Unit No.

11
Social security as a human right

Purpose of Unit No. 11

The purpose of this module is to help ESC rights advocates understand social
security as a human right.

This unit:
Provides a historical background to the concept of social security;

reviews the current threats to social security in industrial economies; identifies the
main necessary elements for different social security systems; reviews the main
elements of the rights-based approach to social security;
analyzes the texts of international and regional instruments with regard to the right to social security; Consider

implementation and enforcement mechanisms.

historical background

Before countries in the North began to assume increasing responsibilities for the social security of their
citizens, the alleviation of poverty and protection from economic insecurity were among the issues that
were taken over by private institutions, which included She pooled her resources to protect her members
in times of trouble. It was the family that had the first moral duty to protect its members from starvation
and extreme poverty; Relief of the afflicted and of the afflicted by means of social organizations outside
the family were regarded as charitable works. As for the concept of providing social assistance to
individuals as one of their rights, it did not exist at that time. The so-called "laws of the poor" enacted in
some countries, such as the United Kingdom, represents an initial form of public liability for the landless
who are unable to obtain aid from their families; Even if the poor's acceptance of the aid provided to them
under these laws often entailed a kind of humiliation, loss of civil rights, and forced living in shelters for
the poor, which led to a distinction between the two.

Industrial Revolution

The Industrial Revolution and the rise of capitalism, starting around 1750, destroyed the existing networks of social

support, so individuals had to sell their ability to work in labor markets at the prevailing market prices; These workers

and members of their families became completely dependent for their livelihood on wages paid in

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Cyclic. In many cases, large numbers of workers were unemployed for a long time, and there was no form of
insurance against work injury, illness or unemployment. In the event of exposure to any of these dangers, the
family would end up living in slums, in unsanitary conditions, and in poverty. Karl Marx, in his book "Capital"
published in 1867, dealt with the commodification of labor, and the subsequent dehumanization of workers,
which is considered the main feature of the capitalist system. The development of social security systems was, to
a large extent, an attempt to humanize the hardships that the capitalist system imposed on the working classes;
Whereas, the protection of the working classes in the cities from extreme poverty necessitated the gradual
establishment of specific protection systems, such as the various savings funds sponsored by the government;
Employers are somewhat obligated to care for sick and injured workers; the growth of the role of mutual aid
societies; and private insurance companies that offer life insurance policies and reimbursement for funerals.
However, as the ILO has clarified:

The main social mistake in that period was the adoption of an optimistic view: it believed that the lack of
intervention to regulate the conditions of workers would enhance their readiness, abilities and creative
energy to confront any adversity or confrontation they might encounter. Whereas it should have been clear to
all that this view was wrong, since the workers' first and only concern then was to survive from today to
tomorrow, and they did not have enough time to consider long-term emergencies; The costs of present life
are undoubtedly and demand immediate fulfillment, which gives it priority over saving for the possibilities
that tomorrow holds; They had nothing to save to meet the imminent dangers of disease or unemployment.)1(

But pressure from workers and other social groups gradually paid off, as states began to play a more effective
role in developing social protection systems. The motives and the political philosophy behind the establishment
of these regimes and the specific image they took in different countries varied.

The government of German Chancellor Bismarck was credited with the initiative to establish the
first broad system of social insurance between 1883 and 1889; The system was compulsory for
all waged workers, and its financing depended on the contributions of both workers and
employers; Workers, employers and the state all played a role in managing this system. Thus,
the protection of workers from poverty and the stigma of receiving aid under the “law of the
poor” was facilitated by a system that guarantees them social insurance. In fact, this system led
to the strengthening of the existing differences, by adopting a system of distinct insurance
segments depending on the category to which the worker belongs - so there were workers and
other workers. Some other European countries followed the example of Germany by
establishing social insurance schemes for workers. By the 1930s, social insurance was
widespread and adopted in Latin American countries, the United States, and Canada.

In 1911, work began in Britain with an unemployment insurance system based on contributions, and was initially limited to only

three industries: engineering, shipbuilding, and building and construction. The unemployment insurance system was extended

after the First World War and was greatly expanded to include workers in other industries. When unemployment became

widespread during the years between the two wars, a two-tiered system arose:

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The first level is providing insurance benefits to the unemployed participating in the insurance system as their
right, while the second level is providing social benefits to those who do not participate in the system according
to their financial condition. Hence, a distinction arose between those who claim social security assistance as their
right, and those who claim it because they need it. This has also given rise to the popular concept of aid
'deserving' poor versus 'deserving' poor.

We must consider the establishment of social security systems in Britain, the United States and other countries with the

same traditions; Considering that it is an opposite trend to political commitment to market mechanisms, as they will

solve the problems of poverty and unemployment, and the accompanying deep skepticism about the feasibility of state

intervention in the market dynamics in order to achieve market inequality. There is a great reluctance in these countries

to work with a 'welfare state' system, where the state plays a key role in ensuring universal access to social security. The

social aid systems set up in those countries aimed to provide a minimum level of social security to the poorest in need;

Under these regulations, the applicant had to prove that he really needed it, by demonstrating that he met the criteria

for financial condition, which often included humiliating inquiries about the applicant's property. The severe restrictions

imposed during the Great Depression on the entitlement to social security led to the outbreak of popular

demonstrations and internal unrest; But the welfare state was eventually established in those countries, when the

extent of poverty and unemployment threatened to destabilize the prevailing market-based order.

