MODULE 11 (continued)

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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.

Human beings are like parts of a body,
created from the same essence.
When one part is hurt and in pain,
the others cannot remain in peace and be quiet.

-From the motto of the
Tehran School of Social Work, 1958-1979 7

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.

Social Security System in South Africa

South Africa probably has the most well?developed social security system in Africa. Social insurance schemes such as unemployment insurance and compensation for occupational injuries and diseases exist alongside a number of means?tested social assistance grants financed from general revenues and guaranteed in legislation. These consist of old-age pensions, child- support grants, disability grants, care? dependency grants and foster-care grants. Nonetheless large gaps in coverage exist. Groups excluded from social security coverage include domestic and farm workers, casual workers and those who experience long?term structural unemployment. There are also a number of administrative problems that impede access to these grants.

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


International, Regional and National

Rights Guaranteed


Universal Declaration of Human Rights (UDHR)

Art. 22 guarantees the right to social security.

Art. 25 recognizes the right of everyone to security in the event of unemployment, sickness, disability, widowhood, old age and other lack of livelihood in circumstances beyond his or her control.

The UDHR is not legally binding, but it has provided the foundation for the recognition of social secu­rity rights in treaties subsequently adopted.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Art. 9 recognizes the right of everyone to social security.

Art. 10(2) recognizes the right of working mothers "to adequate social security benefits."

Art. 10(3) requires states parties to undertake special measures of pro­tection and assistance for children and young persons.

Art. 9 is not defined.  However, the CESCR seeks infor­mation regard­ing the same nine branches of so­cial security that are part of ILO Convention No. 102.  This sug­gests that a right to social assis­tance to meet basic subsis­tence needs is excluded.  However, some scholars have argued that such a right could be derived from Art. 11 that recognizes the "right to an adequate standard of living, in­cluding adequate food, clothing, and housing, and to the continuous improvement of living conditions." 

Convention on the Elimination of All Forms of Discrimination against Women

Art. 11(1)(e) obligates states par­ties to eliminate discrimination against women in the field of employment, and to ensure equal rights between men and women, in particular . . . the right to social security, particu­larly in cases of retirement, unem­ployment, sick­ness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

Art. 11(2)(b) requires states parties to adopt appropriate measures to introduce social benefits during maternity leave.

Art. 14(2) recognizes the duty of states parties to eliminate discrimi­nation against women in rural ar­eas, and, in particular, to ensure to such women . . . the right to benefit directly from social security pro­grams


Convention on the Rights of the Child

Art. 26, recognizes for every child the right to benefit from social se­curity, including social insurance.

In addition, Art. 27(1) recognizes the right of every child to a stan­dard of living adequate for the child’s physical, mental, spiritual, moral and social development.

Under Art. 27(2) and (3), states parties must, in accordance with national conditions and within their means, take appropriate measures to assist parents to implement this right and shall in case of need pro­vide material assistance and support programs, particularly with regard to nutrition, clothing and housing.


Convention on the Elimination of All Forms of Racial Discrimination

Art. 5(e)(iv) recognizes the duty of states parties to prohibit and elimi­nate racial discrimination in the enjoyment, among others, of the right to social security and social services.


The International Convention on the Protection of the Rights of All Migrant Workers and their Families, (not yet in force).

Arts. 27 and 54 deal expressly with the social security rights of migrant workers.


The European Social Charter

Art. 12 requires Contracting Parties to establish or maintain a system of social security at a satisfactory level at least equal to that required for ratification of the International Labour Convention (No. 102) Con­cerning Minimum Standards of Social Security.

In addition, they must endeavor to raise progressively the system of social security to a higher level.  This article also contains provisions regarding the taking of steps by Contracting Parties to ensure equal treatment with their own nationals of the nationals of other Contract­ing Parties in respect of social secu­rity rights, as well as the granting, maintenance and resumption of social security rights.  Art. 13 of the Charter recognizes a right to social and medical assistance.

Thus Contracting Parties undertake to ensure that any person who is without adequate resources and who is unable to secure such re­sources either by his own efforts or from other sources, in particular by benefits under a social security scheme, is granted adequate assis­tance, and, in case of sickness, the care necessitated by his condition.

Art. 13(2) prohibits discrimina­tion against persons who receive such assistance, and Art. 13(3) pro­vides for such advice and help as may be required to prevent, remove, or alleviate personal or family want.  Special provision is made for ma­ternity benefits with a view to en­suring the effective exer­cise of the right of employed women to the protection of mater­nity (Art. 8).  Family benefits are provided for in Art. 16.   Social security rights are also protected in the revised Euro­pean Social Charter which opened for signature on 3 May 1996.

This article is important in that it recognizes a genuine, subjective right to adequate assistance for all persons who are not able to obtain sufficient resources.

In addition to the European Social Charter, the Council of Europe has produced the European Convention on Social and Medical Assistance, 1953. and the European Code of Social Security, 1964 (revised in 1990).  The latter convention bears a number of similarities to ILO Convention No. 102.  Within the European Union, the "social di­mension" relates primarily to workers’ rights.  The 1989 Com­munity Charter on the Fundamen­tal Rights of Workers incorporates workers’ right to social security and the right to social assistance for those in need in the same arti­cle (Art. 10).  The same approach is applied in the 1989 European Parliament Declaration of Funda­mental Rights and Freedoms (Art. 15).

The American Declaration of the Rights and Duties of Man

Art. 16 recognizes the right of every person to social security "which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control and make it physically or mentally im­possible for him to earn a living."

Art. 9 of the Additional Protocol to the American Convention on Hu­man Rights in the Area of Eco­nomic, Social and Cultural Rights, which is not yet in force, reads as follows:

"(1) Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent existence.  In the event of the death of a beneficiary, social security benefits shall be applied to his dependants.

"(2) In the case of persons who are employed, the right to social secu­rity shall cover at least medical care and an allowance or retirement benefit in the case of work acci­dents or occupational disease and, in the case of women, paid mater­nity leave before and after child­birth."


The African Charter on Human and Peoples’ Rights

The Charter has no express provi­sion recognizing the right to social security.  Certain aspects of the right may, however, be derived from Art. 16, the right to health, and Art. 18(4), the right of the aged and disabled to special measures of protection.


The International Labour Organization

Convention No. 102 on Social Security (Minimum Standards) recognizes the following nine spe­cific branches of social security: medical care, sickness benefits, unemployment benefits, old‑age benefits, unemployment injury benefits, family benefits, maternity benefits, invalidity benefits and survivors’ benefits.  Minimum re­quirements are stipulated as to the coverage of the population, the content and level of benefits, the protection of the rights of con­tributors and beneficiaries and matters of administration.

Other relevant ILO Conventions are: Maternity Protection Conven­tion (Revised), 1952 (No. 103); Equality of Treatment (Social Se­curity) Convention, 1962 (No. 118) (concerning equality of treatment of nationals and nonna­tionals); Employment Injury Bene­fits Convention, 1964 (No. 121); Invalidity, Old Age and Sur­vivors’ Benefits Convention, 1967 (No. 128); Medical Care and Sick­ness Benefits Convention, 1969 (No. 130); Maintenance of Social Secu­rity Rights Convention, 1982 (No. 157); Employment Promotion and Protection against Unemploy­ment Convention, 1988 (No. 168).

Generally the ILO has tied social security rights to employment, although it is increasingly pro­moting a broader notion of social security in which the state, em­ployers and workers all have a role to play in financing social security benefits.

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.



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.)

13Goldberg v. Kelly, 397 US 254 (1970).


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