THE YOUNG AND THE RIGHTLESS ?
THE PROTECTION OF YOUTH RIGHTS IN EUROPE 236
ESC (revised), Art. 1.
237 Ibid., Art. 7(5). A similar argument could potentially be made with Art. 4 on the right to a fair remuneration. 238
Ibid., Art. 31.
239
Ibid., Art. 13.
240
Ibid., Art. 31.
241 The following articles explicitly refer to young persons: Art. 7 (the right of children and young persons to protection), Art. 10 (the right to vocational training) and Art. 17 (the right of children and young persons to social, legal and economic protection). While those articles are important in protecting young persons, they do not cover most aspects of youth rights that require promotion rather then merely protection. 242
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Ibid., Art. 23(2).
(revised) does not cover access to higher education. It also remains silent on the quality of education or on democratic participation of students in the educational institutions. In the field of employment and social protection, the ESC (revised) establishes many different rights. As mentioned above, it seems that the right to work could potentially be used to address the problem of youth unemployment. 236 Another good example of the potential use of the provision on employment is the right of children and youth to protection, which also recognises “[...] the right of young workers and apprentices to a fair wage or other appropriate allowances”. 237 This may be used in order to address the issue of unpaid internships, although it must be said that it is far from sure whether internships are also covered by this provision. It appears however that, if considered by the ECSR, internships could be tackled with the aid of the 'living instrument' argument, thus creating a legal precedent. This would probably also strengthen the ESC (revised) as an instrument, as it would show that it is able to adapt to new developments in society, thus making it socially relevant. Another open question is whether the right to social security 238 and the right to social and medical assistance 239 could be effectively used to address the marginalisation of young persons and to protect them from social exclusion. But it seems, that in combination with Article 30, stating the right to protection against poverty and social exclusion, the Charter may become an important instrument to combat the marginalisation of young persons, especially as it also covers persons who “[...] risk living in a situation of social exclusion or poverty [...]”. According to Article 11 states parties have to protect health, including the obligation “[...] to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility
in matters of health”. This could notably be used in connection with education on matters of sexual and reproductive health. However, in a more general way, it appears that the Charter does not address the health issues most relevant for young persons, for instance by creating truly accessible health centres. Obviously, Article 11 could be understood to promote such accessible and adequate health centres, yet it seems unlikely that the Charter provisions will effectively be the source for such measures. While the promotion of autonomy per se cannot be found in the ESC (revised), the Charter may potentially be used to promote certain aspects of autonomy. For instance, the right to housing both promotes access to housing of an adequate standard and the availability of housing for persons without the necessary resources. 240 In combination with the principle of non-discrimination, this provision could be used to promote the access of young persons to adequate and affordable housing, which would be an important contribution to increased autonomy. At the same time, it is unfortunate that the Articles explicitly covering young persons do not include more explicit forms of autonomy, in a way similar to Article 23 on the right of elderly persons to social protection. 241 It includes for instance the duty for states parties “to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able”. 242 The inclusion of a similar provision on the autonomy of young persons would have proven to be a valuable contribution to youth rights. Overall, the ESC (revised) – comparable to the ECHR – can be used to protect and promote youth rights in certain fields. However, it is often unclear whether certain provisions could effectively be used for young persons, as the case law still is very limited, thus
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