The birth of the welfare state

The Scandinavian countries, which were governed by coalition governments with socialist leanings, were
able to make tangible progress towards establishing a democratic social model; The poor workers and
peasants were able to mobilize the political influence necessary to establish broad systems of social aid,
financed by public revenues of the state, rather than individual contributions. The aim of this system was
to reduce the manifestations of inequality and injustice created by the capitalist system.

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certain “social rights”, and that the state is obligated to fulfill and protect these rights by enabling
everyone to obtain certain basic social benefits.

The approach of the welfare state in Britain remained relatively limited until the end of the Second World War in
1945, when it was greatly expanded according to the recommendations contained in the “Beveridge Report”
published in 1942 by the outbreak of the war. New social. The main concern of the Beveridge Report was to
ensure a minimum basic income for everyone, and not to allow anyone's income to fall below that level. On the
basis that the implementation of social security will develop the belonging of all members of society to the
group. In the post-war period, government was committed to achieving full employment as one of the first aims
of policies, based on the new economic theories of John Maynard Keynes.

Many elements of the welfare state were patriarchal in the sense that they were based on the model of the working

man earning the breadth of the family or the wages that would allow him to support his non-working wife and other

dependents. Thus, the welfare state model followed reflects and supports the gender division of labor in society. The

welfare state has remained in the form in which it emerged after the war, with little change, for more than two

decades; But the period following the economic downturn of 1973 saw a series of major changes in that system,

ushering in the demise of the welfare state that emerged in Britain after World War II.

The impetus for expanding social security in the United States was the Great Depression of the 1930s and World
War II. In 1935, the Social Security Law was enacted, which stipulates the implementation of certain programs to
address the risks of aging, death, disability and unemployment. The most important aspect of the social security
system in the United States was the safety of workers through social insurance. But the law also provided for
some support from the federal budget to support social assistance programs in the various states. The American
social security system differed from its British counterpart in several main respects, the most important of which
was that the American system did not guarantee the right to social security for the unemployed who did not
meet the social security requirements. There was an increasing number of workers who were not eligible to
enjoy social insurance because of the high rate of unemployment and the practice of temporary work.

Social security and social services

A distinction should be made between social security and social services, despite their
close relationship and concurrent emergence in many countries. Social services are
based on social considerations, and aim to enhance the well-being, development and
belonging of individuals and groups to society. They include services for children,
young people, the elderly, people living with or living with HIV/AIDS, people with
mental or physical disabilities, and those with HIV or AIDS.

Social security – the current crisis

The welfare state in many developed countries has come under increasing pressure since the early 1970s as a result of the

forces of globalization, economic stagnation, and conservative political ideologies. The opening of the local economy has led to

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Global competition is restricting the ability of many governments to implement social policies
independently. The increased mobility of labour, high unemployment, and the growth of space occupied
by non-stereotyped forms of work including those of casual and temporary work within the labor market,
home work and self-employment, have created a great need for social development. traditional social
security.

example from canada

In 1995 the Canadian government passed legislation repealing the Canada Aid Scheme, the system whereby the
government shared the costs of all Canadian provinces' spending on social aid under their programs. That plan
was to provide protection to ensure a number of important rights of beneficiaries of social aid, as it required the
Canadian provinces to ensure the realization of these rights in order to be able to benefit from the participation
of the federal government in bearing the costs. In the report submitted by the “Pact Committee on Poverty
Issues” to the Committee on Economic, Social and Cultural Rights, it clarified that the establishment of the
Canadian Aid Plan in 1966 was a “major step on the road to recognition as a recognition of it.” For in Canada the
regional programs prior to that plan treated the poor as worthy cases of charity; The criterion of eligibility for
aid was erratic, and the determination of eligibility to receive aid was often arbitrary. There were also wide
disparities in the basic standards applied within each region as well as between regions. The abolition of the
aforementioned plan, and its replacement with the so-called “transfer of health and social assistance in
Canada”, led to the loss of most aspects of the protection in form and object, which the aforementioned plan
had guaranteed in various countries. The Charter Committee on Poverty Issues considered that the outcome of
canceling the plan for the poor will be:

1. Complete loss of any semblance of federal legal protection of the right to social assistance in the event of poverty,
other than other rights guaranteed by the plan.

2. It will also be linked to this loss, implicitly degrading the status of the poor, as the value of their
belonging to the country and their social status will be degraded, just as the legal recognition of their
rights has deteriorated. It is noted that Canadian provinces tend to adopt measures that tend to regard
the provision of social aid as a matter of discretion, and to consider the recipients of such aid as inferior
to others.(2)

Governments have also increasingly embraced a political vision that holds the welfare state responsible
for stifling the market, reducing incentives to work, and undermining family and community support
systems. As a result of these pressures and political opinions, many countries took some measures to
reduce spending on social services, and to stop working on many elements of the social security systems
that took so long to be established.

