The Right to Social Security

EU-CHINA HUMAN RIGHTS NETWORK

Working Paper on the Right to Social Security

NETWORK SEMINAR ON HUMAN RIGHTS UNIVERSITY OF ESSEX, COLCHESTER.U.K. 27-28 APRIL 2004

The Secretariat of the EU-China Human Rights Network at the Irish Centre for Human Rights would like to acknowledge the work of Ms. Arlene Walshe and Dr. Padraic Kenna in the preparation of this discussion paper.

The EU-China Human Rights Network is a project funded by the European Commission. The opinions, findings and conclusions expressed do not necessarily represent the views of the European Commission.

1 The Right to Social Security

Introduction

The right to Social Security is protected in a whole raft of human rights instruments both at the international and regional level. The concept of social security is a broad one and because the term can be interpreted to contain both a limited and a wider spectrum of entitlements it is closely related to and indeed often supplemented by, a number of inter- related rights in these instruments.

This paper seeks to briefly describe the dichotomous approach which exists in the use of the term social security. It will outline the provisions pertaining to social security in the main human rights instruments and also look briefly at their implementation and monitoring. It will examine some of the interpretations and pronouncements of the monitoring bodies and the treatment of the right under the complaint mechanisms of instruments containing civil and political rights. Finally, it will mention some of the issues pertinent to the current debate regarding social security.

Definition of ‘Social Security’

The term social security is often understood as being limited to social benefits ‘earned’ by workers’ contributions to insurance schemes and to exclude social assistance in the form of non-contributory welfare payments financed by general revenue.1 This approach is taken in many of the provisions on social security outlined below. In these cases, protection of the right to social assistance is often to be found in, or can be derived from, related articles. However, owing to the brevity of this paper, the term ‘social security’ will be understood as pertaining to both of these specific meanings unless otherwise indicated.

A distinction can also be made between general and situation-based social security and between private law contracts and collective agreements and statutory schemes enacted by the state. Most provisions of international law dealing with this issue require States to enact a system of social security without being prescriptive as to the specifics of that system so long as it meets certain standards which will be discussed below.

1 See Martin Scheinin , ‘The Right to Social Security’ in Asbjorn Eide, Catarina Krause and Allan Rosas (eds.) Social, Economic and Cultural Rights. Kluwer Law International, 2001, p211.

2 The Right to Social Security in International Human Rights Law

International Instruments

The right to social security is guaranteed in the Universal Declaration of Human Rights2 in Art. 22 and various forms of social security are also recognised in Art. 25 (1). Art. 9 of the International Covenant of Economic, Social and Cultural Rights3 recognises the right of everyone to social security. Art. 10 (2) also recognises the right of working mothers to “adequate social security benefits” and Art. 10 (3) requires that states undertake special measures of protection and assistance for children and young people. Art. 11 also recognises the “right to an adequate standard of living, including adequate food, clothing, and housing and to the continuous improvement of living conditions.” Although the text of the ICESCR is quite vague regarding social security and it is not elaborated on in any general comment, the reporting guidelines place special emphasis on the list of specific branches of social security guaranteed under the ILO Social Security (Minimum Standards) Convention of 1952, (ILO No. 102). The list of the different forms of social security contained in this convention and repeated in the reporting guidelines for Art. 9 of the ICESCR is as follows:

1. medical care (Part II) 2. sickness benefit (Part III) 3. unemployment benefit (Part IV) 4. old-age benefit (Part V) 5. employment injury benefit (Part VI) 6. family benefit(Part VII) 7. maternity benefit (Part VIII) 8. invalidity benefit (Part IX) 9. survivor’s benefit (Part X)

The importance given to the standards set by the ILO Convention No.102 illustrates that Art. 9 of the ICESCR was drafted primarily to protect the right to social security in the narrow sense of benefits entitled to workers and their dependants. However, it is arguable that the inclusion of Art. 11 accommodates a right to social security in the broader sense including a right to non-contributory assistance.4

There are also provisions guaranteeing the enjoyment, without discrimination, of the right to social security in the International Convention on the Elimination of All Forms of Racial Discrimination5 and the International Convention on the Elimination of All Forms of Discrimination against Women6. The Convention on the Rights of the Child also recognises the right of every child to benefit from social security as well as a right to a

2 Universal Declaration of Human Rights UDHR, adopted 10 Dec. 1948, G.A.Res.217A (III), UN Doc. A/81, at 71 (1948). 3ICESCR, adopted 16 Dec. 1966, entered into force3 Jan.1976, G.A. Res.2200A (XXI), UN Doc. A/6316 (1966) . 4 See Martin Scheinin, op.cit.1 at p.215. 5 International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, entered into force 4 Jan. 1969, 660 UNTS 195.

