Overview of Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights through the case-law

Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights guarantee the right to work and the protection of the rights originating from labour relations. In addition to the right to work, these provisions include, inter alia, the right to the free choice and acceptance of work and appropriate measures safeguarding the right to work (Article 6, paragraph 1), as well as the possibility to seek implementation of measures towards the improvement of working conditions, such as training programmes, reinforcement of personal capacities, etc. (Article 6, paragraph 2). Article 7 stipulates the right of everyone to the enjoyment of just and favourable conditions of work as to remuneration, safe and healthy working conditions, equal opportunities for everyone to be promoted as well as social security and leisure and rest.

The case-law of the Human Right Chamber and the Human Rights Commission within the BiH Constitutional Court, as to Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights, relates primarily to the possibility of applying these Articles as the ECHR and its Protocols do not stipulate the right to work and the other related rights. However, labour relation disputes may be defined as civil disputes within the meaning of Article 6 of the ECHR.²⁰⁹⁵ Nevertheless, this Article of the ECHR only affords procedural safeguards in such disputes, whereas no material safeguards are afforded, as foreseen in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights.

During the armed conflict in Bosnia and Herzegovina, but also during the post- war period, employees were mainly discriminated against on the basis of their national status. Such discrimination was manifested primarily in terminating employees and, subsequently, in rejecting requests for reinstatement of the employees to their former employment. Labour relations of employees who were of a “wrong” national origin were most often terminated in a straightforward manner. Employees were regularly banned from work although neither a general legal act, nor an individual legal act, regulating such a ban was passed. In addition, in many cases employees were placed on the “so- called” waiting lists and, once more, without any individual legal basis and with no employment opportunity to get a job again.²⁰⁹⁶ The Human Rights Chamber confirmed in some cases the public interest of the State to dismiss a number of employees during the armed conflict.²⁰⁹⁷ Indeed, this implied that it had been prohibited to terminate their employment on the ground of their ethnic origin.²⁰⁹⁸ Likewise, ethnic origin or discrimination on any other grounds could not affect reinstatement to employment after the armed conflict.²⁰⁹⁹ Therefore, the State had a positive obligation to reinstate the employees who had been dismissed during the armed conflict or immediately afterwards. In principle, the competent public authorities were not allowed to keep the employees who had been hired in the meantime, as the employees who had lost their employment would be thus prevented from reinstatement to their former employment.²¹⁰⁰

Unfortunately, the employment policy and practices during the armed conflict and after its conclusion did not satisfy the standards of Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights, notwithstanding the consequential case-law of the BiH Constitutional Court, the Human Right Chamber for BiH, and the Human Rights Commission within the BiH Constitutional Court. Deliberately using various factual and legal means, employers, primarily the Entities, were persistent in supporting or pursuing discriminatory and nationalist employment policies. This actually precluded the sustainable return of refugees and displaced persons and, consequently, undermined the main objective of the Dayton Peace Agreement under Article II.5 of the BiH Constitution and Annex 7 to the Dayton Peace Agreement.²¹⁰¹