Only Partial Neglect? Developments in the Case-Law of the European Court on Human Rights on Socio-Economic Rights of Non-Nationals

Abstract

This paper examines the extent to which the European Convention on Human Rights (ECHR) protects the socio-economic rights of non-nationals. In a sense these are rights that are doubly or even triply marginalized. Non-nationals face significant discrimination and disadvantage in their own right, and there is still a tendency to see socio-economic rights as being tied to citizenship. Further, the ECHR tends to sideline socio-economic rights.

Section B considers the legal background, including how the ECHR text addresses socio-economic rights (B.1), and how the ECHR deals with non-nationals and non-discrimination (B.2). Section C explores the scope for using the ECHR to protect specific socio-economic rights of non-nationals. Section C.1 explains how the European Court of Human Rights has come to endorse the principle of non-discrimination on grounds of nationality in social security cases. Section C.2 considers the right to work, and highlights some of the unsatisfactory reasoning on non-discrimination in the recent Bigaeva case, though welcoming other aspects of that judgement. Sections C.3 and C.4 examine how the case law of the European Court offers some protection for other socio-economic rights of non-nationals. The Conclusion (D) stresses the need for more interpretative developments in this field. Specifically the ECHR text can be interpreted to give more protection to socio-economic rights, while the concepts of indirect discrimination and positive obligations remain underutilised.

Keywords: Social and Economic Rights, European Convention on Human Rights

JEL Classification: K33