droit, Brussels, Publications F.U.S.S.L., 1987

76 The recognition of representativeness is outside the competence of States. According to the SR Committee, it is "an autonomous notion that is not necessarily identical to the domestic notion of representativeness", in this sense, not. Confédération française de l'Encadrement CFE-CGC v. France, Recl. 9/2000, decision on admissibility of 6 November 2000, § 6

77 Art. 1, b of the Additional Protocol to the European Social Charter providing a collective system of complaints, Strasbourg, 9 November 2011.

78 Art.3 of the Protocol, prev.

79 ECSR, 10 March 1999 International Commission of Jurists v. Portugal, claim No. 1/1998.

80 On the role of the judgment of effectiveness in law, see, F. Ost and M. van de Kerchove, Jalons pour une théorie critique du droit, Brussels, Publications des Facultés universitaires Saint-Louis, Travaux et Recherche 9, 1987.

81 ECSR, 5 December 2007, International Movement ATD Fourth World v. France, Complaint No. 33/2006, § 60.

82 Ibid.

83 Article I, paragraph 1 provides for such tolerance for the implementation of the right to fair working conditions, the right to vocational training, the right to information and consultation, The right to take part in the determination and improvement of the working conditions and working environment.

84 ECSR, 16 Nov. 2010, CFE-CGC v. France, Rec. No. 9/2000, § 40.

85 ECSR, 4 November 2003, Autism Europe v. France, Recl. No. 13/2002, §53

86 P. Gruny and L. Harribey, "Le socle européen des droits sociaux : première ébauche d'un Code de convergence sociale ?", Rapport d'information du Sénat, n° 457 du 20 avril 2018

87 Communication from the Commission, “Monitoring the implementation of the European Pillar of Social Rights”, COM (2018), 130 final.

88 S. LAULOM, « L’espoir d’une revitalisation du projet d’Europe sociale », Revue droit du travail Dalloz, 2017, p. 5.

89 K. CHATZILAOU, « Vers un socle européen des droits sociaux : quelles inspirations ? », Revue droit du travail, 2017, p. 175.

90 Art. 1 of the European Pillar of Social Rights.

91 Art. 2 of the European Pillar of Social Rights.

92 Art. 4, para.3 of the European Pillar of Social Rights.

93 Art.6, para. 1 of the European Pillar of Social Rights.

94 Council Decision 2010/707/EU of 21 October 2010 on guidelines for the employment policies of the Member States.

95 Council Decision 2015/1848/EU of 5 October 2015 on guidelines for the employment policies of the Member States for 2015.

96 Council Decision 2018/1215/ EU of 16 July 2018 on guidelines for the employment policies of the Member States.

97 " Commission staff working document - Social Scoreboard Accompanying the document, Communication from the Commission Establishing a European Pillar of Social Rights”, COM (2017) 250 final.

98 Art. 8 of the European Pillar of Social Rights.

99 Art. 1 of the European Pillar of Social Rights.

100 " Commission staff working document - Social Scoreboard Accompanying the document, Communication from the Commission Establishing a European Pillar of Social Rights ", COM (2017) 250 final, op. cit.

101 "Joint Employment Report of the Commission and the Council accompanying the Commission Communication on the Annual Growth Review 2019”, COMP (2018)761 final, spec. p. 25.

102 Ibid. spec. p. 26, note 13.

103 Not., G. ; RAVEAUD, « Au cœur de la stratégie européenne pour l’emploi, le taux d’emploi », Education et societes, décembre 2006, n° 2, pp. 17‐33 ROBERT SALAIS, « La politique des indicateurs. Du taux de chômage au taux d’emploi dans la stratégie européenne pour l’emploi (SEE) », in in Zimmermann B. (éd.), Les sciences sociales à l’épreuve de l’action. Le savant, le politique et l’Europe, Éditions de la MSH, s.d., pp. 287‐331.

104 Employment Performance Monitor (EPM).

105 Social Protection Performance Monitor (SSPM).

106 Macro Imbalance Procedure (MIP).

107 " on the 2018 National Reform Programme of France and delivering a Council opinion on the 2018 Stability Programme of France, COM (2018) 409 final", s.d.

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Jérome Porta, « Social Rights’ transformations in global context », La Revue des droits de l’homme [En ligne], 16 | 2019, mis en ligne le 18 juillet 2019, consulté le 17 septembre 2019. URL : http://journals.openedition.org/revdh/7161 ; DOI : 10.4000/revdh.7161

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