SECTION 5 UNDERSTANDING SPECIFIC ESC RIGHTS
MODULE 11 (continued)
SOCIAL SECURITY AS A HUMAN
The Main Elements of a Rights‑Based Approach to Social Security
The following are some important elements of a rights‑based approach to social security:
1. Comprehensiveness: The social security system should aim to provide comprehensive coverage against all contingencies and life circumstances that threaten the income‑earning ability of persons and their ability to maintain an adequate standard of living. This includes unemployment, ill‑health, disability, maternity, old age, child support for impoverished care‑givers and survivors benefits.
2. Universality: All those in need of social security should be able to gain access to it.
3. Adequacy and appropriateness: The level of benefits provided under the various schemes should be adequate and appropriate. The particular benefit payable will depend on the type of social security scheme and its rules (e.g., under certain social insurance schemes the benefits received are related to the contributions made). However, the benefits provided under needs‑based social assistance programs should at least be sufficient to ensure that the recipient does not fall below a clearly defined minimum subsistence level or poverty line. The kind of benefits provided should also be appropriate to the kind of risk or contingency faced (e.g., maternity benefits should be paid for a period appropriate to the demands of child‑birth and infant‑care).
4. Respect for equality: Social security programs should not discriminate unfairly against anyone on grounds such as race, sex, gender, sexual orientation, religion, political opinion, national or social origin, birth or socio economic status. This includes both direct and indirect ("adverse effects") discrimination.
5. Respect for procedural rights: The rules and procedures governing eligibility for social security programs, as well as the termination of benefits, must be reasonable and fair. Persons aggrieved by an adverse legal rule or administrative decision should have access to speedy, affordable and effective legal remedies for the determination of their rights.
Interdependence of Rights
The right to social security can be viewed broadly speaking as guaranteeing the material conditions for an adequate standard of living. It serves to protect human beings from the life‑threatening and degrading conditions of poverty and material insecurity. It should thus be obvious that it is also possible to derive a right to social security from a number of civil and political rights, such as the right to life, security of the person, the prohibition of torture and cruel or inhuman and degrading treatment or punishment. The supervisory organs of the various human rights treaties have not yet interpreted these civil and political rights to incorporate a right to social security. However, promoting a broader, more substantive interpretation of these rights is a challenge for human rights activists and scholars.
The right to equality in certain international human rights instruments protecting civil and political rights has also been applied to social security benefits. The right to equality protects against discrimination in social security systems on prohibited grounds. Discrimination may arise from the exclusion of certain groups from eligibility for benefits, or from the conditions that must be complied with in order to qualify for benefits. This is demonstrated by a series of communications decided under the First Optional Protocol to the ICCPR. The Human Rights Committee (the supervisory body under the Covenant) has held that the nondiscrimination clause in article 26 of the Covenant covers all spheres of state activity, not only those that fall within the scope of another right recognized in the Covenant.
Through what have come to be known as the "Dutch social security cases," the Human Rights Committee has determined that article 26 of the ICCPR also applies to social and economic rights. These cases concerned Dutch unemployment insurance legislation that applied discriminatory conditions to married women. Thus a married woman had to submit evidence proving that she was a breadwinner in order to qualify for unemployment benefits. A similar condition did not apply to married men. The committee held that this legislation violated article 26 by discriminating on the grounds of sex. It emphasized that article 26 did not "require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a States sovereign power, then such legislation must comply with article 26 of the Covenant." These cases demonstrate the patriarchal assumptions that informed the design of many similar social security programs.
All the prohibited grounds for discrimination in article 26 are applicable to social security programs, i.e., race, color, sex, language, religion, political or other opinion, national or social origin, property birth or other status. In the case of Gueye et al v. France,8 the Human Rights Committee found that French legislation discriminated on the ground of nationality in that it afforded lower pensions to retired Senegalese soldiers of the French army than to French citizens in an otherwise equal position. Nationality was incorporated within the concept of "other status" and thus gave rise to a violation of article 26.
Another traditional civil and political right that can afford significant protection to social security beneficiaries is the right to a fair procedure in the determination of their social security rights. An important line of cases under the European Convention on Human Rights has established the principle that the right to a fair hearing in article 6(1) of the Convention is applicable to social security benefits, including those with a public law character. Thus in the Schuler‑Zgraggen case, the European Court held that "today the general rule is that article 6(1) does apply in the field of social insurance, including even welfare assistance."9
Contributory social insurance rights have received a measure of protection under the right to property under certain international instruments. In Gaygusuz v. Austria, the European Court of Human Rights determined that a violation of article 14 of the European Convention (the right to nondiscrimination) had occurred in conjunction with article 1 of the First Protocol (the right to peaceful enjoyment of ones possessions). Mr. Gaygusuz, who was a legal resident in Austria, had received different treatment under the rules of the unemployment insurance fund he had been contributing to on the basis that he was not an Austrian citizen.10
The nature of the states obligations in realizing the right to social security will depend on the international instrument that is binding on a particular state. The exact scope of states parties obligations varies from instrument to instrument (e.g., see the very particular obligations imposed on states parties to the relevant ILO conventions).