Another trend in the restructuring of social welfare systems, in many countries, is to reduce state
responsibility for welfare, and to place greater emphasis on individual and community responsibility. Mary
Langan describes new ideas and policies for social welfare in Britain:

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The social welfare policy of the Labor Party, which became Tony Blair's New Labor Party in 1994, was
the clearest indication of the new consensus on social welfare. It could be argued that the elevation of
responsibilities over rights, individualism over collective inclination, and community over class, revealed
the abandonment of the traditions embodied in the post-war welfare state. The degree of change in
the Labor Party's position is reflected in the assertion of authoritarian policies linked to 'work for social
assistance' rather than to the welfare and support traditions of the patriarchal welfare state.3(

Mary Langan continues by noting that the debate on the merits of providing aid on a selective basis and of
providing aid in a comprehensive manner

It led to an obfuscation about the extent of the general deterioration in the real value of aid,
which led to an increasing number of those who depend on social care falling into poverty,
and a tendency to deprive some of the aid; and their exclusion, in a sense, from society.
These trends were most clearly manifested among the youth and among all those who
support their children alone, whether men or women, and they are the groups targeted by
“work for care” programmes, and among the elderly, vulnerable, vulnerable, vulnerable,
vulnerable families. whose value is doubtful. It is remarkable that these groups have also
been publicly humiliated, which has taken very explicit forms in attacking young beggars or
mothers who live on social care, and taking the sex of the sex offenders. a threat to other
members of society.)4(

Elements of social security systems

Social security systems in many developed countries

consist of a mixture of two main programmes, the
social insurance program and the social aid
programme.

Features of social insurance programs

Its funding is based on contributions;

ensure that “due” benefits are provided to workers and their

families; It is concerned with dealing with various emergency

situations that obstruct or impede the continuation of earning

wages; Such as cases of illness, old age, childbirth and

unemployment.

Characteristics of social aid programs

Not dependent on subscriptions and funded by public revenue;

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It is intended to supplement the entry of particularly vulnerable groups, such as the elderly and the
disabled; In some countries it represented a “safety net” for those unable to obtain benefits guaranteed by
social insurance;
Benefits and the conditions for obtaining them vary from country to country. Benefits may be
cash or in-kind in the form of food aid. It may include 'income reimbursement programs' or 'cost
reimbursement programs', which provide full or partial compensation for family care, health
care, funeral costs, and so forth.

Social security programs in developed countries go hand in hand with various special arrangements made by
individuals to protect themselves against certain emergencies, including private savings, private insurance, and
private insurance.

Social security in developing countries

Thousands of millions of people in developing countries face extreme poverty and deprivation without any
form of social security; In addition to the deprivations in their daily life, they are exposed to crises arising
from natural disasters, civil wars and fluctuating economic conditions. The traditional bonds between
extended family members and among kin, which supported them in times of need, are being torn apart
by economic and social changes, including rapid migration.

When governments are faced with a large number of poor and destitute and are on the verge of general elections, many of

them are forced to announce the adoption of some measures that may bring them closer to the electorate and gain them some

popularity; The adoption of such measures may be a symbolic commitment to the problems of the poor, and in fact it may be

preferable to have such measures rather than a lack of programs for the poor. But such programs often lead to corruption,

political nepotism, waste, and often fail to reach their intended beneficiaries. Thus, it is not required to take measures based on

the “mood” of a leader or political party, whatever it may be, but rather to develop a social policy to address the issue of poverty.

General characteristics of social security in developing countries

Only a limited number of these countries have succeeded in establishing universal social security systems for everyone.

Existing systems are often directed at special social groups, such as children, pregnant women, etc.

Most of these systems are based on emergency relief programmes, ie intended to provide support in the event of

disasters.

Efforts of developing countries to establish collective security systems face some obstacles,
such as widening poverty, inefficiency and administrative capacity, debt burden, economic
reform policies or so-called economic programs and programs (27).

It is not easy to rely on traditional programmes; which are designed to deal with the needs of wage-earning
workers in the cities, to meet the needs of the vast numbers of rural people in developing countries,

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Also, these traditional programs often fail to meet the needs of large numbers of workers in the informal
sector.

Thus, it is important to broaden our view of social security in cases of poverty and deprivation in light of
economic backwardness; Social security must be seen as 'the social means to prevent the very low levels
of living standards, regardless of whether the reduction is the result of chronic deprivation or accidental
distress'.5(

If we expand our perspective on social security, we will see the essential role entrusted to the intervention at the
public level, which requires setting up more types of programs, including widows' pensions, food-for-work
programmes, in addition to compensation and education.

It is impossible to create an effective and equitable social security system if the government is undemocratic,
where corruption is common, if the avenues of protest are not available to the public, and if they do not
participate in the development process.

Money or political commitment? What are we missing?