3 standard of living adequate for the child’s physical, mental, spiritual, moral and social development.7 The International Convention on the Protection of the Rights of All Migrant Workers and their Families8 also contains an express provision on the right to social security. In addition to the provisions of the ILO Convention No. 102, there are several other ILO conventions which are also relevant.9

Regional Instruments

Provisions on the right to social security are also contained in a number of regional instruments. Both the American Declaration of the Rights and Duties of Man10 and the Additional Protocol to the American Convention on Human Rights11 contain provisions on the right to social security. There is no explicit provision recognising the right to social security in The African Charter on Human and People’s Rights although certain aspects of the right may be derived from several other articles contained within.12

The provisions of the European Social Charter13 dealing with social security contain better-developed standards than any of the other instruments. Art. 12 deals with social security in the narrow sense creating an obligation on states to establish and maintain a system of social security in 12(1) and specifically referring to the ILO standards in 12(2), while Art. 12(3) requires states to ‘raise progressively’ the system of social security to a higher level. Art.13 deals with the right to social and medical assistance. These articles impose quite specific obligations on states to facilitate enjoyment of the right to social security and are reproduced in the annex to this paper.

In the Revised European Social Charter14 reference is made, in Art. 12, to the European Code of Social Security15 which entails a higher standard than the ILO convention and retains an emphasis on the protection of workers and their dependants. The Revised European Social Charter adopts a more holistic approach to the right to social security in 6 International Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 Dec. 1979, entered into force 3 Sept. 1981, G.A. Res. 34/180, 34 UN GAOR, Supp. (No.46), UN Doc. A/34/46, at 193 (1979). 7 Convention on the Rights of the Child, adopted 20 Nov.1989, entered into force 2 Sep.1990, G.A. Res. 44/25, 44 UN GAOR, Supp. (No.49), UN Doc. A/44/49, at 166 (1989). 8 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted 18 Dec. 1990, entered into force 19 March 2003, G.A. Res. 45/158. 9 These include the Maternity Protection Convention (revised), 1952 (No.103), Equality of Treatment (Social Security) Convention, 1962 (no.1118), 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) . 10 American Declaration of the Rights and Duties of Man, signed 2 May 1948, OEA/Ser.L./11.71, at 17 (1988). 11 Additional Protocol to the American Convention on Human Rights in the Area of Economic Social and Cultural Rights (Protocol of San Salvador), adopted 17 Nov. 1988, entered into force 16 Nov. 1999, OASTS 69. 12 Charter on Human and People’s Rights, adopted 27 June 1981, entered into force 21 Oct. 1986, O.A.U. Doc.CAB/LEG/67/3 Rev.5. 13 European Social Charter, signed 18 Oct. 1961, entered into force 26 Feb. 1965,529 UNTS 89, ETS 35 14 European Social Charter (Revised), adopted 3 May 1996, entered into force 3 July 1999, ETS 163. 15 European Code of Social Security, adopted in 1964, revised in 1990.

4 the context of protection against poverty and social exclusion, thereby signifying the social and integrative role of social security. Article 30 of the Revised European Social Charter provides explicitly for a right to protection against poverty and social exclusion and is also reproduced at the end of this paper. Other related articles are Art.16 and 17 of the ESC and Revised ESC, which recognise specific forms of social security and Art.14, which protects the right to social welfare services.

The inclusion of Article 13 has been described as a “major breakthrough,” in that “at least within the European human rights system, the right to social assistance for those in need has developed into a genuine human right.16 Martin Scheinin asserts that, in light of the development of international protection of economic and social rights and particularly through the approval of the European Social Charter, “ [s]ocial assistance for persons without adequate resources, paid from general tax revenues and not on the basis of an insurance-type scheme with individual contributions, must now also be provided as a right and not on the basis of free discretion by the authorities.”17

Indeed the European Committee of Social Rights has developed a ‘case law’ on Article 13 (1) of the ESC interpreting it as a “justicable right.” This is despite the fact that the wording would not appear to establish an individual right.

It should be noted that these provisions oblige states to maintain a system of social security but do allow scope for diversity among national policies in this regard. However, the European Committee of Social Rights has made it clear that “it is of paramount importance that social security systems are adequate to protect the population” which, according to Scheinin, indicates “a shift towards directing more attention to the implications of a social security system aiming to secure basic subsistence to all members of society.”18

Within the ‘social dimension’ of the EU system, provisions on the right to social security are contained within the 1989 Community Charter on the Fundamental Rights of Workers and the 1989 European Parliament Declaration of Fundamental Rights and Freedoms.