In the context of the right to social security, a few aspects of states parties obligations under the ICESCR can be highlighted. In the first instance, states parties should adopt legislative measures in conjunction with financial, administrative, educational and social measures with a view to achieving progressively the full realization of the right to social security. These measures must be "deliberate, concrete and targeted as clearly as possible" towards ensuring that everyone within the states jurisdiction has access to social security. Although the concept of "progressive realization" affords the state some latitude in achieving the full realization of the right, it should nonetheless be in a position to demonstrate that it is moving "as expeditiously and effectively as possible towards that goal." If progress is to be measured, it is essential that relevant government ministries put in place a transparent plan of action for realizing the right. This plan of action should include goals and benchmarks (concrete standards of achievement) that are tied to specific time frames.
Progressive realization also implies that the state should generally avoid "any deliberate retrogressive measures" which reduce the coverage (the number of people who have access to social security) or level of benefits provided under the social security system. The CESCR has commented that such retrogressive measures would need to be "fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources."11
Moreover, the committee has emphasized that there is a "minimum core obligation" on states parties to the Covenant "to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights." This minimum core obligation has a priority claim on the states resources. In the context of the right to social security, this would seem to imply that states should at least ensure that the most disadvantaged and vulnerable groups are provided with basic levels of social security. These groups include, for example, the elderly, people with disabilities and chronic illnesses, and impoverished children. This basic minimum duty of the state is the foundation for the progressive improvement of access to a comprehensive social security system until the right is fully realized.
Even when available resources are "demonstrably inadequate," states remain under an obligation to monitor the extent of realization or nonrealization of the right to social security, and to "devise strategies and programmes" for the promotion of this right.
Finally, in a recently adopted General Comment, the committee has emphasized the importance of ensuring the availability of appropriate means of redress and accountability for violations of ESC rights within national legal systems. It highlighted that states were under a duty to ensure that legal remedies, whether of a judicial or administrative nature, were available to aggrieved individuals or groups. Such remedies must be "accessible, affordable, timely and effective." The availability of accessible and effective legal remedies in domestic legal systems is essential to the protection of social security rights.12
National Legal Recognition
Social security rights may be recognized in national legal systems at a number of different levels. They may be recognized in the constitution of a particular country. Secondly, national legislatures may recognize social security rights through the enactment of legislation giving legal effect to a variety of social security programs. The courts may also protect social security rights through the application of common law rules, for example, the principles of administrative justice. Finally, social security rights may receive protection through a combination of these mechanisms in national legal systems.
Because a countrys constitution is its supreme law, the recognition of the right to social security in the constitution of a country will usually mean that the right enjoys a greater level of protection than if it were simply incorporated in ordinary legislation. At the time of drafting South Africas final constitution (Act No. 108 of 1996), a broad coalition of organizations campaigned successfully to ensure that a comprehensive set of socioeconomic rights (including the right of access to social security) were entrenched as justiciable rights in the Bill of Rights. They argued that this was necessary to ensure that socioeconomic rights enjoyed the same legal status and protection as civil and political rights.
Examples of countries that have express constitutional provisions relating to social security include: Italy (art. 38), Portugal (art. 63), Spain (arts. 41 and 50), the Netherlands (art. 20), Ireland (art. 45), Islamic Republic of Iran (art. 29), Hungary (art. 70E), Japan (art. 25), India (arts. 38, 39 and 47), South Africa (art. 27), Ghana (art 36), Chile (art. 19), and Columbia (arts. 46 and 48). It is important to distinguish between the entrenchment of the right to social security as a justiciable right in a constitution, as opposed to its recognition as a directive principle of state policy. The former approach, which is adopted in a country such as South Africa, makes it possible for an individual or group to apply to a competent court for appropriate relief on the basis that their social security rights have been infringed or threatened. In contrast, in a country such as India, many social and economic rights are recognized in the constitution in the form of directive principles of state policy. Although these principles are fundamental in the governance of the country and it is the duty of the state to apply these principles in making laws, they cannot be directly enforced in the courts. Despite this, the directive principles have exerted a far‑reaching influence on the interpretation of the fundamental rights by the Indian courts, thus allowing for a broader interpretation of rights such as the right to life.
The constitutional courts in countries such as Italy and Hungary have relied on the constitutional provisions relating to social security rights to provide some measure of protection against cuts in social security benefits. In Italy, the court has held that cuts in social benefits of a considerable amount need to be justified by serious reasons such as imperative need. In addition, the measures actually taken to reduce costs must be free of arbitrariness and respect the principle of rationality.