The neglect in establishing social security systems capable of protecting the so-called informal sector is due to
the assumption that the number of the poor has grown to such an extent that it is financially impossible to
provide for all of them. But the 1991 Human Development Report says, “It is the lack of political commitment,
not the availability of financial resources, that is the real reason why the human condition is neglected." For
example, it is estimated that 0.3% of India's GNP is sufficient to care for those living below the poverty line, who
cannot pay social security contributions. The said percentage is sufficient to provide a complete set of social
benefits, as a minimum, that includes: old-age pensions, pregnancy and childbirth benefits, and subsistence aid
for all those who meet the conditions for obtaining them.)6(

The main elements that should be available in social security systems according to a rights perspective

The following are some of the main elements that should be available in social security systems according to the rights perspective:

1. Inclusion: The social security system must aim to provide universal coverage in all emergencies and life
circumstances that threaten people's ability to earn an income and their ability to maintain an
acceptable standard of living. This includes benefits for unemployment, sickness, disability, pregnancy
and childbirth, old age, children of the poor, and subsistence aid.

2. Opportunity to drop: Everyone who needs it should benefit from social security.

3. Adequacy and suitability: The level of benefits provided under the different schemes must be sufficient and
appropriate. The amount of the benefit paid depends on the type of social security system and its rules, for
example; The amount of benefits paid under some social insurance schemes is linked to the contributions
paid. However, benefits under need-based social assistance programs must be sufficient -

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At least - to ensure that the beneficiary's level does not fall below the minimum subsistence subsistence or poverty

line which must be clearly defined. The type of benefits provided must also be appropriate to the type of risk or

emergency that arises, for example; Maternity benefit payments must be extended to cover the period necessary

to cover maternity and childcare benefits.

4. Respecting Equality: Social security programs must not discriminate against anyone on
the basis of, for example, race, sex, gender, sexual orientation, religion, political
opinion, national or social origins, social status, or ancestry. This includes direct and
indirect discrimination.

5. Respect of procedural guarantees: Reasonable and equitable rules and procedures should be in place for deciding who

meets the terms of social security programs and who is eligible for benefits. Anyone who has been affected by a legal rule

or an administrative decision must have the opportunity to have recourse to the court quickly, and within the limits of

what he can pay, for a judgment defining his rights and effectively adjudicating the matter.

The interdependence and complementarity of rights

We can generally consider that the realization of the right to social security guarantees the material conditions
necessary to achieve an adequate standard of living; It protects people from conditions of poverty and material
insecurity that are life threatening and humiliating. Thus it is clear that we can derive the right to guarantee
The social protection of a number of civil and political rights, such as the right to
life, the right to integrity of the person, and the prohibition of torture and
other cruel, inhuman or degrading treatment or punishment. The
supervisory bodies of human rights treaties have not yet interpreted these
civil and political rights to imply the right to social security; However,
advocates and scholars of human rights must face the challenge of providing
a broader and more in-depth interpretation of these rights.

The right to equality, enshrined in some international human

rights instruments, also applies to social security
benefits. The right to equality protects individuals from
discrimination with regard to the enjoyment of the right
to social security, and discrimination may take the form
of excluding certain groups from entitlement to financial
benefits or exempting them from unjustified benefits.
The Human Rights Committee, in what it concluded
when examining some of the complaints submitted to it
under the First Optional Protocol to the International
Covenant on Civil and Political Rights, affirmed that the
special covenant in the covenant stated that, All areas of
State activities, and not only those within the scope of
the rights recognized in the Covenant.

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In examining what have come to be referred to as 'Dutch social security cases', the Human Rights
Committee has determined that Article 26 of the International Covenant on Civil and Political Rights
also applies to social and economic rights. The cases referred to were related to the Dutch
Unemployment Insurance Act, which contained provisions that discriminated against married
women. Each wife had to provide evidence that she was the source of the family's income in order to
be entitled to unemployment benefits, unless there was a corresponding requirement for the
husband. The Committee said that this law constitutes a violation of Article 26 because it
discriminates on the grounds of sex, stressing that Article 26 “does not require any State to enact
laws that provide for social security, as long as the law, for example, the sovereign power of the
State, its text must be consistent with the requirements of Article 26 of the Covenant.”

All of the grounds for prohibiting discrimination in Article 26 of the International Covenant on Civil
and Political Rights apply to social security programs: race, colour, sex, language, religion, or non-
political, political or opinion , wealth, lineage, or other reasons. and in a complaint by Guy et al.
against France)8( The Human Rights Committee concluded that French law discriminated against on
the basis of nationality because it provided for lower pensions for soldiers.
The Senegalese are in the French army from the

pensions allocated to their French peers, with whom

People are like members of the body

they are equal in everything else. The reason for Created from the same essence

“nationality” was considered to be included in the If a member suffers from illness,

phrase “other reasons”, and this discrimination was The rest is in pain
considered as a violation of Article 26. From the logo of the Tehran School of Social Work 1958-1979)7(

Among the traditional civil and political rights

that can be relied upon to provide a great deal of protection to social security
beneficiaries; The right to a fair trial when deciding their social security rights.
The European Court of Human Rights has considered a series of important
issues in this regard, and based on what is included in the European
Convention on Human Rights and Fundamental Freedoms, the Court has
concluded the following legal rule: Accordingly, the Court in the Schuler-
Zgeragen case held that “the general rule today is that Article 6(1) of the
Convention on the Ethics and Ethics of the Convention social welfare, including
welfare assistance itself.”)9(

The rights of contributors to social insurance based on contributors have received a degree of protection within the framework

of the property right provided for in certain international instruments. In Gaigusos v. Austria, the European Court of Human

Rights ruled that there had been a violation of Article 14 of the European Convention on Human Rights and Fundamental

Freedoms, which establishes the principle of non-discrimination; In addition to violating Article 1 of the First Protocol thereto,

which states the right of a person to the peaceful use of his property. Mr. Geigsos, who had legal residence in Austria, was

treated differently under the Regulation of the Unemployment Insurance Fund of which he was a participant, on the grounds

that he was not an Austrian citizen.10(

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State obligations

The state's obligations towards the right to social security depend on the international instruments that are
binding on it. The scope of the social security obligations of the international treaties of the States parties to
them varies from one treaty to another (see, for example, the very narrowly defined obligations in ILO
conventions).