In Art. 34 of the Charter of Fundamental Rights of the European Union,19 the right to social security and social assistance is recognised and respected as a fundamental right and in the commentary on Art.34, contained in the ‘Explanatory Document,’ reference is made to the provisions of the ESC and Revised ESC.20 The European Commission, together with the Council and Parliament, participated in the solemn proclamation of the Charter of Fundamental Rights in December 2000. Significantly, these provisions have now been replicated in the Draft Constitution for Europe, and in the event of the adoption of the Constitution will become a significant part of the corpus of European and human

16 Scheinin op.cit.1 at p.216. 17 Scheinin ibid. at p.212. 18 Scheinin ibid.at p.213. 19 Charter of Fundamental Rights of the European Union, OJ C 364, 18 December 2000. 20 See Jennifer Tooze, ‘Social Security and Social Assistance,’ in Hervey, Tamara K, Economic and Social Rights under the EU Charter, pp 161-192.

5 rights law.21 Article 34 and the related articles 33 and 35 are reproduced at the end of this paper.

Integrated Approach to the Protection of Economic and Social Rights.

As outlined above, the right to social security is enshrined in a number of important instruments dealing with economic, social and cultural rights. The nature of states’ obligations regarding the right to social security will vary according to the international and regional instruments binding on that state and the scope of these obligations will vary accordingly, from instrument to instrument. Monitoring of the right is mainly achieved through the reporting mechanisms set up under each respective treaty.

Through these mechanisms the standards, necessary for a state to have met its obligations regarding social security, are expanded on and developed. In addition the system of supervision for the Revised European Social Charter has been improved by the inclusion of a procedure for collective complaints in the Additional Protocol, which came into force in July 1998.22

However, the protection of the right to social security had also been developed with some considerable success through the complaint procedures under treaties dealing with civil and political rights.

Under its individual complaints mechanism, the Human Rights Committee found breaches of Art. 26 (non-discrimination) of the International Covenant on Civil and Political Rights23 in three Dutch cases relating to social security. Two of these cases, Zwaan-de Vries v. the Netherlands24 and Broeks v. the Netherlands25 concerned legislation whereby, in order to prove eligibility for unemployment benefit, married women had to first prove that they were the ‘bread-winner’ of the household, a condition not applied to married men. In another case, the Committee found a breach of Art. 26 on the grounds of nationality (classified as ‘other status’) where retired Senegalese soldiers in the French army were awarded lower pensions than French citizens in an equal position.26

Applying Art. 26 to cases involving the right to social security the Human Rights Committee explained,

21 Draft Treaty establishing a Constitution for Europe, submitted to the European Council Meeting in Thessalonaki 20th June 2003. Articles II–33-35. 22 See Scheinin op.cit.1 at p.217. 23 International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, entered into force23 March 1976, G.A. Res. 2200A (XXI), UN Doc. A/6316 (1966), 993. 24 Communication No. 182/1984, Yearbook of the Human Rights Committee 1987, Vol. II, pp.300-304 . 25 Communication No. 172/1984, Yearbook of the Human Rights Committee 1987, Vol. II, pp.293-297. 26 Gueye et al. v. France, Communication No. 196/1985, Official records of the Human Rights Committee 1988/89.

6 ‘Although article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligations with respect to the matters that may be provided for by legislation. Thus it does not, for example 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.’27

In the European Court of Human Rights, several breaches of Art. 6(1) of the European Convention on Human Rights28 have been found in cases involving social security. Art. 6 (1) guarantees the right to a fair hearing and in Feldbrugge v. the Netherlands29 and Deumeland v. Germany,30 the court extended the protection of Art.6 (1) to the social security system, in cases which concerned benefits with private law features. In Salesi v. Italy31 and Schuler-Zgraggen v. Switzerland32, this protection was extended to cases involving statute-based social security benefits with a public law character. Indeed, the facts of the Salesi case concerned social assistance as opposed to social insurance. In Schuler- Zgraggen case, the Court held that “today the general rule is that article 6(1) does apply in the field of social insurance, including even welfare assistance.”33

It is also possible that cases, with facts concerning the right to social security, could potentially be heard through interpretations of the provisions relating to the right to life, the right to private and family life or even the prohibition on torture and cruel, unusual or degrading treatment.

Standards of Social Security

As mentioned above, the nature of states’ obligations regarding the right to social security will vary according to the international and regional instruments binding on a particular state. Although the provisions of the treaties discussed above do not prescribe any specific system of social security, the system in question must, however, satisfy some basic requirements and standards in order not to fall foul of those provisions. In general, it would seem that even to satisfy the core minimum obligations set down in the international instruments, states must ensure that their social security systems act as a sort of ‘safety net’ for the most vulnerable groups in society.

