Statement by the Centre on Housing Rights and Evictions (COHRE) on the Right to Social Security (Article 9)*
Open-Ended Working-Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR)
January 2005
Thank you Madam Chair.
The right to social security is perhaps one of the mostly baldly and briefly expressed rights. It simply reads ‘The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.’
While a General Comment on social security has not yet been released, the concluding observations of the Committee give some clear indications of the content and application of the right. Moreover, there is a rich body of jurisprudence under the International Labour Organisation and regional and national case law.
Content of the Right
From the above concluding observations and jurisprudence we can see that there are three key elements of the right:Adequacy: The level of benefits should be adequate in amount and duration, corresponding to the magnitude of the contingency, risk or need. For example the Constitutional Court of Ukraine has noted that the right to social security does not depend on age but need .1 The Committee on Economic, Social and Cultural Rights in defining need relies heavily on the right to an adequate standard of living. This is important to note, since it shows the interrelationship between the rights, and the difficulty of separating them.
While some argue that courts or quasi-judicial bodies are ill-equipped to determine the adequacy of benefits, it should be noted that they are regularly called upon to determine a
1 See section 10.2 above under ‘Implied Rights’.
reasonable standard of living in the areas of debtor-creditor law, bankruptcy and family law. An Australian tribunal commented in a case involving social security benefits that: ‘There must be a level between mere subsistence and hedonistic indulgence that should be regarded by the community as tolerable … that would … comply with our international obligations … [and] of which we would not be ashamed.’2
2. Coverage. Social security systems should aim to cover all those risks that impinge upon a person’s ability to generate income and maintain an adequate standard of living. The risks covered should include the benefits enumerated in ILO Convention 102.
3. Accessibility. The benefits should be accessible to all those that require them. For example, the ILO Committee of Experts on the Application of Conventions and Recommendations criticized Peru for failing to ensure coverage of the sickness benefit in four provinces and providing only outpatient coverage in three others.3 States should facilitate the physical accessibility of the benefits by providing the necessary information about the benefits. The Indian Supreme Court has, for example, ordered governments to publicise the right to grain of families below the poverty line.4
Obligations
Non-Discrimination and Equality. The rights to non-discrimination and equality are of particular importance in the context of the right to social security since certain social risks only arise for certain groups (for example, pregnancy) and marginalised groups are most likely to be those in need of social protection.
The UN Human Rights Committee, for example, ruled that the right to equality in the International Covenant on Civil and Political Rights extends to legislation enacted in the field of social security. Unemployment benefit legislation that excludes married women, on the assumption that their husbands would provide for their needs, was therefore found to discriminate on the basis of marital status and sex.5
With respect to individual cases, Courts and quasi-judicial bodies have condemned lower pensions for non-nationals who had served in the French Army;6 the exclusion of foreign migrant workers from unemployment benefit schemes in Spain7 and Austria8; and the denial of basic welfare benefits to non-nationals in Austria.9
2 R v Ezekiel (1984) Administrative Law Note, N235 per Senior Member McMahon of the Australian Administrative Tribunal.
3 Individual Observations concerning Convention No. 102, Social Security (Minimum standards), 1952 Peru. See also UN Committee on Economic, Social and Cultural Rights, Concluding Observations on Canada (1998) at para. 40.
4 People’s Union for Civil Liberties v Union of India, No.196 of 2001, Interim Order of 2 May 2003.
5 See the following decisions of the UN Human Rights Committee: Zwaan-de Vries v. the Netherlands, Communication No. 182/1984, (9 April 1987) and S. W. M. Brooks v. the Netherlands, Communication No. 172/1984 (9 April 1987).
6 See decision of UN Human Rights Committee in Gueye et al v France, Communication No. 196/1983 (3 April 1989).
7 Decision of the Constitutional Court of Spain, Case No. 130/1995, (1995) 3 Bulletin on Constitutional Case-Law 366, quoted in Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002).
8 Gaygusuz v Austria, European Court of Human Rights, 16 September 1996.
9 V v Einwohrnergemeine X und Regierunsgrat des Kantons Bern (BGE/ATF 121 I 367, Federal Court of Switzerland, of 27 October 1995).
Indirect discrimination, legislation or actions that discriminates in practice by diminishing the enjoyment of the right to social security for certain groups, is also prohibited in many jurisdictions. In relation to social security benefits, the Canadian Supreme Court held that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan violated the right of the (deaf) plaintiffs to the equal protection and equal benefit of the law without discrimination.10
Respect. The obligation to respect requires that social security benefits cannot be removed without just cause or due process. Suspension of pension payments to a prisoner has been ruled an inadmissible restriction on the right to social security.11 In many cases, civil and political rights are relied upon. In Goldberg v Kelly, the US Supreme Court struck down an administrative decision terminating benefits on the basis that due process had not been accorded to the recipients.
Obligation to Protect. Judicial authorities have often required close regulation of the private sector by introducing comprehensive standards, monitoring compliance, imposing penalties for violations and providing access to legal remedies for individuals. At the national level, a Latvian law that established an ineffective mechanism for ensuring that employers paid their contributions was struck down by the Constitutional Court of Latvia for its failure to ensure the right to social security of the relevant employees.12
Obligation to Fulfil. The obligation to progressively realise the right of social security will ordinarily require the preparation of a comprehensive plan as well as implementation and monitoring of the plan. The Constitutional Court of South Africa faulted housing legislation for failing to include a scheme for emergency assistance.13 The Supreme Court of India found that there had been a systematic failure by the government to design, implement and finance food security schemes. The right to a minimum level of assistance has been made justiciable in some jurisdictions. In Germany, Hungary and Switzerland, the highest Courts have ruled that all inhabitants of the country have a right to a minimum level of assistance (for example, shelter, food, clothing):14 Yesterday we heard examples of how the committee dealt with progressive realization of right to social security.
Presented by: Malcolm Langford
*The submission is drawn from the forthcoming paper by Malcolm Langford and Aoife Nolan, ‘Judicial Enforcement of the Right to Social Security: International and Comparative Review’.
10 Eldridge v. British Columbia (Attorney General) [1997] 2 S.C.R. 624
11 Decision of the Constitutional Court of Russia, 16 October 1995, (1995) 3 Bulletin on Constitutional Case-Law 340, quoted in Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002).
12 See Case No. 2000-08-0109, Constitutional Court of Latvia, 2001. The right to social security and the International Covenant on Economic, Social and Cultural Rights are respectively enshrined and incorporated in the constitution.
13 South Africa v Grootboom 2001 (1) SA 46 (CC).
14 See Constitutional Court of Hungary, Case No. 42/2000 (XI.8); BverfGE 40, 121 (133) (Federal Constitutional Court of Germany); and V v Einwohrnergemeine X und Regierunsgrat des Kantons Bern (BGE/ATF 121 I 367, Federal Court of Switzerland, of 27 October 1995).