In the context of the right to social security, we can allude to some aspects of the
obligations of States parties under the International Covenant on Economic, Social
and Cultural Rights; States should take legislative measures, in addition to
financial, administrative, educational and social measures, to ensure the
progressive full realization of the right to collective security. These measures must
be “deliberate, practical and directed as clearly as possible” to ensure that
everyone under the jurisdiction of the State entitles to social security. Although the
term “progressive realization” allows the state some time to fulfill its obligation to
fully realize the right to social security, the state must demonstrate that it is
moving “in the most feasible step.”
Another aspect implicit in the expression “progressive realization” is that the state should, in
general, avoid “intentionally taking any retrogressive measures” that would reduce the use of
the right to social security or the evasion of social protection. under the social security system.
The Committee on Economic, Social and Cultural Rights has considered that any retrogressive
measures would “require very careful consideration and will need to be fully justified by
reference to the full rights and rights enshrined in it”.11(

The Committee has also emphasized that states parties to the Covenant have a “essential
minimum obligation” to ensure that, at the very least, “minimum essential standards of each
right” are met, and that the state must make the most of its efforts. Within the framework of
the right to social security, this seems to mean that states must ensure that at least the basic
levels of social security are provided to the most vulnerable and disadvantaged groups, the old
and the old and the poor. . This basic minimum of state obligations is considered the starting
point for gradually providing universal access to the social security system until this right is fully
realized.

Even if a state could “attribute its failure to meet at least its basic minimum obligations to a lack of
available resources”, it still has an obligation to monitor and respond to the extent to which the right to
social security has been or is not being met.

Finally, the Commission stressed in one of the general comments, the importance of ensuring the availability of

appropriate means in national legal systems of redress and accountability in cases of violations of economic, social and

cultural rights, pointing out that States have a duty to ensure the provision of legal redress, whether a judicial nature or

administrative, for all Affected and aggrieved persons, individuals or groups. This must be 'available and reasonable'

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available, timely and effective.” Indeed, the availability of effective legal remedies in domestic legal
systems is of fundamental importance to the protection of the right to social security.)12(

local legal recognition

The levels of recognition of the right to social security vary in national legal systems; It may be
recognized in a country's constitution, and national legislatures may recognize the right to
social security; By passing legislation giving force of law to various social security programmes,
the courts may also protect the right to social security by applying general legal rules, such as
principles of equity, to justice; Finally, the right to social security may be protected by taking
a combination of these mechanisms within national legal systems.

Since the constitution of a country is

its supreme law, the recognition of a The social security system in South Africa

right to social security in a country's
constitution usually means that that
right enjoys a higher level of
protection than it would if it were to
be invaded. At the time the final
The social security system in South Africa is probably
the most advanced system in the continent of Africa.
Social insurance programs, such as unemployment
insurance and compensation for occupational injuries
and diseases, with social and occupational diseases,

1996 draft constitution for South are based on social security. the law. These consist of

Africa was being drafted, a broad old age pensions, child support grants, disability
grants, dependent care grants, and foster care grants
coalition of organizations had
for adopted children. However, there are still
successfully campaigned, leading to
significant coverage gaps; Social security does not
the inclusion of a comprehensive set
cover some categories such as domestic and farm
of economic and social rights
workers, those who perform casual work, and those
(including “international rights”) in
who suffer from long-term unemployment for
This is necessary to ensure that structural reasons. There are also some administrative
economic and social rights enjoy the problems that hinder the use of these grants.
same legal status and legal
protection as civil and political rights.

Countries with explicit constitutional provisions relating to social security include: Italy (Article
38), Portugal (Article 63), Spain (Articles 41 and 50), the Netherlands (Article 20) and Ireland
(Article 29), Hungary (Article 70E), Japan (Article 25), India (Articles 38, 39 and 47) and South Africa
(Article 27), Ghana (Article 36), Chile (Article 19 (18)) and Colombia (Articles 46 and 48). It is
important to distinguish between the enshrinement of the right to social security as a right
enshrined in the Constitution and under the Constitution. A guiding principle for state
policy The first situation – which is taken by a country such as South Africa – that allows an
individual or a group to file a case with a competent court asking you to obtain a legal
claim. The second situation is represented by India, where the constitution recognizes
many social and economic rights as guiding principles for state policies.

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They are intrinsic to the system of government, and it is the state's duty to enforce them when

making laws, that the courts do not have the power to enforce directly. However, these

Guidelines have had a far-reaching influence on the Indian courts' interpretation of

fundamental rights, allowing for a fairly broad interpretation of the scope to be adopted.