Though it is not possible here, to attempt a detailed examination of the conditions necessary to satisfy the various provisions, some of the essential elements to the right to social security have been identified as;

27Para. 12.4 in the Zwaan-de Vries case quoted in Martin Scheinin, ‘Economic and Social Rights as Legal Rights’ in Asbjorn Eide, Catarina Krause and Allan Rosas (eds.) Social, Economic and Cultural Rights. Kluwer Law International, 2001, at p.33. 28 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 Nov. 1950, entered into force 3 Sept. 1953, 213 UNTS 221, ETS 5. 29 Judgement of 29 May 1986, Publications of the European Court of Human Rights, Series A, No.99. 30Judgement of 29 May 1983, Publications of the European Court of Human Rights, Series A, No. 100 . 31 Judgement of 26 February 1993, Publications of the European Court of Human Rights, Series A, No.257. 32 Judgement of 24 June 1993, Publications of the European Court of Human Rights, Series A, No. 263. 33Quoted in Scheinin op.cit.26 at p.37.

7  Comprehensiveness  Universality  Adequacy and Appropriateness  Respect for Equality

 Respect for Procedural Rights34

Under the ICESCR, states are obliged to adopt legislative, in conjunction with other, measures with a view to the progressive realisation of the right to social security. These measures must be ‘deliberate, concrete and targeted as clearly as possible towards that goal.’ This also implies that any deliberate 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.’35 The necessity of the availability of appropriate means of redress and accountability for violations has also been emphasised by the Committee of Economic and Social Rights.36

With regard to the European instrument, the European Committee of Social Rights have stated that substantial gaps in social security schemes, or low level benefits, would imply that a state party is not complying with its obligations.37 References to the ILO Convention (in the ESC) and the European Code of Social Security (in the Revised ESC) also establish material minimum standards for social security benefits. Art. 12 (1) also requires state parties to ‘raise progressively’ their standards and the European Committee has already noted with concern the regression of standards in some states reports.38

Social Security Today

In Europe, because the goals and traditions in the social security field vary in different states,39 there is considerable diversity in the way that the right to social security has been implemented. In the European regional system, a wide discretion is granted to states in realising this right which “demonstrates how the right can be interpreted so as to respond to the economic demands incumbent on individual states.”40

34 Sandra Liebenberg, ‘Social Security as a Human Right,’ Training Module 11, in Section 5 of Circle of Rights, A Training Resource available at www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module11b.htm. 35 General Comment No. 3, The nature of States parties obligations (Art.2, para.1of the Covenant) (Fifth Session, 1990), UN Doc. E/1991/23,para.9. 36 Sandra Liebenburg, op.cit.33. 37 See Scheinin op.cit.1 at p.217. 38 ibid. at p.217. 39 Future of Social Security in Europe, Committee on Social, Health and Family Affairs, 20 February 2004. Doc. 10098. 40 Jennifer Tooze, ob.cit. 20 atp.190.

8 Despite the fact that there is a long tradition of systems of social security in Europe, recent socio-demographic and economic transformations have dramatically changed the structural basis on which the welfare states were constructed.41 Many factors impact on this area, including economic factors, such as, increased globalisation and European integration, an inclination toward more conservative economic policies, demands for curbs on welfare expenditure and trends toward privatisation. There has also been considerable social change in Europe in recent times resulting in such factors as an aging population, changes in the structure of the family, and increased female labour market participation. These are mere examples of the types of issues surrounding the current European discourse on the right to social security.

The challenges posed by these and a host of other changes should not be underestimated. However states must not forget their international obligations regarding the right to social security and be ever mindful of these obligations in the development and maintenance of domestic social security systems.

The EU-China Human Rights Network seminar on the right to health and the right to social security will examine human rights standards on the right to social security, and discuss the domestic and regional situations regarding this right, both in China and EU countries. The relationship between the aforementioned rights will also be explored.

Annex:

International Covenant of Economic and Social and Cultural Rights

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

European Social Charter

Article 12 - The right to social security

With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:

41 ‘Dynamics of social security in Europe’, A Syntheses, Project SO/01/010, Sociaal Beleid, E.Van Evenstraar 2 B, B-3000 Leuven..

9 1. To establish or maintain a system of social security;

2. To maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention (No. 102) Concerning Minimum Standards of Social Security;

3. To endeavour to raise progressively the system of social security to a higher level;

4. To take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure:

a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties;

b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.

Article 13 - The right to social and medical assistance

With a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties undertake:

1. 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, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;

2. To ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights;

10 3. To provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want;

4. To apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11th December 1953.

Revised European Social Charter

Article 30 – The right to protection against poverty and social exclusion

With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake:

to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance;

to review these measures with a view to their adaptation if necessary.

Charter of Fundamental Rights of the European Union.

Article 33 Family and professional life

1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

11 Article 34 Social security and social assistance

1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the procedures laid down by Community law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the procedures laid down by Community law and national laws and practices.

Article 35 Health care

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

______