MODULE 11 (continued)

SOCIAL SECURITY AS A HUMAN RIGHT
USING MODULE 11 IN A TRAINING PROGRAM
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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 survivor’s 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 State’s 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 one’s 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  

States’ Obligations

The nature of the state’s 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 state’s 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 state’s 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 country’s 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 Africa’s 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[18]), 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 country’s 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:

Public assistance, then, is not mere charity, but a means to "promote the general Wel­fare, and secure the Blessings of Liberty to ourselves and our Posterity." The same governmental interests that counsel the provision of welfare, counsel as well its un­interrupted provision to those eligible to receive it; pre‑termination evidentiary hear­ings are indispensable to that end.

Implementation and Enforcement Mechanisms

International level

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 CESCR’s 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 Canada’s 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.)

National levels

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:

• The Copenhagen Declaration and Programme of Action adopted by the World Sum­mit for Social Development.  Relevant commitments in terms of this declaration in­clude "strengthening and expanding programmes targeting those in need, pro­grammes providing universal basic protection, and social security insurance programmes."
• The Beijing Declaration and Platform for Action adopted by the Fourth World Confer­ence on Women.  Governments made the following relevant commitments, among oth­ers: to provide adequate safety nets and to create social security systems wherever they do not exist, or "review them with a view to placing individual women and men on an equal footing, at every stage of their lives."

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.

USING MODULE 11 IN A TRAINING PROGRAM

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