Some rights such as the right to life.

Constitutional courts in some countries, such as

Italy and Hungary, to the constitutional provisions relating to the right

in social security to provide a measure of protection

The beneficiaries of social security
benefits towards attempts to reduce
these benefits. The Constitutional
Court of Italy held that a significant
reduction in social security benefits
must be justified and must have good
reasons such as urgency, and that the
measures taken to actually reduce the
reduction should be justified.

The Hungarian Constitutional Court held that Article 70(e) of the Constitution guarantees the
obligation to provide care to a subsistence standard of living. Thus, reform of social security
systems cannot lead to a reduction in benefits (70 The Court has relied on a number of other
principles to place restrictions on the legislatures’ attempts to reduce existing social security
benefits, even if such reductions do not constitute a violation of Article 70 of the provisions of
the “Guarantee’s Guidelines.” Equity-like status on social security benefits (“new property”), and
the “earned rights” principle derived from the principle of legal certainty. It is based on the
protection of entitlements above the basic basic level.

Even if a country does not have explicit constitutional provisions regarding the right to
social security, the courts can invoke other rights such as the right to equality and property
and the obligation to provide redress.

and in Goldberg v. Kelly)13(In the United States, the Supreme Court has ruled that the provision to
provide guarantees of fair relief in the Fourth Amendment to the US Constitution requires an
evidence hearing before the welfare of the welfare authorities. Thus, although the US Constitution
does not explicitly recognize the right to social assistance, the Court clearly recognized that this is an
integral part of the values on which the Constitution is based:

The aid provided by the state, then, is not only a matter of charity, but a means of “spreading prosperity among all

and ensuring the blessings that freedom has bestowed upon us and our offspring”; If it is in the government's

interest to provide social care, it is also in the government's interest not to stop providing it to those who meet the

conditions of its use, and therefore it is indispensable to hold hearings to examine the evidence provided before

submitting it.

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Certain economic, social and cultural rights

Supervision and enforcement mechanisms

First: At the international and regional levels

Opportunities to advance the realization of the right to social security through international and regional bodies concerned with the protection of human rights depend on

the mechanisms and means provided by the relevant treaties. For example, the fulfillment by States parties to ILO conventions relating to social security is supervised

through the reporting system provided for in the ILO Constitution. Monitoring the enjoyment of the right to social security, based on what was mentioned in the International

Covenant on Economic, Social and Cultural Rights, is through examining the reports submitted by the states parties to the covenant to the Committee on Inviolable Rights

and Human Rights (24). (. Non-governmental organizations in Canada have used the powers of the Committee on Economic, Social and Cultural Rights in an innovative way,

as they resorted to it in order to draw attention to the reductions in social aid, such as the severance of social aid. As already noted, the right to equality and the right to

means and guarantees of a just remedy, rights recognized in international treaties protecting civil and political rights, cannot be shared. In such cases, those who allege that

their rights have been violated may be entitled to use the individual grievance mechanisms available under these treaties. The European Social Charter also provides for a

collective grievance mechanism aimed at ensuring the realization of the right to social security (see Module 29). As already noted, the right to equality and the right to means

and guarantees of a just remedy, rights recognized in international treaties protecting civil and political rights, cannot be shared. In such cases, those who allege that their

rights have been violated may be entitled to use the individual grievance mechanisms available under these treaties. The European Social Charter also provides for a collective

grievance mechanism aimed at ensuring the realization of the right to social security (see Module 29). As already noted, the right to equality and the right to means and

guarantees of a just remedy, rights recognized in international treaties protecting civil and political rights, cannot be shared. In such cases, those who allege that their rights

have been violated may be entitled to use the individual grievance mechanisms available under these treaties. The European Social Charter also provides for a collective

grievance mechanism aimed at ensuring the realization of the right to social security (see Module 29).

Second: At the national level

We also find that the extent to which the right to social security can be protected at national levels
depends on the legal system in place in the country, and on the power of the courts and other
redress bodies to adjudicate in social security cases. As mentioned above, the right to social security
can be protected by constitutional provisions, based on applicable legislation, or both.

Some constitutions allow the judiciary to review legislation to ensure that it is consistent with the fundamental rights

recognized in the constitution; The Constitutional Court may have the power to strike down a law if it violates rights

guaranteed in the Constitution; It may even have the power to issue orders that oblige relevant state organs to

implement positive obligations relating to certain rights. These powers represent the most effective remedy at the

national level; However, the principle of separation of powers usually requires the courts to give some respect to the

decisions made by the elected legislatures.

In addition to realizing rights through recourse, advocates may be able to persuade

national legislatures to adopt social security programmes, or to refrain from taking
retrogressive measures in relation to social security. Some of the strategies used are
campaigning, presenting protests to parliament, public advocacy, and trying to win
supporters. Case studies of the Child Care Benefit campaigns in South Africa, and the
Kensington Consortium for Care Rights in the United States show how these strategies can
be used to protect and support child welfare survivors. the right to social security).

