The right to social security: Can it be brought to court? The right to social security has been successfully brought before international and regional courts and bodies that are empowered to receive applications or complaints and consider alleged violations of rights categorized a priori as civil or political. This became possible when the interconnection between the right to social security and other rights and principles was demonstrated. Although this type of indirect protection has proved to be significant, there are still aspects of social security that are poorly served by it or excluded from it. The development of direct justiciability mechanisms would rectify this situation. Christian Courtis1 brief of global and regional human rights courts and property. We will now examine how this protection International Commission of Jurists bodies that are empowered to receive applications, functions in two regional human rights systems, the petitions and complaints. European and the Inter-American. This report will endeavour to present several 1. Introduction different ways in which various aspects of the right 2.1. European human rights system The right to social security2 has been included in the to social security – through its interconnection with In the European system of human rights, this form of catalogue of human rights since the adoption of the other rights – have been addressed by courts and protection has manifested through the application of Universal Declaration of Human Rights itself in 1948 bodies empowered to consider alleged violations of Article 1 of Protocol No. 1 to the European Conven- (see Article 22).3 It is also enshrined in a significant rights categorized a priori as civil or political. tion for the Protection of Human Rights and Funda- number of global and regional human rights trea- Without pretension to being exhaustive we will mental Freedoms. The central issue is the scope of ties and in instruments adopted by the International consider below three principal means of indirect the terms “property” or “possessions” in the article’s Labour Organization (ILO).4 protection for aspects of the right to social security: text. A narrow consideration of these terms could Nothing of what is said here is intended to deny a) aspects of social security as a component of in- limit the scope of the article, for example, to property the conceptual possibility of regarding the right to terests protected under the right to property; b) pro- understood only in the sense of physical property social security as an actionable right.5 National expe- cedural aspects relating to due process guarantees or property already incorporated in a person’s total riences demonstrate that the right to social security, and effective judicial tutelage of the right to social assets. But a wider interpretation of interests that can including rights derived from social security regimes, security; and c) the prohibition of discrimination and be included in the terms “property” or “possessions” together with employment rights, are areas in which the equality principle as applicable to the right to would allow for a looser notion of “property” that, litigation precedence is firmly established at a local social security. given the fulfilment of certain conditions, incorpo- level, both in developed and developing countries. rates the expectation of receiving a pension, or other However, at an international level, the scope of direct 2. The protection of the right to social form of money transfer, and of its maintenance, up- justiciability on this right has been limited, due par- security through the right to property dating or adjustment, among other possibilities. ticularly to the persistence of various restrictions that One of the indirect forms of protection for the right The old European Commission of Human Rights limit justiciability on economic, social and cultural to social security has been the inclusion of rights and the current European Court of Human Rights have rights. Nevertheless, adjudication on the right to so- and expectations relating to social security ben- clearly leaned towards this second possibility and have cial security falls within the judicial or quasi-judicial efits among the interests protected by the right to considered in many cases that social security benefits Director of the Economic, Social and Cultural Rights Programme, International Commission of Jurists, Geneva. Assistant professor in the Faculty of Law, University of PETITION MECHANISMS IN INTERNatioNAL Buenos Aires and invited professor in the Law Department of the Autonomous Technological Institute of Mexico (ITAM). A AND REGIONAL HUMAN RIGHTS BODIES complete version of this article is available in Spanish from: • At an international level, there is still no mechanism for applications and petitions that facilitates <www.socialwatch.org/es/informesTematicos/111.html>. the presentation of complaints about violations of rights embodied in the International Covenant References to “the right to social security” in this article include both contributory social security and non- of Economic, Social and Cultural Rights (ICESCR). However, Article 24 of the ILO Constitution contributory or welfare assistance; this differentiation is entitles unions and employers’ organizations to present ‘claims’ in the case of inadequate com- omitted as jurisprudence indicates its irrelevance in the pliance by the state with a convention that it is party to. This includes conventions relating to light of protection offered by rights incorporated in civil and social security such as Conventions 102, 121, 128, 130, 168, 103 revised, 118 and 157, among political rights instruments. others. See for example, Andreassen, B.A. (1999). “Article 22”, in Alfredsson, G. and Eide, A. (comps.), The Universal Declaration • In Europe the Additional Protocol to the European Social Charter, which establishes a system of Human Rights: A Common Standard of Achievement. The of collective complaints, allows legitimate stakeholders to present complaints alleging an Hague: Martinus Nijhoff Publishers, p. 453-488. unsatisfactory implementation of obligations arising from the European Social Charter of See Courtis, C. (2003). “El derecho a la seguridad social en 1961, or its revised version of 1996, by a state that is party to it. el derecho internacional”, in Abramovich, V., Añón, M.J. and Courtis, C. (comps.), Derechos sociales: instrucciones de • The Inter-American human rights system allows for the presentation of individual petitions uso. Mexico: Fontamara, p. 257-270; Scheinin, M. (2001). to the Inter-American Commission on Human Rights alleging violations of the right to social “The right to social security”, in Eide, A. Krause, C. and Rosas, A. (comps.), Economic, Social and Cultural Rights. security as established by Article 16 of the American Declaration of the Rights and Duties of A textbook. Dordrecht/Boston/London: Martinus Nijhoff Man. Additionally, arguments have been made supporting the possibility of taking questions Publishers, 2nd Ed., p. 213-220. relating to direct violations of the right to social security to the Inter-American Court of Human Our general position on this can be found in Abramovich, Rights, but the practical application of this has thus far been disappointing. V. and Courtis, C. (2004). Los derechos sociales como derechos exigibles. Madrid: Trotta, 2nd Ed. Social Watch / 35 01-Temas_ing (01-80).indd 35 14/9/07 15:11:10 – including both contributory and non-contributory sen to achieve them. In social security, with its need effect on the substance of the right. In this case, the benefits – constitute “property” or “possessions”, for complex system management, this notion has Court considered that a difference of 38% between as referred to in Article 1 quoted above, and that they been reflected in the opinion of the Commission, the pension received by the woman applicant and therefore deserve protection against state actions that subsequently adopted by the European Court, that the one she would have received in the same condi- prejudice their peaceful enjoyment. the acknowledgement of the possible extension of tions had she been a man, constituted an unjustified So, for example, even in 1971 the now inexist- property right protection to social security benefits and discriminatory difference in treatment.12 It could ent European Commission of Human Rights held does not imply the guaranteeing of the right to a par- be argued that this percentage represents at least a that “while it is clear that no right to a pension is as ticular amount. Neither does it signify the right to the guideline for what constitutes an intolerable differ- such included in the Convention (European Conven- establishment of specific types of benefit, given that ence in the area of social security. tion on Human Rights), the making of compulsory the state has a wide discretional margin to create and contributions to a pension fund may, in certain cir- design social security schemes and their mode of Discrimination and violations cumstances, create a property right in a portion of finance. And even in the case of public policy objec- of the equality principle such fund and that such right may be affected by tives that need to be prioritized, the state has a certain In a series of cases, the European Court has consid- the manner in which the fund is distributed.”6 The margin to choose the means and timetable for their ered allegations of discrimination or violations of the European Court of Human Rights has upheld this accomplishment. Finally, in order to establish the equality principle in relation to protection derived interpretation in many cases. The Court has also held existence of a pecuniary right, the Court requires that from the right to property as applied to social security that rights deriving from the payment of contribu- the person alleging a violation meets the conditions rights. These cases will be examined in section 4, tions to social security systems are pecuniary rights prescribed by the relevant national law for obtaining which is exclusively devoted to the issues of dis- as defined in Article 1 of Protocol No.