The Hungarian Constitutional Court has held that article 70E of the Constitution guarantees only subsistence‑level care. Reform of social security systems may thus not have the effect of reducing benefits to below the minimal threshold required by article 70E. However, the court has relied on a number of other doctrines to place limits on legislative attempts to reduce existing social security benefits even if these reductions do not amount to a violation of article 70E. These include "purchased rights" based on the principle of contributions, giving social security benefits property‑like status ("new property"), and the doctrine of "acquired rights" derived from the principle of legal certainty. These doctrines are relied on to protect entitlements above the level of basic subsistence.
Even in the absence of express provisions relating to social security rights in a countrys constitution, the courts may rely on other rights such as the rights to equality, property and due process to protect social security benefits.
In Goldberg v. Kelly,13 the United States Supreme Court held that the due process clause of the Fourteenth Amendment to the US Constitution required that welfare recipients be afforded an evidentiary hearing before termination of benefits by welfare authorities. Thus, although social assistance is not explicitly protected in the US Constitution, the court clearly perceived it to be integral to the underlying values of the Constitution:
Implementation and Enforcement Mechanisms
At the international level, the enforcement of the social security rights guaranteed in international treaties depends on the particular mechanisms available under the relevant treaty. For example, ILO treaties relating to social security are enforced through the ILO reporting system provided for in the ILO Constitution. Compliance with the right to social security in the ICESCR is monitored through the CESCRs reporting system. (See Module 24 for more information on these international reporting systems.) Canadian NGOs have used the reporting procedure in a creative way to draw attention to the impact of Canadas cutbacks in social assistance rights on many of the rights guaranteed in the Covenant. As noted above, the rights to equality and to procedural fairness, which are recognized in international treaties protecting civil and political rights, can also be used to protect social security rights. In such cases, the individual complaints mechanisms under these treaties are available to those who claim that their rights have been violated. A collective complaints mechanism is available under the European Social Charter for enforcing the social security rights in the Charter. (See Module 29.)
Similarly, the degree to which social security rights can be protected at national levels depends on the particular legal system, and on the powers of the courts and other tribunals to uphold social security rights. As observed above, social security rights may be protected through constitutional provisions, legislation or both.
Certain constitutions permit the judiciary to review legislation to ensure that it complies with the fundamental rights recognized in the constitution. The constitutional court may have the power to strike down legislation that is incompatible with the rights guaranteed in the constitution. It may even have the power to make orders requiring relevant organs of state to comply with the positive duties imposed by certain rights. These represent very powerful remedies at the national level. However, the doctrine of separation of powers usually requires that courts accord a measure of deference to the decisions of the elected legislatures.
Apart from judicial enforcement, it may also be possible for activists to persuade the national legislature to enact social security programs, or to refrain from adopting retrogressive measures in relation to social security. Strategies deployed include campaigns, submissions to parliament, public advocacy and lobbying. The case studies on the child support grant campaign in South Africa and the Kensington Welfare Rights Union in the United States demonstrate how these strategies can be used to advance and promote social security rights (See Part II, pp. 617-18 and p. 599 for these case studies).
Social Security as a Human Right: International and Regional Standards
Other instruments that reflect international political commitments
Although not legally binding, the following instruments also represent international political commitments to consolidating and expanding social security systems:
Author: The author of this module is Sandra Liebenberg. The research on which this module was based was conducted with the financial assistance of the European Union Foundation for Human Rights in South Africa (EUFHRSA). The views expressed herein do not necessarily represent the official view of the EUFHRSA. The EUFHRSA is funded by the European Union under the European Programme for Reconstruction and Development.
7. Sattareh Farman Farmaian with Dona Munker, Daughter of Persia: A Woman's Journey from Her Father's Harem Through the Islamic Revolution (New York: Crown, 1992).
8. Ibrahima Gueye et al. v. France, Communication No. 196/1983 (3 April 1989), UN Doc. Supp. No. 40 (A/44/40) at 189 (1989).
9. Article 6(1) requires that: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . . " See Schuler-Zraggan v. Switzerland, judgment of 24 June 1993, Publications of the European Court of Human Rights, Series A, No. 263, para. 46.
10. ECHR, 16 September 1996 (39/1995/545/631). For a review of the relevant case law under the European Convention on Human Rights, see "The meaning of article 1 of the First Protocol for social security rights in the light of the Gaygusuz judgment," Social security, non-discirmination and property, ed. S. Van den Bogaert (Antwerpen, Maklu 1997), 59.
11. General Comment No. 3, The nature of States parties obligations (Art. 2, para. 1 of the Covenant) (Fifth session, 1990), UN Doc. E/1991/23, para. 9. (See pp. 174-77 of manual for full text.)
12. General Comment No. 9, The domestic application of the Covenant (Nineteenth session, 1998), UN Doc. E/C.12/1998/24, para. 9. (See pp. 447-50 of manual for full text.)
13. Goldberg v. Kelly, 397 US 254 (1970).