222 Department of Rights

 Social security as a human right

Social security as a human right: international and regional instruments

international instruments Guaranteed rights Comments

and regional

world declaration
for human rights
Article 22 recognizes the right to social security. Although the Universal Declaration does not
have the status of legal obligation, what it says
Article 25 recognizes the right of every individual to be insured
regarding the right to social security formed
for benefits in cases of unemployment; disease; disability;
the basis for what was stated in the
Widowhood, old age, or other circumstances beyond his control
international treaties that were later concluded.
and which make him lose his livelihood.

international covenant Article 9 recognizes the right of everyone to social security. Article 9 does not include a definition
of rights of the right to social security, but the
Article 10(b) recognizes the right of working mothers to
economic Committee on Economic, Social and
“adequate social security benefits”.
and social Cultural Rights requires states parties
and cultural Article 10(3) obliges states parties to take special measures to the Covenant to include in the
to protect and assist children and adolescents. reports they submit to it information
on the nine sections of the social
security agreement 102. the
Convention hereinafter), which may
imply the exclusion of the right to
social aid necessary to meet the basic
needs for subsistence living. However,
some experts consider that it is
possible to deduce such a right from
the “Examination of Article 11 of what
meets their needs of food, clothing
and shelter, and their right to improve
of his living conditions.”

Judiciary Agreement Article 11(1)(e) obliges States Parties to the Convention to take

in all forms all appropriate measures to eliminate discrimination against

Discrimination against women women in the field of work in order to ensure to them, on the

basis of equality between men and women, the same rights:

(e) the right to social security, in particular in

cases of retirement, unemployment, sickness,
disability, old age and other incapacity to work,
as well as the right to paid leave;

Article 11(2)(b) obliges States Parties to take

appropriate measures to introduce maternity
leave with pay or with similar social benefits
without loss of previous employment, seniority
or social allowances;

Article 14(2)(c) recognizes the duty of States Parties to

Department of Rights 223

Certain economic, social and cultural rights

international instruments Guaranteed rights Comments

and regional

Eliminate discrimination against women in rural areas in

order to ensure that women, on the basis of equality
between men and women, benefit directly from social
security programmes.

rights agreement Article 26 recognizes the right of every child to benefit

baby from social security, including social security.

Article 27(1) also recognizes the right of every child to a standard of

living adequate for his physical, mental, spiritual, moral and social

development.

Under Article 27(2) and (3), States Parties are

obligated, according to their local circumstances
and within the limits of their capabilities, to take
appropriate and appropriate measures to assist
parents in fulfilling this right, and to assist in
conflict and conflict situations. .

international agreement Article 5(e)(iv) States Parties undertake to prohibit and

to eliminate all eliminate racial discrimination in, inter alia, the enjoyment
forms of discrimination of the right to social security and social services.
the racist

international agreement Articles 27 and 54 deal directly with the issue of the social
to protect the rights of security rights of migrant workers and members of their
all workers families.
immigrants and individuals

their family

Social Charter Article 12 obliges states parties to establish or maintain the importance of this
European article because it recognizes a system of social security at an appropriate level
and equal to the inherent and subjective right of everyone who is unable to at
least to the level necessary to comply with the international convention 102. Get
adequate aid. for social security. The Council of Europe, in addition to
These countries, in addition, should act on the European Social Charter, the Convention on
the Promotion of Social Security in a European manner on social assistance steadily. This
article also includes some provisions and medical provisions of 1953, the European Code
for States Parties to take steps for social security in 1964 (taken to ensure equal treatment
of their nationals) and the latest revisions or revisions of the 1990 provisions. and the right
to the Convention on social security, as well as other provisions of ILO No. 102 on
regarding the granting of security rights and social and maintain minimum standards of
social security; for them and resume enjoyment. recognize Article 13 of the level of the
European Union occupies the rights of the Charter of the right to social assistance and
medical., where Workers first of all with regard to the “dimension” the first paragraph of
which contains the social undertaking of States parties.

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 Social security as a human right

international instruments Guaranteed rights Comments

and regional

By ensuring that every person who does not have sufficient resources obtains
the basic rights of workers and is not able to secure these resources by his
means 1989, the right of workers shall be included in the special guarantee or by
any other means that may help him in the right to on social assistance in Article
the disease. The same approach is followed in the European
Parliament Declaration on Fundamental Rights
and Freedoms of 1989 (Article 10).
(Article 15).

Article 13(2) provides for the danger of discrimination

against persons receiving such assistance. While Clause 3
of the same Article provides for the provision of such
advice and assistance as may be necessary for the
prevention or elimination of personal or family need.

Article 8 of the Charter also stipulates the obligation of

state parties to provide childbearing and maternity benefits
with the purpose of ensuring the effective exercise of the
workers' right to protection during childbearing. Family
benefits are also provided for in Article 16 of the Charter.

Social security rights are protected in the revised

version of the European Social Charter.

American advertisement Article 16 recognizes the right of every person to social security “to

for human rights protect him from the consequences of unemployment, old age and

and his duties any disability that may arise from causes beyond his control which

make it impossible for him, physically or psychologically, to earn his

living.”

The following is the text of Article 9 of the Additional

Protocol to the American Convention on Human Rights and
its obligations on Economic, Social and Cultural Rights:

“(1) Everyone shall have the right to social security

that protects him from the effects of old age and
disability that prevent him, whether physical or
psychological, from securing the means necessary
for a decent and dignified life.

