Austerity Measures at the European Court of Human Rights: Can the Court Establish a Minimum of Welfare Provisions?

Abstract

The European Court of Human Rights has, in specific circumstances, interpreted the Convention in a manner that extends the protection provided under civil and political rights into the socioeconomic sphere. Additionally, in obiter statements, the Court has alluded to the possibility that ‘a wholly insufficient amount of pensions and other benefits’ would ‘in principle’ violate the Convention, namely Articles 2, 3 and 1 Protocol 1 ECHR. This statement also appears in recent admissibility decisions where applicants unsuccessfully challenged austerity measures adopted to give effect to conditionality agreements in states facing a debt crisis. The article examines whether with this statement the Court is suggesting that states must adhere to a minimum threshold of welfare protection, thereby protecting all individuals in their jurisdiction from the destitution that may arise from austerity policies. The article concludes that the Court’s approach in cases where welfare reductions are under scrutiny points more towards a comparative or relative approach, an approach that compares the position of the applicant to others within the respondent state, rather than one that determines a welfare minimum in absolute and objective terms. Nonetheless, the article argues that this statement on insufficiency of benefits has the potential of contributing to a more substantively fair distribution of the cost of austerity in states facing a debt crisis.