“(2) In the case of persons employed by

third parties, the right to social security
includes, at least, medical care and a
benefit or retirement benefit in the event of
a work injury or illness due to the nature of
his work. before and after birth.”

Department of Rights 225

Certain economic, social and cultural rights

international instruments Guaranteed rights Comments

and regional

African Charter The Charter does not contain explicit provisions recognizing the

for human rights right to social security. However, it is possible to deduce some

and the people aspects of this right from Article 16 concerning the right to

health, and from Article 18(4), relating to the right of the elderly

and the disabled to certain special protection measures.

Labor Organization Convention No. 102 Concerning the Minimum In addition to Convention No.
international Standards for Social Security (Minimum Standards) of 102, there are many other ILO
1952 recognizes the following nine branches of social conventions dealing with the
security: medical care, sickness benefit, unemployment right to social security, including:
benefit, work injury benefit, family benefit, and family Convention No. 103 of 1952
benefit. The minimum categories of persons protected concerning maternity protection
by benefits established by it, the content and level of (revised) and Article 118 of the
such benefits, the rights of protected and other Cop. Social security, Convention
beneficiaries and some related administrative matters. 121 of 1964 regarding injury
benefits, Convention No. 128 of
1967 concerning disability, old-
age and survivor benefits,
Convention No. 130 of 1969
regarding medical care and
sickness benefits, and the 157th
sickness agreement of 1982; No.
168 of 1988 regarding the
promotion of employment and
protection from unemployment.
The right to social security has generally
been linked by the ILO to employment,
although it is increasingly inclined to
promote a more comprehensive notion
of social security in which the State,
along with social employers and workers,
co-operates.

Other instruments containing international political commitments

We will refer to two international instruments that contain obligations relating to the right to social security, which are

not legally binding in nature, but which do include international political commitments:

The Copenhagen Declaration and Program of Action of the 1995 World Summit on Social Development. It is
important to note here in particular the pledge to work on “the promotion and expansion of programs
targeting the needy, programs that provide for the provision of benefits, reunifications and...”

226 Department of Rights

 Social security as a human right

1995 Beijing Declaration and Platform for Action of the Fourth World Conference on Women; Governments have

committed themselves to: provide adequate safety nets and establish social security systems in countries where they do

not exist, or “review these networks with a view to achieving equality between men and women at every stage”.

Author: The author of this unit is Sandra Liebenberg; The research on which the unit is based was carried out with

financial assistance from the European Union Foundation for Human Rights in South Africa. However, the opinions

expressed do not necessarily represent the official view of the said institution.

Margins

(1) International Labor Organization, Introduction to Social Security (Geneva: International Labor
Office, 1984), 2 .

Economic, Social and Cultural Rights 19th Session (November-December, 1998), 16 November Social
and Cultural Rights re: The Review of the Third Report of Canada at the Committee on (2) The
Charter Committee on Poverty Issues (CCPI), Submissions to the Committee on Economic ,
. 10, 1998

(3) M. Langan, “The Contested Concept of Need, in Welfare: Need, Rights and Risks, ed. M. Langan.”
(London and New York: Routledge, 1998), 27-28 .

(4) Ibid.
(5) R. Burgess and N. Ster, Social Security in Developing Countries: What, Why, Who and How? ,
ed. E. Ahmed et al. (Oxford: Clarendon Press, 1991), 43-47

(6) Kathyayini Chamaraj, "Why Nothing Changes for the Poor," The Hindu, 19 January 1999 .
(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 (Letter No. 1985/196, Ibrahim Guei et al. v. France) Views Adopted 3 April 1989 at the
Thirty-fifth Session, UN Doc. A44/40/A, pp. 260-267.
) (9) Article 6(1) states that “every person shall have the right, in the determination of his civil rights and obligations, or
of any criminal charge against him, to be brought before a fair and public trial within a reasonable time before an
independent, adjudicated court, ....” See Judgment in Schulerer-Zerragan v. Switzerland, 24 June 1993 –
Publications of the European Court of Human Rights, Series A, No. 263, para. 46.

social security rights in the light of the Gaygusuz judgment," Social security, non-discirmination European
Convention on Human Rights, see "The meaning of article 1 of the First Protocol for (10) ECHR, 16
September 1996 (39/1995/545) /631). For a review of the relevant case law under the
and property, ed. S. Van den Bogaert (Antwerpen, Maklu 1997), 59 .

) 11) Third General Comment of the Committee on Economic, Social and Cultural Rights, The Nature of the Obligations of States Parties, art.
2 (1) of the International Covenant on Economic, Social and Cultural Rights (Fifth Session – 1990). UN Doc,
HRI/GEN/1/Rev, 1.1994, para. 11 (Text of the comment is also published in the above mentioned
Guidebook). (.

) (12) Ninth General Comment of the Committee on Economic, Social and Cultural Rights, Domestic Application of the
Covenant, Nineteenth Session of the Committee (1998), UN Doc, HRI/GEN/1/Rev, 1.1994, (Text of the Commentary
in its Diary publication Twenty-second unit.
(13) Goldberg v. Kelly, 397 US 254 (1970).

Department of Rights 227